War Criminal or Refugee?

On the 14th Jun 2016, the Consortium for Refugees and Migrants in South Africa (CoRMSA) filed its case before the Supreme Court of Appeal (SCA) challenging the refugee status granted to General Kayumba Nyamwasa, a Rwandan national and accused perpetrator of war crimes. It is yet another chapter in a six-year long struggle to lift the international protection afforded to General Nyamwasa and so set in motion his potential refoulement to Rwanda. The term refoulement in simple terms is the forced repatriation of a refugee, back to an area or country where an individual has been found to have a viable well-founded fear of persecution. Yet General Nyamwasa’s reasonable fear of persecution in Rwanda has never once been doubted nor contested the case seems, on all accounts, extraordinary.

The issue is not concerned with General Nyamwa’s of fear of persecution of return to Rwanda, but over the argument that General Nyamwasa should be excluded from such protection given under refugee law. According to international and domestic refugee law, suspected perpetrators of war crimes and crimes against humanity are ineligible for refugee status under the exclusion clause. General Nyamwasa stands accused of committing war crimes in Rwanda and the Democratic Republic of Congo while serving as a general in the Rwandan Patriotic Army (RPA), is the subject of two extradition requests made by France and Spain. On 26th September 2014 the matter was heard at the High Court in Gauteng which confirmed the granting of refugee status and held that there was insufficient evidence proving he was involved in the crimes he is accused of.

The Consortium for Refugees and Migrants in South Africa (CoRMSA) case against General Nyamwasa’s refugee status raises a number of issues. First of these centres on the proper interpretation and administration of South Africa’s Refugees Act in accordance with international law and the convergence of refugee law and international criminal law on the detection and apprehension of persons accused of international crimes. Secondly, the case highlights South Africa’s constitutional mandate to uphold liable and rational decision making, this case being one of many casting a shadow of doubt over the transparency of its judicial rulings. Thirdly, and possibly most importantly, it brings to light South Africa’s obligation to ensure that it does not become a safe haven for perpetrators of international crimes. It follows a Supreme Court ruling on the 15th March 2016 to “reinforce the country’s progressive laws aimed at ending impunity for genocide, war crimes and crimes against humanity” (ref), in reference to the state’s failure to comply with the International Criminal Court (ICC) and arrest President Bashir of Sudan during his visit to South Africa in June 2015. Bashir faces seven counts of war crimes and crimes against humanity and three counts of genocide. Yet South Africa welcomed him and sent him safely on his way.

Kayumba Nyamwasa was formerly a close ally of Rwandan president Paul Kagame and was actively involved in the Tutsi RPF both in its advance to power in 1994 and subsequently in the RPF government of Rwanda. The Rwandan Patriotic Army (RPA), the military wing of the RPF, was heavily involved in both Congo wars and has been implicated in the commission of war crimes during the decades-long conflict in eastern DRC, alongside international crimes within Rwanda itself. While the report deigns to name any suspected criminals, Nyamwasa’s known seniority within the RPA at the time of the alleged crimes provides prima facie reason to hold him either directly or indirectly responsible for their implementation.

On 6th February 2008, a Spanish indictment made by an Investigative Judge in the Spanish High Court implicated Nyamwasa in a number of crimes by virtue of his position as Commanding Officer of all units of the RPA in the DRC. These crimes include the abduction and murder of Spanish priest Joaquim Vallamajo and three other Spanish nationals, civilian attacks and the massacre of 2,500 Hutu refugees at Byumba Stadium.

Despite his long association with the RPF, Nyamwasa’s relationship with President Kagame deteriorated after 2008, and General Nyamwasa fled to South Africa in February 2010. A year later, Rwanda’s Military Court charged Nyamwasa in absentia for his alleged involvement with the fatal grenade attacks in Kigali in early 2010. Nyamwasa sought asylum by the South African state on the 22nd June 2010 and was purportedly granted refugee status on the same day. This itself is unusual, given that the majority of South Africa’s asylum seekers wait months if not years for a decision to be made on their application.

CoRMSA in South Africa, who is supported by the Southern Africa Litigation Centre, subsequently asked the High Court in 2014 to strip General Nyamwasa of his refugee status, arguing that his possession of this status diluted the integrity of the South African asylum regime. Although the case was denied on grounds of insufficient evidence to implicate Nyamwasa in the crimes that would exclude from refugee status, there are a number of points that render this ruling an unsatisfactory one.

First, the ruling seems partially based on the threat that Nyamwasa would face upon refoulement to Rwanda, thus constituting the basis of his refugee application and upheld status. This entails a misapprehending conflation of refugee status and non-refoulement (the piece of refugee law that requires states not to repatriate any refugee, back to any country where they have been found to have a well-founded fear of persecution). At issue in the case was the withdrawal of Nyamwasa’s refugee status. The fact that Nyamwasa cannot return to Rwanda does not preemptively mean that he is a refugee. Under South African refugee law, if an asylum seeker falls into any of the exclusionary categories he cannot be considered for refugee status. The principle of non-refoulement is only applicable to refugees. However, while the CoRMSA argue that Nyamwasa’s refugee status should be redacted, it is crucial to stress that there may be other mechanisms the South African government can employ to confer legal protection to Nyamwasa. At issue is whether his status as a refugee should be the means by which Nyamwasa’s sanctity in South Africa is predicated.

Secondly, CoRMSA correctly illustrated through prior case law that the standard of proof for determining exclusion is a low one. The legislation states that exclusion from refugee status occurs when there is “reason to believe” that the applicant has been involved in international crimes. This is far lower than proving “beyond a reasonable doubt”; the fact that the ruling of an investigative judge in the Spanish High Court fails to satisfy the former – let alone the latter – burden of proof seems worrisome.

As Kaajal Ramjathan-Keogh, SALC’s executive director, summarised: “[Y]et again South Africa is being treated as a safe haven for suspected criminals. This cannot continue.” The case points to yet another chasm between South Africa’s legislative framework for refugees and its judicial execution. A branch of the UN Office for the Coordination of Humanitarian Affairs reported in April 2013 that South Africa approved just 15.5% of the asylum applications it processed in 2011. It seems a shame that the same frugality isn’t applied to some of South Africa’s higher-profile asylum seekers.

This article was written by Christian Jorgensen, a writer for dusk magazine, in collaboration with Helena Spector.

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