Revoking the citizenship of an alleged war criminal

Institute for the Research of Genocide Canada
Published: October 17, 2011  

Revoking the citizenship of an alleged war criminal

By Christopher Guly
October 21 2011 issue

Branko Rogan leaves on lunch recess from Federal Court in Vancouver, B.C. [Ian Smith / Vancouver Sun]

In the first attempt to revoke Canadian citizenship from a person implicated in a war crime or crime against humanity committed after the Second World War, the Federal Court recently ruled that an alleged Serbian war criminal, who requested the court reference, obtained his Canadian citizenship in 1997 by “false representation or fraud or by knowingly concealing material information.”

In Canada (Minister of Citizenship and Immigration) v. Rogan, [2011] F.C.J. No. 1221, Justice Anne Mactavish concluded that Rogan, who was self-represented during the springtime hearing in Vancouver, participated, “both directly and indirectly, in the mistreatment and torture of prisoners held” at detention facilities in Bileca, Bosnia-Herzegovina, in June and July of 1992. He “knowingly concealed this information from Canadian immigration officials in the course of his application for permanent residence,” wrote Mactavish in her decision.

The judgment “sets a standard” in its factual findings based on the evidence and in reviewing the requirements to determine crimes against humanity, says Rosemarie Schipizky, who was lead counsel for the plaintiff and serves as senior counsel and regional manager of litigation services for Justice Canada in Vancouver.

Based on eyewitness evidence from four Bosnian Muslim detainees held at the facilities, Mactavish found Rogan was “personally aware” of the “inhumane conditions” facing prisoners “simply because they were Muslim men living in Bileca.” The court also found that Rogan, now 49, was “directly involved in the physical abuse of prisoners,” by either being “complicit” or actually beating them. He was not “acting under duress” during the time that he was a prison guard at the detention facilities.

When he applied for permanent residence as a refugee at the Canadian embassy in Belgrade in 1994, Rogan “knowingly concealed his employment as a reserve police officer working as a prison guard at Bileca in June and July of 1992,” Mactavish wrote. “Disclosure of this information would almost certainly have led to a finding that Mr. Rogan was ineligible for refugee protection and inadmissible to Canada.”

The judge outlined what must be established to determine whether Rogan made a false representation or knowingly concealed information.

She said the federal immigration minister — in this case, Jason Kenney — “need only show that Mr. Rogan gained entry to Canada by knowingly concealing material circumstances which had the effect of foreclosing or averting further inquiries.” To find whether someone knowingly concealed such information under s. 10 of the 1985 Citizenship Act, Mactavish referred to previous decisions — including Canada (Minister of Citizenship and Immigration) v. Odynsky, [2001] F.C.J. No. 286 — which stated “the court must find on evidence, and/or reasonable inference from the evidence” that a person had the “intent of misleading the decision-maker.”

Most importantly, in Schipizky’s view, is that the Federal Court found Rogan met the four tests to establish the existence of a crime against humanity that the Supreme Court of Canada outlined in a case involving the Rwandan genocide, Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39.

In applying the four elements to Rogan’s case, Mactavish found he committed an “enumerated proscribed act” of persecution identified in the Criminal Code definition of crimes against humanity and defined by the Supreme Court in Mugesera as “the gross or blatant denial of a fundamental right on discriminatory grounds.”

She also found the second and third elements in Mugesera — requiring the act to have been committed as part of a “widespread or systematic attack” against a civilian population or identifiable group of people — were also met. In this case, Muslim men in Bileca were rounded up and imprisoned in June 1992 by forces of the Republika Srpska, including the military and reserve police, of which Rogan was a member, that led to the eventual ethnic cleansing of the Bosnian Muslim civilian population by Serb authorities.

The court concluded Rogan “knew of the attack,” as set out in the requirement of the fourth element in Mugesera, based on the evidence that demonstrated he was aware of the torture and abuse of Muslim detainees and that he “played an active role in the mistreatment of prisoners.”

In her conclusion, Mactavish noted the court did not have to establish beyond a reasonable doubt whether Rogan was guilty of a crime against humanity under the Criminal Code. Rather, the court’s role was to establish whether, on a balance of probabilities, he made false representations or concealed material information in his application for permanent residence. Her answer: Rogan did.

It is now left to Kenney to ask the federal cabinet to revoke Rogan’s Canadian citizenship.

However, the process might not be as straightforward as that, warns Montreal immigration lawyer Dan Bohbot. “If he doesn’t have dual citizenship, he will become stateless and Canada should not do that because it would contravene the 1961 United Nations Convention on the Reduction of Statelessness.”

Originally published on the Lawyers Weekly, Vancouver

http://www.lawyersweekly.ca/index.php?section=article&volume=31&number=23&article=3

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