Refugee Appeal No. 2516/95

REFUGEE APPEAL NO. 2516/95
AT AUCKLAND

Before:
	B O Nicholson (Member)
	A Lawson (Member)
		D Ryken
		No Appearance
Date of Hearing:		13 March 1996
		21 June 1996

The Authority has benefited from the provision by counsel of a considerable amount of recent country information material, including various Amnesty International reports on Afghanistan (published in April 1994, February, April and November 1995 respectively), excerpts from the Amnesty International report on Afghanistan, 1995 as well as the US Department of State Country Reports on Human Rights Practices in Afghanistan for the years 1992 and 1993. Counsel also submitted an article published in the New Zealand Herald on 17 February 1996, entitled "Munitions Blasts Rock in Kabul".

The Authority has carefully considered all of this information, together with the appellant's evidence below. The Authority has derived considerable assistance from the Amnesty International report, "Afghanistan: the World's Responsibility" (November 1995) at pages 3-4, which sets out a summary of the political changes undergone in Afghanistan in recent years:

"A Generation of Conflict
December 1979:	Soviet troops invade Afghanistan.
Early 1980:	Armed tribal groups begin a jihad, an Islamic Holy War, against the Soviet-installed government
1980:	Afghan Mojahedin (Soldiers of Islam) Parties and armed tribal groups win pockets of territory inside Afghanistan. The main parties are an alliance of seven Pakistan-based Sunni groups known as the Jamiat-e Islami (Society of Islam), headed by Borhanuddin Rabbani; Hezb-e Islami (Party of Islam) led by Gulbuddin Hekmatyar, a group which split from Jamiat-e Islami; and Hezb-e Yahdat Islami (Party of Islamic Unity), at first led by Abdul Ali Mazari and, since early 1995, Karim Khalidi, a Shi-a alliance backed by Iran.
1980 - 1989:	War continues in most parts of Afghanistan, excluding major cities, before the Mojahedin groups and government forces.
1986:	President Mohammed Najibullah, leader of the pro-Soviet Watan (home-land) Party takes office.
February 1989:	Soviet troops complete their withdrawal from Afghanistan as required by the 1988 Geneva Agreement.
February 1989 to April 1992:	Increasing armed conflict between government and opposition forces.
April 1992:	Under an UN peace plan, President Najibullah is replaced by a four-member council of the ruling Watan Party.
Late April 1992:	An interim government led by Professor Sebghatollah Mojaddedi takes power; the Islamic State of Afghanistan is declared.
June 1992:	An interim government led by Borhanuddin Rabbani takes power. Elections scheduled to take place within four months are not held.
December 1992:	Borhanuddin Rabbani is elected as President and Gulbuddin Hekmatyar as Prime Minister (until 1994).
1992 to early 1995:	Fighting spreads to all major cities, particularly Kabul, as two major alliances - Shura-e Nezar (the Supervisory Council), led by Ahmad Shah Masood, a main component of Jamiat-e Islami and the Shura-e Hamahanji (the Supreme Co-ordination Council), an alliance of the forces of General Abdul Rashid Dostum and Gulbuddin Hekmatyar's Hezb-e Islami - compete for control of administrative centres.
Late 1994 to
mid 1995:	The taleban (religious students) emerge as a strong military force controlling at least seven of Afghanistan's 30 provinces.
Early 1995:	Efforts by the UN to set up a broad-based interim administration in Afghanistan fail.
Mid-1995:	Jamat-e Islami, led by President Rabbani, which includes the forces of Shur-e Nezar and of Herat's Governor Ismael Khan, as well as Ittehad-e Islami (Islamic Alliance), control Kabul and at least seven provinces in a strip stretching from eastern Afghanistan to the west. Shur-e Hamahanji, Hezb-e Islami (Hekmatyar) and Hezb-e Wahdat Islami control at least seven provinces, mainly in the north. The taleban controls seven provinces in the south and parts of four others. Various Mojahedin groupings control other provinces. Fighting continues in many parts of the country for control of cities and provinces. Around Kabul, clashes continue between President Rabbani's forces and those of the taleban."

