APPEAL No. KK (Article 1F(c) ), Turkey)  UKIAT 00101
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 17 April 2003
Date Determination notified: 7 May 2004
Professor D B Casson (Acting Vice President)
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
II THE FACTS
"(1) The attacks were aimed at legitimate Turkish businesses operating in the United Kingdom.
(2) It is accepted that the arson attacks were committed for a political purpose. It is common ground between the appellant and the Secretary of State that the offences were 'associated with Dev Sol [DHKP] and were manifestly aimed against the Turkish State' since that is part of the basis of the application for asylum: see paragraph 1(b) of Deighton Guedalla's representations dated 24 November 1997. This is significant because it is therefore common ground that the appellant's criminal acts were aimed at a foreign (friendly) state with the intention of influencing the acts of the legitimate government of that foreign State.
(3) The arson attacks were part of a concerted effort by two (and probably more) people. In other words, they were planned and premeditated.
(4) It is also accepted that the flag of the DHKP was placed in the window of the premises as part of the attack by the appellant or his accomplices(s).
(5) The DHKPC (and the PKK) are a terrorist organisation committed to the overthrow of the Turkish Government by violent means. They have a history of carrying out terrorist attacks including murder.
(6) The attack on the Bank appears to have been discovered as soon as it was committed and the appellant was arrested immediately afterwards as he fled from the scene (it appears the car that he and his accomplice had borrowed failed to start). It appears that the flames were extinguished by members of the public. It is a reasonable inference that this was not intended by the appellant – the attack was no doubt carried out at the time it was in part at least to minimise the risk of detection and maximise the chance of causing serious damage.
(7) There is no dispute between the appellant and the Secretary of State that the appellant 'is a Kurdish nationalist with a known history of activism on behalf of the PKK (and in alliance with Dev Sol [DHKP]': see paragraph 1(a) of Deighton Guedalla's representations dated 24th November 1997. it is also correct (and common ground) that the appellant accepts that he supports the PKK which he accepts commits terrorist acts and DHKP/Dev Sol 'with whom he has been to some extent willing to make common cause' and that he justified the use of 'revolutionary force' against the Turkish State, albeit that he also stated he had never been directly involved in terrorist actions: see paragraph 6(b) and (c) of Deighton Guedalla's representations dated 24th November 1997.
(8) It is also common ground that the appellant was an active supporter of the two terrorist organisations prior to his arrest in the UK including propaganda and fundraising activities and 'is manifestly a political animal' who maintained contact with his 'PKK comrades' while in prison: see paragraph 10(a), (b) and (d) of Deighton Guedalla's representations of 24th November 1997.
(9) There is no evidence which shows whether the appellant made any attempt to ascertain whether or not the premises were empty at the time of the attacks. It is apparently accepted that he could not have been sure that persons would not be injured as a result of the attacks or that serious damage would not result: see Deighton Guedalla's letter of 21st May 2000.
(10) It appears the trial Judge stated at the conclusion of the criminal trial that he was 'satisfied that…the detriment to this country of your remaining here is overwhelming'. As such, the trial Judge clearly concluded that the arson attacks were very serious."
"[K] then agreed that he was a Kurd and he was then arrested for arson. He immediately said 'this is political, we were demonstrating, we threw the petrol to demonstrate against the Turkish'. He was then cautioned and repeated 'we were demonstrating. No one was hurt'."
III THE LAW
Relevant Provisions of the Refugee Convention
"Article 1 Definition of the terms 'Refugee'
A For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
(2) … 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 …
F 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, war crime, or a crime against humanity, as defined in international instruments drawn up to make provisions in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
(1) The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
(2) The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
(3) The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Prohibition of expulsion or return ("refoulement")
(1) No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
Burden and Standard of Proof
IV INTERPRETATION OF THE LAW
What persons are capable of committing acts covered by Article 1F(c)?
What are the purposes and principles of the United Nations, and what acts are contrary to those purposes and principles?
The Purposes of the United Nations are:
- To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:
- Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."
"1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.
- In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
"Article 31 General rule of interpretation
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
Resolutions of the Security Council
Security Council Resolution 1269 (1999)
"The Security Council,
Deeply concerned by the increase in acts of international terrorism which endangers the lives and well-being of individuals worldwide as well as the peace and security of all States,
Condemning all acts of terrorism, irrespective of motive, wherever and by whomever committed,
Mindful of all relevant resolutions of the General Assembly, including resolution 49/60 of 9 December 1994, by which it adopted the Declaration on Measures to Eliminate International Terrorism,
Emphasizing the necessity to intensify the fight against terrorism at the national level and to strengthen, under the auspices of the United Nations, effective international cooperation in this field on the basis of the principles of the Charter of the United Nations and norms of international law, including respect for international humanitarian law and human rights.
