Terrorism and the Non-derogability of Non-refoulement

Abstract

After the terrorist attacks on 11 September 2001, is it permitted to strike a balance between the national security of a State and the obligation to provide protection against refoulement? In the war on terrorism, this option seems to be open for discussion. Although no uniform or single definition of terrorism in international law exists, it is clear that the opinio communis wants the perpetrators, planners or facilitators to be prosecuted. If they flee prosecution, no safe haven should be granted. Membership of a terrorist organization cannot in itself be qualified as a terrorist act. Nevertheless, the danger exists that mere membership will suffice to be excluded from refugee status or from protection against refoulement. The European Commission has stated in a Working Document that the European Court of Human Rights should reconsider the decisions in which the absolute character of Article 3 ECHR was laid down. In the Suresh case, the Canadian Supreme Court deemed a decision to expel to be possible even if there is a chance the alien will become a victim of a human rights violation as proscribed in Article 3 Convention Against Torture. If there are reasonable grounds for regarding a refugee a danger to the national security or the community of the country of refuge, he is not protected against refoulement under Article 33 (1) Refugee Convention. This rule needs to be interpreted restrictively and applied with particular caution. The assessment of the danger needs to be individual and ex futuro. Article 33 (2) Refugee Convention allows refoulement if a provable danger to the national security or community of the country of refuge exists, unless refoulement entails a risk of the individual being subjected to torture or inhuman or degrading treatment or punishment. In such cases refoulement is prohibited. The obligation of non‐refoulement under Article 3 of the European Convention on Human Rights, Article 7 International Covenant on Civil and Political Rights and Article 3 Convention Against Torture is absolute. No exceptions and no derogations are permitted, not even if an alleged terrorist constitutes a danger to the national security of a country. In search of a way to derogate from the obligations of non‐refoulement, States may look for safety guarantees to allow expulsion. In cases involving the imposition or the carrying out of legal sentences, for example the death penalty, the issue of guarantees is clear. However, cases involving extra‐judicial acts like torture are much more complicated. There is a real risk that a balancing act can be avoided and will be ‘found’ in the assessment of the risk of being subjected to prohibited treatment by trying to expel an alien after guarantees have been obtained. We believe exclusion is no solution and prosecution of alleged terrorists may be a better solution than co‐operating with further violations of human rights by refraining to give protection. The possibility of prosecuting perpetrators of serious human rights violations is quickly gaining ground. The legal tension between absolute protection against refoulement and the States' responsibility for national security can be reduced, now that States can hold those who have perpetrated serious violations of human rights and humanitarian law criminally accountable. We strongly urge States to uphold the non‐derogability of non‐refoulement and to take those steps necessary to prosecute perpetrators of serious human rights violations.

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