This appeal raises the narrow but important issue of the content of the international crime of “other inhumane acts” under article 7(1)(k) of the Rome Statute (Footnote: ¹). It arises because the appellant, SK, has been excluded from the protection of the Refugee Convention (Footnote: ²), pursuant to its article 1F(a), by reason of the findings of the Upper Tribunal in its determination dated 6 August 2010 (Ouseley J and SIJ Eshun).

The issue is narrow, in the context of this litigation, because there is no appeal, even if there could be, on any findings of fact; nor any issue as to whether SK may be said (the article 1F test is that “there are serious reasons for considering…”) to be allegedly (and indeed, admittedly) responsible for serious acts of brutal injury in her home country of Zimbabwe. But it is argued on her behalf, as appellant in this court, that even so her acts do not amount to the international crime of “other inhumane acts” under the Rome Statute, because, on the true interpretation of that statute, the facts found against her by the Upper Tribunal cannot, for the purposes of the article 1F(a) test, amount to that crime, which is submitted to be of still greater seriousness.

The issue is important because we are asked to consider what the scope of that crime is. We have been assisted by plenteous citation of jurisprudence from the International Criminal Court (the “ICC”) and the international tribunals for the Former Yugoslavia and Rwanda, as well as by references to scholarly treatises.

I will refer further to the provisions of the Rome Statute and its ancillary Elements of Crimes below. For the present we highlight the essential clause by reference to which SK has been excluded, to be found in article 7(1)(k):

The requirement of the context of a widespread or systematic attack on civilian population, of which the individual concerned has knowledge, is known as the chapeau requirement, for it takes its place at the head of the definitions of the listed acts, and applies to each of them. There is no issue in the present appeal but that the chapeau requirement has been met in this case.

What this appeal is about is rather the two requirements of sub-paragraph (k) itself: (i) “of a similar character”, and (ii) “causing great suffering, or serious injury…”. On behalf of SK, Mr Richard Hermer QC has submitted that, on the findings of the Upper Tribunal, neither of these constituents of the crime of “other inhumane acts” can, as a matter of law, be said here to have been fulfilled. In essence, Mr Hermer submits that “of a similar character” imports above all the need for the acts under sub-paragraph (k) to be of the same gravity as the other listed acts in article 7(1), that both requirements (i) and (ii) must be viewed from that perspective, and that, serious as SK’s responsibility may be, it does not amount and cannot be viewed as amounting to the fulfilment of those requirements. As he, and his junior, Ms Alison Pickup, write in their supplementary skeleton: “It is no part of the Appellant’s case to belittle her culpability for the crimes that she committed. As she herself acknowledges, they were undoubtedly serious criminal acts which plainly infringed the human rights of the victims. The Appellant’s case is however that they cannot properly be defined as crimes against humanity, a class that stands apart as the most serious crimes of concern to the international community as a whole. Any court, domestic or international, should be astute to ensure that the crime is interpreted strictly and reserved only for cases of the utmost gravity not least to avoid diluting and demeaning the power of the charge of a crime against humanity.”

Article 1F contains an exclusion, as follows:

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;

he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

he has been guilty of acts contrary to the purposes and principles of the United Nations.”

Although SK has succeeded to some extent in her litigation with the respondent Secretary of State, in that it has been accepted that she would face a real risk of being subject to serious ill-treatment if she were returned to Zimbabwe, sufficient to breach her rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), she has so far failed to achieve the status of a refugee under the Refugee Convention. Therefore her appeal against the decision of the Secretary of State to remove her succeeded on human rights grounds, but failed on refugee status grounds. We bear in mind the importance and value of that status (see for instance the UNHCR Guidelines on International Protection at paras 8/9).

The standard of proof under article 1F is “serious reasons for considering”. This is what Lord Brown of Eaton-under-Heywood JSC said about that standard in Regina (JS (Sri Lanka)) v. Secretary of State for the Home Department [2010] UKSC 15, [2011] 1 AC 184 (where war crimes under article 1F(a) were under consideration):

The UNHCR Guidelines at para 35 state this:

In the present case, as will become clear, the evidence is largely based on SK’s own evidence. Moreover, the issue on appeal is essentially one of law, not of fact.

SK’s appeal from the decision of the Secretary of State to remove her as an illegal entrant came first before IJ Buchanan in the Asylum and Immigration Tribunal (AIT). His determination was dated 4 February 2009.

SK is a citizen of Zimbabwe, now 31 years old. She arrived in the United Kingdom on 23 October 2002 and asked for asylum on 1 May 2008. She was interviewed in connection with her claim on 21 May 2008. For the purposes of her appeal to the AIT she relied inter alia on her own witness statements and on an expert report on Zimbabwe by Dr Steve Kibble. She admitted wrongdoing, as a member of the Zanu PF youth militia, in connection with inter alia two farm invasions, in April and October 2002, but said that she had been the victim of duress.

She had certainly suffered misfortune in her life. When she was five, her parents were killed in a traffic accident. She had gone to live with her maternal grandparents, but they were killed in a fire started by a lightning strike. She then went to live with her maternal uncle. In 1999 she married, but her husband died of poisoning caused by home-made alcohol, so she returned to her uncle’s house. He was an ardent supporter of Zanu PF. In November 2001 he prevailed on her to join the Zanu PF youth militia to campaign for the party. The socialising required of that militia involved alcohol, cannabis and sex. She was sent to nearby villages to force people to attend Zanu PF meetings and rallies.

However, the Secretary of State’s case that she should be excluded from the Refugee Convention was ultimately based in particular on the two farm invasions I have mentioned, about which her evidence was as follows (as set out in IJ Buchanan’s determination, itself quoted in the determination of the Upper Tribunal):

Not long after this second farm invasion, 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.

In her first, handwritten, witness statement, made on the day of her asylum interview, she had said this:

In her interview, she was asked (question 76) whether she had ever been involved in any one’s death and replied: “If you beat them so hard they can’t get out or go away, I wouldn’t be surprised.” In her subsequent detailed witness statement and in her evidence at the hearing, however, she –

IJ Buchanan expressed his own findings in this way:

IJ Buchanan then went on to consider SK’s submission that she had been subject to duress from her uncle, and subject to superior orders. He rejected these defences, and they are no longer in issue. He concluded that the exclusion in article 1F applied to SK’s asylum claim.

IJ Buchanan did not, however, make clear findings about the chapeau requirement of article 7(1) of the Rome Statute (but he did find that SK “was aware of the actions taken against civilians” see above within his para 85), nor did he set out that article, nor did he identify which crimes against humanity within that article he had in mind in making his findings. However, he had previously set out within his determination the submissions on behalf of the Secretary of State which were to the effect that the respondent was putting her case for exclusion on a broad basis. Thus –

The respondent’s case as outlined by IJ Buchanan then went on to make submissions about SK’s own evidence, summed up in the determination as follows:

The Solidarity Peace Trust’s report, referred to in the passage cited above, was one of a number of reports about the activities of the youth militia at that and later times, placed before the AIT by SK or the respondent.

It will have been observed that IJ Buchanan did not go into any detail as to how much of the respondent’s case he had accepted. Perhaps he had accepted it all. Clearly, he had to have accepted a critical part of it to have come properly to his conclusion.

These uncertainties led to an application for reconsideration, which was granted by Mitting J on paper by order dated 17 June 2009 in these terms:

Thus permission was given for reconsideration on the single issue of whether the acts in which SK participated were “other inhumane acts of a similar character” to the acts listed in article 7.1(a) to (j).

The first stage of the reconsideration came before SIJ Nichols who gave her decision, finding an error of law and requiring reconsideration, on 9 December 2009. She wrote:

The Upper Tribunal decided that it needed to hear further evidence from SK. It stated –

The detailed consideration then given to the issue posed by Mitting J regarding article 7.1(k), and the hearing of further evidence from SK, led the Upper Tribunal to give new attention to her responsibility under the Rome Statute for her acts. The Upper Tribunal therefore considered articles 25 and 30 of the Rome Statute and JS (Sri Lanka) which had been recently decided in the Supreme Court. It continued:

The Upper Tribunal next considered SK’s activities by reference to the context of what the youth militia were doing in Zimbabwe at that time in general. Thus the determination continued:

The determination’s next heading concerned the fresh evidence which SK had given to the Upper Tribunal itself:

The determination’s next heading was “Were the farm invasions crimes against humanity?”. As this passage stated at its start, this comprised the sole issue on which Mitting J had ordered reconsideration. (Indeed, Mitting J’s defined issue may have been even narrower, viz whether the acts were “of a similar character”. However, no point was taken as to that.) I will set out the passage under this heading in full:

The determination’s final heading was “Participation”. That was not the issue for reconsideration, however it is understandable that the Upper Tribunal revisited it where it had chosen to hear further evidence from SK and where the mens rea elements of the Rome Statute could be said to be involved in their decision as to whether there were serious reasons for considering that any crime against humanity within its article 7 had been committed by her.

