R (on the application of JS) (Sri Lanka) (Respondent) v. Secretary of State for the Home Department (Appellant)
- Document source:
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Date:
17 March 2010
R (on the application of JS) (Sri Lanka) (Respondent) v. Secretary of State for the Home Department (Appellant)
In this section
This case centres around the application of JS for asylum, which was refused by the SOS on the basis of his previous membership of the LTTE and the fact there were serious for suspecting he had committed war crimes during while a member of this group. The Court had three key considerations. The first was to decide whether the Court of Appeal was right to quash the refusal decision and remit the case for redetermination by the Secretary of State. Secondly, the Court had to decide on the correctness of the principles laid down in Gurung. The Court's third task was to decide whether the Court of Appeal was right to limit their interpretation of war crimes liability under article 1F(a), so as to encompass no more than joint enterprise liability. Although, the Court disagreed with some aspects of the Court of Appeal's decision it was ultimately upheld.
The respondent is a 28 year old Sri Lankan Tamil. In 1992, at the age of 10, he became a member of the Liberation Tigers of Tamil Eelam ("LTTE"), the following year joining the LTTE?s Intelligence Division. At 16 he became team leader of a nine-man combat unit, at 17 the leader of a 45-man platoon, on each occasion engaging in military operations against the Sri Lankan army, and on each being wounded. At 18 he was appointed to lead a mobile unit responsible for transporting military equipment and other members of the Intelligence Division through jungles to a point where armed members of the Division could be sent in plain clothes to Colombo. He continued to do this for some three years from September 2000 until early 2004 except for some two and a half months (from late April to early July 2002) when he was
appointed one of the chief security guards to Pottu Amman, the Intelligence Division?s leader, whom he accompanied as a trusted aide on visits to the LTTE District Leader, Colonel Karuna, and other prominent LTTE members. From early 2004 to September 2006 he served as second in command of the combat unit of the Intelligence Division. In October 2006 he was sent incognito (in plain clothes and under an assumed name) to Colombo to await further instructions. In December 2006 he learned that his presence in Colombo had been discovered and arrangements were made for him to leave the country. On 7 February 2007 he
arrived in the UK and two days later applied for asylum.
The respondent's application (and a subsidiary application for humanitarian protection based on the fear of mistreatment if returned) was refused on 14 September 2007 solely by reference to article 1F(a). The core of the appellant Secretary of State?s reasoning appears in paragraphs 34 and 35 of the decision letter:
34 . . . [I]t is considered that you continued [during the six-year
period from the respondent?s 18th birthday until he left the intelligence wing of the LTTE] to operate within the LTTE and even
gained promotions. This shows that you were a voluntary member of the LTTE. In this regard the case of Gurung [2002] UKIAT 04870
(starred) has been considered in which it was determined that voluntary membership of an extremist group could be presumed to
amount to personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question.
35. Accordingly, it is concluded that your own evidence shows voluntary membership and command responsibility within an
organisation that has been responsible for widespread and systemic war crimes and crimes against humanity. From the evidence you
have provided it is considered that there are serious reasons forvconsidering that you were aware of and fully understood the methods
employed by the LTTE.
"(1) Should the Secretary of State?s decision be quashed?
27. Although I wondered at the hearing whether, realistically, the Secretary of State could properly not have found on the facts of this case "serious reasons for
considering" the respondent to be a war criminal, I have not thought it right to allow the Secretary of State?s appeal on this basis. The plain fact is that, whatever
view one takes on questions 2 and 3, the Secretary of State's reasoning in the decision letter is insupportable. It could not be said of the LTTE - nor even, on the
available evidence, of its Intelligence Division - that as an organisation it was (it seems inappropriate in the light of recent events in Sri Lanka to continue speaking
of the LTTE in the present tense) "predominantly terrorist in character" (Gurung para 105) or "an extremist international terrorist group" (para 18 of the UNHCR's
Perspective, quoted in the same para 105). There was accordingly no question of presuming (consistently with Gurung) that the respondent?s voluntary membership
of this organisation "amount[ed] to personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question" ? as para 34 of
the decision letter stated. Nor was the respondent?s ?command responsibility? within the organisation a basis for regarding him as responsible for war crimes. As
Toulson LJ pointed out (para 123 of his judgment), the respondent?s command was of a combat unit and there was never any suggestion here of article 28 liability.
