Introduction

The laws concerning the investigation and prosecution of terrorists in a world in which humans move across borders with ease is a complex issue in practice. Globalisation and the resultant increase in the movement of humans across national borders together with the increase in the scale of transnational terrorist have affected refugee law as well as the law relating to extradition. In brief, persons involved in serious criminal activity must be brought to justice no matter where they are found. At the same time refugees should continue to be protected. But questions may arise as to whom it is that should be regarded as a refugee in light of the changing global circumstances.

This chapter begins with an introduction to refugee and extradition law, which is followed by a description of the legal regime relating to terrorism in Africa as it relates to refugee and extradition law. The legal regime is principally contained in two instruments: the Algiers Convention on the Combating and Preventing of Terrorism (1999)1 ("the Algiers Convention") and United Nations Security Council Resolution 1373 (2001)2 ("UNSC Resolution 1373"). Both instruments deal with both refugee and extradition issues. An analysis of the facts and the judgment of the Constitutional Court in South Africa concerning the "removal" of a Tanzanian asylum seeker involved in terrorism in Dar es Salaam from South Africa to the United States of America will follow. A general comment on possible steps that may assist in the challenge terrorism presents in respect of refugee issues and extradition in the wake of the attacks on New York and Washington on 11 September 2001 and the recent history of terrorism in Africa constitutes a conclusion.

Refugee law

International law recognises the principle that States are obliged to refrain from forcibly returning to a State a person who is recognised as a refugee.3 The term refugee has been defined by generally accepted principles of international law. A refugee is a person who is outside the country of his nationality or, in the case of a person who has no nationality, is outside any state in which he last habitually resided, and is unable or unwilling to avail himself of the protection of that country, because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership of a particular group or political opinion. In Africa by virtue of the OAU Convention Governing Specific Aspects of Refugee Problems in Africa (1969) a person may also qualify as a refugee if owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either part or the whole of his country of origin or nationality he is compelled to leave his place of habitual residence.4 In commemoration of the 30th anniversary of the OAU Convention, a Ministerial Meeting on Refugees5 accepted that the grant of asylum is a peaceful and humanitarian act in conformity with the African tradition of hospitality.

A refugee flees his country of origin for a variety of reasons and his destination is irrelevant. He flees to avoid danger. Implicit in the ordinary meaning of the word 'refugee' is the sense that the person concerned is worthy of being, and ought to be assisted, and if, necessary, protected from the causes and consequences of his flight. On the other hand, in the case of a 'fugitive' from justice, the person fleeing criminal prosecution for violation of the law in its ordinary meaning is often excepted from the category of refugee.

The obligation to offer asylum to a refugee is an exception to the general rule of international law respecting a State's sovereignty to determine without interference from other States who may enter and remain in its territory. A well-founded fear of persecution on the ground of a person's political opinion is a recognised basis for a successful claim of asylum. However, a State may deny asylum to a person who has committed a crime against the peace, a war crime, a crime against humanity, a serious non-political crime or has been guilty of acts contrary to the purposes and principles of the United Nations even if such crime is a political one.6 In T v Secretary of State for the Home Department7 a member of the Front Islamique du Salut (FIS) responsible for placing a bomb at Algiers Airport, which killed ten people applied for asylum in the United Kingdom. The House of Lords in considering whether it was a political offence by implication excluded terrorism as a political offence. It was stated:

"A crime is a political crime for the purpose of art 1F(B) of the 1951 Convention if, and only if: (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or government target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injury of members of the public".

Although States are required under international law to provide protection by way of asylum to persons who flee persecution on the grounds of political opinion, this protection does not extend to terrorists, even though the motivation for the acts committed by them may be political.

States must also consider, in deciding whether to expel or remove a terrorist, whether there is a substantial reason to believe that the terrorist will face human rights abuses, and specifically torture in the receiving State. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides8 that no State shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.9

Despite the principle that a terrorist does not receive protection in terms of international law relating to refugees, terrorists may not be removed from a State to face torture in the receiving State. This principle has been accepted worldwide. In Canada, a member and fundraiser of the Liberation Tiger of Tamil Eeelam (LTTE), an organisation alleged to engage in terrorist activity in Sri Lanka, was detained with a view to deportation. In a challenge to the deportation on the basis that he would face torture in Sri Lanka if deported, the Supreme Court of Canada was required to consider the issue of deporting an alleged terrorist to possible torture.10

It accepted that there was no universal definition of terrorism, but stated that the manifest evil of terrorism including the random and arbitrary taking of lives needed to be balanced against the fundamental values to a democratic society. Liberty, the rule of law and the principles of fundamental justice had to be protected. To sacrifice these values to defeat terrorism would not serve the interests of justice or the values of liberal democratic societies. The Court ruled that Suresh may not be deported to face torture even though he did not qualify for asylum because of his alleged involvement in terrorism.

The challenge for States is to provide safe havens to genuine refugees without allowing their territories to be abused by terrorists to avoid justice. The international and continental legal regimes relating to refugee issues must be considered and adapted where necessary to give effect to these principles in light of increased transnational terrorist activity.

Extradition

The law of extradition is conceptually and practically different to that relating to refugees and deportation. Whereas refugee law relates to States expelling (deporting) foreign nationals, extradition concerns the delivery of an accused or a convicted individual to the State where he is accused of, or has been convicted of, a crime, by the State on whose territory he happens for the time being to be.

International law does not recognise any general duty on the part of States to surrender criminals by way of extradition. In practice, therefore, the return of criminals is secured by means of extradition agreements between States. Extradition agreements may be either bilateral or multilateral. Extradition involves basically three elements: acts of sovereignty on the part of two states; a request by one State to another State for the delivery to it of an alleged criminal; and the delivery of the person requested for the purposes of trial or sentence in the territory of the requesting State.

Deportation, unlike extradition, is essentially a unilateral act of the deporting State in order to get rid of an undesired foreign national. The purpose of deportation is achieved when such a foreign national leaves the deporting State's territory. Significantly, the destination of the deportee is irrelevant to the purpose of deportation. It is often easier and quicker to deport a foreign national rather than engaging in what can be a complex extradition process. This can tempt States to deport an alleged terrorist to a State to stand trial rather than extradite the person as, it would appear, happened in the case of Mohamed discussed below.

Where deportation and extradition coincide in effect, difficulties can arise in practice in determining the true purpose and nature of the act of delivery. The important distinguishing feature between extradition and deportation is the purpose of the State delivery act. Deportation to achieve extradition is regarded as "disguised extradition" and universally accepted as unlawful.

There are a number of factors obstructing extradition. Many States exercise personal jurisdiction over their nationals for offences committed abroad and exempt their own nationals from extradition. Unlike African States with an Anglophone legal tradition, African States with a Francophone tradition, often apply this rule and many refuse absolutely to extradite their own nationals. The principle of double criminality requires that the conduct claimed to constitute an extraditable crime should constitute a crime in both the requesting and the requested State. It is not necessary that the offence should have the same name in both States, provided that it is substantially similar. The crime of terrorism may present particular problems in this respect reflected in the different ways States may define the crime of terrorism. The principle of speciality requires an extradited person to be tried only for the offence for which he was extradited, unless the extraditing State consents to a prosecution for another crime. Thus, a person extradited for murder may not be tried for terrorism unless the surrendering State consents thereto. A person may not be extradited in respect of an offence of which he has already been acquitted or convicted by the requested State. This confirms the internationally accepted principle of autrefois - acquit or convict.

Extradition law and practice generally exempt political offenders from extradition. This rule had its origins in the 19th century, when the governments of the new liberal democracies refused to return political dissidents to the despotic States of the ancien regime. The principal justifications advanced for the rule are, first, that States should not intervene in the internal political conflicts of other States by assisting in the rendition of political opponents of the government; and, secondly, that political offenders, unlike ordinary criminals, threaten only the criminal justice system of the State from which they have fled and not of the State granting asylum. Over the years the romantic image of the political dissident fighting for democracy has been tarnished by the political terrorist fanatically determined to overthrow the regime of another State by all means, including hostage taking and hijacking and more recently bombings. As a result the political offence exception has become highly controversial and courts have sought to define the political offence in such a way that it excludes the political terrorist but does not abandon the protection of the genuine political dissident. Courts considering extradition throughout the world have experienced great difficulty in deciding when an offence is one of a political character. Clearly, treason and sedition are political offences. Problems arise in the case of ordinary crimes, such as murder or robbery, however, when they are politically motivated.

International terrorism presents a particular problem for extradition, as most transnational acts of terror are politically motivated and fall within the tests traditionally laid down for the political offender. Modern treaties, multilateral and bilateral, tend to expressly provide that acts of international terrorism shall not be treated as political offences for the purposes of extradition.11 The Algiers Convention as well as bilateral extradition treaties recently signed between various African States reflects this trend.12

The Algiers Convention (1999)

The Algiers Convention deals comprehensively with extradition, but only touches on the issue of refugees in Article 4(2)(g), which concerns areas of State co-operation. It provides that State Parties shall ascertain, when granting asylum, that the asylum seeker is not involved in any terrorist act. This obligation is consistent with general international and continental refugee law.

Concerning extradition generally, Article 4(2)(h) provides that States shall arrest the perpetrators of terrorist acts and try them, or extradite them in terms of the provisions of extradition treaties between the States. It further provides that in the absence of an extradition treaty, States shall consider facilitating the extradition of persons suspected of having committed terrorist acts. This is consistent with the general international law principle that States may extradite persons in the absence of an extradition treaty, but do not have an obligation to do so.

Extradition is dealt with extensively in Part II of the Algiers Convention, in Articles 8 to 13.

Article 8 provides for the general conditions upon which extradition shall be granted. States are entitled to indicate to the Secretary General of the OAU the grounds upon which extradition may be refused, and shall indicate the legal basis in its national legislation or international conventions, which excludes such extradition. Extradition shall not be granted if final judgment has been passed upon the person in respect of the terrorist act or acts for which extradition is requested. If the alleged terrorist is not extradited, then States shall be obliged, whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution.

Article 9 requires States to include as an extraditable offence any terrorist act as defined in the Algiers Convention. Articles 10 and 11 deal with the diplomatic procedures for the processing of extradition requests, and the required documentation supporting such requests. Article 12 deals with urgent cases and the issue of provisional arrests.

Article 13 deals with the situation when a State receives more than one request for extradition. It also requires States to seize and transmit all funds and related materials purportedly used in the commission of the terrorist act to the requesting State. Such funds, incriminating evidence and related materials shall be submitted even if, for reasons of death or escape of the alleged terrorist, the extradition cannot take place.

Significantly, in terms of Article 6(4) requires State Parties shall take such measures as may be necessary to establish jurisdiction over terrorist acts in cases where the alleged offender is present in its territory and it does not extradite the person to any of the State Parties which will exercise jurisdiction over the alleged terrorist.

The provisions of the Algiers Convention relating to refugee and extradition law and practice do not deviate from the general international and continental provisions concerning these issues. They merely spell out the terms and legal mechanisms already in existence. However, the fact that States are required to prosecute or at least exercise jurisdiction over alleged terrorists who they do not extradite is an important step in the efforts to subject terrorists to justice.

United Nations Security Council Resolution 1373

UNSC Resolution 1373 is binding on all States (including non-members of the UN) because it was adopted in terms of Chapter VII of the UN Charter. It deals directly with refugee and extradition issues, and recognises the link between the two regimes.

Operative paragraph 2(c) requires States to deny safe haven to those who finance, plan, support, or commit terrorist acts. In particular, States shall, by virtue of paragraph 2(g), prevent the movement of terrorists or terrorist groups by effective border controls and controls on the issuance of identity papers and travel documents, through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.

States are required to prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.

States are required to ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice. This effectively requires States to extradite or prosecute alleged terrorists or accomplices, and requires States to exercise criminal jurisdiction over alleged terrorists even if the usual jurisdictional pre-requisites are not present. This mirrors the development provided for in Article 6(4) of the Algiers Convention.

Operative paragraph 3 (f) calls upon States to take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts.

UNSC Resolution 1373 recognises the link between the grant of refugee status and extradition. States are called upon to ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organisers or facilitators of terrorist acts, and that claims of political motivation are not recognised as grounds for refusing requests for the extradition of alleged terrorists.13

Mohamed v President of the Republic of South Africa14

Khalfan Khamis Mohamed, a Tanzanian national, lived in South Africa from August 1998 to October 1999. He had entered South Africa on the basis of a forged passport in the name of Zahran Nassor Maulid. Under this name, he applied for refugee status. The deception was discovered by an agent of the Federal Bureau of Investigation who recognised him as a suspect in bomb attacks on United States embassies in Nairobi and Dar es Salaam.

During October 1999 South African immigration officials and FBI agents arrested him in Cape Town and interrogated him. He admitted that he had taken part in the bombing in Dar es Salaam. Mohamed said that he had obtained a visitor's visa from the South African High Commission in Dar es Salaam the day before the bombings and left Tanzania by road the day after. Travelling via Mozambique he entered South Africa as an asylum seeker under his assumed name, and, on spurious grounds, lived and worked quietly in Cape Town.

In the meantime, he had been indicted in the Federal District Court for the Southern District of New York. The grand jury had been sitting in New York since the mid-nineties investigating the activities of Al Qaeda, founded, led and financed by Osama bin Laden. The grand jury concluded that the attacks were the work of Al Qaeda in its international campaign of terror against the United States and its allies. It indicted fifteen men including Mohamed.

Mohamed allegedly expressed the wish to be removed to the United States, instead of Tanzania to where, in the ordinary course as a prohibited person,15 he would have been deported. He was subsequently, and very rapidly, taken from South Africa directly to New York to face a criminal trial for the Dar es Salaam bombing. Because he was surrendered to the United States without a condition that he should not be subject to the death penalty, the United States Federal Court accepted that he was "death eligible".16 While in New York and now facing the capital charges, Mohamed launched an application in the South African Courts seeking an order declaring his deportation to be unlawful in that it was in fact a disguised extradition and that it was in any event unlawful because the South African authorities had not stipulated that as a condition of his removal the United States authorities would not seek or carry out the death penalty. This was so because the death penalty was unlawful in South Africa and effectively meant that South Africa indirectly had a hand in him facing the that penalty. The South African Constitutional Court ruled in favour of Mohamed against the South African government. Its judgment considered authorities worldwide in deciding that Mohamed had been unlawfully removed from South Africa.

In particular, it rejected the government's claims to have deported and not to have extradited him as irrelevant. Reference was made to the Torture Convention as well as to the European Convention on Human Rights. It concluded that the South African Constitution requires South Africa to avoid being a party to the imposition of cruel, inhuman or degrading punishment, including the death penalty, whether directly or indirectly. For South Africa to have deported Mohamed to face the death penalty was a violation of Mohamed's right to life and his right not to be subject to cruel or unusual punishment.

One of the precedents relied upon in the judgment is that of Hilal v United Kingdom, a case dealing with the deportation of a Tanzanian citizen from the United Kingdom to Tanzania. The European Court of Human Rights held that Hilal's deportation to Tanzania violated his rights because he would face a serious risk of being subject to torture or inhuman or degrading treatment in Tanzania.

Mohamed asked the South African Court to order the South African government to request the United States to refrain from executing him. The Court declined to so order the South African government but instead ordered that a copy of the judgment be transmitted to the New York Court. After conviction as result inter alia of his confession, the United States jury sentenced Mohamed to life imprisonment

One of the many lessons learnt from the Mohamed saga is that the important and justifiable desire of States to co-operate in the area of terrorism must not allow them to act unlawfully. If extradition procedures are undesirable then consideration must be given to amending those procedures. It is unlawful to utilise deportation procedures to effect an extradition. Similarly, States must ensure that they do not violate the inalienable rights of persons, even indirectly, in their desire to bring alleged terrorists to justice as it would appear happened in the Mohamed saga.

Conclusion

Economic development requires the free movement of goods, services and people into and out of Africa as well as across borders within the continent. More persons are moving across borders and those that move are doing so more frequently. This development requires improved and upgraded administration in border control and immigration matters in general. It also allows the potential for criminals to escape justice in one country by moving to another or hiding where the legal regime provides protection from prosecution. This requires the international and regional arrangements concerning extradition to be effectively implemented and upgraded where necessary.

At the same time persons continue to be persecuted on account of their race, nationality, religion, membership of a particular group or political opinion in many African states. War crimes, crimes against humanity and genocide continue to be committed, thus many humans require protection by way of asylum from/in those? States to which they flee. Indeed, it is incumbent upon all States to avoid sending persons to their possible death, torture or unlawful persecution. Of course, there is no difficulty with States extraditing persons in order for them to be prosecuted in the requesting State. However, there must be a consideration of whether the intended prosecution is really persecution for an unlawful purpose.

Globalisation has not only brought about an increase in the movement of humans across borders but also caused an increase in transnational crime, and more particularly international terrorism. It is imperative that international crime, like national crime, be dealt with firmly. Crime weakens economies, limits development and in the African context it discourages much needed foreign investment. African States have a direct interest in the combating and suppression of crime, and particularly the crime of terrorism. States thus have an obligation to their own nationals and the international community in general to put in place measures that combat and prevent crime and particularly terrorism. In April 2001 an Experts' meeting was held in Addis Ababa to consider the Draft African Convention on Extradition and the Draft African Convention on Mutual Legal Assistance in Criminal Matters.17 The introduction of these African agreements for the purpose of preventing and combating crime is a welcome development. However, there appears to be a need for a consideration of speeding up the process of adopting these important instruments.


But in enacting laws and adopting international and continental agreements to counter terrorism States must ensure that the rights of individuals are not violated, including the right to a fair and just opportunity to assert claims for asylum. Similarly, those persons subject to requests for extradition must be allowed to oppose any application for their surrender in extradition in an administratively just manner.

Ultimately, the tension between the inclusion of human rights in the extradition process and the demand for effective international co-operation in the suppression of crime mirrors the tension in many national legal systems between the "law and order" and human rights approaches to criminal justice. In international society, as in domestic society, it is necessary to strike a balance between the two to establish a system in which crime is suppressed and human rights are respected.

Terrorist acts violate the dignity of all persons, not just those are physically injured. There can be no dignity in a world where terrorists can act with impunity and avoid justice. The challenge is to draft and implement laws, international and domestic, that effectively combat terrorism and conform to the requirements of civilisation and respect for the dignity of every person.