W. (K.V.) (Re) Convention Refugee Determination Decisions

W. (K.V.) (Re)
Convention Refugee Determination Decisions [1991] C.R.D.D. No. 447

No. U91-05999

Immigration and Refugee Board of Canada Convention Refugee Determination Division Toronto, Ontario

Panel: N.A. Goldie and S. Bhatia

In camera

Heard: September 18, 1991

Decision: October 28, 1991

Yugoslavia (YUG) -- Negative -- Males -- Draft evaders -- Persecution for nationality -- Persecution for political opinion -- (Indexed).

Appearances:

George Radojcic, for the claimant(s).

REASONS FOR DECISION

These are the reasons for the decision of the Convention Refugee Determination Division regarding the claim of xxxxxxxxxx, a thirty-eight-old citizen of Yugoslavia who arrived in Canada on November 16, 1989, to be a Convention refugee by reason of a well-founded fear of persecution because of political opinion and nationality.

The hearing into the claim pursuant to section 69.1 of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18] was held at 70 University Avenue in Toronto, Ontario, on September 18, 1991. The claimant was present, and was represented by George Radojcic, Barrister and Solicitor. The claimant was assisted by an interpreter proficient in the Serbo-Croatian and English languages.

The issue before the Refugee Division is whether the claimant is a Convention refugee as defined in section 2(l) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 1]. The definition reads, in part, as follows:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons for race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country...

The evidence adduced at the hearing consisted of the claimant's oral testimony, the information contained in his Personal Information Form [Exhibit C-1] (PIF), and documentary evidence presented by the claimant's counsel and the Board. The testimony of the claimant, in his PIF, is as follows:

In 1991, Yugoslavia has fallen into its deepest political crisis since World War II. Major ethnic, cultural, political and religious differences between Serbs and Croats have come about since 1941, when the Croatian regime collaborated with the Nazis and committed genocide against the Serbs, killing approximately one million Serbs and Jews, mainly children and elderly people in concentration camps throughout Croatia. These simmering differences have become more and more pronounced in the past few years. They reached their culmination in 1990 when the Croatian government, invoking some type of democracy, passed a Constitution which in its multinational Republic forms uninational armed forces, which officially reinstates the trappings of the period of genocide (the flag, anthem, uniforms, titles, etc), suppressed the Serbian language and relegates Serbs to a position of inequality. The situation is so dangerous that it is impossible to resolve it peacefully and in 1991, it evolved into open war between Serbia and Croatia, which is best witnessed by the declarations of the president of Croatia, Tudjman, published on the front page of the Toronto Star May 4, 1991 - "We are faced with open war against the Republic of Croatia".

Both Republics are arming their respective units, and activating the mobilization of their respective reserve armed forces, which is what I feared most. Armed conflicts are occurring often with a great number of dead and wounded. All of the facts mentioned can be confirmed by the numerous newspaper reports as well as radio announcements which I have submitted. After completing my military service, I was assigned to the reserve police (militia) force. I have grown up in a multinational environment and for me, all peoples are the same and equal. I am a pacifist by political orientation. By returning to Yugoslavia I would find myself in a very difficult position as a Serbian reservist I would have to wage war against my fellow countrymen and expose my life to danger, something which I simply cannot do, but by refusing to don my uniform I would be arrested and I would find myself subject to death or severe imprisonment.

I am particularly afraid because as a Serbian-Orthodox reservist I have already been called up to active service. The reports from home and in the international media are that tens of thousands of Serbian reservists are being called up because of the current crisis. Failure to report is a very serious offence in the present political climate. It could easily result in summary execution should I refuse to carry out the commands to engage my own Yugoslavian people in combat. I have no wish or desire to fight or kill anyone. I definitely have a fear that my avowed refusal to kill Slovenians, Croatians and possibly other ethnic peoples would result in severe punishment and even death for me.

[Typed as per original with errors and/or omissions]

The claimant provided the following additional information in oral testimony summarized as follows.

The claimant testified he grew up believing in brotherhood and unity, a philosophy that was emphasized throughout the education system and the military.

During the time the claimant spent in school, the army and at work, there always was a mix of people of many ethnic backgrounds, Serbs, Croatians, Montenegrans, Macedonians, etc. The claimant believed all to be equal citizens of Yugoslavia.

The claimant did his compulsory military service for a 15 month period from April 11, 1972. He received combat training in an Infantry Division. He also worked in the service as a tool and die maker.

From the time the claimant completed his military service up to and including 1988 he was called up 3 or 4 times for reserve duty, for periods of time ranging from one to three weeks.

The claimant stated that there is no alternative service to serving in the military in Yugoslavia.

The claimant left Yugoslavia on November 16, 1989. lie came to Canada to visit relatives and attend a wedding. He travelled on a Yugoslavian passport and with a Canadian visa.

The claimant heard from his family in Yugoslavia of the deteriorating situation in Yugoslavia.

On December 10, 1990, the claimant claimed refugee status.

The claimant heard from his brother in Belgrade around the end of April 1991 or the beginning of May 1991 that a public announcement for a general call-up of the reserves had been made in Belgrade. Anyone having a military book, as the claimant has, must respond and report to the military centre.

There has been no subsequent direct call-up issued for the claimant to report.

The claimant testified at length concerning the background and roots of the civil strife that exists in Yugoslavia at the present time.

The claimant fears if he returns to Yugoslavia that as he has been trained as a soldier, he will be put in a position of killing combatants of other ethnic origins that he has been raised to believe are equals. Also he will be required to kill civilians, and be ordered to do things that are contrary to his moral beliefs and that have also been condemned internationally, as evidenced by the documents.

The claimant maintained he has always been against killing; if required to kill in the defence of his country he stated he would do so but that it would be very difficult for him.

The claimant believes that the army (in which he would be required to serve) is far from neutral and is involved in wrongful actions. Evidence exists that cities and civilians are attacked regardless of the justification.

The claimant fears he will be treated as a deserter although there is no warrant or charge issued against him.

The claimant fears he might be killed for simply wearing the uniform of the Yugoslavian Army.

ANALYSIS

In the panel's view, the principal issue in determining whether the claimant is a Convention refugee is whether his reasons for avoiding further military service should he return to Yugoslavia can be the basis of a well-founded fear of persecution.

The claimant testified that if he were required to serve in the Federal Army of Yugoslavia he would be sent to fight against other ethnic groups that he has always believed to be equal and that he has all his life believed in brotherhood and unity. He feels it is against his moral beliefs to go to war against one's own people.

The panel must examine the genuineness of the claimant's convictions with respect to a claim of conscientious objection. The UNHCR Handbook [Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, Geneva, January 1988, p. 40-41], in paragraph 173, states the following about the issue of conscientious objection:

173.The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim for refugee status should be considered in the light of more recent developments in this field. An increasing number of states have introduced legislation or administrative regulations whereby persons who can invoke draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. (emphasis added)

With respect to the issue of military action which is "condemned by the international community as contrary to the basic rules of human conduct", the panel must consider the current situation in Yugoslavia.

Helsinki Watch [Exhibit R-2 - "Yugoslavia: Human Rights Abuses in the Croatian Conflict"] of September 1991 states:

Helsinki Watch is gravely concerned about the deteriorating human rights situation in Croatia. Since July, human rights abuses have been committed by the Serbs, the Croats and the Yugoslav People's Army. These abuses include using civilians as human shields, taking hostages, deliberately destroying civilian property, displacing, civilians, beating prisoners, shooting at medical vehicles and personnel, firing employees because of their nationality, and failing to vigorously prosecute a killing.

Helsinki Watch calls on all parties to the conflict --Serbs, Croats, and the Yugoslav army--to call a halt to these abuses and to respect their obligations under international humanitarian law.

Professor Hathaway suggests "there is a range of military activity that is simply not permissible in that it violates basic international standards. This includes military action intended to violate basic human rights, ventures in breach of the Geneva Convention standards for the conduct of war and non-defensive incursions into foreign territory" [p. 180-181].

The panel recognizes that some human rights violations may well occur during a civil war, however that does not necessarily turn a military action into one which is intended to violate basic human rights or a venture that is in breach of the Geneva Convention standards for the conduct of war.

Furthermore, Helsinki Watch's criticism does not necessarily signify a condemnation of the civil war in Yugoslavia by the international community.

The civil war situation may be deplored by and the cause of concern to various nations; that does not, however, mean there has been a condemnation on their part of the incursion by the Federal Yugoslavian authorities into secessionist Croatia.

In the panel's opinion, there is insufficient evidence that the ongoing military action in Yugoslavia is one that is condemned by the international community as contrary to the basic rules of human conduct, such as to justify the claimant's avoidance of military service as a ground for claiming Convention refugee status.

For the reasons given above and after considering the evidence, the panel does not find that the claimant has established a well-founded fear of persecution for any of the grounds in the Convention refugee definition.

The Refugee Division, therefore, determines that xxxxxxxxxxxxx is not a Convention refugee.

DATED at Toronto this 28th day of October 1991.

"N.A. Goldie"

Concurred in by: "Shashi Bhatia"

End of document.