Complicity in international criminal law and Canadian refugee law: A comparison

Journal of International Criminal Justice

Volumn 4, Issue 4, 2006, Pages 702-722

  Rikhof, Joseph ^a  

^a UNIVERSITY OF OTTAWA   (Canada)

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EID: 33751561451     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql065     Document Type: Article

References (308)

1. See Judgment, Kupreskić (IT-95-16), Trial Chamber, 14 January 2000, §§ 586-598 which was of the view that the interpretation of persecution in refugee law or human rights law was of little assistance to provide parameters for the crime against humanity of persecution.
2. See the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UN Doc. HCR/IP/4/Eng/REV.1 (1992)), §§ 148-150
3. see also J.-M. Henkaerts and L. Doswald-Becks (eds), Customary International Humanitarian Law, Volume 1: Rules (Cambridge: Cambridge University Press, 2005), 610-611.
4. Work by the UNHCR includes 'The Exclusion Clauses: Guidelines on their Application' (December 1996)
5. 'Note on Exclusion Clauses' by the Executive Committee of the High Commissioner's Programme (30 May 1997, Document EC/47/SC/CRP.29)
6. the Summary Conclusions of the Lisbon Expert Roundtable on Exclusion as part of the Global Consultations on International Protection (20 May 2001, Document EC/GC/012Track/1)
7. the 'Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees'and its accompanying 'Background Note to the Guidelines' (4 September 2003, Document HCR/GIP/03/05)
8. the 'Resettlement Handbook', 1 November 2004, chapter 3.7
9. and 'Procedural Standards for Refugee Status Determination under UNHCR's Mandate', 1 September 2005, chapter 4.8.
10. Internationally, there exists the Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (IGC), an informal group of 15 refugee receiving countries, two international organizations (International Organization for Migration [IOM] and UNHCR) and the European Commission, which has had exclusion on its agenda since May 2002. In Europe, the Commission of the European Communities has issued a working document entitled 'The relationship between safeguarding internal security and complying with international protection obligations and instruments' (5 December 2001, Document COM (2001) 743), while the Council of the European Union issued Directive 2004/83/EC on 29 April 2004 of which Arts. 12 and 17 deal with exclusion and the Committee of Ministers of the Council of Europe did the same as a recommendation to its member states on 23 March 2005 (Rec (2005)6).
11. Academic work on this issue can be found in: J. Rikhof, 'War Crimes, Crimes against Humanity and Immigration Law', 19 Immigration Law Reporter (Second Series) (1993)
12. N. Weisman, 'Article 1F(a) of the 1951 Convention Relating to the Status of Refugees in Canadian Law', 8 International Journal of Refugee Law (1996) 11
13. P. van Dijk et al., Refugee and Asylum Law: Assessing the Scope of Judicial Protection, International Association of Refugee Law Judges, Second Conference, 1997
14. P.J. van Krieken (ed.), Refugee Law in Context: The Exclusion Clause (Leiden: T.M.C. Asser Press, 1999)
15. the Special Supplementary Issue of Volume 12 of the International Journal of Refugee Law, entitled 'Exclusion from Protection', issued in 2000.
16. See for instance, re joint criminal enterprise, Judgment, Tadić (IT-94-1), Appeals Chamber, 15 July 1999, (hereinafter 'Tadić Appeals Judgment'), §§ 224-225
17. re mens rea of aiding and abetting, Judgment, Krstić (IT-98-33), Appeals Chamber, 19 April 2004, (hereinafter 'Krstić Appeals Judgment'), §141
18. and the notion of consent in rape, in Judgment, Kunarac (IT-96-23 & 96-23/1), Trial Chamber, 22 February 2001, §§ 454-456.
19. In Canada there have been 445 decisions by the administrative tribunal charged with applying exclusion clause 1F(a) between 1 April 1997 and 31 March 2004 (see the 2003-2004 annual report re Canada's War Crimes Program, Annex 3, http://www.cbsa-asfc.gc.ca/general/enforcement/annual/ annual7-e.html (visited 31 August 2005) while between 7 February 1992 and 1 January 2005 there have been about 140 decisions by the Federal Court (mostly at the Federal Court, Trial Division level, but 12 decisions by the Federal Court of Appeal). Over 95% of these cases involved crimes against humanity as opposed to war crimes; of these cases very few involved personal involvement but were almost all based on complicity.
20. See Judgment, Kordić (IT-95-14/2-A), Appeals Chamber, 17 December 2004, §§ 25-28
21. and Judgment, Mpambara (ICTR-01-65-T), Trial Chamber, 11 September 2006, §§ 18-20 for a description of the elements of these three modes of participation
22. see Judgment, Semanza (ICTR-97-20-A), Appeals Chamber, 20 May 2005, §§ 361-364
23. Judgment, Kamuhanda (ICTR-99-54A), Appeals Chamber, 19 September 2005, §75
24. and Judgment, Gacumbitsi (ICTR-01-64-A), Appeals Chamber, 7 July 2006, (hereinafter 'Gacumbitsi Appeals Judgment'), §§ 181-183 for the parameters of ordering.
