United Nations High Commissioner for Refugees UNHCR

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United Nations High Commissioner for Refugees
(UNHCR)

• Workshop onStrengthening International Legal
  Co-operation among Member States of the OSCE to
  Combat Transnational Organized Crime
• 7-9 April 2008, Vienna
• Maria Bances del Rey, Legal Officer,
• Division of International Protection Services,
  UNHCR , Geneva

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International Refugee Protection and Extradition

• International Refugee Protection and Extradition

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• General Considerations

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General Considerations

• Extradition
• An instrument enabling States to ensure that
  persons responsible for serious offences can be
  held accountable and prosecuted
• Important tool in the fight against impunity,
  including in cases involving human rights
  violations, often a form of persecution and
  forced displacement
• Key instrument in Statesefforts to fight
  terrorism and other forms of transational crime
• Refugees and asylum-seekers may be subject to
  extradition proceedings and requests

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General Considerations Contd

• Extradition involving Asylum-seekers and Refugees
• International refuge protection and criminal law
  enforcement are not mutually exclusive
• IRL does not exempt from operation of criminal
  law
• No general bar to extradition of asylum-seekers
  or refugees does not stand in the way of
  extradition in all circumstances
• However, extradition is limited by international
  obligations under refugee law and human rights
  law
• Protection needs and legal and procedural
  safeguards under IRL and HRL need to be observed

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General Considerations Contd

• IRL and Extradition are not mutually exclusive
• Obligation of States to preserve the institution
  of asylum, including in the extradition context
• Not immune from prosecution
• When properly and duly applied, IRL can yield
  strong dividends for national safety and
  security, while protecting the rights of those
  who do not enjoy the protection of their CoO
• 1951 Convention relating to the Status of
  Refugees
• Article 1(2) criteria refugee definition
• Article 1F exclusion from refugee protection
• Article 2 obligation to conform with laws and
  regulations of the host country
• Article 33(2) exception to non-refoulement

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General Considerations Contd

• Conflicting Obligations
• The principle of Aut dedere aut judicare
• Obligations under IRL
• Principle of non-refoulement
• HR Law non-refoulement obligations apply to
  refugees and asylum-seekers
• Access to fair and efficient asylum procedures
  due process
• Confidentiality principle
• Primacy of IRL and Human Rights Law over
  extradition obligations

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General Considerations Contd

• Primacy of IRL and Human Rights Law over the
  obligation to extradite
• Derives from their nature and their place in the
  international legal order
• UN Charter Article 103 establishes the primacy
  of UN Charter obligations over other
  international instruments
• Article 55 (c) and 56 of the UN Charter oblige UN
  members to work toward achievement of the
  purposes of the UN in regard to respect for and
  observance of human rights
• Article 53 and 64 of the Vienna Convention on the
  Law of Treaties Peremptory norms prevail over
  treaty provisions

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• Extradition involving Refugees and Asylum-seekers

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Extradition involving refugees and asylum-seekers

• General Principles
• The principle of non-refoulement gives rise to a
  mandatory bar to the extradition to a risk of
  persecution
• In a situation of a conflict of obligations , IRL
  and HRL would prevail over any obligation to
  extradite
• Extradition processes must provide safeguards to
  enable extradition authorites to examine all
  circumstances to establish if there is a risk of
  persecution/torture/arbitrary deprivation of life
  and freedom in the event of a surrender of the
  person

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Principle of non-refoulement

• Principle of non-refoulement under IRL
• Article 33(1) of the 1951 Convention relating to
  the Status of Refugees
• No Contracting State shall expel or return
  (refouler) a refugee in any manner whatsoever
  to the frontiers of territories where his her
  life or freedom would be threatened on account of
  his race, religion, nationality, membership of a
  particular social group or political opinion.

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Principle of non-refoulement contd

• Principle of non-refoulement
• Applies to both refugees and asylum-seekers
• Is a principle of customary international law and
  thus binding on even non-States parties
• Is fully applicable to extradition procedures
• Not only in respect to the country of origin but
  to any place where the refugee risks of
  persecution or where he/she risks being sent
  onwards
• Exceptions only in circumstances set out in
  Article 33(2) of the 1951 Convention

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International Human Rights Law

• International Human Rights Law
• 1984 Convention against Torture and Other Cruel,
  Inhuman or Degrading Treatment or Punishment,
  Article 3
• General prohibition against torture norm of jus
  cogens
• 1966 ICCPR, Articles 6 and 7, in conjunction with
  UN Human Rights Committee General Comment No.31
  (paragraph 12) and General Comment No.20
• Regional instruments (ECHR, ACHR)

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Procedural Guarantees

• Procedural Guarantees
• Extradition authorities must ensure that the
  requested States non-refoulement obligations
  under International Law are respected
• Risk of refoulement must be examined as part of
  the extradition process regardless of the status
  of the wanted person
• Adequate safeguards
• Wanted person should be able to submitt
  information on any risk he/she may face upon
  extradition
• Right to appeal the extradition request

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Procedural Guarantees Contd

• Recognized Refugees
• Extraditions authorities should be bound by, or,
  at least respect the decision of refugee status
  reached by the asylum authorities in the country,
  or, if conferred by another country
• Refugee status should be considered as indicative
  of a risk of persecution if the requesting State
  is the CoO, unles falling under Article 33(2)
• If recognized by UNHCR, refugee status should
  alert the extradition authorities to the wanted
  persons fear of persecution to his/her CoO

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Procedural Guarantees Contd

• Asylum-seekers
• Right of asylum should be preserved
• Outcome of the asylum claim should also guide the
  decision to extradite where the requested State
  is the CoO
• Asylum claims should be determined by the
  competent authorities

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Special Considerations

• Special Considerations
• Where an extradition request concerns a refugee
  or asylum-seeker, two areas of international
  refugee law are implicated
• Eligibility criteria
• Inclusion
• Exclusion
• Principle of non-refoulement

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• Extradition request concerning an asylum-seeker

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Extradition and Refugee Status Determination
Procedures

• Refugee Status Determination
• The principle of non-refoulement forms part of
  legal criteria to be met for extradition to be
  lawful
• The requested State must determine whether he/she
  is a refugee
• Information related to extradition should be
  considered - Inclusion and exclusion should be
  examined by asylum authorities
• Extradition request should not be the mere basis
  for a rejection of an asylum claim - All
  circumstances must be examined
• During the entire asylum procedure, protection
  against refoulement under Article 33(1) exists

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Extradition and Inclusion

• Asylum authorities must assess whether the wanted
  person would return to
• Legitimate prosecution, or
• Persecution
• Through the criminal process
• Risk of persecution for other reasons
• Inclusion Article 1A(2) of the 1951 Convention

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Inclusion criteria of Article 1A(2) of the 1951
Convention

• A refugee is a person who
• owing to a well-founded fear of being persecuted
• for reasons of race, religion, nationality,
  membership of a particular social group or
  political opinion
• is outside the country of his nationality and is
  unable or, owing to such fear, is unwilling to
  avail himself of the protection of that country

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Extradition and Exclusion Article 1F of the
1951 Convention

• The provisions of the 1951 Convention shall not
  apply to any person with regard to whom there are
  serious reasons for considering that
• 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
• he has committed a serious non-political crime
  outside the country of refuge prior to his
  admission to that country as a refugee
• he has been guilty of acts contrary to the
  purposes and principles of the United Nations

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Article 1F of the 1951 Convention

• Key Points
• Exhaustive list of exclusion grounds in Article
  1F
• Article 1F should be applied restrictively
• Inclusion before exclusion
• Serious reasons for considering
• ? less than beyond reasonable doubt
• ? detailed, specific and credible information
• Individual responsibility must be established in
  the individual case on the basis of credible and
  reliable information

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Extradition and Exclusion Article 1F of the
1951 Convention

• Extradition request may trigger exclusion
  considerations, during refugee status
  determination procedure
• However
• Offence may be extraditable but not excludable
• No automatic correlation between extraditable
  offences and excludable offences
• In particular, it may not meet criteria of
  Article 1F(b)
• Crime(s) in question may not be sufficiently
  serious
• Designation as non-political for extradition
  purposes does not equal non-political within
  the meaning of Article 1F(b)
• Information in support of the extradition request
  may not meet serious reasons standard
• Always individual assessment required

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Procedural Issues

• Extradition and asylum-seekers
• Final determination of status prior to
  enforcement of extradition
• Asylum claim to be determined by asylum
  authorities
• Separate asylum and extradition procedures
• Admissibility of claim and eligibility criteria
  not affected by delayed demand for refugee status

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Procedural Issues Contd

• If the requesting State is the CoO
• Respect for the principle of non-refoulement
• Extradition decision not to be taken until
  finalization of asylum proceedings
• Information obtained in the extradition
  proceedings should be considered by asylum
  authorities with regard to both inclusion and
  exclusion
• If recognized, he/she should not be extradited
  unless he/she comes to one of the exceptions of
  Article 33(2)
• Diplomatic assurances given by the CoO to be
  examined by the asylum authorities when determing
  the asylum claim