The Upper Tribunal said:

In sum, therefore, on her own admission SK participated in two farm invasions, as part of a widespread and systematic attack against the civilian population. Although no one was killed on these two invasions (as distinct from others), she had fully and intentionally participated on a joint enterprise basis in the beatings and burnings committed at them. She had personally beaten many people on these occasions, and had beaten one woman so hard that she had thought her victim would die. The invasions were politically inspired mob violence, intended to drive the farmers and their workers off the land, never to return. To do this, their homes were to be burnt and they were to be terrified into submitting to their fate. The intention behind these two invasions (as others) was “to cause great suffering or inflict serious physical or mental injury”. That aim “was achieved” by the mob violence of beatings, burnings and lootings in a deliberately brutal and terrifying experience. SK had made a substantial contribution to these events and shared the intention behind them. These acts were “obviously inhumane” and “of a similar character” to the crime of persecution referred to in sub-paragraph (h), involving as they did a “clear racial element”. SK was responsible for the crime against humanity found in sub-paragraph (k).

There is no dispute as to the chapeau requirement at the start of article 7. It might have been said that the Upper Tribunal’s expression of its finding as to the chapeau requirement at its para 36 was infelicitous for the purpose of identifying SK’s knowledge of the regime policy behind the farm invasions: but no point has at any time been made about this and it is accepted, as must be the case on SK’s own evidence, that the mens rea element of the chapeau requirement has been sufficiently proved.

It will have been observed that over the course of the litigation the Secretary of State’s case has been narrowed, from its original more general accusation against SK that she was responsible, by reason of her participation in the farm invasions but also other political attacks on non-supporters of the regime, for the crimes of murder, rape and torture committed by the youth militia on a wider basis, to a more refined concentration on the two farm invasions in particular. However, the more general situation has always remained the context, relied upon by the Secretary of State, in which these two farm invasions took place.

The Upper Tribunal was in any event conscious of the principles which are applicable to such cases, and which have been explored in JS (Sri Lanka) and in KJ (Sri Lanka) [2009] EWCA Civ 292, [2009] Imm AR 674 to which Lord Brown referred in his judgment in JS (Sri Lanka). SK was neither a mere member, such as did not participate in the activities of an organisation beyond membership alone, nor was she a senior officer or planner, whose responsibility lies not so much in direct participation as in the conspiring and originating of the offences. In KJ (Sri Lanka) Stanley Burnton LJ said this:

SK’s amended grounds of appeal for which she has received permission to appeal are limited to two issues of law, as indicated above. The first complains that the Upper Tribunal erred in holding that the farm invasions were inhumane acts “of a similar character” to persecution; the second complains that the Upper Tribunal erred in law with respect to article 7.1(k) in that it misdirected itself as to the meaning and/or effect of the requirement of “great suffering, or serious injury to body or to mental or physical health”, in that “its findings of fact do not permit the conclusion that this requirement was met.” If this second complaint goes beyond the limits to which Mitting J confined reconsideration, no point has been made of this.

The Preamble to the Rome Statute provides inter alia as follows:

The emphasis on “the most serious crimes” there marked is enacted in the Statute’s article 5 (“Crimes within the jurisdiction of the Court”):

The crime of genocide;

Crimes against humanity;

War crimes;

The crime of aggression…”

Article 7 is headed “Crimes against humanity” and needs citation (almost) in full:

Murder;

Extermination;

Enslavement;

Deportation or forcible transfer of population;

Imprisonment or other severe deprivation of physical liberty in violation of fundamental principles of international law;

Torture;

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of this Court;

Enforced disappearance of persons;

The crime of apartheid;

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

‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

‘Deportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive means from the area in which they are lawfully present, without grounds permitted under international law;

‘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;

‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time…”

Article 8 concerns “War crimes”. These require a context of armed conflict, for they require “Grave breaches of the Geneva Conventions of 12 August 1949” or “Other serious violations of the laws and customs applicable to international armed conflict” or, to an extent defined in detail, of “armed conflict not of an international character”. Among the grave breaches of the Geneva Conventions listed are “Wilfully causing great suffering, or serious injury to body or health” (article 8.2(a)(iii), which reflects the language also found in article 7.1(k)).

Article 9 (“Elements of Crimes”) states that such a document “shall assist the Court in the interpretation and application of articles 6, 7 and 8”. The Elements of Crimes contain the following provisions of relevance:

