CHAPTER THREE REFUGEE CLAIMS BASED ON THE COMMISSION OF A POLITICAL OFFENSE

3.1.1 Exclusion Based on Commission of a Serious Non-Political Crime
3.1.2 Inclusion Based on Commission of a Relative Political Offense

3.2.1 Dwomoh v Sava
3.2.2 Antonio v Canada (MEI)

3.3 Unfair Trial, Excessive Punishment and Extra-Judicial Harm

3.4 Conclusions regarding Refugee Claims Based on the Commission of Acts of Political Violence

Refugee Claims Based on the Commission of a Political Offense

[90] This Chapter deals with prosecution/persecution cases where the offense in question is truly analogous to those which are the concern of extradition law. In particular, the discussion concentrates on claims based upon serious acts of violence that potentially exclude the claimant from refugee status pursuant to Article 1F(b) of the Convention.

[91] In dealing with these claims, decision-makers often refer to factors that closely mirror those which extradition law uses to distinguish between common and political offenses.⁽²¹⁶⁾ Indeed, the political offense exception is sometimes explicitly cited, especially in cases involving Article 1F(b) of the 1951 Convention.⁽²¹⁷⁾ The same trend is found when examining academic texts⁽²¹⁸⁾ and practice guides.⁽²¹⁹⁾

[92] Where the offense is found to be a serious non-political crime, the claimant is excluded. In those cases where the offense concerned is deemed to be political, the question of inclusion within the Article 1A(2) definition arises. Most often, this issue turns on whether the offender will be persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion - the 'Convention reason requirement'. In my view, the case law contains meagre analysis of the appropriate relationship between commission of a political offense and the requirement that persecution be for a Convention reason. Extradition law principles have proven valuable in determining whether a claimant's actions were political or criminal, but the consequences of this determination have not been wholly thought through by adjudicators.

[93] The question of inclusion predicated on the commission of a violent political crime will be the primary focus of this Chapter. Both relative and absolute political offenses (as defined in the law of extradition) will be examined.⁽²²⁰⁾

3.1 Relative Political Offenses

3.1.1 Exclusion Based on Commission of a Serious Non-Political Crime

[94] Cases in which the principles of the political offense exception are applied, resulting in the exclusion of the claimant pursuant to Article 1F(b), are relatively commonplace. For example, the Canadian Federal Court of Appeal in Gil v Canada (Minister of Employment and Immigration),⁽²²¹⁾ while stressing the "... need for even greater caution in characterizing a crime as political for the purposes of applying Article 1F(b) than for the purposes of denying extradition,"⁽²²²⁾ nevertheless analyzed the case primarily in terms of the political offense exception. The claimant, a citizen of Iran, was involved in bomb and arson attacks directed at wealthy businessmen who were supporters of the Khomeni regime. These attacks routinely caused the injury and death of innocent bystanders. The Court accepted that Gil's actions were politically motivated⁽²²³⁾ and that a political disturbance existed at the time of the offenses.⁽²²⁴⁾ However, Mr Justice Hugessen excluded Gil because there was no link between the acts committed and the political aims sought,⁽²²⁵⁾ and moreover, the violence engaged in was "... wholly disproportionate to any legitimate political objective."⁽²²⁶⁾

[95] 'Proportionality' is also a feature of leading cases from other jurisdictions. In T v Secretary of State for the Home Department,⁽²²⁷⁾ the claimant, a citizen of Algeria and a member of the Islamic Salvation Front (FIS), was excluded from refugee status pursuant to Article 1F(b). The FIS is a political organisation which seeks, by both democratic and violent means, to establish a fundamentalist Islamic regime in Algeria. It was declared an illegal organisation by the Algerian Government in March of 1992. As a member of the FIS, T was involved in planting a bomb which killed 10 civilians inside Algiers airport. The English Court of Appeal observed that:⁽²²⁸⁾

"The less proportionate is the criminal offense to the political objective sought to be achieved, the more it savours of ordinary common law criminality, and less of political crime."

