ABSTRACT
Abstract After the terrorist attacks on 11 Septem ber 2001, is it perm itted to strike a balance between the national security of a State and the obligation to provide protection against refoulement? In the w ar on terrorism, this option seems to be open for discussion. A lthough no uniform or single definition of terrorism in in ternational law exists, it is clear tha t the opinio communis wants the perpetrators, planners or facilitators to be prosecuted. I f they flee prosecution, no safe haven should be granted. M em bership of a terrorist organization cannot in itself be qualified as a terrorist act. Nevertheless, the danger exists tha t mere membership will suffice to be excluded from refugee status or from protection against refoulement. The European Commission has stated in a W orking Docum ent tha t the European C ourt of H um an Rights should reconsider the decisions in which the absolute character of Article 3 E C H R was laid down. In the Suresh case, the C anadian Supreme C ourt deemed a decision to expel to be possible even if there is a chance the alien will become a victim of a hum an rights violation as proscribed in Article 3 Convention Against Torture. I f there are reasonable grounds for regarding a refugee a danger to the national security or the comm unity 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 assess m ent 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 com m u nity of the country of refuge exists, unless refoulement entails a risk of the individual being subjected to torture or inhum an or degrading treatm ent or punishment. In such cases refoulement is prohibited. The obligation of non-refoulement under Article 3 of the European Convention on H um an Rights, Article 7 In ternational Covenant on Civil and Political Rights and Article 3 Convention Against T orture is absolute. No excep tions and no derogations are perm itted, 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 tha t a balancing act can be avoided and will be ‘found’ in the assessment of the risk of being subjected to prohibited treatm ent 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 hum an rights by refraining to give protection. The possibility of prosecuting perpetrators of serious hum an rights viola tions is quickly gaining ground. The legal tension between absolute protection against refoulement and the States’ responsibility for national security can be reduced, now tha t States can hold those who have perpetrated serious violations of hum an rights and hum anitarian law criminally accountable. We strongly urge States to uphold the nonderogability of non-refoulement and to take those steps necessary to prosecute perpetrators of serious hum an rights violations.
