Date: 20070709
Docket: IMM-2208-06
Citation: 2007
FC 728
Ottawa, Ontario, July 9th 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
VADIM
LEBEDEV
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Vadim
Lebedev fled the army and his native Russia
because he did not want to serve as a soldier in Chechnya. He claims he does not believe in
violence, and that he will be forced to engage in international crimes if he
resumes his military service. When his refugee claim failed, he applied for a
Pre-Removal Risk Assessment (PRRA), arguing that he feared detention, torture
and death at the hands of the Russian army. Terri-Lynn Steffler, a PRRA
officer, rejected his application on March 29, 2006. Mr. Lebedev has applied
for judicial review of that decision.
[2]
I am
allowing his application, and quashing the PRRA officer’s decision, for two
reasons. First, the officer’s analysis about whether the war in Chechnya had been internationally
condemned was flawed. These errors undermine her decision under s. 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). Second, the
officer’s risk assessment under s. 97 of the IRPA contains fatal errors of fact
and law. In addition, I have dedicated a good portion of my reasons to the
issue of conscientious objection. This issue has been the subject of confusion
and inconsistent treatment over the years. Thus, while it raises largely
hypothetical questions in the context of Mr. Lebedev’s case, in my view those
questions are important enough to warrant the Court’s attention.
FACTS
[3]
Mr. Lebedev
was born May 21, 1976. In June 1994, he received a mobilisation order to which
he responded. In his PRRA application, he said he had requested alternative
service because he did not believe in violence. Nevertheless, he was sent to
the regular army. Once in the army, he says he was subjected to extreme hazing,
which included abuse, beatings, starvation, and sexual assaults.
[4]
When he
found out that he was being sent to Chechnya
in December 1994, he managed to tell his mother. She tried to stop his
deployment, even bribing some military official, to no avail. When he received
his relocation order, his mother managed to bring him home under the pretext of
taking him out for a short farewell visit.
[5]
Mr.
Lebedev returned to the army in January 1995, relying on the military’s promise
that it would not send him to Chechnya. He says that promise was
broken, and he was instead jailed for eleven days. While in jail, he received
new orders to go to Chechnya. He managed to escape – again
– as he was escorted to do prison work. He stayed at his aunt’s house, fearing
he would be found and redrafted if he went home.
[6]
He then
moved to Argentina with his mother, apparently
because it was the only country for which they could arrange travel visas. In
June 1997, his mother left for Canada, where she was eventually
granted citizenship. Mr. Lebedev, on the other hand, decided to stay in Argentina because he was already
working and dating a Russian girl. When he had first arrived in Argentina he claimed refugee status.
However, his claim was automatically withdrawn once he was able to secure a
work visa there.
[7]
Eventually,
Mr. Lebedev’s work visa in Argentina expired. So did his Russian
passport. Once this happened, he applied for permanent residence at the
Canadian embassy in Buenos
Aires, under the
humanitarian and compassionate category (H&C). That application was turned
down in June 2003.
[8]
Having
learned he could not restore his refugee claim or reapply for refugee status in
Argentina, Mr. Lebedev fled to Canada. He arrived here in June 2004
using a fake Swiss passport.
THE BOARD’S DECISION
[9]
The
Immigration and Refugee Board’s Refugee Protection Division (the Board)
dismissed Mr. Lebedev’s refugee claim in a decision dated June 10, 2005. It
concluded Mr. Lebedev was afraid of prosecution, not persecution, and found no
evidence he had tried to arrange for alternative service.
[10]
The Board
emphasized its concerns with Mr. Lebedev’s credibility. For example, he
testified that he enlisted in the army voluntarily, which the Board found
inconsistent with the story of a man who did not want to serve in Chechnya. It also found it implausible
that Mr. Lebedev would have enrolled in the army when he could have received an
education deferment. There was inconsistent evidence about his alleged escape
from the Russian prison in January 1995, and no proof of his residence between
February 1995 and June 1997.
[11]
Finally,
the Board found it implausible that Mr. Lebedev’s mother would have returned
her son to the army on the mere promise that he would not be sent to Chechnya. She had already tried to
bribe officials to somehow exempt Mr. Lebedev from serving in Chechnya, and that agreement had not
been honoured. The Board found it unreasonable that she would trust a similar
promise again.
THE IMPUGNED DECISION (PRRA)
[12]
The PRRA
officer refused to consider documentary evidence that predated Mr. Lebedev’s
Board hearing. However, she did accept a Russian arrest warrant issued July 17,
2004, showing Mr. Lebedev would be detained upon his return to Russia. She also noted the Board’s
negative conclusions about Mr. Lebedev’s credibility and trustworthiness, and
wrote that the PRRA was not meant to be a rehearing of his original refugee
claim.
[13]
The PRRA
officer relied on James Hathaway’s book The Law of Refugee Status (Markham:
Butterworths, 1991) [Hathaway], and its discussion about whether a claimant can
successfully claim refugee status by objecting to military service. She also
turned to the United Nations Handbook on Procedures and Criteria
for Determining Refugee Status (the UNHCR Handbook) for the general
rules on military service objection. At page 179 of his book, Hathaway cites paragraph
168 of the UNHCR Handbook and writes:
Persons who claim refugee status on the
basis of a refusal to perform military service are neither refugees per se
nor excluded from protection. In general terms:
A person is clearly not a refugee if his
only reason for desertion or draft-evasion is his dislike of military service
or fear of combat. He may, however, be a refugee if his desertion or evasion of
military service is concomitant with other relevant motives for leaving or
remaining outside his country, or if he otherwise has reasons, within the
meaning of the definition, to fear persecution.
[14]
Thus, an
applicant generally cannot claim refugee status under the United Nations
Convention Relating to the Status of Refugees (the Convention) – and
accordingly, under s. 96 of the IRPA, just because he does not want to serve in
his country’s army. According to Hathaway, however, there are three exceptions
to the general rule above. First, military evasion might have a nexus to a
Convention ground if conscription for a legitimate and lawful purpose is
conducted in a discriminatory way, or if the punishment for desertion is biased
in relation to a Convention ground. Second, evasion might lead to Convention
refugee status if it reflects an implied political opinion that the military
service is fundamentally illegitimate under international law. Hathaway
describes this as “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” (Hathaway, above, at pages
180-181). The third and final exception applies to those with “principled
objections” to military service, more widely known as “conscientious objectors”.
[15]
The PRRA
officer agreed with the Board’s conclusion that Russia’s compulsory military service and
penalties for desertion were laws of general application. Looking at Hathaway’s
first exception, she also maintained the Board’s finding that the law was not
applied in a discriminatory way.
[16]
Turning to
the second of Hathaway’s exceptions, the PRRA officer acknowledged reports of
human rights violations by the Russian army. She concluded, however, that these
were isolated incidents that did not amount to large-scale and systematic
violations. She wrote, at page 4 of her decision:
The applicant vaguely suggests that at
least part of his motivation for avoiding military service was because the
conflict in Chechnya violates international
standards. He makes reference in his submissions that he would be forced into
being part of crimes against humanity. While I acknowledge that there are
credible reports that some members of the state’s forces have committed human
rights violations in the course of this conflict, I find the applicant’s
evidence insufficient to establish that it is the Russian military’s intention
to engage in planned and systemic human rights abuses or that the international
community has deemed the military action in Chechnya contrary to the basic
rules of human conduct. [Hathaway; UNHCR Handbook]. I am not persuaded that the
circumstances of the case at hand meet the second scenario.
[17]
Finally,
the PRRA officer found Mr. Lebedev was not a conscientious objector – and thus
did not fit within Hathaway’s third exception. She wrote, at page 5 of her
decision:
Conscientious objector status is
distinguishable from being a mere draft evader or deserter. What differentiates
one from the other is whether the refusal is based on deep seated scruples
and/or sincerely held opinions. After carefully considering all the evidence I
am not persuaded that the applicant is a conscientious objector. He
demonstrated a willingness to be part of the Russian military anywhere but in Chechnya. I find there is insufficient
evidence that this decision was based on deeply held scruples or core beliefs
and instead was based on his reluctance to endure the conditions present in the
Chechnya area.
