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International Law

: Canadian Immigration Blawg

Colombian War Crimes/Crimes Against Humanity Research

By immlawyer

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I've come across some notes from the Federal Court matter I handled last month. In that situation, the applicant was a member of the Colombian armed forces and was excluded from refugee protection. A decision has not yet been made.

The Refugee Convention is inapplicable where "serious reasons" (see Sivakumar -- less than balance of probabilities and more than suspicion) exist if applicant committed crimes against humanity (see Article 6 of International Military Tribunal ... crimes against humanity are generally committed against own nationals). Commission of crimes against humanity can be done either directly or one can be complicit. The Standard of proof lies on the Minister.

Ultimately, association with an organization responsible for crimes against humanity may constitute complicity if there is personal and knowing participation or toleration of crimes.

The RPD has to provide findings of fact to specific crimes against humanity which the refugee claimant is alleged to have committed. Complicity must be some close association with principal actors and a shared common purpose.

Remember - the analysis of complicity is as follows. Did the applicant have a) a shared common purpose and b) a personal and knowing participation with a specific/particular organization (in this case within the Colombian armed forces)?

And... "the organization must be the particular unit/brigade to which the individual was assigned.." (Bedoya).

Some notable cases that may be of assistance to counsel (Search terms "Colombia" & "Crimes Against Humanity"):

Escorcia - applicant was excluded. He was chief of intelligence with D.A.S. which was directly responsible for murder etc.
Vasquez - application allowed. Applicant was a Major and career officer in the Colombian army. Commanded reserve platoon. "Member...fail to demonstrate any reasonable explanation as to whether applicant shared a common purpose with persons who are said to have committed atrocities and if actions constitute widespread and systematic attack directed against a civilian population..."
Rubianes - applicant excluded. specific evidence supporting Board's findings. 6 year military service. Involved with a "notorious" mobile brigade. Goal of his organization was to capture and "interview" guerillas.
Blanco - application allowed. while applicant had specific intelligence training. He was with naval intelligence. Board bound Colombian armed forces committed "crimes against humanity". Issue was if the Navy did so.
Murcia - application allowed - "considerable confusion" in the evidence whether applicant was at places at time of atrocities.
Ardila - application allowed. Applicant was in the armed forces for 12 years. For 8 of those years he rode horses. For 4 years he was a commander of a platoon/unit. No evidence organization was involved in crimes against humanity (Much of my argument involved reliance on Ardila).
Herrera - application allowed. The Colombian army not of "Limited/Brutal Purpose" Served in Reserves.