UTIAC In the context of exclusion under Article 1F(a) of the 1951 Refugee Convention (Article 12(2)(a) of 2004/83/EC (the Refugee Qualification Directive):
i) The requirement set out at Article 7(1) of the International Criminal Court Statute (ICC Statute) that acts be ‘committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack’ (the ‘chapeau requirement’) is an essential element in the definition of a crime against humanity.
ii) In principle the question of whether acts are ‘committed as part of a widespread or systematic attacks directed against any civilian population’ is a matter that could be dealt with in future country guidance cases; although the question of whether there exist acts with such a nexus must ultimately be decided on a case-by-case basis.
iii) Commission of a crime against humanity or other excludable act can take the form of commission as an aider and abettor, as a subsidiary (or non-principal) form of participation. Drawing on international criminal law jurisprudence (as enjoined by R (JS) (Sri Lanka) v SSHD [2010] UKSC 15), aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, i.e. the contribution should facilitate the commission of a crime in some significant way.
iv) The fact that the Article 7(1)(a)-(g)list of acts capable of being crimes against humanity does not include the ‘cover-up’ of murders, whilst a surprising lacuna, should not be filled by judicial interpretation.
v) Duress is a defence to international criminal responsibility (see Article 31(1)(d) of the ICC Statute). Again, drawing on international criminal law jurisprudence, such a defence is confined to situations where the defendant’s freedom of will and decision is so severely limited that there is eventually no moral choice of counter activity available. It has four components: the threat must be of imminent death or continuing or imminent serious bodily harm; the threat must result in duress causing the crime; a threat results in duress only if it is otherwise avoidable (i.e. if a reasonable person in comparable circumstances would have submitted and would have been driven to the relevant criminal conduct); and the act directed at avoiding the threat must be necessary in terms of no other means being available and reasonable for reaching the desired effect.
Judges:
Latter SIJ
Citations:
[2012] UKUT 15 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration, Human Rights, Crime
Updated: 04 October 2022; Ref: scu.450984