[18]
Because he
did not fit within any of the three exceptions, the officer rejected Mr.
Lebedev’s claims based on s. 96 of the IRPA. She then analyzed whether he was
at risk under s. 97. Mr. Lebedev argued the detention conditions in Russia would put him in danger. He
submitted evidence showing prison conditions were extremely harsh and even life
threatening, especially in pre-trial detention facilities known as
investigation isolation facilities.
[19]
The PRRA officer
acknowledged the shortcomings of penal facilities, and accepted that Mr.
Lebedev would face court action upon his return. But she was also of the view
that he might be subject to lesser penalties, finding the Russian judge had
only authorized a prison sentence because it was required to secure Mr.
Lebedev’s extradition. She wrote, at pages 6-7 of her decision, that “pursuant
to article 460 of the Russian Code of Criminal Procedure the Russian Federation may request extradition in
relation to a person only upon selection of a measure of restriction
in the form of custodial placement.” She noted that defendants are
presumed innocent in Russia, and are provided with legal
rights consistent with the Universal Declaration of Human Rights. She
also described Mr. Lebedev in the following way, at page 7 of her decision:
The applicant has demonstrated that he is
a sophisticated individual by his travels and resourcefulness in securing
identification documents; he is not unaccustomed to criminal proceedings or
detention facilities; he is a reasonably well educated, mature, and healthy 30
year old man. When his personal circumstances are weighed against an
undetermined sentence that could be imposed in a range of facilities offering a
variety of conditions I find there is insufficient evidence to lead me to
believe that the applicant will likely face a risk of cruel and unusual
treatment or punishment, a risk to life, or torture.
[20]
Mr.
Lebedev had also argued that once he satisfied his prison sentence, he would be
forced to complete his military service where he would be at risk of physical
abuse, mistreatment and possibly torture by members of the army. While the PRRA
officer accepted that hazing is a major problem in the Russian army, she did
not believe Mr. Lebedev had established he would personally be at risk of such
practices. She concluded there was no objective basis to believe he would be
subject to the risks outlined in s. 97, writing at page 8 of her reasons:
Given his age (over conscription age),
the reduced operations in Chechnya, and the number of new conscripts that come
of age annually, I find on the balance of probabilities that the applicant will
not likely be required to serve and therefore is unlikely to experience cruel
and unusual treatment, punishment, a risk to life, or torture.
ISSUES
[21]
Counsel
for Mr. Lebedev raised a host of issues, both legal and factual, in his written
submissions, but subsumed them under two arguments at the hearing:
1)
Did the
PRRA officer err in finding Mr. Lebedev was not a Convention refugee? More
particularly, did the officer misinterpret the scope and frequency of human
rights violations in Chechnya, and mistakenly fail to
conclude the conflict breaches international standards?
2)
Did the
PRRA officer err in finding that Mr. Lebedev will not be personally subjected
to a risk to life or of cruel and unusual treatment or punishment? In other
words, did she err in finding he was unlikely to suffer mistreatment in prison because
of his resourcefulness, and that he will not likely be required to serve the
remainder of his term in the military?
Of
course, the appropriate standard of review will have to be canvassed for each
of these issues.
ANALYSIS
A)
Did the PRRA officer err in finding Mr. Lebedev was not a Convention refugee?
[22]
In the
last 10 or 15 years, both in Canada and other western countries,
there has been a growing body of jurisprudence on military service evasion as a
ground for refugee protection. While there are still contentious issues, which
I will discuss shortly, a consensus is also emerging that if freedom of
conscience and opinion is to be taken seriously, it must inform the way we deal
with refugee claimants who have fled their countries of origin because they
object to military service.
[23]
Most
recently, Justice Anne Mactavish canvassed these issues in Hinzman v.
Canada (Minister of Citizenship and
Immigration),
2006 FC 420, aff’d 2007 FCA 171. She aptly summarized the applicable principles
after dealing with the relevant Canadian and foreign case law most
comprehensively, as well as the leading textbooks on the subject. As will
become evident throughout these reasons, I am much indebted to her analysis and
I share most of her views.
[24]
Having
said this, the Federal Court of Appeal recently declined to answer the
certified question in Hinzman, above. It affirmed Justice Mactavish’s
decision on the narrow basis that the applicant had not made enough of an
attempt to access potential protective mechanisms in the U.S. As a result, there is still no
definitive pronouncement on how to properly interpret paragraph 171 of the UNHCR
Handbook - and particularly, whether the unlawfulness of a given conflict
is relevant to the refugee claim of an ordinary foot soldier.
[25]
Before
proceeding any further, it is important to go back to the basics. Section 96 of
the IRPA states that a Convention refugee must have a “well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion.” It is not at all clear from
reading s. 96 of the IRPA - and for that matter, the definition of “Convention
Refugee” at s. 2(1) of the former Immigration Act, what a “well-founded
fear of persecution” means. But the Supreme Court of Canada stated, in Chan
v. Canada (Minister of Employment and Immigration), [1995]
3 S.C.R. 593 [Chan] at paragraph 70, that “[t]he essential question is
whether the persecution alleged by the claimant threatens his or her basic
human rights in a fundamental way”. A decision-maker must therefore consider
whether forced military service per se, without any possibility for
alternative service, constitutes a denial of a core human right. Of course, the
punishment for the individual who evades compulsory military service will have
to be severe enough to amount to persecution. Moreover, the persecution must be
based on one of the five enumerated grounds in s. 96 of the IRPA, and state
protection must be unavailable.
[26]
Generally speaking,
punishment for violating a law of general application amounts to prosecution,
not persecution. In Musial v. Minister of Employment and Immigration,
[1982] 1 F.C. 290 [Musial], the Federal Court of Appeal held that a
claimant’s reasons for refusing military service were irrelevant. Fear of
prosecution and punishment for one’s offence, even if based on political
beliefs, could not transform the punishment for draft evasion into persecution.
[27]
As we shall see, the
Federal Court of Appeal later distinguished and qualified its reasons in Musial,
above, in a number of ways. It is now accepted that compulsory military service
may, in some circumstances, support a claim of persecution under s. 96 of the
IRPA. Indeed, the UNHCR Handbook explicitly provides for that
possibility. First, paragraph 167 of the Handbook says that “[f]ear of
prosecution and punishment for desertion or draft-evasion does not in itself
constitute well-founded fear of persecution under the definition.” Paragraph
168 then says:
The
person is clearly not a refugee if his only reason for desertion or
draft-evasion is his dislike of military service or fear of combat. He may,
however, be a refugee if his desertion or evasion of military service is
concomitant with other relevant motives for leaving or remaining outside his
country, or if he otherwise has reasons within the meaning of the definition,
to fear persecution.
[28]
While not binding on
this Court, the UNHCR Handbook is a useful starting point in trying to interpret
the Convention. As Justice Gérard La Forest stated in Chan, above, at
paragraph 46, it “must be treated as a highly relevant authority in considering
refugee admission practices.” Paragraphs 167-174 of the UNHCR Handbook are
reproduced in the Appendix to these reasons, under the heading “Deserters and
persons avoiding military service.”
[29]
If a refugee claimant
wants to rebut the presumption that compulsory military service is a law of
general application (and that punishment for evasion is merely prosecution), he
must fit himself within one of Hathaway’s three exceptions, which are also
reflected in the UNHCR Handbook. Paragraph 169 of that Handbook outlines the
least contentious exception, letting applicants claim persecution where they
can establish some form of discriminatory mistreatment before, during or even
after compulsory military service. It says:
A
deserter or draft-evader may also be considered a refugee if it can be shown
that he would suffer disproportionately severe punishment for the military
offence on account of his race, religion, nationality, membership of a
particular social group or political opinion. The same would apply if it could
be shown that he has a well-founded fear of persecution on these grounds above
and beyond the punishment for desertion.
