Where a claimant has not in a "physical" sense committed a crime, but has aided, instigated or counselled a perpetrator in the commission of a war crime or crime against humanity, he or she may, as an accomplice, be held responsible for the crime and thus subject to being excluded from refugee protection. An accomplice is as culpable as the principal perpetrator.Note 36 When determining the culpability of a claimant who has had a prior association with a group responsible for excludable crimes, regard should be had to the following factors:
In determining whether an organization is "principally directed to a limited, brutal purpose," the Federal Court in Pushpanathan did not agree that the organization must be one that engages solely and exclusively in acts of terrorism.Note 44 The Court held that:
Membership in these organizations, does not automatically result in exclusion; the CRDD must determine whether the claimant had knowledge of the crimes being committed by the members of the organization.Note 46 There is a "presumption of complicity" when the claimant was a member of such a group whereby
The Court of Appeal has held that "mere presence at the scene of an offence is not enough to qualify as personal and knowing participation",Note 49 unless the onlooker has an intrinsic connection with the persecuting group.Note 50 The Court concluded that
The culpability of a claimant was rejected where the claimant, shortly after being forcibly recruited, had witnessed on only one occasion, the torture of a prisoner.Note 52 In that case, however, the claimant had had no prior knowledge of the acts to be perpetrated. In any event, the Court said that a claimant is under no obligation to prevent acts of torture being perpetrated by others.
A claimant's activities in rounding up suspects may constitute personal involvement in the commission of any offences that follow providing the claimant had knowledge that such atrocities were being committed.Note 53
22.214.171.124. Specific examples
There have been numerous decisions of the Federal Court that have considered the complicity of the claimant in war crimes and crimes against humanity, based on the particular circumstances of the claimant and various factors, including the nature of the organization in question in which the claimant either belonged or had an association. A number of these cases may be summarized as follows.
In Pushpanathan,Note 54 the Court upheld the findings of the CRDD to exclude the claimant under Articles 1F(a) and (c) for crimes against humanity and complicity in terrorist activities associated with the LTTE. The Court found that the CRDD did not err in concluding that the LTTE was a terrorist organization with a limited and brutal purpose and, although there was a lack of evidence of specific harm that came about due to the claimant's involvement with the LTTE, the claimant financed the LTTE through drug trafficking in Canada and therefore was complicit in the crimes against humanity committed by the LTTE.
In Lai,Note 55 the Court upheld the exclusion of the claimant who, as an office manager of Family Planning in China, had forced a seven-month pregnant women to have an abortion pursuant to a state policy of forcible abortion, which is a crime against humanity.
In Alwan,Note 56 the exclusion of the claimant, a former member of the South Lebanese Army (the SLA), was overturned because the CRDD failed to consider the issue of "common purpose".
In Abbas,Note 57 the Court upheld the findings of the RPD that the claimant was complicit in the crimes against humanity committed by the regime in Iraq because for 22 years the claimant held positions of trust within the Iraqi government. He had knowledge of certain ongoing and regular acts constituting crimes against humanity and never took any measures to prevent these acts or to dissociate himself from these activities.
Similarly, in Omar,Note 58 the RPD's decision to exclude was upheld as the claimant had been an ambassador abroad for the regime in Djibouti during a period of repression and persecution of the civilian population. The claimant had occupied the highest position in the most important mission abroad, had knowledge of the crimes committed by his government and had never tried to dissociate himself from these crimes.
However, the decision to exclude was not upheld in Saftarov,Note 59 as there was no evidence of knowing participation in serious crimes. The Court found that the RPD could not assume, based solely on the claimant's long-time, low-ranking membership in the police, that he was a party to crimes against humanity.
In Fabela,Note 60 the Court upheld the exclusion of a former police officer from Mexico and found that an organization does not need to have an official plan or policy for a finding of crimes against humanity. As long as the perpetration of crimes are committed in a widespread and systematic fashion by a specific group, then the requirements have been met. The Court also noted the six important factors in determining exclusion (the method of recruitment, the claimant's position and rank in the organization, the nature of the organization, the knowledge of atrocities, the length of time in the organization and the opportunity to leave the organization).
In Balta,Note 61 the Court disagreed with the conclusion of the CRDD that the national army of Yugoslavia was a "terrorist organization" and therefore principally directed to a limited, brutal purpose.