On behalf of SK, Mr Hermer emphasised that the wording of the preamble and of article 5 underlines the seriousness of any of the listed crimes, as does the requirement within article 7(1)(k) itself that “Other inhumane acts” must share a “similar character” with previously listed crimes. He also emphasised that the requirement of “great suffering” etc similarly reflects the seriousness of the crime stated within sub-paragraph (k); and pointed to footnote 30 within the Elements of Crimes, to the effect that “character” refers to the nature and gravity of the act. As for the crime against humanity of persecution, to which the Upper Tribunal referred in its determination, he emphasised the requirement that the proscribed conduct be committed “in connection with” some other act within article 7, and the fact that this requirement is separately picked up and listed within the Elements under article 7(1)(h). As for the crime against humanity of deportation or forcible transfer of population, to which the respondent’s notice and submissions for the Secretary of State have also referred, Mr Hermer emphasised the element of that crime which requires that the victims should be “lawfully present” in the area from which they are displaced, and submitted that in the present case they were not so lawfully present, since an eviction notice had been served on the farmers in question under Zimbabwe’s land reform legislation. (Footnote: ³)

In all his submissions Mr Hermer was at pains to underline the gravity which any crime must display for it to come within the purview of article 7, as well as the strictness with which the necessary criteria for the finding of a crime within the Statute must be applied. The concern, he suggested, was that the nature of a crime against humanity as one that offends the conscience of humanity should not be watered down: see Prosecutor v. Erdemovic (ICTY, judgment of Judge McDonald and Judge Vohrah, 7 October 1997) at paras 21/22). However, that is the importance of the chapeau requirement (in the ICTY (International Criminal Tribunal for Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda) statutes being indicated quite simply, by the words “directed against any civilian population”), as was well explained early on in Prosecutor v. Tadic (ICTY, IT-94-1-T, judgment 7 May 1997):

On the whole Mr Hermer’s submissions sought to emphasise the gravity rather than the nature of “other inhumane acts”, or else to emphasise that the necessary nature of such acts was that they partook of the gravity of the other listed crimes. At other times, however, Mr Hermer suggested that the concept of “similar character” necessitated the appearance of the elements of the other enumerated crimes, or submitted that the absence of such elements meant that conduct could not be charged as “other inhumane acts” of a comparable nature. The commentaries concerning article 7 would appear, however, to support Mr Hermer’s former, and main, approach, for they emphasise the deliberate width of the language of the crime, subject to its requirement of gravity.

Thus Amnesty International’s memorandum of January 1997, submitted to the United Nations in support of the creation of an international criminal court and entitled “The International Criminal Court: Making the Right Choices”, at its chapter IV.J “Other inhumane acts”, made the point, via citation of the ICRC Commentary on article 3 of the Geneva Conventions, that it is always dangerous to go into too much detail and that the flexibility of the wording is a virtue, and went on to say this:

Professor Darryl Robinson’s Defining “Crimes against Humanity” at the Rome Conference, AJIL Vol 93, No 1 (Jan 1999) at 43 said this about “Other inhumane acts”:

Professor William Schabas, in An Introduction to the International Criminal Court, 2^nd ed, 2004, speculated (at 49/50) whether the requirements of sub-paragraph (k) may have narrowed the concept of “other inhumane acts” as it is found in the statutes setting up the international criminal tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). Those statutes, by their articles 5 and 3 respectively, simply refer to “other inhumane acts” without further definition. In Prosecutor v. Akayesu (ICTR-96-4-T, judgment 2 September 1998) the forced nakedness of Tutsi women was sanctioned as “other inhumane acts”. Similarly, in Prosecutor v. Krstic (ICTY, IT-98-33-T, judgment 2 August 2001), the forced bussing of thousands of women and children, in overcrowded and unbearably hot conditions, was considered to be an inhumane act. Schabas comments:

Despite the unadorned language of the crimes listed in the Former Yugoslavia and Rwanda statutes, ending in “Other inhumane acts”, the tribunals concerned have nevertheless developed their own jurisprudence to limit such crimes to reflect doctrines of international criminal law, and such doctrines and jurisprudence are reflected in the language of the Rome Statute itself. Thus in Prosecutor v. Kayishema and Ruzindana (ICTR-95-1-T, judgment 21 May 1999) the Rwanda Tribunal said this (at para 583):

Prosecutor v. Galić (ICTY, IT-98-29-T, judgment 5 December 2003) contains this:

there was an act or omission of similar seriousness to the other acts enumerated in Article 5;

the act or omission caused serious mental or physical suffering or constituted a serious attack on human dignity;

the act or omission was performed intentionally by the accused or persons for whose acts and omissions the accused bears criminal responsibility.

This jurisprudence has been cited and relied on by the ICC itself, for instance in Prosecutor v. Katanga and Chui (ICC-01/04-01/07, judgment 30 September 2008) at paras 448-494: even if the court there noted that under the Rome Statute a crime could not fall within sub-paragraph (k) if it would fall within any of the other sub-paragraphs of article 7(1), emphasising the word “other”. Thus where the specific intention of the accused in attacking civilians was to cause death “rather than the intent to cause severe injuries” (at para 458), the attempted, even if not completed crime, had to be charged under sub-paragraph (a) rather than sub-paragraph (k). However, whether the ICC (pre-trial chamber) in Katanga and Chui was right to suggest that the ICTY and ICTR used “other inhumane acts” as a “catch all provision” (see at para 450) may be doubted: see, for instance, Prosecutor v. Kayeshima and Ruzindana (ICTR-95-1-T, judgment 21 May 1999) at para 583, cited above.

