Asylum, Non- Refoulement, Extradition and Counter-Terrorism. Cecilia M. Bailliet

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1 Asylum, Non- Refoulement, Extradition and Counter-Terrorism Cecilia M. Bailliet

2 UNSC Resolution 1373 Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts;

3 SC Resolution 2178 Calling upon States to ensure, in conformity with international law, in particular international human rights law and international refugee law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, including by foreign terrorist fighters,

4 Inter-American Convention Against Terrorism Art. 12 Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention.

5 Counter-Terrorism Committee October 2007: Prevention of Terrorist Movement and Effective Border Security Asylum seekers are vilified as terrorists (due to political, ethnic or religious ties), resulting in denial of admission and access to protection: Border and camp closures, detention of refugees, and restriction of movement. Rejection at border, extradition, return, or expulsion without due process or judicial review Broad or collective application of exclusion clause within the 1951 Convention on the Status of Refugees, Art. 1 (f) Broad use of the exception to the non-refoulement principle within the 1951 Convention, Art. 33 (2) Use of rendition and diplomatic assurances resulting in refoulement Counter-terrorism efforts must be consistent with international refugee law, human rights and humanitarian law

6 Euro-Mediterranean Code of Conduct on Countering Terrorism We confirm that we will: Refuse Asylum to terrorists and deny them safe haven in accordance with international law Concerned with transit migration from sub-saharan Africa and cooperation in the fight against illegal immigration and trafficking in human beings

7 EU JHA Respond to security threats of terrorism, organised crime, corruption & drugs, and the challenge of managing mixed migration flows. Problem with third countries (partners with EU- Med- Algeria, Egypt, Morocco, Tunisia) include lack of independent judiciaries and police forces which respect human rights. Need to improve institutions to abide by human rights to avoid liability for refoulement/due process violations.

8 Right to Seek Asylum 1948 Universal Declaration of Human Rights Art. 14: Everyone has the right to seek and to enjoy in other countries asylum from persecution

9 1951 Convention on the Status of Refugees Art. 1 Well-founded fear of persecution on account of race, religion, nationality, social group or political opinion. Art. 16 free access to courts

10 Exclusion of Persons from Refugee Status 1951 Convention, Art. 1 F Where there are serious reasons to consider they have committed heinous acts or serious crimes: Crime against peace, war crime or crime against humanity Serious non-political crime outside the country of refuge prior to admission Guilty of acts contrary to the purposes and principles of the UN Can revoke or cancel refugee status if facts on exclusion come to life afterwards

11 Ruma Mandal State not required to prohibit criticism or propaganda against another State (freedom of expression) Where the refugee becomes engaged in subversive activities aimed at the violent overthrow of the government of another State, this may trigger responsibility of the host State. Insofar as a State is obliged not to take part in any activities aimed at the violent disposal of another State s regime, it is arguably under a similar duty to prevent individuals in its territory from attempting the same. The 1970 UN Declaration on Friendly Relations : no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State. States may not let individuals launch military attack against another state, but less clear with respect to lesser actions in context of self-determination.

12 Ruma Mandal Where the exiled group provides significant financial or logistical support (information-gathering, equipment) to individuals involved in a violent struggle against a government in a third State, this would arguably amount to subversive behaviour. The host State is obliged to take reasonable measures to crack down on such activity, subject to any considerations relating to the right of self-determination. Moreover, where the recipients of such support are engaged in terrorist activity, the host State may well be under an obligation to prevent and punish such activity pursuant to UN Security Council Resolution 1373 (2001).

13 Ruma Mandal The host State is arguably under a customary law duty to take reasonable measures to prevent persons in its territory from using it as a launch pad for violent incursions into another State. Moreover, it may well also be under a treaty obligation to punish persons in its territory who have committed violent acts against another State if the conduct falls within the scope of one of the Conventions concerned with international terrorism. An obligation to prevent and punish violent acts against another State by a refugee may also flow from UN Security Council Resolution 1373(2001). Exceptions: Self-Determination, Liberation from Apartheid, etc.