In Shakarabi,Note 62 the Court concluded that the Shah's secret police, the Savak, was an organization principally directed to a limited brutal purpose even though it was also involved in domestic and foreign security. As an informant for this organization the claimant was found to be complicit in the abuses.
In Imama,Note 63 the Court agreed that the evidence left no doubt that the many violent acts committed by the Mobutu regime met the definition of crimes against humanity and the claimant was complicit through association. However, in Yogo,Note 64 the finding of exclusion was not upheld because the panel failed to highlight the evidence on which it based its characterization of the organization as one principally directed to a limited, brutal purpose, even though the claimant had been in the service of the Mobutu regime.
In upholding the CRDD decision in Hovaiz,Note 65 the Court held the fact that the claimant asserted before the CRDD that he had altered his participation in the Patriotic Union Kurdistan (PUK) after learning of an attempted assassination by that group did not remedy his continued participation in the organization.
In Harb,Note 66 the CRDD did not err in concluding that the South Lebanese Army (SLA) is an organization with a limited, brutal purpose. However, in El-Hasbani,Note 67 the exclusion of the claimant for his past employment with the South Lebanon Army was not upheld as the claimant, rather than being complicit in crimes against humanity, had actually risked his own life and safety to make the territory safe for civilians.
In Chowdhury,Note 68 the Court found that the Awami League (AL) is not an organization that is principally directed to a limited brutal purpose. Therefore, the claimant's membership in the AL did not necessarily make him a knowing participant in persecutorial acts.
In Ruiz,Note 69 the Court found that the panel did not have enough evidence to determine that the Peruvian Navy was an organization directed to a limited, brutal purpose. Similarly, in Marinas Rueda,Note 70 the Court did not uphold the exclusion of the claimant and found that the RPD was wrong to identify the Peruvian Navy as an entity to have purposely committed crimes against humanity. The Court said that the relevant organization of reference in this case was the applicant's unit, not the entire Peruvian Navy. The Federal Court in Cortez Muro,Note 71 upheld the finding of the RPD that the claimant should not be excluded based on his participation as a Peruvian navel cadet since the whole of the Peruvian navy was not found to have a limited and brutal purpose and there was no direct evidence linking the activities of the naval units to crimes against humanity. However, in Rocha,Note 72 the Court upheld the exclusion of the claimant who as a captain in the Peruvian army was complicit in the crimes against humanity committed as a continuous and regular part of its operation. In Zoeger La Hoz,Note 73 the Court found that it was an error to exclude the claimant solely for his membership in the Peruvian army, as he testified that he had no knowledge of a number of crimes committed by the army. The Court stated that mere membership in an organization that is a legitimate institution, is responsible for defending the country of Peru, and is recognized by that country's Constitution does not suffice to establish that a person is an accomplice or an accomplice by association, unless the organization has a limited, brutal purpose.
In Bukumba,Note 74 the Court upheld the exclusion of the claimant because as an employee of the CSE in the Democratic Republic of Congo she had not been merely a member of an organization which from time to time committed international offences. Rather, she had been a long-time employee who had agreed voluntarily to collect information on people and reported directly to the head of the CSE.
The Court did not uphold the decision in Farah,Note 75 even though the claimant had held the rank of major, since the RPD did not address the issue of the Somali Army from 1974 to 1989 as an organization dedicated to a limited brutal purpose.
In Sadakah,Note 76 the RPD incorrectly concluded that the Lebanese Forces was an organization with a limited and brutal purpose. Therefore the findings on exclusion were not upheld.
The Court made the same finding in Catal,Note 77 and held that the RPD erred in finding that the Turkish Gendarme was an organization with a limited brutal purpose and therefore did not uphold the exclusion of the claimant.
In Kahn,Note 78 the Court upheld the RPD's decision not to exclude the claimant, a former military officer in the Sachal Rangers in the Pakistani army. The Court emphasized that it is not the law that anyone who is more than a mere onlooker therefore has knowledge of crimes against humanity and will be considered an accomplice, only that depending on the circumstances, one could be an accomplice.
In Herrera,Note 79 the Court did not uphold the exclusion of the claimant, a part-time reservist and recruitment officer with the Colombian army. While the Court acknowledged the crimes against humanity committed by the Colombian army during the time the claimant was in the army, it was an error to characterize that army as an "organization that is principally directed to a limited, brutal purpose."
