An Improved Test For Complicity in War Crimes
The United Nations Convention Relating to the Status of Refugees has long played a necessary role in ensuring the security of displaced persons around the globe. The Convention also ensures that this important goal is not undermined by excluding from protection individuals who are guilty of committing atrocities. Article 1F(a) of the Convention excludes from refugee status those for whom there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity.” Further, the Convention makes no distinction between principal perpetrators and secondary actors. Section 98 of Canada’s Immigration and Refugee Protection Act explicitly incorporates Article 1F(a) into federal law.
In Ezokola v. Canada (Citizenship and Immigration) 2013 SCC 40, the Supreme Court of Canada formulated a new contribution-based test for determining whether a refugee claimant is complicit in his or her government’s crimes. This unanimous decision, written by Justices LeBel and Fish, is a positive development in Canadian refugee law that eschews guilt by association and ensures that refugee protection is available to those that need it most.
The appellant, Rachidi Ekanza Ezokola, is an erstwhile employee of the government of the Democratic Republic of Congo (DRC). He began working for the DRC government in 1999 as a financial attaché. In 2004, he was assigned to the Permanent Mission of the DRC at the United Nations in New York. In 2007, he began serving as acting chargé d’affairs, which entailed leading the mission and speaking before the Security Council. The following year, Mr. Ezokola resigned this post and fled to Canada. Mr. Ezokola says he resigned due to his belief that President Kabila’s government is corrupt, antidemocratic, and violent. In his estimation, the DRC government would view his resignation as treasonous. Further, he alleges that the DRC’s intelligence service has harassed, intimidated, and threatened him because it suspects he has links to President Kabila’s opponent, Jean-Pierre Bemba. On this basis, Mr. Ezokola seeks refugee protection in Canada for himself and his immediate family.
In 2009, Mr. Ezokola had a hearing before the Immigration and Refugee Board – Refugee Protection Division. The Board excluded Mr. Ezokola from the Article 1F(a) definition of refugee on the basis that he was complicit in his government’s crimes against humanity as defined by the Rome Statute of the International Criminal Court and Canadian jurisprudence. The finding of complicity was based on multiple factors. In the Board’s view, Mr. Ezokola’s official rank suggested that he had “personal and knowing awareness” of the government’s crimes. The Board also found it noteworthy that Mr. Ezokola had voluntarily joined the government, and that he remained in its employ until he began to fear for his own safety. The Board concluded that Mr. Ezokola’s functions and responsibilities helped to sustain the government, and that the Board thus had serious reasons for considering him complicit in the government’s crimes.
The Federal Court granted Mr. Ezokola’s application for judicial review. The court held that an individual cannot be excluded from the definition of refugee under Article 1F(a) merely because he or she was employed by the government responsible for the crimes. Rather, complicity in the crimes requires a nexus between the refugee claimant and the crimes committed by the claimant’s government. According to the court, the requisite nexus could be “established by presumption if the claimant held a senior position in public service, where there are serious reasons for considering that the position in question made it possible for the refugee claimant to commit, incite or conceal the crimes, or to participate or collaborate in the crimes.” In Mr. Ezokola’s case, the court held that there was no evidence demonstrating any direct or indirect personal participation in the alleged crimes.
The Federal Court of Appeal disagreed with the Federal Court’s approach, deeming it overly narrow and inconsistent with existing Canadian jurisprudence. The Federal Court of Appeal stated, “a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate ‘personal and knowing participation’ in these crimes and be complicit with the government in their commission.” Concluding that the Board had erred in applying the “personal and knowing awareness” test rather than the “personal and knowing participation” test, the Federal Court of Appeal remitted the matter to a different panel of the Board.
The Supreme Court of Canada
In granting Mr. Ezokola leave to appeal, the SCC tasked itself with determining the correct test for complicity under Article 1F(a). In order to develop a new test, the SCC considered the Refugee Convention, international criminal law, and the approach to Article 1F(a) taken by other state parties to the Convention. In considering the purpose of the Refugee Convention and Article 1F(a), the Court held that Canada must adopt an approach that both reflects “the broad humanitarian goals” of the convention, and one which “protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage.” The Court’s consideration of international criminal law led it to conclude that indirect culpability was appropriate with respect to these crimes for, in Gerhard Werle’s words, “the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows.” The Court’s international law analysis focused largely on the Rome Statute in order to determine “the dividing line between mere association and culpable complicity.” The Court concluded that “complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group.” In considering the approaches taken by other state parties to the Refugee Convention, the Court concluded that adjudicators in jurisdictions like the U.K. and United States have applied Article 1F(a) “in a manner that adheres to the minimum requirements for complicity” set by international criminal law. In the SCC’s view, the Federal Court “rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity.” In contrast, “the Federal Court of Appeal’s reasons could be seen has having endorsed an overextended approach to complicity, one that captures complicity by association or passive acquiescence.”
The Court concluded from the above analysis that the Canadian approach to Article 1F(a) had to be reformulated in order to ensure that individuals are not wrongfully excluded from refugee protection through mere guilt by association. According to this new test, an individual will be excluded from refugee protection for complicity in international crimes “if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime.” There are thus three elements to complicity: voluntariness, significant contribution, and knowing contribution.
Voluntariness is a fundamental requirement of both domestic and international criminal law. Though the Court held that this element was not at issue in Mr. Ezokola’s case, it foresaw the possibility of cases “where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime.” The defence of duress is thus sufficient to prevent an otherwise complicit individual from being excluded under Article 1F(a).
The significant contribution requirement distinguishes between mere association and culpable complicity. The Court emphasized that since contributions of essentially any nature can be characterized as furthering a group’s criminal purpose, the degree of contribution must be carefully assessed in order “to prevent an unreasonable extension of the notion of criminal participation in international criminal law.”
The knowing contribution element requires that an individual have been aware of the group’s crime or criminal purpose and aware that his or her conduct would help further this purpose. The Court viewed this element as consistent with the mens rea requirement in Article 30(1) of the Rome Statute, which states, “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.”
The Court listed six factors that may assist decision makers in determining whether the actus reus and mens rea elements of complicity are established. These factors combine those considered by the Federal Court in Ryivuze v. Canada (Minister of Citizenship and Immigration), the U.K. Supreme Court in J.S., and the International Criminal Court in Mbarushimana. These factors are:
- the size and nature of the organization;
- the part of the organization with which the refugee claimant was most directly concerned;
- the refugee claimant’s duties and activities within the organization;
- the refugee claimant’s position or rank in the organization;
- the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and
- the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.
Further, the Court considered the “serious reasons for considering” evidentiary standard contained in Article 1F(a), holding that it is appropriate to the role of the Board, for the Board does not make determinations of guilt, and thus neither the criminal standard of beyond a reasonable doubt, nor the civil standard on a balance of probabilities need be satisfied. However, the Court emphasized that this evidentiary standard “does not … justify a relaxed application of fundamental criminal law principles in order to make room for complicity by association.”
The Court allowed Mr. Ezokola’s appeal and remitted the matter to the Refugee Protection Division of the Immigration and Refugee Board for redetermination in accordance with the contribution-based test for complicity.
Considering recent troubling developments in Canadian refugee law such as the much-maligned Bill C-31, Canadian proponents of refugee protection have had little to be optimistic about as of late. Thankfully, the contribution-based test for complicity introduced in the Supreme Court’s Ezokola decision is a truly welcome change to Canadian refugee law that helps to ensure that individuals will not be denied much-needed refugee protection through mere association with those who have committed atrocities.