A/HRC/4/40
page 20
42.
This preference for accusations of involvement in terrorist crimes to be put in the form of
criminal charges and aired in a criminal trial, where procedures are in place to test them, instead
of remaining amorphous and often as secret suspicions underlying unchallenged administrative
detention is not peculiar to the anti-terror conventions. It is already implied in article 11 of the
Universal Declaration of Human Rights, the first paragraph of which reads: “Everyone charged
with a penal offence has the right to be presumed innocent until proved guilty according to law
in a public trial at which he has had all the guarantees necessary for his defence.” Articles 9 and
14 of the International Covenant on Civil and Political Rights are inspired by the same
preference for criminal proceedings.
43.
Extradition proceedings can only take place if there is a request to that end by a State
different from the one on whose territory the terrorism suspect is found. International law also
recognizes the right of States to expel or deport from their territory non-citizens who represent a
threat to national security9 in the absence of a request for extradition. What distinguishes
deportation or expulsion from the practice of renditions, however, is that they have a basis in
national law and are preceded by an administrative process resulting in a decision which is
notified to the person to be expelled or deported and can be challenged before a court. This
opportunity to challenge the removal from the territory of the State is essential to uphold the
principle of non-refoulement.
D. Non-refoulement
44.
The principle of non-refoulement is enshrined in both international refugee law and
international human rights law. Article 33 of the 1951 Convention relating to the Status of
Refugees, which reflects customary international law,10 states as follows:
“1.
No Contracting State shall expel or return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or
political opinion.
“2.
The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community of that country.”
9
10
See paragraph 2 of article 33 of the 1951 Convention relating to the Status of Refugees.
The United Nations anti-terrorism conventions also acknowledge the need to protect
fundamental rights of those whose extradition is requested in connection with charges of
terrorism (see, for example, articles 12 and 14 of the International Convention for the
Suppression of Terrorist Bombings).
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