The US Department of States Country Reports for Afghanistan (February 1995), at page 1201 referred to the situation in Afghanistan in 1994, as one in which large scale human rights violations occurred. Indeed:

"The UN's Special Rapporteur on Afghanistan concluded that "As Afghanistan has no effective central government, the imputation of state responsibility in international law is problematic". The warring factions not only failed to protect the human rights of civilians, but often wantonly violated those rights by specifically targeting non-combatants. Gunmen affiliated with the 10 armed factions were often responsible for assassinations, looting, rapes and kidnappings for ransom. Combatants from several factions blocked food and medical supplies desperately needed by displaced people in the Kabul, Kunduz and Taloqan areas."

THE APPELLANT'S CASE

The appellant is a 43 year old, married man born in G, Afghanistan. He has two brothers and two sisters. Both of his brothers have been missing since 1993 and 1995 respectively. The appellant's two sisters who are married remain living in Afghanistan. His parents, however, are now living in P, in Pakistan.

The appellant first married in 1970. His wife died in 1973. Their son, A, lived with the appellant until he reached the age of 18 years. Since that time he has lived with the appellant's uncle. In 1975 the appellant re-married. He has six children by this marriage. His present wife, their six children and A are currently living in Pakistan, having fled Afghanistan approximately one week after the appellant's own departure.

In 1971 the appellant entered K university to study law, graduating in 1975. During his university years the appellant studied various subjects including criminal law, international law, commercial and family law, as well as the common law, Indian and Islamic legal systems.

In 1973 King Mahmoud Dahoud Ashar fled Afghanistan for Italy, having been deposed by his cousin in a military coup d'etat. Although not formally recognised as the legitimate government in power by referendum or national elections, the National Revolution Party assumed power at this time.

Upon graduation, the appellant was required to perform the requisite six months 5military service which had previously been deferred in view of his studies. Throughout his service, the appellant was ranked as a trainee soldier.

The appellant encountered some difficulty in obtaining a legal appointment following completion of his military service. This was primarily due to the fact that legal appointments had previously been made under the former King's prerogative and that no legal framework had yet been established to facilitate such appointments under the new regime. Finally, the appellant was accepted by the Ministry of Justice as a trainee judge, being appointed as assistant prosecutor in P province.

The appellant was able to explain the legal system to the Authority in some detail. Whereas the police were responsible for identifying suspects to be investigated, a criminal prosecutor would carry out an independent investigation, having in terms of the Afghanistan legal system, a right to detain a suspect for one week before he can be charged. If the investigation has yet to be completed, an application can be made before a judge to extend this period.

Any physical evidence against the suspect was included in the file particulars. As assistant prosecutor, the appellant sometimes assisted in compiling the pleading sheets, and bringing the matter to court recommending appropriate punishment before a presiding judge. The appellant worked as a trainee judge for some six months.

In 1978, some fifteen days after the Revolution (in which the PDPA, led by Noor Mohammed Taraki as President of the newly formed Revolutionary Council, assumed power), the appellant was sent to O to assume the position of state prosecutor. In this capacity, the appellant provided assistance to the Attorney General. The appellant's wife and family remained in G.

From May 1978 until October 1978, at the behest of the Governor, the appellant was also required as part of his duties to conduct political investigations of suspects. Following the Revolution, the PDPA had yet to establish the state apparatus responsible for such investigations. The appellant was therefore required to handle this caseload until a formal organisation could be set up. Given the sensitive nature of such work, the appellant was required, in order to satisfy the PDPA provincial committee, to become a PDPA member.

According to the appellant, most of the suspects had been arrested by force by the PDPA to determine the extent of their political activity. Many were in fact innocent and, unless they had contacts within the PDPA who could help them, would subsequently be sentenced to death. In the appellant's own words, the interrogation process which he was required to take part in was a mere formality.

