Docket: IMM-771-11
Citation: 2011 FC 1214
Ottawa, Ontario, October 24,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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HABTEAB KFLESUS, HAGOS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
It has been said that “one’s man’s terrorist is another man’s
freedom fighter”.
[2]
Habteab Kflesus Hagos contends that he was a
member of the Eritrean People’s Liberation Front [the EPLF or the Front], an
organization that was engaged in a war of self-determination in which the
Eritrean people were seeking to liberate themselves from the vicious regimes of
Ethiopian leaders Haile Selassie and Mengistu Haile Mariam.
[3]
However, the Immigration Division of the
Immigration and Refugee Board concluded that Mr. Hagos was inadmissible to Canada for being a member of a terrorist
organization and for being complicit in crimes against humanity committed by
the Front.
[4]
Mr. Hagos seeks judicial review of this decision,
asserting that the Board erred in concluding that there were reasonable grounds
to believe that the Front was responsible for acts amounting to terrorism
during the liberation struggle. The Board further erred, Mr. Hagos says, in
determining that there were reasonable grounds to believe that the Front
committed an act that constituted an offence under sections 4 to 7 of the Crimes
Against Humanity and War Crimes Act, S.C. 2000, c. 24. Finally, Mr. Hagos argues that the Board erred in finding that he was
complicit in any crimes against humanity that may have been committed by the
Front.
[5]
For the reasons that follow, I have concluded that the
Board did not err in finding that Mr. Hagos was a member of an organization for
which there were reasonable grounds to believe has engaged in terrorism. I am
further satisfied that the Board’s finding that the Front had committed crimes
against humanity was reasonable. However, the Board did err in its examination
of whether Mr. Hagos was complicit in crimes against humanity committed by the
Front. Consequently, Mr. Hagos’ application for judicial review will be allowed
to the extent that it relates to the issue of complicity.
1. Background
[6]
Mr. Hagos is a citizen of Eritrea. He came to Canada on February 13, 2007 and submitted a
claim for refugee protection a couple of weeks later. The processing of Mr.
Hagos’ refugee claim has been suspended pending a final decision on the issue
of his admissibility.
[7]
Eritrea is a small
country in northeast Africa. It was under colonial rule until 1952. In 1962, Eritrea was annexed by the Ethiopian
government of Haile Selassie, who imposed imperial rule over Eritrean
territory. Thirty years of civil war followed. In 1991, Eritrean rebels
defeated Ethiopian President Mengistu Haile Mariam and established a
provisional government in Eritrea. Eritrea officially
gained its independence in 1993 following a UN-supervised referendum process.
[8]
Mr. Hagos was born in what is now Eritrea. However, he fled to Sudan in 1982 at the age of 15 after witnessing
Ethiopian soldiers carry out violent attacks in his community. These included
the shooting of Mr. Hagos’ uncle, the burning of 120 villagers in a mosque, and
the murder of his aunt during a massacre.
[9]
In 1983, while Mr. Hagos was still living in Sudan, he joined the Eritrean People’s
Liberation Front. The Front was one of several rebel groups fighting for Eritrea’s self-determination in the civil
war.
[10]
Between 1983 and 1986, Mr. Hagos was a part-time
member of the Front. In 1986, he became a full-time member of the organization,
administering one of four Front offices in Sudan. One of Mr. Hagos’ main responsibilities was recruiting new members
and encouraging them to take up arms in support of Eritrean self-determination.
Mr. Hagos was never himself involved in combat.
[11]
In 1992, after Eritrea’s de facto independence, Mr. Hagos returned to Eritrea, where he continued his involvement
with the Front and its successor organization, the People’s Front for Democracy
and Justice [or PFDJ]. The PFDJ became the provisional government of Eritrea in 1991 and the official Government
of Eritrea in 1994.
[12]
Mr. Hagos worked as the EPLF/PFDJ’s District
Administrator from 1992 to 1996. He then managed the PFDJ’s membership
campaigns as Party Leader of Anseba Province from 1996 to 2006. In 2006, Mr.
Hagos was assigned to work at the Eritrean Mission in Canada. According to Mr. Hagos, his role in Canada was to administer membership drives for the Eritrean community in
the diaspora.
[13]
Mr. Hagos testified that he had begun to develop
serious misgivings about the PFDJ before coming to Canada. His concerns started when the PFDJ failed to hold promised
elections and instead became focused on securing its own hegemony. Mr. Hagos
says that his concerns crystallized in 2001 with the arrest of dissenters
within the government.
[14]
Mr. Hagos asserts that he would have left the PFDJ
while he was still in Eritrea
if he could have done so. However, he claims that he was unable to leave the
organization without putting himself and his family at risk of imprisonment and
torture.
[15]
Mr. Hagos says that after he came to Canada, he
continued to be unable to leave the PFDJ because his family remained behind in Eritrea. According to Mr. Hagos, it was only when the
Eritrean government ordered him to return home after he had criticized PFDJ
policies that he had no alternative but to defect. At that point, he felt that the
risks of detention and torture were simply too grave.
[16]
After Mr. Hagos’ defection, his daughter,
brother and parents were all imprisoned in Eritrea. Mr. Hagos’ wife and other children were smuggled out of the
country and now live in Sudan.
[17]
Subsequent to Mr. Hagos filing his refugee
claim, two reports prepared under section 44 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 [IRPA] were forwarded to the
Immigration Division. A March 30, 2008 report alleged that Mr. Hagos was
inadmissible to Canada on
grounds of security under paragraph 34(1)(f) of IRPA. A second report,
this one dated December 4, 2008, alleged that Mr. Hagos was inadmissible for
violations of human rights under paragraph 35(1)(a) of IRPA.
[18]
After a lengthy hearing, the Immigration
Division concluded that Mr. Hagos was indeed inadmissible to Canada, both for being a member of a
terrorist organization and for being complicit in crimes against humanity.
2. The Legislative
Authority for the Decision
[19]
Before turning to examine the arguments advanced by Mr. Hagos, it is
helpful to first review the legislative framework governing inadmissibility
findings such as this.
[20]
The inadmissibility findings in this case were made under the provisions
of paragraphs 34(1)(f) and 35(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. The operative portions of paragraph
34(1) of IRPA provide
that:
34. (1) A permanent resident or a foreign
national is inadmissible on security grounds for
…
(c) engaging in terrorism;
…
(f) being a member of an organization
that there are reasonable grounds to believe engages, has engaged or will
engage in acts referred to in paragraph (a), (b) or (c).
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34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
…
c) se livrer au terrorisme;
…
f) être
membre d'une organisation don=t il y a des motifs raisonnables de croire qu'elle est, a été ou
sera l'auteur d'un acte visé aux alinéas a), b) ou c).
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[21]
Paragraph 35(1)(a) states that:
35. (1) A
permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
(a)
committing an act outside Canada that constitutes an offence referred to in sections
4 to 7 of the Crimes Against Humanity and
War Crimes Act;
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35. (1) Emportent interdiction de
territoire pour atteinte aux droits humains ou internationaux les faits
suivants :
a) commettre, hors du Canada, une des
infractions visées aux articles 4 à 7 de la Loi sur les crimes contre
l’humanité et les crimes de guerre;
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[22]
In making findings under paragraphs 34(1)(f) or 35(1)(a) of the Act, an
immigration officer is also to be guided by section 33 of IRPA, which
provides that:
33. The facts that constitute inadmissibility under
sections 34 to 37 include facts arising from omissions and, unless otherwise
provided, include facts for which there are reasonable grounds to believe
that they have occurred, are occurring or may occur.
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33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37
sont, sauf disposition contraire, appréciés sur la base de motifs
raisonnables de croire qu’ils sont survenus, surviennent ou peuvent
survenir.
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3. The
Paragraph 34(1)(f) Inadmissibility Finding
[23]
The Board found that Mr. Hagos was inadmissible
under paragraph 34(1)(f) of IRPA as he had been
a member of the Front, and there were reasonable grounds to believe that the
Front was an organization that had engaged in acts of terrorism.
[24]
Mr. Hagos admits to having been a long-standing member of the Front. He
argues, however, that mere membership in the organization should not provide a
sufficient basis for a finding of inadmissibility.
[25]
According to Mr. Hagos, section 34 of IRPA
should be interpreted in a manner that is congruent with section 35 of the Act.
Under section 35 of the Act, membership simpliciter in an organization
is insufficient to show complicity in an international crime unless the
organization in question is one that is dedicated to a limited brutal purpose.
Otherwise, the individual must be shown to have been complicit in the
activities of the organization.
[26]
Because the Front was not an organization dedicated to a limited brutal
purpose, Mr. Hagos argues that he should not have been found to be inadmissible
to Canada under paragraph 34(1)(f) of the Act unless it had first been
established that he was complicit in the activities in issue. Given that Mr.
Hagos claims to have been unaware of the alleged terrorist activities carried
out by the Front, he submits that he could not have been found to have been
complicit in their commission.