Determined to contribute, in accordance with the Charter of the United Nations, to the efforts to combat terrorism in all its forms,
Reaffirming that the suppression of acts of international terrorism, including those in which States are involved, is an essential contribution to the maintenance of international peace and security,
- prevent and suppress in their territories through all lawful means the preparation and financing of any acts of terrorism;
- deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition;
- take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not participated in terrorist acts;
Statement by the President of the Security Council
…"The Security Council is deeply concerned by the increase, in many regions of the world, of acts of terrorism in all its forms and manifestations. The Council reiterates its condemnation of all acts of terrorism, irrespective of motive, wherever and by whomever committed. It welcomes the efforts of the General Assembly and other organs of the United Nations in the field of combating international terrorism."….
Resolution 1373 (2001) (adopted on 28 September 2001)
"The Security Council,
… Reaffirming also its unequivocal condemnation of the terrorist attacks which took place in New York, Washington, DC and Pennsylvania on 11 September 2001, and expressing its determinations to prevent all such acts,
Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security,
Acting under Chapter VII of the Charter of the United Nations,
1. Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;
2. Decides also that all States shall:
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Ensure that any person who participates in the financing, planning preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;
3. Calls upon all States to:
(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognised as grounds for refusing requests for the extradition of alleged terrorists;
5. Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations."
Resolutions of the General Assembly
"1. The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States;
2. Acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security, jeopardize friendly relations among States, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and the democratic bases of society;
3. Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them."
It is this Resolution that is the subject of specific reference in the Preamble to Security Council Resolution 1269.
"1. The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed, including those which jeopardize friendly relations among States and peoples and threaten the territorial integrity and security of States;
2. The States Members of the United Nations reaffirm that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations; they declare that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations;
3. The States Members of the United Nations reaffirm that States should take appropriate measures of conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not participated in terrorist acts, considering in this regard relevant information as to whether the asylum-seeker is subject to investigation for or is charged with or has been convicted of offences connected with terrorism and, after granting refugee status, for the purpose of ensuring that that status is not used for the purpose of preparing or organizing terrorist acts intended to be committed against other States or their citizens; …
2. In particular, for purposes of extradition between Contracting States, none of the following offences shall be regarded as a political offence or as an offence inspired by political motives:
(a) An offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970;
(b) An offence within the cope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971;
(c) An offence within the scope of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly on 14 December 1973;
(d) An offence within the scope of the International Convention against the Taking of Hostage, signed at New York on 17 December 1979;
(e) Murder, manslaughter or assault causing serious bodily harm, kidnapping or serious unlawful detention
(f) An offence involving the use of firearms, weapons, explosives or other dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or serious damage to property;
(g) An attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.
Article 3 (...)
3. The Contracting States shall take appropriate measures, before granting asylum for the purpose of ensuring that the asylum seeker has not engaged in terrorist activities, in particular those referred to in Article 2, and, after granting asylum, for the purpose of ensuring that refugee status is not used in a manner contrary to the provisions of this Convention. …"
"… 2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them; …"
"1. Expresses its solidarity with the victims of terrorism;
2. Condemns the violations of the right to live free from fear and of the right to life, liberty and security;
3. Reiterates it unequivocal condemnation of the acts, methods and practices of terrorism, in all its forms and manifestations, as activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences for the economic and social development of States;
4. Calls upon States to take all necessary and effective measures in accordance with relevant provisions of international law, including international human rights standards, to prevent, combat and eliminate terrorism in all its forms and manifestations, wherever and by whomever committed;
5. Urges the international community to enhance cooperation at the regional and international levels in the fight against terrorism, in accordance with relevant international instruments, including those relating to human rights, with the aim of its eradication;
6. Condemns the incitement of ethnic hatred, violence and terrorism;
7. Commends those Governments that have communicated their view on the implications of terrorism in response to the note verbale by the Secretary-General dated 16 August 1999;
8. Welcomes the report of the Secretary-General, and requests him to continue to seek the views of Member States on the implications of terrorism, in all its forms and manifestations, for the full enjoyment of all human rights and fundamental freedoms, with a view to incorporating them in his report;
9. Decides to consider this question at its fifty-sixth session, under the item entitled 'Human Rights questions'."
Other international conventions
The UNCHR's Position
"4. The exclusion clauses need to be interpreted restrictively because they detract from protections that would otherwise have been available to the refugee. As emphasised in paragraph 149 of the UNCHR Handbook, a restrictive interpretation and application is also warranted in view of the serious possible consequences of exclusion for the applicant. The exclusion clauses should be used with utmost caution being, in effect, the most extreme sanction provided for by the relevant international refugee instruments.