25. For the notion of instigation, see Judgment, Orić (IT-03-68-T), Trial Chamber, 30 June 2006, §§ 270-279
26. and Gacumbitsi Appeals Judgment, §§ 128-130.
27. The inchoate offences of conspiracy, attempt and incitement have received different treatments depending on the type of substantive offence. Conspiracy, incitement and attempt can only occur in relation to the crime of genocide according to the ICTY (Art. 4(3)(b), (c) and (d)) and ICTR (Art. 2(3)(b), (c) and (d)) Statutes, while the ICC Statute (Art. 25) extends the notion of attempt to all three crimes, retains incitement for genocide only, and does not mention conspiracy at all. For an explanation, see C. de Than and E. Shorts, International Criminal Law and Human Rights (London: Sweet & Maxwell, 2003), at 8-9 which states: 'These are offences designed to cover situations when a full criminal offence has not yet been committed but was suggested (incitement), agreed to (conspiracy) or begun but not completed (attempt)'.
28. Judgment, Blagojević (IT-02-60-T), Trial Chamber, 27 January 2005 (hereinafter 'Blagojević Trial Judgment'), §777.
29. Articles 4(3)(e) and 2(3)(e), respectively.
30. Articles 7.1 and 6.1, respectively.
31. Krstić Appeals Judgment, supra note 4, §§ 137-139
32. and partial dissenting opinion of Judge Shahabuddeen, §§ 65-68
33. see also Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A), Appeals Chamber, 13 December 2004, §371
34. and Blagojević Trial Judgment, supra note 8, §§ 679 and 784
35. see, however, the Decision on Motion for Judgment of Acquittal, Milošević (IT-02-54-T), Trial Chamber, 16 June 2004, §§ 290-297
36. and Decision on Defence Motions Challenging the Pleading of a Joint Criminal Enterprise in a Count of Complicity in Genocide in the Amended Indictment, Karemena, Ngirumpatse and Nzirorera (ICTR-98-44-T), Trial Chamber, 18 May 2006.
37. See also C. Eboe-Osuji, '"Complicity in Genocide" versus "Aiding and Abetting Genocide": Construing the Difference in the ICTR and ICTY Statutes', in 3 Journal of International Criminal Justice (2005) 56-81, who argues (at 71-72 and 80-81) that the term 'complicity' connotes a substantive offence, namely a residual inchoate offence. An examination of state practice in respect to the domestic implementation of Art. 4(1) of the 'Torture Convention that obliges them to penalize 'an act by any person which constitutes complicity or participation' might be useful in providing further clarification in this regard.
38. No final position has been taken on this point in the jurisprudence; see Krstić Appeals Judgment, supra note 4, §142 and footnote 247.
39. Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, (hereinafter 'Akayesu Trial Judgment'), §§ 547-548
40. Judgment, 'Musema (ICTR-96-13-T), Trial Chamber, 27 January 2000, (hereinafter 'Musema Trial Judgment'), §183.
41. Judgment, Bagilishema (ICTR-95-1A-T), Trial Chamber, 7 June 2001, (hereinafter 'Bagilishema Trial Judgment'), §§ 32-34.
42. For approval of the statement in this last paragraph at the Appeals Chamber level, see Judgment, Kayishema and Ruzindana (ICTR-95-1-A), Appeals Chamber, 1 June 2001, (hereinafter 'Kayishema and Ruzindana Appeals Judgment'), §§ 201-202
43. see also generally, regarding the notion of aiding and abetting judgments in Kamuhanda (ICTR-99-54), Trial Chamber, 22 January 2004, §§ 595-596 and 599
44. Ndindabahizi (ICTR-2001-71-T), Trial Chamber, 15 July 2004, §§ 455-457
45. Blaškić (IT-95-14-A), Appeals Chamber, 29 July 2004, (hereinafter 'Blaškić Appeals Judgment'), §§ 46-50
46. and Brajanin (IT-99-36), Trial Chamber, 1 September 2004, (hereinafter 'Brajanin Trial Judgment'), §§ 271-274
47. for the most recent statements at the Trial Chamber level see Blagojević Trial Judgment, supra note 8, §§ 726-728 and 776-782
48. and Strugar (IT-01-42-T), Trial Chamber, 31 January 2005, §§ 349-350
49. also see Judgment, Mpambara (ICTR-01-65-T), Trial Chamber, 11 September 2006, §§ 22-23.