[27]
Mr. Hagos has cited no jurisprudence that is directly on point to
support his argument, however, and there are two major difficulties with it.
[28]
First of all, Mr. Hagos’s argument requires me to ignore the clear
differences in the wording of the two legislative provisions. A section 34 inadmissibility finding is based
upon membership in an organization, whereas a section 35 inadmissibility
finding requires the commission of an offence. An individual may be found to
have committed an offence either as a principal actor or as an accomplice. This
brings the concept of complicity into play in relation to a section 35
inadmissibility analysis.
[29]
Nothing in the language of section 34(1) of IRPA
contemplates a complicity analysis in a section 34 inadmissibility case.
Indeed, this Court has stated that “the issue of complicity is irrelevant to a
determination under paragraph 34(1)(f) of the Act” (Omer v. Canada
(Minister of Citizenship and Immigration), 2007 FC 478, [2007] F.C.J. No.
642, at para. 11).
[30]
Moreover, I agree with the respondent that if Parliament had wished for
the two sections to be interpreted in the same way, it would have used similar
language in each section. It did not.
[31]
Mr. Hagos’ argument also runs contrary to appellate court authority as
to the proper interpretation of the term “member” as it appears in section 34
of the Act. For example, in Poshteh v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 85, [2005] F.C.J. No. 381, the Federal Court of
Appeal specifically rejected the suggestion that the Board should have
considered an individual’s level of integration
within the organization in determining whether or not an individual was a
“member” of a particular organization – a consideration that would have been
relevant in a complicity analysis. Rather, the Court held, at paragraph 29,
that the term “member”, as it is used in subsection 34(1) of IRPA, is to be given a broad and unrestricted interpretation.
[32]
I accept Mr. Hagos’ point that there may be individuals who are found to
be members of a terrorist organization, whose involvement with the organization
was brief or limited. There may also be individual members who were unaware of
the organization’s terrorist activities. However, as the Supreme Court of
Canada recognized in Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para.110, the recourse
available to people who innocently contribute to or become members of terrorist
organizations is an application for Ministerial relief under what is now
subsection 34(2) of IRPA.
[33]
Mr. Hagos argues that there is statistical evidence demonstrating that
Ministerial relief is an illusory remedy. However, that statistical information
is not before the Court. As a result, there is no evidentiary foundation for
the argument.
[34]
Mr. Hagos does not take issue with the Board’s understanding of the “reasonable grounds to believe” evidentiary standard. In
this regard, the Board adopted the description articulated by the Supreme Court
of Canada in Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 114.
There, the Court explained that the “‘reasonable
grounds to believe’ standard requires something more than mere
suspicion, but less than the standard applicable in civil matters of proof on
the balance of probabilities”. The Supreme Court stated that reasonable
grounds will exist “where there is an objective basis for the belief which is
based on compelling and credible information”.
[35]
Thus, the determinative issue, insofar as the Board’s finding of
inadmissibility under section 34 of the Act is concerned, is whether there were
reasonable grounds to believe that the Front is an
organization that engages, has engaged or will engage in terrorism. The
Board’s finding on this point is reviewable against the standard of
reasonableness (see, for example, Omer, above, at para. 9, and Jalil
v. Canada (Minister of Citizenship and Immigration), 2006 FC
246, 52 Imm. L.R. (3d) 256 at paras. 19-20).
[36]
In answering this question, the Board had regard to the stipulative
definition of “terrorism” established by the Supreme Court of Canada in Suresh,
above at paragraph 98. There, the Supreme Court defined terrorism as including any
“act intended to cause death or serious bodily injury to a civilian, or to any
other person not taking an active part in the hostilities in a situation of
armed conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act”.
[37]
It should be noted that the Supreme Court definition of terrorism
specifically contemplates that acts of terrorism can occur during situations of
armed conflict.
[38]
The Front does not appear on the lists
of groups proscribed by the UN, Canada and the United States as terrorist organizations. However, the Board
identified two incidents purportedly involving the Front in its reasons which,
it said, qualified as acts of terrorism. The first of these incidents was the
kidnapping of the British Honorary Consul in Asmara in 1975-76. The second incident was
an attack on a Polish freighter sailing in the Red Sea in 1990.
a) The Kidnapping of the British Honorary Consul
[39]
Mr. Hagos does not dispute that the kidnapping
of Mr. Burwood-Taylor, the British Honorary Consul in Asmara, was properly characterized by the Board as a terrorist act. He
does, however, deny that the kidnapping was carried out by the Front.