14 1951 Convention on the Status of Refugees Art. 33 States are obligated not to expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on acount of race, religion, nationality, membership of a particular social group or political opinion. It applies not only in respect of return to the country of origin but also with regard to forcible removal to any other country where a person has reason to fear persecution related to one or more of the grounds set out in the 1951 Convention,or from where he or she risks being sent to his or her country of origin. The prohibition of return to a danger of persecution under international refugee law is applicable to any form of forcible removal, including extradition, deportation, informal transfer or renditions. Non-refoulement is customary international law principle

15 Non refoulement: Jus Cogens Convention Against Torture Article 3 No State shall expel, return (Refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Prohibits acquiescence, complicity, consent to torture Should consider existence of gross, flagrant mass violations of human rights No limitation or exception

16 CAT General Comment 1 6. Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable. 7. The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present. All pertinent information may be introduced by either party to bear on this matter. 8. The following information, while not exhaustive, would be pertinent: (a) Is the State concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights (see art. 3, para. 2)? (b) Has the author been tortured or maltreated by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past? (c) Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects? (d) Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered? (e) Has the author engaged in political or other activity within or outside the State concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or extradited to the State in question? (f) Is there any evidence as to the credibility of the author? (g) Are there factual inconsistencies in the claim of the author? If so, are they relevant?

17 Non-refoulement customary international law International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Anto Furundzija, Trial Chamber, Judgement of 10 December 1998, at paragraphs See also the judgement of the House of Lords in Pinochet Ugarte, re. [1999] 2 All ER 97, at paragraphs

18 UNHCR Non-Refoulement under Human Rights The prohibition of refoulemen to a country where the person concerned would face a real risk of irreparable harm such as violations of the right to life or the right to be free from torture or cruel, inhuman or degrading treatment or punishment extends to all persons who may be within a State s territory or subject to its jurisdiction, includingasylum seekers and refugees, and applies with regard to the country to which removal is to be effected or any other country to which the person may subsequently be removed Non-derogable- applies to all, including criminals

19 1951 Convention on the Status of Refugees: Qualified Non-Refoulement Standard Art. 32 Permits expulsion or refugee on grounds of national security or public order, but must not engage in refoulement, and must adhere to due process norms (right to be heard, appeal, seek 3rd country) Art. 33 (2) (apply restrictively and proportionately, due process) The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

20 UNHCR Exception to Non- Refoulement For the security of the country exception to the principle of non-refoulemen to apply, there must be an individualized finding that the refugee poses a current or future danger to the host country. The danger must be very serious, rather than of a lesser order, and it must be a threat to the national security of the host country.

21 UNHCR exception to nonrefoulement In either case, the removal of a refugee in application of one of the exceptions provided for in Article 33(2) of the 1951 Convention is lawful only if it is necessary and proportionate. This means that there must be a rational connection between the removal of the refugee and the elimination of the danger resulting from his or her presence for the security or community of the host country; refoulement must be the last possible resort for eliminating the danger to the security or community of the host country and the danger for the host country must outweigh the risk of harm to the wanted person as a result of refoulement

22 UNHCR Exception to Non- Refoulement For the danger to the community exception to apply, not only must the refugee in question have been convicted of a crime of a very grave nature,but it must also be established that the refugee, in light of the crime and conviction, constitutes a very serious present or future danger to the community of the host country. The fact that a person has been convicted of a particularly serious crime does not of itself mean that he or she also meets the danger to the community requirement. Whether or not this is the casewill depend on the nature and circumstances of the particular crime and other relevant factors (e.g. evidence or likelihood of recidivism).

23 Basic Refugee Protection Guarantees State should grant asylum seekers access to territory, non-rejection at border without a fair and efficient refugee status determination Respect principle on non-refoulement Access to fair and efficient asylum procedures Apply Exclusion Clauss correctly Should not punish asylum seekers for illegal entry or presence (respect due process)

24 Rendition/Extraordinary Rendition The use of diplomatic assurances is not confined to the area of extradition (formal act between two states). Increasingly, assurances that the person who is to be removed will not be subjected to torture or other forms of ill-treatment are resorted to in the context of removal procedures such as expulsion or deportation, and also where individuals are transferred to other countries through informal measures which do not offer any procedural safeguards. Rendition (unilateral act of one state) is resorted to with increasing frequency to remove persons whom the sending State suspects of involvement in terrorist activities and/or considers a danger to national security, including to countries which are reported to practice or condone torture Tendency towards use of general clauses in deptoration agreements referring to diplomatic assurances, rather than individual guarantee

