Complicity in international criminal law

Ezokola v. Canada (Citizenship and Immigration) 2013 SCC 40 deals with complicity in a criminal organization for international criminal law purposes:

[68]                          In sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group's criminal purpose.  At a minimum, 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. 

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(1)     Voluntary Contribution to the Crime or Criminal Purpose

[86]                          It goes without saying that the contribution to the crime or criminal purpose must be voluntarily made.  While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime.  To assess the voluntariness of a contribution, decision makers should, for example, consider the method of recruitment by the organization and any opportunity to leave the organization.  The voluntariness requirement captures the defence of duress which is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the Rome Statute: Cassese's International Criminal Law, pp. 215-16.

(2)     Significant Contribution to the Group's Crime or Criminal Purpose

[87]                          In our view, mere association becomes culpable complicity for the purposes of art. 1F(a) when an individual makes a significant contribution to the crime or criminal purpose of a group.  As Lord Brown J.S.C. said in J.S., to establish the requisite link between the individual and the group's criminal conduct, the accused's contribution does not have to be "directed to specific identifiable crimes" but can be directed to "wider concepts of common design, such as the accomplishment of an organisation's purpose by whatever means are necessary including the commission of war crimes": para. 38.  This approach to art. 1F(a) is consistent with international criminal law's recognition of collective and indirect participation in crimes discussed above, as well as s. 21(2) of the Canadian Criminal Code, R.S.C. 1985, c. C-46, which attaches criminal liability based on assistance in carrying out a common unlawful purpose.

[88]                          Given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed.  The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law.

(3)     Knowing Contribution to the Crime or Criminal Purpose

[89]                          To be complicit in crimes committed by the government, the official must be aware of the government's crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.

[90]                          In our view, this approach is consistent with themens rea requirement under art. 30 of the Rome Statute.  Article 30(1) explains that "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 andknowledge".  Article 30(2)(a) explains that a person has intent where he "means to engage in the conduct".  With respect to consequences, art. 30(2)(b) requires that the individual "means to cause that consequence or is aware that it will occur in the ordinary course of events".  Knowledge is defined in art. 30(3) as "awareness that a circumstance exists or a consequence will occur in the ordinary course of events".