Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

• Published date: 03 November 2020
• Date: 03 November 2020
• Author: Mujuzi, J.D.
• Pages: 425-445

Exclusion from refugee status

of asylum seekers who have

allegedly committed war crimes

in non-international armed

conicts outside South Africa

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

Se ct io n 4 (1)(a) of the Refugees Act d isqualies fr om refugee status any

person who is alleged to have ‘committed a cr ime against pe ace, a war

crime or a crime ag ainst humanit y, as dened in any internationa l legal

instrument de aling with any such cri mes’. The Implementation of the

Geneva Conventions Act and the Implementation of t he Rome Statute of

the International Cr iminal Court Act provide that South A frican courts have

jurisdiction over war cr imes committe d abroad. The Implementation of the

Rome Statute of the Intern ational Crimi nal Court Act is on ly applicable to

crimes that were comm itted after July 20 02. However, the Implementation

of the Geneva Conventions Act is silent on whethe r South Africa n courts

have jurisdiction over war cri mes committed by non-South Africa ns in non-

international ar med conicts outside S outh Africa. A s a result, if a person

whose application for refugee status ha s been declined under s 4(1)(a) on

the ground that there i s reason to believe that he commit ted a war crime

in a non-internationa l armed conict c annot be extradite d for prosecution,

South Africa n courts will not h ave jurisdiction over him. It is a rgued that

there is a need to amend the Implementat ion of the Geneva Conventions

Act to address this loophole. In order to s upport this arg ument, the article

addresses the following issues: a d iscussion of s 4(1)(a) of the Refugees

Act; the admissibil ity of foreign convictions in ref ugee determination cases;

prosecuting a person who has com mitted war cr imes outside South Af rica;

and excluding a person from being recog nised as a refugee on the ba sis of

an offence of a non-political nat ure and the principle of non-r efoulement.

* LLB (Makerere) LLM (Preto ria) LLM (Free State) LLD (Wester n Cape), Professor of

Law, University of the Western Cape.

425

(2020) 33 SACJ 425

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1 Introduction

In South Africa, t here are thousands of asylum seekers and refugees

from different parts of t he world.1 For a person to qualify for refugee

status in South A frica, the Refugees Act2 provides for the conditions

that he or she must meet.3 The Refugees Act also provides for grounds

on which a person may not be recognised as a refugee. Sec tion 4 of

the Act provides that:

A person does not qualify for refugee status for the purposes of this Act if

there is reason to believe that he or she – (a) has committed a crime against

peace, a war crime or a crime against humanity, as dened in any international

legal instrument dealing with any such crimes; or (b) has committed a crime

which is not of a political nature and which, if committed in the Republic,

would be punishable by imprisonment; or (c) has been guilty of acts

contrary to the objects and principles of the United Nations Organisation or

the Organisation of African Unity; or (d) enjoys the protection of any other

country in which he or she has taken residence.

The above grounds, in particu lar under s 4(1)(a) and (b), are based on

the 1951 United Nations Convention on the Status of Refugees4 and

are not unique to South Africa. T hey are found in refugee legislation

1 In Ruta v Minister of Home A ffairs 2019 (3) BCLR 383 (CC), 2019 (2) SA 329 (CC) at

para [10], the Constitution al Court obser ved that ‘South A frica is by inter national

standards ver y heavily burdened by asylum seekers.’ In Dece mber 2019, the Minister

of Home Affairs i nformed Parlia ment that ‘[t]he total numb er of active Section 22

permit holders (temporar y asylum seeker permits) is 186 210 as at 30 June 2019’. See

L van der Merwe ‘Questio n NW1586 to the Mini ster of Home Affai rs,’ 9 December

2019 PMG available at https://pmg.org.za/committee-question/12936/, accessed on

04 March 2020.

2 Refugees Act 130 of 1998.

3 Section 3 of the Act prov ides that ‘Subject to C hapter 3, a person qual ies for

refugee status for t he purposes of this Act if that pe rson–

(a) owing to a well-founded fear of being pers ecuted by reason of his o r her race,

tribe, religion, n ationality, politica l opinion or membersh ip of a particu lar social

group, is outside the count ry of his or her nationality and is u nable or unwilling to

avail himsel f or herself of the protection of that coun try, or, not having a nationality

and being outside the cou ntry of his or her for mer habitual reside nce is unable or,

owing to such fear, unwilli ng to return to it; or (b) owing to exte rnal aggressio n,

occupation, foreign domi nation or events serio usly disturbi ng or disrupting publ ic

order in either a par t or the whole of his or her count ry of origin or n ationality, is

compelled to leave his or her place of h abitual residence in or der to seek refuge

elsewhere; or (c) is a dependant of a person conte mplated in paragr aph (a) or (b).

4 Article 1F(a) of the Convention provides t hat ‘The provision s of this Convention

shall not apply to any person wi th respect to whom ther e are serious reaso ns for

considering that: (a) he has comm itted a crime ag ainst peace, a war c rime, or a

crime again st humanity, as dene d in the internat ional instr uments drawn up to

make provision in respec t of such crimes.’

426 SACJ . (2020) 2

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