Supreme Court of Canada rejects "guilt-by-association" approach to complicity

This morning, the Supreme Court of Canada unanimously rejected a "guilt-by-association" approach to complicity in international crime in Ezokola v. Canada (Citizenship and Immigration, 2013 SCC 40. The IHRP intervened in this case with the Canadian Centre for International Justice, and argued that there is no "complicity by association" under modern international criminal law.

This case concerns the proper interpretation of Article 1(F)(a) of the Refugee Convention, as incorporated into Canadian law. Article 1(F)(a) excludes from refugee protection a person for whom there are "serious reasons for considering" that he or she has "committed a crime against peace, a war crime, or a crime against humanity." Rachidi Ekanza Ezokola worked for the government of the Democratic Republic of Congo ("DRC"). The DRC is alleged to have committed crimes against humanity during the time of Ezokola's employment with the DRC government. Was the mere fact that he worked for the DRC during this time enough to make him "complicit" in crimes against humanity for the purposes of Article 1(F)(a)?

In its reasons, the SCC relied, inter alia, on the IHRP and CCIJ's arguments, which set out the various modes of liability that must be established to determine whether someone has "committed" a war crime, crime against humanity or genocide. The IHRP and CCIJ argued that under modern international criminal law, mere membership, without more, in an organization that has been associated with or implicated in international crimes is not itself enough to constitute an international crime. The SCC agreed.

The IHRP and CCIJ were represented by pro bono counsel John Terry and Sarah Shody of Torys LLP, along with IRHP Clinic Director Renu Mandhane. Clinic students Sofia Ijaz (3L) and Randle De Falco (LLM '13) also made extensive contributions on this file.