Date: 20020506
Docket: IMM-425-01
Neutral citation: 2002 FCT 512
Ottawa, Ontario, May 6, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
SHAHIR HARB
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- [1] This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division) determining that the applicant is not a refugee within the meaning of the United Nations
Convention Relating to the Status of Refugees (the Convention).
- [3] In 1989, the applicant met Fadi Asaad Saeed, who was originally from the occupied part of southern Lebanon. In exchange for money, Fadi Asaad Saeed asked the applicant to provide information concerning the leaders of the Amal organization, their movements on the southern border of Lebanon, the types of weapons they carried and the vehicles they used. For a period of one year, the applicant reported on everything he heard and saw at Amal headquarters. While doing so, the applicant discovered that Fadi Asaad Saeed was working for the second-in-command of the South Lebanon Army (SLA).
- [4] In October 1993, while in the South of Lebanon, the applicant was called to a meeting at Amal headquarters. Once back in Beirut, the applicant was arrested and brought to headquarters by men who belonged to that movement. He was then interrogated about his relations with Fadi Asaad Saeed and tortured relentlessly.
- [6] In June 1993, the applicant left Lebanon and went to Germany. There, he claimed refugee status but his claim was rejected. The applicant then decided to come to Canada. He travelled via Spain and Portugal and finally arrived in Canada on March 24, 2000. He claimed refugee status as soon as he arrived.
- [7] The applicant fears persecution by the Amal movement, Hezbollah and the Lebanese authorities should he be forced to return to Lebanon since he is considered a traitor as a result of his collaboration with the SLA.
- [8] The Refugee Division concluded that the applicant was excluded under Article lF(a) of the Convention because of his membership and activities in Amal. It also concluded that the applicant had been an accomplice of the SLA because of his personal and knowing participation in crimes against humanity committed by the SLA.
- [9] Although its conclusion with respect to exclusion was sufficient to reject the claim made by the applicant, the Refugee Division found that he could not be granted refugee status since, for one thing, his testimony concerning his escape from his cell at Amal headquarters was implausible and, for another, he feared prosecution and not persecution for one of the five reasons provided in the definition of refugee.
The exclusion of the applicant under Article lF(a) of the Convention
(i) The Applicable Law
| ... 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. |
|
« réfugié au sens de la Convention » [...] Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
[11] Section F(a) of Article 1 of the Convention reads as follows:
| 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; |
|
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; |
[12] The standard of proof embraced by the term "serious reasons for considering" is well below the standard required in criminal law ("beyond a reasonable doubt") or in civil law ("on a balance of probabilities or preponderance of evidence") (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)).
[13] As Mr. Justice Linden stated in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), that standard requires something more than suspicion or conjecture, but less than proof on a balance of probabilities.
[14] The burden of proof lies with the person claiming that there are serious reasons for considering that international crimes have been committed.
[15] The term "crimes against humanity" is defined in article 6 of the Charter of the International Military Tribunal (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis) [82 U.N.T.S. 279]:
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 domestic law of the country where perpetrated.
[16] With respect to the term "crimes against humanity" found in the Convention, the Handbook on Procedures and Criteria for Determining Refugee Status (United Nations High Commissioner for Refugees, Reedited, Geneva, January 1992) states the following:
150. In mentioning crimes against peace, war crimes or crimes against humanity, the Convention refers generally to "international instruments drawn up to make provision in respect of such crimes". There are a considerable number of such instruments dating from the end of the Second World War up to the present time. All of them contain definitions of what constitute "crimes against peace, war crimes and crimes against humanity". The most comprehensive definition will be found in the 1945 London Agreement and Charter of the International Military tribunal.
[17] In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), Sivakumar,supra, and Moreno, supra, the Federal Court of Appeal established the applicable principles regarding the required degree of participation, which Mr. Justice Nadon more recently summarized concisely in Mohammad v. Canada (Minister of Citizenship and Immigration (1995), 115 F.T.R. 161, at page 178:
1. A person who commits a crime must be held responsible therefor.
2. A person may be responsible for a crime he or she did not personally commit, that is, as an accomplice.
3. The starting point for the existence of complicity is "personal and knowing participation" by the person in question.
4. Mere bystanders are not accomplices.
5. A person who aids in or encourages the commission of a crime may be responsible therefor.
6. A superior may be responsible for crimes committed by those under his or her command if the superior knew about them.
7. A person may be held responsible for crimes committed by others because of his or her close association with those who committed them.
8. The more important the position held by a person in an organization that has committed one or more crimes, the more likely his or her complicity.
9. A person who continues to hold a leadership position in such an organization with full knowledge that the organization is responsible for crimes may be considered an accomplice.
10. Evidence that the individual protested against the crime, tried to stop its commission or attempted to withdraw from the organization must be taken into consideration in determining whether he or she is responsible.
(ii) Application in this case
Exclusion with respect to the Amal movement
[18] On the basis of the documentary evidence, the Refugee Division concluded that the Amal movement was "a strong-arm organization whose ends justify its means and whose purpose is brutal." The applicant claims that this characteristic is erroneous and not supported by any documentary evidence.
[19] In Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282 (C.A.), the Federal Court of Appeal held that in order to establish that the tribunal committed a reviewable error, the applicant must demonstrate on a balance of probabilities that the tribunal's finding was not rationally supported by any material before it. Even though the tribunal committed a reviewable error on some of its findings, its decision would still be upheld if there was other evidence on which it could reasonably have based its conclusion.
[20] In this case, even though the Refugee Division's conclusion relating to the Amal movement was not based on the documentary evidence but rather on the applicant's testimony, I am satisfied, having regard to Stelco, supra, that this conclusion was rationally supported by the evidence that was before the Refugee Division. In any case, the error was not crucial since the exclusion of the applicant was also based on his personal and knowing participation in crimes against humanity that were committed by the SLA.
[21] With respect to the Amal movement, the testimony of the applicant shows that he feared that movement since it kills people it considers to be traitors:
[TRANSLATION]
Q. So, in fact, you're telling us that Amas [sic] wants to get even with you for having betrayed them?
A. That's right.
Q. So, what you're saying is that people such as yourself who have committed treachery are pursued by Amas [sic] or Hezbollah?
A. What?
Q. What you're saying is that people such as yourself who are considered as traitors by Amas [sic] ...
A. That's right.
Q. ... are pursued and possibly even killed?
A. That's right.
Q. But, in your case, you are afraid that it might happen to you, but how do you know that in general things are handled that way? How do you know that Amas [sic] kills people it considers to be traitors?
A. Because there were a number of operations set up for that and it was ... it was published in the newspapers. I can tell you that I was at the office and I heard what was being said ...
Tribunal Record, at p. 479.
[22] The Applicant also acknowledged that members of Amal committed the following crimes against humanity while he was a member: frequent extrajudicial killings, suicide operations and car bombings using explosives. The relevant excerpt of his testimony states:
A. In Beirut.
Q. ... at headquarters?
A. It was ... the main office, there were several offices, several departments that were ... divided. There was the ... information office, the ... political office, the organizational office, etc.
Q. But were they physically in the same building?
A. Yes, it was ...
Q. Okay. Sort of like the Amas [sic] headquarters in Beirut?
A. That's right.
Q. Alright. So, you were there. What was it you heard to find out how traitors were treated?
A. People ... these are things that are also mentioned by people themselves, not necessarily ... You didn't necessarily have to be in the office but I had seen them, their actions, suicide operations against the Israeli army and even against collaborators, against (inaudible) of collaborators. There were cases in which car bombs exploded, of course.
- Yes, yes.
BY THE CHAIRPERSON (speaking to the claimant)
Q. Pardon me. Earlier, you told us that you had heard this being mentioned at Amas [sic] headquarters. So, what did you ... I am repeating Mr. Dubé's question. What did you hear being said at headquarters on that point?
A. The people that happened to be there were saying ... they were proud to say that they had killed somebody, any one of them ... a person who kills a collaborator, it's considered to be a good ... to be a good thing, to say that a Muslim is fighting, is involved in jihata (phonetic) or is a combatant in Amal. So, it's considered to be a struggle, a very important struggle.
Tribunal Record, at pp. 480-81.
[23] That evidence was sufficient to support the finding of the Refugee Division that Amal is a strong-arm organization prepared to use any means to achieve its purposes.
[24] The work of the applicant, as a member, within the Amal movement, made him become aware of the abuses committed by that organization. Having regard to the applicant's role in the information sector and his responsibilities, it was reasonable for the Refugee Division to conclude that the applicant necessarily must have had knowledge of the crimes against humanity that were committed by that organization. The applicant worked with the organization voluntarily for several years, knowing all the while that the activities carried out by that organization would likely result in the commission of crimes against humanity and without trying to dissociate himself from it. I am of the opinion that the Refugee Division's finding that the applicant was an accomplice by association was reasonable and does not warrant the intervention of this Court.