50. There is a difference between aiding and abetting in that aiding means giving assistance to someone while abetting would involve facilitating the commission of an act by being sympathetic thereto (cf. Kvočka (IT-98-30/1), Trial Chamber 1, 2 November 2001, (hereinafter 'Kvočka Trial Judgment'), §254.
51. Kvočka Trial Judgment, supra note 15, §255.
52. Blaškić Appeals Judgment, supra note 15, §48.
53. Tadić Appeals Judgment, supra note 4, §229
54. see also Kayishema and Ruzindana Appeals Judgment, supra note 15, §§ 191-194.
55. There had been a discrepancy about this test at the Trial Chamber level where on one hand in the cases of Tadić (IT-94-1), 7 May 1997, §§ 730 and 738
56. and Celebici (IT-96-21), 16 November 1998, §§ 325-327, the requirement of 'direct' had been added while Furundžija (IT-95-17/ 1-T), Trial Chamber II, 10 December 1998, §§ 225 and 234
57. Aleksovski (IT-95-14/1), Trial Chamber 1, 25 June 1999, §61
58. Rutaganda (ICTR-96-3-T), 6 December 1999, §42
59. Musema Trial Judgment, supra note 13, §126
60. and Blaškić (IT-95-14), Trial Chamber I, 3 March 2000, §§ 283-288 had not.
61. Judgment, Stakić (IT-97-24-T), Trial Judgment, 31 July 2003, §439.
62. Brajanin Trial Judgment, supra note 15, §272.
63. Vasiljević (IT-98-32), Appeals Chamber, 25 February 2004, (hereinafter 'Vasiljević Appeals Judgment'), §102
64. and Blaškić Appeals Judgment, supra note 15, §49, respectively.
65. Brajanin Trial Judgment, supra note 15, §§ 272-273.
66. Brajanin Trial Judgment, supra note 15, §730
67. see also the earlier cases of Akayesu Trial Judgment, supra note 13, § 544
68. Musema Trial Judgment, supra note 13, §182
69. Bagilishema Trial Judgment, supra note 14, §71
70. Semanza (ICTR-97-20-T), Trial Chamber, 15 May 2003, §§ 394-395.
71. See E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (Leiden: T.M.C. Asser Press, 2003), 94-109
72. S. Powles, 'Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?' in 2 Journal of International Criminal Justice (2004) 606-619
73. and A. Marston Danner and J.S. Martinez, 'Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law', in 93 California Law Review (2005) at 104-112, 117-120 and 134-146.
74. See Kvočka (IT-98-30/1-A), Appeals Chamber, 28 February 2005, (hereinafter 'Kvočka Appeals Judgment'), §79.
75. Ibid., §§ 82-83
76. the concept of JCE has been considered at the Appeals Chamber level before this decision in: Tadić Appeals Judgment, supra note 4, §§ 220-229
77. Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, (hereinafter 'Krnojelac Appeals Judgment'), §§ 28-33 and 65-98
78. Vasiljević Appeals Judgment, supra note 21, §§ 94-111
79. Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A), Appeals Chamber, 13 December 2004, §§ 463-468
80. Decision, Brajanin (IT-99-36-A), Appeals Chamber, 19 March 2004, (hereinafter 'Brajanin Appeals Decision')
81. re specifically the mens rea requirement see Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, (hereinafter 'Stakić Appeals Judgment'), §§ 65 and 99-103.
82. Tadić Appeals Judgment, supra note 4, §227
83. Vasiljević Appeals Judgment, supra note 21, §100
84. Stakić Appeals Judgment, supra note 26, 22 March 2006, §64.
85. Tadić Appeals Judgment, supra note 4, §227
86. Kvočka Appeals Judgment, supra note 25, §§ 116-119
87. Stakić Appeals Judgment, supra note 26, §64.
88. Tadić Appeals Judgment, supra note 4, §227
89. Kvočka Appeals Judgment, supra note 25, §§ 93-99
90. Stakić Appeals Judgment, supra note 26, §64.
91. Kvočka Appeals Judgment, supra note 25, §95, quoting the Trial Chamber in the same case.
92. On the question whether participation in a joint criminal enterprise corresponds to 'genocide' or 'complicity in genocide' see Krstić (IT-98-33), Trial Chamber, 2 August 2001, §§ 641-644.
93. Stakić Appeals Judgment, supra note 26, §530
94. and Brajanin Appeals Decision, supra note 26, §710.
95. • Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise (Krnojelac Appeals Judgment, supra note 26, §75
96. Vasiljević Appeals Judgment, supra note 21, §102
97. Kvočka Appeals Judgment, supra note §25, §92).
98. • the aider and abettor is always an accessory to a crime perpetrated by another person, the principal (Tadić Appeals Judgment, supra note 4, §229).
