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The decision of the Court of Appeal in R (JS)(Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 364 (now reported at [2009] 2 WLR 17) concerned an application for asylum by member of the Liberation Tigers of Tamil Eelam (“LTTE”).   The issue was the proper interpretation and application of article 1F(a) of the Refugee Convention which provides that the Convention does not apply to any person with respect to whom there are serious reasons for considering that: “he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”   The Court of Appeal quashed the Secretary of State’s decision that Article 1F(a) applied.  Permission to appeal was given by the House of Lords on 15 June 2009.

The claimant was seeking asylum based on his fear that if returned he would face mistreatment due to his race and membership of the LTTE.  He claimed that, if returned, he would face a real risk of unlawful killing and torture or inhuman or degrading treatment or punishment.  The claimant said he had been involved the intelligence division of the LTTE and had commanded an LTTE combat unit.  The defendant rejected his asylum claim on the basis that the LTTE had been responsible for war crimes and crimes against humanity.   Blair J dismissed the claimant’s application for leave to apply for judicial review of that decision.  The Court of Appeal granted leave to apply for judicial review and subsequently the substantive judicial review application.

The defendant did not contend that the claimant had personally participated in any war crime or crime against humanity. The critical question was whether the claimant was guilty under international criminal law of war crimes or crimes against humanity.  Toulson LJ (with whom Waller and Scott Baker LJJ agreed) approached this issue by considering the case law of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) on this issue and the provisions of the ICC Statute on individual criminal responsibility (Art 25), the Canadian case law and the decision of the IAT in Gurung [2002] UKIAT 04870.

The Court of Appeal disapproved of the analysis in Gurung, holding that in order for a person who was a member an organisation committed to the use of violence as a means to achieve its political goals to be guilty of war crimes on the basis of  “joint enterprise liability”,

there first has to be a common design which amounts to or involves the commission of a crime provided for in the statute. The actus reus requirement for criminal liability is that the defendant must have participated in the furtherance of the joint criminal purpose in a way that made a significant contribution to the crime’s commission. And that participation must have been with the intention of furthering the perpetration of one of the crimes provided for in the statute (para 104).

Toulson LJ held that the question for the decision maker will be whether, applying those principles, there were serious reasons to consider the asylum applicant to be guilty of an international crime or crimes.  He concluded that the Secretary of State had failed to address the critical questions.  She acted on a wrongful presumption that the claimant, as a member of the LTTE, was therefore guilty of personal and knowing participation in such crimes.  As a result, the decision was quashed.

The case raises fundamental issues as to the proof of responsibility for war crimes.  These issues have already been considered by the ICTY and the courts and Canada and Australia, JS now provides the highest court in the United Kingdom with its first opportunity to consider this issue.

The Case Details are now available on the Supreme Court website.