Saved by sunken dreams

In Attorney-General v Tamil X [2010] NZSC 107 the New Zealand Supreme Court applied JS (Sri Lanka) v SSHD [2010] UKSC 15 (discussed here 16 April 2010). The case concerns whether X was disqualified from obtaining refugee status. Two grounds for disqualification were advanced: his participation in a crime against humanity, and his commission of a serious non-political offence.

Here, the sinking of a ship which carried weapons meant that no crime against humanity was committed as a result of any support that X may have given, as Chief Engineer onboard, to the Tamil Tigers during the vessel’s last voyage bound for Sri Lanka. The Crown had acknowledged that no attempt was committed on the particular facts, which included findings that X was a loyal supporter of the Tamil Tigers, and he knew that he was helping to smuggle arms to Sri Lanka.

The Supreme Court held that all the necessary elements for X’s personal responsibility for participating in a joint criminal enterprise to commit crimes against humanity were established on the facts (71), except that there was no proof of criminal acts of the Tamil Tigers in which it could be said that X was complicit, as the sinking of the ship resulted in no use of the weapons (72, 73, 75, 78). The point of joint enterprise liability is to make liable those who assist or contribute to crimes that are actually committed (79).

Another issue was whether X had committed, by other conduct, a “serious non-political crime”. He had been convicted in India of being a party to the intentional destruction of a vessel carrying explosives in circumstances where danger to lives was likely (83). If this was accepted by the New Zealand authorities, that would establish X had committed a “serious crime”, but was it “non-political”? That term is not defined (87). It is a question of the context, methods, motivation and proportionality of the crime to the offender’s political motives (90), bearing in mind that (although it is not the norm in New Zealand) violence may be an incident of political action in many other countries (91, applying Kirby J’s dictum in Minister for Immigration and Mulitcultural Affairs v Singh [2002] HCA 7 at para 106).

Here, X’s conduct was political: there was not the “indiscriminate violence against civilians which would make the link between the criminal conduct and any overall political purpose too remote.” (95)

There was thus no evidence of non-political crimes that would have disqualified X from obtaining refugee status. Nor was there evidence that he should be disqualified by reason of participation in a crime against humanity.

It seems that the Crown’s concession that there was no attempt to commit a crime against humanity on these facts was important to the outcome. It was properly made, in view of decisions in domestic law about the difference between preparation to commit an offence and attempting to commit it. The distinction is sometimes difficult to draw, and can be controversial. The failure of a bomb to detonate would not save participants from liability for the attempt. But being interrupted in the process of assembling the ingredients for the bomb might. Generalisations are dangerous.

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