99. • in the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: Indeed, the principal may not even know about the accomplice's contribution (ibid.)
100. • the aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc), and this support has an effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose (Tadić Appeals Judgment, supra note 4, §229
101. Krnojelac Appeals Judgment, supra note 26, §§ 31-33
102. Vasiljević Appeals Judgment, supra note 21, §§ 102
103. Kvočka Appeals Judgment, supra note 25, §89)
104. • the requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons (Kvočka Appeals Judgment, supra note 25, §90)
105. • in the case of aiding and abetting, the requisite mental element is the knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required, namely the intent to pursue a common purpose (Tadić Appeals Judgment, supra note 4, § 229
106. Krnojelac Appeals Judgment, supra note 26, §§ 31-33
107. Vasiljević Appeals Judgment, supra note 21, §§ 102
108. Kvočka Appeals Judgment, supra note 25, §89).
109. There has been one case regarding incitement in the immigration context, namely the Mugesera case which has been the subject of litigation since 1995 before two levels of the Immigration and Refugee Board, an administrative tribunal, and three levels of courts, namely the Federal Court, Trial Division (IMM-5946-98, 12 April 2001), the Federal Court of Appeal (A-361-01, 8 September 2003) and finally, the Supreme Court of Canada (2005 SCC 40, 28 June 2005). For commentaries on the Mugesera case, see W.A. Schabas, 'Mugesera v. Minister of Citizenship and Immigration: Canadian Immigration and Refugee Board appellate decision on expulsion of alien for inciting genocide in Rwanda' 93 American Journal of International Law (1999) 529-533
110. and 'National Courts Finally Begin to Prosecute Genocide, the 'Crime of Crimes", 1 Journal of International Criminal Justice (2002), at 49-51
111. J. Rikhof, 'Hate Speech and International Criminal Law: The Mugesera Decision by the Supreme Court of Canada', 3 Journal of International Criminal Justice (2005) 1121-1133.
112. The Sivakumar case states this proposition as follows: 'the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes'. ([1994] 1 F.C. 433)
113. The latter two cases have been mentioned in the ICTY jurisprudence, namely in the Appeals Chamber decision in Kunarac (IT-96-23&23/1), 12 June 2002, footnote 114 (which is part of §98) in the context whether a plan or policy is a requirement for a crime against humanity; for a more contemporary reiteration of the principles set out in these three cases, see the Zazai case, Federal Court, IMM-377-02, 1 October, 2004, §44.
114. Ramirez, [1992] 2 F.C. 306
115. (1992), 89 D.L.R. (4th) 173
116. 135 N.R. 390 (C.A.), §13 in the unreported decision.
117. §§ 16-18. Since section 21(2) of the Criminal Code defines common intention along similar lines as the third category of JCE in the ICTY/ICTR case law it is likely that the court by also using the words 'shared common purpose' wanted the concept of common intention to be included in the notion of 'committed' in the same manner as the Appeals Chamber in the Tadić case; the Supreme Court of Canada declared unconstitutional the portion of section 21(2) which deals with the objective mens rea ('ought to have known') but only for murder or attempted murder (R v. Logan, [1990] 2 SCR 731
118. R. v. Rodney [1990] 2 SCR 687
119. and R. v. Hibbert, [1995] 2 SCR 973; the first two cases are mentioned in the Tadić case, footnote 288).
120. This concept has not been explored in any great detail in the subsequent case law although the following cases allude to this concept, especially recently and mostly in the negative, i.e. in finding no involvement: Moreno, 21 Imm.L.R. (2nd), 225
121. Randhawa, (1995) 93 F.T.R. 151 (India)
122. Ledezma, IMM-3785-96, 1 December 1997 (Bolivia)
123. Kiared, IMM-3172-97, 24 August 1998 (Algeria)
124. Quinonez, IMM-2590-97, 12 January 1999 (El Salvador)
125. Rosas Meza, IMM-705-00, 5 July 2001 (Peru)
126. Sungu, IMM-1020-01, 22 November 2003 (Democratic Republic of the Congo)
127. Abbas, IMM-6488-02, 9 January 2004 (Iraq)
128. Saftarov, IMM-4718-03, 21 July 2004 (Azerbaijan)
129. Mankoto, IMM-4455-04, 25 February 2005 (Democratic Republic of the Congo)
130. Valère, IMM-8674-05, 19 April 2005 (Haiti)
131. and Chougui, IMM-7339-05, 17 August 2006.
132. Imm.L.R. (2nd), 225 at 24 of the unreported decision.
133. [1979] 2 S.C.R. 881.
134. At 16-17 of the unreported decision.
135. A-400-96, 18 September 1996.
136. In an interesting reverse trend a variation of this definition was included in the Criminal Code to delineate participation in the activities of terrorist groups in section 83(18)(1) which says: 'Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.'
137. Ramirez, [1992] 2 F.C. 306,
138. 89 D.L.R. (4th) 780,
139. 135 N.R. 390 (C.A.)
140. Moreno, (1993) [1994] 1 F.C. 298,
141. 21 Imm. L.R. (2d) 221,
142. 107 D.L.R. (4th) 424,
143. 159 N.R. 210
144. Cibaric, (1995) 105 F.T.R. 304
145. Cortez Cordon, IMM-1889-97, 14 April 1998
146. Guardado, IMM-2344-97, 2 June 1998
147. Osagie, IMM-3394-99, 13 July 2000
148. Ordonez, IMM-2821-99, 30 August 2000
149. Albuja, IMM-Imama 3562-99, 23 October 2000
150. Ariri, IMM-2111-01, March 6, 2002
151. Osayande, IMM-3780-01, 3 April 2002
152. Ghotara, IMM-5312-05, 20 March 2006.
153. Gutierrez, (1994) 30 Imm. L.R. (2d) 106,
154. 84 F.T.R. 227
155. Mohammad, (1995), 115 F.T.R. 161
156. Alza, (1996), 110 F.T.R. 187.
157. Aden, (1993) [1994] 1 F.C. 625,
158. 23 Imm. L.R. (2d) 50
159. Mohamud, (1994) 83 F.T.R. 267
160. IMM-118-01, 6 November 2001
161. Omar, IMM-2452-03, 17 June 2004
162. Kuburundi, IMM-4281-05, 20 March, 2005
163. Han, IMM-2720-05, 4 April 2006.
164. Randhawa, (1995) 93 F.T.R. 151
165. Kiared, IMM-3172-97, August 24, 1998
166. Cabrera, IMM-4657-97, 23 December 1998
167. Quinonez, IMM-2590-97, 12 January 1999
168. Grewal, IMM-4674, 23 July 1999
169. Allel, IMM-6593-00, 3 April 2002
170. Januario, IMM-5258-00, 8 May 2002
171. Saftarov, IMM-4718-03, 21 July 2004.
172. Rahal, (1994), 83 F.T.R. 267
173. Srour, (1995) 91 F.T.R 24
174. Harb, IMM-425-01, 6 May, 2002
175. Harb, A-309-02, 27 January (2003).
176. Solomon, (1995) 31 Imm. L.R. (2d), 27
177. Goncalves, IMM-3140-00, 19 July 2001
178. Shrestha, IMM-2626-01, 19 August 2002.
179. Sulemana, (1995) 91 F.T.R. 53.
180. Gutierrez, IMM-2170-93, 11 October 1994.
181. Januario, IMM-5258-00, 8 May 2002.
182. Gracias-Luna, IMM-1139-92, 25 May 1995.
183. Solomon, (1995) 31 Imm. L.R.(2d) 27
184. Bamlaku, IMM-846-97, 30 December 1997.
185. Bazargan, A-400-95, 18 September 1996
186. Shakarabi, IMM-1371-97, 1 April 1998.
187. Albuja, IMM-3562-99, 23 October 2000.
188. Sumaida, A-800-95, 7 January, 2000 (Federal Court of Appeal).
189. Hovaiz, IMM-2012-01, 29 August 2002.
190. Lalaj, IMM-4779-99, 19 December, 2000.
191. Goncalves, IMM-3140-00, 19 July 2001.
192. Harb, A-309-02, 27 January 2003 (Federal Court of Appeal)
193. Alwan, IMM-8204-3, 2 June 2004
194. Salami, IMM-6023-02, 16 December 2003.
195. Diab, IMM-3162-93, 10 June 1994.
196. Kathiravel, IMM-204-02, 29 May 2003.
197. Bukumba, IMM-3088-03, 22 January 2004
198. see also Acevedo, IMM-4365-05, 12 April 2006.