5. Article 1F(c) refers to acts contrary to the purposes and principles of the United Nations. The purposes and principles of the United Nations are set out in Articles 1 and 2 of the Charter of the United Nations. They enumerate fundamental principles that would govern the conduct of their members in relation to each other and in relation to the international community as a whole. The very character of the UN's purposes and principles suggests that the violations that would properly fall within Article 1F(c) would be those with an international or global dimension, for example the way the crime was organised, its impact or its long-term objectives. Crimes capable of affecting peace, security and peaceful relations between States would fall within this clause, as would serious and sustained violations of human rights on a massive scale.
6. Given that the applicability of Article 1F(c) is related to the international scale or impact of a given offence, it follows that its use should be confined to exceptional situations and to situations that do not fall within any of the other exclusion clauses. Comments by delegates recorded in the travaux préparatoires support this view. The drafters of the 1951 Convention envisaged this provision as one that would be rarely invoked, and applicable only to individuals who were in a position of power or influence in a State and instrumental in the State's infringement of the UN purposes and principles.
7. While it is fair to expect that 'acts against the principles and purposes of the United Nations' would in the majority of cases be perpetrated by persons linked to State power, recent developments demonstrate that individuals and groups are capable of crimes that generate serious international repercussions. UNHCR is aware that the assertion in Security Council Resolution 1377 (2001) that acts of international terrorism are contrary to the purposes and principles of the Charter of the United nations, may promote the application of Article 1F(c) to a broader circle of persons, in the specific context of acts of international terrorism which may be qualified as serious threats to international peace and security. UNCHR does not rule out the possibility that individuals who are responsible for such acts could come within the ambit of Article 1F(c), particularly where none of the other two exclusion clause are applicable. It has, however, to be borne in mind, that this clause should only be applied to those individuals involved in the most extreme of cases.
8. Applying Article 1F often involves consideration of a myriad of issues, some of them related to criminal law concepts, which require careful and differentiated analysis in this context. In the present case, Mr K has been convicted of criminal acts committed in the United Kingdom (arson and conspiracy to commit arson) and was sentenced to 4 years imprisonment. Whilst the crimes committed by Mr K are reprehensible, UNCHR does not agree that these crimes fall within the category of acts falling under Article 1F(c)."
"The Scope of Article 1F(c) of the 1951 Convention
Article 1F(c) excludes from protection as refugees persons who have been 'guilty of acts contrary to the purposes and principles of the United Nations'. Paragraph 163 of UNCHR's Handbook (quoted in the Adjudicator's decision) notes that the purposes and principles are set out in the preamble and Articles 1 and 2 of the Charter of the United Nations. These provisions are couched in broad and general terms. They do not specify the particular acts that would violate the purposes and principles of the United Nations. However, they explicitly suggest that the matters which engage the United Nations are those which are pervasively global in their impact.
Whilst the work of the UN is carried out in accordance with its purposes and principles, this cannot mean that every act which obstructs the UN's broad aims can be interpreted as falling within Article 1F(c). Similarly, while Security Council and General Assembly resolutions and multilateral conventions convened and adopted under the aegis of the UN are carried out in accordance with its purposes and principles, it is incorrect to equate every action contrary to such instruments as falling within Article 1F(c). In UNCHR's opinion, such an approach to Article 1F(c) would be misguided and could result in giving it a wider scope than is appropriate.
The very character of the UN's purposes and principles suggests that the violations that would properly fall within Article 1F(c) would be those with a potentially international or global impact. Crimes capable of affecting international peace and security would fall within this clause, as would serious and sustained violations of human rights on a massive scale. Given that the applicability of Article 1F(c) is related to the international scale and universal impact of a given offence, it follows that its use should be confined to exceptional situations that do not fall within any of the other exclusion clauses. Comments by delegates recorded in the travaux préparatoires support this view.
UNHCR is aware that the international materials cited by the Adjudicator, notably Article 1 of Resolution 49/60 of 9 December 1994 and Security Resolution 1373 (2001) of 28 September 2001 assert that 'acts, methods and practices of terrorism are contrary to the purposes and principles of the UN' and that 'knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the UN'. However, UNHCR is of the view that all 'terrorist acts', bearing in mind that an international definition has yet to be agreed by the international community, should not automatically be seen to fall within Article 1F(c). Such acts would normally be considered under Article 1F(b). In this connection, it should also be recalled that only terrorist acts which generate serious international repercussions – in the words of General Assembly resolution 51/210 – 'acts which jeopardise friendly relations among States and peoples and threaten the territorial integrity and security of States' – are considered as contrary to the purpose and principles of the United Nations.
As Articles 1 and 2 of the UN Charter essentially address themselves to States, it would seem that persons who are or have been in positions of power in their countries or in state-like entities are capable of violating them. This view is reflected in paragraph 163 of the UNHCR Handbook. However, UNHCR accepts that under certain circumstances and in the light of recent experiences, certain acts committed by persons not associated with any State or State-like entity may engage the purposes and principles of the UN. Such circumstances could include extreme acts of egregious terrorism threatening international peace and security. Such acts may, however, also be considered under Article 1F(a) or Article 1F (b).
Application of Article 1F(c) to the Appellant
We understand that the appellant was convicted of arson and conspiracy to commit arson and sentenced to 4 years' imprisonment. UNHCR would like to reiterate that, irrespective of whether the acts committed by the appellant can be categorised as 'terrorist' or not, UNHCR is of the view that these acts fall short of the particularly egregious acts of terrorism which have international repercussions envisaged by Article 1F(c).
In this respect, UNHCR would also make a comment on expiation. UNHCR is aware that the exclusion clauses in Article 1F are silent on this point. Bearing in mind that the rationale of the exclusion clauses is to deny international protection to "persons undeserving of international protection", UNCHR is of the view that a person who has served a sentence for a crime should not be excluded unless the crimes for which he is convicted is of such a truly heinous nature as to justify continued denial of international protection.
In conclusion, UNHCR would like to reiterate its opinion that although the crimes committed by the appellant in the present appeal are reprehensible, UNHCR does not agree that these crimes fall within the category of acts falling under Article 1F(c) of the 1951 Convention relating to the Status of Refugees."
"Please refer to your letter of 24 April 2003 in which you request UNHCR to respond to a query raised by the Immigration Appeal Tribunal (IAT) regarding a particular sentence in UNCHR's letter of 20 November 2002. We understand that the IAT seeks clarification on UNHCR's use of the word "only" in the following sentence:
'In this connection, it should also be recalled that only terrorist acts which generate serious international repercussions – in the words of General Assembly resolution 51/210 – "acts which jeopardise friendly relations among States and peoples and threaten the territorial integrity of and security of States" – are considered as contrary to the purposes and principles of the United Nations'. (Emphasis added).
We further understand that in raising this query, the IAT had in mind:
(a) The 1994 Declaration on Measures to Eliminate International Terrorism (approved by general Assembly resolution 49/60, point l(1) which condemns "all" acts of terrorism "… including those which jeopardise friendly relations among States…); (Emphases supplied in your letter of 24 April 2003); and,
(b) The 1997 Convention on the Suppression of Terrorist Bombings (adopted by General Assembly resolution 52/164) and the 1999 International Convention for the Suppression of the Financing of Terrorism (adopted by General Assembly resolution 54/109).
In your letter, you point out that neither of these Conventions contemplate any limit on the range of terrorist activity covered other than as set out in each in Article 3. You mention that the terms of Article 3 do not apply to the instant case.
We would draw the IAT's attention to the following considerations:
Our use of the word 'only' in our letter of 20 November 2002, should be understood within the particular context in which it was used. In the paragraph in question, UNHCR was at pains to describe the circumstances under which it might be appropriate to invoke exclusion under Article 1F(c) of the 1951 Convention relating to the Status of Refugee in preference to the other exclusion clauses. We stressed that the key words in Article 1F(c) – "acts contrary to the purposes and principles of the United Nations" should be construed restrictively, and that the application of Article 1F(c) should be reserved for situations where an act and the consequences thereof satisfy a high threshold. This threshold should be defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long term objectives, and the implications for international peace and security. Crimes capable of affecting peace, security and peaceful relations between States would fall within Article 1F(c), as would serious and sustained violations of human rights.
Thus, the assertion – even in a UN instrument – that an act is 'terrorist' in nature would not by itself suffice to warrant the correct application of Article 1F(c), not least because "terrorism" is without clear or universally agreed definition. Rather than focus on the terrorism" label, a more reliable guide to the correct application of Article 1F(c) is the extent to which the act in question impinges on the international plane – in terms of its gravity, international impact, and implications for international peace and security. In UNHCR's view, only terrorist acts that are distinguished by these larger characteristics should qualify for exclusion under Article 1F(c).
This view is consistent with the above-cited General Assembly Declarations (GAR 49/60 of 1994 and GAR 51/210 of 1996) and the Conventions of 1997 and 1999. These instruments express the resolve of the international community to condemn and eliminate international terrorism, to suppress terrorist bombings, and to curb the financing of terrorist activities. Given that the object of these instruments is to denounce terrorism and to identify and punish its perpetrators, it is quite appropriate that the range of activities under their remit should be cast in the broadest possible terms. Entirely different – and more restrictive – considerations apply to delineating the proper scope of exclusion under Article 1F(c). There may be overlap between the subject matter of the instruments cited above and the acts that should properly fall within the scope of Article 1F(c). There is however, no exact congruence between them.
We wish at this stage to reiterate a point we have consistently argued – that the key words in Article 1F(c) – "act contrary to the purposes and principles of the United Nations" should be restrictively construed for the specific purposes of that particular exclusion provision. We recognise that the principles and purposes of the UN are reflected in a myriad of ways, for example in multilateral conventions adopted under the aegis of the UN General Assembly and in Security Council resolutions. We acknowledge that new developments have taken place since the UN Charter was adopted and that the scope of the purposes and principles of the UN should be considered in the light of contemporary challenges. These developments cannot however justify a simple equation between acts that violate any UN instrument and acts that properly fall within the ambit of Article 1F(c) and care should be taken to avoid a simplistic approach.
UNHCR accepts that there are situations where a clear link can be established between the contravention of a UN instrument, the violation of the purposes and principles of the UN and exclusion under Article 1F(c). For example, in the aftermath of the attacks of 11 September 2001, the UN Security Council has reaffirmed in resolutions 1373 (2001) and 1377 (2001) that acts of international terrorism are a threat to international peace and security and are contrary to the purposes and principles of the UN. These resolutions have called on States not to provide refuge to terrorists, in particular SCR 1373 (2001 which calls for appropriate measures with regard to asylum seekers. Given the general approach to Article 1F(c), as described in previous communications to the Tribunal on this case, acts of international terrorism of type envisaged by these particular resolutions may indeed fall within the scope of Article 1F(c).
The position is much less clear where the UN instruments in question are non-binding resolutions with no law making authority, or where the interpretation of the UN instrument has to be informed by the terms of an existing UN treaty, (in this case, the 1951 Convention), or where the UN instrument in question does not evince a clear intention to override the provisions of an existing UN treaty. The application of Article 1F(c) should be informed by such considerations as well as by the objects and purposes of that provision.
In conclusion, UNHCR remains of the view that to directly equate any act contrary to UN instruments with exclusion under Article 1F(c) is inconsistent with the object and purpose of Article 1F(c). Article 1F(c) is triggered only in extreme circumstances by activity, which attacks the basis of the international community's coexistence under the auspices of the United Nations. The very nature of the UN's purposes and principles suggests that acts which fall under 1F(c) must have an international dimension, for example, in terms of the manner the crime is organised, its impact or its long-term objectives. Thus crimes capable of affecting peace, security and peaceful relations between States would fall within this clause, as would serious and sustained violations of human rights."
"2. The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied "scrupulously" to protect the integrity of the institution of asylum, as is recognised by UNCHR's Executive Committee in Conclusion No 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner.
C. Temporal Scope
5. Articles 1F(a) and 1F(c) are concerned with crimes whenever and wherever they are committed. By contrast, the scope of Article 1F(b) is explicitly limited to crimes committed outside the country of refuge prior to admission to that country as a refugee.
D. Cancellation or revocation on the basis of exclusion
6. Where facts which would have led to exclusion only come to light after the grant of refugee status, this would justify cancellation of refugee status on the grounds of exclusion. The reverse is that information casting doubt on the basis on which an individual has been excluded should lead to reconsideration of eligibility for refugee status. Where a refugee engages in conduct falling within Article 1F(a) or 1F(c), this would trigger the application of the exclusion clauses and the revocation of refugee status, provided all the criteria for the application of these clauses are met.
F. Consequences of exclusion
8. Although a State is precluded from granting refugee status pursuant to the 1951 Convention or the OAU Convention to an individual it has excluded, it is not otherwise obliged to take any particular course of action. The State concerned can choose to grant the excluded individual stay on other grounds, but obligations under international law may require that the person concerned be criminally prosecuted or extradited. A decision by UNHCR to exclude someone from refugee status means that that individual can no longer receive protection or assistance from the Office.
II. SUBSTANTIVE ANALYSIS
C. Article 1F(c): Acts contrary to the purposes and principles of the United Nations
17. Given the broad, general terms of the purposes and principles of the United Nations, the scope of this category is rather unclear and should therefore be read narrowly. Indeed, it is rarely applied and, in many cases, Article 1F(a) or 1F(b) are anyway likely to apply. Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community's coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights, would fall under this category. Given that Articles 1 and 2 of the United Nations Charter essentially set out the fundamental principle States must uphold in their mutual relations, it would appear that in principle only persons who have been in positions of power in a State or State-like entity would appear capable of committing such acts. In cases involving a terrorist act, a correct application of Article 1F(c) involves an assessment as to the extent to which the act impinges on the international plane – in terms of its gravity, international impact, and implications for international peace and security.
E. Grounds for rejecting individual responsibility
21. Criminal responsibility can normally only arise where the individual concerned committed the material elements of the offence with knowledge and intent. Where the mental element is not satisfied, for example, because of ignorance of a key fact, individual criminal responsibility is not established. In some cases, the individual may not have the mental capacity to be held responsible a crime, for example, because of insanity, mental handicap, involuntary intoxication or, in the case of children, immaturity.
22. Factors generally considered to constitute defences to criminal responsibility should be considered. For example, the defence of superior orders will only apply where the individual was legally obliged to obey the order, was unaware of its unlawfulness and the order itself was not manifestly unlawful. As for duress, this applies where the act in question results from the person concerned necessarily and reasonably avoiding a threat of imminent death, or of continuing or imminent serious bodily harm to him or herself or another person, and the person does not intend to cause greater harm than the one sought to be avoided. Action in self-defence or in defence of others or of property must be both reasonable and proportionate in relation to the threat.
23. Where expiation of the crime is considered to have taken place, application of the exclusion clauses may no longer be justified. This may be the case where the individual has served a penal sentence for the crime in question, or perhaps where a significant period of time has elapsed since commission of the offence. Relevant factors would include the seriousness of the offence, the passage of time, and any expression of regret shown by the individual concerned. In considering the effect of any pardon or amnesty, consideration should be given to whether it reflects the democratic will of the relevant country and whether the individual has been held accountable in any other way. Some crimes are, however, so grave and heinous that the application of Article 1F is still considered justified despite the existence of a pardon or amnesty.
F. Proportionality considerations
24. The incorporation of a proportionality test when considering exclusion and its consequences provides a useful analytical tool to ensure that the exclusion clauses are applied in a manner consistent with the overriding humanitarian object and purpose of the 1951 Convention. The concept has evolved in particular in relation to Article 1F(b) and represents a fundamental principle of many fields of international law. As with any exception to a human rights guarantee, the exclusion clauses must therefore be applied in a manner proportionate to their objective, so that the gravity of the offence in question is weighed against the consequences of exclusion. Such a proportionality analysis would, however, not normally be required in the case of crimes against peace, crimes against humanity, and acts falling under Article 1F(c), as the acts covered are so heinous. It remains relevant, however, to Article 1F(b) crimes and less serious war crimes under Article 1F(a).
III. PROCEDURAL ISSUES
34. The burden of proof with regard to exclusion rests with the State (or UNCHR) and, as in all refugee status determination proceedings, the applicant should be given the benefit of the doubt. Where, however, the individual has been indicted by an international criminal tribunal, or where individual responsibility for actions which give rise to exclusion is presumed, as indicated in paragraph 19 of these Guidelines, the burden of proof is reversed, creating a rebuttable presumption of excludability."
The United Kingdom Authorities
"A crime is a political crime for the purposes of Article 1F(b) of the Geneva Convention if, and only if:
(1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and
(2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the Court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public."
"'… serious non-political crime' as a matter of interpretation of the Convention and of the Rules includes acts of violence which are intended or likely to create a state of terror in the minds of persons whether particular persons or the general public and, which cause or are likely to cause, injury to persons who have no connection with the Government of the state. This is not intended to be a complete definition. There may be other acts which constitute terrorism which are far outside the concept of political crime … ."
"I am however more persuaded by the idea of writing 'terrorism' into the modern concept of the political crime. To accept this requires, as must any model which involves departure from the concept of incidence, an important step: the recognition that some characteristic of the crime can disconnect it from its political origins, using the word in its widest sense. Once this step is taken, as I believe it must be, I would prefer terrorism to atrocity as a test, because it concentrates on the method of the offence, rather than its physical manifestation. The terrorist does not strike at his opponents: those whom he kills are not the tyrants whom he opposes, but people to whom he is indifferent. They are the raw materials of a strategy, not the objectives of it. The terrorist is not even concerned to inspire terror in the victims, for to him they are ciphers. They exist only as a means to inspire terror at large, to destroy opposition by moral enfeeblement, or to create a vacuum into which the like-minded can stride. It seems to me in a real sense that a political crime, the killing of A by B to achieve an end, involves a direct relationship between the ideas of the criminal and the victim, which is absent in the depersonalised and abstract violence which kills twenty, or three, or none, it matters not how many or whom, so long as the broad effect is achieved. I find it hard to believe that the human rights of the fugitive could ever have been intended to outweigh this cold indifference to the human rights of the uninvolved.
There are two further reasons to think that this is the right answer. First, there is detectable in the international legislation and the debates surrounding it in a recognition that terrorism is an evil in its own right, distinct from endemic violence, and calling for special measures of containment. Secondly, the law of asylum fundamentally affects the lives of human beings, and yet must be applied at speed. Whether employed individually or as parts of a battery of tests, criteria such as remoteness, causation, atrociousness and proportionality seem too subjective to found the consistency of decision which must surely be essential in a jurisdiction of this kind. By contrast, once it is made clear that terrorism is not simply a label for violent conduct of which the speaker deeply disapproves, the term is capable of definition and objective application. I quote again from the League of Nations Convention of 1937: '"Acts" of terrorism mean criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public'. The Convention never came into force, but the definition is serviceable, and I am content to adopt it."
