Zolfagharkhani v. Canada (Minister of Employment and Immigration)

counsel:

Lesley E. Stalker for appellant.

Keith Reimer for respondent.

solicitors:

Lesley Stalker, Vancouver, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

MacGuigan J.A.: This case concerns the status of conscientious objectors in relation to the definition of "Convention refugee" found in 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] ("the Act"). This issue was raised but not entirely resolved in this Court in Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290 (C.A.), and now has to be revisited.

I

The appellant is an Iranian citizen who, commencing in 1986, served a total of 27 months in the Iranian military as a gunner in a tank crew during the Iran/Iraq War. Subsequent to his discharge, the Revolutionary Guards requested him to report for a further six months of military service as a paramedic in a war against the Kurdish movement. The appellant reported for a one-month training course for paramedics, and during the last week of training discovered the apparent intention of his government to engage in chemical warfare against the Kurds. His conscience being troubled by this, he deserted and fled the country.

Since the appellant's claim is based on alleged errors in the reasoning of the Refugee Division of the Immigration and Refugee Board ("the Board"), it will be useful to set out its relevant reasoning in full (Appeal Book, at pages 64-66):

3.0 Issues

The issue the Division must decide on this case is whether the claimant's alleged opposition to serving further in the military is sufficient to give him good grounds to fear persecution based on his political opinion.

4.0 Analysis

The claimant does not object to serving in the Iranian military. He enlisted in the military in the fall of 1986 and served for 27 months. He willingly participated in 13 military operations of the Iran/Iraq war, during which chemical weapons were sometimes used. He justified the killing of Iraqis because he believed they were enemies who had invaded his country.

The claimant alleged that his refusal to serve in the Iranian military in April, 1990, was based on his objection against killing his fellow countrymen, the Kurds, with chemical weapons. When the Revolutionary Guards first requested that the claimant be a paramedic in a war against the Kurdish movement, there was no probative evidence to suggest that the claimant objected. In fact, he complied willingly by reporting to a training course. It was not until the last week of his training, when the training focused on the treatment of injuries caused by chemical warfare, that the claimant's conscience became troubled. The claimant did not object to fighting his fellow countrymen, the Kurds, but rather he allegedly objected specifically to the possible use of chemical warfare against these people.

This panel does not find the claimant's specific objection as stated above to be either reasonable or valid. The reasons for our conclusion are as follows:

1. The claimant testified that during the last week of training, the person in charge of the health department of the Revolutionary Guards gave a speech indicating the possible use of chemical warfare against the Kurdish people. The claimant understood that in the event that chemical warfare was engaged, not even friendly forces were immune. The claimant also understood that the Iranian military also needed to extract information from the Kurdish prisoners of war, implying that the claimant must also treat the injured Kurdish people.

2. Evidence also indicated that both the Iranian and the Kurdish military might resort to the use of chemical warfare. The claimant was told during his training that the enemy (the Kurds) might resort to chemical weapons because of their former contact with the Iraqis.

3. The claimant testified that, as a paramedic, he was not supposed to use any weapons, not even a grenade. He was never asked to use chemical weapons directly against anyone. Rather, his role was limited exclusively to treatment of the injured. The claimant thought that working as a paramedic in the military was a refresher and that the reason he was given such a job was because he had already served two years in a tank.

4. In conclusion, the claimant was not to engage in any direct combat in the war against the Kurdish movement. His military duties were restricted solely to treatment of the injured and these injured included both the Iranian soldiers and the Kurdish people. The Iranian military did warn the claimant regarding the possibility of injuries caused by chemical warfare, with the clear understanding that chemical weapons might be used by both the Iranian and Kurdish military. In effect, the claimant would not be fighting his own brothers, the Kurds, with chemical weapons as alleged, but rather, he would be placed in a role as a paramedic where he may be able to help his brothers on both sides of the camp, namely the Iranian soldiers and the Kurdish people.

