Complicity Judgment by Supreme Court of Canada

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Last week, one of the world’s most distinguished apex courts, the Supreme Court of Canada, issued a ruling on complicity under international criminal law: Ezokola v. Canada. It is a useful addition to the continuing ferment on the subject, a debate that has mainly taken place at the international criminal tribunals.

This is not a judgment based upon national criminal law nor is it a ruling interpreting the country’s constitution. It is pure international criminal law. The Court is interpreting article 1(F)a of the Convention on the Status of Refugees, the import of which is to exclude from the refugee status determination ‘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’.

The judges of the Court are right up to date with the latest case law on the subject, and even note ‘[t]o the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority’.

Ultimately, however, their concern is with overly broad constructions of the notion of complicity under international criminal law that amount to ‘guilt by association’. To that extent, the judges of the Supreme Court would seem to be on the same wavelength as the majority in the recent Stanišić ruling.

According to the Supreme Court of Canada, complicity under international criminal law requires

a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and without physically contributing to the crime. However, the UNHCR has explained, and other states parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose.

They added that ‘neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity’.

The Court refers to a statement in the Federal Court of Appeal judgment, that was the subject of the appeal and that it overturned, holding an individual to be complicit ‘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’. The Supreme Court said that ‘the Federal Court of Appeal reasons should not be improperly relied on to find complicity even where the individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the government have committed illegal acts’.

Refugee lawyers welcome this decision because of their concerns that persons fleeing persecution were being deprived of protection because of extravagant interpretations of international criminal law. There is an interesting tension here, because the judgment will probably not be too popular in some human rights law circles, where it will be seen as contributing to impunity.

The ‘exclusion clause’ in the Refugee Convention can be traced to article 14(2) of the Universal Declaration of Human Rights, where it is stated that the right to seek and enjoy asylum ‘may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations’. The language about international crimes was added by the drafters of the Refugee Convention.
A small footnote to the discussion. Earlier this week, US General Martin Dempsey, who is chairman of the Joint Chiefs of Staff, issued a statement about the dangers of military intervention in Syria where he said: 'Risks include extremists gaining access to additional capabilities, retaliatory cross-border attacks, and insider attacks or inadvertent association with war crimes due to vetting difficulties.' It is always gratifying to see that military people turn their minds to the possibility of involvement in war crimes.

Thanks to William Hartzog.