What degree of complicity in international crimes will lead to a person’s exclusion from refugee status?

Ezokola v Canada (Citizenship and Immigration) 2013 SCC 40 (19 July 2013)

Summary

The Supreme Court of Canada unanimously held that to lawfully exclude a person from the definition of refugee because of their membership of a group suspected of war crimes, crimes against humanity or other international crimes, there must be serious reasons for considering that the person has made a “voluntary, knowing, and significant contribution” to the group’s crime or criminal purpose.

Facts

The appellant, Rachidi Ekanza Ezokola (Ezokola), worked in the Government of the Democratic Republic of Congo (DRC) between 1999 and 2004, when he was assigned to the Permanent Mission of the DRC to the United Nations in New York as Second Counsellor of Embassy. He represented the DRC at international meetings and acted as a liaison with UN development agencies. In 2007, he served as Acting Chargé d’Affaires, speaking before the UN Security Council on issues concerning natural resources and conflicts in the DRC.

Ezokola resigned in January 2008. He feared persecution because of his resignation and suspected links with an opponent of the DRC’s President. He fled to Canada, seeking asylum for himself, his wife, and their children.

Decision

The law

Section 98 of the Canadian Immigration and Refugee Protection Act incorporates article 1F(a) of the Refugee Convention (Convention) into Canadian law. Article 1F(a) relevantly provides that the Convention

shall not apply to any person with respect to whom there are serious reasons for considering that…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.

Procedural history

The Immigration and Refugee Board (Board) found that the DRC Government had committed crimes against humanity while Ezokola was a member of that Government. The question was whether Ezokola was complicit in those crimes. The Board found that Ezokola’s official rank meant he had “personal and knowing awareness” of the crimes committed by the Government. The Board held that this was sufficient to establish his complicity in the crimes of the Government for the purposes of article 1F(a), and thus Ezokola was excluded from refugee protection.

On appeal, Mainville J of the Federal Court held that the Board had erred in assigning responsibility to Ezokola merely due to his role within the government, there being no personal nexus between his role and the DRC army or police. In His Honour’s view, no evidence tended to show direct or indirect personal participation by Ezokola in the crimes alleged. Further, there was no evidence of incitement or active support by Ezokola for those crimes.

The Federal Court of Appeal rejected Justice Mainville’s approach to complicity, finding that the correct test for complicity was the ‘personal and knowing participation’ test established in Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306. Mainville J had erred in not applying this test, as had the Board by applying a “personal and knowing awareness” test. Ezokola appealed this decision to the Supreme Court of Canada (Court).

The Supreme Court’s decision

The main issue before the Court was whether, for the purposes of article 1F(a) of the Convention, Ezokola’s complicity could be established by his role as a senior public servant in a government that had committed international crimes; crimes of which he was aware but in which he had no direct or indirect personal participation.

The Court unanimously held that the ‘personal and knowing participation’ test from Ramirez had been “overextended to capture individuals on the basis of complicity by association”. The Court held that this was inappropriate for a number of reasons.

First, it was inconsistent with the purposes of the Convention. The Convention requires a balance between human rights considerations and the need to ensure that perpetrators of international crimes do not exploit the system.

Second, it was inconsistent with international law. In its extensive look at the jurisprudence of the International Criminal Court and the ad hoc tribunals, the Court held that “individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence”. The broadest modes of commission at international criminal law require an individual to knowingly (or, at a minimum, recklessly) contribute in a significant way to the crime or criminal purpose of a group.

Third, it was inconsistent with the practice of other state parties. The Court looked at the practice of the UK and USA, finding that those jurisdictions “recognise that an individual can be complicit without being present at the crime and without physically contributing to the crime, but there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose”. Passive membership of a group is not enough.

Fourth, the ‘personal and knowing participation’ test violated two fundamental principles of criminal law:

• individuals are not liable for omissions unless they are under a duty to act; and
• individuals can only be liable for their own culpable conduct.

For these reasons, the Court held the ‘voluntary, significant, and knowing contribution’ test was a more appropriate test for complicity under article 1F(a). The Court explained each component of the test as follows:

• the ‘voluntary’ component captures the defence of duress under article 31(1)(d) of the Rome Statute and recognised under customary international law;
• the ‘significant’ component differentiates culpable complicity from ‘mere association’; and
• the ‘knowing’ component is consistent with the mens rea requirement under article 30 of the Rome Statute.

Commentary

This case provides important commentary on article 1F(a) which may be persuasive in future decisions.

In Australia, article 1F(a) is relevant to the Minister’s determination under section 36(2)(a) of the Migration Act 1958 (Cth) as to whether an applicant for a protection visa is owed protection obligations under the Convention. It is also reflected in section 36(2A) as a factor which renders an applicant ineligible for a protection visa where the applicant would otherwise be eligible under section 36(2)(aa) because the Minister is satisfied the applicant would suffer significant harm if removed to a receiving country.

In considering article 1F(a), a number of Australian decisions have referred to Canadian authorities and considered the ‘personal and knowing participation’ test (eg. "VAB" and Minister for Immigration and Multicultural Affairs [2001] AATA 990; 'VAG' and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1332). However, Australian courts have not sought to apply the test and disregard broader questions of complicity. The decision in WBV and Minister for Immigration and Citizenship [2007] AATA 2046 noted the ‘personal and knowing participation’ test, but went on to cite the following principle which was accepted by the Full Federal Court in SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561:

In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.

Justice French noted in WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 that it would be “a matter for concern if the Tribunal, in an Art 1F case, merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose or complicity”.

The decision is available online at: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/13184/1/document.do

James Apps is a solicitor in the King & Wood Mallesons Human Rights Law Group.