Applying this principle to the facts of the case, Lord Justice Glidewell stated:⁽²²⁹⁾

"In our judgment the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective. There was simply no sufficiently close or direct causal link between it and T's alleged political purpose. It offends commonsense to suppose that FIS's cause of supplanting the government could be directly advanced by such an offense."

Similarly, in McMullen v INS,⁽²³⁰⁾ the US Court of Appeals, Ninth Circuit, held that a violent act loses its political character if it is grossly out of proportion to the political objective or is of an atrocious nature.⁽²³¹⁾

3.1.2 Inclusion Based on Commission of a Relative Political Offense

[96] Where a decision-maker finds that the claimant is facing prosecution for having committed a political crime, the claimant cannot be excluded pursuant to Article 1F(b). For example, in Re KN,⁽²³²⁾ the New Zealand Refugee Status Appeals Authority found that the claimant's violent actions were predominately political in nature, and granted refugee status. KN was a member of a Kurdish separatist movement and a citizen of the Islamic Republic of Iran. He took part in the parcel bombing of an Iranian military officer who had been placed in charge of an operation involving the identification and arrest of a number of Kurdish separatists. Two other soldiers were killed in the bombing; there were no civilian casualties. KN was detained, interrogated, tortured and released only upon agreeing to become an informant inside the Kurdish movement. If returned to Iran, he feared criminal prosecution for his role in the bombing, or in the alternative, extra-judicial⁽²³³⁾ detention, torture and execution.

[97] The Authority found that the claimant was genuinely politically motivated, his activities were directed against the Iranian state itself and not private citizens, and the target of the bombing was purely military.⁽²³⁴⁾ Moreover, because the bombing incident was clearly intended as a means of preventing the arrest, torture and execution of members of the Kurdish separatist movement, there was, on the facts, proportionality between the good sought to be obtained and the harm inflicted.⁽²³⁵⁾

[98] Re KN illustrates the importance of context in assessing whether conduct is primarily criminal or political.⁽²³⁶⁾ The Authority discussed the political situation of the Kurds in Iran in considerable detail and concluded that:⁽²³⁷⁾

"Iranian Kurds are denied all forms of legitimate expression of their political opinion and aspirations. They have no legitimate means of changing the theocratic dictatorship by which they are ruled. They are denied their civil and political rights guaranteed under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 1966. ...

[T]he present Iranian government (as the Pahlevi dynasty before it), has engaged in a concerted campaign to deny Kurds their civil and political rights. The methods used have been, and continue to be, extreme. Iranian Kurds have no democratic means to achieve their goal of political autonomy. ...

Our assessment of the present situation is that the appellant's actions are, in the Iranian context, more fundamentally political than criminal and for that reason it is not possible to decline his application for refugee status on the supposed basis that he is fleeing from prosecution, not persecution."

[99] What are the consequences of a decision that a refugee claimant faces prosecution for commission of a relative offense? Must he nevertheless demonstrate that he is not being punished for his actions, but rather on account of his race, religion, nationality, membership of a particular social group or political opinion?

[100] In Re KN, having determined that the claimant's actions were more fundamentally political than criminal, the Authority went on to discuss very briefly whether the persecution feared was for a Convention reason.⁽²³⁸⁾ This part of the judgment is not a reconsideration of whether the claimant is merely being prosecuted for his criminal actions. Rather, the finding that KN has committed appellant political crime appears to preclude arguments that he merely faces prosecution. Instead, the Authority identifies several overlapping 'Convention reasons' on which the claim could be based, including race, religion, political opinion and membership of a particular social group. The discussion focuses on KN's marginalized status within the Iranian political context, not his subjective motivation in committing the offense in question, nor the state's motivation in seeking to punish him.⁽²³⁹⁾ This approach is consonant with a conception of refugee law as protecting at-risk individuals rather than punishing wicked states.

[101] In Gil v Canada,⁽²⁴⁰⁾ Mr Justice Hugessen of the Canadian Federal Court of Appeal excluded the claimant pursuant to Article 1F(b), but suggested (obiter) the following approach to the Convention reason requirement where the claimant is found to have committed a political offense:⁽²⁴¹⁾

"Since Article 1F(b) is stated as an exception to the definition of a refugee, the claimant against whom it is invoked is, ex hypothesi, in danger of persecution in the event of his return; if the crime is 'political', persecution for political opinion would therefore seem to be almost a foregone conclusion."

