SK appealed the Upper Tribunal’s decision on the grounds that, on a true interpretation of the Rome Statute, her acts did not amount to the international crime of “other inhumane acts” because the facts determined by the UT did not resonate with there being serious reasons for considering that she had committed a crime against humanity. The Court of Appeal (Rix, Lloyd and Stanley Burnton LJJ) unanimously upheld the UT’s decision to exclude SK from refugee status under article 1F(a) of the Refugee Convention because she had committed inhumane acts amounting to crimes against humanity as expressed in article 7(1)(k) of the Rome Statute. The court also found that the chapeau requirement itself, namely the need of the context of a widespread or systematic attack on civilians, necessarily underlined the gravity of the crime.
The Rome Statute provides the best working definition of the phrase “crimes against humanity.” The chapeau requirement – relating to the context of a widespread or systematic attack on civilians – in article 7(1) of the Rome Statute sits at the head of a list of defined acts such as murder, torture, deportation or forcible transfer of populations, rape and apartheid etc (article 7(2) further defines the acts listed in article 7(1)) and such international crimes operate in its shadow.
The expression “crime against humanity” can mean any acts, listed (a) – (k), “when committed as a part of widespread and systematic attack directed against any civilian populations, with knowledge of the attack.” In SK’s case, the interaction between article 7(1)(k) (“other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health”) and article 1F(a) of the Refugee Convention (exclusion from refugee status on the basis of her having committed a crime against humanity) was the subject of judicial consideration.
SK, aged 31, is a citizen of Zimbabwe. She arrived in the UK in 2002 and claimed asylum in late October 2008. Back in Zimbabwe, SK was a part of the Zanu PF youth militia. Her activities in this outfit “involved alcohol, cannabis and sex” and she participated in two farm invasions in April and October 2008 but claimed that she acted under duress (Rix LJ at ). Prior to these events, when SK’s husband died of alcohol poisoning she went to live with her uncle, a fanatical Zanu PF supporter, who made her campaign for Mugabe’s party by forcing people to attend rallies and meetings. Following the second farm invasion, SK’s rape by another member of the militia prompted her to quit Zimbabwe for the UK.
SK admitted invading two white owned farms after the owners refused to obey eviction notices pursuant to the villainous Mugabe regime’s fast track land “reform” programme. SK struck people with a stick or “chamu” but she said that she did not set fire to people’s houses. During both farm invasions, SK accompanied more than a hundred Zanu PF supporters – ranging from rank and file members to senior stalwarts such as her uncle – who descended on white owned farms. The mob beat the white owners and their black workers until they deserted the farms. SK regretted beating one woman in particular and in her first handwritten witness statement she regretted inflicting pain on her fellow humans, “I am afraid to say that some of my victims lost their lives as a result of the beatings I perpetrated.” This initial admission was later amended and SK still admitted to beating a female victim (who managed to crawl away to safety after the attack) with a stick, but she denied killing anyone.
Whilst the AIT failed to make clear findings about the chapeau requirement, Buchanan IJ (at ) noted that SK’s attacks were directed against innocent civilians. He found that SK’s admissions regarding beating and displacing farm workers and MDC supporters were serious enough to consider her “directly responsible” for crimes against humanity, murder, torture, forcible transfer, persecution and other inhumane acts.
Describing the AIT’s determination as “unimpeachable” when ordering reconsideration, Mitting J noted it was not self-evident that the “other inhumane” acts in which SK participated were of “a similar character” as those contained in article 7 of the Rome Statute. Thus, the tribunal should have asked itself whether SK’s acts were similar to those set out in article 7(1)(a) – (j) which range from extermination to apartheid.
The Upper Tribunal (Ouseley J and Ehsun SIJ, read here) did not go behind SK’s claim that she did not kill anyone. But this did not preclude the UT from ascertaining credibility in light of SK’s answers to questions in relation to why, on two occasions, she claimed to have killed people? In hearing new evidence from SK, in order to contextualise the situation, the UT considered article 25 (individual criminal responsibility), article 30 (mental requirement) of the Rome Statute and JS (Sri Lanka)  UKSC 15): the submission that SK’s personal acts and intent were the end of the matter was rejected and the UT found her to be “plainly criminally liable on a joint enterprise domestic law basis” (at ).
Likewise, Stanley Burnton LJ’s approach, at , in KJ (Sri Lanka)  EWCA Civ 292 – that a knowing aider and abettor in a crime was as guilty as the person who carries out the final deed – meant that whilst SK was a lesser participant she still (albeit reluctantly) voluntarily beat people brutally to prove her loyalty to Zanu PF. SK was responsible for committing the crime against humanity in article 7(1)(k) because her acts were “obviously inhumane” and “of a similar character” because they involved a “clear racial element” expressed in article 7(1)(h). Plainly, the intention behind the invasions was “to cause great suffering or inflict serious physical or mental injury.” The invaders’ acts against farmers and farm workers were clearly persecutory – SK participated in politically motivated mob violence and her actions were aimed at suppressing opposition and advancing the regime’s financial designs.
The Court of Appeal
It was SK’s case that on the findings of the UT the requirements in sub-paragraph (k), of “a similar character” and “causing great suffering or serious injury”, were not discharged as constituents of the crime of “other inhumane acts” because the said sub-paragraph required the acts to be of the same gravity as the rest of article 7(1), namely sub-paragraphs (a) – (j) which included murder, extermination, enslavement and the like. Thus, the UT erred (1) in finding that the farm invasions were other inhumane acts of a similar character to persecution; and (2) by misdirecting itself as to the meaning of the requirement of “great suffering, or serious injury to body or to mental or physical health.”
The Court of Appeal, from  to , first extracted the relevant parts of the Rome Statute – preamble, article 7 (crimes against humanity), article 8 (war crimes) and article 9 (elements of crimes) – and then reviewed the case law of the InternationalCriminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ITCR) and their successor the International Criminal Court (ICC).
Mr Hermer QC and Ms Pickup submitted on behalf of SK that the Rome Statute’s architecture exacted that crimes within the ICC’s jurisdiction (article 5) underlined the seriousness of the listed crimes. Moreover, article 7(1)(k) required that “other inhumane acts” must share a “similar character” with the crimes cited in sub-paragraphs (a) – (j) and must cause “great suffering” as nothing less could suffice. Equally, the forbidden conduct must be committed “in connection with” some other act within article 7 as expanded upon in the “Elements of Crimes” enumerated in article 7(1)(h). Furthermore, SK was not liable for deportation and forced transfer of a population because her victims were not “lawfully present” on the farms. Rather, the displaced population remained on the farms in defiance of eviction notices that were served in accordance of Zimbabwe’s land reform legislation.
The argument was that only grave crimes were caught by article 7 and following Prosecutor v Erdemović (ICTY, 7/10/1997, at  & ) the nature of a crime against humanity as a crime which offends the conscience of humanity should not be diluted. Yet following Prosecutor v Tadić (ICTY, IY-94-1-T, 7/5/1997, at ) the Court of Appeal found that the chapeau requirement (that the attacks were “directed against any civilian population”) ensured that where individuals were systemically victimised for their collective attributes, the perpetrator must know of the context in which her actions were taken.
But Rix LJ explained that “similar character” meant that “other inhumane acts” needed to be “similar” to the grave crimes listed. There was no condition for the “other” acts to exactly match the elements of the (enumerated) crimes such as rape, torture, extermination and murder. If that was so, the ICC would not have emphasised the otherness of the “other inhumane acts” in Prosecutor v Katanga and Chui (ICC-01/04-01/07, 30/9/2008, at –) where an inhumane war crime was seen to be committed when people were subjected to “severe physical and mental pain and suffering” by being tied up and detained in a room full of corpses. For the Court of Appeal, “the critical epithet in any event is ‘similar’, not ‘identical’ or ‘same’” (at ).
Equally in Prosecutor v Muthaura (ICC-01/09-02/11), while considering criminal charges arising out of Kenya’s election related violence, the ICC’s pre-trial chamber thought that “other inhumane acts” such as mutilation and women forced to watch the killing of their husbands and children, constituted a “residual category of crimes” which required conservative interpretation “and must not be used to expand uncritically the scope of crimes against humanity.” The chamber found that the forced witnessing of deaths of others caused serious mental suffering and was comparable in its “nature and gravity to other acts constituting crimes against humanity” (at ).
In terms of the threshold of violence, other inhumane acts necessarily fell short of killing because “murder” was listed as a separate crime. Moreover, it was clearly contemplated that violence short of killing or an intention to kill may fall within article 7(1)(k) and it was similarly envisaged that the violence in question may lead to serious consequences other than bodily injury (such as “great suffering” or injury to “health”, mental or physical) as the text of the sub-paragraph (k) itself explained.
As the ICTY explained in Tadić, the chapeau requirement itself will necessarily underline the gravity of the crime and behaviour amounting to other inhumane acts of a similar character depended on the evidence and circumstances of the case under consideration. The Court of Appeal stressed that the crime needed to be sufficiently serious and needed (contextually) to go beyond mere domestic crime (“however shocking”) and, instead, international sanctions were required (at ). The emphasis on “similar character” strengthened the requirement of comparability across the listed crimes and the phrase “great suffering, or serious injury …” made its own demands. Despite Mr Hermer QC’s insistence that SK’s acts did not bear the hallmark of crimes against humanity, not least because the Zimbabwean farm invasions were not internationally recognised as crimes against humanity, Rix LJ interpreted the lengthy case law before him to conclude:
85. I have carefully considered all these submissions. However, I am unable to draw the conclusions for the determination of the Upper Tribunal which Mr Hermer has urged on this court. In my judgment, the findings of the Upper Tribunal and the evidence on which it was based, including SK’s own admissions, can speak for themselves. It may be that, unlike other countries, such as Rwanda and the Balkan states, but unhappily many more, which have descended into armed conflict, Zimbabwe has avoided that extreme calamity. The legal consequences of such armed conflicts have been seen in the cases brought before ICTY, ICTR and now the ICC. It is not surprising that such prosecutions portray the worst of crimes against humanity, especially in the context of ethnic cleansing. Even so, “other inhumane acts” (or their equivalent) have been charged or found proved in circumstances short of murder or mutilation to the victims of the crimes, as in Akayesu (forced undressing), Blaskić (using civilians as human shields), Krstić (forced bussing of women and children), Muthaura (forced witnessing of family deaths), Krnojelac (forcible transfer, not a separate crime under the ICTY statute, also beatings), Sesay, Kallay and Gbao (beating with a belt resulting in serious injury [Special Court for Sierra Leone, 25/2/2009]), Katanga (detention in a room with corpses) and Mbarushimana (men forced to rape women).
This approach was also consistent with the Southern African Development Community Tribunal’s decision in Campbell and Others v Republic of Zimbabwe (SADC (T) Case No 2/2007) which held that the farms were inappropriately seized without compensation and that farmers had been discriminated against. Insofar as other inhumane acts being of a similar character to the listed crimes (such as torture) was concerned, violent beatings could clearly be of a similar character to torture (at ). Likewise, even in the absence of discrimination, acts such as expelling people from their homes by using arson/terror and depriving them of their livelihood were similar to the crime of persecution and the crime of forcible transfer of a population. Thus, the eviction notices to white farmers did not legalise their ejection.
From SK’s perspective the threshold for “great suffering” or “serious injury” had not been crossed, but to the contrary, Rix LJ (at ) cited Prosecutor v Delalić (ICTY, IT-96-21-T, 16/11/1998, at ) to reiterate that the court must look at the plain and ordinary meaning of these words. Thus, his Lordship agreed with the UT that SK intended to cause great suffering and achieved this aim.
Since SK admitted to doing to what she did and was in fact shocked by her own behaviour, there were serious reasons for considering that she committed a crime against humanity: as the UT noted (at ), the acts were obviously inhumane. In the final analysis, after wrestling with the true meaning of the contents of article 7(1)(k) of the Rome Statute, Rix LJ observed he was not only bound by the UT’s findings of fact but the case law his Lordship considered fully justified that SK should be excluded from refugee status (at  & ).
July 2012 marks the tenth anniversary of the ICC. Yet the court’s critics label it as the “African Criminal Court” because the cases which have been tried under its jurisdiction are from Africa. But such attacks are easily dispelled by watching proceedings such Elvedin Pasic’s (a Bosnian who was a teenager during the Yugoslavian war) 9 July 2012 testimony in The Hague against the notorious Serbian General Ratko Mladić who is charged with the Srebrenica massacre – Europe’s worst atrocity after World War II when 8,000 Bosnian Muslims were massacred. So if the ICTY is bringing former Yugoslavian war criminals to justice and bringing justice to victims, then it is possible to entertain the thought that, if properly supported, the ICC will be able to take its work further in bringing mass murders to justice. The court’s new chief prosecutor Fatou Bensouda certainly seems to think so.
In any event, the Court of Appeal clearly took the view that the ICC’s jurisprudence was central to the task of imparting justice and honouring the memory of the innocent people murdered and displaced by Zanu PF’s farm invasions. It is worth noting that whilst SK failed in achieving refugee status, the SSHD nevertheless accepted that if returned to Zimbabwe she would face a real risk of serious ill-treatment sufficient to breach her rights under article 3 of the ECHR. An excellent post on this case on the UK Human Rights Blog is available here.
Note: This case should not be confused with the Supreme Court case of SK (Zimbabwe)  UKSC 23 which concerned the detention of foreign national prisoners. The top left photo depicts the “Green Bombers”, the deplorable Zanu PF “youth” group which is responsible for committing gross human rights abuses in Zimbabwe.