Supreme Court Guidance on who has committed War Crimes and Crimes against Humanit

17/03/10

R (on the application of JS)(Sri Lanka) v. Secretary of State for the Home Department [2010] UKSC 15

On 17 March 2010, the Supreme Court gave judgment on an appeal by the Home Secretary from the order of the Court of Appeal quashing the decision to exclude the Respondent, a member of the Sri Lankan Tamil Tigers group and its Intelligence Division, from refugee status under Article 1F(a) of the Refugee Convention on the ground that there are serious reasons for considering the Respondent has committed a war crime or crime against humanity ("war crimes").

The Supreme Court, Lord Brown giving the leading judgment with Lord Hope and Lord Kerr giving concurring judgments, considered three issues.

First, whether the Court of Appeal was correct to quash the refusal decision and remit the case for reconsideration.  The Supreme Court concluded that the reasoning contained in the Home Secretary's decision letter was flawed and the Court of Appeal was correct to quash the refusal decision for that reason.

Secondly, whether the principles as to the application of Article 1F(a) of the Refugee Convention laid down by the starred case of Gurung [2002] UKIAT 04870 were correct.  The Supreme Court concluded that there were criticisms to be made of Gurung and it should not in the future be accorded the same standing as it has hitherto enjoyed. In particular, the Supreme Court held that an attempt to identify groups that were "terrorist in character" and reliance on a presumption of criminal complicity based upon membership of such a group was unhelpful.

Thirdly, whether the Court of Appeal was right to interpret war crimes liability underf Article 1F(a) as limited essentially to joint enterprise liability.  The Supreme Court held that the Court of Appeal took too narrow an approach by confining Article 1F liability to joint enterprise liability as understood under domestic law.  A person is complicit in war cimes if he has voluntarily 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.

The Supreme Court, therefore, dismissed the Home Secretary's appeal but varied the order made by the Court of Appeal to provide that in re-determing the Respondent's claim for asylum the Home Secretary should direct himself in accordance with the judgment of the Supreme Court and not the judgment of the Court of Appeal.

The judgment is here.