Friday, July 15, 2011

Refugee law meets international criminals

How should refugee determination processes address the alleged commission of international crimes by refugee claimants? In contrast with the question I discussed last week -- i.e. how should international criminal courts address refugee claims that arise as a result of involvement in their legal processes -- this problem is squarely addressed by the United Nations Convention Relating to the Status of Refugees.
But is the answer as clear as it seems in the text of the Refugee Convention? A recent case from South Africa demonstrates (1) the complicated interaction between the applicable Convention provision and the principle of non-refoulement and (2) the opportunities for creative interchange between refugee law and a system of international criminal law and transitional justice that has become significantly more robust since the Refugee Convention was drafted in 1951.
As any student of refugee law knows, Article 1(F), containing the exclusion clauses, mandates that the Refugee Convention is inapplicable if the adjudicator has "serious reasons for considering" that an applicant has committed a war crime or crime against humanity as defined in the relevant international legal instruments. While in some cases, it may be difficult to determine whether the "serious reasons for considering" standard has been met, in the case of Lieutenant-General Faustin Kayumba Nyamwasa, it is not. Nyamwasa, who held senior leadership positions in the Rwandan Patriotic Front and the Rwandan Patriotic Army, faces indictments in France and Spain for war crimes and crimes against humanity, plus a United Nations report implicates him in serious human rights violations after the Rwandan genocide.
Yet the South African government confirmed last month that it had granted Nyamwasa asylum. Though this decision violates the plain text of the Refugee Convention, the principle of non-refoulement complicates the question of how refugee law must deal with international criminals. Non-refoulement, or non-return to persecution, was created by Article 33 of the Refugee Convention, which applies the principle only to refugees. Article 3 of the UN Convention Against Torture expands the principle to protect any person (not only refugees) as long as there are substantial grounds for believing she would be at risk of torture. Nyamwasa, who has recently and vociferously criticized President Kagame and the RPF, is at serious risk of persecution and torture if returned to Rwanda. South Africa has no obligation under international refugee law to grant Nyamwasa refugee status, but is prohibited by the principle of non-refoulement from sending him back to Rwanda.
What's next for Nyamwasa? This briefing paper by two advocates of the South African High Court, Anton Katz and Max du Plessis, suggests some options. Withdrawal of refugee status may be appropriate if Nyamwasa omitted mention of his involvement in international crimes in his application. While South Africa can't return him to Rwanda, it can assist in ensuring that he is held accountable for these crimes, either through the exercise of universal jurisdiction or by sending him to France or Spain. Thinking creatively, the advocates suggest that the South African Minister of Home Affairs might allow Nyamwasa to remain in South Africa under the condition that he provide information about the human rights violations perpetrated by the Rwandan Patriotic Army -- a refugee law version of the South African Truth and Reconciliation Commission. As the interactions between principle of non-refoulement and international criminal law multiply and create similar challenges, it will be important to keep in mind the need for such innovative routes forward.

(Hat tip to the excellent Forced Migration Current Awareness blog, which also recently posted a collection of resources on international criminal law and refugee law.)


1 comment:

Kevin Jon Heller said...

Jaya,

The flipside of this issue is also important: what happens to individuals who are acquitted by international tribunals but cannot return to their home country? Andre Ntagerura was acquitted by the ICTR in 2004 and had his acquittal confirmed in 2006, but he was still living in a UN safehouse in Arusha as of late 2009. (I think, but am not sure, that he is still there.) He cannot safely return to Rwanda, and no country will take him despite his acquittal, because courts have interpreted 1(F) to be satisfied by the mere fact of an indictment. Such a situation makes a mockery of international criminal justice. If the international community is willing to make arrangements for imprisoning convicted defendants, it needs to make arrangements for relocating acquitted ones.

Please forgive the shameless self-promotion, but I published an essay on this issue in the Leiden Journal of International Law in 2008:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005772