Judgment is out in JS (Sri Lanka), an appeal to the Supreme Court from KJ (Sri Lanka) in the Court of Appeal. Judgment here, summary here. The Secretary of State’s appeal was dismissed and the Court of Appeal judgment largely upheld, other than in respect of too tightly defining liability for exclusion under Article 1F of the Refugee Convention. Gurung is held to be unhelpful and simplistic in key respects, encouraging over-use of the exclusion clauses.
This passage provides some useful pointers:
It could not be said of the LTTE – nor even, on the available evidence, of its Intelligence Division – that as an organisation it was (it seems inappropriate in the light of recent events in Sri Lanka to continue speaking of the LTTE in the present tense) “predominantly terrorist in character” (Gurung para 105) or “an extremist international terrorist group” (para 18 of the UNHCR’s Perspective, quoted in the same para 105). There was accordingly no question of presuming (consistently with Gurung) that the respondent’s voluntary membership of this organisation “amount[ed] to personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question” – as para 34 of the decision letter stated. Nor was the respondent’s “command responsibility” within the organisation a basis for regarding him as responsible for war crimes. As Toulson LJ pointed out (para 123 of his judgment), the respondent’s command was of a combat unit and there was never any suggestion here of article 28 liability. Nor, of course, as Stanley Burnton J noted in KJ (Sri Lanka), is military action against government forces to be regarded as a war crime.
More to follow if/when I have time. Well done Shivani and the rest of the successful team.