[30]
Mr. Lebedev does not
claim that he was or would be treated in a discriminatory way in the army, nor
that his prosecution or punishment for desertion would be biased in relation to
one of the five enumerated grounds in. 96 of the IRPA. As the PRRA officer
indicated, the Board found insufficient evidence of discrimination, and Mr.
Lebedev did not submit compelling new evidence to the contrary. Accordingly,
there is no point dwelling on this first exception.
[31]
The next exception
relates to conscientious objectors. Paragraph 170 of the UNHCR Handbook
introduces the exception, while paragraphs 172-174 flesh out the general
provision in further detail. This exception has been the subject of much
debate. Because the concept does not lend itself to easily identifiable
parameters, this may at least partially explain why refugee claims by
self-proclaimed conscientious objectors are often rejected outright.
[32]
Relying on Hathaway,
above, and Guy Goodwin-Gill’s The Refugee in International Law (Oxford:
Clarendon Press, 1996) [Goodwin-Gill], the PRRA officer was apparently prepared
to accept that conscientious objectors can be considered Convention refugees. She
nevertheless found, on the evidence before her, that Mr. Lebedev was not
opposed to war for principled reasons. Rather, he simply did not want to face
the harsh conditions on the battleground in Chechnya.
As such, she found he was a “mere draft evader” and not a conscientious
objector.
[33]
Mr. Lebedev, of
course, challenges this finding. He claims that when he was conscripted, there
was no way to formally request alternative service. He says he made an oral
request, and tried to make his views as a conscientious objector known, to no
effect. Yet in oral submissions, counsel for Mr. Lebedev somewhat recanted from
that position and stated his client was not claiming to be a conscientious
objector. Rather, he objected to serving in a war that was internationally
condemned and contrary to principles of international humanitarian law. This
relates to the third exception, found at paragraph 171 of the UNHCR Handbook.
[34]
It is well
established that the appropriate standard of review for a PRRA officer’s
decision, when considered as a whole, is reasonableness: see Figurado v.
Canada (Solicitor General), 2005 FC 347. That being said, the
standard may shift depending on the nature of the questions raised in a
particular case. After going through a pragmatic and functional analysis,
Justice Richard Mosley wrote in Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437 at paragraph 9, that “the
appropriate standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, correctness.”
[35]
Whether a
conscientious objector can claim to be persecuted because of the punishment for
his conduct is clearly a question of law, as is defining what it means to be a
conscientious objector. Both questions should thus be reviewed on the
correctness standard. On the other hand, the officer’s conclusion that Mr.
Lebedev’s conduct was not based on deep-seated scruples was essentially a
finding of fact, reviewable against a standard of patent unreasonableness.
Conscientious
Objection Versus Objecting to a Particular War
[36]
In Hinzman,
above, Justice Mactavish had to decide whether there was an internationally
recognized right to conscientious objection. After an exhaustive analysis, she
found there was not. Furthermore, she found there was no recognized right of
“partial” conscientious objection, which refers to an applicant who objects to
a particular war. A “total” conscientious objector opposes war in general.
Consequently, Justice Mactavish rejected the argument that Mr. Hinzman could
legitimately object to the war in Iraq and be considered a conscientious
objector.
[37]
For the most part, I
agree with my colleague’s analysis in Hinzman, above. Accordingly, I
also agree with the PRRA officer’s conclusion that Mr. Lebedev’s refusal to
serve in Chechnya was not an act of conscientious
objection. However, even if it was, Mr. Lebedev would not be entitled to
refugee status solely because of his genuine beliefs. Establishing oneself as a
conscientious objector is not enough to be found a Convention refugee. This is
what the Federal Court of Appeal found in Ates v. Canada (Minister of Citizenship and
Immigration), 2005 FCA
322 [Ates]. In a short oral decision, the Court held that a sincere
conscientious objector from Turkey was not a Convention refugee, though he
had been repeatedly charged and imprisoned for avoiding compulsory military
service.
[38]
Having said that, I
would venture to make the following comments. First of all, Ates, above,
does not seem to sit well with the Federal Court of Appeal’s previous
decisions, most particularly Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540. In that case, an
Iranian citizen was found to be a conscientious objector even though he had no
principled objection to military service per se. Indeed, he had served
more than two years as a gunner in a tank crew during the war between Iran and Iraq. Further, he was not even opposed to the
particular conflict between the two countries. His opposition was extremely
specific – he objected to the Iranian military’s plans to fight the Kurds with
chemical weapons.
[39]
In Zolfagharkhani,
above, the Federal Court of Appeal took another look at its earlier reasons in Musial,
above, and tried to clarify their true meaning. The Board deciding Mr.
Zolfagharkhani’s application had relied on Musial, above, to conclude
that where a government enforces an ordinary law of general application, it is
merely engaging in prosecution – not persecution. The Court took issue with
this conclusion. According to Justice Mark MacGuigan, the Court in Musial,
above, was merely establishing that “a claimant’s political motivation cannot
alone govern any decision as to refugee status” (Zolfagharkhani, above,
at paragraph 15).
[40]
He then went on to
characterize Mr. Zolfagharkhani’s case in the following way:
[24]
In the view I take of the case, no issue is raised as to conscientious
objection in relation to war in general, since the appellant had no objection
to serving in an active capacity in the Iranian military in the Iran/Iraq War. Moreover,
I have already accepted the Board’s finding that the appellant had no
conscientious objection to military service against the Kurds.
[25]
The issue as to conscientious objection relates solely to participation in
chemical warfare. This was the specific objective which the Board did not find
“to be either reasonable or valid”, essentially for the reason that, as a
paramedic, he would not be fighting with chemical weapons but merely acting in
a humanitarian capacity.
[41]
The Court’s decision
in Zolfagharkhani, above, was certainly cast in terms of conscientious
objection. Justice MacGuigan even started his reasons by writing that “[t]his
case concerns the status of conscientious objectors in relation to the
definition of “Convention refugee” found in subsection 2(1) of the Immigration
Act, R.S.C. 1985, c. I-2.” Nevertheless, the substance of the Court’s reasoning
appears to have revolved around a different exception in the UNHCR Handbook –
participating in military activity that breaches international standards. After
finding chemical warfare was contrary to customary international law, and
referring to paragraph 171 of the UNHCR Handbook, Justice MacGuigan wrote the
following:
[30]
In my view, that is precisely the situation in the case at bar. The probable
use of chemical weapons, which the Board accepts as a fact, is clearly judged
by the international community to be contrary to basic rules of human conduct,
and consequently the ordinary Iranian conscription law of general application,
as applied to a conflict in which Iran intended to use chemical weapons,
amounts to persecution for political opinion.
[42]
There is therefore
some ambiguity as to the precise ground on which Zolfagharkhani, above,
was actually decided. I would personally be inclined to think that, as a matter
of principle and of precedent, conscientious objection can only be global and with
respect to participation in all armed conflicts. When a claimant objects to a specific
war, it is not because he rejects war on philosophical, ethical or religious
grounds. Rather, he is objecting to the military’s goals or strategies in a
particular conflict. As we shall see, his objection is not driven by his
conscience, but in an objective assessment about whether military action in a
particular situation is valid. That is not the same thing as conscientious
objection.
[43]
The facts underlying
the Zolfagharkhani decision bear witness to that dichotomy. In that
case, the claimant’s objection to the war against the Kurds had nothing to do
with his dislike of war but stemmed from his belief that the use of chemical
weapons was contrary to the most fundamental rules of human conduct. And yet,
in many cases on this issue, the Court has blended the subjective inquiry into
an applicant’s beliefs with the objective inquiry into the nature of a specific
war. This blending of subjective and objective elements is nowhere more evident
than in the following passage from Bakir v. Canada (Minister of Citizenship and
Immigration), 2004 FC
70:
[30]
The Federal Court of Appeal in Zolfagharkhani, supra, established
that an individual need not be an absolute pacifist or express opposition to
all armed services in order to warrant recognition as a conscientious objector
to military service. Where the military action at issue has been condemned by
the international legal community as contrary to basic human rights, the Court
has reasoned that selective objection to military service in a particular
conflict or military operation, for reasons of conscience or profound
conviction, should be recognized as conscientious objection.
[44]
In my view, the
phrase “partial conscientious objection” implies a nonexistent link between two
different exceptions from Hathaway and the UNHCR Handbook. As I see it,
conscientious objection applies to those who are totally opposed to war because
of their politics, ethics or religion. Selective objection really refers
to cases in which an applicant opposes a war he feels violates international
standards of law and human rights.
[45]
The first type of
claim, conscientious objection, raises subjective issues. Decision-makers must
evaluate the applicant’s personal beliefs and conduct to see if his claim is
genuine. The second type of claim requires both a subjective and objective
assessment of the facts. Along with evaluating the sincerity of an applicant’s
beliefs, a decision-maker must look at whether the conflict objectively
violates international standards. The two types of objections should be treated
as distinct categories – just as they are distinguished in paragraphs 171 and
172 of the UNHCR Handbook.
[46]
What, then shall we
make of the foregoing discussion? First, I think it is better to restrict the
notion of conscientious objection to those cases where a claimant refuses to
take part in any military action because of his genuine convictions grounded in
religious beliefs, philosophical tenets or ethical considerations. I am mindful
of the fact that paragraph 172 of the UNHCR Handbook speaks of “religious”
convictions. But it seems to me this notion should be expanded, to recognize that
moral principles may also be, for a number of people, sufficiently compelling
to ground and organize their lives. This is also consistent with the
interpretation that has been given to the right to freedom of religion by the
Supreme Court of Canada: see, for example, Syndicat Northcrest v.
Amselem, [2004] 2 S.C.R. 551; R. v. Big M Drug Mart
Ltd., [1985] 1 S.C.R. 295 and R. v. Edwards Books and Art
Ltd., [1986] 2 S.C.R. 713. The U.S. Supreme Court captured this idea
admirably in Welsh v. United States, 398 U.S. 333 at 339-340:
What
is necessary…for a registrant’s conscientious objection to all war to be
“religious”…is that this opposition to war stems from the registrant’s moral,
ethical, or religious beliefs about what is right and wrong and that these
beliefs be held with the strength of traditional religious convictions…If an
individual deeply and sincerely holds beliefs that are purely ethical or moral
in source and content but that nevertheless impose upon him a duty of
conscience to refrain from participating in any war at any time, those beliefs
certainly occupy in the life of that individual “a place parallel to that
filled by …God” in traditionally religious persons.
International
Approaches to Conscientious Objection
[47]
In this case, the
issue of conscientious objection was more academic than real, as the Board was
not persuaded that Mr. Lebedev fled from military service because of deeply
held beliefs. Because this was a finding of fact, I must defer to the Board’s
conclusion unless patently unreasonable. After carefully reviewing the record,
I am of the view the Board could reasonably come to that conclusion. It is true
that when Mr. Lebedev was conscripted in 1990, he could not make a formal claim
for alternative service. Russia’s Federal Bill on Alternative
Civilian Service, which governs the procedure for requesting
alternative service, only entered into force on January 1, 2004. However, in my
view, Mr. Lebedev’s behaviour was not consistent with that of a conscientious
objector. Not only did he only object to military service when informed he would
be sent to Chechnya, but he returned to the army on the mere promise that he
would not be posted to Chechnya. The military had made the same promise,
and broken it, before. Mr. Lebedev’s counsel was therefore well advised to
build his case on the exception from paragraph 171 of the UNHCR Handbook, to
which I shall turn shortly. Nevertheless, the question of whether to recognize
a right of conscientious objection is gathering attention both in Canada and internationally. Given its importance, there is a surprising
lack of jurisprudence on the issue. For that reason, I offer the following
observations.
[48]
Justice Mactavish was
most certainly correct when she wrote that, “at the present time, there is no
internationally recognized right to conscientious objection” (Hinzman, above,
at paragraph 207). This holding is consistent with the recent House of Lords decision
Sepet v. Secretary of State for the Home Department,
[2003] UKHL 15, [2003] 3 All ER 304 [Sepet]. These decisions are sending
the message that punishing people who refuse military service on conscientious
grounds does not amount to persecution. Courts are obviously reluctant to
meddle with one of the state’s most sacred prerogatives: raising an army for
the defence of the realm and to participate in military operations considered
crucial by the government of the day.
[49]
Yet equally clearly,
countries are starting to give voice to conscientious objectors in different
ways. For example, some countries exempt genuine conscientious objectors from
conscription. This gives weight to their freedom of thought, conscience and
religion in a balancing act between individual rights and the interests of
their state governments. As previously noted, paragraph 172 of the UNHCR
Handbook explicitly refers to conscientious objection, and the UN Commission on
Human Rights and the Council of Europe have encouraged member states to
recognize such a right. Some of the most respected authorities on refugee law
also believe the international community is moving towards accepting a right of
conscientious objection (see Hathaway, above, at page 182 and Goodwin-Gill,
above, at page 55). But maybe more importantly for our immediate
purposes, a number of recent cases from this Court have given credence to that
claim and have explicitly or implicitly accepted the premise that fear of
reprisal for objecting to military service on principled grounds could amount
to persecution: see, for example, Bakir, above; Atagun v. Canada
(Minister of Citizenship and Immigration), 2005 FC 612; Ozunal v.
Canada (Minister of Citizenship and Immigration), 2006 FC 560.
[50]
Until the Federal
Court of Appeal provides further clarification, I feel bound to follow its most
recent decision on the subject in Ates, above. However, in my view, the
issue of conscientious objection still raises a host of outstanding questions,
begging for resolution. For Mr. Lebedev, however, the most relevant exception
is the one I will discuss below: refusing to serve in wars condemned by the
international community.
Condemnation
by the International Community
[51]
The case law and
academic scholars recognize that a person who refuses to undertake compulsory
military service can be considered a refugee if such service would involve acts
contrary to the basis rules of human conduct, as defined by international law.
There is, however, a lack of consensus on some of the key aspects of this
exception to the general principle that says those who refuse to perform
military service do not have a nexus to a Convention refugee ground under s. 96
of the IRPA.
[52]
Relying once more on
Hathaway, the PRRA officer acknowledged this exception, but nevertheless found
that Mr. Lebedev did not meet its requirements. She wrote, at page 4 of her
decision:
The
applicant vaguely suggests that at least part of his motivation for avoiding
military service was because the conflict in Chechnya
violates international standards. He makes reference in his submissions that he
would be forced into being part of crimes against humanity. While I acknowledge
that there are credible reports that some members of the state’s forces have
committed human rights violations in the course of this conflict, I find the
applicant’s evidence insufficient to establish that it is the Russian
military’s intention to engage in planned and systemic human rights abuses or
that the international community has deemed the military action in Chechnya
contrary to the basic rules of human conduct.
[53]
Mr. Lebedev disputes
this finding, and claims the documentary evidence does establish continuous
human rights violations contrary to international norms and standards. He
submits the PRRA officer should have found that the Russian military intends to
and has engaged in systematic human rights abuses in Chechnya.
[54]
Those submissions
raise both legal and factual questions. First, the Court must address whether
the officer applied the proper test to determine if Mr. Lebedev would be forced
to violate international law by serving in the Russian army. To answer this
question, the Court must turn its mind to a number of questions, like: is the
applicant’s state of mind relevant? What sorts of military acts would the
applicant be involved in? Must those acts be sufficient to exclude the
applicant from refugee status under Article 1F of the Convention? What is the applicant’s
required degree of participation in those reprehensible actions? All of these
are questions of law, reviewable on the standard of correctness: Mugesera
v. Canada (Minister of Citizenship and
Immigration), 2005 SCC
40 at paragraph 37.
[55]
On the other hand,
evidence about the conflict in Chechnya, the gravity and seriousness of the
Russian army’s alleged human rights abuses there and the international
community’s reaction raise issues of a factual nature. The PRRA officer’s
findings on these grounds must be reviewed against the standard of patent
unreasonableness: Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1
S.C.R. 982 at paragraph 40; Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 34.