[40]
In this regard, Mr. Hagos observes that the
kidnapping occurred in 1975, and that Mr. Burwood-Taylor was held for some five
months, with his period of confinement extending into early 1976. According to
Mr. Hagos, the Eritrean People’s Liberation Forces committed the
kidnapping, not the Eritrean People’s Liberation Front, which did not even come into being until
1977. While Mr. Hagos concedes that the Front emerged from the Eritrean People’s
Liberation Forces, he nevertheless argues that the Front was a vastly different
organization to the Forces, with the result that acts committed by the Forces
should not be attributed to the Front.
[41]
The Minister submits that the Board acted
reasonably in finding that the Front and the Forces
were the same organization. According to the Minister, the Eritrean People’s
Liberation Forces disassociated itself from the Eritrean Liberation
Front-Popular Liberation Front (or “ELF-PLF”) and underwent a name change in
1977, but otherwise remained essentially the same group.
[42]
It is clear from the jurisprudence that, in making an inadmissibility
finding under paragraph 34(1)(f) of IRPA, immigration authorities must
identify the terrorist organization in question with specificity (see Ali v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1174, [2004]
F.C.J. No. 1416 at paras. 66-68; Dirar v. Canada (Minister of Public Safety
and Emergency Preparedness), 2011 FC 246, [2011] F.C.J. No. 364).
[43]
In this case, the Board properly understood that
the entity at issue in these proceedings was the Front (see the Board’s reasons
at para.78). At paragraph 41 of its reasons, the Board stated that “the
documentary evidence indicates that the acronym EPLF originally referred to the
Eritrean People’s Liberation Forces”. The Board then went on to state that “[t]he
documentary evidence is consistent on the fact that the name, Eritrean People’s
Liberation Forces, was changed at the 1st National Congress in 1977
to the Eritrean People’s Liberation Front (EPLF).”
[44]
At paragraph 80, the Board stated that:
In 1973[,] the Eritrean People[’s] Liberation Forces
broke away from the ELF-PLF. At the National Congress in January 1977 the Eritrean
People[’s] Liberation Forces took on the new designation as the Eritrean People[’s]
Liberation Front (EPLF). This re-named entity, the EPLF, eventually emerged as
one of the major national liberation fronts active in Ethiopia until the collapse of the Lt.-Colonel Mengistu regime in August
1991.
[45]
Mr. Hagos submits that in the above passage, the
Board acknowledged that the Forces and the Front were two distinct groups. As
a result, Mr. Hagos submits that it was unreasonable for the Board to find that
the Front was a terrorist organization based upon acts committed by the Forces.
In the alternative, Mr. Hagos argues that it was unreasonable for the Board to
find on the evidence before it that the two entities were the same group.
[46]
When the Board’s reasons are read as a whole, it
is clear that the Board did not find that Forces and the Front were two
distinct groups. Rather the Board found that the original group, the Eritrean People’s
Liberation Forces, underwent a name-change in 1977 and became the
Eritrean People’s Liberation Front. I am satisfied that this was a conclusion
that was reasonably open to the Board on the record before it.
[47]
I have carefully reviewed the documentary
evidence with respect to the history of the Forces and the Front that
Mr. Hagos says was ignored by the Board when it concluded that the Forces and
the Front were the same group. In particular, I have examined the extract from From
Guerillas to Government: The Eritrean People’s Liberation Front, by David
Pool, evidence that Mr. Hagos says demonstrates that the Front and the Forces
were in fact two different organizations. Having read the document in question,
it is not at all clear to me that this was in fact the case.
[48]
Indeed, I note that at page 81 of the Pool text,
the author discusses the actions of the “EPLF” during a four-year period
between 1974 and 1978. Mr. Pool makes no attempt to distinguish the actions of
the Forces from those of the Front. Instead, he treats the “EPLF” as a single
entity operating throughout the period in question.
[49]
As a consequence, Mr. Hagos has not persuaded me
that the Board ignored evidence or otherwise erred in concluding that the
1975-76 kidnapping of the British Honorary Consul by the Eritrean People’s
Liberation Forces was a terrorist activity that was properly attributable to
the Eritrean People’s Liberation Front.
b) The Attack on the Polish Freighter
[50]
The second incident cited by the Board to support its finding that there
were reasonable grounds to believe that the Front was an organization that had
engaged in acts of terrorism was the 1990 attack on a Polish cargo ship near the
port of Massawa on the Red Sea.
[51]
On January 4, 1990, members of the Front attacked the Boleslaw
Kryzwousty. When a second Polish ship came to the aid of the first, the
attackers fired on it as well, and the second ship was forced to withdraw. The Boleslaw
Kryzwousty was then set ablaze, and the attackers took the 30-person crew
prisoner. After nearly three weeks of captivity, the captors released the sailors
to the American Ambassador to Sudan. It was at the demand of the Front that the
crew be released to representatives of the United States rather than to Polish
authorities.
[52]
Mr. Hagos acknowledges that the Front took responsibility for the
attack, but points out that it also claimed that the attack was the result of a
case of mistaken identity. The Front stated publicly at the time that it had
believed the ship was a Russian ship carrying military supplies when it attacked,
rather than a Polish ship carrying merchant cargo as was in fact the case.
[53]
Citing the Supreme Court decision in Mugesera, above, Mr. Hagos
submits that both the actus reus and the mens rea must be
present for an action to constitute an act of terrorism. Indeed, in Suresh,
the Supreme Court of stated that for an act to qualify as terrorism, there must
be an intent to cause death or serious bodily injury to civilians. Mr. Hagos
says that the Board erred by selectively relying on evidence and ignoring other
evidence to find that the necessary mens rea was present in the attack
on the Polish cargo ship. The result of this error is that the Board’s finding
that the attack on the Polish cargo ship constituted an act of terrorism was
unreasonable.
[54]
The Board was clearly satisfied that the
Front possessed the necessary mens rea in its attack on
the ship. I am satisfied that this conclusion was one that was reasonably open
to the Board on the evidence before it.
[55]
In coming to the conclusion that the Front had the required mens rea, the Board had regard to the fact
that the EPLF knew civilian vessels were using the port of Massawa. It
noted that the ship was flying both Polish and Ethiopian flags. Moreover, Front
members had fired on the ship intensely for two and a half hours, actions that
were clearly intended to cause death or serious bodily harm to crew members.
The Board further observed that the Front had stated publicly that it would
prioritize military objectives over civilian shipping interests.
[56]
It is true that the Board’s reasons did not specifically refer to
the specific passages in news reports which suggested that the Front may have
initially mistaken the ship for a Soviet one. However, decision-makers are
presumed to have considered all the evidence unless there is a glaring omission
(Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J.
No. 1425, 157 F.T.R. 35 at paras. 14-17). That is not the case here.
[57]
Moreover, even if there had been some initial confusion
over the nationality of the ship, the fact is that after the true nationality
of the sailors was discovered, Front fighters
nevertheless continued to forcibly detain the civilian crew members for some
three weeks after the attack.
[58]
Mr. Hagos also contends that the Board applied
the wrong test in finding that the attack on the ship was carried out for
“political purposes”. According to the stipulative definition of “terrorism”
described in Suresh, above, at paragraph 98, the test is not whether the impugned act is committed for a political purpose,
but rather whether it is committed to intimidate a population or to compel a
government or an international organization to do or to abstain from doing any
act. In concluding that the Front was motivated by political
purposes when it released the ship’s crew to the U.S. Ambassador, Mr. Hagos
says that the Board committed a reviewable error.
[59]
I am not persuaded that the Board erred as alleged. The Board’s comments
related specifically to the release of the crew members to American
authorities, and did not refer to the Front’s purposes in attacking the ship or
in taking the crew members prisoner.
[60]
The Board correctly identified the test articulated by the Supreme Court
in Suresh in its reasons. Moreover, when the reasons are read as a
whole, it is clear that the Board applied the correct legal principles when it
concluded that the Front’s actions in relation to the attack on the freighter
amounted to an act of terrorism as the attack was intended to intimidate
merchant shipping vessels and to compel the American and other Western
governments to support Eritrea's cause in the civil war.
c) Mr. Hagos’
Other Arguments
[61]
Mr. Hagos argues that the wording of paragraphs 34(1)(c) and 34(1)(f) of
the Act does not contemplate exclusion for membership in an organization that
has committed a single act of terrorism. Given my conclusion that the Board’s
finding that the Front had committed two acts of terrorism was reasonable, it
is not necessary to address this argument.
[62]
Mr. Hagos has also advanced a number of other arguments which, he says,
should be taken into account in evaluating the conduct of the Front. These
include the fact that the Front generally treated civilians well, and that the
actions relied upon by the Board to find that the Front had engaged in
terrorism may have been isolated incidents.
[63]
Mr. Hagos also asks the Court to have regard to the fact that the Front
was engaged in a struggle for self-determination, seeking to liberate the
Eritrean people from an extremely brutal and oppressive regime, and that it had
a legitimate right to use violence to that end. Finally, Mr. Hagos asks the
Court to consider the fact that the Front received considerable support from
the international community in its struggle to liberate its people.