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Procedural Issues Contd

• If requesting State is not the country of Origin
• Extradition authorities should examine whether
  the extradition would contravene the principle of
  non-refoulement
• Is there is a risk of being sent onwards back to
  his/her CoO or other country where he/she may
  face persecution?
• Extradition may occur if there is no risk of
  refoulement
• Right to preserve the right to asylum
• Diplomatic assurances given by the requesting
  State to be taken into account by the
  extradition authorities when extradition would
  expose the a/s to a risk of persecution or other
  harm, including onward return to the CoO

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• Extradition request concerning a refugee

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Extradition and Refugees

• Requested State must ensure that principle of
  non-refoulement is respected
• Will depend on whether the requesting State is
  the country of origin, or a third country
• Question of Diplomatic Assurances
• It may trigger review of refugee status

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Review of refugee status

• Information obtained in the context of an
  extradition request in relation to a refugee may
  raise questions with regard to his/her
  eligibility for refugee protection
• This may lead to the opening of procedures for
  the purposes of revocation or cancellation of
  refugee status
• Not every case needs to be examined or triggers
  review of refugee status
• It will depend on the information available,
  reliability of extradition request, etc.
• Cancellation and revocation should be subject to
  rules of fairness and safeguards

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Procedural Issues

• If the requesting State is the CoO
• Respect for the principle of non-refoulement
  would require that the person is not extradite
• Unless it is established by the authorities that
  the refugee falls under one of the exceptions of
  Article 33(2)
• Diplomatic assurances give no weight when a
  refugee is being returned, directly or indirectly
  to the CoO
• As long as refugee status is retained, the
  individual should enjoy the protection of article
  33(1)
• Unless he/she falls within the provision of
  Article 33(2)
• Non-refoulement obligations under International
  Human rights apply.

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Procedural Issues

• If the requesting State is not the country of
  Origin
• Extradition authorities should examine whether
  the extradition would contravene the principle of
  non-refoulement
• Including any possibility of the refugee to be
  sent onward to his/her CoO
• If not, the refugee could be extradite based on
• Either an agreement to readmit him/her back to
  enjoy asylum in the requested State upon
  completion of criminal proceedings, or
• As appropriate, to readmit, him/her back to serve
  his/her criminal sentence

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• Diplomatic Assurances
• They should be weighed carefully if the refugee
  would be exposed to risk of persecution or other
  serious harm
• Examination of all relevant circumstances
• The two elements to be considered are
• (i) whether the assurances are a suitable mean of
  eliminating the danger/risk to the indiviual, and
• (ii) whether the assurances are reliable

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• Article 33(2) of the 1951 Convention

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Exceptions to non-refoulement

• Article 33(2) of the 1951 Convention
• 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 host country or
• to the community of the host country, having been
  convicted of a particularly serious crime
• The person concerned remains a refugee

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Article 33(2) Requirements

• Danger to security cases
• Reasonable grounds for regarding the person as
  a danger
• Very serious danger threat to national security
  of host country
• Danger to community cases
• Conviction of crime of a very grave nature and
• Very serious danger to community of host country

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Article 33(2)

• Current or future danger
• Burden is on the State
• Procedural guarantees are applicable
• Refoulement only justified if proportionate to
  the threat

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Article 33(2) Proportionality Test

• Rational connection between removal of refugee
  and elimination of the danger
• Measure of last resort
• Danger to country must outweigh danger to refugee
  upon refoulement

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• International Refugee Law and Mutual Legal
  Assistance

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International Refugee Law and Mutual Legal
Assistance

• Confidentiality Issues The status of the person
  as a refugee or asylum-seeker should not be
  disclosed, particularly if the request is from
  the country of origin.
• Diclosure may result in a breach of the refugee
  or asylum-seekers right to privacy, and may put
  the person at risk
• MLA should not expose the person concerned to a
  risk of refoulement.

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The role of UNHCR

• UNHCRs international protection mandate (inter
  alia)
• Supervisory responsibility of UNHCR (Article 35,
  1951 Convention paragraph 8, UNHCR Statute)
• Duty to cooperation with UNHCR (Article 35, 1951
  Convention paragraph 2, UNGA Resolution428 (V),
  14 December 1950) requires States to share
  information and to grant access to persons of
  concern
• Authority to recognize an asylum-seeker under
  UNHCRs mandate

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• END OF PRESENTATION
• THANK YOU