We have been referred to the following examples of the treatment of “other inhumane acts” from the jurisprudence both of the ad hoc tribunals and of the ICC itself.

In Prosecutor v. Katanga and Chui (ICC-01/04-01/07, judgment 30 September 2008) the ICC held that there was “sufficient evidence to establish substantial grounds to believe” that the war crime of inhuman treatment (see article 8(2)(a)(ii) of the Rome Statute) had been committed where civilians had been detained, with their hands tied for many hours, in a room filled with corpses, hence suffering “severe physical and mental pain and suffering” (at paras 362-364).

In Prosecutor v. Krnojelac (ICTY, IT-97-25-T, judgment 15 March 2002), the ICTY was concerned with various incidents of beatings of detainees, charged either as cruel treatment within article 3 or as other inhumane acts under article 5(i) of its statute (at paras 189ff). Some charges succeeded, while others failed for various reasons, such as lack of sufficient evidence of the level of gravity involved, or of lack of sufficient evidence of personal responsibility. However, it would be difficult to say that the evidence against SK in this case was not at least of the same, if not greater seriousness than some of the beatings referred to in that case.

In Prosecutor v. Mbarushimana (ICC-01/04-01/10, judgment 28 September 2010, the pre-trial chamber confirmed a warrant of arrest which contained in it a charge of other inhumane acts inter alia for forcing men to rape women (count 9).

In Prosecutor v. Muthaura (ICC-01/09-02/11, judgment 23 January 2012) the pre-trial chamber had to consider whether to confirm charges under the Rome Statute arising out of election violence in Kenya. Under the heading of “Other inhumane acts” (at paras 267ff) the chamber considered charges concerned with victims who were beaten, or suffered forcible circumcision or penile amputation, or other mutilations or severe injuries, or forced to watch as attackers killed husbands and children, or whose property was destroyed. The chamber directed itself that “this residual category of crimes against humanity must be interpreted conservatively and must not be used to expand uncritically the scope of crimes against humanity” (at para 269). The chamber considered the injuries, the witnessing of deaths of family members, and the destruction of property separately. The injuries, variously described as above or as “cases of trauma, including cuts, gun-shot wounds and blunt force trauma” (at para 272) gave rise to confirmed charges, as did the forced witnessing of family deaths; but the destruction of property did not. The chamber said of the injuries that “these acts of serious physical injury inflicted great suffering on the victims, of a character similar to the other acts referred to in article 7(1) of the Statute” (at para 273); of the forced witnessing of the deaths of others, that it “caused serious mental suffering, and are comparable in their nature and gravity to other acts constituting crimes against humanity” (at para 277); but in the case of the destruction of property, that the intensity of the alleged mental suffering had not been established (at para 279). The distinction appears to have been drawn because of the formulation of different counts against different defendants.

On the other hand, there is authority that the destruction of homes might in context lend seriousness to conduct which could be regarded as a crime against humanity. Thus, in the course of discussing the crime against humanity of “persecution”, and drawing parallels between both that crime and the crime of “other inhumane acts”, the ICTY (trial chamber) in Prosecutor v. Kupreskić (IT-95-6-T, judgment 14 January 2000), pointed out that a distinction may have to be drawn between the confiscation of industrial property and the destruction of homes. Thus it referred to the Flick case (heard by the US Military tribunal sitting at Nuremberg) and pointed out, on the basis of Notes on the Case, UNWCC, Vol IX at 50, that the judgment in that case declared that “A distinction could be made between industrial property and the dwellings, household furnishings and food supplies of a persecuted people”, such that “offences against personal property as would amount to an assault upon the health and life of a human being (such as the burning of his house or depriving him of his food supply or his paid employment) [might] constitute a crime against humanity” (see footnote 897 to para 619 of Kupreskić). The trial chamber continued (at para 631):

In Prosecutor v. Blaskić (ICTY, IT-95-14-T, judgment 3 March 2000) the trial chamber referred (at para 146) to this passage in Kupreskić and said that “The Appeals Chamber agrees with this assessment.”

