Refugees, serious non-political crimes and prosecution: Deficiencies in the criminal justice system occasioned by observance of principle of nonrefoulement in the context of refugee and human rights protection

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 224-255
• Published date: 24 May 2019
• Citation: (2017) 30 SACJ 224
• Author: Callixte Kavuro

Refugees, serious non-political

crimes and prosecution: Deciencies

in the criminal justice system

occasioned by observance of

principle of

non-refoulement

in the

context of refugee and human rights

protection

CALLIXTE KAVURO*

ABSTRACT

The legal issue that this article explores relates to the fact that when an

asylum-seeker who has committed a crime of a non-political nature, ees

his or her home country by reasons of events disturbing public order or of

persecution on account of his or her r ace, tribe, religion, nationality, political

opinion or being a member of a par ticular social group, that asylum-seeker

cannot be granted asylum as he or she is ineligible on the mere ground of

commission of a serious crime. Difculties arises in situations where an

asylum-seeker establishes that he or she will be subjected to persecution

in the form of torture, the death penalty or other ill-treatment on return.

This begs the question whether such asylum-seeker can be tried by South

African courts since the state cannot return an individual to a place where

he or she will be at risk of persecution, torture or other grave human rights

violations. It is against this background that the article explores the notion

of disqualication for refugee status on the basis of a serious crime in

light of the principles of non-refoulement, diplomatic assurance and nally

aut dedere aut judicare. After an in-depth analysis of these principles, the

article concludes by suggesting that issues relating to the prosecution of de

facto ref ugees (who are disquali ed from refugee status, but who cannot be

returned due to a credible fear of persecution or of the possibility of facing

treatment contrary to s 12 of the Constitution) can be addressed through

adoption of legislation in order to give power to South African courts to

prosecute.

*LLB (UWC), LLM (UCT ), Doctoral candidate, Stellenbosch Un iversity

224

(2017) 30 SACJ 224

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1 Introduction

Intrastate and transnational unrests create an assortment of refugees

which include criminals of national and international crimes.1 Given

the toll that armed violence takes on both human lives and political

order, law-abiding citizens, and criminals alike, take ight to seek

asylum in other countries.2 Because a rmed conict or events disturbing

public order are inherently connected to political unrest, criminals

may systematically be targeted and tortured or persecuted on account

of their race, tribe, religion, nationality, or political opinion.

Whilst certain criminals of serious crimes may ee their home

countries for no other reason than being a member of a pa rticular social

group that is regularly targeted and persecuted, certain individuals,

who committed serious offences, attracting the concomitant likelihood

of a severe punishment, may also ee to another country in an attempt

to seek a safe haven from prosecution. However, whether they have

ed to evade criminal justice or escape persecution, those asylum-

seekers – who are deemed criminals of serious non-political crimes

– must not be recognised as “genuine” or “de jure” refugees, and

thus be excluded from international refugee protection. As “criminal”

refugees, they must, in principle, be apprehended and deported to the

jurisdiction where the crime was committed. Conceptually, exclusion

from international refugee protection implies that the principle of

non-refoulement established by international refugee law cannot be

invoked by criminal asylum-seekers to protect them against return or

deportation.3

1 The inux of Hutu refugees in 1994 was seen as the population that ed with war

criminals and civilians, see, PJ Hoffman, TG Weiss & J Egeland Humanitarianism ,

War, and Politics: Solferino to Sy ria and Beyond (2017) 76. Yet, the notion of serious

national crim es of non-political nature ‘has i ncreasingly come to be associated with

many offences again st the laws of war, and with the emerging concept of t errorism,’

see, GS Goodwin- Gill and J McAdam The Refugee in Inter national Law 3ed (2007)

176.

2 Insurgents attack local prisons to liberate prisons. See, SE Cook Genocide in

Cambodia and Rwanda: Ne w Perspectives (2004) 229; MM Hafez Suicide Bombers

in Iraq: The Strateg y and Ideology of Martyr dom (2007) 55; JP Sullivan and RJ Bun ker

Mexicos Criminal In surgency: A Small Wars Journal– El Centro Anthology (2012) 62;

and ML Gross The Ethics of Insurgency: A Critical Guide to Just Guerilla Warfare

(2015) 10.

3 The principle is entrenched under art 33(1) of the 1951 Convention Relating to the

Status of Refugees; art 3(1) of the 1967 UN Declaration on Territorial Asylum; art

II(3) of the 1969 Organisation of African Unity Convention Governing the Specic

Aspects of Refugee Problems in Africa; art III(3) of the 1966 Principles Concern ing

the Treatment of Refugees; and t he 1967 Resolution on Asylum to Persons in Danger

of Persecution.

Refugees, serious non-political crimes and prosecution 225

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Yet, the main concern is that they are still protected by the principle

of non-refoulement established by human rights law,4 if they can

present evidence to prove that there are substantial grounds for

believing that, if returned or deported, they would be exposed to

a real risk of persecution, torture, or agrant human rights abuse.

Drawing on this view, this article argues that where such evidence

is sufciently adduced, South Africa must dispel any doubts about

it and thus protect those criminal asylum-seekers. Any attempt to

return these asylum-seekers would result not only in a breach of the

principles of human rights law but also principles of constitutional

law. Section 12 of the Constitution is fundamentally important in the

protection of individuals against all forms of violence or ill-treatment.

In this regard, s 12 protects criminal asylum-seekers who would be

exposed to a real risk of being debased or ill-treated on return.

However, in order to ensure that fugitives do not evade justice, the

United Nations established the treaty-based principle of aut dedere

aut judicare (that is, extradite or prosecute), for a country to take

the necessary action against individuals who perpetrated certain

international crimes, but who can not be returned to a country in which

persecution is prevalent or torture is pr actised.5 The principle is viewed

as a general precept within inter national law that facilitates prosecution

of perpetrators of the said crimes in instances where extradition is

impossible.6 In this regard, South Africa adopted, for example, the

Prevention of Organised Crime Act 121 of 1998, the Implementation of

the Rome Statute of the International Criminal Court Act 27 of 2002,

the Prevention and Combating of Corrupt Activities Act 12 of 2004,

the Prevention and Combating of Trafcking in Persons Act 7 of 2013

and the Prevention and Combating of Torture of Persons Act 13 of

2013 to expand the extraterritorial jurisdiction of South African courts

over inter- or transnational crimes com mitted abroad. This implies that

an asylum-seeker who committed crimes falling within international

jurisdiction can be tried by the South African courts.

4 The principle is entrenched in human rights treaties such as art 22(8) of the 1969

American Convention on Human Rights; art 3 of the 1984 Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; art 7

of the International Covenant on Civil and Political Rights; art 3 of the European

Convention for the Protection of Human Rights and F undamental Freedoms.

5 See, e.g., MC Bassiouni and EM W ise Aut Dedere Aut Judicare: The D uty to Extradite

or Prosecute in International Law (1995); MW Levine ‘Cuban hijackers and the

United States: The need for a modied Aut Dedere Aut Judicare Rule’ (1994) 32

Colum J Transnat’l L 133; C Enache-Brow n and A Fried ‘Universal crime, jur isdiction

and duty: The obligation of a ut dedere aut judicare in international law’ (1998) 43

McGill L J 613; D Castellino ‘International terrorism and the development of the

principle of aut dedere aut juducare’ (1975) 10 J Int’l L & Econ 483 and G Gilbert

‘Current issues i n the application of the exclusion clauses’ (2001) 1 at 1.

6 Enache-Brown and Fried op cit (n5) 613.

226 SACJ.(2017) 2

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