A 'mechanical' interpretation of this passage is that it simply means inclusion within the Convention definition should be considered prior to exclusion pursuant to Article 1F(b). The judgment in Gil itself, however, does not take this approach. Therefore, one may assert that Mr Justice Hugessen is speaking in 'conceptual' terms and suggesting that where a claimant faces prosecution for having committed a (relative) political offense, this constitutes persecution for reason of her political opinion, thus bringing her within the Article 1A(2) definition.

3.2 Absolute Political Offenses

[102] In the law of extradition, there is no obligation to extradite persons who have committed absolute political offenses such as treason and espionage.⁽²⁴²⁾ Thus, such offenses do not engender the careful weighing and balancing of factors associated with relative political offenses. Refugee claims involving absolute political crimes are rare, but not entirely unknown. This section will discuss two such claims: Dwomoh v Sava⁽²⁴³⁾ and Antonio v Canada (MEI).⁽²⁴⁴⁾

3.2.1 Dwomoh v Sava

[103] In Dwomoh v Sava, the claimant had taken part in a failed coup d'état against the government of Ghana. He faced prosecution for treason which is commonly viewed as an 'absolute' political offense in the law of extradition.⁽²⁴⁵⁾ There was no indication that Dwomoh had been unjustly accused as a means of punishing him for his political opinions or that he would be punished more severely because of his political opinions. Moreover, the Court rejected these requirements, albeit somewhat ambiguously, stating:⁽²⁴⁶⁾

"The Government argues that even if a person commits a political crime (such as treason), he should be denied refugee status unless the punishment is pretextual or its severity is heightened by the person's race, religion, nationality, membership of a particular social group or political opinion. But the inclusion of individuals accused of serious political crimes among those qualified as refugees is implied in the very structure of the Act. ... The explicit exclusion of persons who have committed nonpolitical crimes implies that individuals who have been accused of or even committed serious political crimes may qualify as refugees."

[104] At first glance, the above-quoted passage appears to suggest that commission of a serious political offense inevitably satisfies the requirement that persecution be for a Convention reason.⁽²⁴⁷⁾ However, this interpretation is undermined by the fact that the judgment goes to great lengths to show how, in the particular context,⁽²⁴⁸⁾ Dwomoh's actions constituted the expression of a political opinion:⁽²⁴⁹⁾

"The BIA [US Board of Immigration Appeals] held that because Mr Dwomoh had not expressed political opinions critical of the Ghanaian regime prior to the coup attempt, 'he is not facing prosecution for his political views but rather for the ... act of trying to overthrow the Government of Ghana.' In doing so, the BIA ignored the reality that in certain countries individuals who express opposition to the government are jailed, and in certain of those countries, an attempted coup is the only way to change the government. In such a country, a person desirous of changing the government would be ill advised to express his opposition publicly before attempting a coup. In that context, his political expression is embodied in his political act."

[105] The ostensible distinction between politically motivated acts and political opinions invoked by the Board of Immigration Appeals (BIA) is found in paragraph 84 of the UNHCR Handbook.⁽²⁵⁰⁾ In my view, the Court's response to this distinction - that in certain contexts a political act constitutes a political opinion - is artificial to say the least.⁽²⁵¹⁾ The factors relied on by the Court as providing the necessary context affect the legitimacy, reasonableness or, to borrow a term from extradition law, 'proportionality', of Dwomoh's actions. Indeed, the notion that an 'extreme' action is more likely to constitute a political offense where peaceful means of effecting change are unavailable, originates in the law of extradition.⁽²⁵²⁾ In effect, the Court is using concepts associated with relative political offenses to deal with the Convention reason requirement as it relates to an absolute political offense.

