United Nations High Commissioner for Refugees (UNHCR) Workshop on Strengthening 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

International Refugee Protection and Extradition

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 States´efforts to fight terrorism and other forms of transational crime Refugees and asylum-seekers may be subject to extradition proceedings and requests

General Considerations – Cont´d 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

General Considerations – Cont´d 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

General Considerations – Cont´d 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

General Considerations – Cont´d 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

Extradition involving Refugees and Asylum-seekers

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

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.

Principle of non-refoulement– cont´d 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

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)

Procedural Guarantees Extradition authorities must ensure that the requested State´s 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

Procedural Guarantees – Cont´d 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 person´s fear of persecution to his/her CoO

Procedural Guarantees – Cont´d 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

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

Extradition request concerning an asylum-seeker

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

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

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;

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: 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; c)he has been guilty of acts contrary to the purposes and principles of the United Nations

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

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

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

Procedural Issues – Cont´d 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

Procedural Issues – Cont´d 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

Extradition request concerning a refugee

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

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

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.

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

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

Article 33(2) of the 1951 Convention

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

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

Article 33(2) Current or future danger Burden: is on the State Procedural guarantees are applicable Refoulement only justified if proportionate to the threat

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

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-seeker´s right to privacy, and may put the person at risk MLA should not expose the person concerned to a risk of refoulement.

The role of UNHCR UNHCR’s 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 UNHCR’s mandate

END OF PRESENTATION THANK YOU