CM v The Secretary of State for the Home Department

For exclusion under Article 1F(a) of the Refugee Convention, the Rome Statute supplies the framework for determining crimes against humanity and individual criminal responsibility. A person who directly participates in violent acts, or orders others to commit them, may be criminally responsible as an aider and abettor where the contribution significantly facilitates the crimes.

Obedience to superior orders cannot excuse criminal responsibility for crimes against humanity. Although Article 33(1) of the Statute of the International Criminal Court sets conditions for that defence, Article 33(2) makes orders to commit crimes against humanity manifestly unlawful. Duress remains available, but requires compelling evidence of an imminent serious threat, no reasonable means of avoidance, and conduct necessary and reasonable to avert the threat.

The appellant, a Zimbabwean national and former army sergeant and reservist, claimed asylum after admitting involvement in beatings of civilians during 2001 and 2002. The Secretary of State certified his claim under section 55 of the Immigration, Asylum and Nationality Act 2006, maintaining that there were serious reasons for considering that he had committed excludable crimes under Article 1F(a) of the Refugee Convention.

A Designated Immigration Judge dismissed the appeal. The Upper Tribunal later set that decision aside for material legal errors concerning crimes against humanity, duress and Article 8. The preserved factual findings included the appellant’s participation in beatings and his ordering of others to take part. The resumed appeal concerned whether those facts established exclusion, whether duress or superior orders provided a defence, and whether removal would breach Articles 3 or 8 of the ECHR.

1. Appeal dismissed. The Tribunal remade the decision by upholding the respondent’s section 55 certificate and dismissing the appeal on asylum, Article 3 and Article 8 grounds.

2. The admitted country conditions and the preserved facts satisfied the contextual requirement for crimes against humanity under Article 7 of the Statute of the International Criminal Court. The appellant’s beatings, using sticks and whips and causing bleeding, amounted to torture or, alternatively, inhumane acts. His giving orders for others to carry out similar beatings also engaged Article 25(3)(b).

3. The appellant was an aider and abettor. He was a sergeant and described himself as the officer in charge. His physical participation and orders gave moral support and encouragement, and made a significant contribution to the criminal acts.

4. Superior orders could not provide a defence. Article 33(1) allows the defence only where all its requirements are met, including that the order was not manifestly unlawful. By Article 33(2), an order to commit a crime against humanity is always manifestly unlawful. The defence was therefore unavailable as a matter of law.

5. The appellant had not established duress under Article 31(1)(d). He had previously participated in beatings, had opportunities to dissociate himself, and did not prove an imminent threat of death or serious bodily harm to himself or his family. His conduct after the alleged order to kill his uncle, including returning to Zimbabwe and remaining there for months, was inconsistent with unavoidable coercion.

6. He was not a deserter and would be perceived on return as a loyal ZANU-PF supporter. His Article 3 claim therefore failed. The evidence did not establish family life or private life of sufficient substance with Ms Gomo for Article 8(1), and removal would in any event permit contact by electronic means or correspondence.

• Upper Tribunal (Immigration and Asylum Chamber): a prior Upper Tribunal decision set aside the determination of Designated Immigration Judge A A Wilson for material errors of law and directed a resumed hearing.
• First-tier Tribunal: Designated Immigration Judge A A Wilson dismissed the appellant’s appeal in a determination notified on 14 December 2009.
• Immigration Judge: Immigration Judge Pitt had dismissed an earlier student leave appeal on 20 May 2007. No asylum or human-rights grounds were raised.