In contrast, in Diasonama,Note 80 the Court agreed that the ANR, as a matter of policy of the Kabila's regime, was an organization with a limited and brutal purpose and therefore the exclusion of the claimant was upheld as an accomplice in the crimes.
In Collins,Note 81 the Court did not uphold the exclusion of a claimant who had reached the rank of second sergeant in the Mexican army.
In Valere,Note 82 the Court did not uphold the exclusion of the claimant, a junior ranked officer in the Haitian National Police (HNP), because although human rights violations by members of the HNP had been continuous and regular, the RPD had not found the HNP was an organization with a limited brutal purpose.
In Bedoya,Note 83 the Court did not uphold the exclusion of the claimant, a former member of the Special Forces #1 unit and of the Palace Brigade of the Colombian army. The army as a whole was not found by the RPD to have a limited, brutal purpose and therefore the RPD was incorrect in stating that activity of the army in general could be attributed to the claimant.
Similarly, in Perez de Leon,Note 84 the Court did not uphold the exclusion of a former member of the presidential guard in the Guatemalan army because the RPD failed to decide the issue of whether the Guatemalan army was an organization with a limited, brutal purpose. The Court noted that this explicit qualification is essential to assessing the claimant's participation in and knowledge of the organization's activities.
In Antonio,Note 85 the Court upheld the finding of the RPD that the Angolan army was an organization with a limited, brutal purpose during the period of civil war in which the claimant served in the army. While the claimant suggested that the legitimate purpose of the army was that of national defence, the RPD correctly determined that during that time period the army's activities were directed at defeating UNITA and terrorizing the citizens of Angola.
In Ariri,Note 86 the Court upheld the exclusion of the claimant and found that the CRDD had evidence to conclude that the claimant, as a member of the Nigerian Army for a number of years, was complicit in the international offences committed by the military.
In Atabaki,Note 87 the Court found that the claimant should not have been excluded as there had been very little exploration of the claimant's activities in the Mujahedeen-e-Khaiz (MKO) and therefore it was unreasonable of the RPD to determine that the claimant was complicit in the MKO's activities.
The exclusion of the claimant was upheld in AliNote 88 since as a member of the MQM in Pakistan, the claimant was complicit in the widespread and systematic crimes against humanity committed by that organization. Even if the claimant never inflicted pain or pulled the trigger, he was part of the MQM's operations and must have been aware of its atrocities.
In Chougui,Note 89 the Court upheld the exclusion of the claimant who, as a member of FIS (Front islamique du salut) was aware that crimes against humanity had been committed by the organization and was therefore complicit by reason of a shared common purpose.
In Ryivuze,Note 90 the Court upheld the exclusion of the claimant who was a director in the civil service of Burundi and was therefore complicit in the crimes against humanity committed by the government of Burundi during that time period. The Court found that membership in an organization dedicated to a limited and brutal purpose does not have to be established in order to find complicity through association. It is sufficient to establish that the commission of international offences is a regular part of the operations of the organization with which the individual is associated.
In Rivera Pena,Note 91 the Court's exclusion of the claimant was upheld because as an officer in the Colombian National Police (CNP) he was complicit in the crimes against humanity committed by members of the CNP.
In Tchoumbou,Note 92 the Court upheld the exclusion of the claimant who was a member of the militia of the youth section of the Cameroon People's Democratic Movement political party and complicit in crimes against humanity.
The Court did not uphold the exclusion of the claimant in MurugamoorthyNote 93 because as a part-time worker for a newspaper in Sri Lanka that published press releases describing the LTTE's activities in a favourable light, there was no evidence that the press releases he relayed from the LTTE to the newspaper counseled or incited anyone to do anything. He did not have "knowing and personal participation" in actual crimes.
In Liqokeli,Note 94 the Court upheld the exclusion of the claimant, a citizen of Georgia, who was a former police officer who worked as a special guard in a prison. There was documentary evidence that Georgian prison guards had been involved in the abuse and torture of prisoners and therefore he was complicit in those crimes.
In Ndabambarire,Note 95 the Court upheld the RPD finding of complicity of a claimant whose role was to report on the security situation in his area to the Burundian armed forces. He had a close association with persons who had committed crimes against humanity. In Mukasi,Note 96 the exclusion of the claimant was upheld since he had led a hard-line faction of a political party in Burundi, the ruling party until 1993. The claimant was complicit in the war crimes committed by the Burundian armed forces as he was aware of his party's support for violence.