In sum, in my judgment, the critical feature of the requirement of “similar character” is that “other inhumane acts” should be, by their nature and the gravity of their consequences, of comparable (“similar”) character to the other enumerated crimes. They plainly do not, otherwise, have to share the elements of those other crimes. If they did have to do so, they could not be “other” inhumane acts, as the ICC emphasised in Katanga. The critical epithet in any event is “similar”, not “identical” or “same”. As violence goes, other inhumane acts will necessarily fall short of killing, for that is a separately listed crime under the title of “murder”. However, it is clearly contemplated that violence short of killing or an intention to kill may fall within article 7(1)(k), as demonstrated by the citations above (and see, for instance, Robinson’s reference to “particularly violent assaults” cited at para 49 above, which seems to me to fit well with the findings in this case). Similarly, these citations demonstrate that it is contemplated that violence may lead to serious consequences other than bodily injury, consequences such as “great suffering” or injury to “health”, mental or physical, as indeed the text of the sub-paragraph (k) itself reveals. What constitutes “other inhumane acts” of similar character is, of course, a matter of evidence, but also for judgment, and may depend on all the circumstances of the case. Indeed, the requirement of sufficient seriousness is the inescapable lesson of almost every aspect of the definition in question, and all these aspects tend to merge into one another in emphasising the necessity for sufficient seriousness. Thus, the chapeau requirement itself will necessarily underline the gravity of the crime (as ICTY explained in Tadic). Similarly, the requirement of “great suffering” (etc) makes its own demands. And the need for “similar character” likewise enforces or re-inforces in its own way the requirement of comparability across the enumerated crimes. The crime must have, in its context, its intention, and/or in its consequences, an aspect which goes beyond the nature of merely domestic crime, however shocking (as it may be), and calls for international sanctions.

One factor, but not necessarily indispensable if other factors are present, is that the other inhumane acts partake of some or other element of the previously enumerated crimes: so that the closer that a crime which does not quite fit with nevertheless approaches to those other categories, the more that one can speak of its “similar character”. Thus the crime of “torture” extends to “severe physical or mental pain or suffering” (see Elements of Crimes concerning article 7(1)(f)), which clearly may overlap with violence inflicted under sub-paragraph (k): but “torture” also requires the element of the victim being “in the custody or under the control of the perpetrator” (Elements of Crimes, ibid) or, as article 7(2)(e) itself puts it, “upon a person in the custody or under the control of the accused”. Thus violent beatings may clearly be “of similar character” to “torture”, even though the element of custody or control is not present. Similarly, the nature of persecution, with its requirement of discrimination on certain grounds, may never be all that far away from violence and other forms of inhumane acts which are meted out to opponents of a regime, as the Upper Tribunal itself observed in the present case. I will return to the crime of persecution below, because Mr Hermer addressed some more or less technical arguments about it in relation to its requirement of “in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”.

Again, as discussed in the jurisprudence cited above, the expelling of persons from their homes, accompanied by terror and the burning of their homes, so that the victims have lost their livelihood, may have similarities with both the crime of persecution and the crime of “forcible transfer of population”: even in the absence of discrimination, and even against the background of a domestic law which might, as a matter of merely positivist rule (but nevertheless well arguably lacking in international recognition and respect), purport to state that the victims lack the element of being “lawfully present” which is necessary to the crime under sub-paragraph (d) (as in this case it is suggested that the eviction notices which may have been served on the white farmers could legalise the expulsion of them and their farm workers). I will similarly revert to the crime of “forcible transfer” below.

Mr Hermer submits that the Upper Tribunal’s reference to the crime of persecution under sub-paragraph (h), as a crime of a “similar character” is illegitimate or unhelpful, because, first, that crime itself requires a discriminatory breach of the most fundamental of human rights, and, secondly, the requirement that persecution takes place “in connection with” some other act proscribed by the Statute means that the argument simply comes round in a circle. In other words, if reliance on sub-paragraph (k) cannot be made good, there is nothing to be gained by reference to sub-paragraph (h).

To illustrate those submissions, I refer to some further jurisprudence and scholarly material.

The latter suggests that it is not easy to formulate the consequences of the need for that “connection”: see Robinson’s article in AJIL, cited above, at 54/55, Schabas’s International Criminal Court: a Commentary, 2010, at 177/178 and Professor Antonio Cassese, The Rome Statute of the International Criminal Court: a Commentary, 2002, at 376. Its inclusion appears to reflect a compromise whereby the uncertain scope of persecution (“vague and potentially elastic” in the views of certain delegates, see Robinson) on the one hand, and the concern on the other hand that, if it had to be grounded in some other crime, it would become merely an aggravating factor to some other crime, or “recondite” and emasculated (as Schabas puts it), were balanced. However, as Cassese comments, probably correctly: the phrase “is unclear and susceptible of many interpretations”. Robinson helpfully suggests that the answer to this uncertainty is perhaps that –

As for jurisprudence, this appears to bear out Robinson’s comment. Thus in Kupreskić the ICTY trial chamber said this about the crime of “persecution”, in its unvarnished statute:

In Prosecutor v. Tadić the ICTY trial chamber said this:

This citation of authority and learning no doubt needs to be treated with care. The ICTY statute is not the same as the Rome Statute, for the former lists the crimes against humanity without specifying requirements and elements and instead derives those from customary international law; and it has been said (by Professor Cassese) that the Rome Statute’s requirement of the “in connection with” link is not required by customary international law. Nevertheless, in my judgment it is not possible to read such texts without the strong impression that the drafters and interpreters of the various statutes, which after all are by and large equally based on the same material, are uniformly seeking the same ingredients for such crimes: a combination of flexibility and definition, and a concentration on the most serious of crimes, marked by really serious consequences, so that, in one or another form, under one or another label, the crimes against humanity will be recognised for what they are intended to be. As the ICTY trial chamber recognised in Kupreskić, and as Professor Robinson recognised in the passage cited above, there is likely to be a strong affinity between the crimes of “other inhumane acts” and “persecution”. Certainly, on the findings of the Upper Tribunal, there is no shortage of individual “other inhumane acts”. On those findings, there is a strong affinity between the “other inhumane acts” found by the Upper Tribunal and the crime of persecution. This is, to my mind, all the clearer when the evidence on which the Upper Tribunal made its findings about the context of the farm invasions is considered (see below), and this is equally true of the affinity with forcible transfer of population.

In this connection, it may be observed that in 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.

Mr Hermer submits that the comparison of SK’s responsibility in the matter of the two farm invasions in which she participated with the crime of “forcible transfer of population” (sub-paragraph (d) of article 7(1)) cannot fairly be raised: in that the Upper Tribunal did not explicitly draw comparison between the farm invasions and forcible transfer, and because, as he suggests, the farmers and their farm workers were legally evicted by notice.

I do not regard these submissions as having weight. The Upper Tribunal found that “the intention of the instigators and participants, including her, was that the farmer and the farm workers be driven from their homes, by violent beatings and burnings, never to return…” (at para 40). It is legitimate for the Secretary of State to refer to this finding in supporting her submission that SK’s “other inhumane acts” share a “similar character” with the other crimes against humanity enumerated in article 7. It is a subject matter of the Secretary of State’s respondent’s notice. For that purpose it is not critical that it might be the case that the farmers were, under Zimbabwe’s land reform legislation, subject to legal eviction. It is accepted by Mr Hermer that any such legal basis would not excuse the unlawful manner of its execution. In any event, what is ultimately important is the international legality of these events. I refer to the contextual evidence before the Upper Tribunal in this connection, as in connection with the comparability of the crime of persecution.

The Upper Tribunal’s findings are plainly based upon the reports which were before it with the assistance of SK’s own expert, Dr Kibble.

The Upper Tribunal referred explicitly to Dr Kibble’s evidence and to “what the Solidarity Peace Trust and other reports told of their [the youth militia’s] wanton, sadistic, and extreme brutality”.

Thus Dr Kibble reported inter alia as follows:

Amnesty International’s January 2002 memorandum to the South African Development Community (SADC) “on the deteriorating human rights situation in Zimbabwe” contained the following passages:

The country report on Zimbabwe for 2003 issued by the US State Department’s Bureau of Democracy, Human Rights and Labor contained these passages:

An article by the author Peter Godwin, published in National Geographic in August 2003, described Zimbabwe’s land reform campaign and said that “Ten white farmers and 27 black workers were murdered, hundreds more were injured, tortured or arrested.” His figure for the displaced farm workers was 1.2 million.

An “Analysis of the Situation of Displaced Farm Workers in Zimbabwe”, published by Refugees International in August 2004 estimated that some 150,000 former farm workers had been displaced by harassment and intimidation.

In sum, the evidence before the Upper Tribunal fully justified its findings, which I have set out above.

Mr Hermer at times in his submissions appeared to wish to qualify those findings. It was not open to him to do so. In any event, the findings were properly supported in the evidence before the Upper Tribunal. Those findings in my judgment make Mr Hermer’s submissions of law regarding the application of article 7 to the facts of this case, even if they are treated as allegations only, extremely difficult. I bear in mind the importance of the issue to SK, and the need for a conservative construction and application of the Statute. However, it cannot be said that there are not serious reasons for considering that SK has, through the farm invasions in which she acted, participated in events of the utmost seriousness, partaking of acts in the nature of discrimination, persecution, forced displacement of persons and inhumane acts.

