JS (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

Article 1F(a) requires an individual assessment of personal criminal responsibility for a defined war crime or crime against humanity. The decision-maker must identify the relevant offence under the ICC Statute and apply the applicable liability and mental-element provisions. Mere membership, rank, or participation in lawful military operations is insufficient.

For joint criminal enterprise, there must be a common criminal design, a significant contribution to its execution, and an intention to further the crime. Active membership may support conspiracy where an organisation is devoted exclusively to criminal acts. A mixed political and military organisation requires evidence linking the individual to its criminal activities. Generalised reasoning and acquiescence are inadequate.

The claimant, a Tamil citizen of Sri Lanka, sought asylum and humanitarian protection. The Secretary of State accepted his account of long-term LTTE membership, including service in its Intelligence Division, work as a bodyguard to its leader, and command responsibilities.

By a decision dated 14 September 2007, the Secretary of State concluded that there were serious reasons for considering that he had been complicit in war crimes and crimes against humanity under article 1F(a). Blair J dismissed the claimant’s application for permission to apply for judicial review. The appeal concerned whether the decision-maker had identified personal criminal responsibility for defined international crimes, rather than inferring liability from membership and status within the LTTE.

The Court of Appeal unanimously allowed the appeal and quashed the Secretary of State’s decision that the claimant was excluded from the protection of the Refugee Convention and humanitarian protection under article 1F(a) and paragraph 336 of the Immigration Rules.

1. Applicable framework. Because article 1F(a) refers to international instruments defining war crimes and crimes against humanity, the starting point should be the ICC Statute. The decision-maker must identify the relevant type of crime under articles 7 and 8 and then apply the relevant principles of individual, joint-enterprise, or commander responsibility under articles 25, 28 and 30. The threshold of serious reasons for considering is lower than the evidence required for prosecution, but the inquiry must still concern the applicant’s personal criminal responsibility.
2. Joint criminal enterprise. Liability requires a common design amounting to or involving an international crime, participation that makes a significant contribution to its commission, and participation with the intention of furthering the crime. An active member of an organisation devoted exclusively to criminal acts may be regarded as having conspired to commit them, subject to questions of the conspiracy’s scope and proximity. That reasoning does not apply automatically to an organisation pursuing political ends partly through terrorism and partly through military action.
3. Limits of membership and acquiescence. Mere membership of an organisation committed to violence is insufficient. Rank, trust, or participation in non-criminal military operations cannot replace evidence of contribution to criminal acts and the required mental element. General acquiescence cannot create individual criminal liability unless an international instrument defines liability by omission, as article 28 does for commanders in specified circumstances. The Court also rejected the broad continuum approach in Gurung, considering it insufficiently focused and potentially wider than the international instruments.
4. Application. The Secretary of State had assumed that voluntary membership established personal and knowing participation in the LTTE’s crimes. The claimant’s role as bodyguard showed that he was trusted to perform that role, but did not show a significant contribution to international crimes or an intention to further them. There was no evidence of relevant crimes by forces under his command engaging article 28. His admitted military activity was not, by itself, evidence of international criminal responsibility. Blair J therefore erred in treating the decision as immune from public-law review.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 364, the appeal was allowed and the Secretary of State’s exclusion decision was quashed.
• High Court: Blair J dismissed the claimant’s application for permission to apply for judicial review of the Secretary of State’s decision.