MT v The Secretary of State for the Home Department

For exclusion under Article 1F(a), a crime against humanity requires both an Article 7 act and its commission as part of a widespread or systematic attack on a civilian population. A person may be responsible as an aider and abettor where physical or psychological assistance substantially facilitates the crime and is given with the requisite knowledge and intent.

Duress under the ICC Statute is confined to circumstances of imminent death or continuing or imminent serious bodily harm, where the conduct is necessary and reasonably unavoidable. A court cannot enlarge the exhaustive Article 7 list by treating a post-event cover-up of murder as a crime against humanity. Torture is not a proportionate political act and may also be a serious non-political crime.

The appellant, a Zimbabwean former police officer, appealed against the refusal of asylum and the Secretary of State’s certificate excluding her under Article 1F(a) and (c) of the 1951 Refugee Convention.

The First-tier Tribunal had upheld the certificate and dismissed the appeal. The Upper Tribunal set that decision aside for failure to consider duress, then re-made the decision. It accepted that the appellant had served in the Zimbabwe Republic Police, but found her account of her rank, knowledge and involvement in the mistreatment of political opponents materially unreliable.

The central issues were whether her conduct amounted to a crime against humanity, whether she aided and abetted torture, and whether duress prevented criminal responsibility.

1. Appeal dismissed. The Tribunal agreed with the Secretary of State’s certificate. There were serious reasons for considering that the appellant had committed crimes against humanity within Article 1F(a) as an aider and abettor. The asylum dimensions of the appeal therefore had to be dismissed.

2. The Article 7(1) chapeau in the ICC Statute is an essential element of a crime against humanity. The Tribunal accepted that the relevant attacks on Zimbabwean civilians satisfied it. Country guidance may in principle determine whether a widespread or systematic attack exists, but the nexus between an individual’s acts and that attack remains a case-specific question.

3. The appellant was not a co-perpetrator in a joint criminal enterprise. She had no significant leadership role. However, aiding and abetting is a subsidiary form of participation. It includes physical or psychological assistance that has a substantial effect by facilitating the crime in a significant way.

4. On the facts found, the appellant’s threats during the Mhlanga incident and participation in the Sibanda incident significantly facilitated torture. She knew what was being done and intended substantially to contribute. Those acts therefore amounted to aiding and abetting crimes against humanity.

5. Duress under Article 31(1)(d) was unavailable. There was no threat of imminent death or continuing or imminent serious bodily harm, and the evidence showed that avoidance measures and a moral choice not to participate had been available.

6. The burial of bodies after the Plumtree killings could not itself be treated as a crime against humanity. Although the omission of cover-up conduct from Article 7 was striking, Article 22(2) prevented judicial expansion of the statutory list by analogy.

7. Article 1F(c) did not apply because the case lacked the required international dimension. The Tribunal added, obiter, that the torture and related conduct would also constitute serious non-political crimes under Article 1F(b).

8. In any event, the appellant had not shown a real risk of persecution, serious harm, or treatment contrary to Article 3 on return. Her Article 8 case also failed.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside for material error of law because it had not considered duress. The Upper Tribunal re-made the decision, agreed the Secretary of State’s certificate, and dismissed the appeal.
• First-tier Tribunal: Judge Pirotta upheld the exclusion certificate and dismissed the appeal in a determination notified on 7 April 2010.