A country’s refugee and immigration laws should, if administered properly, safeguard its territory from individuals attempting to evade justice for serious international crimes. Domestic and international law specifically identify those that it deems undeserving of the protections afforded to refugees. South Africa’s borders however appear to be somewhat leaky and very little has been done to plug that leak. This leak is clearly demonstrated by Rwandan General and suspected war criminal, Faustin Kayumbe Nyamwasa, being granted refugee status in South Africa.
Concerned about the integrity of South African asylum regime and South Africa’s obligations under international criminal law SALC and the Consortium for Refugees and Migrants Rights in South Africa (CoRMSA) have initiated legal proceedings to judicially review the South African authorities’ decision to grant Nyamwasa refugee status. The basis for the application is that Nyamwasa is ineligible for the grant of refugee status on account of his alleged involvement in the commission of war crimes and crimes against humanity. Not only does this decision offend international law but it is unlawful under South Africa’s Refugee’s Act which specifically excludes those accused of committing international crimes.
Nyamwasa’s presence in South Africa only came to light after an attempted assassination. One can’t help wondering how many other undesirables are being harboured, knowingly or unknowingly, in South Africa.
LEGAL BATTLE BEGINS TO STRIP RWANDAN GENERAL AND SUSPECTED WAR CRIMINAL OF REFUGEE STATUS
JOHANNESBURG – Human rights groups have launched legal action seeking the cancellation of former Rwandan general and suspected war criminal Faustin Kayumbe Nyamwasa’s refugee status in South Africa – arguing that the decision violates South African and international law and increases the likelihood of South Africa being used as a safe haven by perpetrators of mass crimes.
“The decision to grant Nyamwasa refugee status is unlawful because South Africa’s Refugees Act explicitly states that those accused of crimes against peace, war crimes or crimes against humanity are specifically excluded from receiving protection as refugees,” said Kaajal Ramjathan-Keogh, Chairperson of the Consortium for Refugees and Migrant Rights (CoRMSA), which brought the case along with the Southern Africa Litigation Centre (SALC).
Refugee status was granted to Nyamwasa – once a close ally and friend of Rwandan President Paul Kagame and formerly a senior figure in both the Rwandan military and diplomatic corps – on an urgent basis by the Department of Home Affairs following an attempt to assassinate him in Johannesburg in June 2010 after he had fled from Rwanda. It has been alleged that the assassination attempt was directed from highest levels of the Rwandan leadership and has resulted in a cooling of diplomatic relations between South Africa and Rwanda.
Considering that he has recently been convicted in absentia by a Rwandan court of having helped to orchestrate a series of terrorist attacks in Rwanda and where he is viewed as a political threat, Nyamwasa would likely face persecution were he to be returned home, as Rwanda has requested South African authorities to do. South Africa is therefore well within its rights, and indeed required under international law, not to surrender him to Rwanda.
However, Nyamwasa is also the subject of extradition requests from France and Spain, which seek respectively to have him tried for offences in connection with the shooting down of the aircraft carrying the Rwandan and Burundian presidents in April 1994 that ignited the genocide, and with attacks on civilian populations in the Democratic Republic of Congo in the aftermath of the genocide.
Several high-level United Nations reports also link Nyamwasa to the possible commission of war crimes making him ineligible for refugee status in South Africa.
“Asylum and refugee law is designed to protect individuals who are facing persecution and who do not have the protection of their country of origin, it is certainly not intended to protect people who are guilty of committing human rights violations,” said Alan Wallis, SALC’s International Justice Project lawyer. “Refugee law is intended to protect the vulnerable not those who are the cause of the vulnerability.”
In July 2010, upon learning of the decision to grant Nyamwasa refugee status, CoRMSA and SALC submitted a detailed legal briefing to the South African authorities highlighting his ineligibility and outlining the legal implications of the decision. It called on the government to withdraw Nyamwasa’s refugee status in accordance with the Refugees Act and South Africa’s obligations under international law. When there was no response, the two human rights organisations, with the assistance of the Wits Law Clinic, decided to take the matter to court.
Nyamwasa’s presence in South Africa also raises concerns about South Africa’s obligation under international criminal law to combat impunity.
“South Africa’s porous borders and immigration procedures are conducive to South Africa becoming a safe haven for those attempting to evade justice for serious international crimes,” said Nicole Fritz, Director of SALC.
“Unquestionably, South Africa faces a delicate diplomatic situation, having to balance competing extradition requests and not wanting to give offence to states with which it maintains friendly relations,” said Fritz. “However, South Africa can’t resolve this delicate situation by breaking its own laws and the laws of the international community – as this would send a signal to war criminals the world over that they will find a safe haven here. Indeed, a haven where they might be actively protected as refugees.”
Background:
General Faustin Kayumbe Nyamwasa was an active member of the Rwandan armed forces. He held the position of Director of Military Intelligence in the Rwandan Patriotic Front (RPF), during the years 1990-1994. Thereafter he was appointed Deputy Chief of Staff and is reported to have served as commander of the Rwandan Patriotic Army’s (RPA) Brigade 221, stationed in north-west Rwanda during the period 1994-1998. Credible reports implicate Nyamwasa in the commission of grave human rights violations in Rwanda and in the DRC amounting to crimes against humanity and war crimes during the period he served in high military authority. During this period, Nyamwasa is believed to have shared a very close relationship with current Rwandan president, Paul Kagame.
Between 2002 and 2005, Nyamwasa held the position of Secretary-General in Rwanda’s National Security Services and in 2005 he was appointed Rwanda’s ambassador to India, a position he held until early 2010. During this time, Nyamwasa openly criticised Kagame’s leadership, straining the close relationship these two men once shared. In early 2010, after being accused of corruption and embezzlement, Nyamwasa fled Rwanda to South Africa. The Rwandan government also allege that Nyamwasa orchestrated fatal grenade attacks in Rwanda’s capital, Kigali in February 2010. Nyamwasa claims that these allegations were fabricated by Kagame’s government because he is seen as a political threat. In January 2011, Rwanda’s Military Court sentenced Nyamwasa, in abstentia, to life imprisonment for his alleged involvement in the grenade attacks. The Rwandan government has requested that South Africa extradite Nyamwasa to Rwanda.
In February 2008, Spanish Judge Fernando Andreu Merelles indicted Nyamwasa, on the basis of witness testimony identifying Nyamwasa as the Commanding Officer of all military units of the RPA in the DRC, for war crimes. The indictment, a comprehensive analysis of witness testimonies, implicates Nyamwasa in the killings of civilians in Rwanda and the DRC. The Spanish indictment maintains Nyamwasa was responsible for the massacre of 2500 Hutu refugees and the murder of four Spanish nationals, amongst other serious crimes. In September 2010, the Spanish authorities requested the South African government to extradite Nyamwasa to stand trial in Spain.
In November 2006 French Judge Jean Louise Bruguiere issued an arrest warrant for Nyamwasa for his involvement in orchestrating the shooting down of the aircraft carrying former Rwandan President, Juvenal Habyarimana and a number of French nationals.
Nyamwasa’s presence in South Africa came to light after he survived what is believed to be an attempted assassination. Although a number of suspects have been arrested, they have yet to stand trial. Shortly after the attack the South African authorities confirmed that Nyamwasa had been granted refugee status.