Exclusion with respect to the South Lebanon Army
[25] The documentary evidence on record supports the Refugee Division's finding that the SLA is an organization that committed crimes against humanity at the time the applicant was collaborating with it: hostage takings, kidnappings, imprisonment without trial, exclusions, torture.
Lebanese Detainees in Khiam Prison and Israel
Some 140 Lebanese men and women are currently being held without charge in Khiam prison in the occupied zone. Some of the detainees have been imprisoned since 1986. This notorious facility, where torture is endemic, is a joint enterprise of Israel and the SLA.
...
Since at least 1989, Israel has held Lebanese inside Israel as hostages to gain the return of missing Israeli soldiers. Of the twenty-one Lebanese who were held hostage in Israel, eight had been transferred to Israel from Khiam prison. Many of the hostages have alleged torture in Israeli custody, and in March Israeli courts agreed to hear Mustafa al-Diranis's petition for compensation for torture that included rape. Torture and hostage-taking for any reason are both war crimes.
...
Human Rights Watch has documented grave breaches of the Geneva Conventions by SLA forces, including torture and expulsion of civilians from the Israeli-occupied zone.
Tribunal Record, at p. 332.
Israel/South Lebanon
Suha Beshara was the only person held in Khiam whose offence was known: she tried to kill General Antoine Lahad, the leader of the South Lebanon Army (SLA), Israel's proxy militia in South Lebanon. Around 140 other detainees, including about five women and 10 minors, have been held in Khiam for up to 13 years without any charge or trial. They are held outside any legal framework.
Tribunal Record, at p. 335.
The SLA practice of forced conscription of teenaged boys has been a long-standing nightmare for families that are opposed to the occupation and despise the SLA. According to Lebanese defense lawyers, since 1985 "about 12,000 people have joined the SLA freely or forcibly. Based on the testimony of former residents of the occupied zone, there appears to be no standard procedure for recruitment of militia members and no minimum age requirement for those who have been pressed into service. [Notes omitted]
Tribunal Record, at p. 338.
[TRANSLATION]
Since 1990, recruitment to the SLA has declined significantly. Since 1992, there has been an obvious resistance to the recruiting process in the SLA, which is consistent with the fresh outbreak of Lebanese resistance activities against the Israeli military occupation. Parents whose young sons are approaching the age of recruitment in the SLA are generally inclined to send them to Beirut when they reach the ages of 15 or 16. In fact, those families must very often leave the zone with their sons to live in exile in Beirut. This constitutes a direct example of what causes the exodus of the population beyond the zone.
Practically speaking, quotas for new recruits are set for each village. This is done each time the SLA proves to be unable to fulfill its duties. In most cases, recruitment is forced.
Exhibit A-54, Documentary Evidence.
[TRANSLATION]
The Israeli presence is direct, with many soldiers and military security officers. Israel uses the SLA to carry out "its dirty work and thereby proclaim its innocence before international opinion." This is how the Israeli authorities try to make it look as though it is the SLA that is solely responsible for the Khiam prison when in fact the "strong-arm interrogations", the administration, etc. are carried out by Israelis. The Israeli Secret Services have offices in several locations within the zone. It is under their orders that the SLA makes arrests and detains Lebanese. The SLA in itself does not have sufficient authority to make prolonged arrests.
Ibid., concerning the Khiam prison.
[26] With respect to his participation, from 1991 to 1993 the applicant reported people associated with Amal, all the while knowing the fate of the detainees. He testified as follows:
Q. In '86, when you joined Amas [sic], were you aware of the ... reputation of the Khiam prison?
A. Just as I told you, my way of thinking back in '86 is not the way I think nowadays.
Q. When you met Mr. Fadi in '89, were you aware of the reputation of the Khiam prison?
A. Of course.
Tribunal Record, at pp. 498-99.
[27] When a claimant is aware that his or her collaboration with a group that commits crimes against humanity can have serious consequences for the persons the claimant informed on, including arrest, arbitrary detention, torture, and even murder, the Refugee Division can reasonably conclude that the claimant must be excluded under Article 1F(a) (Bazargan v. Minister of Employment and Immigration) (1996), 205 N.R. 282 and Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.)).
[28] The applicant admitted that he had provided the SLA with information on several Amal leaders but argued that all the persons he had informed on were military members with the result that those individuals cannot be considered to be "civilians" within the meaning of that term used in international instruments.