199. Zadeh, (1995) 90 F.T.R. 210.
200. Cibaric, (1995), 105 F.T.R. 304.
201. Fletes, (1994) 83 F.T.R. 49.
202. Penate, [1994] 2 F.C. 79.
203. Guardado, IMM-2344-97, 2 June 1998.
204. Rivera Aguilar, IMM-4491-99, 16 August 2000.
205. Rojas, IMM-539-02, 2 April 2003.
206. IMM-4009-98, 8 July 1999.
207. Torkchin, A-159-92, 25 January 1995 (decided by the Federal Court of Appeal).
208. Alza, (1996), 110 F.T.R. 187.
209. Chen, IMM-541-00, 1 June 2001.
210. Ordonez, IMM-2821-99, 30 August 2000.
211. Say, IMM-2547-96, 17 May 1997.
212. Hajialakhani, IMM-3105-97, 11 September 1998
213. Rivera Aguilar, IMM-4491-99, 16 August 2000
214. Chitrakar, IMM-2769-01, 19 August 2002
215. Pushpanathan, IMM-4427-01, 3 September 2002.
216. Bahamin, (1994) 171 N.R. 79
217. Castillo, (1996) 106 F.T.R. 145
218. Cordon, (1995) 94 F.T.R 208
219. Mohammad, IMM-4227-94, 25 October 1995
220. Shakarabi, IMM-1371-97, 1 April 1998
221. Salazar, IMM-977-98, 16 April, 1999
222. M., IMM-1689-01, 31 July 2002.
223. Cortez Cordon, IMM-1889-97, 14 April 1998
224. Loayza, IMM-2392-05, 9 March 2006
225. the notion of wilful blindness has been addressed by the ICTY as part of the mens rea for crimes against humanity in Judgment, Krnojelac (IT-97-25-T), Trial Chamber, 15 March 2002, §59
226. Judgment, Kunarac (IT-96-23 & 23/1-A), Appeals Chamber, 12 June 2002, §102
227. and Judgment, Simić (IT-95-9-T), Trial Chamber, 17 October 2003, § 46,
228. as well as for command responsibility in Judgment, Orić (IT-03-68-T), Trial Chamber, June 30, 2006, §322.
229. Bahamin, (1994), 171 N.R. 79
230. the case of Sungu, IMM-1020-01, 22 November 2002 is similar in a situation involving a senior official in the Mobutu government of Congo.
231. Randhawa, (1995) 93 F.T.R. 151.
232. See also Musansi, IMM-5470-99, 21 January 2001 where a person working in administrative capacity for the Services d'actions et de renseignements militaires (the SARM) in Zaire found out that this organization was planning to kill leaders of the opposition, informed the opposition after which his life was in danger.
233. Yogo, IMM-4151-99, 26 April 2001,
234. Mendez-Leyva, IMM-4677-00, 24 May 2001,
235. Mukwaya, IMM-5752-99, 29 June 2001; this was also done indirectly in the case of Rai, IMM-2249-00, 12 July 2001.
236. UNHCR Document HCR/GIP/03/05, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, §19 with further expansion in §§ 59-62 in the accompanying Background Note to the Guidelines
237. see also Committee of Ministers of the Council of Europe, Recommendation (2005) 6, 23 March 2005.
238. §43 in the Mendez-Leyva case, IMM-4677-00, and implicitly in §19 of the Yogo decision.
239. For an overview of the case law pertaining to membership see below under the heading 'Membership'.
240. For this proposition in respect to the knowledge factor see Ahmed Abdulkadir Aden, IMM-2912-95, 14 August 1996 (involving an elite unit of the Somali army, the Red Berets)
241. Shakarabi, IMM-1371-97, 1 April 1998,
242. Cortez Cordon, IMM-1889-97, 14 April 1998 (a member of the Guardia de Hacienda in Guatemala)
243. Zoya, IMM-5256-99, 20 November 2000 (belonging to SNIP or National Intelligence and Protection Service in Congo)
244. and Mukwaya, although in Saridag, IMM-5691-93, 5 October 1994 because of the age of the claimant at the time when he was involved with a terrorist organization, the court felt that the CRDD should have inquired whether the claimant had sufficient knowledge of the nature of the organization, Dev Yol in Turkey.
245. IMM-3105-97, 11 September 1998; this can be seen implicitly in the earlier case of Balta, IMM-2459-94, 27 January 1995 where a determination that the Bosnian Serb army was a brutal organization was overruled by the court;
246. see also Nagamany IMM-22-05, 17 November 2005 re the LTTE in Sri Lanka.
247. Chiau, IMM-1441-96, 3 February 1998, at 17-18, upheld by F.C.A., A-75-98, 12 December 2000, decided outside the parameters of 1F(a), namely in the context of §19(1)(c.2) of the Immigration Act, now § 37(1)(a) of the Immigration and Refugee Protection Act (IRPA), http://laws.justice.gc.ca/en/I-2.5/index.html (visited 31 August 2005)
248. Shakarabi, IMM-1371-97, 1 April 1998 (visited 31 August 2005)
249. Mohsen, IMM-3246-99, 15 August 2000.
250. Suresh, DES-3-95, 14 November 1997, §§ 18-23, decided outside the parameters of 1F(a), namely in the context of §19(1)(f)(iii)(B) of the Immigration Act, now §34(1)(f) of the Immigration and Refugee Protection Act;
251. see also Owens IMM-5668-99, 11 October 2000, which also stated that membership goes beyond that of being a mere supporter or sympathizer.