According to all the above evidence, this panel does not find good grounds to substantiate the claimant's fear of persecution on the basis of his political opinion, namely his objection to serving as a paramedic in the Iranian military in a war against the Kurdish movement.

It was common ground that the appellant did not object to serving in the Iranian military during the Iran/Iraq War. However, despite the Board's implication that chemical weapons were used by both sides in that war, the only evidence to which we were referred was as to Iraqi use against Iranian forces (Appeal Book, at page 24). If the Board intended an inference that the appellant was inconsistent in objecting to chemical weapons' use in one war but not in another, it failed to make that sufficiently clear. In any event, such an allegation would not appear to be supported by the record.

The appellant's counsel maintained that the appellant did not wish to participate in warfare against Iranian Kurds even if there were no question of the use of chemical weapons because it "was against humanity to try to destroy [one's own] countrymen" (Appeal Book, at page 26). But on my reading of the oral evidence there is always an ambiguity in such statements as to whether or not the appellant was speaking in the context of the use of chemical weapons,¹*ftnote¹ Only in his Personal Information Form did the appellant squarely state that he "did not want to be part of this civil war" (Appeal Book, at p. 40), and that seems to have been merely a mental reservation which he did not share with anyone. In his evidence he stated that he turned against the Iranian Government only in the last week of his training as a paramedic when he learned about the chemical weapons (Appeal Book, at p. 20). and I cannot say that the Board's interpretation of the facts was wrong. I therefore accept the Board's statement, that "the claimant did not object to fighting his fellow countrymen, the Kurds, but rather he allegedly objected specifically to the possible use of chemical warfare against these people."

However, the Board's subsequent factual finding that "evidence also indicated that both the Iranian and Kurdish military might resort to the use of chemical warfare" is to my mind insupportable on the record. The only evidence the Board referred to was what the claimant was told during his training by his supervisors. What he learned may clearly be taken as evidence of the intention of the Iranians to use such weapons, but can be no more than self-serving speculation about the intentions of the Kurds. Moreover, although the Board makes this one of its four reasons for finding the appellant's specific objection to participating in the war to be neither "reasonable" nor "valid", it seems to me to be irrelevant, since Kurdish use could not in any event justify Iranian use.

In my opinion, the Board was also in error in its analysis of the appellant's prospective degree of participation. In the Board's view, the appellant, as a paramedic, would not be a combatant at all, but perform merely a Florence Nightingale role of "helping his brothers on both sides of the camp."

However, the Board's own analysis of the evidence showed that "in the event that chemical warfare was engaged, not even friendly forces were immune." In other words, the Revolutionary Guards wanted the medical capacity to treat Iranian soldiers inadvertently caught in chemical clouds by changing winds. The Board's analysis also revealed that "the Iranian military also needed to extract information from the Kurdish prisoners of war [affected by the chemicals], implying that the claimant must also treat the injured Kurdish people" so as to enable them to be questioned. Both of these roles contemplated for the appellant by his military superiors would be of material assistance to the Iranian military in assaults using chemical weapons. Accordingly, a reasonable person in the appellant's place would not be able to wash his hands of guilt as the Board so facilely proposed.²*ftnote² The U.N. Report by Eide & Mubanga-Chipoya, Conscientious Objection to Military Service, E/CN. 4/Sub. 2/ 1983/30/Rev. 1, para. 107, states:

In some cases, the objector may be willing to perform non-combat roles in the armed forces, if his objection is purely personal and does not include objection to the use of force by others. But when the objection is based on the conviction that the use of armed force is immoral, or that the particular use of armed force in which the country concerned is engaged is immoral, then non-combat roles will not be acceptable. Indeed, it is open to question whether participation even as a paramedic in such an operation, if chemical weapons were actually used, might not have led to the appellant's exclusion from Convention refugee status for having committed "a crime against peace, a war crime, or a crime against humanity," as analyzed in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.). Since no such scenario occurred, it is unnecessary to pursue such an inquiry here, but the very question serves to indicate that the Board took an unreasonable approach in holding that the appellant's degree of participation was insufficient reasonably to raise any issue of conscience.

II

At this point it becomes necessary to turn to the law, the leading authority on which has been Musial.

The claimant's factual hypothesis in Musial was the rather far-fetched one that, if he served with the Polish Army, he would likely be sent to fight in the Soviet invasion of Afghanistan, since Poland was associated with the USSR in the Warsaw Pact.

The reasons for decision of Pratte J.A. are instructive as to both the facts and the law (at pages 293-294):

The applicant comes from Poland. He does not want to return there because, if he did, he would be called up for military service and, in all likelihood, would desert from fear of[qj]

having to serve in Afghanistan, which would be against his political views. He would then face, like all his compatriots who fail to perform their military obligations, the risk of prosecution and punishment for evasion of military service.

Counsel for the applicant made only one serious attack against the decision of the Board. He said that the Board erred in law in assuming that the applicant's fear of prosecution and punishment for evasion of military service was not a fear of persecution which could make him a Convention refugee within the meaning of subsection 2(1) of the Immigration Act, 1976. This assumption, says counsel, is ill-founded because, in his view, the punishment of a person having evaded military service must be considered as persecution for political opinions in all cases where the refusal to perform military duties is motivated by political opinions. In support of that contention, he invoked decisions of European tribunals adopting what he called a "liberal interpretation" of the definition of the word "refugee" in the International Convention.

That argument must, in my view, be rejected. The "liberal interpretation" of the definition of the word "refugee" appears to me to be incompatible with the requirement of that definition that a refugee have "a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion". A person who is punished for having violated an ordinary law of general application, is punished for the offence he has committed, not for the political opinions that may have induced him to commit it. In my opinion, therefore, the Board was right in assuming that a person who has violated the laws of his country of origin by evading ordinary military service, and who merely fears prosecution and punishment for that offence in accordance with those laws, cannot be said to fear persecution for his political opinions even if he was prompted to commit that offence by his political beliefs.

This decision has, I think, often been taken by the Board to establish the proposition that, where a government is merely enforcing "an ordinary law of general application", it cannot be guilty of persecution but is merely engaging in prosecution. With respect, I believe that to be only a half-proposition, and in any event one not asserted by Pratte J.A. Since any given ordinary law of general application in a dictatorial or totalitarian state may well be an act of political oppression, I believe it is self-evident that such an absolute proposition of prosecution, not persecution, could not be supported in relation to the majority of countries from which refugee cases arise.

The essence of the reasoning of Pratte J.A. in Musial, as it appears to me, is rather that the mental element which is decisive for the existence of persecution is that of the government, not that of the refugee. In the statutory definition of a Convention refugee as 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", the key words in this context are "persecution for", which have reference to the state of mind of the active party, the persecutor, rather than to that of the "persecuted." Probably all fanatic assassins in the world today have as their motivation political, religious, racial, nationalistic or group reasons, but they cannot be refugees if the action which is taken against them by a government is not itself for similar reasons. Accordingly, this Court has held that a claimant has a well-founded fear of persecution if, however unreasonably, his act appears to his government to be an expression of political opinion on his part: Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.); Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236 (F.C.A.).

Of course, the statutory definition of Convention refugee also speaks of "fear", and this Court has also held that, to qualify as a refugee, there must be subjective fear on the part of a refugee claimant. Such a subjective element may make all of a claimant's motives relevant, in that context, but it cannot make them determinative as to the existence of persecution.

It is worth noting that in the final paragraph of his reasons set out supra, Pratte J.A. was responding to the sweeping assertion that punishment for evading military service must be considered as persecution for political opinions in all cases where the refusal to perform military duties is motivated by political opinion. To such an extreme argument there can be only one answer, that a claimant's political motivation cannot alone govern any decision as to refugee status. In my opinion, that was the only issue decided, and the majority decision in Musial does not establish any general proposition as to an ordinary law of general application.

