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This article seeks to critically engage with the relevant principles of international law, in an overarching contextualised approach, and to analyse the response so far made to the South African Government statement on the Afghanistan refugees (www.dirco.gov.za, accessed 1-2-2022) dated 1 September 2021.
The statement indicated that the South African Government notes the overtures made to the country to consider receiving, and accommodating in the country, a number of Afghanistan refugees, who have sought refuge in Pakistan, enroute to their final destinations. It further indicated that South Africa (SA) is unfortunately not in a position to accommodate a request to host Afghanistan refugees. The reason advanced was that ‘South Africa is already home to a substantial number of refugees and is seized with addressing their needs. Most of them already benefit from the Social Assistance and free medical health programmes offered by [the] country.’ Arguably, the irresistible reasonable inference from the contextual construction of this statement, is that the refusal must mean that SA is unable, rather that unwilling, to take in the Afghan refugees. The statement concluded by explaining that, in terms of international law, the well-being of the refugees is best served by remaining in the first country of arrival – Pakistan – pending their final destinations.
The statement did not disclose who made the overtures. However, the lawyers acting for Exitus (Matthew Savides ‘SA’s refusal to take in 126 Afghan refugees puts lives in danger: lawyers’ (www.timeslive.co.za, accessed 1-2-2022)), a United States (US)-based non-profit, have indicated that their client had requested SA to accommodate, for six months, a group of 126 Afghan refugees fleeing the Taliban takeover in Afghanistan, and at the time residing in Pakistan, in transit to their final destinations.
Exitus lawyers explained that Wade Hill of a US-based corporation, PerryHill International, had committed to be surety, offering to be responsible for all the costs of ‘the private evacuation, housing, medical care and all other expenses of the refugees in question for a minimum of six months or however long it took to relocate’ the refugees (Savides (op cit)). They further indicated that a South African company had also undertaken to be second surety for the 126 Afghan refugees while they were on South African soil, and that it had organised medical care and housing for all the refugees. Exitus lawyers argued that, in light of its elaborate funding arrangement, there is no plausible justification for the government to be concerned about the refugee burden (Savides (op cit)). However, it is submitted that the tenability of that argument advanced by Exitus lawyers may be questionable, when considered in light of the fact that a strict construction of the criteria for admission of refugees, under the United Nations (UN) Refugee Convention, entails an overarching approach that goes way beyond mere cost financing considerations.
Taliban takeover
The plight of the 126 Afghan refugees emerges against the backdrop of an unprecedented swift Taliban takeover of military control and ultimate political power in Afghanistan, witnessed in the last weeks of August 2021 (Wall Street Journal ‘Afghanistan takeover: A timeline of the Taliban’s swift advance’ (www.wsj.com, accessed 1-2-2022)). The takeover has invariably generated considerable political controversy and unabating legal discourse. It engendered, not only, an embarrassing hasty exit of the forces and nationals of the US and other foreign powers, but also the massive panicked evacuation of thousands of Afghan nationals fleeing the new Taliban regime. The exponential influx of the Afghan refugees into other countries has unleashed political and humanitarian ripples, of astonishingly ungovernable proportions, globally. Consequently, these events have had tremendous implications for international human rights law and, in particular, international law in general.
South Africa and the UN Refugee Conventions
South Africa has acceded to the relevant international Refugee legal instruments, namely, the 1951 United Nations Convention Relating to the Status of Refugees (UN Refugee Convention) (www.unhcr.org, accessed 1-2-2022), its 1967 Protocol Relating to the Status of Refugees (www.ohchr.org, accessed 1-2-2022), and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (https://au.int, accessed 1-2-2022). The UN Refugee Convention provides for several rights for refugees, as they arrive in a country where they are seeking asylum. The rights relevant to this discourse, include, inter alia, ‘the right to non-discrimination (article 3), the right to work (article 17), … the right to housing (article 21), the right not to be penalised for illegal entry (article 31), the right not to be expelled from a country unless the refugee poses a threat to national security or public order (article 32), and the right not to be sent back to a country where their life or freedom would be threatened (ie, the principle of non-refoulement principle) (article 33)’ (Andrew and Renata Kaldor Centre for International Refugee Law (www.kaldorcentre.unsw.edu.au, accessed 1-2-2022)). It is critical to note that the essence of a special status being accorded to refugees in international law is that they have lost the inherent protection of their domestic jurisdictions.
In a retrospective trajectory, it could be argued that the South African Government considered the burden associated with securing a decent livelihood connected to the rights of refugees, under the UN Refugee Convention, in declining the request for admission of the 126 Afghan refugees. The lawyers for Exitus had argued that the refugees did not require any financial assistance from the South African Government, as all the expenses related to their six months stay in SA were covered by two private sureties. However, the Exitus lawyers have not demonstrated how that arrangement would relieve the South African Government from its Convention obligations to avert conditions inimical to the Afghan refugee rights, for instance, if the Exitus reneged on its financial arrangement for the support of the refugees.
Can a state lawfully decline to receive asylum seekers?
To determine under what circumstances a state may decline to receive refugees or asylum seekers, it is instructive to examine the application of the principle of non-refoulement. The principle, as set out under the UN Refugee Convention, prohibits the expulsion or the return of a refugee to a territory where his or her life or freedom is threatened (article 33(1)). The only exception, where the benefit of the principle of non-refoulement may not be claimed by a refugee, is where there are reasonable grounds for regarding such a refugee as a danger to the security of the country.
Moreover, the UN High Commissioner of Refugees (UNHCR) has stated that a refugee seeking protection must not be prevented from entering a country as this would amount to refoulement (Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR 2011) at p 5 (www.refworld.org, accessed 1-2-2022)). So, the question is: Does the refusal, by SA to allow the 126 Afghan refugees into the country, amount to refoulement? This is open to debate and may be subject of jurisprudential guidance.
Whereas, the OAU Refugee Convention (article II(2)) explicitly provides that states have an obligation to grant asylum to refugees, and imposes a duty on states to ‘use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of … refugees’ (article II(1)), the UN Refugee Convention is, however, silent on this obligation. The OAU Refugee Convention provides that ‘no person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened’ (article II(3)).
It is critical to note that the non-refoulement principle has assumed a status of a rule of customary international law, binding all States, irrespective of whether they are party to the UN Refugee Convention, or not. SA is, therefore, bound by the principle of non-refoulement because of its customary law status, and by virtue of being party to the UN Refugee Convention.
Does it matter that the Afghan refugees intended to stay in SA for a maximum period of six months only, pending their transit to their final destinations? Arguably, the threshold for their admission is governed solely by the criteria set out under the relevant UN Refugee Convention, and it is immaterial how long the asylum seeker intends to stay in the country of asylum, whether on transit or not.
The question then turns on to whether the Afghan refugees do qualify for acceptance into SA as asylum seekers. The UN Refugee Convention only protects individuals who satisfy the prescribed criteria for refugee status. In other words, persons who fail to meet the criteria are excluded from the protection under the UN Refugee Convention, and these include –
Similar exclusionary provisions exist under the OAU Refugee Convention (article I(5)). Again, no evidence has been proffered by the parties to suggest that any of the 126 Afghan refugees would be disqualified under the exclusionary clauses of the UN and OAU Refugee Conventions.
The issue of whether ‘the well-being of the refugees is best served by remaining in the first country [of] arrival’ (as asserted in the Government statement), has also not be fully ventilated by both parties. It is, however, helpful to look at the OAU Refugee Convention in this regard. Arguably, the position by the South African Government appears to be in consonance with the OAU Refugee Convention, which provides that ‘where a refugee has not received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he first presented himself as a refugee pending arrangement for his resettlement’ (article II(5)). Whether that provides a legal basis for the government’s decline of the request by the 126 Afghan refugees is an entirely debatable matter.
On the other hand, the South African Government may perhaps argue that, in any event, since the US authorities are willing and prepared to accept the 126 Afghan refugees owing to their ties with the US, then it should be entirely the responsibility of the US to make appropriate arrangements for their transit from Pakistan. The proponents of the government position may also wish to advance the argument that, in the event of granting admission to the 126 Afghan refugees into SA, that would set an irreversible precedent for further unabated sporadic inflow of more Afghan refugees into the country.
Ultimately it may be interesting to observe that, in the highly charged global political arena, international law issues are invariably not entirely divorced from considerations of national political or economic interests. There is, undoubtedly, a glaring dearth of literature of the law on this facet of the refugee issue, and thus this article amounts to a contribution to provoke and inspire further intellectual discourse.
Dr Milton Owuor LLB LLM LLD (UP) is a lecturer in International Law, Constitutional Law and African Human Rights Law at STADIO Law School and Chair, Expert Professorial Panel Discourse at ICRJustice Center.
This article was first published in De Rebus in 2022 (March) DR 16.
