Practice Relating to Rule 158. Prosecution of War Crimes
Section B. Granting of asylum to suspected war criminals
South Africa’s Refugees Act (1998), as amended to 2011, states:
4. Exclusion from refugee status
(1) A person does not qualify for refugee status for the purposes of this Act if the Status Determination Committee has reason to believe that he or she –
(a) has committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes[.]
In 2014, in the Twelfth respondent exclusion case, the Gauteng Division of the High Court of South Africa dismissed an application to set aside the decision by the South African Government to grant a respondent refugee status. The Court summarized the background of the case as follows:
3. The following facts are common cause. During February 2010 the twelfth respondent, a Rwandan national, together with his wife and children arrived in the country after fleeing Rwanda. This is after the twelfth respondent fell out of favour with [the] … government to which he had initially belonged to. Their application was referred to the Refugee Status Determination Officer (“RSDO”) who granted the twelfth respondent and his family refugee status on 22 June 2010. …
4. Subsequent to the twelfth respondent and his family being granted refugee status, the applicant [the Consortium for Refugees and Migrants in South Africa, a non-profit organnnization] sent a Briefing Paper to the respondents and other government departments … which [contained] information alleging that the twelfth respondent is implicated in the commission of genocide, crimes against humanity and war crimes in Rwanda. Based on the contents of the briefing report, the applicant requested the respondents to withdraw their decision to grant the twelfth respondent refugee status, which request was declined.
15. In preparing the briefing paper, the applicant appears to have relied on the following:
15.1. during January 2011 the twelfth respondent and others were sentenced, in absentia to life imprisonment by the Rwandan Military court for the grenade attacks in Kigali, Rwanda in February 2010.
15.2. during 2006 a French Judge … indicted nine Rwandans (including the twelfth respondent) for complicity in the assassination of [the] former Rwandan President … However, in 2012 [the] investigation was re-examined by [two] Judges … who found allegations made during [the first] investigations to be false.
15.3. on 6 February 2008 … an investigative judge in the Spanish High Court, based on [the first Judge’s] report, issued indictments against 40 current and former high ranking Rwandan military officials, including the twelfth respondent, for crimes against humanity and war crimes allegedly perpetrated against civilians between 1990 and 2002.
16. The South African government has refused to extradite the twelfth respondent after the Spanish and French governments had sought his extradition.
The Court held:
12. … It is the applicant’s contention that based on the information contained in the briefing paper it prepared and sent to the respondents, the twelfth respondent is suspected of having committed genocide, crimes against humanity and war crimes in Rwanda and does not qualify for refugee status. It is further the applicant’s contention that had the respondents performed their obligations under the [Refugees Act 130 of 1998 (“the Act”)], the twelfth respondent would have been denied refugee status on the ground that he falls under the category of persons excluded from being accorded refugee status. …
18. The Act and regulations thereto regulate the qualification for refugee status, application for refugee status, the rights and obligations of persons who have been granted refugee status and the disqualification of persons from being granted refugee status. In terms of the preamble to the Act, South Africa has assumed obligations in terms of the 1951 United Nations Convention Relating to [the] Status of Refugees (“UN Convention”), the 1967 Protocol Relating to [the] Status of Refugees (“UN Protocol”[)] and the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU Convention”). In terms of section 6 of the Act, the Act has to be interpreted taking into consideration [the] UN Convention, in particular Article 1F [which excludes persons from refugee status where there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity], the UN Protocol and Article 1 (5) of the OAU Convention. The UN Protocol and the OAU Convention have similar wording to the UN Convention in relation to people excluded from being granted refugee status.
19. Section 3(a) of the Act provides that a person can be granted refugee status if such a person fears persecution in his homeland because of, inter alia, his or her race, tribe, religion, nationality, political opinion or membership of a particular social group. However section 4(1)(a) of the Act disqualifies a person from being granted refugee status if there is reason to believe that such a person has committed, inter alia, a crime against humanity and war crimes.
20. … As indicated above the applicant relies on the twelfth respondent’s conviction in absentia in Rwanda and the indictments issued by the French and Spanish authorities. However, the initial investigation … which led to the first indictment being issued has been discredited by [the] conclusion that [the President’s plane] was shot down by some members of his own army. This conclusion is common cause. Furthermore, the second indictment was based on the discredited indictment. The deponent to the answering affidavit deposed to on behalf of the second, fifth, sixth, ninth, tenth and eleventh respondents has deposed to the fact that when the twelfth respondent’s application was considered, they were aware of the serious allegations as mentioned by the applicant and as required had considered them in assessing whether the twelfth respondent and his family should be granted refugee status. As submitted by counsel for the respondents, the International Criminal Court for Rwanda has charged and convicted the persons it identified as having been involved in crimes against humanity in Rwanda. In none of the indictments was the twelfth respondent cited. In its founding affidavit the applicant has admitted that taking into account the political situation in Rwanda and South Africa’s adherence to the principle of non-refoulement, if the twelfth respondent is extradited to Rwanda he would be exposed to a well-founded risk of persecution due to his alleged opposition to the current president of Rwanda. I am therefore of the view that the twelfth respondent was correctly granted refugee status as he falls within the provisions of section 3 of the Act.
21. I am therefore of the view that the applicant, in view of the information currently available[,] has not shown sufficient cause that there is reason to believe that the twelfth respondent was involved in the alleged crimes. Moreover, the twelfth respondent’s wife qualifies for refugee status in her own right and [the] twelfth respondent would also so qualify as her dependent.
22. In view of the fact that the applicant also sought to [cite] the fourth respondent, it is an acknowledgement on its part that government departments interface and the fourth respondent must have been aware of the allegations against the twelfth respondent and must have communicated same to the other respondents. I am therefore satisfied that the respondents in granting the twelfth respondent refugee status must have taken into consideration the allegation against the twelfth respondent when taking the decision.
[footnotes in original omitted]