25 Extraordinary Rendition State sponsored abduction of a person in one country (with or without cooperation of state) and transfer to another country for detention and interrogation Hybrid Human Rights Violation: Arbitrary Arrest, Enforced Disappearance, Forcible transfer, Torture, Denial of Acces to Consular Officials, Denial of Impartial Tribunals, Deprivation of Liberty and Security, freedom from hunger, adquate standard of living, physical and mental health, right to family

26 Extraordinary Rendition Wiessbrodt/Bergquist Countries engaged: Russia, Sweden, United States Countries facilitating (intelligence, initial seizure): Bosnia, Canada (Maher Arar), Croatia, Georgia, Indonesia, Iraq, Macedonia, Malawi, Pakistan, UK Countries receiving transfer: Afghanistan, Egypt, Jordan, Morocco, Saudi Arabia, Syria, Uzbekistan

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28 Extraordinary Rendition- Cooperation with CIA

29 Maher Arar He was detained by U.S. officials at New York's JFK Airport and interrogated about alleged links to al Qaeda. The Syrian-born immigrant is held for seven days and then deported to Syria, where he spends 10 months at the notorious Palestine Branch Prison in Damascus. A year after his arrest, he is finally freed and sent home to Canada. Arar's attempt to win compensation and an explanation in the U.S. courts fails after a judge rules that hearing the case would compromise U.S. national secrets. But in September 2006, a Canadian inquiry clears Arar of any involvement in terrorism; and in January 2007, Canadian Prime Minister Stephen Harper apologizes to him in the name of Canada and orders he be paid US $9.75 million in compensation. The same month, then-attorney General Alberto Gonzales and Homeland Security Chief Michael Chertoff confirm to Canadian officials that Arar remains on a U.S. watchlist but offer the Canadians no new evidence to justify this.

30 UN Working Group on Arbitrary Detention Criminal Justice as Solution: Prosecute or Extradite- do not use prolonged unchallenged arbitrary detention or rendition as substitute International Convention for the Suppression of Terrorist Bombings Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation International Convention Against the Taking of Hostages Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents

31 UN Working Group on Arbitrary Detention Where there are substantial grounds for believing that there is a real risk that the person to be removed from the territory will be deprived of his or her liberty in the receiving State (as is often the case when the ground for removal is a suspicion of involvement in terrorist activities), the sending State should examine whether such detention would be arbitrary within the meaning of the three categories of arbitrary detention identified in the Working Group s methods of work: Deprivation of liberty without legal basis; Deprivation of liberty to repress the exercise of fundamental freedoms, such as freedom of religion, freedom of opinion, freedom of association; Deprivation of liberty in grave violation of international fair-trial norms.

32 UN Working Group on Arbitrary Detention The United Nations Model Treaty on Extradition Article 3 (f) it is a mandatory ground to refuse extradition [i]f the person whose extradition is requested would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 14

33 UN Working Group on Arbitrary Detention (a) Governments removing persons in their custody from their territory and into the custody of another Government should do so within proceedings that offer adequate safeguards, in particular to argue before an independent body offering judicial guarantees that removal would expose those persons to extrajudicial killing, torture or other cruel, inhuman or degrading treatment, or arbitrary detention and denial of a fair trial; (b) Governments should not engage in so-called renditions, which undermine such guarantees and are very likely to result in arbitrary detention; (c) Governments should refuse to give assurances that they will deprive of their freedom persons transferred to their territory, unless such assurances can be given in accordance with both the domestic legislation and the Government s international human rights obligations.

34 Special Rapporteur on the question of torture Emphasizes that the use of diplomatic assurances attempt to erode the absolute prohibition on torture in the context of counterterrorism measures. Diplomatic assurances are not legally binding and undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore should not be resorted to by States.

35 UN High Commissioner of Human Rights Diplomatic assurances do not work as they do not provide adequate protection against torture and ill treatment, Rather than developing criteria to regulate such practices, she urged, national and international efforts to eradicate torture must focus first and foremost on prevention, including through the establishment of systems of regular visits by independent international and national bodies to places where people are deprived of their liberty. A State must take active measures to investigate allegations where there is credible information that individuals are being transported by or through a State to a placewhere they faced a real risk of torture.

36 UNHCR Diplomatic Assurances Diplomatic assurances given by the receiving State do not normally constitute legally binding undertakings. They generally provide no mechanism for their enforcement nor is there any legal remedy for the sending State or the individual concerned in case of noncompliance, once the person has been transferred to the receiving State. Given that diplomatic assurances are sought only when the sending State perceives a need for guarantees with regard to the treatment of the person concerned in the receiving State, questions arise as to the conditions under which the sending State may rely on such assurances as a basis for removing a person from its territory in keeping with its obligations under applicable international as well as national standards.

37 UNHCR Diplomatic Assurances In determining the weight which may be attached to diplomatic assurances, the sending State must consider a number of factors, including the degree and nature of the risk to the individual concerned, the source of the danger for the individual, and whether or not the assurances will be effectively implemented. This will depend, inter alia, on whether the undertaking provided is binding on those State organs which are responsible for implementing certain measures or providing protection, and whether the authorities of the receiving State are in a position to ensure compliance with the assurances given. The assessment must be made in light of the general human rights situation in the receiving State at the relevant time, and in particular, any practice with regard to diplomatic assurances or similar undertakings.

38 UNHCR Diplomatic Assurances Diplomatic assurances should not result in the denial of access to asylum procedures. For the same reasons, an asylum application should not be declared inadmissible on the grounds that the host State has concluded an agreement on deportations with the applicant s country of origin or any other country to which the State intends to deport the individual concerned.

39 Amnesty International Memorandums of Understanding on transfer of detainees insufficient Monitoring is a technique to detect torture only after it happens, and cannot substitute for prior precautions that prevent torture from happening in the first place. Monitoring detects the transgressions, but does not forestall them.

40 ICRC Does not monitor diplomatic assurances because it is discriminatory- condition is right to visit all detainees

41 Agiza v. Sweden, Committee Against Torture Sweden responsible for expulsion of Agiza to Egypt where he was tortured while in state custody. Violation of Art. 3 The Committee concluded that Sweden failed to provide for a review by an effective, independent and partial judicial body of the Migration Board's decision to expel the complainant. The Committee recalled that the protections of the Convention against Torture are absolute. It observed that "the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk." The Committee further concluded that Sweden violated Article 22 of the Convention against Torture by expelling the complainant immediately upon the Government's decision, thereby depriving him of a meaningful opportunity to exercise his eight to seek interim measures before the Committee.

42 Macedonian agents seized El- Masri and held him without charge for 23 days, accusing him of being a member of Al Qaida. They delivered him to a CIA rendition team which flew him to Kabul where he was detained for four months and tortured. The Court held Macedonia responsibile for violation of article 3 due to its illtreatment during his solitary incarceration, the torture by the CIA, and the extraordinary rendition (an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture of cruel, inhuman or degrading treatment.» Ct found violation of article 5 (arbitrary detention), art. 13 effective remedy, Arts.2, 3 & 5 failure to investigate and violation of right to truth failure to investigate affects other victims of similar crimes, and general public as well as family the right to know what happended. Investigation important to maintain public confidence in the rule of law and prevent appearance of collusion in or tolerence of unlawful acts. El Masri v. Macedonia, European Court of Human Rights

43 UN Working Group on Arbitrary Dentention- Reverse Diplomatic Assurances Whereas in the case of diplomatic assurances a sending Government seeks from the receiving Government a (however ineffective) guarantee that the person extradited, deported or expelled will not be subjected to treatment contrary to human rights norms, in the case of reverse diplomatic assurances the sending Government seeks precisely assurances that the person handed over will be deprived of liberty, although there are no criminal charges against him and no other legal basis for detention.

44 Mothers of the Plaza de Mayo

45 International Convention for the Protection of All Persons from Enforced Disappearance For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.