October 17, 2001
Human Rights Watch Commentary on the Draft Comprehensive Convention on Terrorism
As the United Nations General Assembly’s Sixth Committee resumes it negotiations on the Draft Comprehensive Convention on International Terrorism (“the Comprehensive Convention”) Human Rights Watch believes that it is crucial that the Comprehensive Convention’s text uphold longstanding and universally-recognized international human rights standards.
In a time of international crisis, there is a danger in hastily adopting measures that will have far-reaching and long-term consequences. This is of particular concern where the issues at stake impinge upon the protection of fundamental human rights. We believe that governments committed to human rights standards must work to ensure that any provisions included in the Comprehensive Convention comply fully with international human rights and humanitarian law.
Human Rights Watch is particularly concerned that certain provisions of the draft Comprehensive Convention could undermine and conflict with fundamental and long enshrined international refugee protection standards. Provisions already exist under international refugee law to prevent individuals who have committed terrorist acts or other serious crimes from benefiting from refugee protection.
We offer below four recommendations for your consideration, focusing on the international law context and the protection of refugees. Of particular concern are Articles 7, 14, and 15 of the draft text.
Recommendation 1: Conformity with International Humanitarian Law and Human Rights Law
The text should include an operative provision that that takes fully into account the context of international humanitarian law and human rights law.
This provision should make clear that nothing in the Comprehensive Convention should be construed as impairing, contradicting, restricting or derogating from the provisions of the Universal Declaration of Human Rights, the International Covenants on Human Rights and other international instruments, commitments of human rights law, refugee law, and international humanitarian law applicable to the specific situations and circumstances dealt with by this convention.
Recommendation 2: Article 15 and the Principle of Non-Refoulement
Human Rights Watch urges that Article 15 of the Comprehensive Convention make specific reference to the binding principle of non-refoulement as stipulated under the Refugee Convention, international customary law, the Convention against Torture, and the European Convention on Human Rights
Governments should ensure that anti-terrorist measures under no circumstances undermine the fundamental principle of non-refoulement. The right of a refugee not to be returned to a country where her life or freedom would be threatened on account of her race, religion, nationality, membership of a particular social group or political opinion, is the cornerstone of international refugee protection. The principle of non-refoulement is enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees (the “Refugee Convention”) and is a well-established principle of international customary law.1 Thus even governments that are not party to the Refugee Convention, are still bound by obligations of non-refoulement.
All refugees (regardless of whether their status has been individually adjudicated or not) are entitled to protection from refoulement. Non-refoulement not only means that a refugee cannot be sent to his country of origin. Non-refoulement also means that he cannot be sent to any other country where his life or freedom is under threat. Moreover, the phrase “any manner whatsoever” should prevent a government from sending a refugee to a second country when it is known that the second country intends to send the refugee to a third country where his life or freedom is threatened. If a government has not determined refugee status for a particular person, and is considering sending that person to a place where his life or freedom is under threat, then that government must first determine whether the individual concerned is a refugee before taking any other action against him or her.
Furthermore, the principle of non-refoulement has evolved beyond the Refugee Convention. Article 3 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention against Torture”) also stipulates that no State Party “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.” When determining whether there are such grounds, States should take into account all relevant considerations including “the existence in the State concerned of a consistent pattern of gross, flagrant or mass violation of human rights.”
Non-refoulement protections are also provided under the 1951 European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter referred to as the European Convention). Other international human rights standards clearly establish that even an individual that does not benefit from refugee protection should not be returned to a place where he or she would be subjected to torture or inhuman or degrading treatment or punishment, summary or arbitrary execution, or prolonged arbitrary detention.
Recommendation 3 : Article 7 and Exclusion from International Refugee Protection
Human Rights Watch believes that there is no need to amend or re-interpret existing provisions under international refugee law to exclude certain individuals from refugee protection. At the very minimum, Article 7 should stipulate that all measures must be adopted in accordance with relevant provisions of international refugee and human rights law.
Provisions already exist under international refugee law to exclude certain individuals from international refugee protection. Human Rights Watch considers the Refugee Convention to be sufficiently flexible to allow states to exclude terrorists and other serious criminals from refugee protection. The Refugee Convention clearly defines those categories of individuals who should be excluded from international refugee protection. Article 1(f) of the Refugee Convention – containing the so-called “exclusion clauses” – ensures that perpetrators of gross human rights violations and serious non-political crimes are excluded from protection under the refugee regime.
Individuals are excludable under the Refugee Convention if there are serious reasons for believing that they have committed certain kinds of acts.2 These provisions should be sufficient to prevent organizers and perpetrators of terrorist acts and other serious crimes from abusing the asylum system to enter a country.
Recommendation 4: Article 14 and Expulsion of Refugees
Human Rights Watch recommends that Article 14 contain language to ensure that any measures regarding extradition are fully in compliance with international refugee protection standards, in particular non-refoulement obligations.
Human Rights Watch is concerned that Article 14 of the Comprehensive Convention could undermine fundamental principles of non-refoulement and international refugee protection. The Refugee Convention allows for the expulsion of a refugee from a country of asylum to any country other than one where his or her life or freedom would be threatened, but only if he or she is considered to pose a serious danger to the security or community of that country. Article 32 of the Refugee Convention allows states to expel a refugee on “grounds of national security or public order,” but stipulates certain procedural guarantees must be applied in such cases. In particular, the decision to expel must be “reached in accordance with due process of law” and “except where compelling reasons of national security otherwise require” the refugee must be able to submit evidence to clear himself, to appeal to a competent authority and receive legal representation, and have a reasonable period to seek legal admission into another country.
The only instance under which a refugee who has not been excluded from refugee protection under Article 1(f) can be returned to a country where his or her life or freedom is threatened, is when Article 33(2) of the Convention applies.3
It is important to note that the two exceptions provided in Article 33 (2) only apply to impacts in the country of asylum and do not, for example, apply to a past political crime that does not endanger the security of the country of asylum. A government cannot, for example, agree to the extradition request for a refugee who is not a danger to the host government’s community when honoring that request would send the refugee to a place where her life or freedom would be threatened.
Human Rights Watch looks forward to discussing with you these and other issues related to the Comprehensive Convention as they arise.
1 Article 33 states that: “No Contracting State shall expel, or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion.”
2 Article 1 (f) of the Refugee Convention states: 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 defined in the international instruments drawn up to make provision in respect of such crimes; b) he has committed a serious non-political crime outside the country of refuge prior to (his) admission to that country as a refugee; and c) he has been guilty of acts contrary to the purposes and principles of the United Nations
3 Article 33 (2) stipulates that: The benefit of the present provision 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 is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.