[56]
Paragraph 171 of the UNHCR
Handbook provides a useful starting point for a better understanding of
this exception. It states:
Not
every conviction, genuine though it may be, will constitute a sufficient reason
for claiming refugee status after desertion or draft-evasion. It is not enough
for a person to be in disagreement with his government regarding the political
justification for a particular military action. Where, however, the type of
military action, with which an individual does not wish to be associated, is
condemned by the international community as contrary to basic rules of human
conduct, punishment for desertion or draft-evasion could, in the light of all
other requirements of the definition, in itself be regarded as persecution.
[57]
This principle has
been upheld by academics and courts on a number of occasions. Hathaway, for one,
writes that “there is a range of military activity which is simply never
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” (Hathaway, above, at 180-181). See also: Goodwin-Gill,
above; Mark R. von Sternberg, The Grounds of Protection in the Context of
International Human Rights and Humanitarian Law: Canadian and United States
Case Law Compared (New York: Martinus Nijhoff, 2002) 126-143; Martin Jones,
“Beyond Conscientious Objection: Canadian Refugee Jurisprudence on Military
Service Evasion”, Centre for Refugee Studies Working Paper Series No. 2 (Toronto:
York University, 2005) 8-13 [Jones]; Edward Corrigan, “Refusal to Perform
Military Service as a Basis for Refugee Claims in Canada,” (2000) 8 Imm. L.R. (3d)
272.
[58]
But the leading
authority for this proposition in Canada is the Federal Court of Appeal’s
decision in Zolfagharkhani, above. That was the case in which the
Iranian applicant fled his country upon learning his government intended to
engage in chemical warfare against the Kurdish people. While unable to state
authoritatively, on the basis of the evidence in the record, that the gases
used by the Iranian army were included in the various Conventions prohibiting
the use of asphyxiating, poisonous or other gases, the Court nevertheless
considered that there was evidence “of the total revulsion of the international
community to all forms of chemical warfare” and that the use of chemical
weapons “should now be considered to be against international customary law” (Zolfagharkhani,
above, at paragraph 29). It then relied on paragraph 171 of the UNHCR Handbook
to conclude that the Iranian conscription law amounted to persecution for
political opinion, when applied to a conflict where the army intended to use
chemical weapons (Zolfagharkhani, above, at paragraph 30, quoted at
paragraph 41 of these reasons).
[59]
In Hinzman,
above, Justice Mactavish opined that paragraph 171 of the UNHCR Handbook could
not be evaluated in isolation, but had to be read in conjunction with paragraph
170. This contextual construction led her to conclude that paragraph 171 has
both objective and subjective components. Because I find her reasoning
unassailable, it is worth quoting it in full:
[108]
Paragraph 170 speaks to the nature and genuineness of the personal, subjective
beliefs of the individual, whereas paragraph 171 refers to the objective status
of the “military action” in issue. That is, to come within paragraph 170 of the
Handbook, the claimant must object to serving the military because of
his or her political, religious or moral convictions, or for sincere reasons of
conscience. In this case, the Board accepted that Mr. Hinzman’s objections to
the war in Iraq were indeed sincere and deeply-held, and
no issue is taken with respect to that finding.
[109]
Mr. Hinzman has therefore brought himself within the provisions of paragraph
170 of the Handbook. This is not enough, however, to entitle him to seek
refugee protection, as paragraph 171 is clear that a genuine moral or political
objection to serving will not necessarily provide a sufficient basis for
claiming refugee status. Paragraph 171 requires that there also be objective
evidence to demonstrate that “the type of military action, with which an
individual does not wish to be associated, is condemned by the international
community as contrary to the basic rules of human conduct”.
[60]
There is another
reason to come to that conclusion. If a claimant refuses to serve in the
military because of fear, or even inconvenience, the nexus to a Convention
ground under s. 96 of the IRPA will simply be lost. People who resist the draft
or evade the army on a principled basis are assumed to fear persecution on the
basis of political or religious reasons. If their motives are more mundane, the
fear of persecution will not rest upon these grounds and a claimant could not
be considered a Convention refugee.
[61]
For all these
reasons, I would have been prepared to defer to the PRRA officer had her
conclusion been based on Mr. Lebedev’s credibility and the lack of evidence
showing he refused to serve in Chechnya for principled reasons. But this is not
how I read her decision. In the extract quoted at paragraph 49 of my reasons,
it appears that the applicant made such a claim, and nowhere did the PRRA officer
question the credibility or the sincerity of that claim. Perhaps his motives
were mixed, as one could expect in this sort of situation, but that would not
be sufficient to disqualify him from raising this ground to seek refugee
status. As I read her reasons, the PRRA officer focused mainly on the lack of
objective evidence regarding the Russian army’s conduct. That leads me to an
assessment of the second requirement, as per paragraph 171 of the UNHCR
Handbook.
[62]
The PRRA officer
concluded the conflict in Chechnya had not been condemned by the
international community as being contrary to basic rules of human conduct. This
finding raises two issues – one of law, the other of fact. The legal issue is
whether the officer applied the proper test to determine if Mr. Lebedev fell
within the exception at paragraph 171 of the UNHCR Handbook. The issue of fact
is whether the Russian military’s action in Chechnya
has indeed been internationally condemned.
[63]
Based on the case law
and academic commentaries dealing with paragraph 171 of the UNHCR Handbook, I
think it is fair to say the phrase “international condemnation” has not been
consistently defined. The confusion probably stems from the paragraph’s
ambiguous language, which can be interpreted as referring both to a legal
standard (“basic rules of human conduct”) and a political assessment
(“condemned by the international community”).
[64]
It is therefore no
surprise to see the same kind of ambiguity in the jurisprudence, and most
notably in the decisions emanating from this Court. The decision in Bakir,
above, provides a good illustration of such an attempt to reconcile
these various tests. In that case, the Court opined that selective objection to
military service should be recognized as conscientious objection if that
service has been “condemned by the international legal community” (at
paragraph 30; emphasis added).
[65]
Justice Bud Cullen
also analyzed the notion of international condemnation in Ciric v.
Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65, finding
that documentary evidence from Helsinki Watch, Amnesty International, and the
International Committee of the Red Cross was enough to constitute
“international condemnation”. He wrote:
[18]
I believe the applicants are correct in asserting that the Board erred in
ignoring evidence of international condemnation of the situation in Yugoslavia. The Board’s conclusion that there was insufficient
evidence that the on-going military action in Yugoslavia was one that was
condemned by the international community such as to justify the
applicants’ avoidance of military service flies in the face of the evidence it
had before it to consider. This evidence included reports from Helsinki
Watch, Amnesty International, ICRC and the applicant’s own, uncontradicted testimony.
Thus, their conclusion cannot be said to have been made in regard to the
totality of the evidence and amounts to an error of law.
[Emphasis added]
[66]
Justice Cullen made
further comments about the sort of activity subject to said condemnation, writing:
[22]
The Board may take some comfort in the fact that the United Nations was not
quick off the mark in condemning the violations by all sides. It must be
remembered that this world organization, intent on maintaining peace, must act
of necessity slowly and carefully if it is to remain the honest broker in any
conflict. Fortunately, respected organizations like Amnesty International,
Helsinki Watch and ICRC, are able to move quickly, study sufficiently and make
pronouncements. And all did so here which surely the Board should have seen as
condemnation by the world community. The atrocities committed were immediately
abhorrent to the world community, eventually leading to a more public position
by the United Nations. Basic human rights were violated through woundings,
killings, torture, imprisonment and all clearly condemned by the world
community.
[67]
While the Federal
Court of Appeal did not deal with the issue in any great detail in Zolfagharkhani,
above, it did conclude that the use of chemical weapons violated “international
customary law” at paragraph 29. The Court referred to the Hague Convention and various Geneva Conventions,
including one prohibiting the development and use of biological and toxic
weapons.
[68]
In Al-Maisri v.
Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 642 (QL) [Al
Maisri], an applicant from Yemen deserted the army because he did not want
to contribute to its support of Saddam Hussein’s invasion of Kuwait. He lost his refugee hearing before the Board. The Board acknowledged
that the UN had condemned the invasion, and also condemned the many ways in
which the Kuwaiti population was being mistreated. However, it held this was
not enough to be considered international condemnation, because the UN “…did
not condemn the Iraqi’s actions as being contrary to the basic rules of human
conduct” (Al Maisri, above, at paragraph 4). After describing the
Board’s logic as “cryptic”, the Federal Court of Appeal allowed Mr. Al-Maisri’s
appeal, concluding the Board erred by finding Iraq’s actions were not contrary
to the basic rules of human conduct (Al Maisri, above, at paragraph 6).
[69]
In Ozunal,
above, Justice Michel Shore refused an application for
judicial review, finding the Turkish applicant would not be forced to
participate in any condemned military activities. In evaluating whether Mr.
Ozunal was a conscientious objector, Justice Shore wrote:
[17]
As a conscientious objector, Mr. Ozunal was required to demonstrate not only
the possession of such conviction but also the existence of a reasonable chance
that he, if conscripted, would be required to participate in military
activities considered illegitimate under existing international standards…
[Emphasis added]
[70]
On the basis of the
foregoing, I think it is fair to say that international condemnation will not
always be required, and may also take different forms. An isolated breach of
the basic rules of human conduct will clearly not be sufficient to fall within
the purview of paragraph 171 of the UNHCR Handbook. Conversely, there will also
be instances where political expediency will prevent the UN or its member
states from condemning massive violations of international humanitarian law. This
is why reports from credible non-governmental organizations, especially when
they are converging and hinge on ground staff, should be accorded credit. Such
reports may be sufficient evidence of unacceptable and illegal practices. But
at the end of the day, condemnation by the international community can only be
one indication of human rights violations. It should never be, in and of
itself, an absolute requirement.
[71]
I find comfort for
that position in Krotov v. Secretary of State for the Home Department,
[2004] EWCA Civ 69, [2004] 1 WLR 1825 [Krotov], a recent decision by the
United Kingdom Court of Appeal cited in Hinzman, above. That case is
particularly interesting in the context of Mr. Lebedev’s application, not only
for its thorough analysis of paragraph 171 but because it also involved an
asylum seeker who deserted the Russian army just before being sent to fight in Chechnya.
[72]
The Court in Krotov,
above, relied heavily on U.K. tribunal decisions dealing with the
issue of international condemnation. At paragraph 10, the Court cited the
following excerpt from one of
those
tribunal decisions, entitled Foughali v. Secretary of State
for the Home Department, 2 June 2000
[00/TH/01513]:
[28]
The question whether a conflict is or is not internationally condemned may cast
light on the Convention issue, but it is not the underlying issue. To make it
so would be to interpolate into the text of the Refugee Convention definition
of refugee an additional requirement of international condemnation. When
assessing risk on the basis of serious human rights violations outside the
context of military service cases, decision-makers do not hinge their decisions
on whether or not these violations have also been internationally condemned,
although such condemnation may be part of the evidence. It would be illogical
to behave differently in relation to an overlapping field of public
international law governed by the same fundamental norms and values.
[29]
In the opinion of this Tribunal it would much improve the clarity of
decision-making if issues as to whether or not a conflict is internationally
condemned are raised only in the context of whether or not there exists
sufficient objective evidence of violations of the basic rules of human
conduct. International condemnation should not be treated as the underlying
basis of exception (b). [NB Exception (b) was earlier defined as “persecution
due to the repugnant nature of military duty likely to be performed.” – see
paragraph 9 of the judgment].
[73]
The Court in Krotov,
above, also quoted extensively from B v. Secretary of State for the Home
Department, [2003] UKIAT 20 [B]. At paragraphs 44-47 of that case,
the U.K. tribunal gave five reasons why
formulating the test as one of “international law” was more appropriate than
“condemnation by the international community”:
1.
International
condemnation is too dependant on the vagaries of international politics, “apt
to vary depending on shifting alliances and whether other countries surveying
the conflict take a particular view”;
2.
A test based on
international law is more consistent with the overall framework of the
Convention, whose scheme includes a specific provision cast in terms of
international law principles (Article 1F, the so-called exclusion clause);
3.
The reference to “the
basic rules of human conduct” has a distinct meaning in international law;
4.
Interpreting the Convention
should be based on fundamental norms and values drawn from international law
sources;
5.
The Convention must
be given a contemporary definition based on the developments in international
humanitarian law. As a result, “international condemnation is only one
indicator – albeit a highly relevant one – of whether the armed conflict
involved is/would be contrary to international law” (B, above, at
paragraph 48).
[74]
In Krotov,
above, the Court reviewed the main international instruments setting out
humanitarian norms to protect individuals, particularly civilians, the wounded
and prisoners of war in armed conflicts. It looked at the sorts of crimes
committed in such conflicts, such as the deliberate killing and targeting of
civilians, rape, torture, execution and ill-treatment of prisoners, and the
taking of civilian hostages, writing the following:
[37]
…the crimes listed above, if committed on a systemic basis as an aspect of
deliberate policy, or as a result of official indifference to the widespread
actions of a brutal military, qualify as acts contrary to the basic rules of
human conduct in respect of which punishment for a refusal to participate will
constitute persecution within the ambit of the 1951 Convention.
[75]
In reaching that
conclusion, the Court in Krotov, above, took note of Sepet,
above, in which the House of Lords wrote the following after citing Canadian
jurisprudence on the issue:
[8]
There is compelling support for the view that refugee status should be accorded
to one who has refused to undertake compulsory military service on the grounds
that such service would or might require him to commit atrocities or gross
human rights abuses or participate in a conflict condemned by the international
community, or where refusal to serve would earn grossly excessive or
disproportionate punishment…
[76]
Commenting on that
paragraph, the Court wrote the following at paragraph 20 of Krotov,
above:
It
is to be noted that Lord Bingham treated the grounds to which he referred as
being separate rather than synonymous. He certainly did not suggest in the
passage quoted that condemnation of a particular conflict by the international
community was an essential or additional requirement where an applicant for
asylum advanced the case that the relevant military service would or might
require the appellant to commit atrocities or gross human rights abuses.
[77]
This Court is
obviously not bound by rulings of the British courts, or any foreign courts for
that matter. I nevertheless find the reasoning outlined in the previous paragraphs
compelling, and entirely consistent with previous rulings from this Court and
the Federal Court of Appeal.
[78]
Applying these
principles to the case at bar, I am troubled by the PRRA officer’s comments. Quite
apart from the question of whether there was sufficient evidence to establish
systemic human rights abuses by the military in Chechnya, to which I will
return to shortly, I believe the officer erred by focusing on the Russian
military’s “intention” to engage in planned and systemic human rights abuses. It
would set a dangerous precedent to accept that Russia
had not systemically violated human rights solely because it had not admitted
to it directly. Massive human rights violations may take place not only through
deliberate policy, but also through official indifference or by being condoned
by the authorities. Transgressions of international norms should always be
taken into account in assessing a refugee claim, however they come about. The
officer could not dismiss the issue, solely because there was no evidence that
the Russian army intended to engage in human rights abuses. This does not
necessarily mean I am concluding the Russian government is indeed guilty of
systemic violations. Rather, the officer should have looked into the evidence
more closely to determine whether Mr. Lebedev’s allegations were borne out by
the facts.
[79]
As for the PRRA
officer’s conclusion that there was insufficient evidence of international
condemnation, I would make the following observations. The war has been broadly
and unequivocally condemned across the board. The UN Commission on Human Rights
adopted two resolutions in 2000 and 2001 on the matter (Resolutions 2000/58 and
2001/24). According to the U.S. Department of State Report on Human Rights
Practices for 2005 (U.S. DOS Report), there are still instances of
indiscriminate use of force against civilian areas, though by that time such
incidents were decreasing. The following excerpt is from the introduction to
that report, where it found:
The
government’s human rights record in the continuing internal conflict in and
around Chechnya remained poor. Both federal forces and
their Chechen government allies generally acted with legal impunity. The
civilian authorities generally maintained effective control of the security
forces. Pro-Moscow Chechen paramilitaries at times appeared to act
independently of the Russian command structure, and there were no
indications that the federal authorities made any effort to rein in their
extensive human rights abuses.
[Emphasis added]
[80]
More damning was the
War Resisters International (WRI) report from 2003, which provides explicit and
detailed information about Russian warfare in Chechnya.
Here is one of the more pertinent excerpts:
Despite
Russian claims that the war has now ended, there is still heavy fighting
between the combatants…It is estimated that more than 100,000 Chechens have
been killed in both wars, mostly civilians. As a result, the continued fighting
has killed more civilians than soldiers.
Russian
forces in Chechnya are responsible for grave human rights
abuses against the civilian population including ill-treatment of displaced
persons, torture, disappearances, and extra judicial executions. Recent reports
have alleged that the same pattern of abuses have spread to the neighbouring
republic of Ingushetia where thousands of internally displaced
persons from Chechnya have sought refuge. Whereas NGOs have
documented tens of thousands of human rights violations in Chechnya, only 46 Russian servicemen had been convicted by January
2003. About half of them were convicted for either murder or rape. At the time,
there were another 162 ongoing cases. However, official reports have indicated
that about 79 per cent of all investigations are suspended without charges
being brought against any alleged offenders, and that vital evidence and
witness accounts are not secured. In addition, the 1998 anti-terrorism law
grants immunity to military servicemen, who violate human rights during
“anti-terrorist” operations, which has led to an atmosphere of impunity for
Russian servicemen in Chechnya.
[81]
The WRI report also
documents instances of torture, disappearances, extra judicial executions, and
mass dumping sites. It says the Russian military has detained “tens of
thousands” of people, and continued to do so at the time of the report. Detainees
were kept in filtration camps, and generally unregistered. They were often
tortured, by beating and/or electric shock. The report suggests these tactics
were designed to force detainees to confess to false allegations or name
Chechen fighters. A number of detainees simply disappeared, and it was even
alleged that soldiers would explode bodies to destroy evidence of
extra-judicial execution or torture.
[82]
As far as the
Tribunal Record goes, this evidence is uncontradicted. If the PRRA officer felt
this evidence did not establish the military action in Chechnya breached international standards, she was at least obliged
to substantiate her finding. Perhaps the current situation is much improved,
and Mr. Lebedev could no longer claim a fear of persecution based on his
refusal to serve in Chechnya. In other words, perhaps the war in Chechnya has subsided and military actions there no longer breach
international standards. But since the PRRA officer did not explain why Mr.
Lebedev did not fit within the scope of paragraph 171 of the UNHCR Handbook, we
are left to speculate. For all those reasons, I therefore find the PRRA officer
erred both in fact and in law.
Paragraph
171 of the UNHCR Handbook and Exclusion from Convention Refugee Status
[83]
As a final note on
this issue, there appears to be some controversy about how involved a
claimant’s participation in atrocities would have to be to fit within paragraph
171 of the UNHCR Handbook. Justice Mactavish discussed this issue at length in Hinzman,
above. While I generally agree with her analysis and reasoning, I would
nevertheless be inclined to nuance her conclusion slightly.
[84]
There are compelling
reasons to interpret paragraph 171 of the UNHCR Handbook in conjunction with the
Convention’s exclusion provisions. It is only appropriate to grant refugee
status to a person who objects to participating in human rights violations if
that person’s involvement with those violations could result in his exclusion
from Convention refugee status. This is indeed what the U.K. Court stated in Krotov, above:
[39]
It can well be argued that just as an applicant for asylum will not be accorded
refugee status if he has committed international crimes as defined in [the
Convention], so he should not be denied refugee status if return to his home
country would give him no choice other than to participate in the commission of
such international crimes, contrary to his genuine convictions and true
conscience.
[85]
This finding echoes
the Council of the European Union’s Joint Position on the harmonized
application of the term “refugee”, and it certainly accords with logic and
canons of interpretation. It is because of that logic, espoused by Justice
Mactavish, that a foot soldier’s mere participation in an illegal war was found
insufficient to ground a refugee claim. While the legality of a particular
military action might be relevant to the refugee claim of an individual
involved in triggering or monitoring the conflict, more will be required of an
ordinary soldier. Because the soldier’s personal conduct would not breach
accepted international norms, he could not be excluded from Convention refugee
status under Article 1F of the Convention. Accordingly, his mere participation
would also fail to bring him within the fold of paragraph 171 of the UNHCR Handbook
(Hinzman, above, at paragraphs 159 and 166).
[86]
That being said, the
extent of “on the ground” participation in the violations of international
humanitarian law does not lend itself to an easy definition and is still
subject to much debate. In Krotov, above, the U.K. Court suggested the test should not be whether one may be
“associated” with acts contrary to basic rules of human conduct as defined by
international law, but rather whether he may be required to “participate” in
those acts. While this may be consistent with the jurisprudence that has
developed in the context of exclusion, it obviously raises the bar in a way
that may not be warranted in the context of inclusion.
[87]
As Martin Jones
notes, the test for complicity in exclusion jurisprudence has developed in a
restrictive manner, given the gravity of a finding that one is excluded from
claiming Convention refugee status (Jones, above, at pages 9-10). In that
spirit, it is perfectly understandable to limit complicity findings to cases
where an applicant knew of an organization’s crimes and shared its purpose in
committing them (at least in cases where the organization was not principally
dedicated to a limited, brutal purpose): Zazai v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 303; Ramirez v. Canada
(Minister of Employment and Immigration) (1992), 89 D.L.R. (4th) 173; Baqri
v. Canada (Minister of Citizenship and Immigration), 2001 FCT
1096.
[88]
But the purpose of
applying the complicity test in claims of persecution resulting from refusing
military service is quite different and, indeed, opposite. The more restrictive
we are in defining what it means to be complicit in this context, the more
difficult it will be for such claimants to claim refugee status. Obviously,
sporadic occurrences of prohibited actions should not be sufficient for a
deserter or draft evader to claim refugee status. On the other hand, the notion
of direct participation may well be too narrow if we are to take into account
the language of paragraph 171 of the UNHCR Handbook, which says “…the type of
military action, with which an individual does not wish to be associated…”
Of course, this whole discussion will sometimes be of an academic nature, when
the pervasiveness and scale of the violations of international humanitarian law
are such that virtually any soldier will likely be required to be involved in
those violations.
[89]
All of this to say
that the Board should pay attention to this dimension of the problem if it finds,
on reconsideration, that the Russian military’s actions in Chechnya breach international standards. There is obviously no hard
and fast rule in assessing the degree of potential involvement a particular
soldier is likely to have in specific military actions. But in keeping with the
spirit and intent of the Convention, the Board would be well advised to look at
these claims with some measure of flexibility. After all, the Federal Court of
Appeal was able to find that a paramedic’s role in treating injured soldiers
was sufficient to bring him within the purview of paragraph 171 of the UNHCR Handbook
in Zolfagharkhani, above. That case clearly stands as an indication of
how we should approach the difficult moral dilemma confronted by those called
to serve in wars of dubious legitimacy.
B) Did the PRRA officer err in finding that
the applicant would not be personally subjected to a risk to life or to a risk
of cruel and unusual treatment or punishment?
[90]
Mr. Lebedev submits
the PRRA officer made several unsupported findings of fact regarding s. 97 of
the IRPA. These alleged errors relate to the likelihood that Mr. Lebedev will
go to prison in Russia, the attendant risks of imprisonment,
and the likelihood of conscription and military hazing.
[91]
Mr. Lebedev says the
PRRA officer drew unwarranted inferences and highlighted irrelevant
considerations in concluding he would not face a risk to his life or torture
once incarcerated in a Russian prison. Not only does he claim that he faces
imprisonment for desertion if returned to Russia, but he submits prison conditions there
are so severe that they amount to persecution and present a serious risk to his
health. I must confess the PRRA officer’s reasons on this issue are, at best,
problematic.
[92]
The PRRA officer
considered documentary evidence on Russian prison conditions, including the
contents of the 2005 U.S. DOS Report, which found prison conditions were
“extremely harsh and frequently life-threatening.” She also noted that Mr.
Lebedev would face court action in Russia for “unauthorized leave from a unit or
place of service for the purpose of evading performance of military service.” Finally,
she accepted that pre-trial detention facilities (also known as investigation
isolation facilities, or SIZOs) were considered “extremely harsh” and could
pose “a serious threat to health and life.”
[93]
Against this
background, the PRRA officer mentioned – again relying on the same U.S. DOS
Report – positive developments in Russia’s criminal justice system despite
shortcomings in certain areas, and that the process was generally consistent
with the Universal Declaration of Human Rights. But in the end, Mr.
Lebedev’s “personal circumstances” seemed to carry the most weight. She simply
placed too much emphasis on his alleged “resourcefulness” in concluding there
was insufficient evidence to find he would likely face the enumerated risks in
s. 97 of the IRPA (see the passage previously quoted at paragraph 19 of my
reasons).
[94]
In my opinion, the
PRRA officer disregarded documentary evidence asserting terrible conditions in
Russian penitentiaries by importing a “thick skull” theory and using it against
Mr. Lebedev. She appears to have concluded he would not suffer to the same
degree as a prisoner without a history of previous incarceration. She focused
less on whether Mr. Lebedev had objectively established a risk of harm in
Russian prison facilities, and more on how that risk would affect him relative
to other prisoners. This is an issue of mixed fact and law, as she purported to
apply a legal standard to her findings in this particular case. As such, her
reasoning must withstand a “somewhat probing examination” (Canada (Director
of Investigation and Research) v. Southam Inc., [1997]
1 S.C.R. 748 at paragraph 56). In light of my earlier comments, I am of the
view that the PRRA officer’s findings do not meet that standard.
[95]
I also think the
officer mishandled the fact that Mr. Lebedev faces an uncertain sentence for
military evasion. While she correctly stated that we do not know “what penalty will
be imposed or what duration in custody he would be subjected to,” the
documentary evidence indicates he will most likely be sent to a SIZO, at least
for some time, while the investigation is completed and his trial takes place. Accordingly,
the PRRA officer erred by failing to conduct a thorough analysis of whether he
faces a risk of harm if sent to such a pre-trial detention facility. While we
cannot pinpoint the exact sentence Mr. Lebedev faces in Russia, the arrest warrant is probative evidence that he will face
some sort of penalty for desertion. In my view, this placed an obligation on
the PRRA officer to conduct a stronger analysis about how he would be treated
once arrested – whether or not she considered him a Convention refugee.
[96]
The Minister tried to
rely on Ates v. Canada (Minister of Citizenship and Immigration),
2004 FC 1316, aff’d 2005 FCA 322 for the proposition that the Court should not
interfere with the officer’s conclusion about prison conditions. In that case, Justice
Sean Harrington held that an officer’s decision that prison conditions in Turkey met international standards was not patently unreasonable. Having
carefully read that decision, however, I believe that decision is of little
help to the Minister and does not lend credence to his position. First, it was
based on the particular facts of that case. It is a truism to say that
different sets of facts lead to different legal resolutions. But more importantly,
the PRRA officer decided Mr. Lebedev’s application actually accepted that Russian
prison conditions did not meet government standards. While she noted they are
improving, that was a comparative analysis – evaluating conditions compared
with previous years. The analysis ought to have been normative, and the officer
should have therefore asked whether conditions met objective standards.
[97]
That brings me to Mr.
Lebedev’s second argument regarding s. 97 of the IRPA. Towards the end of her
analysis, the PRRA officer concluded that abuses in the armed forces were a
serious problem. Indeed, she referred to government figures according to which
approximately 25 per cent of the 11,500 crimes committed in the army related to
hazing. But once again, she dismissed that risk because it was unlikely, in her
view, that Mr. Lebedev would be forced to serve out the remainder of his term
in the military. Relying on a superficial analysis, she concluded “on a balance
of probabilities” that Mr. Lebedev would not likely be required to serve and
was thus unlikely to experience harm (see the passage quoted at paragraph 20 of
my reasons). She based that conclusion on the Russian government’s stated
intention to scale back its military operations in Chechnya, on his age and on the number of new conscripts being
drafted every year.
[98]
This analysis rests
on speculations, not facts. While the Russian Minister of Defence may have
announced that conscripts would not be sent to Chechnya
from 2005 onwards, there is no evidence in the record that this policy was
actually implemented. As Mr. Lebedev contended, the PRRA officer was
considering his PRRA application in 2006, two years after that announcement was
reported. Yet, the military operations in Chechnya were apparently still ongoing. The PRRA
officer was not provided with any evidence of concrete recent steps to reduce
the term of military service or that conscripts would no longer be sent to Chechnya.
[99]
Further, the
Minister’s statement provided no insight into how the Russian army would treat
deserters like Mr. Lebedev. It was simply devoted to conscripts in a general
sense. Of course, there was no evidence that Mr. Lebedev would in fact be
forced to finish his military term. But if he is required to serve out the rest
of his military term, it appears he will most likely have no access to any
opportunity for substitute service. The Russian Constitution of 1993 does
enshrine the right to make a conscientious objection to military service. However,
it was only in 2002 that the State Duma passed the Federal Bill on Alternative
Civilian Service, governing the procedure for requesting alternative service. It
entered into force on January 1, 2004. Mr. Lebedev could thus not have made a
formal claim for alternative service in Russia in the 1990s. Moreover, this new
legislative measure makes it clear that claiming conscientious objection status
is still quite restricted, as applications for alternative service must be made
at least six months before receiving one’s call-up papers. Serving conscripts
and reservists cannot make such applications.
[100]
For all of the above
reasons, I believe the PRRA officer made a number of questionable conclusions
of fact and of mixed fact and law. I acknowledge, as the Board noted, that Mr.
Lebedev’s story has many gaps that could rightly entitle a decision-maker to
question his credibility. But this is no excuse for not assessing the risks he
would be facing upon his return to Russia. Any problems with his overall
credibility had nothing to do with his chances of going to prison. The Russian
warrant for his arrest made it clear that he would likely face some sort of
incarceration if returned to Russia. The officer’s reasons regarding both
sections 96 and 97 of the IRPA simply cannot pass muster. Accordingly, I would
quash her decision and remit the matter to a different PRRA officer for redetermination.
[101]
In light of the many
pressing issues raised by this application, I am also certifying the following
questions:
1.
What is the
difference between claiming Convention refugee status as a conscientious
objector, and claiming Convention refugee status on the basis that one does not
want to participate in an internationally condemned conflict? What are the
different requirements to prove each?
2.
Is there such a thing
as “partial” conscientious objection, or does that phrase merely indicate that
an applicant’s claim really relates to the “international condemnation”
exception at paragraph 171 of the UNHCR Handbook?
3.
How should
decision-makers define “international condemnation”? Does it refer to breaches
of international law only? Must it come from an official body that claims to
speak with an international voice, like the United Nations? Or would a
consensus of reputable international sources, like non-government
organizations, be sufficient?
ORDER
THIS
COURT ORDERS that the PRRA
officer’s decision is quashed, and the PRRA application should be remitted to a
different officer for redetermination. In addition, the Court certifies the
following questions:
1.
What is the
difference between claiming Convention refugee status as a conscientious
objector, and claiming Convention refugee status on the basis that one does not
want to participate in an internationally condemned conflict? What are the
different requirements to prove each?
2.
Is there such a thing
as “partial” conscientious objection, or does that phrase merely indicate that
an applicant’s claim really relates to the “international condemnation”
exception at paragraph 171 of the UNHCR Handbook?
3.
How should
decision-makers define “international condemnation”? Does it refer to breaches
of international law only? Must it come from an official body that claims to
speak with an international voice, like the United Nations? Or would a
consensus of reputable international sources, like non-government
organizations, be sufficient?
"Yves de Montigny"