"SRYYY" and Minister for Immigration and Multicultural and Indige Nous Affairs
[2003] AATA 927
•19 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 927
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1971
GENERAL ADMINISTRATIVE DIVISION ) Re
"SRYYY"
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date19 September 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – REFUGEES CONVENTION – Australia’s obligations under the Convention Relating to the Status of Refugees 1951 - whether the Applicant is a person to whom Australia owes obligations under the Refugees Convention – whether Applicant has committed war crimes or crimes against humanity – held that there are serious reasons for considering that the Applicant committed crimes against humanity and war crimes – decision of the Respondent affirmed.
Migration Act 1958 ss 36(1)(2), 65, 500(1)(c)
Convention Relating to the Status of Refugees 1951 Article 1F
Migration Regulations 1994
Rome Statute
Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Equizabal v Canada (Minister for Employment and Immigration) (1994) 24 Imm LR (2d) 277
Polyukhovich v Commonwealth (1991) 172 CLR 501
Re N96/1441 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 459
Re W97/164 and Minister for Immigration and Multicultural Affairs 27 AAR 482
R v Finta 112 D.L.R. (4th) 513
REASONS FOR DECISION
19 September 2003 Mr RP Handley, Deputy President
1. This is an application by SRYYY (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 4 December 2002 to refuse the grant of a protection (Class XA) visa to the Applicant on the grounds that he is not a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees of 1951 (“the Refugees Convention”).
2. At the hearing, the Applicant was represented by Ben Zipser, of Counsel, and the Respondent was represented by Dale Watson, Solicitor, of the Australian Government Solicitor’s office.. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the documents tendered by the parties. The Applicant gave oral evidence at the hearing.
Background
3. The Applicant was born in Dudan Goda Inkaludara, Sri Lanka, on 20 December 1979 and is aged 23. He states that he served as a soldier in the Sri Lankan Army from May 1997 until late March 2000 (T p74). Between 1997 and 1998, he was stationed at Trincomalee (T p129). He was then transferred to the Elephant Pass Army where he served until 1999 before being transferred to Jaffna.
4. On 20 May 2000, the Applicant left Sri Lanka and went to Singapore to study (T p105). On 16 November 2000, he left Singapore and came to Australia, arriving on 17 November 2000 (T p72). He entered Australia on a visitor visa subclass 676 which permitted him to remain in Australia until 10 December 2000 (T pp72, 98).
5. On 8 December 2000, the Applicant lodged an application for a protection (Class XA) visa seeking protection in Australia from having to go back to Sri Lanka (T3 p70). In the relevant part of the application, the Applicant stated that he had been a soldier in the Sri Lankan Army from May 1997 until March 2000. In answer to question 37 “What do you fear may happen to you if you go back to that country?” the Applicant said that he feared that he would be killed (T p77).
6. On 7 May 2001, the Applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs (“the Department”) at its Sydney office (T6 p103). The transcript of the interview indicates that the Applicant may have been involved in the interrogation, assault and torture of civilians, including children. On 14 May 2001, the Applicant was again interviewed by the same officer of the Department at its Sydney office (T7 p125). In this interview, the Applicant confirmed what he said in the first interview (T p146).
7. On 1 August 2001, the departmental officer advised the Applicant that she was considering refusing his application for a protection visa and inviting him to respond (T8 p155). On 21 August 2001, the Applicant responded by filing a Statutory Declaration dated 20 August 2001 in which he stated that he was following orders when asked to interrogate and torture or assault detainees and that he had a “moral conscientious objection” to doing so (T p164).
8. On 4 December 2001, a delegate of the Respondent decided to refuse the Applicant’s application for a protection visa on the ground that there were serious reasons to consider the Applicant has committed crimes against humanity or serious non-political crimes outside Australia prior to entry. Accordingly, the delegate found that the Applicant was excluded by Article 1F of the Refugees Convention from the protection afforded by that Convention.