252. Saridag, (1994) 85 F.T.R. 307.
253. Harb, A-309-02, 27 January 2003, Federal Court of Appeal.
254. Hajialakhani, IMM-3105-97, 11 September 1998
255. Pushpanathan, IMM-4427-01, 3 September 2002.
256. Mehmoud, IMM-1734-97, 7 July 1998 (with respect to the SSP (Sepah-e-Sahaba) in Pakistan)
257. Pushpanathan, IMM-4427-01, 3 September 2002 (involving the LTTE in Sri Lanka)
258. Obita, IMM-1473-05, 10 February 2006 (involving the LRA in Uganda).
259. Cardenas, (1994) 23 Imm. L.R.(2d) 244, 74 F.T.R. 214 (re the socialist party in Chile between 1981 and 1991)
260. Kudjoe, IMM-5129-97, 4 December 1998 (re the Bureau of National Security (BNI) in Ghana)
261. Shrestha, IMM-2626-01, 19 August 2002 (re the UPF in Nepal).
262. By 15 May 2006, the Federal Court had made reference to the ICTY jurisprudence three times and to the ICC Statute four times; the ICTY jurisprudence was invoked by the Federal Court, Trial Division, in Harb (IMM-425-01, 6 May 2002, in discussing the concept of civilian population as part of the crime against humanity requirement); in the case of M. (IMM-1689-01, 31 July 2002, regarding mens rea for crimes against humanity)
263. and in Nagamany (IMM-22-05, 17 November 2005, in which the level of contribution for complicity was discussed). The ICC Statute was referred to by the Federal Court of Appeal in Harb (A-309-02, 27 January 2003, as being one of the international instrument contemplated by 1F(a), the contents of which could apply in Canadian refugee law even before the adoption of the Statute in respect to the notion of war crimes and crimes against humanity), the M. case again (re mens rea)
264. the case of Kathiravel (IMM-204-02, 29 May 2003 re the defence of duress)
265. the Fabela case (IMM-7282-04, 26 July 2005 whether state or organizational policy is an element of crimes against humanity), and the Ali case (IMM-8686-04, 23 September 2005 regarding the status of crimes against humanity under international law).
266. A-400-95, 18 September 1996.
267. Decision, Strugar (IT-97-24), Trial Chamber, 23 July 2003, §439.
268. Kvočka Trial Judgment, supra note 15, §255.
269. Ibid., §281
270. also Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, Milutinović (IT-99-37-AR72), Appeals Chamber, 21 May 2003, §§ 24-26 and 31
271. Stakić (IT-97-24), Trial Chamber II, 31 July 2003, §433
272. Simić (IT-95-9-T), Trial Chamber I, 17 October 2003, §158.
273. The London Agreement made it possible to convict an individual of war crimes or crimes against humanity by having the International Military Tribunal declare the organization to which the individual belonged a criminal organization. Control Council Law No. 10 which applied in occupied Germany attached the same type of liability to a member of a group or organization declared criminal by the same International Military Tribunal.
274. The International Military Tribunal was called upon in the indictment to declare the following seven groups or organizations criminal: The Leadership Corps of the Nazi Party; the Gestapo; the SD; the SS; the SA; the Reich Cabinet; and the General Staff and High Command of the German Armed Forces. It did so with the first four above organizations. In addition, in a subsequent trial, the Mauthausen Concentration Camp Trial, which is mentioned in the Dachau Concentration Camp Trial (Trial of Martin Gottfried Weiss and thirty-nine others, Law Reports of Trials of War Criminals, Volume XI, at 5) all employees of concentration camps were held liable, the language of which appears to be broad enough to consider the findings of the military court a further refinement of the decision of the Nuremberg International Military Tribunal.
275. For instance: Australia (section 1023 of the Criminal Code Act 1995, http://scaleplus.la.gov.au/html/pasteact/1/686/pdf/CriminalCode1995.pdf (visited 31 August 2005))
276. Israel (section 3 of the Prevention of Terrorism Ordinance No. 33, 5708-1948, http://www.mfa.gov.il/MFA/MFAArchive/1900_1949/ Prevention+of+Terrorism+Ordinance+No+33+of+5708-19.htm (visited 31 August 2005)
277. Mexico (section 164 of the Federal Criminal Code, http://www.cddhcu.gob.mx/leyinfo/doc/9.doc (visited 31 August 2005)
278. Romania (section 167 of the Criminal Code, http://www.era.int/domains/ corpus-juris/public.pdf/romania.criminal.code.pdf (visited 31 August 2005)
279. Hungary (section 263/C of the Criminal Code, http://www.era.int/domains/ corpus-juris/public.pdf/hungary.criminal.code.pdf (visited 31 August 2005))
280. Germany (sections 85 and 129 of the Criminal Code, http://www.iuscomp.org/gla/statutes/StGB.htm#129 (visited 31 August 2005). (The author would like to thank Mylene Levesque for the research conducted in this area).
281. See §26 of the Milutinović decision where the explanatory report of the Secretary-General in establishing the ICTY is quoted, including the following sentence: 'The Secretary General believes that this concept should not be retained in regards to the International Tribunal' which appears to acknowledge that such a possibility would have been possible but was decided against. As a result, the comment by the Trial Chamber in the Stakić case in §433 that 'the Trial Chamber emphasises that joint criminal enterprise can not be viewed as membership in an organisation because this would constitute a new crime not foreseen under the Statute and therefore amount to a flagrant infringement of the principle nullum crimen sine lege' appears to be inaccurate since, although relying on the same Appeals Chamber decision, it does not refer to the above §26; as well, the concept of nullum crimen sine lege applies to the creation of new crimes, not interpreting modalities of participation (see Art. 23 ICCSt., and the Milutinović decision, §§ 37-38).
282. The administrative tribunal applying exclusion clause 1F(a) has used a methodology of using a number of factors to determine whether a person's association is close enough to constitute a shared common purpose. A combination of six characteristics such as method of recruitment, position or rank in the organization, nature of the organization, length of time in the organization, opportunity to leave and knowledge of atrocities are used for this purpose. Recently this approach has been adopted by the Federal Court in the following cases: Fabela (IMM-7282-04, 26 July 2005)
283. Bedoya (IMM-592-05, 10 August, 2005)
284. Ali (IMM-8686-04, 12 September 2005)
285. Ortiz Ardilla (IMM-10337-04, 9 November 2005)
286. Catal (IMM-102-05, 9 November 2005)
287. Akramov (IMM-1780-05, 10 February 2006)
288. Loayza (IMM-2392-05, 9 March 2006)
289. and Kasturiarachchi (IMM-2952-05, 7 March 2006).
290. While individually such personal factors are not conclusive for a finding of complicity (see Ramirez; Penate, (1994) 2 F.C. 79
291. Saridag, (1994) 85 F.T.R. 307
292. Gracias-Luna, IMM-1139-92, 25 May 1995 for the age factor;
293. Fletes, (1994) 83 F.T.R. 49
294. Cibaric, (1995) 105 F.T.R. 304
295. Gracias-Luna, IMM-1139-92, 25 May 1995
296. Aseel Khan, IMM-422-02, 14 March 2003
297. Asghedom, IMM-5406-00, 30 August 2001 for the forcible recruitment factor
298. and Gracias-Luna, IMM-1139-92, 25 May 1995
299. Osagie, IMM-3394-99, 13 July 2000
300. Osayande, IMM-3780-01, 3 April 2002 for the duration of involvement; the concept of disassociation as an element of complicity was first introduced as a separate concept by the Penate, 71 F.T.R. 171, decision and expanded by the case of Gutierrez, (1994) 84 F.T.R. 227), Canadian jurisprudence is still evolving with respect to the respective weight of the above factors when used in combination. Some of these factors have also been referred to in the international jurisprudence,
301. see Kvočka Trial Judgment, supra note 15, §311.
302. After all, as was already said immediately after the Second World War: 'An elaborate and complex operation, such as the deportation and extermination of the Jews and the appropriation of all their property is obviously the task for more than one man. Launching or promulgating such a programme may originate in the mind of one man or group of men. Working out the details of the plan falls to another. Procurement of personnel and the issuing of actual operational orders might fall to others. The actual execution of the plan in the field involves the operation of another, or it may be several other persons or groups. Marshalling and distributing the loot, or allocating the victims, is another phase of the operations that may be entrusted to an individual or a group far removed from the original planners.... The acts of any one... within the scope of the overall plan, become the acts of all the others.' (Trial of Oswald Pohl, United States Military Tribunal in Nuremberg, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Volume 5, at 1173
303. see also Kyočka Trial Judgment, supra note 15, §307.
304. It would appear that some willingness to extend the notion of JCE to larger organizations can be found in the Report of the International Commission of Inquiry on Darfur, 31 January 2005, §54, as well as in the indictments before the Sierra Leone Special Court and the more recent indictments at the ICTY;
305. on the other hand, there is already concern in academic circles that the parameters of the JCE concept are already drawn too widely, see W.A. Schabas, 'Mens Rea and the International Tribunal for the Former Yugoslavia', 37 New England Law Review (2003) 1015, at 1030-1036
306. See van Sliedregt, supra note 24, at 134-137
307. Danner and Martinez, supra note 24, at 124-126
308. and G.P. Fletcher and J.D. Ohlin, 'Relearning Fundamental Principles of Criminal Law in the Darfur Case', 3 Journal of International Criminal Justice (2005), 539 and 561.