IMM-3105-97
The Minister of Citizenship and Immigration (Applicant)
v.
Gholam Hassan Hajialikhani (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration)v. Hajialikhani (T.D.)
Trial Division, Reed J."Toronto, August 6; Vancouver, September 11, 1998.
Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of IRB decision claimant Convention refugee, not excluded from protection because of membership in Mujahideen — Immigration Act, s. 2(1) definition of —Convention refugee— excluding any person to whom Convention not applying pursuant to Art. 1E, F — Art. 1F(a) excluding from definition persons with respect to whom serious reasons for considering committed crime against peace, war crime or crime against humanity — Signed document stating claimant member of Mujahideen from 1979 to 1985, but claimant asserting notation —member— not in his handwriting — Board focusing on claimant's lack of personal involvement in specific acts, referring to organization as terrorist organization — Reference to international instruments for definitions of war crimes, crimes against humanity — F.C.A. cases dealing with Art. 1F(a) reviewed — Analysis in Art. 1F(a) case where membership in organization alleged to constitute presumption of complicity in crimes against humanity requiring: (a) assessment of nature of organization, i.e. whether directed to limited brutal purpose; (b) assessment of individual's involvement with organization, i.e. whether member thereof, or involvement such that inference sharing group's common purpose — (a) Board not analyzing evidence respecting nature of Mujahideen — Although not immediately obvious evidence supporting conclusion organization directed to limited brutal purpose, Board should have made clear finding on issue — (b) Board making no decision with respect to claimant's involvement in Mujahideen — In absence of some reason to believe form altered after signed, reasonable to assume alteration made at claimant's direction or with acquiescence — Board not analyzing evidence adduced to support inference of involvement — Applied incorrect test by asking whether claimant personally involved in crimes alleged, in sense of physically present, rather than whether involvement such as to encourage, enable commission of alleged crimes by others — Characteristics transforming common crime into crime against humanity not well articulated — Material on record not immediately supporting finding organization's activities crimes against humanity — Matter referred back to differently constituted Board.
This was an application to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) set aside. The Board found the respondent (the claimant) to be a Convention refugee, and did not find that he was excluded from protection because of his involvement with the Mujahideen. The Minister had argued before the Board that the claimant, as a result of his involvement with that organization, should be excluded from protection pursuant to Article 1F(a) of the United Nations Convention Relating to the Status of Refugees.
The Immigration Act, subsection 2(1) definition of "Convention refugee" excludes any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof. Convention, Article 1F(a) excludes from the definition any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity. The Board held that the fact situation did not fall within the definition of a "crime against peace". The Board focused on a lack of personal involvement by the respondent in specific acts, followed by a reference to the organization as a terrorist organization. The Minister argued that this should have led the Board to the conclusion that the organization was "directed to a limited brutal purpose" and that collecting funds for that organization was a sufficient connection to establish complicity in the acts in which the organization engaged. The Agreement for the Prosecution and Punishment of the Major War Criminals in the European Axis (the London Agreement), an international instrument relating to Article 1 F(a), defines "war crimes" as "violations of the laws or customs of war", followed by a list of specific examples. The definition of "crimes against humanity" includes acts committed against any civilian population, before or during the war; or persecutions in connection with any crime within the jurisdiction of the Tribunal. "Leaders, organizers, instigators and accomplices" are as responsible for the crimes as the individuals who actually do the acts.
Held, the application should be allowed.
The phrase "serious reasons for considering" has been interpreted as describing the burden of proof to be applied to a determination of whether the individual has committed or been complicit" in one or more of the crimes. That burden of proof is lower than that required by a finding on the balance of probabilities. In order to constitute complicity in an Article 1F(a) crime there has to be a finding that there has been a personal and knowing participation by the applicant, a shared common purpose with those who actually commit the acts. Canada's Criminal Code cannot be the sole source of guidance for determining whether such existed. Mere membership in an organization that from time to time commits crimes against humanity is not sufficient to justify exclusion under Article 1F(a), except when the organization is "principally directed to a limited, brutal purpose such as a secret police activity", or when the organization is one "whose very existence is premised on achieving political and social ends by any means deemed necessary". Thus membership in a secret police force would be sufficient to constitute complicity in the acts committed by that force, but membership in a state military force involved in armed conflict against guerillas would not constitute complicity in the acts perpetrated by members of that force. Knowingly contributing to condemned activities in any way, or making them possible, is sufficient to constitute complicity.
War crimes under the Convention exist in the context of a war between states. Crimes against humanity, on the other hand, can exist either inside or outside the context of armed conflict between states. Also, they can encompass a situation in which a state's own nationals are the victims. In general, both types of crime, at least initially, required either state commission or state condonation. The extent to which an organization can be in a position to commit crimes of the type that fall within the description "crimes against humanity" without the state or a state-like apparatus implicitly adopting those acts, for example, by turning a blind eye when private individuals are the perpetrators, is not clear. In any event, in order for crimes against humanity to exist they "must generally be committed in a wide-spread, systematic fashion".
Returning to the characterization of an organization as one "directed to a limited brutal purpose", specific acts in which the individual has been complicit need not be identified because of the notoriety and singular purpose of the group. But if one is going to conclude that membership in, or close association with, a group automatically leads to a conclusion of complicity in crimes against humanity committed by members of that group, the evidence concerning the characterization of the organization must be free from doubt. In addition, in the case of an organization, which changes over time, it is important to assess its characterization during the time or times when the individual in question was associated with it.
An analysis in an Article 1F(a) case, where membership in an organization is alleged to constitute a presumption of complicity in crimes against humanity, requires: (a) an assessment of the nature of the organization and whether it is "directed to a limited brutal purpose"; and, (b) an assessment of the individual's involvement with the organization and whether he was a member or had the kind of involvement with it from which it can be inferred that he shares the group's common purpose.
(a) The Board did not analyze the evidence respecting the nature of the Mujahideen organization. Although it was not immediately obvious that the evidence supported a conclusion that the organization was "directed to a limited brutal purpose", the Board should have made a clear finding on this issue.
(b) The Board described a document signed by the claimant that stated that he was a member of the Mujahideen from 1979 to 1985, and repeated the claimant's assertion that the notation "member" was not in his handwriting, but made no decision with respect to his involvement in the organization. In the absence of some reason for thinking that the form may have been altered after it was signed, it would be reasonable to assume that the alteration was made either at the claimant's direction or, at the very least, with his acquiescence.
The Board did not analyze evidence put forward to support inferences concerning the level of the claimant's involvement with the organization and applied an incorrect test by asking whether the claimant was personally involved in the crimes alleged, in the sense of being physically present, rather than whether his involvement was such as to encourage and enable the commission of the alleged crimes by others. Financing crimes makes one complicit therein.
The Board focused on the activities of the organization during the time the respondent had admitted he was involved with it, including attacks on civilian targets, which it held could be legitimate provided the customs of war are observed. It found those activities to be neither war crimes nor crimes against humanity. The Minister argued that attacks on civilian targets are by definition breaches of the customs of war, and that it was not only when the claimant was physically present in the military camp that was relevant because complicity can arise from fundraising. The Board's decision was often contradictory and applied incorrect tests. To a significant extent this can be explained by the unsettled nature of the law in this area. The characteristics that transform a common crime into a crime against humanity are not well articulated. It was not immediately obvious that the material on the record could support a finding that the organization's activities were crimes against humanity.
The matter should be referred back for rehearing by a differently constituted Board. The Court did not have authority to write the decision the Board should have given. There were issues of credibility respecting the claimant's evidence. There were issues that involved documentary evidence that was neither physically before the Court, nor to which the Court had easy access. There were issues of both fact and the application of the law that needed to be decided. The proper legal analysis would benefit from a more extensive examination of when a crime has been found in international law to come within the definition of a crime against humanity, and the relevant international instruments, including decisions in other jurisdictions.
statutes and regulations judicially considered
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 U.N.T.S. 279, Art. 6.
Charter of the International Military Tribunal for the Far East, 19 January 1946, Sec. II.
Criminal Code, R.S.C., 1985, c. C-46.
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).
Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, Allied Control Council Law No. 10, Art. II.
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a),(b),(c).
cases judicially considered
considered:
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 226 N.R. 201; Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.); Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508; (1994), 119 D.L.R. (4th) 497; 25 Imm. L.R. (2d) 209; 174 N.R. 292 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; (1993), 163 N.R. 197 (C.A.); Bazargan v. Minister of Employment and Immigration (1996), 205 N.R. 282 (F.C.A.).
referred to:
Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 (C.A.); McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986).
authors cited
Determination of Refugee Status of Persons Connected with Organizations or Groups which Advocate and/or Practice Violence. Prepared by Legal Project, UNHCR Branch Office in Canada, Note No. 5. Ottawa, August 2, 1989 (unpublished).
Goodwin-Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983.
Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.
Revolutionary and Dissident Movements: An International Guide, 3rd ed. Essex, U.K.: Longman, 1991.
Rikhof, Joseph. "Crimes Against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda" (1995-96), 6 N.J.C.L. 233.
Schwelb, E. "Crimes Against Humanity" (1946), 23 B.Y.B.I.L. 178.
United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, January 1988.
Waldman, Lorne. Immigration Law and Practice. Toronto: Butterworths, 1992.
World Encyclopedia of Political Systems and Parties, 2nd ed. N.Y.: Facts on File, 1987.
Zambelli, Pia. The 1995 Annotated Refugee Convention. Scarborough, Ont.: Carswell, 1995.
appearances:
Diane B. N. Dagenais for applicant.
Isak Grushka for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Isak Grushka, Toronto, for respondent.
The following are the reasons for order rendered in English by
Reed J.: This is an application by the Minister to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) set aside. The Board found the respondent (hereinafter the claimant) to be a Convention refugee and did not find he was excluded from protection because of his involvement with the Sazeman-e Mojahedin-e Khalq-e Iran (Mujahideen). The Minister had argued before the Board that the claimant, as a result of his involvement with that organization, should be excluded from protection pursuant to Article 1F(a) of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (the Convention).
Legislative Framework"International Instruments
Article 1F(a) is made part of Canada's domestic law by operation of subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1]. Subsection 2(1) defines a "Convention refugee" as:
2. (1) . . .
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, . . .
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act. [Underlining added.]
Article 1F(a) excludes from the definition persons who have committed a crime against peace, a war crime or a crime against humanity:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) 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. [Underlining added.]
Subsections (b) and (c) of Article 1F exclude from protection persons with respect to whom there are serious reasons for considering that they have committed "a serious non-political crime outside the country of refuge" or who "ha[ve] been guilty of acts contrary to the purposes and principles of the United Nations".
The international instruments relating to Article 1F(a) to which I was referred by counsel were: Article 6 of the Agreement for the Prosecution and Punishment of the Major War Criminals in the European Axis, 8 August 1945 [82 U.N.T.S. 279] (the London Agreement); Article II of the Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945 (the Allied Control Council Law No. 10); Section II of the Charter of the International Military Tribunal for the Far East, Tokyo, 19 January 1946 (the Tokyo Agreement).
The Board held that the fact situation in the present case did not fall within the definition of a "crime against peace" and no argument has been made that this category is relevant to the claimant's circumstances. It is necessary then to consider the definitions of "war crimes" and "crimes against humanity".
The London Agreement defines "war crimes" as "violations of the laws or customs of war", followed by a list of specific examples, i.e., "war crimes" are defined as:
Article 6
. . .
War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. [Underlining added.]
The Allied Control Council Law No. 10 and the Tokyo Agreement do not add to this definition.
The definition of "crimes against humanity" set out in the London Agreement reads:
Article 6
. . .
Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated. [Underlining added.]
In the Allied Control Council Law No. 10, "crimes against humanity" are defined as:
article ii
. . .
Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. [Underlining added.]
The definition in the Tokyo Agreement does not differ from that in the London Agreement.
In both the London and Tokyo Agreements, "leaders, organizers, instigators and accomplices" are as responsible for the crimes as the individuals who actually do the acts:
Article 6
. . .
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
In the Allied Control Council Law No. 10, the clause respecting accomplices is phrased somewhat differently:
2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime.
Jurisprudence
There does not appear to be a Supreme Court decision that has interpreted Article 1F(a) of the Convention for the purposes of subsection 2(1) of the Immigration Act. The recent decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, however, makes it clear that recourse to the relevant international documents is important when interpreting Article 1F. That case dealt with a refugee seeker who was allegedly "guilty of acts contrary to the purposes and principles of the United Nations", and who therefore allegedly fell within Article 1F(c) of the Convention.
I turn then to the Federal Court of Appeal decisions to which I have been referred: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; and Bazargan v. Minister of Employment and Immigration (1996), 205 N.R. 282.
The Ramirez decision dealt with a person who had been a member of the Salvadorean armed forces. He had on numerous occasions witnessed acts of torture and the killing of captives. The Court held that although he had never personally committed such acts, his presence when he was under orders from common superiors to those actually doing the acts made him a personal and knowing participant in the crimes. Thus, it was decided that there were serious reasons for considering that he had been an accomplice to crimes against humanity.
In Moreno, the individual was a member of the Salvadorean army who had been forcibly recruited at the age of 16. He stood guard on one occasion during the torture of a prisoner, made no attempt to intervene because he thought it would be useless to do so, and deserted shortly thereafter. It was held that passive acquiescence to a crime against humanity was not enough to make a person an accomplice to that crime. In order to be complicit in a crime more than mere physical presence at the scene is necessary. In the Moreno case the Court found there had been no prior knowledge by the applicant of the acts of torture that were to be committed and there had been no direct assistance or encouragement given by the applicant to his superiors in committing the crime.
These cases discussed the burden of proof applicable when considering an Article 1F(a) exclusion. Instead of requiring a determination as to whether, on the balance of probabilities, there exist serious reasons for considering that a crime has been committed, the phrase "serious reasons for considering" has been interpreted as describing the burden of proof to be applied to a determination of whether the individual has committed or been complicit in one or more of the crimes. That burden of proof is lower than that required by a finding on the balance of probabilities.
The Court of Appeal in Ramirez and Moreno considered whether a narrow or a wide interpretation of the exclusion clause was appropriate. The various writings on the subject that had urged a narrow interpretation were noted.1 These argue for a narrow interpretation because the same facts that potentially require a person's exclusion from protection may also be the facts underlying why that person is seeking protection. The narrow interpretation was not expressly adopted in either Ramirez or Moreno. Mr. Justice MacGuigan in Ramirez noted that the drafters of the Convention had intended to draft provisions that would carve out a wide scope for domestic discretion.
The Ramirez and Moreno decisions established that in order to constitute complicity in an Article 1F(a) crime there has to be a finding that there has been a personal and knowing participation by the applicant, a shared common purpose with those who actually commit the acts. Reference was made to the Criminal Code [R.S.C., 1985, c. C-46] requirements for finding a person to be an accomplice to a crime, but it was made clear that Canada's Criminal Code could not be the sole source of guidance for determining when such existed.
In both cases the Court held that mere membership in an organization that from time to time commits crimes against humanity is not sufficient to justify exclusion under Article 1F(a). An exception to this rule, however, was also articulated. In the Ramirez decision, it was said that membership alone may be sufficient when the organization is "principally directed to a limited, brutal purpose such as a secret police activity".2 In the Moreno case, this exception was described as existing when the organization is one "whose very existence is premised on achieving political and social ends by any means deemed necessary".3 Thus, in Moreno, it was noted that membership in a secret police force would be sufficient to constitute complicity in the acts committed by that force but membership in a state military force involved in armed conflict against guerillas would not constitute complicity in the acts perpetrated by members of that force.
In the Bazargan decision, involvement short of membership was held to constitute "personal and knowing participation" in the case of an Article 1F(c) crime. The refugee seeker had been a member of the Iranian security police and had worked as a liaison officer between that force and SAVAK (an acronym for the "National Intelligence Security Organization"), the Shah's internal security organization. The Court held that the applicant came within Article 1F(c) despite not being a member of SAVAK. It stated that "personal and knowing participation" can be direct or indirect and it does not require formal membership in the organization that is ultimately engaged in the condemned activities. Knowingly contributing to those activities, in any way, or making them possible is sufficient to constitute complicity:
. . . "[a]t bottom, complicity rests . . . on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it". Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.4
War crimes, then, under the Convention exist in the context of a war between states. Crimes against humanity, on the other hand, can exist either inside or outside the context of armed conflict between states. Also, they can encompass a situation in which a state's own nationals are the victims. In general, both types of crime, at least initially, required either state commission or state condonation.5 The Ramirez and Moreno cases both dealt with individuals who were members of their country's national military services.
In Sivakumar the Court of Appeal dealt with a situation in which the state, Sri Lanka, was opposed to and concerned to stop the acts in question. The Court framed the issue before it as whether or not there was a requirement for state involvement in the crimes in order for these to be classified as crimes against humanity. That decision concerned an individual who had held a senior position in the Liberation Tigers of Tamil Eelam (LTTE). The Court held that although crimes against humanity usually involve state action, it could no longer be said that individuals without connection to the state, especially those involved in paramilitary or armed revolutionary movements, were immune from the reach of international law. I think it is useful to note that the LTTE, at the time, controlled a significant part of the territory of Sri Lanka so that it was in a position to commit or sanction crimes comparable to those that a state might commit or sanction.
In Sivakumar, the Court reiterated that mere membership in an organization was not sufficient to support a finding of complicity and the LTTE was not classified as an organization principally devoted to a limited brutal purpose. In those circumstances, it was held that specific crimes against humanity must be identified in respect of which the individual could be said to be complicit before he will fall within Article 1F(a). The applicant in that case was found, on the basis of his own evidence, to have had knowledge of the killing of civilians and the shooting of members of rival Tamil groups. While there was no evidence that he had personally been involved in these crimes, his leadership position in the LTTE was held sufficient to find that he had been an accomplice therein.
Combining the dicta in the Ramirez decision (membership in an organization "directed to a limited brutal purpose" may be sufficient to justify exclusion) with the decision in Sivakumar (individuals or organizations that operate without state approval or toleration can commit crimes against humanity) has led commentators to conclude, and counsel for the applicant to argue, that membership in a terrorist organization leads to exclusion under Article 1F(a). I am not sure that the jurisprudence has dispensed so clearly with the requirement that in order for crimes against humanity to exist there must be either approval or tolerance of those acts by a state or by an entity that is in a position to exercise state-like powers. The history of the concept "crimes against humanity" arose, as I understand it, in the context of acts that were recognized as crimes by all nations, but were not being treated as such by one nation vis à vis some of its citizens (i.e. Jewish citizens of Germany).6 Thus the involvement of the international community in policing those crimes was justified. The references cited in Sivakumar, in general, are all cases in which there was state toleration of the acts by the individuals who were found guilty. The extent to which an organization can be in a position to commit crimes of the type that fall within the description "crimes against humanity" without the state or a state-like apparatus implicitly adopting those acts, for example, by turning a blind eye when private individuals are the perpetrators, is not clear. In any event, in order for crimes against humanity to exist they "must generally be committed in a wide-spread, systematic fashion"7 [emphasis added].