9. On 19 December 2002, the Applicant lodged an application for a review of this decision by the Tribunal (T1 p1).
Applicable Legislation and Policy
10. Section 36(1) of the Migration Act 1958 (“the Act”) provides for a class of visas to be known as “protection visas”. Section 36(2) states:
A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
11. Section 65 requires the Minister to grant a visa where satisfied that there is a valid application which meets all statutory requirements and regulatory criteria. Schedule 2 of the Migration Regulations 1994 specifies the criteria which are to be satisfied before visas of various classes will be granted. The Applicant applied for a protection (Class XA) visa. Class XA includes two subclasses: 785 (temporary protection) and 866 (protection) which is a permanent visa. The Migration Regulations provide in Schedule 2, clause 866.221, that among the criteria to be satisfied at the time of the decision are:
866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention
In clause 866.111, “Refugees Convention” is stated to mean “the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees”.
12. Article 1A (2) of the Refugees Convention defines a “refugee” as a person who:
Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …
13. However, Article 1 of the Convention also excludes certain persons from the protection obligations which State Parties agree to afford refugees. In particular, Article 1F states:
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.
The jurisdiction of the Tribunal to review decisions under the Act is set out in s 500(1). This states, relevantly:
(1)Applications may be made to the Administrative Appeals Tribunal for review of:
(a) …
(b) …
(c)a decision to refuse to grant a protection visa, or to cancel a protection visa relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33 (2);
Evidence
SRYYY (the Applicant)
14. The Applicant provided a statement dated 28 April 2003 (A1). He is currently living at Strathfield in Sydney. He joined the Sri Lankan Army in May 1997 as an ordinary soldier having been unsuccessful in other job applications both in the private and public sectors, principally because of his lack of English skills. He spent the first three months in a training camp. Only three months training was given to new recruits because of the shortage of soldiers. Then he was posted to Trincomalee for about a year, where he served in the security post at the entry to the camp but also in the frontline in any advances against the Liberation Tigers of Tamil Eclon (“LTTE”). From Trincomalee, he was posted to Elephant Pass for about a year where he performed duties of a similar nature.
15. During the course of his duties, the Applicant witnessed innocent civilians being killed and injured as well as fellow soldiers. He did not like witnessing such events. He asked for leave but this was refused. He requested a transfer and was posted to Jaffna where he was assigned, with four others, to duties inside the camp as part of a unit responsible for questioning suspects. Suspects were brought to the camp by the Army in order to obtain information, for example as to members of the LTTE. This questioning took place on most days, usually of two or three suspects a day. There were between 2000 and 2500 soldiers in the camp at Jaffna, most of whom were involved in patrols outside the camp. The Applicant said he never asked to go on the patrols. By that time, he had a good knowledge of the war and knew that it was largely innocent civilians, his fellow citizens, who were being harmed. He did not want to see this.
16. The Applicant’s immediate superior was a sergeant and the officer in charge was a second lieutenant. The Applicant’s job was to ask questions of suspects brought to the camp. This was done in a room with one person being questioned at a time. Having obtained the person’s details, if the sergeant was present, the sergeant would often ask the questions himself. The second lieutenant would also sometimes be present. If the sergeant though someone was lying or knew something, he would instruct the Applicant and any fellow members of the unit involved – they usually worked in pairs - to intimidate the person. They did this by kicking or beating the person with a baton, mostly about the legs. The baton was made of wood and was about 18 inches long. When, at first, the Applicant refused to do this, the sergeant ordered him to “just do it”.
17. If the sergeant believed someone was telling the truth, and the person was innocent and did not know anything, the person would be taken elsewhere and probably released. If the sergeant thought the person was not telling the truth after questioning, which could last for three to five hours, the person would be taken to another part of the camp for further interrogation. The Applicant said he did not know what happened at that stage although he had heard rumours of more severe action. If the person was a member of LTTE, he would be detained and questioned repeatedly. The Applicant said he suspected that such a person would be subjected to assaults and torture elsewhere in the camp.
18. The Applicant said he complained to the sergeant on many occasions that he did not want to do this work and asked to be transferred. The sergeant said he could not be transferred immediately - he had to work there for some time. The Applicant had to carry out the sergeant’s instructions. When the Applicant complained to the second lieutenant, his response was the same. The Applicant was scared that if he did not comply, he might be implicated in something, face severe punishment or be court martialled. He believed the sergeant’s orders were lawful because he was the Applicant’s superior. The Applicant was asked why he did not leave or quit. He said they would have caught him and brought him back to serve. He is not sure whether others who deserted were punished. This was kept confidential. If they were punished severely and this was publicised, nobody would enlist in the Army.
19. The Applicant said most of the beating he was involved in took place on the legs to avoid serious wounds to other parts of the body. He did not intend to cause pain, wounds or bleeding or make the person cry. The objective was to intimidate a person in order to get a reply to questions. The Applicant acknowledged that he had also slapped a person on the face on about four occasions although he cannot recall when. He cannot recall ever causing a person any permanent injury or to bleed.
20. The Applicant said children were sometimes brought in with their families. If children between the age of 11 and 14 were questioned, the objective was to scare them so they would provide information. The sergeant ordered him to intimidate the children by threatening them verbally, for example that they would be killed if they did not tell the truth. The Applicant said he only questioned children under 16 during the first two days he was at the camp. He only slapped a child of such an age once. The sergeant forced him to do this. The younger children urinated on the floor in fright. After two days, he protested against questioning younger children and, thereafter, was only ever involved in questioning the older children. It was sometimes necessary to threaten or hit them. Young people of that age were sometimes keen members of the LTTE.
21. The Applicant said that in early March 2000, he became ill and was admitted to the military hospital at the camp. When after five or six days he was still not well, he was given permission to go home on leave for three months to recuperate. His parents suggested that he undertake further education and they arranged for him to study at Temasek Polytechnic in Singapore. The Applicant went to Colombo to obtain a passport and them made the necessary travel arrangements, flying from Sri Lanka to Singapore on 20 May 2000. In October 2000, he went to the Australian Embassy in Singapore and obtained a visitor visa for entry to Australia. He left Singapore on 16 November 2000, arriving in Australia on 17 November 2000. On 8 December 2000, he lodged an application for a protection visa.
22. The Applicant said when he was first interviewed for recruitment into the Army, he thought he would be assigned to the sports section and posted to Colombo. He was a good cricket player and the Army assigned good cricketers to Colombo where they would play cricket in addition to their other duties as soldiers. He was aware the Army were fighting the LTTE and that he might be posted to a place where would be required to fight against the LTTE, but he never wanted to see people dying in a war zone. He later realised his decision to join the Army was wrong. He never wanted to see someone injured.
23. In cross-examination, the Applicant denied that he had ever been personally involved in beating a suspect which had resulted in the breaking or dislocation of bones (T p145). However, others might have done this. He said there was only one occasion when his slapping a person had led to the person’s lips breaking and there being a little blood. He only would slap a person in the face if he was ordered to do so. He said a statutory declaration made by him on 20 August 2001 (T p164) was exaggerated – it was prepared by someone who wanted to help him.
24. The Applicant acknowledged that he had assaulted suspects when no superior officer was present but only having been ordered to do so by the sergeant who then went elsewhere in the Camp but with the intention of returning. They would not hit every person questioned – only if they thought the person had information in which case hitting became part of the questioning procedure.
Submissions
Applicant
25. Mr Zipser, for the Applicant, submitted that the acts undertaken by the Applicant while serving in the Sri Lankan army were not crimes against humanity because they were not “undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race”: R v Finta (1994) 112 D.L.R (4th) 513 at 595. The decision in Finta was cited with approval by Mathews J in Re W97/164 and Minister for Immigration (1998) 27 AAR 482 at 495. Mr Zipser also referred the Tribunal to Article 7 of the Rome Statute of the International Criminal Court (“ICC”). Article 7 states that:
1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: …
Among the acts listed are “Torture” and “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.
26. Paragraph 2 of Article 7 states:
(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; …
(b) “Torture” means the intentional infliction of pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; …
27. Mr Zipser said in the Applicant’s case, there was a civil war and the Army’s obtaining information from Tamil civilians did not involve a crime against humanity.
28. Secondly, Mr Zipser submitted that while the Applicant was involved in acts involving the beating and kicking of civilians, they were not sufficiently serious to constitute a war crime or crime against humanity. For crimes to be so categorised requires that they must be sufficiently serious. In Finta (supra) Cory J said that such crimes must be “so grave that they shock the conscience of all right-thinking people” (p593) and involve “cruel and terrible actions” (p595), “inflicting untold misery” on the victims (p596), or have the “requisite added dimension of cruelty and barbarism” (p597), involving a “degree of moral turpitude” exceeding “the domestic offences of manslaughter or robbery” (p597). In Re N96/1441 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 459 at 463, the President of the Tribunal, Mathews J, cited the Federal Court of Canada (Court of Appeal) decision in Equizabal v Canada (Minister of Employment and Immigration) (1994) 24 Imm LR (2d) 277 which adopted the Finta (supra) approach that
inhumane conduct which marks a crime against humanity involves “the additional component of barbarous cruelty” [Equizabal (supra) at 285].
