COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE CARNWATH
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Mr Sean Wilken (instructed by The Treasury Solicitor) for the respondent
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Lord Justice Potter:
"23. In his witness statement [the appellant] expressed his objections thus:
"I did not want to fight in Chechnya as I have no reason to fight against Chechens and risk my life unnecessarily. My objection to war was therefore on the grounds of my moral conscience. Further I object to the war in Chechnya as one that is politically motivated and draw a distinction between a war that is not about the people as opposed to individual fight for power. I do not object to fighting for my country say, in the situation as in the Second World War as opposed to one in which I am required to be sent into action in Chechnya and kill innocent civilians and destroy property in a reprehensible manner."
24. In oral evidence at the hearing he complained about poor conditions in the army and bullying and beatings. He did not object to performing military service when he first became eligible in 1996 because he did not then think he would be involved in the war in Chechnya, which had by then been in progress for two years.
25. My assessment of the appellant's evidence is that while he objected to serving in Chechnya, he had no general objection to performing military service. (His witness statement contained some phrases indicative of a general objection to war, but my view is that it was only the one in Chechnya that he really objected to becoming involved in.) He does not qualify for refugee status since, according to my reading of his evidence, he has no genuine political, religious, moral or conscientious objection to military action in general. He might nevertheless qualify if the Chechen war has been condemned by the international community as contrary to basic rules of human conduct, but there is no evidence that it ever has been condemned in this way." (emphasis added)
"27.My view of the evidence is that appellant would indeed be liable for a term of imprisonment were he to be prosecuted for desertion on his return. It seems unlikely that he would be executed in view of the absence of any mention in the reports of executions now taking place for desertion. The extra judicial executions of deserters during the period 1994 to 1996 have apparently long since ceased. It cannot be said that imprisonment for a maximum term of seven years for desertion during a war is disproportionate and there is no evidence that any punishment suffered by the appellant would be disproportionately severe for any Convention reason.
29.In her skeleton argument Miss Bagral submitted that the appellant's rights under Articles 2, 3, 6 and 8 would be breached by his return. She referred in particular to conditions suffered by recruits in the army; the nature of the Chechen war; the existence of human rights abuses in Russia; and the ill-treatment to which the appellant would be subjected.
30.While I accept that according to reports the human rights situation in Russia, the war in Chechnya and conditions in the army can be criticised, I am not satisfied that they are such as to render the appellant's return an infringement of any of his human rights."
"Does a particular war need to have been internationally condemned before an asylum seeker can succeed in a claim under the Refugee Convention on the basis of a partial objection to it? If yes, has the conflict in Chechnya been internationally condemned? If no, does it meet whatever is the appropriate test?"
" … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." (emphasis added)
"167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover whether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft evasion does not, on the other hand, exclude a person from being a refugee, and the person may be a refugee in addition to being a deserter or draft-evader.
168. The person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons within the meaning of the definition, to fear persecution.
169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it could be shown that he has a well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution." (emphasis added)
"… that it is plain (indeed uncontentious) that there are circumstances in which a conscientious objector may rightly claim that punishment for draft-evasion would amount to persecution: where the military service to which he was called involves acts, with which he may be associated, which are contrary to basic rules of human conduct: where the conditions of military service are themselves so harsh as to amount to persecution on the facts; where the punishment in question is disproportionately harsh or severe."
see also per Parker LJ at 427 para 143.
"28. The question whether a conflict is or is not internationally condemned may cast light on the Convention issue, but it is not the underlying issue. To make it so would be to interpolate into the text of the Refugee Convention definition of refugee an additional requirement of international condemnation. When assessing risk on the basis of serious human rights violations outside the context of military service cases, decision-makers do not hinge their decisions on whether or not these violations have also been internationally condemned, although such condemnation may be part of the evidence. It would be illogical to behave differently in relation to an overlapping field of public international law governed by the same fundamental norms and values.
29. In the opinion of this Tribunal it would much improve the clarity of decision-making if issues as to whether or not a conflict is internationally condemned are raised only in the context of whether or not there exists sufficient objective evidence of violations of the basic rules of human conduct. International condemnation should not be treated as the underlying basis of exception (b).
[N.B. Exception (b) was earlier defined as "persecution due to the repugnant nature of military duty likely to be performed." – see paragraph 9 of the judgment].
33….Whilst this category may include participation in a war which is internationally condemned, its defining characteristic and hallmark is service in a military which breaches international standards (e.g. by engaging in "activities repugnant to basic rules of human conduct" such as the indiscriminate killing of innocent civilians (Tamerioult (10983)) or "uses methods routinely or without any effective control or attempt at control by the central authority which violates basic human rights, involve unfair treatment of prisoners or otherwise breach international legal standards for the attainment of peace and good order within the country (Tallah  INLR 258). Thus, even if there is no war involved which is internationally condemned, persecution can arise if the claimant faces an obligation to serve as part of a brutal or vicious military which commits crimes against humanity …)"
"3. … Those words of the Handbook have stood for a very long time; although they do not have the force of law, they represent the nearest approach so far to an international code of refugee law, and there are sound reasons of international comity why the legitimacy of a particular campaign should not be passed on by either an individual asylum-seeker or an individual court, but left to the judgment of the international community. We regret we are unable to agree with the approach in Foughali.
4. There is nothing to show that the current conflict in Chechnya has been condemned by any official international body, either as to aims or methods. Probably the most authoritative body in this context is the UN Commission on Human Rights: while the Human Rights Watch Report for 2002 before us shows … that the UNCHR has for two years running expressed (no doubt rightly) "grave concern about human rights violations in Chechnya", notably it fell short of calling for an international commission of enquiry". That is well short of the international condemnation which in our view is required for the appellant to succeed on this point."
"The CIPU report (para 6.6) is in general terms, and mainly relies on the sources we have already quoted. No doubt there is serious bullying in the Russian forces in Chechnya (as regrettably occurs even in much better-regulated armies); however, not only is there no indication of any Refugee Convention reason behind any selection of the victims, but there is nothing to show that service in those forces for any individual is likely to carry any real risk of ill-treatment either amounting to persecution or "inhuman or degrading treatment" contrary to Article 3."
"… we agree with the view expressed by the Tribunal in Foughali that a substantial period of imprisonment (in that case 2-10 years, in this 3-7) cannot be regarded as disproportionate in itself for refusing active military service. It may well be argued that the more dangerous that may be, the more serious a deterrent is required. On the conditions of imprisonment, bad as they are, we see nothing to indicate that they are in any way discriminatorily applied to conscientious objectors. It follows that the appellant cannot succeed on this point under the Refugee Convention, for lack of a Convention reason."
"1. Paragraphs 3 & 4 of the Tribunal's decision – The approach in Foughali was implicitly approved by the Court of Appeal in Sepet & Bulbul at paragraphs 61-62. It is submitted proof of condemnation is not required and the phrase in paragraph 171 of the UNHCR Handbook indicates the need for evidence of the abhorrent nature of the military action. There was ample evidence of the abhorrent nature of the military action in Chechnya before the Tribunal. In the circumstances, the Tribunal was wrong to disagree with the approach in Foughali.
2. Further and/or in the alternative as the position stands, there are now two conflicting decisions of the Tribunal regarding the correct approach to be followed in cases involving persecution due to the repugnant nature of military duty likely to be performed. In the circumstances, the Court of Appeal needs to resolve which approach the court should follow. This is a matter of law and some importance."
"The Tribunal erred in the findings which they made in para 4 of their determination. Those findings fail to take account of relevant evidence and are unreasonable. In particular,
(a)The Tribunal erred in that it had regard only to condemnation by bodies such as the UNCHR (p.95-96). It failed to note the evidence of condemnation by various Non-Governmental Organisations which have an important voice in the international community (e.g. condemnation by Human Rights Watch, p.45 and p.87 ffg, Amnesty International, p.100-15, 109, and Physicians Against Torture p.124 para 16). The views of such bodies are important in assessing whether there has been international condemnation.
(b)The Tribunal erred in that, even if it was right to have regard only to the evidence of state organisations, it failed to consider the rest of the evidence of condemnation by such organisations e.g. the Council of Europe, p.109, 124 para 16, United States, p.122 para 10 etc.
(c)The Tribunal erred in that it failed to refer to any standard by which it was measuring condemnation or to make any adequate allowance for the fact that the international condemnation can occur in diplomatic language.
(d)The Tribunal erred in that it failed to have regard to relevant information and, alternatively, reached an unreasonable conclusion in para 4 for which it gave extremely brief and inadequate reasons. (see generally, p.42-44, 50)."
"There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment: see, for example, Zolfagharkhani v Canada (Minister of Employment and Immigration)  3 FC 540; Ciric v Canada (Minister of Employment and Immigration)  2 FC 65; Canas-Segovia v Immigration and Naturalisation Service (1990) 902 F dd 717; UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras 169, 171."
Lord Bingham did not proceed to examine the proposition stated more closely, because it was not in dispute that the applicants in Sepet could not, on the facts found below, bring themselves within any of those categories.
"They could not be ignored merely on the grounds that this would imply criticism of the legal or social arrangements in another country. The whole purpose of the Convention is to give protection to certain classes of people who have fled from countries in which their human rights have not been respected."
"42. The Tribunal in Krotov also appears to have overlooked that UNHCR's current view of the test adumbrated in paragraph 171 is one which places the main focus on the fact that it must involve conduct contrary to international law (as opposed to condemnation by the international community). In the light of Krotov's apparent call for a reversion to earlier lines of authority, it is perhaps pertinent to reiterate the five main substantive reasons why the international law test is more sound.
43. To hinge the test on international condemnation would mean having to assess military service cases under the Refugee Convention on the basis of the vagaries of international politics, apt to vary depending on shifting alliances and whether other countries surveying the conflict take a particular view.
