Top court hears refugee case of diplomat deemed complicit in war crimes
By Natalie Stechyson, Postmedia News January 16, 2013
OTTAWA — The Supreme Court of Canada will hear a case Thursday that grapples with how to determine just who is culpable for war crimes and crimes against humanity.
Rachidi Ekanza Ezokola, a former high-level diplomat with the Democratic Republic of Congo, was originally denied refugee status after he fled to Montreal with his family because he was found to be complicit by association with the crimes committed by the war-torn African country.
It will be the first time since 1999 that the Supreme Court is considering the interpretation of provisions of a United Nations refugee convention that denies refugee status to people who are associated with war crimes and crimes against humanity – provisions upon which hundreds of refugee cases in Canada are decided, said Lorne Waldman, the president of the Canadian Association of Refugee Lawyers.
“The concern that we have is clearly that people are being found to be complicit of committing war crimes and crimes against humanity … and people who have absolutely no direct involvement in any way, shape or form in any of these crimes are being branded as war criminals,” Waldman said.
“This broad application of the test is creating a serious injustice.”
Ezokola was an economic adviser and second counsellor of embassy to the Permanent Mission of the Democratic Republic of Congo to the United Nations from 2004 until 2008. Prior to that he had been a public servant in the Democratic Republic of Congo since 1999, according to court documents.
In Jan. 2008, Ezokola resigned from his post in New York and then fled with his wife and eight children to Montreal where he claimed refugee status.
The Immigration and Refugee Board denied Ezokola’s request for refugee status as a person believed to be complicit in war crimes and crimes against humanity perpetrated by the government, applying an exclusion criteria under the United Nations Convention relating to the Status of Refugees.
Ezokola won an appeal in Federal Court, but a unanimous Federal Court of Appeal ruling in 2011 overturned the decision and sent the case back to the IRB.
“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,” Justice Marc Noel said in the decision.
Ezokola applied to the Supreme Court in Sept. 2011 and was granted leave to appeal in April 2012.
Lawyers representing the minister of citizenship and immigration will argue that the Federal Court of Appeal did not err when it applied the “personal and knowing participation” test to Ezokola’s case.
“For several years, the Appellant willingly represented his Government on the international scene while heinous crimes were being committed by his own Government in his country,” their factum reads.
The case has attracted a number of high-profile interveners, including Amnesty International, the United Nations High Commissioner for Refugees and the Canadian Civil Liberties Association.
“Most of the challenging cases include the people who weren’t the individuals who actually committed the crime but were somehow associated with it,” said Michael Bossin, an Ottawa immigration and refugee lawyer representing Amnesty International.
“This case is really about where do you draw the line? How do you determine if someone has committed an international crime?”
The hope is that the Supreme Court will lay down some guidelines as to what is really required to exclude someone from refugee protection, Bossin said.
A decision on Ezokola’s case is not expected for several months.
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