With respect to terrorist activities, I note, for example, that the United States Board of Immigration Appeals, in 1988, and the Dutch Conseil d'Etat, in 1991, held that a member of a guerilla group and the hijacking of an aircraft, respectively, did not fall within the Article 1F(a) exclusion.8 At the same time, terrorist activities (the bombing of civilian targets, the hijacking of aircraft) may fall within Article 1F(c) and it is clear that they do fall within Article 1F(b). With respect to Article 1F(c), Bastarache J. at pages 1031-1032 of the Pushpanathan decision, considered the extent to which Article 1F(c) crimes can exist without implied approval by the state. He stated:
Although it may be more difficult for a non-state actor to perpetrate human rights violations on a scale amounting to persecution without the state thereby implicitly adopting those acts, the possibility should not be excluded a priori. As mentioned earlier, the Court must also take into consideration that some crimes that have specifically been declared to contravene the purposes and principles of the United Nations are not restricted to state actors.
Article 1F(b) was considered in Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (C.A.). In that case the applicant was excluded from Convention refugee status because as an ex-supporter of the Shah he had become associated with a militant anti-Khomeini group of activists, and had personally taken part in five or six incidents of bombing and arson. He argued that these were politically motivated and therefore could not result in his exclusion pursuant to Article 1F(b). The Court (at page 533) held that the activities were "non-political" because there was simply "no objective rational connection between injuring the commercial interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies".9
Similar decisions have been made in other jurisdictions. For example, McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986), at page 597:
Such acts are beyond the pale of protestable "political offense". These actions were directed solely at bringing about social chaos, with the eventual demise of the State intended only as an indirect result . . . . The problem, of course, is that the PIRA is unquestionably a "terrorist" organization, and these activities were part of their overall plan to rid Northern Ireland of the British. Terrorism does not fit easily into the complex rubric of international law . . . and it is difficult to distinguish meaningfully between one obviously terrorist act and another. However, there is one relevant distinction that has maintained legal force for many years, and which applies in this case. There is a meaningful distinction between terrorist acts directed at the military or official agencies of the state, and random acts of violence against ordinary citizens that are intended only "to promote social chaos." . . . The distinction between acts against ordinary civilians and official instrumentalities has been extant in the common law since In re Meunier , 2 Q.B. 415 (1894). See also Eain, 641 F.2d at 521 (discussing Meunier).
See also G. S. Goodwin-Gill, The Refugee in International Law, at pages 60-61 (1983), and P. Zambelli, The 1995 Annotated Refugee Convention, at pages 114-115 (1995).
I return then to the characterization of an organization as one "directed to a limited brutal purpose". Specific acts in which the individual has been complicit need not be identified because of the notoriety and singular purpose of the group. It is important in this context to scrutinize labels carefully. Labels can block analysis. If one is going to conclude that membership in, or close association with, a group automatically leads to a conclusion of complicity in crimes against humanity committed by members of that group, the evidence concerning the characterization of the organization must be free from doubt. In addition, in the case of an organization, which changes over time, it is important to assess its characterization during the time or times when the individual in question was associated with it.
Failure to Assess the Nature of the Organization and the Extent of the Claimant's Involvement
An analysis in an Article 1F(a) exclusion case such as the present, where membership in an organization is alleged to constitute a presumption of complicity in crimes against humanity, then requires:
(a) an assessment of the nature of the organization and whether it can be said that it is "directed to a limited brutal purpose";
(b) an assessment of the individual's involvement with the organization and whether he was a member or had the kind of involvement with it from which it can be inferred that he shared the group's common purpose;
I turn then to a consideration of the evidence pertaining to those issues and the Board's decision thereon.
(a) The Organization
In the present case evidence concerning the Mujahideen is found in two encyclopedias, letters containing endorsements of the objectives of the Mujahideen, a report by the Secretary of State to the United States Congress, some newspaper clippings and newswires, including newspaper clippings describing the ransacking of the Iranian embassy in Ottawa, in which the claimant took part. There is of course a quantity of documentary evidence on Iran available to the Board, and the claimant, that is made part of the record by reference but which is not in the file that is before the Court. The extent to which that material contains information concerning the Mujahideen is not known by the Court.
In any event, the Board did not analyze the documentary evidence but focused on a lack of personal involvement by the claimant in specific acts, followed by a reference to the organization as a terrorist organization. The Board states:
There is, in my view, no evidence that the claimant personally has ever been involved in such acts. Nonetheless, it is settled law that mere membership in an organization that has a limited brutal purpose, may indeed bring a person within the parameters of Article 1F(a). It is worth noting that the Mujahideen has been described as a "terrorist organization".
Counsel for the Minister argues that this should have led the Board to the conclusion that the organization fell within the description of one "directed to a limited brutal purpose" and that collecting funds for that organization was a sufficient connection to establish complicity in the acts in which the organization engaged. Counsel for the claimant argues, on the other hand, that the statement must be read as meaning that while some sources may describe the Mujahideen as a terrorist organization, the Board did not do so. Counsel argues that this reading is implicit from the rest of the Board's decision.
The two encyclopedias, the World Encyclopedia of Political Systems and Parties, 2nd ed., 1987 and Revolutionary and Dissident Movements: An International Guide (Longman, 3rd ed., 1991) describe the Mujahideen as a left-wing Islamic movement arising from the educated middle class in Iran in the early to mid-1960s. The members were opposed to the Shah who dubbed them "Islamic Marxists". According to one of these publications, members of the group in the mid-1970s robbed banks, bombed airline offices and assassinated several American military officials working in Iran. In 1975 the organization split into two groups; one eschewing armed action as a means of achieving political ends. The other continued to use the name Mujahideen. Although supporting the Iranian revolution in 1979, the Mujahideen subsequently became a significant opposition to Khomeini. The documents describe protest demonstrations of 150 000 in Tehran organized by the Mujahideen, and a party newspaper with a circulation of 500 000. The documents also describe members of the organization engaging in acts of violence against government targets, and the Revolutionary Guards firing on Mujahideen organized demonstrations. For example, in June of 1981, the Revolutionary Guards fired on a huge demonstration of Mujahideen members and then the Mujahideen bombed the Islamic Republic Party Headquarters killing 74 members of the top leadership. The group was eventually banned in June of 1981 by Khomeini. After this the leaders of the organization went to France.
In Paris, the leaders formed the National Resistance Coalition, which although initially composed of a number of organizations eventually became another name for the Mujahideen. In 1986, the leaders of the Mujahideen were expelled from France and they went to Iraq where they were given land by Saddam Hussein to establish a military base. They were supported by Saddam Hussein and participated, on the side of Iraq, in the latter years of the Iraq-Iran war. While one document states that the group was expelled from Iraq in 1989, other documents describe it as continuing to conduct guerilla type activities into Iran from its base in Iraq. One of the encyclopedias indicates that as of 1987 the group had declined in numbers and had lost support since it had been forced underground in Iran, and that as of that date most of its members were students living in Iran, the United States and Europe.
Also on the record are numerous letters and declarations, from early to mid-1995, that support the objectives of the National Council of Resistance. For example, 212 members of the European Parliament signed a Statement on Iran that contains the following endorsement:
We are convinced that lending support to the Iranian people's democratic aspirations for creating political pluralism and democracy in Iran, embodied in the National Council of Resistance of Iran will help expedite the establishment of peace & stability in the region.10
Similar statements were made by members of the House of Commons in the United Kingdom,11 15 members of the United States Congress12 and one member of Canada's House of Commons.13
The document on the record that formed the basis of the Minister's position before the Board is a United States Secretary of State's Report to Congress prepared in June, 1994. In general terms that Report concludes: the Mujahideen is a guerilla group that endorses the use of force to achieve political ends; it is a puppet of Saddam Hussein; it tries to convince Europeans and North Americans that it is a credible opposition to the present government of Iran but it is not; it has or pretends to have softened its acceptance of the use of force to achieve political ends in order to gain political support in the West.
The Secretary of State Report notes the murder of the six American citizens in 1973, 1975 and 1976, in Iran, and that members of the Mujahideen were arrested and executed by the Shah's government for some of these murders. It states that the organization supported the takeover of the U.S. embassy and opposed the release of the American hostages. The Report notes that the organization "changed sides" in 1979-1981 and moved from supporting the Iranian revolution and Khomeini to opposing Khomeini. It describes the group as an organization dedicated to political change that uses armed struggle as part of its tactics. The Report describes the exile of the leaders to Paris, the formation of the National Council of Resistance, at which time the Mujahideen are described as controlling a number of organizations including the Muslim Student Association, the Tawhidi Society of Guilds, the Movement of Muslim Teachers, the Union of Instructors in Universities and Institutions of Higher Learning. It describes a split in the leadership of the group, as the present leaders became more closely associated with Saddam Hussein. It describes the move from France to Iraq in 1986, which it suggests was precipitated by Iran's pressure on the French government. It states, with respect to its activity since 1986, that the organization's military record is limited and that it launched its most significant incursion from Iraq into Iran in June and July 1988, in co-ordination with Iraqi forces. The opening paragraph of the section dealing with the organization's recent activities in Iran states that the author cannot confirm or refute the Mujahideen's claim not to target civilian targets:
In publications distributed in the West, the Mojahedin claim they do not target civilians in Iran. We are unable to confirm or refute this assertion.
The Report then describes radio broadcasts of the "Voice of Mojahed", which are transmitted into Iran from Mujahideen bases in Iraq, claiming responsibility for a number of bombings and attacks.
I agree with counsel for the applicant's submission that the Board did not analyze the evidence respecting the nature of the Mujahideen organization. At the same time, it is not immediately obvious that the evidence supports a conclusion that the organization was "directed to a limited brutal purpose" in the sense described in the Ramirez and Moreno decisions. This is, however, an issue upon which the Board should have made a clear finding.
(b) Claimant's Involvement
There is documentation signed by the claimant that states that he was a member of the Mujahideen from October 1979 to February 1985. He asserted before the Board that the notation "member" was not in his handwriting. The Board described this evidence but made no decision with respect thereto:
The Canada Immigration Centre immigration form (Exhibit M-1) noted the claimant as being a member of the organization. The notation "member" is clearly in a different handwriting from the body of the form. The claimant maintains that he did not write the word "member". Even accepting that the claimant was indeed a member of the Mujahideen in Iran, there is no evidence to suggest that he was engaged in any activities of a terrorist nature.
An alteration to a form that is not in a claimant's handwriting does not mean that he or she did not direct or acquiesce in the alteration. In the absence of some reason for thinking that the form may have been altered after it was signed, it is reasonable to assume that the alteration was made either at the claimant's direction or, at the very least, with his acquiesence.
In any event, whether or not the claimant was a member of the Mujahideen, the Minister asked the Board to draw inferences concerning the level of the claimant's involvement with the organization from the fact that he had gone twice to its military camp outside Baghdad, once in 1987 and again in 1989, on each occasion for three months, with all travel and related expenses being paid for by the organization. On one occasion the visit had been to celebrate Khomeini's death. His memory about his visits seems to have been purposely vague. He appears to have attempted on a third occasion to go to the camp, on a false passport, at Mujahideen expense, after being charged with offences arising out of the ransacking of the Iranian embassy in Ottawa in 1992. Thus while the documentation indicates that he was a member of the Mujahideen from 1979 to 1985, there is evidence that shows a close association at least until 1992. In addition, the claimant had solicited funds in Canada from Iranians for the support of the organization. While he did not acknowledge awareness of any atrocities committed by the organization, he admitted that he read the newspaper Iran Zameen, a National Resistance Council newspaper, which the Minister asserts describes these atrocities. The newspapers were not, however, made part of the file that was placed before the Court and if they are a significant part of the Minister's case there should have been copies put before the Board from which it could make its own assessment of what knowledge would be acquired from reading that paper.
There are also certain coincidences that may or may not be significant. While the claimant states that his involvement with the Mujahideen in Iran was minimal, he was expelled from university there in 1980 and spent some time in jail in connection with one of the bombing attacks against the Khomeini government. He left Iran for Turkey in 1985. He came to Canada in 1986, the year the Mujahideen was expelled from France. Then come his trips to the camp outside Baghdad and his participation in the ransacking of the Iranian embassy in Ottawa, for which he received a minor sentence. On the other hand, he asserts that he had no significant involvement with the organization in Iran, became interested in it when he was in Turkey and most involved after he arrived in Canada.
I agree with counsel for the Minister's argument that the Board did not analyze this evidence, and applied an incorrect test by asking whether the claimant was personally involved in the crimes alleged, in the sense of being physically present, rather than whether his involvement was such as to encourage and enable the commission of the alleged crimes by others. There is no doubt that financing crimes makes one complicit therein.
Acts Constituting War Crimes/Crimes Against Humanity
The Board focused on the activities of the organization during the time the claimant had admitted he was involved with it during the early 1980s and when he was personally in the camp south of Baghdad in 1987 and 1989. Essentially it found those activities to be neither war crimes nor crimes against humanity:
That leaves me to consider whether war crimes and crimes against humanity may apply. It is clear from the evidence that the Mujahideen has a military base in Iraq, and that, in the early 1980's, the military wing of the Mujahideen carried out attacks and counter-attacks on Iranian industrial and civilian targets. It is, in my view, that while such actions against defenceless civilians are abhorrent, it is perfectly legitimate to take up arms and seek to overthrow, by military force, a brutal, repressive, non-democratic regime, as long as the laws and customs of war are observed. It is, in my view, the engagement in war crimes that activates Article 1(F)(a).
This takes me to crimes against humanity. It is my view that although I find the incidents in the early 1980's somewhat dated, when considered cumulatively they do not by any means whatsoever fall within the definition of "crimes against humanity". During the periods of the claimant's visits to Iraq from Canada, there is no evidence before me that the Mujahideen military personnel stationed in camps in Iraq were in any way engaged in activities which could be considered crimes against humanity. It is still unclear why the claimant was favoured to be chosen to visit the Mujahideen in Iraq. His explanations, in my view, did not have a ring of truth. Nonetheless, the onus with respect to exclusion lies with the Minister. After considering the totality of the evidence, it is my finding that that onus has not been discharged. I therefore do not find the claimant to be excluded from Convention refugee status. [Underlining added.]
Counsel for the applicant argues that the Board cannot both conclude that the group carried out attacks on civilian targets and observed the customs of war. Attacks on civilian targets are by definition breaches of the customs of war (although attacks on military or governmental targets that only incidentally involve the killing of civilians are not). Counsel also argues that in so far as crimes against humanity are concerned, it is not solely the period of time that the claimant was physically present in the camp that is relevant. As noted, one can be complicit in a crime without being physically present, for example, by providing funds to support the commission of the crime.
I must accept counsel for the Minister's argument that the Board's decision in many respects seems contradictory and applies incorrect tests. I am convinced that to a significant extent this can be explained by the unsettled nature of the law in this area. As noted, the characteristics that transform a common crime into a crime against humanity are not well articulated. The following description is quoted in the Rikhof article:14
Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic action, particularly if it was authoritative, was necessary to transform common crimes, punishable under municipal law, into crimes against humanity which thus became also the concern of international law. Only crimes which, either by their magnitude and savagery, or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind warranted intervention by States other than those on whose territory the crimes had been committed or whose subjects had become their victims. [Emphasis added.]
It is not immediately obvious that the material on the record could support a finding that the organization's activities met that test, or even met what appears to be the less onerous test articulated in the Sivakumar decision, that is, that such crimes are crimes that are "committed in a wide-spread, systematic fashion".
Conclusion
I have considered whether in the light of the above, this is a case in which the Court could conclude that the decision was right even though the reasons do not reflect that the appropriate analysis was undertaken. I have decided, after considerable reflection, however, that the appropriate disposition of the application is to quash the decision under review and refer the matter back for rehearing by a differently constituted Board. It is not within the Court's authority to write the decision the Board should have given. There are issues of credibility respecting the claimant's evidence. There are issues that involve documentary evidence that is not physically before the Court, nor to which the Court has easy access. There are issues of both fact and the application of the law that need to be decided. The proper legal analysis would benefit from a more extensive examination of when a crime has been found in international law to come within the definition of a crime against humanity, particularly in the light of the Pushpanathan decision, and the relevant international instruments, including decisions in other jurisdictions. Counsel for the applicant will have an opportunity to present that kind of analysis to the Board on a referral back for rehearing.
Accordingly, an order will issue setting aside the decision under review and referring it back for rehearing. Both counsel agreed that the certification of a question for appeal did not arise on the facts of this case.
1 The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Office of the United Nations High Commissioner for Refugees, 1988, para. 149, at p. 35; G. S. Goodwin-Gill, The Refugee in International Law, (Oxford, 1983), at pp. 61-62; referred to in Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 (C.A.), per Marceau J.A., at pp. 607-608; L. Waldman, Immigration Law and Practice (Toronto, 1992); J. C. Hathaway, The Law of Refugee Status (Toronto, 1991); UNHCR Legal Project in Canada, Note No. 5 [Determination of Refugee Status of Persons Connected with Organizations or Groups which Advocate and/or Practice Violence], para. 16, at p. 4.
2 [1992] 2 F.C. 306 (C.A.), at p. 317.
3 [1994] 1 F.C. 298 (C.A.), at p. 321.
4 (1996), 205 N.R. 282 (F.C.A.), at p. 287.
5 J. Rikhof "Crimes Against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda" (1996), 6 N.J.C.L. 233, at p. 242.
6 E. Schwelb, "Crimes Against Humanity" (1946), 23 Br.Y.B.I.L. 178, at pp. 197-198.
7 [1994] 1 F.C. 433 (C.A.), at p. 443.
8 Supra, note 5, at p. 253 (ftn. 70).
9 "It is one thing, under the first branch of the incidence test, to accept that the appellant's crimes were committed in the general context of violent opposition to the government; it is quite another to condone the use of deadly force against an unarmed civilian commercial target in circumstances where serious injury or death to innocent bystanders was simply inevitable. Violence of this sort is wholly disproportional to any political objective" [[1995] 1 F.C. 508 (C.A.), at p. 534].
10 Tribunal Record, at p. 290.
11 Id., at p. 291.
12 Id., at p. 292
13 Id., at pp. 287-288.
14 Supra, note 5, at p. 258.