Practice Relating to Rule 158. Prosecution of War Crimes
Section B. Granting of asylum to suspected war criminals
New Zealand’s Immigration Act (2009) incorporates the exemption provision contained in Article 1F of the 1951 Refugee Convention as follows:
Claims for recognition as refugee or protected person
129 Recognition as refugee
(1) A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.
136 How refugee and protection officer to determine claim
(1) For the purpose of determining a claim, a refugee and protection officer must determine the matters set out in section 137.
(2) In doing so, the refugee and protection officer may seek information from any source, but is not obliged to seek any information, evidence, or submissions further to that provided by the claimant.
137 Matters to be determined by refugee and protection officer
(1) For each claim accepted for consideration, a refugee and protection officer must determine, in the following order:
(a) whether to recognise the claimant as a refugee on the ground set out in section 129;
Cessation or cancellation of recognition
145 Cancellation of New Zealand citizen’s recognition as refugee or protected person
A refugee and protection officer may cancel the recognition of a New Zealand citizen as a refugee or a protected person, as the case may be, if—
(b) 1 or more of the following apply in respect of the person:
(iii) the refugee and protection officer has determined that the matters dealt with in Articles 1D, 1E, and 1F of the Refugee Convention may not have been able to be properly considered by a refugee and protection officer (or a refugee status officer under the former Act) for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information;
Appeals against decisions relating to refugee or protection status
193 Tribunal consideration of refugee and protection matters
(1) Every appeal relating to whether a person should be recognised as a refugee or a protected person in New Zealand must be determined in accordance with this Act.
(2) Every appeal as to whether a person should continue to be recognised as a refugee or a protected person in New Zealand must be determined in accordance with this Act.
(3) To the extent that an issue is not dealt with in this Act, the Tribunal, in carrying out its functions in relation to the recognition of a person as a refugee, must act in a way that is consistent with New Zealand’s obligations under the Refugee Convention.
(4) The Tribunal, in carrying out its functions in relation to the recognition of a person as a protected person, must act in a way that is consistent with this Act.
194 Right of appeal in relation to decisions concerning refugee or protection status (other than subsequent claims)
(1) A person may appeal to the Tribunal against a decision by a refugee and protection officer—
(c) to decline the person’s claim to be recognised under … section … 129 … as a refugee … (whether or not the refugee and protection officer recognised the person as a refugee or a protected person under the grounds set out in another of those sections, or both of those other sections):
(e) to cancel recognition of a New Zealand citizen as a refugee or a protected person on a ground under section 145(b).
198 Determination of appeal against declining of claim for recognition, cancellation of recognition, or cessation of recognition
(1) Where an appeal is brought under section 194(1)(c) or (d), the Tribunal must—
(a) determine the matter de novo; and
(b) determine, in the following order:
(i) whether to recognise the person as a refugee on the ground set out in section 129;
(2) Where an appeal is brought under section 194(1)(e) (being an appeal against a decision by a refugee and protection officer to cancel recognition of a New Zealand citizen as a refugee or a protected person on a ground under section 145(b)), the Tribunal must—
(a) determine the matter de novo; and
(b) except if the appeal relates to a ground under section 145(b)(ii), determine whether—
(i) recognition of the person as a refugee or a protected person may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:
(ii) the matters dealt with in Articles 1D, 1E, and 1F of the Refugee Convention may not have been able to be properly considered by a refugee and protection officer for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information.
In the Tamil X case in 2009, New Zealand’s Court of Appeals allowed an appeal against the High Court’s refusal to grant judicial review of a decision made by New Zealand’s Refugee Status Appeals Authority (RSAA) that the appellant was not a refugee because he fell within the exclusion provision of Article 1F of the 1951 Refugee Convention. The Court of Appeals was unanimous that it had not been shown that there were serious reasons for considering that the appellant had committed a war crime or crime against humanity in terms of Article 1F(a) of the Convention. In the Court’s leading judgment, Hammond J stated:
83. The central issue on this appeal is whether the High Court was wrong to conclude that it was open to the RSAA on the evidence before it to find that X was complicit in crimes against humanity.
84. To invoke Article 1F, there must be “serious reasons for considering” that a claimant has (a) committed a crime against peace, a war crime, or a crime against humanity; (b) a serious non-political crime; or (c) is guilty of acts contrary to the purposes and principles of the United Nations.
85. The parties do not dispute that the LTTE [Liberation Tigers of Tamil Eelam] has been involved in the perpetration of crimes against humanity and war crimes, as defined in the requisite international instruments, on a wide scale.
86. An issue of critical importance in this particular case is whether there were “serious reasons for considering” that X was a member of the LTTE and involved in the commission of crimes against humanity. The RSAA observed that X’s liability, if any, would depend upon being an accomplice or party because there was “no evidence” that the appellant personally committed a war crime or crime against humanity.
87. The burden of Baragwanath J’s judgment [Baragwanath: one of three justices hearing this case] is devoted to a consideration of whether the act of shipping explosives and ammunition on the Yahata [the LTTE vessel on which “X” was serving as chief-engineer] could constitute a crime against humanity. His approach is predicated on the view that carriage by LTTE vessels of arms and munitions may not be treated as per se unlawful when the broader civil war context is appreciated.
88. I prefer to resolve the appeal on a more orthodox judicial review basis: that the RSAA and the High Court misdirected themselves in law as to the proper approach to complicity in crimes against humanity under Article 1F(a).
94. For many years, there has been some debate about whether mere membership of an organisation is sufficient to give rise to complicity. There is such a thing as “innocent” association: somebody may, in a formal or less formal sense, belong to an organisation but not go beyond a passive role. The difficulty in a practical sense is how to determine when there is a sufficient degree of complicity. The closer somebody is to being a leader rather than a “rank and file” member, the more likely an inference can fairly be drawn that the person knew and shared the organisation’s aims and purposes in committing the relevant crime. For a review of the relevant principles, see Valère v Minister of Citizenship and Immigration  FC 524 at - (FC).
95. The test for complicity has recently been helpfully clarified by the English Court of Appeal in two recent cases concerning Article 1F and LTTE personnel: KJ (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 292 and R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department  3 All ER 588.
106. I respectfully adopt the approach to complicity endorsed by Toulson LJ in JS (Sri Lanka). Given that New Zealand is a state party to the Rome Statute of the International Criminal Court, New Zealand refugee decision-makers should focus on that international instrument when tasked with discovering “the true autonomous and international meaning” of the Refugee Convention: ex parte Adan at 605. Because Article 1F(a) refers specifically to the definition of crimes against humanity in the international instruments, JS (Sri Lanka) was correct to view those instruments, including the Rome Statute, as the principal source of reference for domestic courts: at . The characterisation of joint criminal enterprise liability, derived from the ICTY in Tadić, has been supported by Professor May in Crimes Against Humanity: A Normative Account (2005) at 124–128. Professor Cassese has described the approach to joint criminal enterprise in Tadić as a “fully fledged legal construct of modes of criminal liability” in international criminal law: International Criminal Law (2ed 2008) at 191.
107. It follows that X’s appeal against the Article 1F(a) finding must be allowed because the High Court and RSAA misdirected themselves in law as to the proper approach to complicity.
The Crown subsequently appealed the Court of Appeal’s judgment. In the Tamil X case in 2010, New Zealand’s Supreme Court dismissed that appeal, finding that respondent “X” was not shown to be excluded from refugee status under either Article 1F(a) or (b) of the 1951 Refugee Convention. In its judgment, however, the Supreme Court, following the approach of the UK Supreme Court that had overturned an English Court of Appeal case that had been cited by the New Zealand Court of Appeals in its judgment, endorsed a broader concept for “complicity”, thus providing for a broader conception of the Article 1F exclusion provision. In its judgment the New Zealand Supreme Court stated:
47. … [T]he Rome Statute of the International Criminal Court, which came into force on 1 July 2002, is a recent international instrument which directly addresses the principles that govern liability for international crimes including those of particular relevance to this case. It is appropriate to refer to it for authoritative assistance on what is a “crime against humanity”.
51. It is well established that a person may commit crimes against humanity as an accomplice without personally undertaking the criminal acts effecting such crimes. What, however, has long been uncertain is the degree to which the person must be complicit in the perpetrator’s actions to become liable as an accomplice for such an international crime.
54. Individual criminal responsibility under art 25.3(d) [of the Rome Statute] articulates a concept of joint enterprise liability in response to the complexity often found when acts which are international crimes are committed by a group or groups of persons, each playing different roles. Joint criminal enterprise liability is a form of liability which covers all such participants in a common criminal plan. Under it, all those taking part in such a plan, being aware of its purpose and character and sharing criminal intent, will be liable. This form of liability is drawn from principles of national and international case law which crystallised as customary international law in the post-World War II period. The leading modern international law authority on joint criminal enterprise is Prosecutor v Tadić, where the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia synthesised the post-World War II domestic and international jurisprudence.
63. The [New Zealand] Court of Appeal was of the view that the participation of the respondent in the final voyage of the Yahata, knowing of the real possibility that its cargo of armaments and explosives would be used against civilians, fell short of making the respondent complicit in a crime against humanity. It was not sufficient that the respondent knew the weapons were as likely as not to be used for that purpose.
64. In his reasons in the Court of Appeal Hammond J adopted the approach taken to joint enterprise liability under art 25.3(d) of the Rome Statute by Toulson LJ in the Court of Appeal of England and Wales in R (JS (Sri Lanka)) v Secretary of State for the Home Department. R (JS (Sri Lanka)) v Secretary of State for the Home Department  EWCA Civ 364,  2 WLR 17]. In determining whether there were serious reasons to consider that a claimant had committed an international crime under art 1F(a) it had to be established whether the claimant had participated in the furtherance of a joint criminal purpose in a way that made a significant contribution to a common design involving commission of such a crime. Becoming a member of an organisation that was involved in such crimes, and participating in military actions against the government, was not on its own enough. Rather, there had to be serious reasons for considering that the claimant was a party to the design who had participated in furthering the joint criminal purpose, making a significant contribution to the commission of the crime.
65. Arnold J [one of the other two justices hearing the case] agreed with Hammond J. Both concluded that the Authority’s findings concerning the participation of the respondent on the last voyage did not meet the requirement for joint enterprise liability of the respondent in relation to intention to further a crime under the Rome Statute. In particular, it was not shown that the respondent’s participation was with the intention of furthering a crime against humanity.
66. Since the Court of Appeal’s judgment in this case the Supreme Court of the United Kingdom has delivered judgment in an appeal by the Crown against the English Court of Appeal’s judgment in R (JS (Sri Lanka)).[R (JS (Sri Lanka)) v Secretary of State for the Home Department  UKSC 15,  2 WLR 766]. While agreeing with much of the lower Court’s judgment, the Supreme Court differed from it on aspects of joint enterprise liability that are directly relevant to the respondent’s position.
67. In the leading judgment, Lord Brown JSC said that Toulson LJ’s approach had been too narrow in its approach to joint enterprise liability. It was not necessary to show that the claimant was engaged in a criminal enterprise of a kind that would lead to conviction under domestic criminal law. The focus should rather be on the wider concept of common design such as the accomplishment of an organisation’s purpose by whatever means are necessary, including the commission of crimes covered by art 1F.
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.
68. In expressing his agreement generally, and with this passage in particular, Lord Hope DPSC emphasised the words “in a significant way” and “will in fact further that purpose”. Joint enterprise liability under the Rome Statute did not require participation in the criminal act.
70. We agree with these observations. Refugee status decision-makers should adopt the same approach to the application of joint enterprise liability principles when ascertaining if there are serious reasons to consider that a claimant seeking recognition of refugee status has committed a crime or an act within art 1F through being complicit in such crimes or acts perpetrated by others. That approach fully reflects the principle that those who contribute significantly to the commission of an international crime with the stipulated intention, although not direct perpetrators of it, are personally responsible for the crime. This principle is now expressed in arts 25 and 30 of the Rome Statute and was earlier well established in customary international law. Its application recognises the importance of domestic courts endeavouring to develop and maintain a common approach to the meaning of the language of an international instrument which is given effect as domestic law in numerous jurisdictions of state parties.
75. It is inherent in the notion of criminal complicity that liability arises only once a primary criminal act has been committed, with which the accomplice has become associated by reason of his or her conduct. There must be “a predicate offence committed by someone other than the accomplice”, whose conduct itself will not usually amount to an autonomous separate crime, because its criminality lies in facilitating the criminal enterprise of another. This reflects the general position in domestic criminal law where an accomplice’s acts are not usually criminal in themselves and become so only because they made the accomplice a party to the principal’s completed crime.
76. As Mr Harrison QC, for the respondent, pointed out, the concept of joint enterprise liability being for a completed offence committed by someone other than the accomplice is reflected in the language of art 25.3(d) of the Rome Statute. That provision is expansive in relation to modes of participation stipulated in preceding sub-paragraphs. It speaks of “[i]n any other way contribut[ing] to the commission or attempted commission of such a crime”. But the latter part of that phrase requires that some crime has been committed or attempted. Had those drafting the Rome Statute been of a mind to expand joint enterprise liability to catch conduct where an actual or attempted crime does not eventuate, they could easily have provided for that in art 25.3(d). They did not do so. Nothing equivalent to the common law crime of conspiracy is included in the Rome Statute.
79. Although joint enterprise liability makes liable those who contribute to the commission of crimes by assisting or contributing to a common plan or purpose, it is concerned with holding responsible those who in that way contribute to crimes that are actually committed. The link between the respondent’s conduct on the Yahata in 1993 and crimes committed or attempted between 1985 and 1996 is too tenuous to provide serious reasons for considering he was complicit in that offending. Had it been shown that he participated in voyages where armaments were delivered to the Tamil Tigers in Sri Lanka and subsequently that organisation committed crimes against humanity, the position would be different.
80. But as the evidence stands it must follow that the respondent is not disqualified from being a refugee by virtue of art 1F(a) of the Refugee Convention.