UK - Supreme Court, 17 March 2010, JS (Sri Lanka) v Secretary of State for the Home Department, [2010] UKSC 15

The Supreme Court held that mere membership of the LTTE or its ‘Intelligence Division’ was not sufficient to establish that there were serious reasons for considering that the applicant had committed a war crime. His application for asylum should therefore be reconsidered.

The starting point for interpreting the terms crimes against humanity and war crimes should be Articles 7 and 8 of the Rome Statute of the International Criminal Court.  Articles 25 and 30 of the Rome Statute define the circumstances in which individual criminal responsibility for these crimes is established.

Article 12(3) of the Qualification Directive provides that Article 12(2)(a) (which replicates the terms of Article 1F(a))  "applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein." The Supreme Court approved the German Federal Administrative Court’s interpretation of this provision in BVerwG 10C 48.07. That Court had held that:  “the person seeking protection need not have committed the serious non-political crime himself, but he must be personally responsible for it. This must in general be assumed if a person has committed the crime personally, or made a substantial contribution to its commission, in the knowledge that his or her act or omission would facilitate the criminal conduct... Thus this principle covers not only active terrorists and participants in the criminal sense, but also persons who perform advance acts in support of terrorist activities. . .”

The Supreme Court held that “one needs...to concentrate on the actual role played by the particular persons, taking all material aspects of that role into account so as to decide whether the required degree of participation is established”. The Court identified a non-exhaustive list of relevant factors to consider in making this assessment.  They were:

“(i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned; (ii) whether and, if so, by whom the organisation was proscribed; (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it; (v) his position, rank, standing and influence in the organisation; (vi) his knowledge of the organisation's war crimes activities, and; (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes”