- Program in Refugee and Asylum Law
- Additional Resources
The principal cause of refugees in the world today is armed conflict. In 2014, just three countries consumed by armed conflict accounted for more than half (53%) of the world’s refugees: Syrian Arab Republic (3.88 million); Afghanistan (2.59 million); and Somalia (1.11 million). The extent of armed conflict is so vast and broad that, over the last thirty years, it has come to cover more than three quarters of the globe. As armed conflict has increased, the number of the world’s refugees and forcibly displaced has inexorably increased as well. Furthermore, modern warfare has been characterized by a blurring of the line between combatant and civilian as well as of the important distinction between direct casualties, those who are killed or injured due to the fighting, and indirect casualties, those who are killed or injured due to the consequences of war. Indirect casualties include, “for example, imprisonment, abuse, starvation, and the destruction of infrastructure and services”. Indeed, it has been noted that a number of these new wars have been waged not only amongst civilians but also against civilians.It has been further noted that,
Modern warfare is often less a matter of confrontation between professional armies than one of grinding struggles between military and civilians in the same country, or between hostile groups of armed civilians. More and more wars are essentially low-intensity internal conflicts, and they are lasting longer. The days of set-piece battles between professional soldiers facing off in a field far from town are long gone. Today, wars are fought from apartment windows and in the lanes of villages and suburbs, where distinctions between combatant and non-combatant quickly melt away.
Civilian fatalities in wartime climbed from 5 per cent at the turn of the century, to 15 per cent during World War I, to 65 per cent by the end of World War II, to more than 90 per cent in the wars of the 1990s.
The number of civilian casualties in the Syrian civil war currently stands at 230,000 and the figures for August 2015 claim 2040 deaths, with 40% of being women and children. In addition, consider the forcible conscription of children into rebel armed movements or, in fact, state military forces. There are an estimated 300,000 child soldiers who are active in armed conflicts around the world. The forcible conscription of children in armed forces is considered a war crime. This is occurring presently in all parts of the world and by combatants on all sides of conflict.
Given the prevalence of armed conflict and its essentially civilian nature, more and more individuals have the potential of falling within the provisions of Article 1F(a) of the 1951 Convention relating to the Status of Refugees (“Convention”), depending on how international and national courts interpret the breadth and scope of Article 1F(a). As such, what constitutes “complicity” in the commission of war crimes or crimes against humanity will have an important bearing on who is accepted as a Convention refugee. The focus of this article on Article 1F(a) is on “complicity” and how this is applied and interpreted by some of the leading jurisdictions in international refugee law.
Varied Meanings of Complicity
It is well understood that not everyone requires or should receive refugee protection. Article 1F(a) calls for the exclusion from Convention refugee status, when there are “serious reasons for considering” those persons who have committed either “a crime against peace, a war crime, or a crime against humanity.” Failure to exclude such persons would be to undermine the integrity and legitimacy of the international refugee protection system itself. As Justice Bastarache stated so succinctly in the 1998 Supreme Court of Canada (SCC) majority judgment in Pushpanathan,
The rationale [for the Exclusion Clauses] is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees….[A]ctions which deny human dignity in any key way and the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of Convention refugee.
Indeed, the so-called “Exclusion Clauses” of Article 1F, are an integral part of the Convention for the obvious reason that most of the world’s refugees are the result of wars, protracted armed conflicts, most typically civil wars, and other forms of extreme violence. Consequently, Article 1F(a) excludes those persons who have committed a “crime against peace, a war crime, or a crime against humanity.” All of which are contrary, fundamentally, to what the United Nations stands for and is working so hard to achieve. Clearly, those who are responsible for persecuting others should not have the benefit of a Convention that is devoted to the protection of those whom they have persecuted. Those who are responsible for crimes against peace, war crimes, and crimes against humanity need not only be the persons who actually committed these heinous international crimes, however, but all those who contributed and/or made these crimes possible.
Complicity, in criminal law, has been defined as “when someone is legally accountable, or liable for a criminal offense, based upon the behavior of another.” Criminal complicity may arise in the following situations:
With the intent to promote or assist the commission of the offense:
Criminal responsibility is not limited to the persons who actually committed the crime, but is extended to all those who supported the perpetration of the crime or did nothing to prevent the commission of the crime when legally obligated to do so. It is reasonable then to surmise that there are perhaps far more persons who are complicit in the commission of war crimes or crimes against humanity than direct perpetrators. Moreover, the prevalence of war and armed conflict is clearly a factor in determining who might be complicit in perpetrating such heinous international crimes.
A review of the UNHCR’s stance with respect to the use of Article 1F(a) and leading common law Supreme Court judgments from the United Kingdom, New Zealand, and Canada indicates a convergence in the application and interpretation of Article 1F(a) in western industrialized states. Since many industrialized states party to the Convention draw upon each other’s judgments with respect to international refugee law, it will be argued that any trend in these three common law jurisdictions will likely influence the judgments of other common law jurisdictions on Article 1F(a). Whether this bodes well for greater consistency within and among states in deciding who ought to be excluded from Convention refugee status under Article 1F(a) remains an open question.
The UNHCR’s Guidance on the Application and Interpretation of Article 1F(a)
The UNHCR has issued a number of Guidelines with respect to the application and interpretation of the Exclusion Clauses. The UNHCR Guidelines emphasize that exclusion should not be based on mere membership of a particular organization alone. Nevertheless, the UNHCR points out “a presumption of individual responsibility may arise where the organization is commonly known as notoriously violent and membership is voluntary.” But, even in these cases it would be necessary to examine the individual’s role and position in the organization, their activities with that organization, their ability to influence its activities, and so on.
The most current jurisprudence in this regard, as examined below, is not consistent with UNHCR’s Guidelines on this point. This is essentially what has proven to be the sticking point in the jurisprudence; that is, whether voluntary membership in an organization that is known to be extremely violent and violates people’s most fundamental human rights, would be sufficient to exclude someone from Convention refugee status.
This ignores, however, the prevalence and the current state of modern warfare that is characterized by low-intensity internal protracted armed conflicts that are essentially civilian in character and that inflect the highest casualties on civilians, predominantly women and children.
Recent Leading Western Industrialized Superior Courts Jurisprudence on Article 1F(a)
The following three cases drawn from the United Kingdom, New Zealand, and Canada will be examined and analyzed to try to discern the broad trends in the development of the jurisprudence on complicity under Article 1F(a). All these judgments rely on the Rome Statute of the International Criminal Court, emphasize the necessity of ensuring that the refugee claimant has made a significant contribution to the commission of serious international crime, and outline a number of factors that ought to be assessed before reaching a conclusion that the person should be excluded from Convention refugee status.
The UK Case of R v. Secretary of State for the Home Department
The respondent in the UK Supreme Court judgment in JS Sri Lanka is a Tamil who was a member of the LTTE. He joined when he was 10-years-old and became a child soldier. The next year he joined the Intelligence Division of the LTTE and held various positions within the organization. He came to the UK in 2007 and claimed asylum but was excluded from refugee protection on the basis of Article 1F(a). The UK Secretary of State’s rationale for exclusion rested on the premise that voluntary membership in a designated terrorist organization  amounted to “personal and knowing participation,” or at least acquiescence to, and complicity in the crimes in question. The respondent’s voluntary membership and senior command responsibility in an organization that was well-known to be responsible for war crimes and crimes against humanity indicated that there were “serious reasons for considering” that he was fully aware of the LTTE’s intelligence and military operations. At paragraph 21, the UKSC quoted an earlier UK Immigration Appeal Tribunal ruling, stating,
The other principle to be borne in mind is that whilst complicity may arise indirectly, it remains essential in all cases to establish that the appellant has been a voluntary member of such an organization who fully understands its aims, methods and activities, including any plans it has made to carry out acts contrary to Article 1F. Thus, for example, it would be wrong to regard the mere fact that an appellant has provided a safe house for LTTE combatants as sufficient evidence that he has committed an excludable offence. If, however, he has transported explosives for LTTE combatants in circumstances where he must have known what they were to be used for, there may well be a serious 1F issue.
The UK Supreme Court unanimously dismissed the appeal but varied the order of the Court of Appeal in the redetermination of the respondent’s asylum application. The UKSC did not accept that either the LTTE or its Intelligence Division could be said to be “predominantly terrorist in character.” Hence, there was no question of “personal and knowing participation” or “complicity.” Rather, what the UKSC called for was assessing seven factors for analyzing the person’s participation in war crimes and crimes against humanity. This includes such factors as the nature and size of the organization, the length of time the person served in the organization, the person’s position, rank and influence within the organization, and their knowledge of the organization’s war crimes, and, what contribution the person made to the war crime.
Following the UKSC’s judgment in this case, it is no longer helpful to characterize organizations as exclusively engaged in terrorist activities and it is instead preferable to focus on determining factors such as:
This multilayered sophisticated analysis ensures that the refugee claimant is not being excluded merely on the basis of his membership within a notorious organization that is well-known for it suicide bombings of high profile politicians, forcible labour and recruitment in its armed forces, and the routine use of child soldiers, but, rather on his voluntary contribution to specific war crimes, whether direct or indirect.
Attorney-General v. Tamil X and Refugee Status Appeals Authority and Supreme Court of New Zealand
The respondent in Attorney-General (Minister of Immigration) v. Tamil X and Refugee Status Appeals Authority, is a Sri Lankan Tamil who worked as the chief engineer on a ship, MV Yahata, that transported arms and explosives for the LTTE. He claimed that he was unaware that the ship belonged to the LTTE or that it carried arms and explosives. When the Indian Navy was attempting to seize the ship it was scuttled to prevent the Indian Navy from apprehending the cargo.
The New Zealand Refugee Status Appeals Authority and the High Court of New Zealand found that the respondent should be excluded under Article 1F(a) because of his complicity in crimes against humanity that had been committed by the LTTE. The New Zealand Supreme Court, however, unanimously held that there were no serious reasons to consider that Tamil X was complicit in any crimes against humanity or that he had committed a serious non-political crime.
The Court followed closely the reasoning of the UK Supreme Court in R (JS (Sri Lanka)). The Court stated that the decision-makers should apply the approach of “joint criminal liability” in ascertaining whether there were serious reasons for considering whether an applicant had committed an act within Article 1F(a) through being complicit in acts that had been committed by others. Ultimately, the court ruled that those who contribute significantly to the commission of an international crime with a stipulated intention, although not the direct perpetrators of the international crimes, are personally responsible for the crime. This is found in Articles 25 and 30 of the Rome Statute and is well established in customary international law.
The Supreme Court of Canada’s Judgment in Ezokola
This was the first judgment of the Supreme Court of Canada (SCC) on Article 1F(a) and it replaced the Rameriz test, “personal and knowing participation,” with a contribution-based test where “an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose.”
The SCC came to the conclusion that the test for complicity needed to be rearticulated because, “[i]n Canada, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association.” Although this is undoubtedly the case, one would be hard pressed to argue that this was persistently the case across all instances of the RSD process in Canada. The SCC’s findings in this regard should have been premised on far more legal scholarship and empirical evidence. It drew seemingly upon only two published academic journal articles to support this contention.
The difficult yet crucial question raised in Ezokola was, “When does mere association become culpable complicity?” The very question acknowledges that the individual must be associated in some way with a group that has the excludable criminal purpose of committing a crime against peace, a war crime, or crime against humanity. Mere association has never been sufficient to exclude anyone under Article 1F(a). Even Ramirez acknowledges this and states:
What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offenses is not normally sufficient for exclusion from refugee status. Indeed, this is in accord with the intention of the signatory states, as is apparent from the post-war International Military Tribunal already referred to. Grahl-Madsen, supra at 277, states:
It is important to note that the International Military Tribunal excluded from the collective responsibility ‘persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations’ [International Military Tribunal, i. 256].
It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.
Consequently, establishing an association with a group that is bent on international crimes of the nature, scope, and gravity of those articulated in Article 1F(a) does not lead to exclusion. What is required is “personal and knowing participation.”
In Ezokola, the SCC underscored that the significance of the knowing contribution the person makes to the perpetration of an international crime will depend on the relevant facts in each case. The SCC outlined six factors that ought to be considered when deciding whether the refugee claimant falls under Article 1F(a) for making a “significant” and “knowing contribution” in the commission of a war crime or crime against humanity:
The SCC’s response in Ezokola to the crucial question of ‘when does mere association become culpable complicity?’ is when the refugee claimant has made a voluntary and significant contribution to a group’s crime or criminal purpose. However, this is not only a function of the organization that the refugee claimant may belong or the refugee claimant’s membership in any organization. Rather, it is a function of a composite of a number of different variables and factors, six are specifically enumerated, that must be carefully assessed and weighed in coming to any conclusion as to the refugee claimant’s exclusion under Article 1F(a).
An examination of these three judgments dealing with exclusion under Article 1F(a) reveals that the judiciaries across these jurisdictions follow each others’ judgments and are influenced by them. The UK JS Sri Lanka judgment influenced the New Zealand Tamil X judgment and both, in turn, influenced the SCC’s judgment in Ezokola. This is evident by the mere fact that the all three judgments cite each other’s jurisprudence and, more to the point, Tamil X cites JS Sir Lanka and Ezokola cites both of these cases in its judgment. The relevance of this for the harmonization of international refugee law is self-evident. The seven factors enunciated in the UK Supreme Court’s JS Sri Lanka judgment, meant to guide decision-makers in deciding whether a person ought to be excluded under Article 1F(a), mirror the six factors provided by the SCC’s judgment in Ezokola. Indeed, four of the six factors are identical.
It is also evident that the 1998 Rome Statute of the International Criminal Court is now the common international standard for defining what constitutes a crime against peace, war crime, and crimes against humanity, as is customary international law. This is evident from what is stated in all three judgments regarding the relevance and significance of the Rome Statute in reaching any conclusions regarding the commission of any international crimes.
Indeed, any reason for considering whether an applicant falls under Article 1F(a) ought to be based on Articles 25 and 30 of the Rome Statute and the well-established principles in customary international law. In other words, “complicity” is based on the principle, enunciated therein, that those who contribute significantly to the commission of an international crime with stipulated intention, although not the direct perpetrators of the international crime, are personally responsible for the crime. As such, it stands to reason that despite a person’s membership in an organization that is known for its serious abuse of people’s human rights, this is not sufficient to exclude the individual from Convention refugee status. What needs to be demonstrated is that the person made a significant and knowing contribution to the commission of the international crime.
The new test for exclusion under Article 1F(a) established by the SCC, where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose, leaves a wide area of discretion for the decision maker to determine what constitutes a “significant” and “knowing contribution.” This is open to the refugee law decision-maker to determine based on the facts of each case.
Following the six factor test as annunciated in Ezokola should go some way in promoting a more thorough and in-depth analysis of who ought to be excluded under Article 1F(a). However, given the very complexity of cases dealing with the Exclusion Clauses under Article 1F(a), and, given the requirement to demonstrate that the refugee claimant has made a significant and knowing contribution to serious international crimes, this test should provide sufficient protection to any asylum seeker. And, given the overwhelming prelevance and the essential civilian character of modern warfare, that predominantly effects women and children, it is evident that the significance of the Exclusion Clauses, and especially criminal complicity, are bound to increase and not diminish in asylum determination systems and international refugee law.
 Helene Lambert and Theo Farrell, “The Changing Character of Armed Conflict and the Implication for Refugee Protection Jurisprudence,” International Journal of Refugee Law, 2010, Vol. 22, No. 2, pp. 237-273.
 Id., p. 258.
 The Preamble of the United Nations Charter states, among a number of things, that it is intent on “establish[ing] conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” and that the United Nations serves “to unite our strength to maintain international peace and security.” Charter of the United Nations, “Preamble,” http://www.un.org/en/documents/charter/preamble.shtml. (accessed September 9, 2015).
 USLegal, USLegal.com, “Complicity Law and Legal Definition,” http://definitions.uslegal.com/c/complicity/. (accessed August 24, 2015), See also Duhaime’s Law Dictionary, Complicity Definition, “Accountable for a criminal offense committed by another due to previous knowledge of other’s crime.” duhaime.org, http://www.duhaime.org/LegalDictionary/C/Complicity.aspx. (accessed August 24, 2015)
 South Asian Terrorism Portal, Liberation Tigers of Tamil Eelam (LTTE), states as follows:
The LTTE has been proscribed, designated or banned as a terrorist group by a number of Governments – India, Malaysia, USA, Canada, UK, Australia, European Union – where the LTTE has significant terrorist infrastructure for disseminating propaganda, raising funds, procuring and shipping supplies to support their terrorist campaign in Sri Lanka. While India was the first country to ban LTTE in May, 1992, Sri Lanka itself is the latest in the list banning the organisation on January 7, 2009.
http://www.satp.org/satporgtp/countries/shrilanka/terroristoutfits/LTTE.HTM#. (accessed August 26, 2015)
 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998. Article, Article 25, Individual Criminal Responsibility, states at Section 3(c) and (d), as follows:
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
And, Article 30, Mental Element, Section 2, states:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.