Thurlow C.J. (concurring), however, perhaps pointed the way to a fuller development of the law (at pages 292-293):

While there may be sympathy for the applicant's attitude and for his plight, I do not think the case is one of the Board having failed to consider the applicant's motives or of its having ruled that such motives were not relevant. While the Board's reasons, which were dated some three weeks after the decision was pronounced, are perhaps ineptly expressed and give the impression that in the Board's view army deserters and conscientious objectors do not fall within the definition, I do not read the reasons as meaning anything more than that army deserters and conscientious objectors are not as such within the definition. That is, as I see it, far from saying that because a person is an army deserter or a conscientious objector he cannot be a Convention refugee and I do not think the Board has made any such ruling. What the Board appears to me to have done is to point out that army deserters and conscientious objectors are not dealt with as such by the definition and then to go on to consider the applicant's case on its merits, including the applicant's motives, and to conclude that in the case before it, the applicant's objection to serving in Afghanistan, if called upon to do so, was not sufficient to differentiate his case from the case of any other draft evader and thus to form its opinion that there were not reasonable grounds to believe that the applicant's claim for Convention refugee status could be established.

In the view of the then Chief Justice, conscientious objectors or army deserters are no more automatically excluded from being Convention refugees than they are necessarily included.

Recent decisions of this Court carry us further. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), where the Board found that the claimant had deserted from the El Salvadoran army by reason of conscientious objection, but nevertheless held (presumably because of the existence of an ordinary law of general application) that his fear was of prosecution rather than persecution, the Court reversed, because the Board had taken a foreshortened view, in terms of the letter of the law. In Cheung v. Canada (Minister of Employment & Immigration), [1993] 2 F.C. 314 (C.A.), where the Board held against the existence of a well-founded fear of forced sterilization under China's one-child policy, because that policy amounted to a law of general application whose clear objective was not persecution but general population control, this Court again refused to accept that the mere invocation of an ordinary law of general application negatived the possibility of persecution by the government.

After this review of the law, I now venture to set forth some general propositions relating to the status of an ordinary law of general application in determining the question of persecution:

(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.

(2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.

(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.

(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.

III

In the case at bar the ordinary law of general application is the Iranian law of military conscription. It is this law that the appellant must impeach, in the concrete circumstances, on the basis of the Convention ground of political opinion.

In the view I take of the case, no issue is raised as to conscientious objection in relation to war in general, since the appellant had no objection to serving in an active capacity in the Iranian military in the Iran/Iraq War.³*ftnote³ The appellant presented considerable evidence that the right to conscientious objection is an emerging part of international human rights law, particularly of the recognition by the United Nations Commission of Human Rights of the right of individuals to object to military service for reasons of conscience, but in my opinion this issue is not raised by this record. Moreover, I have already accepted the Board's finding that the appellant had no conscientious objection to military service against the Kurds.

The issue as to conscientious objection relates solely to participation in chemical warfare. This was the specific objective which the Board did not find "to be either reasonable or valid," essentially for the reason that, as a paramedic, he would not be fighting with chemical weapons but merely acting in a humanitarian capacity.

I have already indicated that I find the Board's reasoning untenable, because the distinction it drew between participation and non-participation in military activity is unrealistic and even naive, in the context of the horrendous nature of chemical weapons, which by their nature make no distinction between combatant and non-combatant, or sometimes even between attacker and defender, all being potential victims.

We were not provided with any detailed information as to the chemical composition or the precise effects of the chemical weapons in question. The most vivid descriptions were those of the appellant (at pages 14-15):

I had witnessed the result, the atrocities, the killings caused by chemicals in Iran/Iraq War. It "it causes a lot of death every time you use it, especially a cyanide chemical bombs"bombs.

And again (at page 24):

As far as I know, during the two years I was in the war"in the war, our regiment, or our division never used chemicals, but I saw that the Iraqis did, and they threw chemical bombs toward us. And within the division, we lost about 1200 to 1300 soldiers to chemical weapons.

The most devastating chemical weapon I think is the cyanide. When they use this one, cyanide, you don't even have enough time to grab your mask and put it on.

The appellant adduced considerable documentation as to the attitude of the world community towards certain excessive means of warfare. Reference was made to the Hague Conventions of 1899 and 1907, and the various Geneva Conventions, including the Geneva Convention of 1949 and the additional protocols to the Geneva Conventions adopted in 1977, which prohibit non-discrimination between civilian and military targets and prohibit the use of asphyxiating, poisonous or other gases.⁴*ftnote⁴ These are summarized in the Eide Report, supra, ftn. 2, at para. 48.

On the basis of the evidence in the record, it is impossible to say with scientific certainty that the gases in question in the case at bar would be included in these Convention definitions, though they would certainly appear to be. I believe that all that is necessary to dispose of the instant case, however, is evidence of the total revulsion of the international community to all forms of chemical warfare, as revealed by the Convention on the Prohibition of the Development, Protection and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, for which both Canada and Iran voted on December 16, 1971 [GA Res. 2826 (XXVI)]. Article IX commits the State Parties to a similar agreement with respect to chemical weapons, as follows:

Each State Party to this Convention affirms the recognized objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes.

This and other international undertakings cited by the appellant, along with the fact that the use of chemical weapons in the Iran/Iraq War has been perhaps their only use in international warfare in the past 75 years, leads me to the conclusion that the use of chemical weapons should now be considered to be against international customary law.

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, paragraph 171, states:

Where . . . the type of military action, with which an individual does not wish to be associated, is condemned by the international legal community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could . . . in itself be regarded as persecution.

In my view, that is precisely the situation in the case at bar. The probable use of chemical weapons, which the Board accepts as a fact, is clearly judged by the international community to be contrary to basic rules of human conduct, and consequently the ordinary Iranian conscription law of general application, as applied to a conflict in which Iran intended to use chemical weapons, amounts to persecution for political opinion.

In Abarca v. The Minister of Employment and Immigration, W-86-4030-W, decided March 21, 1986 [not reported], the Board determined a conscientious objector from El Salvador to be a Convention refugee on the basis of political opinion where it found he would probably be forced to participate in violent acts of persecution against non-combatant civilians, which is contrary to recognized basic international principle of human rights. The Board came to a similar conclusion in Cruz v. Canada (Minister of Employment & Immigration) (1988), 10 Imm. L.R.. (2d) 47 (I.A.B.), involving a deserter from the Mexican army.

In the case at bar, the Board erred in failing to find that the appellant's specific objection was either reasonable or valid. If truly felt, it was both. It was also a political act, since as Professor Goodwin-Gill states in The Refugee in International Law (1983), at page 34:

Military service and objection thereto, seen from the point of view of the state, are issues which go to the heart of the body politic. Refusal to bear arms, however motivated, reflects an essentially political opinion regarding the permissible limits of state authority, it is a political act.

There can be no doubt that the appellant's refusal to participate in the military action against the Kurds would be treated by the Iranian government as the expression of an unacceptable political opinion.

In the circumstances, there is no need to consider the other arguments raised by the appellant, though I would remark, with respect to his allegation that Iran was guilty of the ultimate crime of genocide by its actions against the Kurds, that I find no evidence at all in the record as to genocide. Even the use of chemical warfare in a battlefield situation, repugnant as it is to the civilized conscience, does not of itself reasonably give rise to an accusation of genocide.

IV

In the result, the appeal must be allowed, the Board's decision of March 21, 1991, set aside, and the matter returned to a differently constituted panel for reconsideration not inconsistent with these reasons for decision.

Hugessen J.A.: I agree.

Décary J.A.: I agree.