France - Council of State, 26 January 2011, Mr. A., n°312833

Country of Decision:
Country of Applicant:
Date of Decision:
26-01-2011
Citation:
Conseil d’Etat, 26 janvier 2011, M.A., n°312833
Court Name:
Council of State/ Conseil d’Etat
National / Other Legislative Provisions:
UN Convention on Genocide 1948
UN Convention on Genocide 1948 - Art 3
France - Law no. 526893 of 25 July 1952
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Headnote: 

Passive complicity in genocide includes a material element and an intentional element, as active complicity does.

Facts: 

The applicant, a Rwandan curate of Hutu origin, had his asylum application rejected by the Office for the Protection of Refugees and Stateless Persons (Ofpra) and then by the Cour Nationale du Droit d’Asil (National Asylum Court) (CRR / CNDA) on the grounds of exclusion from refugee status. The applicant requested the Council of State to quash the decision of the CRR/CNDA and to grant refugee status.

Decision & Reasoning: 

Firstly, the Council of State recalled the provisions of Article 1 F (a) of the 1951 Refugee Convention and of Article III of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

Then the Council of State recalled that the CRR/CNDA concluded, from the various circumstances of the case, that there were serious reasons for considering that the applicant was personally guilty of complicity in the genocide committed in Rwanda in 1994. The Council of State considered that these circumstances did not establish that the applicant intended to allow or to facilitate the carrying out of the crime, or that he knowingly failed to prevent it or to dissociate himself from it. Therefore, the Council of State found that the CRR/CNDA made a legal error and that, consequently, the request of the applicant to quash the challenged decision was well-founded.

On the substance, the Council of State recalled that it was not disputed that the applicant has a well-founded fear of being persecuted for reasons of his ethnic origin, sacerdotal functions and imputed political opinions in case of return to Rwanda. The Council of State considered that the facts of the case did not establish serious reasons for considering that the applicant intended to allow or to facilitate the carrying out of the crimes or that he knowingly failed to prevent them or to dissociate himself from them.

The Council of State therefore considered that the circumstances of the case, as reported by the parties, did not show any serious reason for considering that the applicant was personally guilty or could be considered as an accomplice of a crime of genocide within the meaning of Article 1 F (a) of the 1951 Refugee Convention. The applicant cannot be excluded from refugee status for this reason.

The Council of State concluded that the applicant had to be recognised as a refugee under Article 1 of the 1951 Refugee Convention.

Outcome: 

The decision of the CRR/CNDA was quashed.
The decision of the Ofpra was quashed.
The applicant was granted refugee status.

Observations/Comments: 

In this decision, the Council of State gives a new definition of complicity in genocide, by stating that it can be active or passive, i.e. by abstention.

In a previous decision also relative to the application of Article 1 F (a) to a Rwandan national of Hutu origin, the Council of State did not mention this kind of complicity by abstention in its definition of an accomplice (see CE, 14 juin 2010, M.A., n°320630,  also summarised in this database). At that time, the Council of State restricted itself to active complicity, by outlining its two components, i.e. a material element and an intentional element.

Like active complicity, passive complicity relies on a material element and an intentional element. In order not to be excluded from refugee status, the applicant must, in this case, establish that he/she carried out positive material acts in order to prevent the crime or dissociate him/herself from it. In addition, in order to be excluded from refugee status, the applicant must have knowingly behaved, i.e. have refrained from acting while he/she knew the consequences of the perpetrated acts. Knowledge and intention are required in order to conclude that there is passive complicity of genocide.

It is worth noting that the relevant international instruments do not mention complicity by abstention, for example the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the Statute of International Criminal Tribunal for Rwanda, or the Statute of the International Criminal Court.

In a previous decision, the Council of State already used an extensive notion of complicity taking into account both active and passive complicity, but it related to the application of the exclusion clause of Article 1 F (b) of the 1951 Refugee Convention (see CE, 7 avril 2010, M.B., n°319840, also summarised in this database).

Source : Dictionnaire Permanent du Droit des Etrangers, March 2011.

NB: The CNDA (National Asylum Court) was called CRR (“Commission des recours des réfugiés”) until the Act n°2007-1631 of 20 November 2007.