IMM‑4222‑06
2007 FC 575
Alex Yale Ventocilla et al. (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Ventocilla v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Teitelbaum D.J.—Vancouver, March 14; Ottawa, May 31, 2007.
Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of Immigration and Refugee Board decision applicant excluded from refugee protection under United Nations Convention Relating to the Status of Refugees, Art. 1F(a) on basis serious grounds to believe applicant committed, complicit in commission of war crimes — Board erred in assuming war crimes could be committed during internal conflict — At time of alleged war crimes (1985‑1992), war crimes definition limited to international conflicts — Rome Statute of the International Criminal Court recognizing war crimes not limited to international armed conflicts, but coming into force only on July 1, 2002 — Not possible to apply Rome Statute retroactively — Board’s conclusion applicant complicit in commission of war crimes unreasonable as based on inferences, negative credibility findings — Application allowed.
International Law — Immigration and Refugee Board concluding applicant excluded from refugee protection under United Nations Convention Relating to the Status of Refugees, Art. 1F(a) on basis serious grounds to believe that between 1985 and 1992 applicant committed, complicit in commission of war crimes in internal Peruvian conflict — Rome Statute of the International Criminal Court, recognizing war crimes not limited to armed international conflicts, coming into force July 1, 2002 — Not possible to apply definitions in Rome Statute retroactively in light of, inter alia, international criminal law principle of non‑retroactivity, definition of “war crime” in Crimes Against Humanity and War Crimes Act — As such, not possible to refer to Rome Statute definition of “war crimes” with respect to acts attributed to applicant as Statute not part of international law when acts committed.
This was an application for judicial review of a decision of the Immigration and Refugee Board holding that the applicant was excluded from refugee protection under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees because there were serious grounds to believe that he committed or was complicit in the commission of war crimes against Peruvian guerrillas during his time in the Peruvian armed forces (1985‑1992).
The issues were whether the Board erred in concluding that, for the purposes of exclusion under Article 1F(a), war crimes could be committed during an internal conflict; and whether the Board could reasonably determine that the applicant was complicit in the commission of war crimes.
Held, the application should be allowed.
At the time the applicant committed the alleged war crimes, “war crimes” were understood as applying to international conflicts only. The respondent argued that the definition of war crimes has changed so as to include internal conflicts with the coming into force of the Rome Statute of the International Criminal Court and the Crimes Against Humanity and War Crimes Act. The Rome Statute recognizes that war crimes are not limited to international armed conflicts. It came into force on July 1, 2002. Since the Rome Statute was not part of international law at the time of the commission of the acts attributed to the applicant, reference could not be made to how it defines war crimes for the purpose of determining whether these acts constituted war crimes. This interpretation was supported by the principle in international criminal law of non‑retroactivity and by the Crimes Against Humanity and War Crimes Act, which provides that a “‘war crime’ means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts”. The Board erred in law when it assumed that war crimes could be committed during an internal conflict, as the current definition of war crimes in international law cannot be applied retroactively.
The burden of proof was on the Minister to show that there were “serious reasons for considering” that the applicant committed war crimes. The Board did not make any findings of fact with respect to the applicant’s knowledge of the atrocities committed by the armed forces. Its conclusion that the applicant had knowledge of the atrocities was based on inferences and what was essentially a negative credibility finding. The Minister could not meet his burden through inferences, particularly ones that were not reasonably drawn. The Board’s conclusion that the Minister had met his burden was therefore unreasonable, as it was not based on any evidence.
statutes and regulations judicially
considered
Charter of the International Military Tribunal, Annex of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945, 82 U.N.T.S. 279, Art. 6.
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 4(3) “war crime”.
Criminal Code, R.S.C., 1985, c. C‑46, s. 7(3.76) “war crime” (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1; as rep. by S.C. 2000, c. 24, s. 42).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 98, 162(1).
Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. I‑38544, Art. 8(2).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).
cases judicially considered
applied:
La Hoz v. Canada (Minister of Citizenship and Immigration) (2005), 278 F.T.R. 229; 2005 FC 762.
distinguished:
Petrov v. Canada (Minister of Citizenship and Immigration), 2007 FC 465.
considered:
Bermudez v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 65; 191 F.T.R. 72; 6 Imm. L.R. (3d) 135 (F.C.T.D.); Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; (1993), 163 N.R. 197 (C.A.).
referred to:
Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194; 27 Imm. L.R. (3d) 1; 302 N.R. 178; 2003 FCA 39; Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.).
authors cited
Jones, John R. W. D. and Steven Powles. International Criminal Practice: the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, the Special Court for Sierra Leone, the East Timor Special Panel for Serious Crimes, War Crimes Prosecutions in Kosovo, 3rd ed. Ardsley, N.Y.: Transnational, 2003.
United Nations High Commissioner for Refugees. Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees. HCR/GIP/03/05, 4 September 2003.
APPLICATION for judicial review of the Immigration and Refugee Board’s decision excluding the applicant from refugee protection under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees for war crimes. Application allowed.
appearances:
Brenda J. Wemp for applicant.
Cheryl D. E. Mitchell for respondent.
solicitors of record:
Brenda Wemp, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1]Teitelbaum, D.J.: This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board), dated May 17, 2006, wherein the Board held that the applicant was excluded from refugee protection under Article 1F(a) of the Refugee Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6].
Background
[2]Mr. Alex Yale Ventocilla and his wife, Ms. Ofelia Vargas Guerrero, were denied refugee status on May 17, 2006. Initially, this application was a joint judicial review; however, the request for judicial review of the decision with respect to Ms. Guerrero has been discontinued; therefore these reasons are in regard to Mr. Ventocilla’s claim.
[3]Mr. Ventocilla served as Chief of Security and Troop Personnel for the Maintenance Unit at Las Palmas airbase [Peru] from 1985 to 1992. He commanded between 150‑200 subordinates during that time. In addition to his responsibility for military instruction, welfare and discipline of the troops and subofficers in the Maintenance Unit, he was responsible for ensuring the security of the Maintenance Unit.
[4]The Board determined that Mr. Ventocilla’s claim must fail as he falls into the exclusion category under Article 1F(a) because there were serious grounds to believe he committed or was complicit in committing war crimes during his time in the armed forces.
Decision under review
[5]At the hearing, the Minister’s representative argued that there was insufficient evidence to find an exclusion under Article 1F(a) and attempted to abandon the exclusion proceedings. The Board disagreed and found serious reasons existed for considering that the applicant committed, or ordered to be committed war crimes, in particular, the murder and torture of Shining Path and Tupac Amaru guerrillas. The Board also found that the applicant’s continued service as Chief of Security while knowing that the military used torture and murder makes him complicit in the military’s known war crimes. The Board determined that it was irrelevant if the Minister agrees if the exclusion clause applies, as this is within the Board’s jurisdiction under subsection 162(1) of the Act [Immigration and Refugee Protection Act, S.C. 2001, c. 27].
[6]The Board determined that the applicant should be excluded under Article 1F(a) for the following reasons: (1) there were serious reasons for considering that the applicant committed, or ordered to be committed war crimes, in particular, the murder and torture of Shining Path and Tupac Amaru guerrillas; and (2) there were serious reasons for considering that the applicant was complicit in the war crimes committed by the armed forces because of his position as Chief of Security.
[7]There was no direct evidence, i.e. oral admissions, on which to base these findings. The Board concluded that the applicant’s “blanket denial of knowledge or role cannot be interpreted as leaving the panel with no reliable information upon which to base an exclusion decision.” The Board went on to find that there were five grounds on which to make a reasonable inference. First, was the extensive coverage of the events of the relevant years in Peru in documents produced by organizations such as Amnesty International. Second, was the military order to all personnel to “carry out killings without a trace and not to take prisoners.” Third, was the extrajudicial execution of 100 prisoners by armed servicemen in the Lima area in 1986. Fourth, was the applicant’s position as Chief of Security in the civil war against the guerrillas. Fifth, was the applicant’s steady rise to the position of Chief of Security and his failure to disassociate himself from the torture and murder that was happening around him.
[8]Legislative scheme
Immigration and Refugee Protection Act, S.C. 2001, c. 27
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
United Nations Convention Relating to the Status of Refugees, signed on July 28, 1951
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
Charter of the International Military Tribunal, 8 August 1945 [Annex of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 U.N.T.S. 279]
Article 6
. . .
b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill‑treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill‑treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24
4. . . .
(3) . . .
“war crime” means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
Rome Statute of the International Criminal Court, signed July 17, 1998, entered into force July 1, 2002 [2187 U.N.T.S. I-38544]
Article 8. War crimes
. . .
2. For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
. . .
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
Issues
Questions en litige
[9]The issues are as follows:
1. Did the Board err in concluding, for the purposes of exclusion under Article 1F(a), war crimes could be committed during an internal conflict?
2. Did the Board reasonably determine that the applicant was complicit in committing war crimes?
Did the Board err in law by finding that war crimes could be committed in the context of an internal armed conflict?
[10]The parties agree that the question of whether the meaning of war crimes in Article 1F(a) is limited to those offences committed during an international armed conflict is a question of law to which the standard of review of correctness applies (Bermudez v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 65 (F.C.T.D.)).
