The Institution of Asylum after 11 September

The shoemaker I go to in Stockholm is originally from Syria. He is a Syrian national. He is a friendly and hardworking fellow and he and his family have lived in Sweden for eight years. He doesn’t have Swedish citizenship, but after mentioning to him that the law had changed so that he could apply for Swedish nationality, he said he would seriously think about it, especially after the events of 11 September. My shoemaker has a relative who lives in Montreal, and although he never visited his relatives in Canada, he told me he would like to. He also told me that he would like to travel to the United States but he is afraid of being arrested and detained by the authorities, quite simply because of his national origin.

He may regrettably be right, because if he were to travel to the United States on his Syrian passport he would almost surely have to be photographed and fingerprinted, either in order to apply for a visa or upon arrival. And if the good shoemaker were to have any sort of difficulty with the American authorities which would require consular assistance from either Syria or Sweden, his countries of origin and residence respectively, these diplomatic authorities may have difficulty gaining access to him. If my shoemaker were to be ‘suspected’ of being linked to an illegal organisation he could be detained without charge for a considerable period of time, and he could be denied access to legal counsel and eventually deported without having a reasonable opportunity to properly defend himself.

Any reasons for decision relating to a deportation order would not have to disclose any ‘security sensitive’ information relied upon by the authorities. Once deported from a country, that’s it, you would not normally be permitted to return to that country - ever ! - unless special permission is granted. Needless to say if one were to be deported for reasons of even ‘suspected’ (meaning to say without ever having been criminally convicted) links to a terrorist organisation, it is extremely doubtful that such permission to return would be granted.

No, my shoemaker thinks, it just isn’t worth the potential hassle. So for the moment he’ll stay put in Sweden.

A related event occurred recently in Canada. For the first time in its history, the Canadian government put out a travel warning to Canadian citizens of middle eastern origin that they may consider not travelling to the US as a result of the difficulties they could face with the US authorities (and by consequence, once again, of Canadian consular officials not be able to gain access to these citizens) if a problem arose. Such a warning is unprecedented, and I would hazard a guess that such announcements put additional diplomatic strains on the relations between these otherwise good neighbours.

Sweden has also been subject to certain events following the tragic events of 11 September. In December 2001, Sweden expelled two Egyptian nationals based on their alleged membership in an Egyptian terrorist organisation. The two individuals had been in Sweden as asylum seekers for over a year, but it was only in late 2001 that they came to the attention of the Swedish security police, who reportedly advised the government that they posed a danger to Swedish national security and should be removed from the country.

Both men had earlier been convicted in absentiain Egypt for terrorist crimes, and one of the men still has a wife and minor children who remain in Sweden (and who have since applied to the UN Committee against Torture to prevent their removal to Egypt), although they too are subject to the same removal order issued by the Swedish Government. The two expellees’ claims to refugee status were considered by the authorities in advance of the expulsion order being taken, but it was decided that they should be excluded from refugee status. Apparently the decision to exclude the two men from refugee status was communicated to their Swedish legal counsel only after it was too late - meaning to say, after they had been sent out of the country.

The two men were reportedly, and quite extraordinarily, expelled from Sweden in the middle of the night aboard an airplane sent by the US government. Furthermore, both Egypt and Sweden were not in a position to return the two men as part of an extradition decision, as there is no extradition agreement between the two countries. The Swedish government thus decided to deal with the matter by expelling them under relevant provisions of Swedish law.

What is also remarkable about this case is that the two men were returned to Egypt based on written ‘guarantees’ provided by a senior official of the Egyptian government. Again, it appears their Swedish lawyers were not informed about the expulsion decision until it was too late to approach any domestic or international court or human rights mechanisms to seek redress. Moreover, there was no opportunity for the two Egyptian nationals to refute the information which formed the basis for their exclusion from refugee status (which UNHCR would advocate would have been procedurally proper), and/or their expulsion decision on national security grounds.

The UN Human Rights Committee took note of this case when Sweden presented its fifth periodic report before the Committee in March 2002. In its concluding observations, the Human Rights Committee noted that:

While it understands the security requirements relating to the events of 11 September 2001, and takes note of the appeal of Sweden for respect for human rights within the framework of the international campaign against terrorism, the Committee expresses its concern regarding the effect of this campaign on the situation of human rights in Sweden, in particular for persons of foreign extraction. The Committee is concerned at cases of expulsion of asylum-seekers suspected of terrorism to their countries of origin. Despite guarantees that their human rights would be respected, those countries could pose risks to the personal safety and lives of the persons expelled, especially in the absence of sufficiently serious efforts to monitor the implementation of those guarantees (two visits by the embassy in three months, the first only some five weeks after the return and under the supervision of the detaining authorities) (Articles 6 and 7 of the Covenant). The Committee also stresses the risk of violations of fundamental rights of persons of foreign extraction (freedom of expression and privacy), in particular through more frequent recourse to telephone tapping and because of an atmosphere of latent suspicion towards them (Articles 13, 17 and 19 of the Covenant).

