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

• Citation: (2020) 33 SACJ 425
• 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

Section 4(1)(a) of the Refugees Act disqualies from refugee status any

person who is alleged to have ‘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’. The Implementation of the

Geneva Conventions Act and the Implementation of the Rome Statute of

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

jurisdiction over war crimes committed abroad. The Implementation of the

Rome Statute of the International Criminal Court Act is only applicable to

crimes that were committed after July 2002. However, the Implementation

of the Geneva Conventions Act is silent on whether South African courts

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

international armed conicts outside South Africa. As a result, if a person

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

the ground that there is reason to believe that he committed a war crime

in a non-international armed conict cannot be extradited for prosecution,

South African courts will not have jurisdiction over him. It is argued that

there is a need to amend the Implementation of the Geneva Conventions

Act to address this loophole. In order to support this argument, the article

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

Act; the admissibility of foreign convictions in ref ugee determination cases;

prosecuting a person who has committed war crimes outside South Africa;

and excluding a person from being recognised as a refugee on the basis of

an offence of a non-political nature and the principle of non-refoulement.

* LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of

Law, University of the Western Cape.

425

(2020) 33 SACJ 425

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1 Introduction

In South Africa, there are thousands of asylum seekers and refugees

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

status in South Africa, 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. Section 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 particular 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. They 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 Constitutional Court observed that ‘South Africa is by international

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

of Home Affairs informed Parliament that ‘[t]he total number of active Section 22

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

L van der Merwe ‘Question NW1586 to the Minister of Home Affairs,’ 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 provides that ‘Subject to Chapter 3, a person qualies for

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

(a) owing to a well-founded fear of being persecuted by reason of his or her race,

tribe, religion, nationality, political opinion or membership of a particular 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 country of his or her former habitual residence is unable or,

owing to such fear, unwilling to return to it; or (b) owing to external aggression,

occupation, foreign domination or events seriously disturbing or disrupting public

order in either a part or the whole of his or her country of origin or nationality, is

compelled to leave his or her place of habitual residence in order to seek refuge

elsewhere; or (c) is a dependant of a person contemplated in paragraph (a) or (b).

4 Article 1F(a) of the Convention provides that ‘The provisions of this Convention

shall not apply to any person with respect to whom there are serious reasons for

considering that: (a) he has committed a crime against peace, a war crime, or a

crime against humanity, as dened in the international instruments drawn up to

make provision in respec t of such crimes.’

426 SACJ.(2020) 2

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