Mr Hermer submitted that the threshold requirement of great suffering or serious injury caused by the acts for which SK had responsibility had not been shown. On the Upper Tribunal’s findings of fact, this is another difficult submission. It is plain that, for the purposes of “other inhumane acts”, the consequences of acts of violence must be great or serious, either in terms of suffering or injury. However, the Upper Tribunal has found that they were, and it is not possible to conclude that it misunderstood the statutory language or its fact-finding duties. While the gravity of the consequences in terms of suffering or injury is a necessary requirement, there is no magic in the language or concepts used by sub-paragraph (k): cf Prosecutor v. Delalic (ICTY, IT-96-21-T, judgment dated 16 November 1998) at para 510, which says of the terms “great” suffering and “serious” injury that “the Trial Chamber must look to the plain ordinary meaning of the word”, viewing these “quantitative expressions as providing for the basic requirement that a particular act of mistreatment results in a requisite level of serious suffering or injury”.

In my judgment, the Upper Tribunal’s findings that the intention behind these invasions was “to cause great suffering or inflict serious physical or mental injury” and that this aim “was achieved” (at para 37) are binding on this court, but in any event are clearly justified on SK’s own admissions as to what she did or participated in, a fortiori when it has to be remembered that the standard of proof is not that of trial, but of “serious reasons for considering”. As the Upper Tribunal observed (at para 42): “she was shocked at how hard she had beaten the woman and thought that she had beaten her so severely she would die”. The level of violence used, and intended to be used, at such invasions is also demonstrated in general by the incidence of deaths which are reported. The knowledge of the youth militia’s “deliberately brutal and terrifying” conduct (at para 37) must no doubt have added to the suffering experienced. The victims of the two farm invasions in which SK directly participated would in all probability have heard reports of killings and other brutal crimes committed at other farm invasions by the youth militia, and suffered the greater terror by reason of that knowledge. As the Upper Tribunal remarked, the acts at the two invasions in question were “obviously inhumane” (at para 38), and led to the further great misery of loss of home, loss of livelihood, and displacement.

Mr Hermer submitted, nevertheless, that the troubles on the farms in Zimbabwe have not been internationally recognised as crimes against humanity, and that it is the affront to the whole of the international community and to its conscience that is the hall-mark of such crimes. He sought to demonstrate by the detailed citation of texts and jurisprudence, the most relevant of which I have incorporated in this judgment, that the acts for which SK has admitted responsibility simply lack that hall-mark. In his detailed skeleton arguments, and in their appendices, he has sought to give chapter and verse for those submissions. Thus his appendix A, headed “Zimbabwe and the International Community” seeks to show that the Security Council and the General Assembly of the United Nations, UN human rights treaty bodies, UN special procedures, the Commonwealth and the European Community, have all failed to condemn Zimbabwe for its human rights’ record in relation to the land reform and its violent consequences. His appendix B lists a number of the cases discussed in this judgment for the purpose of demonstrating that the charges confirmed or offences found proved in them were of a still more shocking nature.

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), Blaskic (using civilians as human shields), Krstic (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) (Footnote: ⁴), Katanga (detention in a room with corpses) and Mbarushimana (men forced to rape women).

In sum, where the conduct in question is admitted by SK, involves direct participation in severe beatings and joint enterprise responsibility in the two farm invasions as a whole, where those farm invasions are described by the Upper Tribunal as brutal and terrifying, designed to force farmers and farm workers off the land on which they live by the use of violence and terror and the burning of their homes and the destruction of their livelihoods, 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), where the Upper Tribunal has found established to their satisfaction all the ingredients of “other inhumane acts” including the consequences of great suffering or serious injury, and the test is not the establishment of criminal guilt but the lower standard of “serious reasons for considering”: in my judgment it has not been possible by the use of legal materials to show that the Upper Tribunal’s findings and conclusions are not open in law or ought to be rejected as insufficiently or improperly grounded. On the contrary, while those legal materials may in many cases show still worse acts, they fully justify the conclusion in this case that, pursuant to article 1F(a) of the Refugee Convention, SK is to be excluded from refugee status.

For these reasons, I would dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given in the judgment of Rix LJ.

I agree.

In my judgment, the summary in paragraph 85 of the judgment of Rix LJ speaks for itself. That the farm invasions were particularly aimed at white farmers and their employees, and therefore had the racial element to which the Upper Tribunal referred in paragraph 38 of its determination, is an aggravating, but not an essential, factor in the conclusion that the appellant participated in, and thus committed, a crime against humanity. By far the great majority of the victims of the invasions were the black employees of the farmers, who together with their employers suffered extreme physical violence and the loss of their homes and livelihoods, but who could least afford to bear their loss.