PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] It is understood that the rule of law and the recognition of international law, therein, cannot be a recipe for society’s suicide in the midst of the chaos of terror. Exceptional circumstances necessitate exceptional responses; yet, the rule of law cannot be held hostage to chaos, it must be acknowledged as an antidote for recalibration of society’s equilibrium-barometer throughout, or, at the very least, restored in an incremental manner, if not completely, at the first opportunity for its ultimate “desired” retrieval.
How the war on violence is waged and the limits it imposes on itself, in our time, are components of the same equation of society’s measurement of its past action – each component to be weighed on an on-going basis.
In the fight to subjugate violence bred of terror, at what cost is law set aside; and thus, the deepest values, the law embodies, held in abeyance, or even discarded – when the innocent and the guilty are undistinguished from one another. A reflection for judgment becomes “a luxury” that certain authorities deem dispensable due to the danger of annihilation in the midst of chaos.
Can the pendulum of the law and justice be recalibrated or can its recalibration even be contemplated in the heat of the action? Is there a possibility that the law, too, then, together with life, becomes a casualty irretrievably lost to the deemed indiscriminate danger of annihilation? Is the rule of law, simply, to be considered as a reflection of serenity’s hindsight, not appropriate for consideration on the battlefield of chaos?
In that situation, measured or weighed, response or strategy is deemed by certain authorities to be the naïveté of those distant from danger’s battlefield, not engaged or caught up in the heat or line of fire of the situation.
If that would be the case, the rule of law and the recognition of international law, therein, would no longer have a place in society. The rule of law cannot simply be a bystander when chaos reigns; it must serve as an eventual witness; thus, it formulates a response to the disproportionate use of force, as used by units such as the one to which the Applicant belonged.
Furthermore, it must be recognized that a particular background, setting and context to the human condition of a specific situation must be examined, in and of itself, before it can be compared to any other particular background, setting and context to the human condition, unfolding, or unfolded, elsewhere.
INTRODUCTION
[2] Mr. Alexandr Petrov falls within the parameters of Section F(a) of Article 1 of the Convention. There are serious reasons for considering that he is complicit in crimes against humanity, by virtue of his activities with the Russian police serving in Grozny, Chechnya. The atrocities and human rights violations are well documented.
[3] The documents clearly indicate that members of the Russian police in Chechnya were directly and indirectly responsible via the Russian Federal Security Service (FSB) for activities that constitute crimes against humanity, in a widespread and systematic fashion. The documents also establish that the Russian police was in clear violation of international humanitarian law.
[4] In applying the reasoning of Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), [1992] F.C.J. No. 109 (F.C.A.) (QL); to the facts of this case, it is clear that Mr. Petrov falls within Article 1F(a) and should therefore be excluded from Convention Refugee consideration.
[5] In determining whether Mr. Petrov is an accomplice in crimes against humanity versus an innocent bystander, it is very helpful to consider the following comments of Justice Joseph Robertson in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298, [1993] F.C.J. No. 912 (QL):
[46] … While I do not suggest that the task of the Board is to arrive at a conclusion which is fully supported by the application of criminal law principles, direction may be taken from the words of Mr. Justice Dickson (as he then was) writing for a majority of the Court in Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881, in which he considered the offence of aiding and abetting: Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.
[6] This reasoning is applied to the case of Mr. Petrov, it is clear that he was not just an ordinary bystander witnessing the commission of atrocities in a detached manner; rather, he was an integral and supporting part of the Russian Ministry of Internal Affairs during the commission of these gross human rights violations. The facts of this case clearly establish that Mr. Petrov was a knowing and active participant of an organization that was committing gross human rights abuses against civilians, on a systematic and widespread basis. He was a member of the apparatus/machinery of the Russian Ministry of the Interior and the FSB whose objectives were often achieved through the commission of human rights abuses and violations of international law such as civilian and criminal brutality, beatings, torture and death.
[7] Even if we accept that Mr. Petrov was never personally the one to inflict the pain or to actually participate in the gross human rights violations, he must have been aware of the atrocities committed by the organization of which he was an integral part. He was part of the operation, even if he was not at its nervous system. At a minimum, he played a supporting role to the functions of the Ministry of the Interior, assisting the FSB and providing support functions during his involvement with the Russian police. Therefore, he is complicit in crimes against humanity committed by the Russian police and FSB.
