Oxford Monitor of Forced Migration, Volume 3, Number 1

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Oxford Monitor of Forced Migration Vol. 3, No. 11F(a) was to allow for the evolution and development of international criminal law(Goodwin-Gill and McAdam 2007; SRYYY: [47]).Where the Court fell into errorThe Federal Court of Australia stated that because the status of customary law at any giventime is a vexed and difficult question, which the drafters of the Refugee Convention could nothave intended courts to answer, ‘it is not for the courts or the decision-maker to enquirewhether the Rome Statute [or other applicable instruments] accurately reflects the state ofcustomary international law at the date of the alleged crime’ (SRYYY: [47]). 28 The immediateconsequence is that the Court could apply an instrument that is not reflective of customarylaw at the time the alleged act was committed and which was not binding on the individual inthe particular case at the relevant time. The result would be that an applicant is excluded fromrefugee status for conduct which did not constitute an international ‘crime’ at the time of itscommission. The outcome would be the direct opposite of what Article 1F(a) seeks toachieve. The same principle applies for defences; if the Court applied a defence which wasnot reflective of customary international law at the relevant time nor contained in aninstrument binding the individual, it may wrongly find the applicant is not excluded byArticle 1F(a) when they ought to be. Without realising the difficulty it would create, theCourt in SRYYY explicitly stated that, while it is unclear as to whether Article 33 of the RomeStatute (which contains the defence of superior orders) is reflective of custom (SRYYY:[76]), 29 the AAT had fallen into jurisdictional error in failing to consider its application(SRYYY: [127]). It is also not the case that the Rome Statute was binding for SRYYY at therelevant time; Sri Lanka is not and was not at the relevant time a party to the Rome Statute.The Court’s justification that any instrument drawn up which provides a definition of warcrimes, crimes against humanity or a crime against peace is an ‘instrument’ for the purpose ofArticle 1F(a) (SRYYY: [67]) is inconsistent with the ordinary meaning of the term ‘committeda crime.’ The use of this term in Article 1F(a) requires that the conduct be criminalised at thetime it was committed, to be adjudged by the standards of international criminal liability atthat time. 30The conclusion, therefore, must be that the Federal Court of Australia erred. The RomeStatute was not binding on the individual at the time of the alleged commission of the crimeand thus, should not have been applied. In addition, Article 33 was not reflective ofcustomary international law on superior orders at the relevant time and therefore, Article 3328 Despite this statement, the Court did find that the Rome Statute was a codification of custom with respect tothe definition of war crimes and crimes against humanity, and examined the AAT’s application of the RomeStatute as a codification of custom, rather than a substantive treaty. In explaining its reliance on the RomeStatute for the definition of war crimes and crimes against humanity at a time before the Rome Statute came intoforce, the Court explained that the source of the criminal responsibility arose under customary international lawand gave a number of examples of instruments enacted after the commission of the crimes they were drawn upin respect of, all of which reflected customary international law. See SRYYY: 81.29 The debate on whether Article 33 is reflective of custom is outside the scope of this paper. See, e.g.Gaeta 1999; McCoubrey 2001.30 See the Court’s rejection of the Minister’s temporal argument to the contrary: SRYYY: [60]-[62].39
Oxford Monitor of Forced Migration Vol. 3, No. 1should not have been considered. The Court’s reasoning in this respect and application ofArticle 1F(a) undermines and contradicts its interpretation of Article 1F(a).This error may be reflective of a broader misunderstanding of the interaction betweeninternational criminal law and international refugee law. Courts in other jurisdictions,including notably the United Kingdom, have fallen prey to the same error. In R (JS (SriLanka)) v Secretary of State for the Home Department (hereinafter JS), the Court held that‘[t]he starting point for a decision-maker addressing the question whether there are seriousreasons for considering that an asylum seekers has committed an international crime…shouldnow be the Rome Statute’ (JS: [115]). The approach was expressly affirmed on appeal (JS:[8], [47]). That case too involved a Sri Lankan national, thus the Rome Statute was notdirectly binding on the applicant at the relevant time. No explicit consideration was given tothe question of whether the provisions of the Rome Statute relied upon were reflective ofcustomary international law.ImplicationsThe implications of the approach by SRYYY are fourfold. First, the application of thedefinitions of crimes or defences in the Rome Statute which do not reflect custom or whichare not directly binding of the individual at the relevant time contradicts the requirement ofArticle 1F(a) that the alleged conduct in question constitute a ‘crime’ at the time of itscommission. This has the potential to lead to unjustified inclusions or exclusions, dependingon whether the Rome Statute is narrower or broader than custom. This is demonstrated by theinability of the applicant in SRYYY to avail himself of a potentially broader defence ofsuperior orders at custom and his subsequent exclusion. 31 Moreover, in light of the fact thatsome of the countries from which Australia receives many asylum seekers are not parties tothe Rome Statute, including notably Sri Lanka, the risk for error will be high unless decisionmakersare cautious with the application of definitions of crimes and defences therein whichare not reflective of custom.Second, unjustified exclusions weaken the institution of asylum, which directly underminesthe core purpose of the exclusion clause. Article 1F(a) seeks to protect and strengthen theinstitution of asylum by ensuring that protection is granted only to those who deserve it. Anincorrect application of Article 1F(a) which results in unjustified exclusions damages theentire rationale and operation of the international system of refugee protection.Third, if Australia is not correctly interpreting and applying the Refugee Convention, it mayvery well be in breach of its international obligations to interpret treaties in good faith(Vienna Convention Article 31(1)). International law envisages a role to play for courts inproviding a subsidiary means for the determination of rules of law (Statute of the31 The applicant in SRYYY attempted to do so in the later case of SZITR v Minister for Immigration andMulticultural Affairs [2006] FCA1759 but was the matter was not determined because the applicant had not firstraised it before the AAT and therefore, there was no jurisdictional error for the Federal Court to review.40
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Oxford Monitor of Forced Migration, Volume 3, Number 1

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