Rachidi Ekanza Ezokola (D.R. Congo)

Ezokola is a defining case concerning when a person can be denied refugee status in Canada because he or she may have been implicated in crimes against humanity. The 1951 Convention Relating to the Status of Refugees (better known as the Refugee Convention) provides protections for people who flee their countries because they fear persecution. The Refugee Convention, however, excludes from protection any 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.”

From 1999-2003, Rachidi Ekanza Ezokola worked for several government ministries in the Democratic Republic of Congo. In 2004, he was assigned to the DRC’s mission at the United Nations in New York. Ezokola served with the mission until early 2008 when he resigned and sought refugee status in Canada. He claims that in the DRC’s election in 2006, he supported the candidacy of opposition leader Jean-Pierre Bemba rather than President Joseph Kabila, and when Kabila was re-elected, Ezokola claims he was subjected to harassment and threats.

The government of Canada opposed Ezokola’s refugee application on the basis that crimes against humanity committed by the DRC government are imputed to him. (Kabila’s government has been criticized for widespread human rights abuses. His election opponent, Bemba, is under indictment by the International Criminal Court.)

Justice Marc Noël of the Federal Court of Appeal, in determining what is required to show that a person “committed” one of the crimes listed in the Refugee Convention, stated:

In my view, 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.

CCIJ, in partnership with the University of Toronto International Human Rights Program, intervened in the case. CCIJ and the IHRP argued that the criteria repeatedly applied by the courts and the government of Canada concerning exclusion from refugee protection is not in line with international law. The determination must be guided by the rules of international criminal law, as developed over the last twenty years by several judicial bodies, including the International Criminal Court and the International Criminal Tribunals for Rwanda and the former Yugoslavia. In particular, CCIJ and the IHRP argued that international law applies several identifiable “modes of liability” to determine when a person is individually culpable for crimes against humanity. International law does not hold an individual legally responsible simply because he or she belongs to an organization that is connected with crimes. There must be some connection between the acts or omissions of the accused and the crime itself. In our factum, CCIJ and the IHRP set out the “modes of liability” in detail and describe the outcomes of analogous cases decided by the international tribunals.We do not take a position about the specific facts or merits of Ezokola’s case.

CCIJ and the IHRP presented oral argument before the Supreme Court on January 17, 2013. The hearing can be viewed on the Supreme Court’s website. The CCIJ/IHRP submissions begin at 194:10 on the video.

On July 19, 2013, the Supreme Court released its judgment. The Court ruled, in line with the position taken by CCIJ, the IHRP and other interveners, that the refugee determination must be made in accordance with international criminal law. The court stated:

[T]he modes of commission recognized in international criminal law articulate a broad concept of complicity, but, even at their broadest, they do not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesced to the group’s criminal purposes. Common purpose liability, the broad residual mode of commission recognized in the Rome Statute of the International Criminal Court appears to require a significant contribution to a crime committed or attempted by a group acting with a common purpose, and, while joint criminal enterprise, as recognized by the ad hoc tribunals, encompasses recklessness with respect to the crime or criminal purpose, even it does not capture individuals merely based on rank or association.

The Court therefore allowed the appeal and returned the case to the Immigration and Refugee Board for a new decision.

CCIJ and the IHRP were represented pro bono by John Terry and Sarah Shody at Torys LLP. Special thanks to Jeff Beedell of McMillan LLP for his pro bono contributions.

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