[8] The Court refers to the matter of Guitierrez v. Canada (Minister of Employment and Immigration), (1994) 84 F.T.R. 227, [1994] F.C.J. No. 1494 (QL):
[22] … three prerequisites must be established in order to provide complicity in the commission of an international offence: (1) membership in an organization which committed international offenses as a continuous and regular part of its operation, (2) personal and knowing participation, and (3) failure to disassociate from the organization at the earliest safe opportunity.
JUDICIAL PROCEDURE
[9] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on August 6, 2006 wherein it found the Applicant was neither a Convention refugee, nor a person in need of protection pursuant to section 96 and subsection 97(1) of the IRPA by reason that he was excluded from protection pursuant to section 98 of the IRPA under Article 1F(a) of the Convention relating to the Status of Refugees (Convention) for complicity in crimes against humanity.
BACKGROUND
[10] The Applicant, Mr. Alexandr Petrov, is a citizen of Russia. In June 1, 1993, Mr. Petrov voluntarily joined the Department of Criminal Investigation of the Ministry of Internal Affairs of Tatarstan Republic, where he served as an operative representative for the criminal police until April 1996.
[11] In March 1996, Mr. Petrov was chosen to go to Grozny, Chechnya to search for the military commander, Shamil Bassayev, and to neutralize terrorist groups. Mr. Petrov allegedly objected but was advised that it was his duty and that he would be tried and incarcerated if he refused.
[12] On April 23, 1996, Mr. Petrov arrived in Grozny as a member of the group “Vitayz”, which was composed of forty three (43) participants from the Department of Criminal Investigation from forty three (43) different cities across Russia. Although Mr. Petrov was informed by Moscow authorities that his direct assignment was to locate Shamil Bassayev, the situation in Gozny had changed. Once in Grozny, Mr. Petrov became a member of a battalion specially designated to the Ministry of Internal Affairs and was involved in actual military actions in the Chechnya war.
[13] While in Chechnya, Mr. Petrov and other members of Vitayz arrested Chechen rebels and neutralized several terrorist groups. In June 1996, when the mission was over, twenty eight (28) members of the group remained alive. Many of them, including Mr. Petrov, were declared enemies by Chechen rebels. For his service during that time period, Mr. Petrov was granted a cross for personal courage by the President of Russia.
[14] Mr. Petrov alleges that his problems began upon his return to Kazan on June 20, 1996, when a journalist published, without his consent, an article in the Tatar newspaper relating to his involvement in Chechnya.
[15] In 1997, Mr. Petrov received threatening telephone calls and was beaten numerous times. In addition, Mr. Petrov was demoted from the head of the criminal research department of the Department of Criminal Investigation to an operative.
[16] In November 1997, Mr. Petrov was interrogated by the FSB about his activities in Chechnya. He was advised that the authorities had concrete information relating to his actions in Chechnya that they were investigating. Mr. Petrov then signed a document instructing him not to leave Kazan and to appear when required.
[17] In April 1998, Mr. Petrov resigned from the police force. In January 1999, he was detained and interrogated by the police as to his actions in Chechnya and his police work. In July 1999, Mr. Petrov was beaten by four men; these assailants included an individual that Mr. Petrov had seen in the FSB office. Following this incident, Mr. Petrov moved out of Kazan and went to Moscow.
[18] In the Fall of 2000, Mr. Petrov learnt that there existed a campaign of repressing the participants of Chechnya in Moscow. Due to this campaign, one of the members of Vitayz was beaten several times by officials of the Department of the Prevention of Terrorism, and false criminal charges were made against him. Moreover, Mr. Petrov alleges that four members of the group Vitayz were killed under strange circumstances. Mr. Petrov contends that the Vitayz members were murdered as they had witnessed the events in Chechnya. He also alleges that he, as well as his fellow Vitayz members, were perceived as being dangerous to the government and were therefore being eliminated.
[19] In August 2002, Mr. Petrov entered Canada and claimed refugee protection shortly thereafter.
DECISION UNDER REVIEW
[20] The Board reviewed all of the evidence submitted and found that Mr. Petrov should be excluded from refugee protection for the following reasons: (1) there are serious reasons to believe that the Applicant committed crimes against humanity while participating in the military operations in Chechnya in 1996; (2) there are serious reasons to believe that Mr. Petrov was complicit in abuses of detainees by turning them over to the FSB knowing full well that the FSB tortured detainees in Chechnya; and (3) there are serious reasons to believe that the Applicant had knowledge of the serious and widespread human rights violations that were being committed by law enforcement and correctional officials in Russia while he served the Ministry of Internal Affairs from 1992 to 1998 and by these same officials in Chechnya while he was serving there in 1996.
ISSUE
[21] Did the Board err in concluding that Mr. Petrov should be excluded from refugee protection pursuant to Article 1F(a) of the Convention?
LEGISLATIVE FRAMEWORK
[22] Sections 96, 97 and 98 of the IRPA state:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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[23] Article 1F of the Convention states:
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1F. 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;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
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1F. 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; b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiés; c) Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux principes des Nations Unies. |
(Emphasis added.)
STANDARD OF REVIEW
[24] Whether Mr. Petrov should be excluded from refugee protection under Article 1F(a) of the Convention is a question of mixed fact and law and should thus be reviewed on a standard of reasonableness simpliciter. The Court can therefore not intervene unless the Board’s decision is unreasonable. (Shrestha v. Canada (Minister of Citizenship and Immigration), 2002 FCT 887, [2002] F.C.J. No. 1154 (QL).)
ANALYSIS
[25] According to Section 98 of the IRPA, the definition of Convention refugee does not include any person to whom the Convention does not apply pursuant to Section E or F of Article 1 of the United Nations Convention relating to the Status of Refugees. Sections E and F are included in the Act by way of a Schedule. In Mr. Petrov’s case, Article 1F(a) is relevant and reads as follows:
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1F. 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;
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1F. 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; |
[26] Article 1F of the Convention seeks to exclude from the benefit of refugee status persons whose conduct, either towards civilians or, as government agents, towards other states, is held to have breached international norms of acceptable behaviour.
Burden and Standard of Proof
[27] In the context of exclusion, in respect of the Immigration Law Framework, the onus is on the Minister to establish that there are “serious reasons for considering” that the individual has committed an excludable act.
[28] The standard of proof, “serious reasons for considering”, and the meaning of that phrase have now been determined in Canada law. In Ramirez, above, the Federal Court has stated that the words, “serious reasons for considering”, establish a lower standard of proof than a balance of probabilities, the usual civil law standard of proof. A balance of probabilities is, of course, already lower than the criminal law standard of proof, beyond a reasonable doubt.
Framework for Crimes Against Humanity
[29] The Federal Court in Shakarabi v. Canada (Minister of Citizenship and Immigration), (1998) 145 F.T.R. 297, [1998] F.C.J. No. 444 (QL), ruled that:
[20] The courts often consider statements by academics, commentators and various domestic and international courts and tribunals in order to arrive at a definition of crimes against humanity. These statements help to define further the bare bones of the definition provided in such international instruments as the Charter of the IMT. Through its decisions, the Federal Court interprets these statements in accordance with the international instruments in order to provide a definition for all interested parties. Thus, the real issue is whether the acts which the Board identified are crimes against humanity as discussed in the court's jurisprudence.
[30] The starting point in defining crimes against humanity is Article 6 of the Charter of International Military Tribunal (UNHCR Handbook, Jan./88, Annex V, p. 88), which defines the term to include:
(c) … murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population…
[31] Article 6 goes on to state:
(c) 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.
[32] Article II of Control Council Law No. 10, Berlin, December 20, 1945, defines crimes against humanity as follows:
…Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape and other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic law of the country where perpetrated.
[33] The Rome Statute of the International Criminal Court, signed July 1, 1998, is the most accurate reflection of the current state of international law with respect to crimes against humanity. It effectively codified and built on the International Law in the area of crimes against humanity, as it was developed in 1945 (Statute of Nuremberg, Charter of the International Military Tribunal). Article 7 of he Rome Statute defines crimes against humanity as follows:
… murder, extermination, enslavement, deportation, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, sexual violence, and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
[34] In 2000, the Canadian Parliament enacted the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, which effectively implemented the Rome Statute. Section 6 of the Crimes against Humanity and War Crimes Act deals with offences committed outside Canada. Section 6(3) defines “crime against humanity” as follows:
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means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. |
Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait — acte ou omission — inhumain, d’une part, commis contre une population civile ou un groupe identifiable de personnes et, d’autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l’humanité selon le droit international coutumier ou le droit international conventionnel ou en raison de son caractère criminel d’après les principes généraux de droit reconnus par l’ensemble des nations, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu. |
[35] Professor Hathaway states:
… Crimes against humanity consist of fundamentally inhuman conduct, often grounded in political, racial, religious or other bias. Genocide, slavery, torture, and apartheid are examples within this category.
(Hathaway, James C. The Law of Refugee Status (Toronto): Butterworths, 1991, p. 217.)
[36] In Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), the Federal Court has ruled that crimes against humanity must generally be committed in a widespread or systematic fashion, in war and in times of peace.
[37] The principal argument advanced by Mr. Petrov is that the Board erred in finding that he is excluded from Canada pursuant to Article 1F(a) of the Convention because the Board failed to apply the proper legal test to determine whether Mr. Petrov was complicit in “crimes against humanity”.
Crimes Against Humanity
Definition of Crimes Against Humanity
[38] Subsection 6(3) of the Crimes Against Humanity and War Crimes Act, provides the following definitions:
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"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission
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«crime contre l’humanité » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait — acte ou omission — inhumain, d’une part, commis contre une population civile ou un groupe identifiable de personnes et, d’autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l’humanité selon le droit international coutumier ou le droit international conventionnel, ou en raison de son caractère criminel d’après les principes généraux de droit reconnus par l’ensemble des nations, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
«crime de guerre » Fait — acte ou omission — commis au cours d’un conflit armé et constituant, au moment et au lieu de la perpétration, un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables à ces conflits, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
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[39] Subsection 6(1.1) of the Crimes Against Humanity and War Crimes Act, provides that the commission of a crime includes inchoate offences:
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6. (1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.
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6. (1.1) Est coupable d’un acte criminel quiconque complote ou tente de commettre une des infractions visées au paragraphe (1), est complice après le fait à son égard ou conseille de la commettre.
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[40] Contrary to Mr. Petrov’s allegations, the Board did not fail to distinguish between his voluntary employment in the Ministry of Internal Affairs between 1993 to1996 and his involvement in Chechnya in 1996. The Board in fact divided its reasons to two parts by stating:
The following analysis will discuss the general situation in Russia first and then the hostilities in Chechnya.
[41] The hostilities in the Republic of Chechnya of the Russian Federation broke out in December 1994. As indicated in documentary evidence submitted to the Court, when the claimant arrived in Grozny in April 1996, fighting, violence and violation of human rights had been going on in Chechnya for more than one year. The UN Economic and Social Council (Council) issued a report on The Situation of Human Rights in the Republic of Chechnya of the Russian Federation on March 26, 1996. As indicated in the report, human rights and humanitarian law were grossly violated by both sides in the conflict (UN Council’s Report, March 1996, p. 24); however, the following discussion will focus on the violation committed by the Federation side for the reason of its high relevance to the determination of the exclusion issue in the present case.
[42] In its Introduction the UN Council’s report stated:
1. At the fifty-first session of the Commission on Human Rights, the Chairman read out a statement indicating the Commission's consensus agreement in connection with the situation of human rights in the Republic of Chechnya of the Russian Federation (see E/1995/23-E/CN.4/1995/176, para.594). In the statement, entitled "Situation of human rights in Chechnya", the Commission expressing its deep concern over the disproportionate use of force by the Russian armed forces, deplored the grave violations of human rights, before and after the beginning of the crisis, as well as of international humanitarian law and the continuation of those violations.
The report stated:
2. The Commission strongly deplored the high number of victims and the suffering inflicted on the civilian population and on displaced persons, and the serious destruction of installations and infrastructure used by civilians. It called for all those who had committed violations of human rights against individuals to be brought to justice.
The report further stated:
5. During 1995 and 1996, the High Commissioner for Human Rights carried out a number of consultations with Russian authorities on the human rights situation in Chechnya. During his meeting on 17 January 1995 with the Russian Foreign Minister, Mr. Andrey Kozyrev, the High Commissioner appealed for an immediate end to violence and violations of human rights in Chechnya and offered to the Russian authorities the cooperation of his Office.
(UN Council’s Report, March 1996.)
[43] Based on information from various sources, including a number of non-governmental organizations, e.g. Human Rights Watch, Amnesty International, Unrepresented Nations and Peoples Organization, etc., the report detailed abuses committed by Federal forces as cited in the Minister’s submissions to the Board which were submitted to the Court:
55. Russian Ministry of Interior Forces (senior officers) allegedly fired into a group of soldiers who refused to obey orders to kill the civilian population. In this regard reports were critical of the behaviour and conduct of the Federal military personnel serving in the field and noted that they lacked training in humanitarian law.
61. Attacks by Federal forces on Chechen towns and villages have been characterized as completely indiscriminate, disproportionate and deliberate. Reports also describe, in the victims' own words the indiscriminate attacks against displaced persons in transit, and the shelling of their camps by Federal soldiers. For example, on 7 March 1995, outside the village of Achkhoy-Martan, south-west of Grozny, Federal troops reportedly opened fire on two vehicles transporting people fleeing the conflict zone and shot dead seven people, including five women and a three­month-old baby girl.
65. … According to those sources, in February and March 1995 concentration centres, situated at army bases beyond outside control and verification, became the sites of the most comprehensive violence and cruel or degrading acts committed against the detainees. Systematic beatings, torture and other forms of ill-treatment, including electric shocks, were said to be routine during detention at "filtration points" or transportation between them. In the latter case detainees with their hands and legs tied were allegedly loaded onto trucks in several layers, one on top of another. As a result some prisoners suffocated to death.
…
67. … Since the spring of 1995, reports indicate, the practice of detaining people elsewhere than in the officially established "filtration camps" has become widespread. Reportedly, 2,000 men were detained in concentration camps, including many teenagers and old men who had not participated in the military resistance. Other sources allege that Federal forces have frequently detained any Chechen male, regardless of whether there was any evidence of their involvement in the armed opposition, in order to exchange them for captured Russian soldiers.
68. Reports indicate that since 30 September 1995 Federal forces surrounded and cut off the town of Sernovodsk. As a result, 3,600 internally displaced persons at the town's sanatorium complex, the 20,000 residents of Sernovodsk and other internally displaced persons living with relatives or friends reportedly suffered food shortages. Reports also indicate that Russian officials were reported to be directing aid to northern areas of Chechnya believed to be more supportive of central government rule and away from two other regions, southern Chechnya and the Republic of Daghestan, which had become a refugee centre. In addition, it is reported that the Russian authorities have repeatedly attempted to block humanitarian relief to the area by creating bureaucratic difficulties for relief organizations, interfering with the distribution of aid and halting medical evacuations from Grozny.
(UN Council’s Report, March 1996.)
[44] In a newspaper article (submitted by the claimant to the Board), Grozny, at the time of his arrival, was described as “Grozny … Looks like Stalingrad – the ashes everywhere. What your eye catches right away is that there are no kids on the streets, all stores are closed, food markets are the only place where you can buy food.” The description was not inconsistent with the above quoted documentary evidence. The moment the claimant stepped his foot on Grozny, he saw, with his eyes, the consequences of fighting, violence and violation of human rights in Chechnya.
[45] One year later, the UN Council issued another report on March 20, 1997. Its assessment of the situation in Chechnya was almost identical as a year ago. The report stated:
1. … In the statement at its
fifty-second session, the Commission expressed its deep concern that the
disproportionate use of force by the Russian Federation armed forces was
continuing to lead to grave violations of human rights, as well as of
international humanitarian law.
2. The Commission strongly deplored the high number of victims and the
suffering inflicted on the civilian population and on displaced persons, and
the serious destruction of installations and infrastructure used by civilians.
It called for all those who had committed violations of human rights and other
crimes to be brought to justice. The Commission called urgently for an
immediate cessation of the hostilities and of violations of human rights and
for immediate contacts between representatives of the parties with the aim of
achieving a peaceful solution to the conflict, consistent with respect for the
territorial integrity and the Constitution of the Russian Federation, and
reiterated that the fundamental human rights of the people of the Republic of Chechnya
should be upheld. It further called for the unhindered delivery of humanitarian
aid to all groups of the civilian population in need.
[46] The US DOS report described the situation in Chechnya in the similar fashion, stating:
The Government’s human rights record showed little progress in 1996. Domestic and foreign human rights groups continued to document serious violations of international humanitarian law and human rights in the Republic of Chechnya by both Russian military and Chechen separatist forces. Violations committed by Russian forces continued to occur on a much larger scale than those of the Chechen separatists. Russian forces engaged in the indiscriminate and disproportionate use of force, resulting in numerous civilian deaths. They also prevented civilians from evacuating from areas of imminent danger and humanitarian organizations from assisting civilians in need. These actions were in conflict with a number of Russia’s international obligations, including those concerning the protection of civilian noncombatants. Security forces were also responsible for disappearances in Chechnya.
(US Department of State Report for 1996, January 1997.)
[47] Based on credible sources, the US DOS report pointed out that “Attempts by federal forces in August to hold Grozny were also characterized by indiscriminate use of air power and artillery, destroying several residential buildings and a hospital” and “during the battle for Grozny federal forces occupied a hospital and used patients as human shields.”
[48] The documentary evidence from various sources indicated that international community all firmly condemned gross and widespread violations of human rights and international humanitarian law by the Russian Federation side in Chechnya in 1995 and 1996.
Complicity finding properly made
Definition of complicity
[49] In Penate v. Canada (Minister of Employment and Immigration), [1994] 2 FC 79, [1993] F.C.J. No. 1292 (QL), Justice Barbara J. Reed concludes the following in what concerns questions of complicity:
[5] The Ramirez, Moreno and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation.
[6] As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[50] Furthermore, in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL), the Federal Court of Appeal stated:
[11] The first of these arguments does not apply in the case at bar. It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated. Once those organizations have committed crimes against humanity and the appellant meets the requirements for membership in the group, knowledge, participation or complicity imposed by precedent (see inter alia, Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Moreno v. Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 298 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); Sumaida v. Canada (Minister of Employment and Immigration), [2000] 3 F.C. 66 (C.A.); and Bazargan v. Minister of Employment and Immigration (1996), 205 N.R. 232 (F.C.A.)), the exclusion applies even if the specific acts committed by the appellant himself are not crimes against humanity as such. In short, if the organization persecutes the civilian population the fact that the appellant himself persecuted only the military population does not mean that he will escape the exclusion, if he is an accomplice by association as well.
[51] Finally, the Federal Court of Appeal in Bazargan v. Canada (Minister of Employment and Immigration) (1996), 205 N.R. 282 (F.C.A.), states that it is not necessary to prove, in a case such as that of Mr. Petrov, that he is part of an organization that is principally directed to a limited, brutal purpose to conclude on complicity. Instead, the Court concluded that it is sufficient to demonstrate that an organization has committed crimes against humanity that are part of the operations of the organization in which the individual in question is associated:
[11] In our view, it goes without saying that "personal and knowing participation" can be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. At p. 318 F.C., MacGuigan, J.A. said that "[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.
[52] In light of the evidence brought forward before the Board, the Board’s decision was reasonable and consistent with the jurisprudence of this Court.
Factors in determining whether an individual is an accomplice to crimes against humanity
[53] The Federal Court has enumerated six factors to consider in determining whether an individual is considered an accomplice in crimes against humanity. These factors are:
(1) Nature of the organization;
(2) Method of recruitment;
(3) Position/rank in the organization;
(4) Knowledge of organization’s atrocities;
(5) Length of time in the organization;
(6) Opportunity to leave the organization.
(Reference is made to Sungu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1207, [2002] F.C.J. No. 1639 (QL), at paragraphs 33, 44; Sivakumar, above, at paragraphs 9-13; Omar v. Canada (Minister of Citizenship and Immigration), 2004 FC 861, [2004] F.C.J. No. 1061(QL), at paragraph 9; and Kaburundi v. Canada (Minister of Citizenship and Immigration), 2006 FC 361, [2006] F.C.J. No. 427 (QL), at paragraphs 32-35, 44-45.)
[54] The factors cited above were considered by the Board in this case, thus confirming the reasonableness of the Board’s decision.
(1) Nature of the organization
[55] If an organization is found to have a limited, brutal purpose, the personal participation of an individual in committing crimes against humanity is presumed by their sole membership in the organization. In this case, the Board did not conclude that the battalion of special designation of the Ministry of Internal Affairs or the Russian army had a limited, brutal purpose. Consequently, complicity in crimes against humanity had to be established by the Minister at the hearing based on proof of Mr. Petrov’s personal participation in such crimes, during his time with the Russian army in Chechnya in 1996.
[56] The Board found that Mr. Petrov was engaged in crimes against humanity while in Chechnya in 1996, given his own admissions that he used his gun, arrested and detained individuals, participated in the war and actual military actions, exhumed corpses to identify terrorists, and neutralized terrorist groups. (Board’s decision, at pages 19-24, Transcript of hearing (February 7, 2006), at page 88, Transcript of hearing (June 14, 2006), at pages 15-25.)
(2) Method of recruitment
[57] Mr. Petrov was a member of the battalion of special designation of the Ministry of Internal Affairs from April 23, 1996 to June 20, 1996 (for a total period of two months). This was not a voluntary membership.
(3) Position/rank in the organization
[58] The Board found that, although Mr. Petrov did not have a particular rank in the Russian army in Chechnya in 1996, he was part of a team of some elite nature, rather than an ordinary official:
No evidence before the panel suggested that the claimant had a particular rank in “the battalion of special designation of the Internal Affairs Ministry”. Moreover, the claimant alleged in his PIF narrative that he was selected for the mission in Chechnya because he “was Russian and looked like a Chechen”. However, the evidence that “the battalion of the special designation of the Internal Affairs Ministry” was composed of 43 members selected from the Department of Criminal Investigation of the Ministry of Internal Affairs in 43 cities across Russia, the claimant’s candidacy in the team was confirmed by the Ministry of Internal Affairs of the Russian Federation in Moscow, and, before being sent to Chechnya, the claimant went to Moscow to be received by the Vice Minister of Internal Affairs of the Russian Federation led the panel to tend to look at “the battalion of special designation of the Internal Affairs Ministry” as a team of some elite nature than an ordinary group of officials.
(Board’s decision, at pages 24-25)
(4) Knowledge of organization’s atrocities
[59] The Board found that Mr. Petrov had knowledge of the atrocities committed by the FSB:
The documentary evidence indicated that violations of human rights in Chechnya were committed not only by the FSB, but also by other components of the Federal forces, including the Ministry of Internal Affairs, “the group which the claimant was part of.”
The claimant agreed that the FSB “were torturing detainees” and believed that “he is a first hand witness not only to the crimes committed by the FSB and the Russian government in Chechnya but to the fact that the war is being perpetrated for reasons which are economic in nature.”
The claimant acknowledged that he “did apprehend criminals who he turned over to other soldiers” and he heard of “prisoners being beaten or tortured”, but stated that “he did not see anything first hand.”
However, with or without seeing torture or beating of prisoners, it could be inferred that the claimant knew that he was indirectly involved in abuses of prisoners and detainees by the FSB in the sense that he turned those arrested over to the FSB.
(Board’s decision, at pages 18-19, Transcript of hearing (February 7, 2006), at pages 75-84)
(5) Length of time in the organization
[60] The Board did acknowledge, contrary to the Applicant’s allegations, that Mr. Petrov was in Chechnya for two months. As such, the Board concluded that the nature of Mr. Petrov’s involvement in Chechnya was sufficient for the Board’s finding of complicity:
Also, in the panel’s opinion, what was more significant was not what rank the claimant held in the battalion or for how long he stayed in Chechnya, rather was what activities he was engaged in and what transpired in this period of two months. As discussed above, the claimant fired his weapon, neutralized “terrorists”, participated in the war and actual military actions, made arrests, turned detainees to the FSB, exhumed corps, etc., in this two-month period in Chechnya.
(Board’s decision, at page 25)
(6) Opportunity to leave the organization
[61] The Board assessed this factor and stated the following:
The claimant did stay in Chechnya for two months, but he stayed with the battalion in Chechnya until the mission was over. The claimant alleged that he was forced to Chechnya. However, upon his return to Kazan, he was granted a cross for personal courage and bravery by the president of Russia.
…
After what he experienced in Chechnya in 1996, no evidence was tendered to suggest that the claimant made efforts to disassociate himself from the Ministry of Internal Affairs until 1998 when he was “offered to resign”.
(Board’s decision, at page 25)
[62] In light of all the evidence, the Board’s inadmissibility finding is not unreasonable. The Board applied the facts to the applicable criteria and did not err in its application of the law.
CONCLUSION
[63] For the reasons above, this judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5359-06
STYLE OF CAUSE: ALEXANDR PETROV v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2007
APPEARANCES:
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Mr. Arthur I. Yallen
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Mr. Negar Hashemi
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SOLICITORS OF RECORD:
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YALLEN ASSOCIATES Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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