"65(a) Requirement for State Authority or Position
We consider that Article 1F(c) is not limited in the sense contended for by the Appellants. We have reached this conclusion primarily because Article 1F(c) itself does not expressly limit those who may be excluded from the protection afforded by the Refugee Convention to those in positions of power who have ordered or lent authority to state actions, and there is no other provision in the Refugee Convention suggesting any such limitation. Further, we accept the submission of the Secretary of State that neither the Handbook on Procedures and Criteria for determining refugee status nor the Joint Position (96/196/JHA) contain any firm statement that there is any such limit. Moreover, as the Secretary of State submits, and as we accept, the exclusions in Articles 1F(a) and 1F(b) are plainly not limited to any such category of individual, even though they (and Article 1F(a) in particular) may clearly be committed by persons in such a category, which suggests that Article 1F(c) allows for the exclusion of individuals outside that category, even if it also includes individuals within it.
(b) Political Crimes/Self Determination
(i) We consider that there is no 'political crime' exception to Article 1F(c). Article 1F(b) expressly refers to 'non-political crime'. This expression could have been included in Articles 1F(a) and 1F(c). It was not. Many examples of conduct which fall within the plain words of Articles 1F(a) and 1F(c) could be regarded as 'political'. Had the drafters of the Convention intended there to have been the limitation suggested by the Appellants in either of these provisions then it is surprising that they did not express it as they did in Article 1F(b). We accept the Secretary of State's submission in this respect.
(ii) [The Commission also decided that for the purposes of the appeal before them, insofar as the definition of 'terrorism' was in issue, the appropriate definition was that found in clause 1 of the Terrorism Bill then before Parliament (which became the Terrorism Act 2000).]
We accept that the Handbook and the EU Joint Position suggest that the principle of 'proportionality' should be applied to Article 1F(b). However, neither of these sources suggests that it should be applied to Article 1F(c), or indeed to the related Article 1F(a). We accept the submission of the Secretary of State that there being no express suggestion of 'proportionality' in relation to any of the three limbs of Article 1F, then it must be open to doubt whether the principle applies in respect of 1F(b). 1F(b) is in any event irrelevant for the determination of the instant case. We therefore give Article 1F(c) what we consider to be its plain and clear meaning and proceed on the basis that no principle of 'proportionality' is to be adopted in relation to it."
"67. Were those acts contrary to the purposes and principles of the United Nations? We have been supplied with a vast quantity of written material. We do not propose to rehearse its contents in this Determination. It is sufficient to refer only to 'The Declaration of Measures to Eliminate International Terrorism' (the United Nations General Assembly Resolution 49/60), which was adopted on 9th December 1994 by all 185 member states without opposition and reaffirmed in 1996 and 1999. It expressly declared that:
'Acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security, jeopardise friendly relations among states, hinder international co-operation and aim at the destruction of human rights, fundamental freedoms and the democratic bases of society.'
68. We accept the Secretary of State's submission that this Declaration and the material supplied to us show beyond doubt that terrorism is contrary to the purposes and principles of the United Nations. It follows that the Appellants 'terrorist acts' exclude them from the Refugee Convention by virtue of Article 1F(c) and we so find."
"Article 1F(c) of the Convention is potentially very wide. … Once rarely used, the exception is now frequently invoked; its interpretation and development are likely to vary, however, given the disparate interests of the sovereign States members of the United Nations."
That is the concluding passage of the author's discussion of Article 1F(c) in this work, which is sometimes regarded as authoritative. The only case cited in the footnote to that paragraph is a Canadian one, Pushpanathan, which we shall consider shortly. In the preceding pages of analysis, the author discusses "the drafting history of Article 1F(c)", "the purposes and principles of the United Nations", and "individuals and persons acting on behalf of the state". It is the second of those which is of particular interest to us. No cases are cited there. It was for this reason that we invited the parties to see if the statement that "the exception is now frequently invoked" could be elaborated in any way.
"[T]he reference to Article 1F(c) now being 'frequently invoked' is not free of ambiguity, particularly insofar as it may give the impression that, in 1996, it was being invoked frequently and successfully in proceedings for the determination of refugee status. This was not the case; exclusion under Article 1F(c) was still relatively rare, although it appeared to me, on the basis of developments in a number of jurisdictions, that it was beginning to attract increasing attention, particularly as regards asylum seekers who appeared to have been associated with persecution in their country of origin.
I have reviewed my manuscript notes from the period 1994-1996 and I have not found any other instances in which Article 1F(c) was applied to individuals not themselves falling within the three general categories listed on page 114 of the Refugee in International Law [that is to say policy makers, officials and government members implementing policies, and 'individuals, whether members of organisations or not, who, for example, have personally participated in the persecution or denial of the human rights of others']."
