effect of preventing organisers or perpetrators of terrorist acts from abusing the asylum
system.
The Advisory Council notes that expulsion under article 32(2) requires certain safeguards to
be met, including rights of due process (except where compelling reasons of national security
require). The Advisory Council considers it implicit that such safeguards should also apply in
relation to article 1F and article 32(2). Asylum seekers must be allowed to provide evidence
to counter the allegations against them. If this was not the case, it is difficult to see how
States could be satisfied to the required degree that they had all of the information available
to them in order to decide whether the requirements of the Refugees Convention had been
met.
The Draft Terrorism Convention specifically provides for non-refoulement. The preamble
stresses the importance of compliance with instruments that afford protection to refugees, and
in particular the principle of non-refoulement. At the same time it nevertheless notes that the
Refugees Convention and Protocol do not provide a basis for the protection of perpetrators of
terrorist acts, and as noted above, requires States to take appropriate measures to ensure the
exclusion of such persons from refugee protections.132
The Office of the UNHCR is concerned that unwarranted linkages may be made between
refugees and terrorism.133 The UN High Commissioner for Refugees has stressed that
counter-terrorism measures should start from the assumption that refugees are the victims of
violence, including terrorist acts, and are not perpetrators of such acts.134 The Office of the
UNHCR also notes that the international refugee instruments do not provide a safe haven to
allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before
competent authority or a person or persons specially designated by the competent authority.
(3)The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission
into another country. The Contracting States reserve the right to apply during that period such internal measures
as they may deem necessary.
132
Article 7, Draft Terrorism Convention: ‘States Parties shall take appropriate measures, in conformity with the
relevant provisions of national and international law, including international human rights law, for the purpose
of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for
considering that he or she has committed an offence referred to in article 2’.
133
As the IBA points out, common sense dictates that persons with terrorist intent are unlikely to bring
themselves under the scrutiny of the authorities by applying for asylum. IBA International Terrorism: Legal
Challenges and Responses (October 2003) 87.
134
Rudd Lubbers ‘Message’ to the “Meeting of Independent Experts on Terrorism and International Law:
Challenges and Responses organised by the International Institute of Humanitarian Law in San Remo 30 May1 June 2002 (International Institute of Humanitarian Law, San Remo, June 2003) 13.
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