UK - Upper Tribunal, 15 September 2010, SK (Article 1F(a) - exclusion) Zimbabwe [2010] UKUT 327 (IAC)
| Country of Decision: | United Kingdom |
| Country of applicant: | Zimbabwe |
| Court name: | Upper Tribunal |
| Date of decision: | 15-09-2010 |
| Citation: | [2010] UKUT 327 (IAC) |
Keywords:
| Keywords |
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Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
Headnote:
The Tribunal considered whether a woman who had been involved in invasions of white-owned farms at the behest of the ruling party in Zimbabwe was excluded under Article 1F(a) of the 1951 Refugee Convention. The Tribunal held, first of all, that Article 7(1) of the Statute of the International Criminal Court is usually regarded as providing the best working definition of a crime against humanity for the purposes of Article 1F(a) of the 1951 Refugee Convention. Secondly, it held that where the act or crime does not involve the specifically listed forms of acts or crimes, in order to consider that a crime against humanity had occurred, the Tribunal must consider if the acts participated in by the appellant were of a “similar character” to those specified in Article 7(1)(a) to (j) of the Statute. In so doing, the Tribunal must consider the specific purpose of the crime, its intent and effect, the participation of an appellant in the crime and if needs be whether the appellant made a substantial contribution to the crime.
Facts:
The applicant was a Zimbabwean woman who had participated in at least 2 invasions of white-owned farms in Zimbabwe as part of a ZANU PF militia. She admitted to having severely beaten farm workers during the invasions, although she had not personally killed anyone. She had been encouraged to join the militia by her uncle, who had taken her in after she was orphaned. She was sexually abused whilst she was with the militia. She was refused asylum and appealed. The Immigration Judge held that she was entitled to protection as a result of Article 3 ECHR but was excluded from the 1951 Refugee Convention and Subsidiary Protection on the grounds that there were serious reasons for considering that she had committed a crime against humanity. She appealed on the basis that she should not have been so excluded.
Decision & reasoning:
The Upper Tribunal dismissed the appeal and held that the applicant should be excluded from the protection of the 1951 Refugee Convention and Subsidiary Protection.
The applicant argued that she should not be excluded because she should not be considered to have committed a crime against humanity because she did not meet the requirement of “substantial involvement” in the crime. She was part of the mob rather than being a ringleader, or part of the hard core of the group. Further, it was argued that her motivation for being involved was fear and a desire to protect herself, rather than to drive white farmers and their workers from their land.
The Tribunal held that the farm invasions in which the applicant participated were crimes against humanity. It based its analysis of Article 7 of the Statute of the International Criminal Court. It held that the invasions were part of a widespread and systematic attack on white farmers and their workers who were part of the civilian population. The Tribunal considered that they were inhumane acts iintentionally causing great suffering, or serious injury to body or to mental or physical health. Further they were acts that were similar in character to ”persecution” as defined in Article 7(1)(h) of the Statute of the International Criminal Court. Consequently, they met the test set out in Article 7(1)(k) of the Statute.
The Tribunal further held that the applicant’s level of participation in the acts were sufficient to meet the requirements for knowledge and intent found in Article 30 of the Statute of the International Criminal Court. Her plea of duress had been rejected and the issue was one of her intent in committing the acts rather than her motivation. The Tribunal held that there was no legal requirement of substantial involvement as the applicant had argued, but if there was, the applicant’s evidence about her involvement was sufficient to meet that requirement.
Outcome:
Appeal dismissed.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| UK - Supreme Court, 17 March 2010, JS (Sri Lanka) v Secretary of State for the Home Department, [2010] UKSC 15 |
| ICTY - Prosecutor v Kordic, IT-95-14/2-A |
Other sources:
UN High Commissioner for Refugees, The Exclusion Clauses: Guidelines on their Application, 2 December 1996