Federal Court. Can it be said that "the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”" pursuant to s 5H(2)(a) of the Migration Act 1958 (Cth)? How to interpret Articles 22(1) and 25(3)(c)-(d) of the Rome Statute of the International Criminal Court, entered into force 1 July 2002?
Section 5H(2)(a) of the Migration Act 1958 (Cth) provided that s 5H(1) "does not apply if the Minister has serious reasons for considering that ... the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations".
Regulation 2.03B of the Migration Regulations 1994 (Cth) prescribed for the purpose of s 5H(2)(a) "each international instrument that defines a crime against peace, a war crime or a crime against humanity" and listed the Rome Statute of the International Criminal Court, entered into force 1 July 2002, as an example of an instrument "that may define crimes against peace, war crimes or crimes against humanity".
The Rome Statute included the following provisions:
Article 22
Nullum crimen sine lege
1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
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Article 25
Individual criminal responsibility
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3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
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Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”" pursuant to s 5H(2)(a) of the Migration Act 1958 (Cth)?
Question 2: Can it be said that "under Art 22(1) of the Rome Statute the definition of a crime shall be strictly construed, and shall not be extended by analogy"?
Question 3: Can it be said that under Art 22(1) of the Rome Statute the definition of a crime "shall be interpreted in favour of the person being investigated, prosecuted or convicted"?
Question 4: For the purpose of Art 25(3)(c) of the Rome Statute, is it "necessary that there be a finding with respect to a specific incident"?
Question 5: For the purpose of Art 25(3)(c) of the Rome Statute, must the accessory "have lent their assistance with the aim of facilitating the offence"? In other words, is it "not sufficient that the accessory merely knows that their conduct will assist the principal perpetrator in the commission of the offence"?
Question 6: For the purpose of Art 25(3)(c) of the Rome Statute, must the aider or abettor "at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events, although it is not necessary to know the precise offence, only the essential elements"?
Question 7: For the purpose of Art 25(3)(c) of the Rome Statute, must the accessory facilitate or further the commission of the crime?
Question 8: For the purpose of Art 25(3)(d) of the Rome Statute, must the "have voluntarily contributed in a significant or substantial way to the organisation’s ability to pursue its purpose of committing war crimes, aware that their assistance would in fact further that purpose"?
Question 9: For the purpose of Art 25(3)(d) of the Rome Statute, can it be said that "a significant contribution is a contribution that may influence the commission of the crime, or have a bearing on the occurrence of the crime and/or the manner of its commission ... and a number of different factors may be relevant to that assessment"?
Question 10: For the purpose of Art 25(3)(d) of the Rome Statute, is it "the effect of the conduct on the realisation of the crime which counts"?
Question 11: For the purpose of Art 25(3)(d) of the Rome Statute, can it be said that "knowledge of the group’s criminal intentions is sufficient (for the mental element) to incur liability for contributing to a group of persons acting with a common purpose; intent to commit any specific crime is not required"?
Question 12: Can it be said that "the current and prospective risks to the particular applicant if returned to their receiving country should be taken into account in considering whether they are disqualified by s 5H(2)"?
The FCA answered those questions as follows: