Sivakumar v. Canada (Minister of Employment and Immigration) (CA.)
Publisher | Canada: Federal Court |
Author | Federal Court of Canada |
Publication Date | 4 November 1993 |
Citation / Document Symbol | [1994] 1 C.F. 433 |
Cite as | Sivakumar v. Canada (Minister of Employment and Immigration) (CA.), [1994] 1 C.F. 433, Canada: Federal Court, 4 November 1993, available at: https://www.refworld.org/cases,CAN_FC,3ae6b695c.html [accessed 21 May 2023] |
Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Thalayasingam Sivakumar (Appellant)
v.
Minister of Employment and Immigration (Respondent)
Indexed as: Sivakumar v. Canada (Minister of Employment and Immigration) (CA.)
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Agreement for the Prosecution and punishment of the major War Criminals of the European Axis, August 8, 1945, 82 U.N.T.S. 279, Art. 6. Immigration Act. R.S.C., 1985, c. 1-2, s. 2 (as am, by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 19(as am, idem (3rd Supp.), c. 30. S. 31. United Nations Convention Relating to the Status of Refugees, July 28, 1951, (1969) Can. T.S. No. 6. Art. 1(F)(a).CASES JUDICIALLY CONSIDERED
APPLIED
Ramirez v. Canada (Minister of Employment and Immigration), (1992) 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161; 11 Imm. L.R. (2d) 92(F.C.T.D.); Flick Trial (trial of Fried-rich Flick and five others), Law Reports of Trials of War Criminals, Vol. IX. p. 1; Justice Trial (trial of Joseph Alstotter and others), Law Reports of Trial of War Criminals. Vol. VI. p. 1.DISTINGUISHED:
Moreno v. Canada (Minister of Employment and Immigration), (1994) 1 F.C.298 (C.A.); Mitch trial (trial of Erhard Milch). Law Reports for Trials of War Criminals, Vol. VII. P. 27.REFERRED TO:
Dunlop and Sylvester v. The Queen, (1997) 2. S.C.R. 881; (1979), 27 N.R. 153; Rudolph v. Canada (Minister of Employment and Immigration), (1992) 2 F.C. 653 (C.A.); Reservations to the Convention on Genocide, Advisory Opinion, (1951) LC.5. Rep. 15.AUTHORS CITED
Bassiouni, M. Cherif, Crimes Against Humanity in International Criminal Law. Dordrecht: Martinus Nijhoff, 1992. Rikhof, I. "War Crimes, Crimes Against Humanity and Immigration Law" (1993), 19 Imm. L.R. (2d) 18. United Nations. Office of the United Nations High Commissioner for Refugees, Handbook or Procedures and Criteria for Determining Refugee Status under the 1951 Convention relating to the Status of Refugees. Geneva, 1988. APPEAL, from the Refugee Division decision (sub nom. K. (Y.P.) (Re), (1991) C.R.D.D. No. 672 (Q.L.)) that the appellant was excluded from the definition of Convention refugee in section 2 of the Immigration Act on the basis of section 1 (F)(a) of the United Nations Convention Relating to the Status of Refugees as someone who had committed crimes against humanity even though he was found by the Refugee Division to have a well-founded fear of persecution at the hands of the Sri Lankan government on the basis of his political opinion, Appeal dismissed.COUNSEL:
Lorne waldman and Laura Snowball for appellant. Harley R. Nott for respondent.SOLICITORS:
Lorne Waldman, Toronto, for appeliant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment rendered in English by LENDEN J.A: The appellant, Thalayasingam Sivakumar, is a Tamil and a citizen of Sri Lanka. Even though he was found by the Refugee Division decided to have had a well founded fear of persecution at the hands of the Sri Lankan government on the basis of his political opinion,the Refugee Division decided to exclude him on the basis of section F(a) of Article 1 of the United Nations Convention Relating to the Status of Refugees (July 28, 1951, (1969) Can, T.S. No. 6) as someone who had committed crimes against humanity (Re K. (Y.P.). (1991) C.R.D.D. No. 672 (Q.L.)). The issue on this appeal is whether the appellant was properly held responsible for crimes against humanity alleged to have been committed by the Liberation Tigers of Tamil Eelam (LTTE) even though he was not personally involved in the actual commission of the criminal acts.THE LAW
The definition of Convention refugee is found in subsection 2(1) of the Immigration Act, R.S.C, 1985, c. I-2, as amended by R.S.C, 1985 (4th Supp.), c. 28, s. 1: 2.... "Convention refugee" means any person who(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i)is outside the country of the person's nationality and is unable, or by reason of that fear, is unwilling lo avail himself of the protection of that country, or
(ii)not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b)has not ceased to be a Convention refugee by virtue of subsection (2),
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.
The portion of section F of Article 1 which is relevant to this appeal states: 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.
The Refugee Division concluded that because of the appellant's leadership position within the LTTE and his continuing participation in the organization, he must by held responsible for crimes against humanity committed by the LTTE. The panel slated: You are, however, known by the company you heap and an individual such as the claimant, who occupies a position of authority and who continues to participate, regardless of motivatior, must be held individually accountable for the inhumane actions of his trainees, his subordinates and his movement (Case, at page 601.)1.COMPLICITY
There has been some recent jurisprudence in this Court on the question of who is responsible for war crimes or crimes against humanity (see Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (P.C.T.D.); Ramirez v. Canada (Minister of Employment and Immigration), (1992)2 F.C. 306 (C.A); Rudolph v. Canada (Minister of Employment and Immigration), (1992) 2 F.C.653 (C.A); and Moreno v. Canada (Minister of Employment and Immigration), (1994) 1 F.C. 298 (C.A.)). It is clear that if someone personally commits physical acts that amount to a war crime or a crime against humanity, that person is responsible. However, it is also possible to be liable for such crimes-to "commit" them-as an accomplice, even though one has not personally done the acts amounting to the crime (see MacGuigan J.A. in Ramirez, supra). In defining who would be considered an accomplice under section F. MacGuigan J.A. indicated that, although certainly relevant, it would be unwise to rely exclusively on Canadian criminal law concepts of aiding and abetting, since international instruments are not to be interpreted according to the legal system of any one country. He considered, in addition to Canadian law, case law of other countries and texts of learned authors and concluded that the starting point for complicity in an international crime was "personal and knowing participation." This is essentially a factual question that can be answered only on a case-by-case basis, but certain general principles are accepted. It is evident that mere by-standers or on-lookers are not accomplices. As MacGuigan J.A. stated in Ramirez, supra, at page 317: In my view, mere on-looking, such as occurs at public executions, where the on-lookers are simply by-slanders with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanity repugnant it might be. However, a person who aids in or encourages the commission of a crime, or a person who willingly stands guard while it is being committed, is usually responsible. Again, this will depend on the facts in each case. For example, in Ramirez, supra, the claimant had enlisted in the army voluntarily and had witnessed the torture and killing of many prisoners. Due to the circumstances of the claimant's participation in the military, the Court found that he shared the military's purpose in committing these acts and that therefore he was an accomplice rather than an onlooker. A similar conclusion was reached in Naredo, supra, in which the applicants acted as guards during the torturing of prisoners. Muldoon J.'s reasoning in Naredo, supra, is questionable in the light of subsequent jurisprudence since he found that watching torture was as culpable as culpable as committing torture. However, his conclusion that the claimants were accomplices was probably correct on the facts given that the claimants were willing members of the intelligence service of the Chilean police who were part of a learn responsible for the interrogation and torture of prisoners. By way of comparison, in Moreno, supra, the claimant had been conscripted into the Salvadoran army at the age of 16. He was ordered to stand guard outside a cell in which a prisoner was interrogated and brutally tortured. However, the facts disclosed that the claimant was really a by-stander who had no power do intervene in the interrogation, did not share the military's purpose in perpetrating the torture, and deserted from the army as soon as possible. Thus, the claimant was found not to have been an accomplice in this act of torture. (See also Dunlop and Sylvester v. The Queen, (1979) 2 S.C.R. 881, with respect to the domestic law of parties to an offence.) In Ramirez, supra, MacGuigan J.A. explained the test for complicity in cases of secondary parties, at page 318: At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all the parties in question may have of it. Moreover, those involved in planning or conspiring to commit a crime, even though not personally present at the scene, might also be accomplices, depending on the facts of the case. Additionally, a commander may be responsible for international crimes committed by those under his command, but only if there is knowledge or reason to know about them. (See Rikhof, J. "War Crimes, Crimes Against Humanity and Immigration Law" (1993), 19 Imm. L.R. (2d) 18, at page 49.) Another type of complicity, particularly relevant to this case is complicity through association. In other words, individuals may be rendered responsible for the acts of others because of their close association with the principal actors. This is not a case merely of being "known by the company one keeps." Nor is it a case of mere membership in an organization making one responsible for all the international crimes that organization commits (see Ramirez, at page 317). Neither of these by themselves is normally enough, unless the particular goal of the organization is the commission of international crimes. It should be noted, however, as MacGuigan J.A. observed: "someone who is an associate of the principal offenders can never, in my view, be said to be a mere onlooker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts" (Ramirez, supra, at page 317). In my view, the case for an individual's complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime. Thus, remaining in an organization in a leadership position with knowledge that the organization was responsible for crimes against humanity may constitute complicity. In Crimes Against Humanity in International Criminal Law (1992), M. Cherif Bassiouni states, at page 345: Thus, the closer a person is involved in the decision making process and the less he does to oppose or prevent the decision, or fails to dissociate himself from it, the more likely that person's criminal responsibility will be at stake. In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commissioner or attempted to withdraw from the organization. Mr. Justice Robertson noted this point in Moreno, supra, when he stated (at page 324): (T)he closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach. Of course, as Mr, Justice MacGuigan has written, "law does not function at the level of heroism" (Ramirez, supra, at page 320). Thus, people cannot be required, in order to avoid a charge of complicity by reason of association with the principal actors, to encounter grave risk to life or personal security in order to extricate themselves from a situation or organization. But neither can they act as amoral robots. This view of leadership within organization constituting a possible basis for complicity in international crimes committed by the organization is supported by 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, August 8, 1945, 82 U.N.T.S. 279) which defines crimes against peace, war crimes and crimes against humanity and then states: Leaders, organisers, 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 perfonned by any persons in execution of such plan. This principle was applied to those in positions of leadership in Nazi Germany during the Nuremberg Trials, as long as they had some knowledge of the crimes being committed by others within the organization. For example, the trial of Erbard Milch, United States Military Tribunal at Nuremberg, Law Reports of Trials of War Criminals, Vol. VII, page 27, involved an Inspector-General and a Field-Marshal in the German Air Force who was accused of committing war crimes and crimes against humanity in the form of illegal and appalling experiments carried out on German nationals as well as members of armed forces and civilians from countries at war with Germany. Though convicted of another charge, he was acquitted with respect to the experiments on the basis that, while the illegal experiments had been carried out by people under Milch's command, Milch had not personally participated in or instituted the experiments, nor had he any knowledge that the experiments were being carried out. It should be noted that, in refugee law, if state authorities tolerate acts of persecution by the local population, those acts of persecution by the local population, those acts may be treated as acts of the state (see, for example, the UNHCR Handbook en Procedures and Criteria for Determining Refugee Status, at page (7). Similarly, if the criminal acts of part of a paramilitary or revolutionary non-state organization are knowingly tolerated by the leaders, those leaders may be equally responsible for those acts. Complicity by reason of one's position of leadership within an organization responsible for international crimes is analogous to the theory of vicarious liability in torts, but the analogy is not altogether apt, since it is clear that, in the context of international crimes, the accused person must have knowledge of the acts constituting the international crimes. To sum up, association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes, unless it is an organization that has a "limited, brutal purpose", is not enough (Ramirez, supra, at page 317). Moreover, the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes.2.CRIMES AGAINST HUMANITY
Another question of law to be addressed in this appeal is what constitutes a crime against humanity. Article 6 of the Charter of the International Military Tribunal defines crimes against humanity as follows: Article 6(c)Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
There are certain additional legal requirements commonly accepted as part of the definition of crimes against humanity in the international sphere. Crimes against humanity must generally be committed in a wide-spread, systematic fashion (see, for example, the Flick Trial (trial of Friedrich Flick and five others), United States Military Tribunal at Nuremberg, law Reports of Trials of War Criminals, vol. IX, page 1, and the Justice Trial (trial of Joseph Alstotter and others), United States Military Tribunal at Nuremberg, Law Reports of Trials of War Criminals, Vol. VI, page 1, at pages 37, 47). As one Canadian commentator, Joseph Rikhof, supra, at page 30 has noted: This requirement does not mean that a crime against humanity cannot be committed against one person, but in order to elevate a domestic crime such as murder or assault to the realm of international law an additional element will have to be found. This element is that the person who has been victimized is a members of a group which has been targeted systematically and in a widespread manner for one of the crimes mentioned... Another historic requirement of a crime against humanity has been that it be committed against a country's own nationals. This is a feature that helped to distinguish a crime against humanity from a war crime in the past. (See the Flick Trial, supra, as well as the Justice Trial, supra.) While I have some doubt about the continuing advisability of this requirement in the light of the changing conditions of international conflict, writers still voice the view that they "are still generally accepted as essential thresholds lo consider a crime worthy of attention by international law" (Rikhof, supra, at page 31). There appears to be some dispute among academies and judges as to whether or not state action or policy is a required element of crimes against humanity in order to transform ordinary crimes into international crimes. The cases decided in Canada to date en the issue of crimes against humanity all involved members of the state, in that each of the individuals was a member of a military organization associated with the government (Naredo, supra, Ramirez, supra; Moreno, supre; and Rudolph, supra). One author, Bassiouni, supra, states that the required international element of crimes against humanity is state action or policy (at page 247). Similarly, the Justice Trial, supra, was quite clear in interpreting Control Council Law No. 10 (basically identical in terms to Article 6 of the Charter of the International Military Tribunal) to mean that there must be a governmental element to crimes against humanity at page 40: It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words against any civilian population' instead of "against any civilian individual'. The provision is directed against offences and inhumane acts and persecutions on political, racial, or religious grounds systematically organised and conducted by or with the approval of government. Other commentators and courts take a different approach. These developments are discussed extensively by Rikhof, supra, at pages 60 ft. In the Flick Trial, supra, the United States Military Tribunal itself adopted the position that private individuals can commit breaches of international law when it convicted several industrialists of crimes against humanity for the use of slave labour in their factories. This position was also taken in several other decisions of the United States Mililary Tribunal at Nuremberg regarding individual responsibility for war crimes. A similar position was adopted with respect to the commission of genocide, recognized as a crime against humanity, by the International Court of Justice in its advisory opinion on Reservations to the Convention on Genocide. International Court of Justice Reports (1951). Finally, the International Law Commission has determined that individual without connection to the state could indeed commit crimes against humanity (see Rikhof, supra, at page 64). Based on these latter authorities, therefore, it can no longer be said that individuals without any connection to the state, especially those involved in paramilitary or armed revolutionary movements, can be immune from the reach of international criminal law. On the contrary, they are now governed by it.