Interessante Britse zaak over 1-f. Wanneer zijn het misdaden tegen de mensheid?
Meisje heeft meegedaan aan het verjagen van blanke boeren en hun personeel van boerderijen in Zimbabwe en vraagt later asiel in Engeland aan. De vraag die aan de orde komt is of dit gedrag valt onder "Crime against humanity of other inhumane acts". Zoals altijd bij Britse uitspraken is het veel uitgebreider gemotiveerd dan bij een Raad van State uitspraak. Dus ik adviseer u allen om de hele uitspraak te lezen die u hier vindt http://www.bailii.org/ew/cases/EWCA/Civ/2012/807.html.
Wat mij opvalt is dat de vraag of haar gedrag onder misdaden tegen de mensheid valt wordt onderbouwd door uitspraken van het Joegoslavie Tribunaal en het Internationaal Strafhof.
De rechters concluderen:
"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), Blaskić (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)[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.
Conclusion
For these reasons, I would dismiss this appeal."
Maar lees vooral het hele verhaal
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Wat mij opvalt is dat de vraag of haar gedrag onder misdaden tegen de mensheid valt wordt onderbouwd door uitspraken van het Joegoslavie Tribunaal en het Internationaal Strafhof.
De rechters concluderen:
"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), Blaskić (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)[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.
Conclusion
For these reasons, I would dismiss this appeal."
Maar lees vooral het hele verhaal
Law blog Klik op +1 als u dit een interessant artikel vindt en Google zal het dan beter zichtbaar maken in de zoekresultaten.
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