Nor, of course, as Stanley Burnton J noted in KJ (Sri Lanka), is military action against government forces to be regarded as a war crime.
28. Surely the better case against the respondent arises from the three years when he led a mobile unit transporting military equipment and personnel through
the jungle so that members of the Intelligence Division could go armed in plain clothes to Columbo. As para 108 of Gurung concluded: "If, however, he has
transported explosives for LTTE combatants in circumstances where he must have known what they were to be used for, there may well be a serious 1F issue."
(2) The Gurung approach
29. As noted at para 93 of Toulson LJ?s judgment, the appellant below "did not on the surface challenge the guidance given by the IAT in Gurung's case". There
are, however, criticisms to be made of it and it should not in future be accorded the same oracular standing as it seems hitherto to have enjoyed. In the first place, it is
unhelpful to attempt to carve out from amongst organisations engaging in terrorism a sub-category consisting of those ?whose aims, methods and activities
are predominantly terrorist in character?, and to suggest that membership of one of these gives rise to a presumption of criminal complicity: "very little more will be
necessary" (Gurung para 105). True it is that this approach finds support from the quoted paragraph 18 of the UNHCR's post-9/11 Perspective - and, indeed, from a
line of Canadian authority commencing with the decision of the Canadian Federal Court of Appeal in Ramirez v Canada (Minister of Employment and Immigration)
(1992) 89 DLR (4th) 173, 180 where to MacGuigan JA it "seem[ed] apparent . . . that where an organisation is principally directed to a limited, brutal purpose, such
as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts".
30. Rather, however, than be deflected into first attempting some such subcategorisation of the organisation, it is surely preferable to focus from the outset on
what ultimately must prove to be the determining factors in any case, principally (in no particular order) (i) the nature and (potentially of some importance) the size
of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the
organisation was proscribed,
(iii) how the asylum-seeker came to be recruited,
(iv)the length of time he remained in the organisation and what, if any, opportunities
he had to leave it,
(v) his position, rank, standing and influence in the organisation,
(vi) his knowledge of the organisation?s war crimes activities, and
(vii) his own personal involvement and role in the organisation including particularly whatever
contribution he made towards the commission of war crimes.
31. No doubt, as Stanley Burnton LJ observed in KJ(Sri Lanka), at para 37, if the asylum-seeker was "an active member of [an] organisation that promotes its
objects only by acts of terrorism, [t]here will almost certainly be serious reasons for considering that he has been guilty of [relevant] acts". I repeat, however, the
nature of the organisation itself is only one of the relevant factors in play and it is best to avoid looking for a "presumption" of individual liability, "rebuttable" or
not. As the present case amply demonstrates, such an approach is all too liable to lead the decision-maker into error.
32. The second major criticism to be made of Gurung relates to its introduction (at paras 111-113) of the idea of a "continuum" for war crimes cases. The reality is
that there are too many variable factors involved in each case, some militating one way, some the other, to make it helpful to try to place any given case at some point
along a continuum. But more troublingly still, the tribunal in these paragraphs introduces considerations which properly have no place at all in determining how
article 1F applies. Whether the organisation in question is promoting government which would be "authoritarian in character" or is intent on establishing "a
parliamentary, democratic mode of government" is quite simply nothing to the point in deciding whether or not somebody is guilty of war crimes. War crimes are
war crimes however benevolent and estimable may be the long-term aims of those concerned. And actions which would not otherwise constitute war crimes do not
become so merely because they are taken pursuant to policies abhorrent to western liberal democracies.
(3) The correct approach to article 1F
33. There can be no doubt, as indeed article 12(3) of the Qualification Directive provides, that article 1F disqualifies not merely those who personally commit war
crimes but also those "who instigate or otherwise participate in the commission of [such] crimes". Article 12(3) does not, of course, enlarge the application of article
1F; it merely gives expression to what is already well understood in international law. This is true too of paragraphs (b), (c) and (d) of article 25(3) of the ICC
Statute, each of which recognises that criminal responsibility is engaged by persons other than the person actually committing the crime (by pulling the trigger,
planting the bomb or whatever) who himself, of course, falls within article 25(3)(a). Paragraph (b) encompasses those who order, solicit or induce (in the
language of article 12(3) of the Directive, "instigate") the commission of the crime; paragraph (c) those who aid, abet, or otherwise assist in its commission
(including providing the means for this); paragraph (d) those who in any other way intentionally contribute to its commission (paras (c) and (d) together equating, in
the language of article 12(3) of the Directive, to "otherwise participat[ing]" in the commission of the crime).
34. All these ways of attracting criminal liability are brought together in the ICTY Statute by according individual criminal responsibility under article 7(1) to
anyone who "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution" of the relevant crime. The
language of all these provisions is notably wide, appreciably wider than any recognised basis for joint enterprise criminal liability under domestic law. That, it
seems to me, is what the German court was saying, at para 21 of the BverwG judgment (cited at para 14 above) when holding that the exclusion "covers not
only active terrorists and participants in the criminal sense, but also persons who perform advance acts in support of terrorist activities."
35. It must surely be correct to say, as was also said in that paragraph, that article 1F disqualifies those who make "a substantial contribution to" the crime,
knowing that their acts or omissions will facilitate it. It seems to me, moreover, that Mr Schilling, the UNHCR Representative, was similarly correct to say in his
recent letter that article 1F responsibility will attach to anyone ?in control of the funds? of an organisation known to be ?dedicated to achieving its aims through
such violent crimes?, and anyone contributing to the commission of such crimes ?by substantially assisting the organisation to continue to function effectively in
pursuance of its aims?. This approach chimes precisely with that taken by the Ninth Circuit in McMullen (see para 106 of Gurung cited above): ?[Article 1F]
encompasses those who provide [the gunmen etc] with the physical, logistical support that enable modern, terrorist groups to operate.?
36. Of course, criminal responsibility would only attach to those with the necessary mens rea (mental element). But, as article 30 of the ICC Statute makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent. (I would for this reason reject the respondent?s criticism of the omission from paragraph 21 of the German court's judgment of any separate reference to intent; that ingredient of criminal responsibility is already encompassed within the Court's existing formulation).
37. Similarly, and I think consistently with this, the ICTY Chamber in Tadic defines mens rea in a way which recognises that, when the accused is participating
in (in the sense of assisting in or contributing to) a common plan or purpose, not necessarily to commit any specific or identifiable crime but to further the
organisation?s aims by committing article 1F crimes generally, no more need be established than that the accused had personal knowledge of such aims and
intended to contribute to their commission.
38. Returning to the judgment below with these considerations in mind, I have to say that paragraph 119 does seem to me too narrowly drawn, appearing to confine article 1F liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. Certainly para 119 is all too easily read as being directed to specific identifiable crimes rather than, as to my mind it should be, wider concepts of common design, such as the accomplishment of an organisation?s purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him
voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact
further that purpose.
39. It would not, I think, be helpful to expatiate upon article 1F's reference to there being "serious reasons for considering" the asylum-seeker to have committed a war crime. Clearly the Tribunal in Gurung (at the end of para 109) was right to highlight "the lower standard of proof applicable in exclusion clause cases" - lower than that applicable in actual war crimes trials. That said, "serious reasons for considering" obviously imports a higher test for exclusion than would, say, an expression like "reasonable grounds for suspecting". "Considering" approximates rather to "believing" than to "suspecting". I am inclined to agree with what Sedley LJ said in Yasser Al-Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222, para 33: "[the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says."
The appeal was unanimously dismissed and the case remitted to the Secretary of State for reconsideration.
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