Therefore, while the appellant continued with his legal work during the day, he conducted political investigations at night. Police would contact the appellant whenever they had a political suspect requiring interrogation, and escort him to the jail. He would then be provided with the suspect's report, although not the complete file as this was regarded as confidential. He received no other briefing.

Initially the appellant would attempt to establish with the suspect details such as his name, the names of family members and friends, and whether the suspect had any political opinions or associations. If the suspect proclaimed his innocence, this was a matter which was also recorded by the appellant. At the conclusion of the interview, the appellant, having compiled this information in the form of a statement, would subsequently hand this over to his superiors. The suspect would then be fingerprinted.

For security reasons, all interrogations were conducted in the presence of an armed policeman. The appellant said that it was the policeman's job to create "suitable conditions" in which he could carry out his investigations. There would, for example, be some cases when the suspect refused to provide any information or answer the appellant's questions. It was on these occasions that the policeman would, if he considered it appropriate, intervene by either beating the suspect or verbally abusing him. These police beatings lasted between three and five minutes. The appellant estimated that around 10 percent of the interrogations he conducted involved police intervention of this nature.

Whenever police beatings occurred, the appellant said he would remain in the interrogation room and smoke a cigarette. Sometimes he would go outside the room for a smoke, and wait five or 10 minutes, before re-entering. Upon his return, he would plead with the suspect to answer his questions, saying that it was in his best interests to do so.

The appellant also told the Authority that he often learned that, having completed his interrogation, suspects who had been unco-operative were subsequently revisited by police and beaten with electrical batons. These methods were never employed in the appellant's presence.

The appellant sought to emphasise at the hearing that he never personally instructed the use of police force against political suspects. Rather, he was an unwilling witness to these beatings who could not complain. The appellant relies in this regard on the Governor's order that he maintain good relations with the police. The appellant stated however, that whenever it was clear that a particular suspect would sustain serious physical injury during these beatings, he would try to intervene. He was not, however, always successful.

Nor, in the appellant's view, could he have avoided being involved in these interrogations altogether, as this was a task specifically assigned to him by the Governor. Had he refused to do so, the appellant considers he would himself have been accused of being anti-government, and also subject to imprisonment.

The appellant carried out these investigations for some six months, before the "Khad" or secret police was formed to assume responsibility for such investigations. From October 1978 until 1981 the appellant continued working for the Governor of O as state prosecutor.

Following the Soviet invasion of Afghanistan in 1978, there was marked political change. According to the appellant, the government installed by the Soviets blamed all the past atrocities inflicted by the PDPA on former PDPA chiefs. In 1981 the Governor of O, together with six other PDPA party members, were murdered by so-called "anti-government elements", causing the appellant grave concern about his own safety.

On the pretext of wanting to re-unite with his family in K, the appellant formally applied for a transfer from the vice-Minister of Justice. His request was subsequently granted, and the appellant was thereafter transferred to work for the Statistics Department in K as a statistics officer. A substitute prosecutor for O was appointed to replace him.

After working two years with the Statistics Department the appellant was subsequently transferred in 1983 to work in G as head of the statistics department there. He became responsible for the collection of statistical data relating to all sectors of the economy, and was directly accountable to the Governor of G. The Governor also required the appellant to attend political meetings. He would be responsible for any political marches to be held. He would also sometimes meet with the Secretary of the Provincial Committee who would request maps and statistical data on the age distribution and population of a particular village. As member of the Administrative Council the appellant would attend weekly meetings to discuss any problems, such as theft of state property and other matters. The appellant remained in this capacity for some five years until 1988.

In 1988 the appellant returned to K as Director-General of Statistics. In early 1989 he was appointed as an advisor to the General Director of Statistics. In 1990 he was subsequently appointed in K as Director-General of Public Health Statistics. Later the same year, the appellant went to India as Afghanistan's representative on a fellowship with the United Nations. Following his return from India, he was re-appointed as legal adviser to the Statistics ministry. Following the take-over by the Mojahedin in April 1992, the appellant's role was re-defined as the Director-General of Training in K.

The appellant said that immediately following the Mojahedin's assumption of power he was not unduly concerned about his position. The Mojahedin had declared an amnesty in respect of those having served the former government. The transition to a new government was being handled under the guidance of the United Nations representative, Benan Swan with the support of the military. In the initial two month period following the take-over, Sibghatullah Mojadeddi led the governing Council of representatives of the Mojahedin resistance. There was no violence, and the situation appeared to be stable.

In June 1992, Burhanuddin Rabbani was appointed the President of the newly established Islamic Republic of Afghanistan to govern the country until an interim government could be established. The appellant said that even at this time there was not much violence. Although there was some evidence of violence towards former government officials, he considered that such transgressions would be dealt with as a matter of criminal law, in light of the recently announced amnesty.

Prior to December 1992, as work at the office had come to a standstill, he merely visited his workplace to register his attendance so that he could collect his salary as usual. He would have short discussions with other colleagues before returning home once again.

In December 1992, although Burhanuddin Rabbani announced upcoming presidential elections, the appellant said that, in reality, he re-appointed himself as President of Afghanistan for a further period. Other political groups did not accept the legitimacy of such appointment in the absence of a democratically held election or referendum. This resulted in violent conflict between Rabbani's government and political opposition parties. It was also around this time that a noticeable number of PDPA members or former government officials "disappeared" or lost their lives. The appellant cited, by way of example, the Head of the Supreme Court of Afghanistan, the Governor of Ghazni and the Minister of Power all being found killed in the street. The Director-General of the Central Statistics Organisation, the Director of Statistics and an official from the Ministry of Agriculture are also known by the appellant to have "disappeared", and never seen alive again. According to the appellant, some 200 former government officials of various ministries also "disappeared".

Once such violence began, the appellant ceased going to work altogether. Through a friend who worked at the hospital, the appellant was able to obtain a medical certificate which entitled him to seven months medical leave. He continued to be paid throughout this period.

One day in 1993, the appellant's brother, H, left his house to obtain some supplies but never returned. Subsequent efforts to determine his whereabouts has proved fruitless. The appellant said it was likely that most families in Afghanistan would have experienced the disappearance of one of their family members around this time. The appellant believed that the abduction by the Mojahedin of youths to help fight for their cause was a widespread practice. Notwithstanding this, the appellant has no information on his whereabouts or whether his brother is even still alive.

In mid-1993 this certificate expired. The appellant was therefore no longer receiving any salary. In view of the deteriorating situation, the appellant, together with his family, moved to live with his parents in another part of K, (known as KK 2) in December 1993. By this time the Islamic Group, which had assumed control of this area, had given way to the Jamiat-e-Islami faction of the Mojahedin.

In the first five month period of living in KK2, the appellant did not encounter any problems. They had a good relationship with the neighbours. It was not until around May 1994 that the appellant received news from a neighbour that persons armed with guns were making enquiries about the appellant, referring to him by name and in his capacity as head of the Statistics Department, and enquiring about where he lived. Despite warnings that he should move, the appellant told the Authority that he considered his options limited, and given the likelihood that he would be discovered if he moved, he remained living at his parents' house for a while longer, waiting in case of further developments.

On 20 November 1994, persons believed to be part of the Mojahedin approached the appellant's father, demanding that the appellant be handed over to them. The appellant had escaped to hide at his neighbour's house at this time. The appellant's father was told that he would have to produce the appellant, whom they knew was living him, otherwise he would be killed. The father was given one week to produce the appellant.

The following day, the appellant's father arranged for one of his friends to drive with the appellant to P in Pakistan, where an uncle lived. It was arranged that the remainder of the appellant's family would remain behind but meet up with him in Pakistan at a later stage. The appellant travelled with two to three women and their children in a Datsun car. In the course of their journey, they did not meet with any problems. Despite not having any documents, the appellant was able to bribe the border police to allow him safe passage across the border in to Pakistan.

Upon his arrival in P, the appellant learned from his uncle that the situation was equally dangerous for him in Pakistan, as members of the Mojahedin were also targeting newcomers there. Through the assistance of his uncle's contacts, the appellant was able to obtain a false Afghanistan passport and other travel documents facilitating his travel to New Zealand. On 27 November 1994, the appellant left Pakistan arriving in Malaysia in December 1994. After approximately one month's stay, the appellant, with the assistance of an agent, left Malaysia bound for New Zealand, arriving in this country on 1 January 1995.

Since his arrival in New Zealand, the appellant has learned that his parents, wife and family are presently in P, in Pakistan. In 1995 his other brother, HA, left Pakistan for Afghanistan to organise the sale of his house in G, but was captured there upon his return by the Mojahedin. His current status is unknown.

The appellant fears, in view of his former status as a government official having served in political appointments under the former Najibullah regime, he would likely be blacklisted and killed by the Mojahedin, if he returned to Afghanistan today.

In support of his claim, the appellant submitted copies of the following documents:

(a)his identity card (undated);

(b)school-leaving certificate evidencing completion of his college education in 1969;

(c)university degree evidencing completion of his degree in law and political sciences in 1975 ;

(d)army release form evidencing the appellant's six month military service in 1975;

(e)promotion approval of 1979 signed by the Attorney-General authorising the appellant's promotion to one level higher in rank due to his service as primary prosecutor of O province;

(f)officers and employee identity card dated 14 June 1983, evidencing the appellant's service as General-Director of the Statistics Department in G province;

(g)directive from the Governor of G that the appellant be allowed safe passage to attend a seminar in K.

(h)certificate of identity issued by the New Zealand Immigration Service;

(i)certificate evidencing the appellant's participation in a 14 week course in sampling and household survey methodology from 12 February to 18 May 1990, under the auspices of the National Household Survey Capability Programme of the United Nations.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees relevantly provides that a refugee is a person who:-

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

In the context of this case, the four principal issues are:

1. Is the appellant genuinely in fear?

2. Is it a fear of persecution?

3. Is that fear well-founded?

4. Is the persecution feared persecution for a Convention reason?

In this regard, the Authority refers to its decision in Refugee Appeal No. 1/91 re TLY and Refugee Appeal No. 2/91 re LAB (11 July 1991). In the same decision, the Authority held that in relation to issue 3, the proper test is whether there is a real chance of persecution.

ASSESSMENT OF THE APPELLANT'S CASE

We consider first the issue of credibility. We found the appellant to be materially consistent in all respects of his account between the RSB and before this Authority. The appellant impressed as a man well-versed in the intricacies of the legal system in Afghanistan and the prevailing political climate of Afghanistan over various periods of time. His answers were detailed and delivered in a frank manner without exaggeration or embellishment. We have no difficulty in finding that the appellant does have a genuine, subjective fear. We further find that the harm which he fears, namely death at the hands of the Mojahedin government, is of sufficient gravity to amount to persecution.

We further consider that the appellant's fear is well-founded. There is considerable country information to suggest that persons such as the appellant, namely well-educated government officials, continue to be at risk from all factions of the Mojahedin.

In the Amnesty International Report entitled "Afghanistan: Incommunicado Detention and Disappearances" (April 1994), the situation was summarised as follows:

"Dozens, perhaps scores, of people, including members of the former government and the army, but also ordinary civilians, are reportedly held in incommunicado detention or have "disappeared" in Afghanistan at the hands of both government and opposition forces. Many of these prisoners are held as hostages or to extract money from relatives; they appear to be detained in private jails at undisclosed locations. Amnesty International considers many of them to be prisoners of conscience and is gravely concerned about their safety."

A subsequent Amnesty International report entitled "Afghanistan: The Human Rights Crisis and the Refugees" (February 1995), at page 2, described the situation in Afghanistan as follows:

"Grave human rights violations are reported from all parts of the country and are reportedly perpetrated by virtually all the armed Mojahedin. In a number of areas, some political or ethnic groups may be temporarily safe, but the changing political alliances and the frequent changes in the control of territory, can create an unexpected political atmosphere conducive to human rights violations.

"... In Afghanistan, all sections of the population have been subjected to human rights violations and continue to be at risk of being subjected to further human rights violations including torture and killings. Those most at risk include members of specific ethnic, religious or political groups in areas controlled by warlords hostile to them, educated Afghan women, secular-minded individuals, Afghan academics and professionals, officials of the former government and journalists covering the political crisis." (Own emphasis added).

And later, at page 5:

"... There is no civilian political structure with substantive authority in place, and armed political groups are able to act with total impunity. The judicial system is virtually non-existent in most parts of the country and armed faction leaders sentence prisoners to execution, stoning to death or whipping, with no legal safeguards. In a few areas, Islamic courts are reported to conduct trials leading, in some cases, to public flogging or execution. Thousands of people have been unlawfully imprisoned in detention centres maintained by Mojahedin factions on grounds of political opinion, religion or ethnic origin. Hundreds of people have "disappeared"."

In a summary of the same report, it is stated:

"No effective central authority has yet been established in Afghanistan, and the UN efforts to promote a broad-based government acceptable to the various factions have so far been unsuccessful."

In the most recent Amnesty International Report entitled "Afghanistan: The World's Responsibility" Amnesty International Briefing (November 1995) at page 4, the political crisis in Afghanistan is said to continue unabated:

"Some of the killings are motivated simply by revenge. Others are rooted in hostility to rival ethnic and religious groups, or hatred of educated individuals or former government officials. Whatever the motive, the pattern is always the same: armed guards can kill anyone they please; for the unarmed victims, there is no-one to turn to for protection.

In one incident in May 1992, a man suspected of being a member of the former ruling party was arrested in the Ministry of the Interior by the armed guards of Shur-e Nezar. Eyewitnesses said that an armed guard tied him up and kicked him down a flight of stairs. On the ground floor, a Mojahedin fighter allied to the new government reportedly clubbed him with a rifle butt. He then reportedly fired at least 10 bullets ..."

And later:

"The vast majority of those held in unacknowledged detention are people suspected of supporting a rival faction or associated with previous governments."

The Authority accepts that in the six months prior to his departure from Afghanistan, the Mojahedin were actively seeking the appellant. Indeed, in November 1994, members of the Mojahedin demanded of the appellant's father that, if he did not produce the appellant, he would be killed. We are also willing to accept counsel's submission that the nature of the Mojahedin organisation, as a fundamentalist Islamic group, directly conflicts with the appellant's past ideological involvement. For example, the appellant, as head of the Department in G, was deeply involved in political meetings as a loyal government official. He had also played an instrumental role in the interrogation of political suspects prior to the establishment of the secret police. There is consistent and recent country information to suggest that persons such as the appellant, namely former government officials, were being specifically targeted by the Mojahedin, notwithstanding their initial amnesty declared shortly after the take-over in April 1992. The Authority therefore finds that there is a very real chance that, upon his return to Afghanistan, the appellant would be apprehended and most likely tortured and killed, due to his prior service for the former regime.

Finally, we consider, in terms of Issue 4, whether the harm feared by the appellant is related to a Convention reason. We find that the appellant's fear is based on the adverse political opinions which would be imputed to him by members of the Mojahedin, due to his previous service under the Najibullah regime.

Counsel also submitted that the appellant is a member of a particular social group, namely servants of the former regime. However, in light of the Authority's findings in favour of the appellant on the issue of an imputed political opinion, no useful purpose would be served by further considering this alternative argument that the appellant is a member of the particular social group framed.

EXCLUSION

There is, however, the issue of whether the appellant, having met the criteria of Article 1A(2) of the Refugee Convention, would nevertheless be excluded from the operation of the Convention by virtue of Article 1F. Article 1F of the Convention provides:

"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;

(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)he has been guilty of acts contrary to the purposes and principles of the United Nations."

Counsel submitted that, although the appellant had not committed any of the crimes referred to in Articles 1F(b) or (c) of the Convention, in terms of Article 1F(a), the appellant could not be said to have committed any crimes against humanity. Counsel submitted that:

(a)the appellant was merely involved in the taking of statements from persons regarded as political suspects. He was not part of the decision-making process by which such persons were identified as being politically suspect. Counsel drew the analogy that the appellant's role was akin to that of a solicitor taking an affidavit, or of a judicial officer taking a confession. It was further submitted that the appellant was merely "part of a process", not being directly involved in any crimes against humanity himself.

(b)the totality of the appellant's involvement should be considered. This included his evidence that he felt compelled to take part in the process, and that had he refused to do so, he would himself have been accused of committing a political crime.

(c)Finally, counsel made reference to the fact that the appellant, in any event, was involved in conducting these investigations for only six months and that this took place some considerable time ago.

Regarding Article 1F(a), Professor Hathaway, in The Law of Refugee Status (1991) at page 216 writes: -

"As customarily interpreted, this exclusion clause therefore bars those who commit three distinct type of crime. First, a "crime against peace" comprises the planning of or participation in an unlawful war. Second, a "war crime" involves the violation of a law of war, including the mistreatment of civilians and prisoners of war, or the infliction of unjustified property damage during wartime. Third, a "crime against humanity" consists of fundamentally inhumane conduct, often grounded in political, racial, religious or other bias. Genocide, slavery, torture and apartheid are examples of crimes within this category."

Further, in Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 F.C. 433 (FC:CA) at page 443 Linden J.A., in considering the definition of "crimes against humanity" said:

"As one Canadian commentator, Joseph Rikhof, supra, at page 30 has noted:

"This requirement does not alone mean that a crime against humanity cannot be committed against one person, but in order to elevate a domestic crime such as murder or assault to the realm of international law an additional element will have to be found. This element is that the person who has been victimised is a member of a group which has been targeted systematically and in a widespread manner for one of the crimes mentioned ..."

Another historic requirement of a crime against humanity has been that it be committed against a country's own nationals. This is a feature that helped to distinguish a crime against humanity from a war crime in the past. (See the Flick Trial, supra, as well as the Justice Trial, supra). While I have some doubt about the continuing advisability of this requirement in the light of the changing conditions of international conflict, writers still voice the view that they "are still generally accepted as essential thresholds to consider a crime worthy of attention by international law" (Rikhof, supra, at page 31)."

For the avoidance of doubt, Article 1F(a) requires merely that there be "serious reasons for considering" that the individual has committed a crime against humanity (refer Refugee Appeal No 1248/93 Re TP (31 July 1995) 32).

The Authority, in its previous decision Refugee Appeal No 1248/93 Re TP (31 July 1995) at pages 32 to 35, has discussed at length the relevant principles which have been adopted in the application of Article 1F(a). We do not intend to repeat them in their entirety here. However, in the interests of clarity, it is worthy of mention that, while it is clear that someone who personally commits physical acts that amount to a crime against humanity is responsible, it is also possible to be liable for such crimes as an accomplice, even though one has not personally done the acts amounting to the crime. A person who aids in, or encourages the commission of a crime, or a person who willingly stands guard while it is being committed, is usually responsible. This would depend on the facts of each case. See Re TP (supra).

Where an organisation is principally directed to a limited, brutal purpose, mere membership may, by necessity, involve personal and knowing participation in persecutory acts (see Ramirez Vs Canada Minister of Employment and Immigration [1992] 2 FC 306 (FC:CA) at page 317. This point was expanded in Sivakumar at 439-440:

"Another type of complicity, particular relevant to this case, is complicity through association. In other words, individuals may be rendered responsible for the acts of others because of their close association with the principal actors. This is not the case merely of being "known by the company one keeps". Nor is it a case or mere membership in an organisation making one responsible for all the international crimes that organisation commits (see Ramirez, at page 317). Neither of these by themselves is normally enough, unless the particular goal of the organisation is the commission of international crimes. It should be noted, however, as MacGuigan J.A. observed: ‘someone who is an associate of the principal offenders can never, in my view, be said to be a mere onlooker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts' (Ramirez, supra, at page 317).

In my view, the case for an individual's complicity in international crimes committed by his or her organisation is stronger if the individual member in question holds a position of importance within the organisation. Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organisation's purpose in committing that crime. Thus, remaining in an organisation in a leadership position with knowledge that the organisation was responsible for crimes against humanity may constitute complicity. In Crimes Against Humanity in International Criminal Law (1992), M Cherif Bassiouni states, at p 345:

"Thus, the closer the person is involved in the decision-making process and the less he does to oppose or prevent the decision, or fails to dissociate himself from it, the more likely that the person's criminal responsibility will be at stake."

In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organisation. Mr Justice Robertson noted this point in Moreno, supra, when he stated [at p324]:

"[T]he closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach."

Of course, as Mr Justice MacGuigan has written, ‘law does not function at the level of heroism', (Ramirez, supra, at p 320). Thus, people cannot be required, in order to avoid a charge of complicity by reason of association with the principal actors, to encounter grave risk to life or personal security in order to extricate themselves from a situation or organisation. But neither can they act as amoral robots."

It is in this context that we examine the appellant's actions in his capacity as a government official serving the governor in conducting investigations of political suspects.

The Authority considers that there are serious reasons for considering that crimes against humanity (namely police beatings, torture and summary executions) were being committed against persons who were perceived by PDPA of being opponents of the regime. The issue for this Authority, however, is whether the appellant can be said to have been involved in the commission of such crimes by complicity.

For the avoidance of doubt, we consider that the remoteness in time of any acts which may be considered "crimes against humanity" have no bearing on the issue of whether, in terms of article 1F(a), there are serious reasons for considering a person has committed such a crime. We find, therefore, that the fact that the appellant's involvement in interrogations occurred as long ago as May 1978 does not, of itself, cause him to be excluded from the ambit of this particular proviso.

The Authority is nevertheless mindful, in terms of paragraph 149 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, that "considering the serious consequences of exclusion for the person concerned, however, interpretation of these exclusion clauses must be restrictive." We have also considered carefully Mr Justice MacGuigan's comments in Ramirez (supra) that "law does not function at the level of heroism", and that "people cannot be required to encounter grave risk to life or personal security in order to extricate themselves from a situation or organisation".

On the particular facts of this case, we do not consider that the appellant should be excluded from recognition as a refugee in terms of Article 1F(a). In reaching this conclusion the Authority has considered the fact that, despite his relatively senior appointment under the Governor, the police force were a separate arm of the government, outside the appellant's province of control. Moreover, the beatings carried out by the police through the use of electrical batons, were never a formalised part of the interrogation process, but were arbitrary actions carried out by the police independently of the appellant's interrogations. We have further accepted the appellant's evidence that, had he refused to comply with the Governor's command, either by refusing to take part in the investigations altogether or, implicitly, by opposing police methods, he would, most likely, have been perceived as being politically suspect himself. We are also willing to accept that, in that event, the appellant would have been subject to similar arbitrary treatment as a result of adverse political opinions being imputed to him. The Authority has also taken into consideration the appellant's evidence that, to some extent, he had attempted to intervene, albeit sometimes unsuccessfully, whenever police beatings during interrogations were particularly serious.

Having considered all of these factors cumulatively, the Authority finds that the provisions of Article 1F(a) have no application to the appellant's case.

CONCLUSION

1. The appellant holds a bona fide subjective fear of returning to Afghanistan.

2. The harm feared by him is of sufficient gravity to constitute persecution.

3. There is a real chance of the feared harm occurring were he to return to Afghanistan.

4. The harm feared by the appellant is connected with or related to the Convention reason of his imputed political opinion.

5. The appellant is not excluded from the Refugee Convention by virtue of Article 1F(a).

For these reasons we find that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed.

Chairperson