The standard practice among abolitionist nations is to insist on ‘satisfactory assurances’ that the death penalty will not be imposed or carried out before allowing the surrender of individuals to another country in which they face a possible death sentence or execution upon their return. So widespread is this version of the non-refoulement principle that it is now an international human rights norm: abolitionist nations are required in all circumstances to seek and obtain appropriate assurances, and failure to do so is a breach of the sending State’s binding international obligations.
Generally speaking, the norm operates smoothly and effectively; however reluctantly, retentionist nations typically do provide and abide by the necessary assurances (recent examples include the United States, Thailand and China). But what happens when the requesting State absolutely refuses to provide the necessary assurances? Does this mean that a murderer can avoid punishment simply by crossing a border, or must the failure to obtain the necessary guarantees result instead in the fugitive’s indefinite detention without trial? In these unusual cases, is there any satisfactory alternative to surrender without assurances?
Two recent cases in South Africa highlighted these troubling questions. Emmanuel Tsebe and Jerry Phale were both accused of murder in Botswana and were arrested after they fled to South Africa. Botswana sought the extradition of both men, but refused South Africa’s request to provide guarantees against the death penalty. Unable to extradite and powerless to prosecute, South African authorities then attempted to deport the men without any protection against death sentencing. However, the High Court ruled that the suspects could not be removed from South Africa “without the written assurance from the Government of Botswana that the applicant will not face the death penalty there under any circumstance.” The South African government appealed the decision, arguing that it had discharged its constitutional obligations by seeking assurances as a condition of extradition and that a capital deportation was lawful where the detainee would otherwise avoid prosecution for murder.
On July 27, the Constitutional Court of South Africa provided a balanced and principled answer to the dilemma. In Minister of Home Affairs and Others v Tsebe and Others, the Court unanimously upheld the lower court’s ruling. The Court found no reason to distinguish this case from its 2001 decision holding that the surrender of any person facing a real risk of the death penalty would violate the constitutional rights to life and human dignity and the right not to be subjected to cruel, inhuman and degrading punishment or treatment. There is “no exception to this principle,” the 11 judges ruled, and the difficulties that may arise “cannot override the need for us as a nation to stay on course on the path we have chosen for ourselves to respect, protect, promote and fulfil human rights, to observe our Constitution and deepen the values upon which we have chosen to create our new society.” The Court also found a real risk that the men would face the death penalty upon their return, noting that “imposition of the death sentence on those convicted of murder in Botswana” is “mandatory where there are no extenuating circumstances.” As the summary of the judgment notes, Tsebe expands the Court's previous jurisprudence by requiring “not only that the South African Government seek assurance, but also obtain that assurance” in all cases.
But the Court did not stop there. Addressing the “legitimate concerns” raised by the government, the majority pointed to a straightforward solution: the passage of draft legislation giving the South African courts “jurisdiction to try crimes that have been committed outside the borders of this country” in such cases would resolve the difficulty of a requesting State refusing to provide assurances. This option would satisfy the government’s necessary commitment to “sparing no effort in fighting crime” and negate the risk of the country becoming a “a safe haven for illegal foreigners and fugitives from justice,” while meeting the constitutional duty to “not be party to the killing of any human being as a punishment – no matter who they are and no matter what they are alleged to have done.”
The full text of this historic judgment is available here in PDF format.
--- Mark Warren