[11]Article 1F(a) of the Refugee Convention states that
[t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
[12]The Board referred to the Charter of the International Military Tribunal for the definition of war crimes. In Bermudez, at paragraph 12, Mr. Justice MacKay noted that the London Agreement of 8 August 1945, along with its annex the Charter of the International Military Tribunal, are the foundation documents for the concept of “war crimes.” He noted that while the definition of “war crimes” in the Charter of the International Military Tribunal does not specifically state that it has to take place in the course of an international armed conflict, the context in which it appears suggests this is so. He also made reference to the definition of “war crimes” in the Criminal Code [R.S.C., 1985, c. C-46, s. 7(3.76) (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1)] and concluded that “war crimes” have come to be understood internationally in the context of international conflict.
[13]Here the Board made no reference to the interpretation of war crimes set out in Bermudez and simply assumed that war crimes could be committed in an internal conflict. This was an error of law. The respondent submits that the error is one of form and not substance arguing that Bermudez is no longer good law and that the definition of war crimes has changed so as to include acts committed during internal conflicts. The respondent bases this argument on two grounds. First, international treaty law, specifically the Rome Statute of the International Criminal Court (Rome Statute), recognizes that war crimes are not limited to international armed conflicts. Second, the section of the Criminal Code referred to by MacKay J. in Bermudez has since been repealed [S.C. 2000, c. 24, s. 42] and has been replaced by the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 [s. 4(3)] which defines “war crimes” more broadly as “act . . . committed during an armed conflict”.
[14]There is no question that the Rome Statute is an international instrument which can be used to interpret the crimes in Article 1F(a) (see Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194 (F.C.A.), at paragraphs 7‑8 and the UNCHR [United Nations High Commissioner for Refugees] Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, dated September 4, 2003) and the acts attributed to the applicant, namely the torture and murder of “prisoners of war” (Shining Path and/or Tupac Amaru guerrillas), fall within the list of acts considered war crimes in an internal conflict (article 8, paragraph 2(c)(i) of the Rome Statute).
[15]The applicant acknowledges that the acts attributed to the applicant would be considered war crimes under the definitions set out in the Rome Statute but submits that the Rome Statute cannot be applied to the acts attributed to the applicant because it came into force on July 1, 2002 and the acts attributed to him took place between 1985 and 1992. In effect, the applicant submits that the definition of war crimes provided in the Rome Statute cannot be applied retroactively. The applicant notes that the Rome Statute contains a retroactivity clause. Moreover, the applicant relied on Ramirez for the proposition that a person must have the mens rea for an international crime in order to be found excluded from refugee protection (Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.)) and submits that this principle extends such that a person cannot have the mens rea to commit an international crime if he is not aware that the acts in question are international crimes.
[16]I agree with the applicant that the definitions in the Rome Statute cannot be applied retroactively. The definition of “war crime” set out in the Crimes against Humanity and War Crimes Act supports the applicant’s argument. It provides that:
4. . . .
(3) . . .
“war crime” means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. [Emphasis added.]
[17]Since the Rome Statute was not part of international law at the time of the commission of the acts in question reference should not be made to how it defines war crimes for the purpose of determining whether the acts attributable to the applicant constitute war crimes.
[18]This interpretation is supported by the principle in international criminal law of non‑retroactivity. This principle is described as the “second corollary of the principle of legality. It means that a person cannot be judged or punished by virtue of a law which entered into force after the occurrence of the act in question” (John R. W. D. Jones and Steven Powles, International Criminal Practice (Ardsley, N.Y.: Transnational, 2003 at § 6.1.21)).
[19]Furthermore, I conclude that the definition of war crimes provided in the Rome Statute cannot be used to determine whether the acts in question constitute war crimes because they were committed before the Rome Statute was part of international law.
[20]Consequently, in assuming that war crimes could be committed during an internal conflict, the Board erred in law. This error was determinative given that the current definition of war crimes in international law cannot be applied retroactively. This application for judicial review will be allowed and the matter should be sent back to a different Board to be redetermined.
[21]The applicant asked the Court to certify two questions, the first one being whether a refugee claimant can be excluded under Article 1F(a) of the Refugee Convention for commission of war crimes for acts that took place during an internal armed conflict or insurgency prior to the adoption and/or coming into force of the Rome Statute of the International Criminal Court.
[22]In order for a question to be certified, it must be a question that transcends the interests of the immediate parties to the litigation, contemplates issues of broad significance or general application and must be determinative of the appeal (Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.)).
