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.

    Comment

    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

    Comment

    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.
    title="">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.

    Comment

    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.
    href="#_ftn2" name="_ftnref2" title="">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.

    Comment

    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.
    title="">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.



href="#_ftnref1" name="_ftn1" title="">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.”


name="_ftn2" title="">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


name="_ftn3" title="">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.