The remainder of the reply is an indication that Article 1F(c) should be restrictively interpreted and restrictively applied. Again, no decided cases are cited. The inevitable conclusion is that not only were there no cases extending the ambit of Article 1F(c), but there were also no decisions restricting its ambit: if there had been, no doubt they would have been cited. It would appear to follow that the assertion that the exception was in 1996 "frequently invoked" is far from easy to understand.
"(2) The purpose of Art 1 of the 1951 Convention was to define a refugee. The purpose of Art 1F, however, was to identify persons who were ab initio excluded from that definition and not to protect the society of refuge from dangerous refugees. By contrast, the purpose of Art 33 was to allow for the refoulement of a bona fide refugee to his native country where he posed a danger to the security of the country of refuge, or to the safety of the community; its function was not to define a refugee.
(3) Article 1F(c) excluded from the definition of 'refugee' those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting. As Art 1 was concerned with the recognition of refugee status, any act committed prior to the obtaining of refugee status, whether within or outside the country of refuge, could be relevant to Art 1F(c). The category of persons covered by Art 1F(c) was not, however, restricted to persons in positions of power. Although it may be more difficult for a non-state actor to perpetrate human rights violations on a scale amounting to persecution without the State thereby implicitly adopting those acts, the possibility should not be excluded.
(4) In determining whether an act is one which is 'contrary to the purposes and principles of the United Nations' as set out in Art 1F(c), the guiding principle was that Art 1F(c) was applicable where there was consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognised as contrary to the purposes and principles of the UN. Where the rule which had been violated was very near the core of the most valued principles of human rights and was recognised as immediately subject to international condemnation and punishment, then even an isolated violation, particularly where it related to an offence which attracted universal jurisdiction, could constitute 'persecution', depending on the facts, including the extent of the applicant's complicity. In the absence of such an international consensus or explicit recognition, individuals should not be deprived of the essential protections contained in the 1951 Convention for having committed those acts. Such an interpretation of Art 1F(c) did not preclude a State from taking appropriate measures to ensure the safety of its citizens as Art 33 allowed for the expulsion of individuals who presented a threat to a State's society.
(5) Article 1F(b) of the 1951 Convention was generally meant to prevent ordinary criminals from avoiding extradition by seeking refugee status, but this exclusion was limited to cases where serious crimes had been committed before entry into the State of asylum. Given the precisely drawn scope of Art 1F(b), limited as it was to 'serious' 'non-political crimes' committed outside the country of refuge, the unavoidable inference was that serious non-political crimes were not included in the general, unqualified language of Art 1F(c). Article 1F(b) identified non-political crimes committed outside the country of refuge, while Art 33(2) addressed non-political crimes committed within the country of refuge. The presence of Art 1F(b) therefore, indicated that even a serious non-political crime, such as drug trafficking, was not covered by Art 1F(c).
(6) Even though international trafficking in drugs was an extremely serious problem that the UN had taken extraordinary measures to eradicate, it was not clear that the international community recognised drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution or that it was to be considered contrary to the purposes and principles of the UN, and individuals should not, therefore, be deprived of the essential protections contained in the Convention for having committed those acts."
The Secretary of State's Arguments
R1. The Claimant had committed acts of terrorism.
R2. Acts of terrorism are contrary to the purposes and principles of the United Nations.
R3. Therefore the Claimant is excluded by Article 1F(c).
The Respondent's Arguments
C1a There is no international or internationally agreed definition of terrorism such as to give meaning and force to the Secretary of State's arguments.
C1b In so far as there are any hints of an international sense of the word "terrorism", they seem to indicate that applies only to acts committed by states and acts of the utmost seriousness.
C1c There is therefore no basis for characterising the claimant's crimes as terrorist in the sense required for the Secretary of State's arguments.
C2a The Secretary of State therefore needs a freestanding reason for saying that the Claimant's crimes are contrary to the purposes and principles of the United Nations. None can be identified.
C2b The exclusion clauses are to be interpreted and applied and restrictively.
C3a In any event, Section 1F(c) should not be applied so as to exclude the Claimant from refugee protection, because he has expiated his crime by suffering full penalty under the criminal law.
C3b In any event, Article 1F(c) does not apply to the claimant because it has no application to acts committed after a person becomes entitled to the benefits of the Refugee Convention.
VI OUR TASK
Restrictive Interpretation and Restrictive Application
"Bearing in mind the need to adopt a purposive approach to the interpretation of the exclusion clauses, they are to be applied restrictively."
The meaning of "Terrorism"
The structure and meaning of Article 1F
Proportionality and Expiation
The Characterisation of the Offences
C M G OCKELTON