The State party must ensure that measures taken under the international campaign against terrorism are fully in conformity with the Covenant. The State party is requested to ensure that the concern over terrorism is not a source of abuse.

In addition, the State party should maintain its practice and tradition of observance of the principle of non-refoulement. When a State party expels a person to another State on the basis of assurances as to that person’s treatment by the receiving State, it must institute credible mechanisms for ensuring compliance of the receiving State with these assurances from the moment of expulsion.

The State party is also requested to undertake an education campaign through the media to protect persons of foreign extraction, in particular Arabs and Muslims, from stereotypes associating them with terrorism, extremism and fanaticism. (UN document: CCPR/CO/74/SWE of 24 April 2002 at para. 12)

Shortly afterwards, another UN human rights treaty body, the Committee against Torture, made reference to the Egyptian case, in particular those provisions of Swedish law on which the expulsion order was authorised. The Committee noted that:

The Special Control of Foreigners Act, known as the anti-terrorism law, allows foreigners suspected of terrorism to be expelled under a procedure which might not be in keeping with the Convention, because there is no provision for appeal ... The Committee recommends that the State party should .... Ensure that if foreigners are sent back, they are sent back to a country of their choice, or a country with which they have real ties and where there is no substantial grounds for believing that they would be in danger of being subjected to torture. (UN document: CAT/C/XXVIII.CONCL.1 of 6 May 2002, at paras 6 (b) & 7(b))

As far as I am aware, despite this recommendation by the UN Committee against Torture, the Swedish procedure for expulsion has remained unchanged. How does the discussion thus far relate to refugees?

International refugee law addresses ‘exclusion’ from refugee status under Article 1F of the 1951 Refugee Convention to which Sweden, and some 144 other States, are State parties. Although the 1951 Refugee Convention is over half a century old, it has always provided for exclusion of persons undeserving of refugee status, which would include serious and dangerous criminals or ‘terrorists’, so I would conclude that there is nothing wrong with international refugee law.

Certain individuals may be excluded from refugee status (vizthose for whom there are serious reasons for considering have inter alia committed a war crime, a crime against humanity or a serious non-political crime). However, it is essential that the procedure followed in taking such a decision, given its serious nature, provides that the concerned individual would have reasonable access to the evidence or information being used against him or her, as well as a reasonable opportunity to refute that evidence as part of a fair procedure. Similar procedural safeguards must be available in cases of expulsion. In a policy paper entitled ‘Addressing Security Concerns without Undermining Refugee Protection’, which was released in November 2001, UNHCR has noted that »expulsion decisions must be reached in accordance with due process of law which substantiates the security threat and allows the individual to provide any evidence which might counter the allegations».

The European Court of Human Rights in the Case of Chahal v The United Kingdom notes that the non-return (non-refoulement) provision under Article 3 of the 1950 European Convention on Human Rights (ECHR) is of an absolute nature and is »equally absolute in expulsion cases». The Court concluded as follows:

The prohibition provided by Article 3 (of the ECHR) against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided for by Articles 32 (expulsion provision) and 33 (non-refoulement provision) of the 1951 UN Convention on the Status of Refugees. (emphasis added, at para. 80)

Even though this landmark decision by the European Court of Human Rights is being (at least verbally) challenged by some European States, it is still good law, and it is a binding decision on States parties to the ECHR.

A related issue concerns the duty of States, again under international human rights law, to promote tolerance in society and ensure that organisations which promote intolerance are banned. This is the position of the UN Committee on the Elimination of All Forms of Discrimination in interpreting Article 4(b) of the 1965 UN Convention on the Elimination of Racial Discrimination. Article 4(b) provides that:

»States parties ... shall declare illegal and prohibit organisations, and also organised and other propaganda activities, which promote or incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law».

To my knowledge the Swedish government has not taken steps to formally outlaw such organisations under Swedish law.

At least one prominent American law professor and other commentators, in particular Alan Dershowitz of the Harvard Law School, have started to challenge the view that prevention of torture is a principle of customary international law and thereby binding on all states. Indeed, Professor Dershowitz has floated the idea on prime time American TV, if not elsewhere, that US law should be changed so as to permit judges to issue ‘torture warrants’ in extreme cases where the police and security authorities have an individual who would (presumably under torture) provide information, by way of a confession, that would be used to save lives or prevent a terrorist crime. I’m not sure how far these ideas have evolved in the public debate in America or elsewhere, but I personally find it mind-boggling that such a proposal would be put forward - even after the shocking and tragic events of 11 September. As a basic observation, how reliable would a confession be from someone who was being tortured?

Over the border, the Canadian Supreme Court of Canada in the case of Suresh, which concerned the expulsion of a Sri Lankan national who the Canadian government claimed was a threat to Canada’s national security as a member of the LTTE, decided that it is not impossible, in exceptional circumstances, to consider returning a refugee to a place where they may be subject to torture. In its written brief to the Supreme Court, UNHCR inter alia argued, albeit unsuccessfully, that there can be no exception to the right to freedom from torture for refugees. Moreover, this fundamental principle has been recognised by the UN Committee against Torture in the case of Tapia Paez v Sweden (Communication no. 39/1996).

Beyond courts and public discourse, refugee issues have also been put on the agenda by the UN Security Council and other international fora which deal with security issues. The post-11 September debate even (for a time at least) de-railed the discussion on harmonisation of asylum legislation and policies within the framework of the European Union. Despite these developments in law and policy, which at times become confusing if not disconcerting, I believe we should recall the following remarks by Matthew Gibney:

... the refugee is no ordinary foreigner. There is something deeply ironic in seeing her as a threat. For the refugee is, by definition, a person who is a victim of insecurity. Her very search for protection vindicate the importance of security. But this is only one side of the coin of refugeehood. By virtue of being escapees from violent conflict and human rights violations, refugees are also (albeit unwilling) representatives of these phenomena. They are human examples of how states can sink into violence, torture and oppression. As representatives of these undesirable features of social life, it is not surprising that refugees are often construed as carriers of the instability and insecurity that led to their desperate departure... At times of high national drama, the consequences for foreigners of these trade-offs (between security and freedom) are rarely a matter of public debate. Yet, from an ethical perspective, the interests of outsiders must count for something. In the aftermath of 11 September, many officials and public figures have called for new restrictions on asylum with barely a passing mention of the effect of these measures on the lives of refugees. Yet the unspoken truth is that, as shocking as the recent terrorist attacks in New York, Pennsylvania and Virginia were, the number of people killed by them is dwarfed by the number of people whose lives are saved from death and torture annually as a result of the asylum policies of the US, Canada and other Western countries... (Matthew Gibney, ‘Security and the Ethics of Asylum after 11 September’, Forced Migration Review, 2002)

UNHCR has noted that its concerns in the post-11 September environment are twofold: »that bona fideasylum seekers may be victimized as a result of the public prejudice and unduly restrictive legislative or administrative measures, and that carefully built refugee protection standards may be eroded.» UNHCR also holds the view that »dealing with the terrorist threat in the context of asylum does not require amendment of the principles on which refugee protection is based, but should benefit from a review and tightening of procedural measures where necessary.» (UNHCR paper, op cit) In other words, there is nothing inadequate with international refugee law and protection principles, so it would be unsound advice and an unreasonable conclusion to think and act otherwise.

The challenge of today is to maintain the system of international human rights protection and refugee protection principles which have been enshrined in international law, and to which States have bound themselves. The debate on these issues is perhaps more contentious today than it has been for a long time, but this is not to say that questioning the rule of law has not occurred in our history, as it most certainly has. Moreover, what we need to ensure is that international law does not become yet another victim of the current climate, and that Governments, NGOs and UN organisations work together to maintain if not strengthen the system we have and which continues to serve us well.

References:

Addressing Security Concerns without Undermining Refugee Protection, UNHCR Geneva, November 2001, available on-line at: www.unhcr.ch

Matthew Gibney, ‘Security and the Ethics of Asylum after 11 September’, Forced Migration Review no 13, June 2002, available on-line at: www.fmreview.org

Case of Chahal v The United Kingdom, Application no. 00022414/93, Decision of the European Court of Human Rights of 15 November 1996, available on-line at: www.echr.coe.int

Concluding observations of the Human Rights Committee: Sweden, Human Rights Committee, Seventy-fourth session, UN document: CCPR/CO/74/SWE of 24 April 2002, available on-line at: www.ohchr.ch

Conclusions and recommendations of the Committee against Torture: Sweden, Committee against Torture, Twenty-eighth session, UN document: CAT/C/CR/28/6 of 6 June 2002, available on-line at: www.ohchr.ch

Suresh v Canada (Minister of Citizenship and Immigration), Decision of the Supreme Court of Canada, (2002) 1 SCR 3, available on-line at: http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/html/2002scr1_0003.html

Tapia Paez v Sweden (Communication no. 39/1996), UN Committee against Torture, available on-line at: www.ohchr.ch

This article is published in Mänskliga Rättigheter: från forskningens frontlinjer (Human Rights: from the frontiers of research), Iustus Förlag, Uppsala, 2003