United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 158. Prosecution of War Crimes
Section B. Granting of asylum to suspected war criminals
In 2009, in the MH and DS case, the England and Wales Court of Appeal (Civil Division) was called upon to decide a conjoined appeal, one of which concerned an appeal by MH, a Syrian Kurd, against a decision to exclude her from refugee protection on the basis of Article 1F of the 1951 Refugee Convention. The appellant had been affiliated with the Kurdistan Workers’ Party (PKK) and had inter alia worked as an assistant nurse in a refugee camp set up for Turkish Kurds in Syria. The appeal was allowed. Lord Justice Richards stated:
28. The question under Article 1F(c) [of the 1951 Refugee Convention] is whether there are serious reasons for considering that the person claiming asylum has been guilty of acts contrary to the purposes and principles of the United Nations. Neither party has disputed, at least directly, that in answering that question a tribunal should follow the guidance given [by the Immigration and Asylum Tribunal] in Gurung Gurung (Exclusion – Risk – Maoist) Nepal  UKIAT 04870].
31. It is not in dispute that nurses and other medical personnel enjoy a special status and protection under international humanitarian law. In my view that does not take them automatically outside the scope of the exclusion in Article 1F(c): for example, a medically qualified member of a terrorist organisation who treated an injured suicide bomber with the intention that he or she should carry out a further bombing mission would have grave difficulty in resisting the application of the exclusion. The point is plainly relevant, however, to an assessment of whether the exclusion applies. In the ordinary course I would not expect the provision of medical or nursing services to bring a person within Article 1F(c) on the basis that they form part of the infrastructure of support for a terrorist organisation; but in each case the point will have to be taken into account with other relevant factors in reaching an overall assessment as to the application of Article 1F(c).
Lord Justice Richards concluded:
38. … I think it clear that MH’s membership of the PKK and what she did while a member of the PKK did not amount to (a) acts of committing, preparing or instigating terrorism, or (b) acts of encouraging or inducing others to commit, prepare or instigate terrorism, and that they were insufficient to make her responsible for the commission of such acts by others.
39. My view is reinforced if regard is had to the special position of nursing under international humanitarian law. MH’s role as an assistant nurse in the refugee camp is in one sense the most significant of her activities, since it included the care of injured guerrillas; but it seems to me that the humanitarian nature of the work she was doing, and the context in which she was doing it, weigh against rather than in favour of a finding of complicity in the terrorist acts of the PKK.
40. By reaching a conclusion on the application of Article 1F(c) that was not reasonably open to it, the tribunal erred materially in law. That error, taken by itself, is sufficient for success in MH’s appeal against the tribunal’s dismissal of her asylum appeal.
In 2010, the UK Supreme Court was called upon to decide an appeal by the Secretary of State for the Home Department in the JS case. The England and Wales Court of Appeal had quashed the Secretary of State’s decision to exclude from refugee protection and humanitarian protection a Sri Lankan Tamil who had been involved in military operations as a member of the Liberation Tigers of Tamil Eelam (LTTE). The appeal was unanimously dismissed and the Secretary of State was instructed to re-determine the respondent’s asylum application in accordance with the Supreme Court’s guidance. Lord Brown, who gave the leading judgment, summarized the issues before the Court as follows:
1. The  Refugee Convention was drafted for a world scarred by long years of war crimes and other like atrocities. There remain, alas, all too many countries where such crimes continue. Sometimes those committing them flee abroad and claim asylum. It is not intended that the [1951 Refugee] Convention will help them. However clearly in need of protection from persecution an asylum seeker may be, he is not to be recognised as a refugee where “there are serious reasons for considering that (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”. So states article 1F(a) of the Convention (and, for good measure, article 12(2)(a) of the Qualification Directive (2004/83/EC) – this being implemented into domestic law by Regulations 2 and 7(1) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525)). It is the Court’s central task on the present appeal to determine the true interpretation and application of this disqualifying provision. Who are to be regarded as having committed such a crime (“war criminals” as I shall generally refer to them) within the meaning of article 1F(a)? More particularly, assuming that there are those within an organisation who clearly are committing war crimes, what more than membership of such an organisation must be established before an individual is himself personally to be regarded as a war criminal?