29. In Polyukhovich v Commonwealth (1991) 172 CLR 501 at 596, Deane J described the phrase “crime against humanity” as
… a convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connexion with actual hostilities.
30. Article 7(1) of the Rome Statute includes in the definition of “crimes against humanity” (para (k)).
other inhumane acts of a similar character causing great suffering, or serious injury to body or mental or physical health.
Moreover, the definition of “torture” in Article 7(2)(e) refers to the intentional infliction of severe pain or suffering. Similarly, the definition of “war crimes” in Article 8 refers, in para (2)(c), “in the case of an armed conflict not of an intentional character” to “serious violations”.
31. Mr Zipser said the decision in Finta (supra) indicates three relevant factors: first, the nature and degree of the act(s); second, the purpose of the act(s); and, third, the state of mind of the person. With regard to the first factor, the Applicant has admitted to beating and kicking individuals (A1 para 17). He was only involved in interrogating children under the age of 15 during the first two days. The question is whether his acts are “so grave that they shock the conscience of all right-thinking people”. Mr Zipser contended that the Applicant’s acts were at the lesser end of the scale and not of this kind.
32. Secondly, the purpose of the Applicant’s actions were to prevent the overthrow of the Government, to restore stability in the country and end the civil law. Thirdly, as to the Applicant’s state of mind, he did not willingly carry out the acts. His evidence is that he carried out the acts under protest.
33. Mr Zipser’s third submission was that the Applicant is entitled to the defence of obedience to superior orders. An analysis of this defence appears in Finta (supra) at 605-613. At 609, Cory J cites an authority on the defence as saying that as “a general rule, a subordinate committing a criminal act pursuant to an order should not incur responsibility for it”. However, “the rule is inapplicable if the subordinate knew that the order entailed the commission of a crime, and obeyed it nonetheless”.. In determining whether the subordinate was aware of this, the test of manifest illegality may be applied. An order from a superior is manifestly unlawful when it “offends the conscience of every reasonable, right-thinking person; it might be an order which is obviously and flagrantly wrong”.
34. Cory J goes on (at 611) to discuss the situations where the defence is based on compulsion – when a person faces an imminent, real and inevitable threat to his or her life such that he or she is disabled from forming a culpable state of mind. Cory J (at 612) also refers to the view stated by some learned commentators that obedience to superior orders should not be characterised as a defence but simply as one factor in determining the state of mind of the person.
35. Mr Zipser submitted that the Applicant was acting under the direction of and on the orders of a superior, as a result of which he felt pressured to act. The Applicant believed the sergeant’s orders to be lawful and, Mr Zipser contended, on the basis of the discussions in Finta (supra), it could not be argued that the acts were manifestly unlawful. As Cory J noted in Finta (supra) at 612;
The lower the rank of the recipient of an order the greater will be the sense of compulsion that will exist and the less will be the likelihood that the individual will experience any real moral choice.
Mr Zipser noted that the Applicant was the lowest rank of ordinary soldier.
36. Mr Zipser’s fourth submission was that the Applicant is entitled to the defence of compulsion as outlined in Finta (supra), discussed above. He said that he was scared that if he did not carry out his duty, he might be implicated in something or even court martialled.
Respondent
37. Ms Watson, for the Respondent said the Applicant’s evidence at the hearing as to the level of his involvement was unsatisfactory and should be contrasted with his evidence at the departmental interviews on 7 May 2001 (T6) and 14 May 2001 (T7) when he talked about slapping people on the face, lips breaking, threatening children and serious assaults on particular parts of the body which suggested dislocation of bones. Ms Watson contended that greater weight should be given to what the Applicant said at the interviews. However, the Applicant acknowledged being involved in beating civilian detainees over a period of between one and a half and five hours. In the context of threats being made to kill the person, although not at the high end of the spectrum, nevertheless this constitutes torture.
38. Ms Watson submitted that the decision in Finta (supra) is of limited application because it deals with crimes under the Canadian Criminal Code. Here, the relevant context is Article 1F of the Refugees Convention and the appropriate reference is Article 7(1) of the Rome Statute, especially the definition of torture in Article 7(2)(c), which refers to “the intentional infliction of severe pain or suffering”. In this case, pain and suffering was intentionally inflicted on the civilian population even if unwillingly.
39. Ms Watson referred to Justice Mathews’ discussion of crimes against humanity in N96/1441 (supra) at 463ff. At paragraph 65 she stated:
In my opinion, the requirement that crimes against humanity be perpetrated against a civilian population means that isolated or random acts against individuals will not be sufficient. There must be a systematic pattern of persecution aimed at members of an identifiable race or group within the civilian population.
In that case, the victims of torture inflicted by the applicant were former members of a Christian militia group, the Lebanese Forces (“LF”). They were members of an identifiable group within the civilian population in Lebanon targeted for systematic and sustained persecution. Ms Watson submitted that the facts of that case are similar to those in the current matter where parents and children of those associated with the LTTE were targeted for interrogation.
40. Ms Watson submitted that the commission of torture by the Applicant while in the Sri Lankan Army is a war crime as defined in Article 8 of the Rome Statute. The Article 8(2) definition includes torture or inhuman treatment and wilfully causing great suffering or serious injury to body or health. In the case of an armed conflict not of an international character, torture includes serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949.. Article 3 of the four Geneva Conventions in relation to “persons taking no active part in the hostilities” state as follows:
The following acts are and shall remain prohibited at any time and any place whatsoever…
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,…
outrages upon the personal dignity, in particularly humiliating and degrading treatment …
41. Ms Watson noted that the correct approach for the Tribunal is that set out by Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321 at 333:
It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as “strong”.. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.
42. Ms Watson said in her statement of facts and contentions at para 21:
In the present case, the evidence comes from the applicant himself. While he attempts to resile from some of the earlier statements made by him, he continues to admit that he inflicted assaults on prisoners, including children, which for the reasons set out above, constitute war crimes and crimes against humanity.
Ms Watson said international instruments do not allow for an ends justifying the means type argument – good reasons for performing an act of torture do not excuse that act. The acts acknowledged by the Applicant clearly amount to torture – the level of torture is not relevant.
43. With regard to the Applicant’s claimed defence of compulsion, Ms Watson referred to Justice Mathews’ discussion of this in Re W97/164 (supra) at 500-501.Her Honour said:
relevant to this defence is the need to compare the harm which would be inflicted upon an individual who refused to obey orders, and the harm which was in fact inflicted in pursuance of the orders …
Ms Watson said the Applicant had options open to him.. He could have asked to be transferred to a posting on the battlefield or he could have refused to follow orders. The Applicant was unable to point to any imminent, real and inevitable threat to his life if he refused. Rather, he preferred to stick with his interrogation duties.
Consideration of the Law and Findings
44. The issue for the Tribunal to decide is whether the Applicant is subject to the exclusionary provisions set out in Article 1F of the Refugees Convention. Relevantly, this requires the Tribunal to determine whether it should be satisfied that “there are serious reasons for considering” that the Applicant has committed a war crime, or a crime against humanity. In Dhayakpav Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563, French J said:
… “serious reasons for considering that” suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts.
In Arquita (supra) at 333, Weinberg J said, that there must be strong evidence before the decision-maker upon which it could reasonably and properly be concluded that the Applicant has committed the crime alleged. However, the evidence need not be of such weight as would be required to persuade the decision-maker on the balance of probabilities or beyond reasonable doubt.
45. Paragraph (a) of Article 1F, refers to the commission of “a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”.. The Tribunal turned to the Rome Statute, which appears to be the most recent international instrument in which crimes against humanity and war crimes are defined. The Tribunal notes that the Statute entered into force on 1 July 2002. Australia signed the Statute on 9 December 1998 and ratified it on 1 July 2002.
46. As noted above, crimes against humanity are defined in Article 7 of the Statute. Relevantly, Article 7(1) states:
1. For the purpose of the Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
…
(f) Torture;
…
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
…
(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
…
47. One of the foundation definitions of “crimes against humanity appears in the Charter of the International Military Tribunal (the “Nuremberg Charter”). Article 6(c) of the Charter relevantly states:
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 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.
48. In Polyukhovich v Commonwealth (1991) 192 CLR 501 at 596, Deane J said that the term “crimes against humanity” was:
… a convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connection with actual hostilities.
49. Mr Zipser referred the Tribunal to the decision of the Canadian Supreme Court in Finta (supra). Such a decision is a persuasive authority, and one which was cited with approval by the President of the Tribunal, Mathews J in Re W97/164 (supra). However, the Tribunal recognises that the decision was concerned with the interpretation of the Canadian Criminal Code and predates the entry into force of the Rome Statute. Nevertheless, in the context of the meaning of crimes against humanity, the Tribunal notes the similar emphasis to that in Polyukhovich (supra) that crimes against humanity involve the most grave and cruel criminal acts committed in the course of the persecution of any civilian group. In Re N96/1441 (supra), the President of the Tribunal, Mathews J said at 463:
It would be difficult to contemplate actions more barbarous than the deliberate infliction of torture of detainees as described by the applicant in his statement …
50. With these authorities in mind, in the Tribunal’s view the appropriate course is to apply the definition of crimes against humanity in the Rome Statute as the most recent authoritative statement on this matter: Re SRNN and Department of Immigration and Multicultural Affairs [2000] AATA 983. A similar approach should be adopted to the meaning of war crimes. Relevantly, Article 8(2) of the Rome Statute states:
2. For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i ) …
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
…
(b) …
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutiliation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
…
51. Once again, it is clear from the wording of Article 8(2) that the conduct must be grave or constitute a serious violation.
52. In the present case, the Respondent relied on the Applicant’s own evidence given in interviews with a departmental officer on 7 and 14 May 2001. The delegate found that the assaults committed by the Applicant on detainees constituted torture and amounted to both war crimes and crimes against humanity, and that there was evidence of a systematic pattern of persecution aimed at members of the Tamil civilian population in articles describing the mistreatment of Tamil detainees by the Sri Lankan Army.
53. The delegate discussed the possible defence open to the Applicant, namely that he acted in obedience to superior orders and under compulsion. Mr Zipser referred the Tribunal to Cory J’s discussion of this in Finta (supra), set out above. The Tribunal notes that although this defence is not specifically referred to in Articles 7 and 8 of the Rome Statute, the relevant provisions suggest that there should be an element of intention or wilfulness in the conduct.
54. Turning to the evidence, the Tribunal finds that the Applicant served as an ordinary soldier in the Sri Lankan Army from May 1997 and to March 2000. For about the last six months of this period, he served at the Army camp at Jaffna where he was responsible for interrogating detainees brought to the camp when it was thought they might have information about members of the LTTTE. There is no dispute that the Sri Lankan Army was involved in a protracted civil war against the LTTE, also known as the Tamil Tigers.
55. The Applicant’s evidence during interviews with a departmental officer on 7 and 14 May 2001 was not significantly different from that which he gave at the hearing although, at the hearing, he tried to down play his culpability. Relying on the Applicant’s evidence, the Tribunal finds that the Applicant was one of a group of five soldiers who were part of a unit responsible for interrogating detainees brought to the camp. After details of the detainees were obtained, members of the unit were responsible for interrogating detainees in order to ascertain whether they had information about members of the LTTE.
56. If a detainee was thought to be lying or to have relevant information, but was not co-operating in providing this information, members of the unit were instructed to slap the faces of the suspects, and to kick them and beat them with wooden batons of about 18 inches in length. The Applicant said he protested against this but was told to “just do it”.. He also asked for a transfer but was told he had joined the Army and had to do such work.
57. The Applicant said most of the beating was on the legs as part of a process of intimidating detainees so that they would provide information. The Applicant could not recall having caused any permanent injuries. However, during the interview on 14 May 2001, his answers to questions suggested more serious assaults involving dislocation of bones (T p145):
INTERPRETER: … always tells me, try to make the person or make the person fear and give the answer or the correct answer because he is in fear and after attempting in the first manner I said only then I start either slapping on the cheeks or using a baton or start kicking. All these orders are given by ... He will tell me at a certain stage, … will tell, now you assault him because he is not coming with the truth, coming out with the truth, so assault him.
WATSON: Okay but are you able to choose how you assault the person?
INTERPRETER: I was instructed to slap the cheeks of a person in the preliminary stage of asking questions. If the proper answer is not given by the person the next step will be to assault him with the baton. At that particular point and within that particular time I had a small opportunity to decide in which manner I could proceed with it.
WATSON: Okay, and were the people injured by these assaults?
INTERPRETER: Sometimes there were injuries, sometimes when the cheeks are slapped in a particular manner the lips break and injuries are got. Sometimes when a baton is used to beat, or kick by boots some parts of the body get numbed.
WATSON: When you say get numbed, what do you mean?
INTERPRETER: If the attack or assault was so serious that particular place of the body, I mean powerless, something like numb.
WATSON: Do you mean they won’t be able to move it again?
INTERPRETER: Yes, it’s something like it slipped from the grip.
WATSON: Slipped from the grip?
INTERPRETER: Slipped from the grip, what that word means, it slipped from the grip of the bone.
WATSON: Oh, so it becomes detached, the bone becomes detached?
INTERPRETER: Yes, not severely but in a little manner, little slippery, some sort of slippery.
58. The Applicant was also required to interrogate children brought to the camp. On at least the first two days, he was involved in questioning children of between the age of 12 and 14. The following transcript appears from the Applicant’s interview on 7 May 2001 (T p117):
WATSON:… Now in your statement you mentioned the torture of children. Can you explain what you meant by this?
INTERPRETER: The suspects of my age or similar age are assaulted but at times even the children are made frightened and made excited. Sometimes we’d threaten the children – sorry, that if you do not come with the truth we will kill you. Sometimes small children when we threaten even they urinate in fear. These children age 14 or 13 or 12.
WATSON: So was this the extent of torture of children?
INTERPRETER: The children are assaulted by slapping in their face. That was the main way of assaulting the children but teenagers of 16 or 17 are assaulted and also kicked.
WATSON:Can you describe what you, you said that you assault with you, you were ordered to assault with batons. What were these batons like?
INTERPRETER: That’s a wooden baton.
WATSON: And how long would it be?
INTERPRETER: About one and a half to two feet.
59. In evidence at the hearing, the Applicant said he only questioned children under 16 during the first two days he was at the camp. After two days, he protested and was only ever later involved in questioning older children. But he said it was sometimes necessary to threaten or hit these older children - they were sometimes keen members of the LTTE.
60. On the basis of the above evidence, the Tribunal is satisfied that there are serious reasons for considering that the Applicant was involved in acts which could be characterised as lower level torture or cruel and inhuman treatment involving the intentional infliction of both physical and mental pain and suffering. Even if the physical pain was not always severe, the mere physical threats and lower level violence could have led to more severe mental suffering, especially in the case of children.
61. The Tribunal accepts the Applicant’s evidence that, as an ordinary soldier, he was acting in accordance with the orders of his superior officer and that he protested at the interrogation techniques he was told to use. However, the Tribunal is not satisfied that the level of compulsion on the Applicant was great. On his evidence, when he protested he was told to “just do it” because this was expected of him in the Army, and it was too soon to transfer him elsewhere. There does not appear to be any evidence of specific threats made to him if he did not comply. The Applicant also, presumably, had the option of asking to be transferred to a frontline unit. Even though he might not have liked this, he had served in such units in both Trincomalee and Elephant Pass.
62. The Tribunal has referred to various reports on the situation in Sri Lanka contained in the Tribunal documents. These attest to policemen and soldiers “who flagrantly violate the rights of innocent civilians” (T p200). Clearly, Tamil civilians were targeted (T pp227, 232). It should also be noted that the LTTE have been guilty of gross violations of human rights and “reportedly used torture on a regular basis” (T p267). The LTTE was fighting to establish a separate state in the north and east of Sri Lanka for the Tamil minority (T p287), and engaged in assassinations, hostage-takings, hi-jackings and bombing of civilian targets (T p302).
63. Nevertheless, the Tribunal is satisfied that the Sri Lankan Army was involved in systematic persecution of a civilian group, namely the Tamil population. The Tribunal therefore finds that there are serious reasons for considering that the Applicant was involved in committing war crimes namely of torture or inhuman treatment against Tamil civilians.
64. In conclusion, the Tribunal finds that there are serious reasons for considering that the Applicant committed crimes against humanity and war crimes. Pursuant to Article 1F(a) of the Refugees Convention, he is not therefore a person to whom Australia has protection obligations under the Convention. The decision under review is affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................................................................
AssociateDate/s of Hearing 20 August 2003
Date of Decision 19 September 2003
Representative for the Applicant Mr B Zipser, Counsel
Representative for the Respondent Ms D Watson, Solicitor
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