3.2.2 Antonio v Canada (MEI)

[106] It is useful to contrast the Dwomoh decision with Antonio v Canada (MEI),⁽²⁵³⁾ a Canadian case that also involved an absolute political crime. The claimant, an Angolan from the Cabinda region, was a telex agent for a government telecommunications facility. He relayed information concerning the location of government (MPLA) troops to FLEC and UNITA rebels who were engaged in a civil war with the Angolan Government. Eventually, Antonio's role was discovered and he was accused of treason. It is not clear from the judgment whether there was any judicial prosecution of the claimant,⁽²⁵⁴⁾ but the Court appears to accept that he literally escaped execution.

[107] The Canadian Immigration and Refugee Board (IRB) denied refugee status. On appeal, the Trial Division of the Federal Court summarized the IRB's reasoning as follows:⁽²⁵⁵⁾

"... the espionage committed by the applicant were (sic) acts committed with a political motive as opposed to political opinions per se. As such, the applicant's fear is not of persecution due to his political opinions; rather, his fear is nothing more than the regular fear of facing justice for the crimes he committed, which are punishable according to Angolan law."

The distinction drawn between political acts and political opinions is the same as that adopted by the BIA (and subsequently overcome by the Court) in Dwomoh.⁽²⁵⁶⁾ Endorsing this distinction in Antonio, Mr Justice Nadon observed:⁽²⁵⁷⁾

"There was no evidence before the Board that the applicant had, in effect, manifested his political opinions in any manner, shape or form prior to his agreeing to provide the requested information to the UNITA rebels. Thus, there are no political opinions (or activities) in respect of which it could be said that the Angolan authorities wish to punish the applicant. On the contrary, it is clear beyond doubt that the authorities wish to punish the applicant, not for his political opinions, but for a specific action namely providing to the enemy camp highly relevant information in the hope that this information would help the rebels defeat the government forces."

[108] During the period of Antonio's involvement, both the Angolan government and UNITA were committing systematic violations of international humanitarian and human rights law.⁽²⁵⁸⁾ Yet, unlike Dwomoh, the decision in Antonio contains almost no discussion of the political context in which the claimant committed his offenses. Also, Mr Justice Nadon's reasoning relies solely on the subjective motivation of the alleged persecutor, largely ignoring the objective nature of the act.

3.3 Unfair Trial, Excessive Punishment and Extra-Judicial Harm

[109] Both Dwomoh and Antonio faced the prospect of an unfair trial, excessive punishment and extra-judicial consequences if returned to their respective countries of origin. The role of these factors in determining whether a claimant is at risk of prosecution or persecution and, in particular, whether she is at risk for a Convention reason, is not altogether clear.

[110] In Dwomoh, the Court used US due process provisions as a touchstone when assessing whether the claimant would receive a fair trial if returned to Ghana. The decision stresses that:⁽²⁵⁹⁾

"No United States citizen is punished for treason without a formal charge, and the opportunity for a full trial and appeal. Mr Dwomoh has no such protections; he might be executed without being charged, no less tried. The BIA did not consider whether Mr Dwomoh would have due process protections or whether he would be punished arbitrarily."

[111] The prospect of an unfair trial was used primarily to undermine the BIA's reliance on US laws against treason and insurrection to justify its finding that Dwomoh faced legitimate prosecution. In my view, the approach most consonant with the Convention is that suggested by the New Zealand Refugee Status Appeals Authority in Re SK:⁽²⁶⁰⁾

"... the question whether the appellant would be able to secure a fair trial is only relevant if it can be said that the process of adjudication which ignores basic standards of fairness has been set up in such a way as to result in or support political or religious repression. In other words, the abuses (which the Authority accepts are legion in the Punjab) must be Convention-related. The Convention is not an instrument to provide a remedy where the justice system of the country of origin fails to meet general standards of fairness." (emphasis in original)

[112] With regard to excessive punishment, the UNHCR Handbook bluntly asserts that:⁽²⁶¹⁾

"... there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offense. Such excessive or arbitrary punishment will amount to persecution."

If the punishment faced by political offenders amounts to persecution for a Convention reason (their political opinion), then this provision adds little to our analysis. If, however, the link between commission of a political offense and satisfying the Convention reason requirement is not accepted, it is difficult to see why excessive punishment per se should constitute persecution. In my view, what is missing from the Handbook's approach is explicit recognition of the evidential role that excessive punishment may play in establishing the political nature of the crime in question. The state may mete out excessive punishment for a particular crime precisely because it perceives the offender's actions as a threat to its existence or authority.