2. It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article’s disqualifying provisions. The question is, I repeat, what more?
[emphasis in original]
Lord Brown recalled a previous decision in the Gurung case by the Immigration and Asylum Tribunal (IAT) on exclusion from refugee status which had formed the basis for the Secretary of State’s refusal to grant refugee or humanitarian protection:
21. It is convenient next to turn to Gurung v Secretary of State for the Home Department  Imm AR 115, the starred decision of the IAT (under its President, Collins J) on which the Secretary of State’s refusal decision was based in the present case. It is necessary, I fear, to cite it at some length. It was, after all, the only case to which the decision letter referred. Having noted (at para 102) that in many article 1F cases “an adjudicator will be faced with evidence that an individual is a member of an organisation committed to armed struggle or the use of violence as a means to achieve its political goals”, the Tribunal’s judgment continued:
104. The Tribunal has consistently stated that mere membership of such organisations is not enough to bring an appellant within the Exclusion Clauses: … In the light of previous case law and the further materials now before us, we would highlight two further principles that should be borne in mind when considering complicity.
105. One is that it would be wrong to say that an appellant only came within the Exclusion Clauses if the evidence established that he has personally participated in acts contrary to the provisions of Art 1F. If the organisation is one or has become one whose aims, methods and activities are predominantly terrorist in character, very little more will be necessary. We agree in this regard with the formulation given to this issue by UNHCR in their post September 11, 2001 document, Addressing Security Concerns without Undermining [R]efugee Protection: UNHCR’s Perspective, at paragraph 18: “Where, however, there is sufficient proof that an asylum-seeker belongs to an extremist international terrorist group, such as those involved in the 11 September attacks, voluntary membership could be presumed to amount to personal and knowing participation, or at least acquiescence amounting to complicity in the crimes in question. In asylum procedures, a rebuttable presumption of individual liability could be introduced to handle such cases. Drawing up lists of international terrorist organisations at the international level would facilitate the application of this procedural device since such certification at the international level would carry considerable weight in contrast to lists established by one country alone. The position of the individual in the organisation concerned, including the voluntariness of his or her membership, as well as the fragmentation of certain groups would, however, need to be taken into account”.
106. That complicity in this type of case should be sufficient to bring an appellant within the Exclusion Clauses is necessary in order to adequately reflect the realities of modern-day terrorism. The terrorist acts of key operatives are often possible only by virtue of the infrastructure of support provided by other members who themselves undertake no violent actions. As the US Court of Appeals, Ninth Circuit noted in McMullen v INS 685 F 2d 1312 (9th Cir 1981) at 599: “We interpret both the [1951 Refugee] [C]convention and the [1980 Refugee] [A]ct to permit deportation of individuals who commit serious, non-political crimes, and we have concluded that this includes terrorist acts against ordinary citizens. We refuse to interpret these documents to apply only to those who actually ‘pulled the trigger’, because we believe that this interpretation is too narrow. In our judgment, the only reasonable interpretation of the exception is that it encompasses those who provide the latter with the physical, logistical support that enables modern, terrorist groups to operate”.
107. Likewise the Tribunal noted in Ozer (10922, May 1994) when considering the appeal of a person who had voluntarily joined and supported Dev Sol which, with reference to objective country materials on Turkey was described as then being an illegal party dedicated to violence, “… then it is no use his asserting that he does not support its policy or methods. If he does not endorse a central policy of the party he should not be a member of it: in any event his membership and contribution to the life of the party is indirect support for its violent acts.”
108. The other principle to be borne in mind is that whilst complicity may arise indirectly, it remains essential in all cases to establish that the appellant has been a voluntary member of such an organisation who fully understands its aims, methods and activities, including any plans it has made to carry out acts contrary to Art 1F. Thus for example it would be wrong to regard the mere fact that an appellant has provided a safe house for LTTE combatants as sufficient evidence that he has committed an excludable offence. 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.
109. We would also observe that international criminal law and international humanitarian law, which in our view should be the principal sources of reference in dealing with such issues as complicity, adopt similar although more detailed criteria in respect of those who for the purpose of facilitating an international crime aid, abet or otherwise assist in its commission or its attempted commission, including providing the means for its commission (see Art 25 of the  International Criminal Court Statute and Art 7(1) of the  ICTY Statute as analysed in the case of Tadic Case No. IT-94-1-T, 7 May 1997). Of course such reference will need to bear in mind the lower standard of proof applicable in Exclusion Clause cases.
110. However, as the passage just cited from UNHCR highlights, even when complicity is established the assessment under Art 1F must take into account not only evidence about the status and level of the person in the organisation and factors such as duress and self-defence against superior orders as well as the availability of a moral choice; it must also encompass evidence about the nature of the organisation and the nature of the society in which it operates. Such evidence will need to include the extent to which the organisation is fragmented.
111. Observing as we do that in certain past Tribunal cases, Karthirpillai (12250) being an unhappy example, adjudicators and the Tribunal have not always taken a contextual approach, we think it useful to consider cases along a continuum.
112. On the one end of the continuum, let us postulate an organisation that has very significant support amongst the population and has developed political aims and objectives covering political, social, economic and cultural issues. Its long-term aims embrace a parliamentary, democratic mode of government and safeguarding of basic human rights. But it has in a limited way or for a limited period created an armed struggle wing in response to atrocities committed by a dictatorial government. In such a case an adjudicator should be extremely slow to conclude that an appellant’s mere membership of such an organisation raises any real issue under Art 1F, unless there is evidence that the armed actions of this organisation are not in fact proportionate acts which qualify as ‘non-political crimes’ within Art 1F(b) and, if they are not, that he has played a leading or actively facilitative role in the commission of acts or crimes undertaken by the armed struggle wing.
113. At the other end of this continuum, let us postulate an organisation which has little or no political agenda or which, if it did originally have genuine political aims and objectives, has increasingly come to focus on terrorism as a modus operandi. Its recruitment policy, its structure and strategy has become almost entirely devoted to the execution of terrorist acts which are seen as a way of winning the war against the enemy, even if the chosen targets are primarily civilian. Let us further suppose that the type of government such an organisation promotes is authoritarian in character and abhors the identification by international human rights law of certain fundamental human rights. In the case of such an organisation, any individual who has knowingly joined such an organisation will have difficulty in establishing he or she is not complicit in the acts of such an organisation.
Lord Brown reviewed the approach adopted in the Gurung case to Article 1F of the 1951 Refugee Convention and held:
(2) The Gurung approach
29. … [T]he 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 [Federal Administrative Court] judgment … 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[s] 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  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.”
40. In the result I would dismiss this appeal but vary the order below to provide that in re-determining the respondent’s asylum application, the Secretary of State should direct himself in accordance with this Court’s judgments, not those of the Court of Appeal.
The other members of the Court agreed with Lord Brown and dismissed the appeal, with Lord Hope and Lord Kerr giving additional reasons for doing so.
In 2005, in a written answer to a question concerning, inter alia, the granting of asylum to alleged war criminals, the UK Minister of State for Immigration stated:
The Government’s policy that the UK should not provide a safe haven for alleged war criminals was set out in the 2002 White Paper, Secure Borders, Safe Haven. The Government are committed to making wider use of existing immigration and nationality powers to prevent suspected war criminals and those who may have committed crimes against humanity from entering the UK or from establishing themselves here. These powers include the ability to refuse leave to enter or remain on the grounds that the person’s presence in the UK is not conducive to the public good, to refuse or deprive an individual of British citizenship and to exclude individuals from refugee protection if there are serious reasons for considering that they have committed war crimes or crimes against humanity.
In 2006, in a written answer to a question in the House of Commons concerning Rwandan war criminals, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated: “The Government are committed to a policy of no safe haven for those who commit genocide, war crimes or crimes against humanity.”