44. Secondly, a test based directly on international law is more consistent with the overall framework of the 1951 Refugee Convention, whose schema also contains at Art.1F Exclusion Clauses which are directly framed precisely on the basis of international law principles. The presence within the Refugee Convention of the Exclusion Clauses also demonstrates the fallacy behind Krotov's belief that there were sound reasons of international comity why the legitimacy of a particular campaign should not be 'passed on' by an individual court. Art 1F requires such judgments to be passed and no point has ever been taken that it is beyond an individual court to establish involvement even in crimes at the level recognised by the international community through the Geneva Conventions of 1949 as the most heinous known to mankind.
45. Thirdly, the reference to "the basic rules of human conduct" has a distinct legal meaning within international law governing armed conflicts: see e.g. L C Green, The Contemporary Law of Armed Conflict (1996) p.16; C Greenwood, Scope of Application of Humanitarian Law in Handbook of Humanitarian Law in Armed Conflicts, C Dieter Fleck (ed) 1995. Used interchangeably with ius cogens the term has been identified to mean "principles that the legal conscience of mankind deem(s) absolutely essential to co-existence in the international community" (UN Conference on the Law of Treaties, Summary Records of the Plenary Meetings and of the Subcommittee of the Whole at 294: UN doc. A/CONF./39/11 (1969) (statement of Mr Suarez (Mexico).
46. Fourthly, to make the test other than one based on international law would be to subvert the underlying principles of interpretation set out by the House of Lords in Horvath  3 All ER 577, principles which seek to base interpretation of the Refugee Convention on fundamental norms and values drawn from international law sources, in particular international human rights law. As the Tribunal said in Foughali:
"When assessing risk on the basis of serious human rights violations outside the context of military service cases, decision-makers do not hinge their decisions on whether or not these violations have also been internationally condemned, although such condemnation may be part of the evidence. It would be illogical to behave differently in relation to an overlapping field of public international law governed by the same fundamental norms and values."
47. Finally, a test based directly on international law is also required by the need to give the Refugee Convention a contemporary definition based on the very considerable developments in international humanitarian law since 1979. The recent EU texts discussed by their lordships in Sepet and Bulbul (paragraphs 14-16 of the speech of Lord Bingham of Cornhill) clearly reflect an attempt to build on these, by reference to the international law criteria contained in Art.1F.
48. Thus whilst "international condemnation" is serviceable for descriptive purposes, it does not define the category. Strictly speaking international condemnation is only one indicator – albeit a highly relevant one – of whether the armed conflict involved is/would be contrary to international law."
"Where the military service to which he is called involves acts, with which he may be associated, which are contrary to basic rules of human conduct as defined by international law."
"In the case of armed conflict not of an international character occurring in a territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, should in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;"
"Any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."
"1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:
(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatments such as torture, mutilation or any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assaults …"
156 States are parties to Additional Protocol II.
"Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflict, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which in the Court's opinion, reflect what the Court in 1949 called 'elementary considerations of humanity' (Corfu Channel, Merits, I.C.J. Reports 1949, P.22; paragraph 215 above). …
220.The Court considers that there is an obligation on the United States Government in the terms of Article 1 of the Geneva Conventions, to 'respect' the Conventions and even 'to 'ensure respect' for them 'in all circumstances', since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression."
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) 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;"
It can well be argued that just as an applicant for asylum will not be accorded refugee status if he has committed international crimes as defined in (a), so he should not be denied refugee status if return to his home country would give him no choice other than to participate in the commission of such international crimes, contrary to his genuine convictions and true conscience. Such is the approach set out in the E.U. 1996 Joint Position of Council, paragraph 10 of which provides that, whereas conscientious objection should in itself be insufficient to justify refugee status:
" … refugee status may be granted, in the light of all the other requirements of the definition, in cases of punishment of conscientious objection or deliberate absence without leave and desertion on grounds of conscience if the performance of his military duties were to have the effect of leading the person concerned to participate in acts falling under the exclusion clauses in Article 1F of the Geneva Convention."
"For the English court to pronounce upon the validity of a law of a foreign sovereign state within its own territory, so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that state. That would be a breach of the rules of comity." (per Diplock LJ in Buck v Attorney General  Chancery 745, 770)
See also: Campaign for Nuclear Disarmament v Prime Minister of the United Kingdom  EWHC 2759 (QB) at paras 38-40. Nevertheless, as acknowledged in that case (per Richards J at paragraph 61(iii)):
"By way of exception to the basic rule, situations arise where the national courts have to adjudicate upon the interpretation of international treaties e.g. in determining private rights and obligations under domestic law and/or where statute requires decisions to be taken in accordance with an international treaty; and in human rights cases there may be a wider exception."
c.f. R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1598 ("Justiciability depends not on general principle, but on subject matter and suitability in the particular case": paragraph 85).
Lord Justice Rix:
"Given that the presence or absence of international condemnation is highly relevant evidence of whether an armed conflict is contrary to international law, can it be said that the conflict in Chechnya has been internationally condemned?"
Lord Justice Carnwath: