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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> BE (Disobedience to orders, landmines) Iran [2007] UKAIT 00035 (12 March 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00035.html Cite as: [2007] UKAIT 00035, [2007] UKAIT 35 |
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BE (Disobedience to orders – landmines) Iran [2007] UKAIT 00035
Date of hearing: 15 & 16 June 2006
Date Determination notified: 12 March 2007
BE |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
For the Appellant: Miss F Webber, instructed by Newcastle Law Centre
For the Respondent: Mr T Eicke, instructed by Treasury Solicitor
(1) Generally, and subject to the additional ground identified by Lord Bingham in Sepet and Bulbul, punishment for refusal to obey military orders will amount to persecution only if carrying out the act ordered would make the individual (as distinct from his country) liable to sanctions in international law, or would change his status in international law (eg by excluding him from protection as a refugee. (2) Other than by Convention there is no international prohibition on the laying of landmines. (3) The international law of armed conflict is more extensive and detailed than international law as it applies to situations other than armed conflict, and it cannot be assumed that an act prohibited in armed conflict is also prohibited in peace.
The claim
History of the appeal
"The Secretary of State agrees that the IAT erred in law and that this appeal should be allowed and the case remitted to a differently constituted IAT, on the basis that:
(a) In the Court of Appeal judgment in Krotov v SSHD [2004] EWCA Civ 69; [2004] INLR 304, the Court (at §38) indicated that courts must consider, when assessing such claims under the refugee Convention, whether the appellant is or may be 'required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community' (§51);
(b) However, the IAT only considered the different and separate question whether the actions the appellant was ordered to undertake were lawful under international law;
(c) Further the Court indicated that, in times of peace, those 'basic rules of human conduct generally recognised by the international community; would find their reflection in international human rights law rather than international humanitarian law:
'… human rights really concern rights enjoyed by all at all times, whereas humanitarian rules concern rights which protect individuals in armed conflicts. Most Conventions and other documents which provide for the protection of human rights (a) include a far wider variety of rights than the rights to protection from murder, torture and degradation internationally recognised as set out above; (b) in any event contain safeguards which exclude or modify the application of such rights in time of war and armed conflict' [Krotov, §38]
(d) The IAT decided that in the present case there was no armed conflict. As a result, they should have considered the position of a deserter in times of peace.
(e) However, the IAT has only considered the position in relation to international humanitarian law (i.e. the laws of war) but has completely failed to consider the position under (wider) international law norms, and failed to ask itself the question identified by the Court of Appeal in §§37, 38 and 51 of the judgment in Krotov namely:
i) What are the 'basic rules of human conduct generally recognised by the international community' in times of peace based on an analysis of the relevant international human rights norms?; and/or
ii) In how far do the 'basic rules of human conduct' applicable in times of conflict and identified by the Court of Appeal in its judgment of Krotov apply in times of peace?"
The facts
"3. … In 1998 the appellant did his military service. After two years he joined the regular army, becoming a sergeant. His training was in the laying and removing of land mines. In September 1998 he was sent to Iranian Kurdistan based in Paveh and Baneh where he spent two weeks. He was ordered to plant landmines but he refused because he did not want to kill innocent people in Kurdistan. He escaped. After six months he was arrested and tried by a military tribunal. He was sentenced to three months imprisonment and demoted. In June 1999 he was sent back to Kurdistan as a driver. In September 1999 a colleague was killed by the army for refusing to plant landmines. A week later he was ordered to plant landmines again. After discussion with a friend he saw his choice as being either to plant landmines as ordered or to desert. Since he believed that to plant landmines would endanger civilians, he deserted. First he went into hiding and then came to the UK via Turkey."
"the appellant was trained to lay and remove landmines: it was not a case, therefore, of a soldier who refused to plant landmines per se."
"the appellant had been ordered to plant landmines and had refused because he genuinely believed it might lead to the death of innocent civilians."
"[There was a] lack of any specific objective evidence to show that at this particular time the Iranian authorities had planted anti-personnel land mines in this region with the deliberate intent of harming civilians or being reckless of harming them."
"During the relevant period: (i) the Iranian government, whilst condemning landmines as inhumane weapons, confirmed that it has used and would go on using them to protect its borders and to combat drug smugglers and terrorists; (ii) areas it had mined included the province of Kurdistan (the area referred to by the appellant); and (iii) there have been civilian casualties in Kurdistan.
"I could find nothing in the background material before me that suggests the Iranian government is targeting the Kurdish civilian population."
The starting point
"There is compelling support for the view that refugee status should be accorded to one who has refused to undertake military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment."
"Since the order was not contrary to national or international law, it cannot be said either that punishment imposed in view of a refusal to obey it by way of desertion would be illegitimate or disproportionate. Thus the punishment concerned would not involve the infliction of serious harm either under the Refugee Convention or Art 3. Nor would it involve flagrant denial of any other protected human right."
Atrocities or gross human rights abuses
Arguments beyond Sepet and Bulbul
International humanitarian law
The a fortiori argument
"7.3 Initially, humanitarian law was applicable only to international conflicts, because of the doctrine of sovereignty, which was inimical to the possible intrusion by other States into a State's internal affairs. However, the speedy development of human rights doctrines, particularly during and after the Second World War, has resulted in the State-sovereignty oriented approached being gradually supplanted by a human-being orientated approach (see Prosecutor v Tadic (jurisdiction), ICTY, decision 2 October 1995, paras 96-7). This has meant (a) the application of the humanitarian norms developed in the context of international conflict to domestic conflict (ibid.); (b) the application in all States of certain principles in human rights law as peremptory norms, in all circumstances, regardless of the context, such as the right not to be arbitrarily deprived of life, the right to bodily integrity and the right to be free from cruel or inhuman treatment.
7.4 Most Conventions which provide for the protection of human rights (a) include a far wider variety of rights than those applying during armed conflict, and (b) modify the application of such rights (save for those which are absolute in nature, as are the two cited above) in time of war and armed conflict (see Krotov v SSHD [2004 EWCA Civ 69, [2004] INLR 204, para 38). Thus, in time of peace, civilians are protected by a wider range of rights than during armed conflict, but all the rights applicable in armed conflict can be assumed to be applicable in peacetime as aspects of fundamental human rights: see The Corfu Channel case, Merits, ICJ Reports 1949 (p 22); Barcelona Traction Light and Power Company, Judgment of 5 February 1970, ICJ Reports 1970, para 33-4; Case Concerning Military and Paramilitary Activities In and Against Nicaragua, 1986 ICJ 14 (Merits Judgment, June 27), (1986) at paras 215, 218.
7.5 Thus the use of an indiscriminate weapon in a situation where a civilian population is likely to be affected (by death or severe injury), if prohibited during armed conflict, is even more likely to be contrary to the basic rules of human conduct in time of peace.
7.6 The appellant submits that, given the real likelihood of a landmine sown in a civilian area causing arbitrary death or severe injury to a civilian, and in particular a child, to have obeyed the order would have resulted in a real risk of his involvement in violation of fundamental human rights. He further submits that given the wider reach of the human rights Convention in times of peace than in times of armed conflict, such violations do not need to be characterised as 'gross' before he is entitled to refuse and to receive the protection of the Refugee Convention for desertion, since there is no conceivable military necessity for them, as there might be in wartime."
"The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No VIII, which is applicable in times of war, but on certain general and well-recognised principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of maritime communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states."
"commits a breach of the principles of humanitarian law underlying the specific provisions of Convention No VIII of 1907. Those principles were expressed by the Court in the Corfu Channel case as follows:
'certain general and well-recognised principles, namely: elementary considerations of humanity, even more exacting in peace than in war'."
The argument based on Article 1F
"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;
(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."
"It can well be argued that just as an applicant for asylum will be accorded refugee status if he has committed international crimes as defined in (a), so he should not be denied refugee status if his return to his home country would give him no choice other than to participate in the commission of such international crimes, contrary to his genuine convictions and true conscience."
"... refugee status may be granted, in the light of all the other requirements of the definition, in cases of punishment of conscientious objection or deliberate absence without leave and desertion on grounds of conscience if the performance of his military duties were to have the effect of leading the person concerned to participate in acts falling under the exclusion clauses in Article 1F of the Geneva Convention."
"(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2)"
which exclusion clauses are to all intents and purposes identical with those in Art 1F of the Refugee Convention.
"when committed as part of a widespread or systematic attack or directed against any civilian population, with knowledge of the attack;"
and 'attack directed against any civilian population' is further defined as meaning:
"a course of conduct involving the multiple commission of acts [classed as crimes against humanity] against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack."
"(b) Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment ... of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war ..., wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated."
"The Nuremberg Tribunal ruled that crimes against humanity fell within its jurisdiction only if they were committed in the execution of or in connection with war crimes or crimes against peace. But this appears to have been a jurisdictional restriction based on the language of the Charter. There is no reason to suppose that it was considered to be a substantive requirement of international law." (emphasis added)
"The Landmines Act 1998 makes it a criminal offence under UK law to lay landmines, and gives UK courts jurisdiction over offences committed abroad. Such a sentence passed on a refugee already in the UK results in a presumption of a particularly serious crime, constituting the refugee a danger to the community for the purposes of refoulement, by virtue of s 72 Nationality, Immigration and Asylum Act 2002. The level of sentence reflects the degree of gravity with which the act of planting landmines is seen, and shows that it is seen by the UK legislature as being an act which is contrary to the basic rules of human conduct."
"The Preamble and Article 1 of the [United Nations] Charter demonstrate that among the principles and purposes of the UN is the preservation of peace, and the need to save humanity from the scourge of war and its untold sorrow. The development of a legal framework for disarmament, the development of international humanitarian law regulating the deployment of weapons, and the development of international human rights law in which the life, dignity and bodily integrity of the human person are paramount values, are all fundamental to the work of the UN. The Conventions, Declarations and Resolutions referred to above [ie those relating to landmines] make it abundantly clear that the deployment of indiscriminate and inhumane weapons of war which cause untold suffering to civilians is contrary to the purposes and principles of the UN."
"an individual, in order to have committed an act contrary to these principles, must have been in a position of power in a member State and instrumental to his State's infringing these principles."
Customary international law
"The appellant's contention is that he is not required to show that the landmine ban has achieved the status of a peremptory norm of international law in order to justify his refusal to lay land mines, provided he can show — as he can – that the level of abhorrence and condemnation of the use of landmines, even among non-States Parties to the Ottawa Convention, is such that the landmine ban has been recognised with record speed as at least an emerging norm of international law."
"generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention."
"Although the passage of only a short period of time is not necessarily, or itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within that period of time, short though it might be, State practice, including that of States whose interests are specifically affected, should have been both extensive and virtually uniform in the sense of the provision invoked; - and should moreover have concurred in such a way as to show a general recognition that a rule of law or legal obligation is involved."
"There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognised ways by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained."
"Any State may at the time of its ratification, acceptance, approval or accession, declare that it will apply provisionally paragraph 1 of Article 1 of this Convention pending its entry into force."
The 'basic rules of human conduct generally recognised by the international community'.
"In my view, the crimes listed above, if committed on a systematic basis as an aspect of a deliberate policy, or as a result of official indifference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in respect of which punishment for a refusal to participate will constitute persecution within the ambit of the Refugee Convention"
"It is in my view preferable to refer in this context to 'basic rules of human conduct' or 'humanitarian norms' rather than to 'abuse of human rights', at least unless accompanied by the epithet 'gross': cf the observations of Lord Bingham of Cornhill quoted above [sc Sepet and Bulbul [2003] UKHL 15 at [8]]. That is because human rights really concern rights enjoyed by all at all times, whereas humanitarian rules concern rights which protect individuals in armed conflicts. Most Conventions and other documents which provide for the protection of human rights (a) include a far wider variety of rights than the rights to protection from murder, torture and degradation internationally recognised as set out above; (b) in any event contain safeguards which exclude or modify the application of such rights in time of war and armed conflict: see generally the approach set out in Ingrid Detter, The Law of War (2nd edn, Cambridge University Press, 2000, at pp 160-163)."
"As I have already indicated, while these objections [sc to various proposed points of interpretation] have force, they should not in my view prevail over the necessity for the courts, in seeking to define and apply the working test in cases of this kind, to have regard to the realities of the particular conflict in which an applicant has refused to participate rather than to the specific question of whether that conflict has yet been internationally condemned. If a court of tribunal is satisfied: (a) that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, has reached a position where combatants are or may be required, on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community; (b) that they will be punished for refusing to do so; and (c) that disapproval of such methods and fear of such punishment is the genuine reason motivating the refusal of an asylum-seeker to serve in the relevant conflict, then it should find that a Convention ground has been established."
"being forced to plant landmines in civilian areas is contrary to the basic rules of human conduct and to be punished for refusing to engage in such conduct amounts to persecution".
International human rights law
"Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."
Conclusion
C M G OCKELTON
DEPUTY PRESIDENT
Date: