The Application and Interpretation of International Humanitarian Law and International Criminal Law in the Exclusion of those Refugee Claimants who have Committed War Crimes and/or Crimes Against Humanity in Canada

Abstract

Refugee status determination is difficult by its very nature but it becomes even more complex when the issue of exclusion under article 1F(a) is raised and it is alleged that there are ‘serious reasons for considering’ that the applicant is ‘guilty of having committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments that have been drawn to make provision for such crimes’. The ‘War Crimes and Refugee Status’ Research Project’s Canadian jurisprudence dataset, consisting of 98 article 1F(a) cases, reveals that more than 91 per cent of these cases cite international humanitarian law (IHL) or international criminal law (ICL), but only 13 per cent of the cases cite UNHCR guidelines or directives. Interestingly, nearly two-thirds, 65.8 per cent, of these appeal cases are denied. Five of the most frequently cited judgments in this sample of cases were Ramirez , Moreno , Sivakumar , Harb , and Pushpanathan , in that order. After analyzing these five appeal court judgments in depth, seven legal principles were identified respecting the application and interpretation of IHL and ICL in Canada: (1) violations of international law can be committed by private individuals as well as states, or public officials acting on behalf of states; (2) the standard of proof for ‘serious reasons for considering’ under article 1F is lower than a balance of probabilities, the civil law standard; (3) two fundamental tenets on which complicity and culpability are established in international crimes are: (i) no one can commit an international crime without personal and knowing participation; (ii) complicity rests on the existence of a shared common purpose and the knowledge of all the parties involved; (4) Mere membership or passive acquiescence in a group or organization that commits international crimes can never be sufficient to exclude a refugee applicant under article 1F(a); (5) ‘Voluntary, significant and knowing contribution’ does not require formal membership in a group or organization that is engaged in crimes against peace, war crimes or crimes against humanity. An accomplice contributes knowingly to those activities of a group or organization that makes them possible. (6) the offence of ‘aiding and abetting’ cannot be made out by mere presence on the scene where an international crime has taken place. What is required is voluntary, significant and knowing contribution in persecutory acts. (7) there is a close affinity between article 1F(a), which deals with those activities that take place in situations of armed conflict, and article 1F(c), which deals with activities irrespective of whether or not they take place in a situation of armed conflict. Article 1F(a) and (c) can overlap in various ways, such as where the sales of illicit narcotics are used to finance the purchase of weapons that are used in armed conflicts and/or for terrorist activities. The new test for exclusion under article 1F(a) in Canada, ‘voluntary, significant and knowing contribution,’ leaves a broad area of discretion for refugee law decision makers. This will cause, undoubtedly, legal contention in the appellate courts as the article 1F(a) cases make their way through the judicial process in Canada. The application and interpretation of international refugee law under article 1F(a) in Canada will continue to evolve with national court judgments as well as the development of international humanitarian and criminal law.