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Article Excerpt
CONTENTS
I Introduction II The Facts III The Issues on Appeal IV The Full Court's Approach to the Interpretation of Article 1F of the Refugee Convention A International Instruments since 1951 B The Significance of the Rome Statute in Defining Individual Criminal Responsibility V The Relationship between Article IF of the Refugee Convention and the Rome Statute VI The AAT's Application of the Definitions of Crimes against Humanity and War Crimes VII The Sequel VIII Critique of the Full Court's Decision and Conclusions
I INTRODUCTION
In SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs ('SRYYY'), (1) the Full Court of the Federal Court of Australia addressed questions concerning the application of international humanitarian law to Australian domestic law. In relation to refugees' claims for protection, the Court explored issues concerning the contemporary understanding of the notions of 'crimes against humanity' and 'war crimes', as they affect the domestic application of the Convention relating to the Status of Refugees ('Refugee Convention'). (2) The meaning of these concepts is also relevant to other Commonwealth statutes involving international humanitarian law. (3) In a thoroughly researched judgment, the Court canvassed developments in conventional and customary international humanitarian law and international criminal law relevant to these topics. In so doing, the Court drew on comparative jurisprudence and scholarly writings to a degree that is perhaps unusual in a curial opinion. The Court also addressed the vexed question of the current status in customary international law of the 'defence' of acting under superior orders in response to allegations of individual criminal responsibility.
The primary question posed by SRYYY is as follows: in assessing whether persons should be denied refugee protection on the basis that they have allegedly committed war crimes or crimes against humanity, should their conduct be evaluated in terms of the 1951 concepts of those crimes, or upon the interpretation of those crimes as understood in the light of the Rome Statute of the International Criminal Court ('Rome Statute')? (4) The Court explored this issue in deciding whether the Administrative Appeals Tribunal ('AAT'), a domestic tribunal charged with determining claims to protection, erred in performing its statutory function. (5) The case thus entails issues of both international and administrative law.
SRYYY is not an isolated instance of claims to refugee status raising issues of the claimant's possible ineligibility due to their involvement in war crimes or crimes against humanity. Similar issues have arisen in other decisions of the AAT (6) and the Federal Court. (7) The fact that there are several similar cases stresses that these are issues of concern to the general Australian public. If there are, in Australia, more than a few claimants seeking refugee status who attract allegations of possible complicity in serious offences known to international criminal law, is there an obligation on the Australian Government to go beyond merely rejecting their claims? Should the Australian Government go further and actually institute prosecutions for war crimes or crimes against humanity in such instances? These questions underscore the significance and contemporary relevance of cases like SRYYY. (8)
This case note explores some of the ramifications of the Court's decision, particularly with respect to the growth of customary international criminal law, and comments on the implications for domestic decision-making regarding refugee applications.
II THE FACTS
The appellant, a Sri Lankan national, applied for a protection visa under the Migration Act 1958 (Cth) ('Migration Act') 'on the basis that he was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951'. (9) Under art I A(2) of the Refugee Convention, a person is owed protection obligations if that person has a well founded fear of religious, racial or political persecution, or persecution by reason of their membership of a particular social group, if he or she were to return to their country of nationality.
The applicant claimed that while serving in the Sri Lankan army in Jaffna in late 1999 and early 2000, he had participated in actions against the Liberation Tigers of Tamil Elan ('LTTE'), and that he feared he would be killed if he returned to Sri Lanka. (10) He disclosed that during his service he was required to interrogate Tamil civilians suspected of having links with the LTTE and had engaged in violent acts to extract information from them. (11)
The irony in the circumstances was that the appellant's predicament arose from his own disclosure to the Minister's delegate that he had been engaged in the interrogation of LTTE suspects, which in turn gave rise to his fear of returning to Sri Lanka. That interrogation potentially involved torture or the mistreatment of prisoners that was relevantly criminal. That disclosure contained the seeds of his dilemma. It implicitly set in motion a most attenuated factual, and legally complex, inquiry.
The Minister's delegate refused the appellant's application for a protection visa on the grounds that the Refugee Convention did not apply. (12) This was because the delegate determined that 'there were serious reasons for considering that the appellant was complicit in the crimes against humanity and the war crimes of the Sri Lankan Army' (13) and therefore fell within the exclusionary provision of art 1 F(a) of the Refugee Convention, which reads:
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, 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 AAT reviewed the delegate's decision pursuant to s 500 of the Migration Act, but 'was satisfied that there were serious reasons for considering that the appellant had committed crimes against humanity and war crimes as defined in Arts 7 and 8 of the Rome Statute'. (14) Accordingly, the AAT affirmed the delegate's decision. (15) On appeal to the Federal Court, on the ground that the AAT had erred in law, the Court held that the AAT was entitled to conclude that by reason of art 1F(a), the provisions of the Refugee Convention did not apply to the appellant. (16) The appellant then appealed to the Full Court of the Federal Court. (17)
III THE ISSUES ON APPEAL
The appellant contended that the AAT could not rely on the definitions of 'crimes against humanity' and 'war crimes' in the Rome Statute because the statute only entered into force on 1 July 2002. (18) The Rome Statute therefore could not apply in respect of any acts committed by the appellant prior to that date. The appellant also contended that the AAT had further erred, in particular, by not addressing whether:
* His acts were 'committed as part of a widespread or systematic attack directed against the civilian population pursuant to or in furtherance of' the policy of a state; (19)
* His acts were 'committed in the course of an armed conflict'; (20) and
* The defence of superior orders under art 33 of the Rome Statute (which had not been considered by the AAT) was applicable. (21)
The appellant maintained that by reason of these failures, the AAT had fallen into jurisdictional error by failing to perform the review function statutorily conferred upon it. (22) The Full Court was therefore required to address whether the AAT had erred by:
* Misapplying the definitions of crimes against humanity and war crimes in the Rome Statute; (23) or
* Failing to apply the defence of superior orders set out in art 33 of the Rome Statute. (24)
IV THE FULL COURT'S APPROACH TO THE INTERPRETATION OF ARTICLE 1F OF THE REFUGEE CONVENTION
The Court interpreted art 1F(a) in accordance with the Vienna Convention on the Law of Treaties ('Vienna Convention'). (25) In interpreting art 1F(a), regard could therefore be had to the ordinary meaning of the terms of the Refugee Convention 'in their context and in the light of its object and purpose'. (26) In particular, the Court considered the development of international criminal law following the Second World War to be an important contextual element of the operation of art 1F. (27) While prior to that time international law governing the conduct of armed conflicts had not provided for individual criminal responsibility, by the time that the Refugee Convention was drafted in 1951, 'a number of instruments dealing with international crimes had come into existence'. (28) These included, importantly, the Charter of the International Military Tribunal ('London Charter'), (29) annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis. (30) These instruments provided for the trial of war criminals by the Nuremberg International Military Tribunal ('IMT'). The offences to be tried by the IMT were crimes against peace, war crimes and crimes against humanity. (31) Similar, though not identical, definitions of those kinds of crimes were applicable in relation to the trials of lesser Axis war criminals (32) and also to the trials of Japanese war criminals by the International Military Tribunal for the Far East. (33)
Regarding pleas of obedience to superior orders, art 8 of the London Charter provides that acting pursuant to an order of his or her government or of a superior should not free a defendant from responsibility, but could be...
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