[29] Even though Canadian case law has not yet established whether soldiers who are not involved in hostilities at the time they are victims of inhumane acts can be considered
to be part of the civilian population, that question was answered in the affirmative by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 in Prosecutor v. Blaskic, IT-95-14-T, ICTY, March 3, 2000, Trial Chamber.
[30] The Tribunal concluded that former combatants or those that had been placed hors de combat as a result of their wounds or their being detained can be included in the category of civilians. At page 72, the Tribunal stated that in determining a victim's standing as a civilian, it is the specific situation of the victim at the moment the crimes are committed, rather than the victim's status, that must be taken into account:
Crimes against humanity ... do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants - regardless of whether they wore ... uniform or not - but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained. It also follows that the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian.
[31] I agree with that view. The term "civilian population" should be given a broad interpretation that includes any person who does not take part in hostilities at the time that person is a victim of inhumane acts since, in a situation of that kind, that person is no less vulnerable a victim than any other civilian and deserves to be protected from atrocities against him or her. That interpretation appears to me to be consistent with the spirit of the Convention.
[32] The applicant also submits that none of the persons whom he had informed on had had any problems, been interrogated or been arrested. A justification such as that is unacceptable since he could in no way be sure that the information provided could not result in the torturing or killing of those persons.
[33] Having concluded that the Refugee Division did not err with respect to the application of the exclusion clause, it is not necessary to consider the issue of the applicant's inclusion (Gonzalez v. M.E.I. (1994), 115 D.L.R. (4th) 403 (F.C.A.)).
[34] Accordingly, the application for judicial review is dismissed.
[35] The applicant proposed that the following questions be certified:
1. Can armed members of an organization, in this case, Amal, which, according to the Immigration and Refugee Board, committed crimes against humanity, be considered as part of the civilian population or any identifiable group under subsection 4(3) of the new Crimes Against Humanity and War Crimes Act, which defines the concept of crime against humanity?
2. Given the significant consequences for an applicant of having an exclusion clause applied to him or her, is it relevant to consider whether there was sound basis for applying that clause even if it were determined that the Refugee Division did not err in its conclusion as to non-inclusion?
[36] The respondent rephrased Question 1 as follows:
1. For the purposes of Article 1F(a) of the United Nations Convention relating to the status of refugees concerning a crime against humanity, can military members or paramilitary members, who were not taking part in hostilities at the time they were persecuted or victims of inhumane acts, be considered a "civilian population" within the meaning of that term in the following provisions:
(a) Paragraph 6(c) of the Charter of the International Military Tribunal (following the London Agreement on August 8, 1945);
(b) Paragraph II(1)(c) of Law No. 10 dated December 20, 1945, of the Control Council for Germany.
(c) Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991;
(d) Article 3 of the Statute of the International Tribunal For Rwanda;
(e) Paragraph 7(1) of the Rome Statute of the International Criminal Court?
[37] I agree to certify that question since its purpose is to clarify a point of law of general importance that has not been settled.
[38] With respect to the second question proposed by the applicant, I am not satisfied that this question is necessary in order to dispose of this case having regard to my conclusions as to exclusion.
ORDER
[1] The application for judicial review is dismissed.
[2] The respondent rephrased question 1 as follows:
1. For the purposes of Article 1F(a) of the United Nations Convention relating to the status of refugees concerning a crime against humanity, can military members or paramilitary members, who were not taking part in hostilities at the time they were persecuted or victims of inhumane acts, be considered a "civilian population" within the meaning of that term in the following provisions:
(a) Paragraph 6(c) of the Charter of the International Military Tribunal (following the London Agreement on August 8, 1945);
(b) Paragraph II(1)(c) of Law No. 10 dated December 20, 1945, of the Control Council for Germany.
(c) Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991;
(d) Article 3 of the Statute of the International Tribunal For Rwanda;
(e) Paragraph 7(1) of the Rome Statute of the International Criminal Court?
[3] I agree to certify that question since its purpose is to clarify a point of law of general importance that has not been settled.
"Danièle Tremblay-Lamer"
J.F.C.C.
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-425-01
STYLE OF CAUSE: SHAHIR HARB
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 18, 2002
REASONS FOR ORDER AND ORDER OF MADAM JUSTICE TREMBLAY-LAMER
DATED: MAY 6, 2002
APPEARANCES:
ANNIE BÉLANGER FOR THE APPLICANT
NORMAND LEMYRE FOR THE RESPONDENT
SOLICITORS OF RECORD:
BÉLANGER, FIORE FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA