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
• Pages: 224-255
• Published date: 24 May 2019
• Date: 24 May 2019
• 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 th is article explores relates to the fac t that when an

asylum-seeker who has comm itted a crime of a non-pol itical nature, ees

his or her home country by rea sons of events disturbi ng 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 a sylum as he or she is ineligible on the mere grou nd of

commission of a serious cr ime. Difcult ies arises in situat ions where an

asylum-seeker establi shes that he or she will be subjecte d to persecution

in the form of tortu re, the death penalty or ot her ill-treatm ent on return.

This begs the quest ion whether such asylum-seeker can b e tried by South

African cour ts since the state can not return an ind ividual to a place where

he or she will be at risk of perse cution, torture or ot her grave human rights

violations. It is against t his background that the a rticle explores the notion

of disqualic ation for refugee status on the basi s of a serious crime in

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

aut dedere aut judicare. A fter an in- depth analysis of these pr inciples, the

article concludes by suggesti ng that issues relating to the prosec ution of de

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

returned due to a credible fear of p ersecution or of the possibil ity of facing

treatment contrar y to s 12 of the Constitution) can be add ressed through

adoption of legislation in order to give power to South A frican cour ts to

prosecute.

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

224

(2017) 30 SACJ 224

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1 Introduction

Intrastate and tran snational unrests create an assor tment of refugees

which include criminals of n ational and international cri mes.1 Given

the toll that armed violence takes on both human l ives and political

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

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

public order are inherently connected to political u nrest, crimi nals

may systematically be targeted and tor tured or persecuted on account

of their race, tribe, religion, nationalit y, or political opinion.

Whilst cert ain crimi nals of serious crimes may ee thei r home

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

group that is regularly targeted and per secuted, certain ind ividuals,

who committed serious offences, attrac ting the concomitant likelihood

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

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

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

seekers – who are deemed criminals of se rious non-political crimes

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

thus be excluded from international refugee protection. A s “criminal”

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

jurisdiction where the cri me was committed. Conceptua lly, exclusion

from international refugee protect ion implies that the principle of

non-refoulement established by internat ional refugee law cannot be

invoked by criminal asylum-seekers to protect t hem against return or

deportation.3

1 The inux of Hut u refugees in 1994 was seen a s the population that e d with war

crimina ls and civilia ns, see, PJ Hoffman, TG Weiss & J Egela nd 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 att ack local prisons t o liberate prison s. See, SE Cook Genocid e in

Cambodia and Rwanda: Ne w Perspectives (2004) 229; MM Ha fez 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 E thics of Insurgency: A Cr itical Guide to Just G uerilla Warfare

(2015) 10.

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

Status of Refugee s; art 3(1) of the 1967 UN Declaration on Territoria l Asylum; art

II(3) of the 1969 Organisation o f African Unit y Convention Governi ng the Specic

Aspects of Ref ugee Problems in Af rica; 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 protecte d 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 retur ned or deported, they would be exposed to

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

Drawing on this view, this article arg ues that where such evidence

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

it and thus protect those crimi nal 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 constit utional

law. Section 12 of the Constitution is fundamental ly important in the

protection of individuals agains t all forms of violence or ill-treatment.

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

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

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

United Nations established the treaty-ba sed principle of aut dedere

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

the necessary action again st individuals who perpetr ated 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 cri mes in instances where extr adition is

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

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

the Rome Statute of the International Cr iminal Cour t Act 27 of 2002,

the Prevention and Combating of Corrupt Activities Act 12 of 20 04,

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 jur isdiction of South Af rican courts

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

an asylum-seeker who committed cr imes falling within i nternational

jurisdiction can be t ried by the South African cou rts.

4 The principle is ent renched in human rig hts treaties such as a rt 22(8) of the 1969

American Convent ion on Human Rights; ar t 3 of the 1984 Convention again st

Torture and Other Cr uel, Inhuman or Deg rading Treatment or Pun ishment; art 7

of the Internation al Covenant on Civil and Pol itical Rights; ar t 3 of the European

Convention for the Protectio n 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 Inter national Law (1995); MW Levi ne ‘Cuban hijackers and the

United States: The nee d for a modied Aut Deder e 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 intern ational law’ (1998) 43

McGill L J 613; D Castellino ‘Inter national terror ism and the development of the

principle of aut ded ere 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 Frie d op cit (n5) 613.

226 SACJ . (2017) 2

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