[113] Harm not authorized by law such as torture or other mistreatment may also be evidence that the claimant is not viewed as an ordinary offender⁽²⁶²⁾ (admittedly, there are some states where common criminals and political offenders are equally at risk of torture). More importantly, however, such harm cannot be considered legitimate criminal prosecution. It is axiomatic that harm which is inflicted outside of the legal system cannot be dismissed by the incantation: 'prosecution not persecution.'⁽²⁶³⁾

3.4 Conclusions regarding Refugee Claims Based on the Commission of Acts of Political Violence

[114] Refugee claims based upon the commission of acts of political violence were not overlooked by the drafters of the Refugee Convention. Clearly, the IRO mandate had included political offenders, provided they were politically compatible, and the drafters of the 1951 Convention sought to retain this largely discretionary approach.

[115] In dealing with claims based on political violence, we are confronted with the anomalous situation that a refugee claimant may be returned to harm, yet if her country of origin had requested extradition the host state would have been bound to protect her as a political offender. Reference to the principles of extradition law which distinguish political from criminal offenses in determining such claims goes some way toward resolving this anomaly.

[116] In my view, Re KN⁽²⁶⁴⁾ exemplifies an approach to relative political offenders that is consistent with the role of refugee status should play in international law. Refugee law should be a means of protecting individuals who are unable to secure their basic human rights and unable to effect change within their home state. Therefore, the Convention should protect a claimant whose offense is in fact a genuine and justifiable (using international human rights norms as a touchstone) attempt to bring about such change.

[117] However, I hesitate to assert that all political criminals are refugees. As Justice Hugessen observed in Gil, "[i]t is one thing to refuse to return a political assassin; it is quite another thing to welcome him with open arms."⁽²⁶⁵⁾ Preserving the distinction between the granting of refugee status and the refusal to extradite is valid, particularly with regard to absolute political offenders. Non-extradition of political offenders is based not only on the belief that they will receive discriminatory treatment if returned, but also on the principle of non-intervention in the affairs of the state where the offense was committed. Thus, in relation to absolute political offenders, where the non-intervention rationale is strongest, extradition law does not insist that an offender's actions be proportional to her aims.

[118] In contrast, the refugee jurisprudence begins from the premise that a state's legitimate right to prosecute treason-like activities is predicated on it allowing normal avenues of achieving political change. It follows that refugee protection can only be premised upon political violence where other means of attempting change were not available. In other words, for the purposes of the refugee definition, absolute political offenders should be held to the same standards as relative political offenders.

Endnotes - Chapter Three

216. For example, see the following cases: McMullen v INS 788 F 2d 591, at 594 (9^th Cir. 1986):

"The nature and purpose of the offense require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a very close and direct causal link between the crime committed and its alleged purpose and object. The political element should in principle outweigh the common law character of the offense, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature."

Refugee Appeal No. 122/93 Re KN (5 August 1994) at 18-19 (NZRSAA):

"In determining whether the prosecution of an individual is for an ordinary criminal offense as opposed to a relative political offense, various factors must be considered. They include:

(a) Whether there is a genuine political purpose to the act.

(b) The extent of the linkage between the act committed and the political purpose being pursued.

(c) Most importantly, the proportionality of the good sought to be obtained in relation to the harm inflicted through the crime.

(d) The object and purpose of the law.

(e) The nature and extent of the punishment."

217. See, for example, T v Secretary of State for the Home Department [1995] 1 WLR 545 (CA); Gil, v Canada (Minister of Employment and Immigration) [1995] 1 FC 508 (FCA), and McMullen v INS, supra, note 216.

218. For example, see, Hathaway, (1991) at 174:

"It would, of course, be appropriate to consider the genuineness of the political purpose of the act (as distinguished from more typically criminal motives such as personal gain); the extent of the linkage between the act committed and the political purpose being pursued; and perhaps most important, the proportionality of the good to be attained in relation to the harm inflicted through the crime."

And, Goodwin-Gill, (1983) at 34:

"Whether prosecution and punishment amount to persecution in the sense of the Convention depends on the following factors: the object and purpose of the law, the precise motivation of the individual who breaches the law, the 'interest' which such individual asserts and the nature and extent of punishment."

219. See, for example, Kurzban, I, Kurzban's Immigration Law Source Book (1994) at 205-206:

"To determine whether a crime is 'non-political' under § 243(h)(2)(c), the court should apply the Convention and Protocol standard which involves: (1) a determination that 'genuine political motives' existed; (2) whether the act was directed toward modification of the political organization of the state; (3) whether a causal link exists between the crime and the political purpose; and (4) a balance of the political nature of the act with whether it was 'disproportionate to its objective' or 'of an atrocious or barbarous nature'."

220. See, discussion, infra, at paras [94-101] and paras [102-108], respectively.

221. [1995] 1 FC 508 (FCA).

222. Ibid, at 518.

223. Ibid, at 532. Commenting on the role of motive, the Court observed that "... a purely personal motive such as monetary gain or the settling of accounts with a hated adversary might serve to vitiate a claim that a crime was political..."

224. Ibid, at 533: "... in the years in question, Iran was a turbulent society in which a number of groups were in conflict with the Khomeni regime."

225. Ibid, at 533:

"There is, in my view, simply no objective rational connection between injuring the commercial interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies. ... Even if we accept (which the Board appears not to have done) that some of the businesses targeted were owned by highly placed members of local revolutionary committees, the nexus between such businesses and the general structure of the Government of Iran at the time appears far too tenuous to support or justify the kind of indiscriminate violence which the appellant admitted to."

226. Ibid, at 534:

"If an armed conflict is the occasion for political crimes the fact that some of the victims may be non-participants does not serve to make the crimes any less political. ... The crucial point in the present case is not merely that some of the victims were innocent bystanders but, much more importantly, that the attacks themselves were not carried out against armed adversaries and were bound to injure the innocent."

227. [1995] 1 WLR 545.

228. Ibid, 558.

229. Ibid, at 559-560.

230. 788 F 2d 591 (9^th Cir. 1986). McMullen was a member of the Provisional Irish Republican Army (PIRA) which was characterised by the Court as a terrorist organisation involved in random acts of serious violence in the United Kingdom.

231. Ibid, at 595, 598. See, also, the New Zealand Refugee Status Appeals Authority's decision in Refugee Appeal No. 29/91 Re SK (17 February 1992) at 14:

"... the Authority is of the view that proselytizing fundamental Sikhism at the point of a gun cannot be categorized as a genuine political or religious act. Indeed, there is no acceptable or logical link between the political or religious purpose being pursued and the shooting of an unarmed civilian. The deliberate killing or wounding of an innocent person can be properly described as an 'act of an atrocious or barbarous nature'. The injunction against killing or wounding innocent persons is a universal one and the Authority knows of no basis on which it could be justified on the present facts. In short, there is no proportionality between the good sought to be obtained in relation to the harm inflicted through the crime.

232. Refugee Appeal No. 1222/93 Re KN (5 August 1994) (NZRSAA).

233. The term 'extra-judicial' is used here and throughout this dissertation to indicate consequences not sanctioned by law.

234. Re KN, supra, note 232, at 19.

235. Ibid, at 21.

236. See also, Dwomoh v Sava 696 F. Supp. 970, 978-979 (SDNY 1988) discussed, infra, at paras [103-105].

237. Re KN, supra, note 232, at 20-22.

238. Ibid, at 22-28.

239. Thus, the Authority observes, ibid, at 27:

"The appellant is a Sunni Moslem and supports a political organisation (Komala) which has an explicitly secular programme. The Iranian regime, on the other hand, is a theocratic state based on the Shi'ite Islam. In such a state there is no differentiation between spiritual and temporal authority and Shi'ite Islam has become the overwhelming ideological force for social control."

240. [1995] 1 FC 508 (FCA).

241. Ibid, at 517.

242. See, discussion, supra, at paras [72-75].

243. 696 F. Supp. 970 (SDNY 1988) reviewing In re Dwomoh, A26 805 882 (BIA 1988).

244. Antonio v Canada (Minister of Employment and Immigration) (1994) 85 FTR 241 (FCTD).

245. See, discussion, supra at paras [72-75].

246. Dwomoh v Sava, supra, note 243, at 977-978. As well as relying on the structure of the Article 1 of the Convention, the Court refers to the protection of political criminals under the IRO Constitution (at p 976 of the decision).

247. This is the approach suggested in Gil, supra, note 240 and accompanying text.

248. In its discussion of the political situation in Ghana the Court relies on the following passage (supra, note 243, at 978, note 11):

"The PNDC under Chairman Rawlings exercises total executive, legislative, judicial and administrative power in Ghana (PNDC Law 42). There are no elections to governing organs and no current procedure by which citizens can freely and peaceably change their laws, officials, or form of government': United States Department of State, Country Reports on Human Rights Practices for 1985, Ghana (1986) 132."

249. Dwomoh v Sava, supra, note 243, at 979.

250. The UNHCR Handbook is discussed, supra, at paras [53-56]. Paragraph 84 states:

"Where a person is subject to prosecution or punishment for a political offense, a distinction may have to be drawn according to whether the prosecution is for political opinion or politically motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of prosecution will not in itself make the applicant a refugee."

251. See, also, the following passage from Dwomoh v Sava, supra, note 243, at 979:

"... in countries where there is no procedure by which citizens can freely and peacefully change their laws, officials or form of government, and where some individuals who express views critical of the government are arrested and held incommunicado for long periods without due process, a coup attempt is a form of expression of political opinion the prosecution of which can qualify as 'persecution' within the statutory definition of 'refugee'."

252. Supra, at para [78].

253. Antonio v Canada (Minister of Employment and Immigration) (1994) 85 FTR 241 (FCTD).

254. Ibid, at 247, the judgment cites counsel for the claimant's memorandum of arguments which asserts that the Antonio faced "summary execution, without a trial and due process".

255. Ibid, at 244.

256. See, supra, at para [105].

257. Supra, note 253, at 245.

258. See, the following commentaries on the Angolan civil war: Human Rights Watch, Angola: Arms Trade and Violations of the Laws of War since the 1992 Elections (1994) 1-8; Africa Watch, Land Mines in Angola (1993) 5-11; Africa Watch, Angola: Civilians Devastated by 15-Year War (1991); and US Committee for Refugees, the Long Road Home: Angola's Post-War Inheritance (1991) 2-5. It should also be noted that there has been massive overt and covert intervention by the USSR (MPLA) South Africa (UNITA) and the USA (UNITA) in the conflict.

259. Dwomoh v Sava, supra, note 243, at 978. Gilbert's criticisms, supra note 202 and accompanying text, seem appropriate with regard to the judgment's focus on US notions of due process and appeal rights.

260. Refugee Appeal No. 29/91 Re SK (17 February 1992) 15. This analysis is drawn primarily from Hathaway, (1991) 177.

261. Paragraph 85 of the Handbook, supra, note 125.

262. In my view, this is the implicit rationale behind the following passage taken from the US Federal Court decision in Dwomoh v Sava, supra, note 243, at 979:

"When a participant in an attempted coup has been beaten or tortured during detention, there is no doubt that he is being persecuted on account of his political opinion."

By comarison, the BIA's position that Dwomoh "... was subjected to mistreatment due to his refusal to provide information about the attempted coup d'état, not because of any political view he may hold" is unfathomable. (Dwomoh v Sava, supra, note 243, at 975).

263. See, for example, Padilla v Canada (MEI) (1991) 160 NR 156; 13 Imm LR (2d) 1 (FCA).

264. Refugee Appeal No. 1222/93 re KN (5 August 1994) (NZRSAA), discussed supra, paras [96-100].

265. Gil v Canada (Minister of Employment and Immigration) [1995] 1 FC 508, at 517-51/ (FCA) discussed supra, at para [101].