Does a Zimbabwe farm invader get refugee status?

SK (Zimbabwe) v Secretary of State for the Home Office 19 June 2012 – read judgment

This case raises the interesting question whether someone who was involved as a member of the ruling Zimbabwe Zanu PF party with farm invasions can be eligible for refugee status. The answer is a definite no: the High Court held that the Upper Tribunal had been entirely correct in finding that a Zimbabwean national, who had beaten farm workers in farm invasions intended to drive farmers and farm workers away from their farms, had committed inhumane acts amounting to crimes against humanity under the Rome Statute art.7(1)(k) and therefore by virtue of the Convention relating to the Status of Refugees 1951 (United Nations) art.1F(a) was excluded from refugee status.

Background Facts

The appellant was a Zimbabwean asylum seeker. She had been actively involved with Zanu PF mobs in two farm invasions, shortly after which she was raped by another member of the youth militia. It was this rape which had led to her leaving Zimbabwe for England, after eleven months in the militia.

Her application for asylum was unsuccessful because the secretary of state found that the Refugee Convention did not apply to her because by her own admission she had beaten farm workers in two farm invasions perpetrated by the government party’s youth militia and intended to drive the farmers and farm workers away from farms in respect of which eviction notices had been served. The secretary of state found that those actions amounted to crimes against humanity under art.7(1)(k) which provides as follows:

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:

…

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The requirement of the context of a widespread or systematic attack on civilian population, of which the individual concerned has knowledge, is known as thechapeau requirement, for it takes its place at the head of the definitions of the listed acts, and applies to each of them. Asylum was refused under Article 1F(a) of the Refugee Convention, so the question turned on what amounts to a crime against humanity for the purpose of that provision. The best working definition is that contained in Article 7.1 of the Rome Statute.

The judgment

The Upper Tribunal had found that these two farm invasions were part of widespread systematic attacks against the civilian population of farmers and farm workers, carried out not just with the full knowledge of the regime but as a deliberate act of policy by it, with the intention of advancing its grip on power, suppressing opposition, and helping its supporters:

These acts were obviously inhumane and were, in our judgment, of a similar character to those in sub-paragraph (h) of Article 7 [the crime of “persecution”]. These acts were clearly persecutory acts against an identifiable group, farmers and farm workers. They were undertaken for political reasons, the suppression of perceived opposition and for the financial advancement of the regime members and supporters. There was a clear racial element in the attacks on the farms, and the farm workers who were a necessary part of the white farmers’ ability to benefit from the farm.

The residual category of crimes against humanity listed in the Rome Statute should of course be interpreted conservatively and must not be used to expand uncritically the scope of “crimes against humanity” . But, as Rix LJ sets out in para 61 of the judgment, The critical feature of the requirement of “similar character” was that “other inhumane acts” should be, by their nature and the gravity of their consequences, of comparable character to the other enumerated crimes under art.7(1). They plainly did not, otherwise, have to share the elements of those other crimes. If they did, they could not be “other” inhumane acts. The critical epithet in any event was “similar”, not “identical” or “same”. It was clearly contemplated that violence short of killing or an intention to kill could fall within art.7(1)(k). Similarly, it was contemplated that violence might lead to serious consequences other than bodily injury, consequences such as “great suffering” or injury to “health”, mental or physical, as the text of art.7(1)(k) revealed.

What constituted “other inhumane acts” of similar character was a matter of evidence, but also for judgment, and could depend on the circumstances. The “chapeau” requirement itself, namely the need of the context of a widespread or systematic attack on civilians, would necessarily underline the gravity of the crime. The crime had to have, in its context, in its intention, and/or in its consequences, an aspect that went beyond the nature of merely domestic crime, and called for international sanctions. The expulsion of persons from their homes, accompanied by terror and the burning of their homes, so that the victims lost their livelihood, might have similarities with both the crime of persecution and the crime of forcible transfer of population, even in the absence of discrimination and against the background of a domestic law which might purport to state that the victims lacked the element of being lawfully present which was necessary to the crime under art.7(1)(d) .

Rix LJ found it significant Campbell and others v. Republic of Zimbabwe (SADC (T) Case No 2/2007), the SADC tribunal held that the farmer applicants had been discriminated against on the ground of race, and their farms improperly expropriated without compensation in breach of international law. (Anyone who has seen the documentary about the events leading up to this case, and the protracted litigation itself, Mugabe and the White African, will appreciate the gravity of the crimes committed against the applicants).

The Court found that the evidence before the Upper Tribunal had fully justified its findings in relation to farm evictions in Zimbabwe. There were serious reasons for considering that the appellant had participated in events of the utmost seriousness, partaking of acts in the nature of discrimination, persecution, forced displacement of persons and inhumane acts. It was plain that, for the purposes of “other inhumane acts”, the consequences of acts of violence had to be great or serious, either in terms of suffering or injury. The Upper Tribunal had not misunderstood the statutory language or its fact-finding duties. Its findings that the intention behind the farm invasions was to cause great suffering or inflict serious physical or mental injury, and that aim was achieved, were binding on the instant court, but in any event were clearly justified on the appellant’s own admissions as to what she did or participated in. It may be that Zimbabwe has avoided the “extreme calamity” of genocide that has befallen other countries, such as Rwanda and the Balkan states:

It is not surprising that such prosecutions [before the International Crimes Tribunal etc] 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.

In short, where the conduct in question involves direct participation in severe beatings and joint enterprise responsibility in the two farm invasions as a whole, and where this is done as part of a widespread and systematic attack on such farms for political and discriminatory aims such as can fairly be described as persecutory and as involving the forcible transfer of populations (whether or not amounting to those separate crimes), the Upper Tribunal was fully justified in concluding that, pursuant to 1F(a) of the Refugee Convention, the appellant should be excluded from refugee status.