[23]I have no doubt that this is a question of serious general importance that transcends the interests of the immediate parties. If definitions of war crimes provided in the Rome Statute can be applied to acts committed before the Rome Statute was signed, this would have a serious impact on determinations of exclusion and presumably would result in more claimants being found to be excluded from refugee protection. The respondent submits that the question should not be certified unless it is determinative of the appeal and submits that if the Court does not uphold the Board’s evidentiary findings with respect to the applicant’s complicity in the relevant acts then the question about the Rome Statute would not be determinative. For this reason, I have analysed the second issue before the Court: whether the Board reasonably concluded the applicant was complicit in committing war crimes.
Did the Board reasonably determine that the applicant was complicit in committing war crimes?
[24]The applicable standard of review for the Board’s determination of whether the applicant is excluded under Article 1F(a) for complicity in committing war crimes is reasonableness simpliciter. The question before the Board is one of mixed fact and law (Petrov v. Canada (Minister of Citizenship and Immigration), 2007 FC 465). While the Board has relative expertise in making findings of fact, such as what the applicant’s role was in the armed forces, the Court has more expertise in determining the applicable criteria to determine whether the applicant was complicit and the proper application of the law. These factors point to a standard of reasonableness simpliciter.
[25]The burden of proof is on the Minister to show that there are “serious reasons for considering” that Mr. Ventocilla committed war crimes (see Ramirez; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.)). It is trite law that this standard requires more than mere suspicion or conjecture but less than the civil standard of proof on a balance of probabilities as explained in Sivakumar.
[26]In Petrov, at paragraph 53, Mr. Justice Shore set out six factors which are used in determining whether an individual is considered an accomplice:
(1) Nature of the organization;
(2) Method of recruitment;
(3) Position/rank in the organization;
(4) Knowledge of organization’s atrocities;
(5) Length of time in the organization;
(6) Opportunity to leave the organization.
Shore J. noted the reasonableness of a decision could be evaluated with reference to how the Board dealt with these factors.
[27]The Board noted the applicant had a high position in the organization, noting that he held the position Chief of Security and that he commanded 150‑200 subordinates. The Board also noted that the applicant served in the air force for over 30 years and that he chose to leave the organization only when he retired.
[28]The Board did not make any findings of fact with respect to the applicant’s knowledge of the atrocities committed by the armed forces. Its conclusion that the applicant had knowledge of the atrocities was based on inferences and what was essentially a negative credibility finding.
[29]The applicant submits that a finding of complicity in committing war crimes cannot be based on a negative credibility finding. He relies on the decision La Hoz v. Canada (Minister of Citizenship and Immigration), 2005 FC 762, wherein Mr. Justice Blanchard held, at paragraphs 21 and 23:
In my view, the Board’s decision to exclude the male applicant from application of the Convention cannot be upheld because it found he lacked credibility. The burden, however, is on the Crown to establish that there are “serious reasons for considering” that the male applicant committed acts described in section 1F. In this case, the Board seems to have concluded that the male applicant should be excluded because he did not provide convincing evidence that he did not commit these acts. This burden is not on the male applicant. The Board’s reasoning on this matter is erroneous and warrants the intervention of this Court, since it erred in law.
. . .
The evidence must show that there are serious reasons for considering that the male applicant committed crimes against humanity. The Board did not address this issue. It did not establish which war crimes the male applicant allegedly committed. It simply referred to war crimes in broad terms and found that the Peruvian army frequently uses torture and commits acts of violence against civilians in areas where Tupac Amaru and Shining Path rebels are found. Since it ruled that the male applicant’s testimony was not credible, the Board concluded that, because he was a member of the Peruvian army, he was responsible for these crimes. In my view, these reasons are not sufficient to establish that the male applicant committed crimes against humanity.
[30]In my view, La Hoz is directly applicable. The Minister cannot meet his burden through inferences, particularly ones that are not reasonably drawn.
[31]In Petrov [at paragraph 59], the Board found that the applicant had knowledge of the torture being committed within his unit because the applicant admitted to handing over criminals to other soldiers and admitted to hearing “prisoners being beaten or tortured”. In my view, in that case the Board reasonably made an inference as to the knowledge the applicant had based on a finding of fact. Here there are no such facts on which to base an inference that the applicant knew of the atrocities committed by the armed forces. In such circumstances it was unreasonable for the Board to conclude that the Minister had met his burden. The Board’s determination was not based on any evidence and consequently cannot be upheld.
[32]This judicial review should be allowed on both issues. Having found the Board’s decision on the second issue cannot be upheld, the first issue is not determinative and consequently the first question proposed for certification should not be certified. The second question proposed for certification will not be certified as it does not meet any of the criteria for certification.
JUDGMENT
THIS COURT ADJUDGES that the application for judicial review is allowed and this matter is returned to a different Board for a new hearing to be determined in accordance with the above reasons.