[64]
Indeed, the focus of many of Mr. Hagos’ submissions was on the
justification for the conflict, rather than on the methods employed by the
Front in achieving its goal of Eritrean self-determination.
[65]
In my view, these are arguments that would be better advanced in the
context of an application for Ministerial relief under subsection 34(2). They
do not form part of the analysis under subsection 34(1) of IRPA.
4. The
Paragraph 35(1)(a) Inadmissibility Finding
[66]
The Board found that Mr. Hagos was also inadmissible to Canada on the
grounds that he was complicit in crimes against humanity
committed by the Front. The Board identified two acts that it found constituted
‘crimes against humanity’ under section 6 of the Crimes Against Humanity and
War Crimes Act: an attack on a food convoy in 1987, and the mass expulsion
of Ethiopians from the territory of Eritrea in 1992.
[67]
The Board was satisfied that the Front was not an
organization dedicated to a limited brutal purpose. However, the Board
determined that Mr. Hagos was complicit in the commission of these crimes, and
was thus inadmissible to Canada under paragraph 35(1)(a) of
IRPA.
a) The Attack
on the Food Convoy
[68]
The first of the crimes against humanity identified by the Board was an
October 23, 1987 attack on a food convoy. In the course of this attack, Front
fighters destroyed a famine relief convoy carrying 450 tons of wheat, an amount
that would have been sufficient to feed 45,000 people for one month.
[69]
Mr. Hagos argues that the Front carried out this attack based upon the
mistaken assumption that the food convoy was actually carrying military
supplies. As a consequence, Mr. Hagos says that the Front lacked the necessary mens
rea for the commission of a crime against humanity.
[70]
The Board carefully reviewed the evidence relating to the attack on the
food convoy, and explained clearly why it concluded that the organization did
indeed possess the requisite mens rea. This finding was reasonably open
to the Board on the record before it, particularly in light of the
contemporaneous statement of a Front spokesman who confirmed that the attack on
the food convoy was “not a mistake”.
b) The
Expulsion of the Ethiopians
[71]
The second crime against humanity identified by the Board was the
forcible expulsion of approximately 120,000 Ethiopians in June of 1992, shortly
after Eritrea declared de facto independence from Ethiopia.
Approximately 80,000 of the deportees were captured Ethiopian soldiers and
their dependants, whereas 40,000 of the deportees were civilians such as
teachers and government officials.
[72]
The Board referred to an Amnesty International report that noted that
these individuals were “put across the border with Ethiopia without transport.
Hundreds died of starvation or illness in transit camps or while making their
way south”. The Board found that these actions were perpetrated by the Front in
a widespread and systematic fashion against a civilian population and that they
constituted “inhumane acts” as defined in the Crimes Against Humanity and
War Crimes Act.
[73]
Mr. Hagos argues that one of the elements of the crime against humanity
of “deportation” is that the individuals deported be lawfully on the territory
from which they were expelled. Having failed to address whether the 120,000
Ethiopians were lawfully on the territory of Eritrea, Mr. Hagos says that the
Board erred in finding that the essential elements of the crime against
humanity of deportation had been made out.
[74]
There are two difficulties with this argument.
[75]
The first difficulty is that the Board did not find that the Front
committed the crime against humanity of “deportation”. Rather, it found that
the mass expulsion and deportation constituted “other inhumane acts” as defined
in the Crimes Against Humanity and War Crimes Act.
[76]
The Crimes Against Humanity and War Crimes Act describes “other inhumane act[s] or omission[s]” as being actions taken against a
civilian population or identifiable group that constitute 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”.
[77]
Conventional international law has recognized “other
inhumane acts” as crimes against humanity. Most recently, the Rome Statute
of the International Criminal Court, 17 July 1998, 2187 UNTS 38544, U.N.
Doc. A/CONF. 183/9 (as corrected by the procès-verbaux of November 10,
1998, July 12, 1999, November 30, 1999 and May 8, 2000) has defined
crimes against humanity to include, amongst other things, the “[d]eportation
or forcible transfer of population” and “[o]ther inhumane acts of
a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health”.
[78]
The forcible expulsion of thousands of Ethiopians who were left by the
Front to die in the desert, without food, water or transport, clearly meets the
definition of an “other inhumane act”, within the meaning of the Crimes
Against Humanity and War Crimes Act.
[79]
The second difficulty with Mr. Hagos’ argument is that even if the crime
against humanity in issue was that of deportation, international jurisprudence
teaches that the term “lawfully present” should not be given the narrow meaning
suggested by Mr. Hagos. By way of example, in the recent decision of the
International Criminal Tribunal for the former Yugoslavia, Trial Chamber, in Prosecutor
v. Popovic, IT-05-88-T, Final Judgment (10 June 2010) at para. 900, the
Tribunal stated that:
[The] words
“lawfully present” should be given their common meaning and should not be
equated to the concept of lawful residence. The clear intention of the
prohibition against forcible transfer and deportation is to prevent civilians
from being uprooted from their homes and to guard against the wholesale
destruction of communities. In that respect, whether an individual has lived in
a location for a sufficient period of time to meet the requirements for
residency or whether he or she has been accorded such status under immigration
laws is irrelevant. Rather, what is important is that protection is provided to
those who have, for whatever reason, come to “live” in the community – whether
long term or temporarily…
[80]
The Tribunal went on to state that “the requirement for lawful presence
is intended to exclude only those situations where the individuals are
occupying houses or premises unlawfully or illegally and not to impose a
requirement for “residency” to be demonstrated as a legal standard”.
[81]
Consequently, I am satisfied that the Board did not err in finding that
the Front had committed crimes against humanity. However, as will be explained
in the next section of these reasons, I find that the Board did err in
concluding that Mr. Hagos was complicit in those crimes.
c) Mr. Hagos’
Complicity in the Crimes against Humanity Committed by the Front
[82]
A finding of inadmissibility under section 35
of IRPA requires that the individual have either committed the
enumerated offence himself, or that he be complicit in its commission. In cases
where the organization in question is principally directed to a limited,
brutal purpose, mere membership in the organization provides a sufficient basis
for a finding of complicity (Ramirez v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 109, [1992] 2 FC 306).
[83]
In this case, the Board was satisfied that the Front was not an
organization “principally directed to a limited, brutal purpose” as
contemplated by the Federal Court of Appeal in Ramirez, above at 317. Thus
the fact that Mr. Hagos was a member of the Front was not enough to establish
that he had personally and knowingly participated in the
crimes against humanity committed by the organization.
[84]
As a result, the Board had to examine
the nature and scope of Mr. Hagos’ involvement with the Front in order to
determine whether he should be deemed to have been complicit in the crimes
against humanity committed by the group.
[85]
The determination of whether someone has been
complicit in crimes against humanity in situations where the organization in
question is not principally directed to a limited, brutal purpose is essentially a factual question that needs to be examined on a
case-by-case basis. There is, however, a considerable body of jurisprudence
emanating from the Federal Court of Appeal which establishes certain general
principles to be followed in making such a determination. These include cases
such as Ramirez, above; Sivakumar v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1145, [1994] 1 F.C. 433; and Moreno v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 912, [1994] 1 F.C.
298.
[86]
The guiding principles from the Federal Court of
Appeal jurisprudence with respect to the level of participation required to
establish complicity were synthesized by Justice Layden-Stevenson in Zazai
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1356, [2004] F.C.J.
No. 1649 at paragraph 27, where she stated that:
Accomplices as well as principal actors may be found to have
committed international crimes... The court accepted the notion of complicity
defined as a personal and knowing participation in Ramirez and
complicity through association whereby individuals may be rendered responsible
for the acts of others because of their close association with the principal
actors in Sivakumar. Complicity rests on the existence of a shared
common purpose and the knowledge that all of the parties may have of it: Ramirez;
Moreno.
[87]
Six factors have emerged from the jurisprudence which should be
considered in determining whether an individual is complicit in crimes against
humanity committed by an organization. These include the nature of the organization,
the organization’s method of recruitment, the individual’s position or rank within
the organization, the individual’s knowledge of the organization’s atrocities,
the length of time that the individual was in the organization, and whether the
individual had an opportunity to leave the organization.
[88]
In this regard, the Board found that:
(i) The Front was a military organization
aimed at achieving self-determination for Eritrea through armed resistance;
(ii) Mr. Hagos joined the Front voluntarily;
(iii) Mr. Hagos’ duties within the Front
during the 1980’s included the recruitment and possible conscription of new fighters.
Mr. Hagos subsequently accepted increasingly important positions in the
Provisional Government and Government of Eritrea;
(iv) Mr. Hagos received the Front’s
‘political education’, and thus must have been aware of the Front’s wrongdoing,
and, specifically, its use of violence and conscription;
(v) Mr. Hagos was involved in the Front
from 1983 through the period that it formed the Government of Eritrea and
thereafter until 2007; and
(vi)
Mr. Hagos did not take any steps to leave the EPLF/PFDJ until 2007.
[89]
From this, the Board concluded that Mr. Hagos was complicit in the
crimes against humanity committed by the Front.
[90]
I agree with Mr. Hagos that the Board erred in its complicity analysis.
[91]
As noted above, complicity rests on the existence of a
shared common purpose and the knowledge that all of the parties may have of it.
Mere membership in an organization involved in international offences is
not a sufficient basis for a finding of inadmissibility, unless the
organization in question is one that is principally directed to a limited,
brutal purpose.
[92]
The Board found that the Front was a secessionist movement aiming to
overthrow the Ethiopian government in Eritrea. It further found that the Front
used guerilla warfare and armed resistance to achieve its goals, and that at no
time did the organization reject the use of violence as a means of achieving
its political objective of self-determination. The “common
purpose” identified by the Board that was shared by Mr. Hagos and the EPLF that
was the achievement of self-determination for Eritrea, by violent means
if necessary (see the Board’s reasons at para. 162).
[93]
In coming to the conclusion that Mr. Hagos would have been aware of the
atrocities committed by the Front during the liberation struggle, the Board
stated at paragraph 170 of its reasons that:
Given the
history of the long and brutal liberation struggle … it is not plausible that
Mr. Hagos was completely unaware of the EPLF activities in that liberation
struggle. When Mr. Hagos joined the EPLF it already was an identifiable
organization known to be involved in a war of liberation against the Lt.-Col.
Mengistu’s regime (sic). It is not plausible that in receiving the
political education which stressed Eritrean history [and] politics that he was
not aware of the use of violence in pursuing self-determination. … Given the
scale of personal tragedies of the Eritrean refugees; and the brutally (sic)
of death from war and famine, Mr. Hagos’ statement that he was not aware of any
atrocities or wrongdoing by the EPLF is not plausible.
[94]
With respect, the question for the Board was not whether Mr. Hagos “was
completely unaware of the EPLF activities in that liberation struggle”. Rather,
the question was whether Mr. Hagos was aware of the actions of the EPLF as they
related to the attack on the food convoy in 1987 and the mass expulsion of
Ethiopians form the territory controlled by the Eritreans in 1992.
[95]
What the Board appears to have done is to conclude that because Mr.
Hagos supported the goal of Eritrean liberation and endorsed the use of force,
if necessary, and because bad things happened in the course of the conflict, it
therefore followed that Mr. Hagos was complicit in any crimes against humanity
that may have been committed by the EPLF in the course of the liberation
struggle. With respect, one conclusion does not follow from the other.
[96]
As the Federal Court of Appeal observed in Ramirez, above at 319,
“[o]ne must be particularly careful not to condemn automatically everyone
engaged in conflict under conditions of war”. The fact that Mr. Hagos was
undoubtedly committed to the EPLF’s overall goal of Eritrean self-determination
through violent means, if necessary, does not mean that he shared a common
purpose with those who were specifically engaged in the attack on the food
convoy or the expulsion of the Ethiopians.
[97]
The failure of the Board to address the proper question in assessing
whether Mr. Hagos was complicit in the crimes against humanity committed by the
EPLF results in its complicity finding being unreasonable.
Conclusion
[98]
For these reasons, I have concluded that the Board’s finding that
Mr. Hagos was inadmissible to Canada under paragraph 34(1)(f) of IRPA for being a member of a
terrorist organization was reasonable. I am further satisfied that the Board’s
finding that the EPLF had committed crimes against humanity was one that was
reasonably open to it on the record before it. However, the Board’s finding
that Mr. Hagos was complicit in the crimes against humanity committed by the
EPLF was not reasonable. Consequently, Mr. Hagos’ application for judicial
review is allowed.
Certification
[99]
Mr. Hagos proposes the following question for certification:
Is membership simpliciter
of an organization under section 34(1)(c) and (f) of the IRPA
applicable only in relation to membership of a limited and brutal purpose
organization?
[100] This
is not, in my view, an appropriate question for certification. It runs contrary
to the express wording of the legislation, and contemplates an interpretation
of paragraph 34(1)(f) that is contrary to a large body of settled
jurisprudence, including decisions of appellate Courts. As a consequence, I
decline to certify it.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed, and
the matter is remitted to a different member of the Immigration Division of the
Immigration and Refugee Board for re-determination in accordance with these
reasons; and,
2. No serious
question of general importance is certified.
“Anne
Mactavish”