Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
Canada’s LOAC Manual (1999) states: “Heads of state as well as members of the administration may be held personally and criminally responsible for illegalities committed in the performance of their official duties”.
The manual further notes: “Any person who planned, instigated, … committed or otherwise aided and abetted in the planning, preparation or execution of a war crime … may be held criminally responsible for the crime.”
The manual adds: “The official position of any accused person, whether as Head of State or as a responsible government official, does not relieve such person of criminal responsibility nor mitigate punishment.”
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1. The responsibility for the treatment of PWs rests upon the Detaining Power. Failure to properly care for PWs may make that power liable to pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur, are liable to be tried as war criminals.
1038. Breaches of PW Convention
1. Parties to the conflict shall take such measures as may be necessary to suppress and punish all breaches of [the 1949 Geneva Convention III]. If a breach amounts to a grave breach all persons responsible therefore, or having ordered such acts, shall, regardless of nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively.
In its chapter entitled “Communications and contact between opposing forces”, the manual states:
Any agreement made by belligerent commanders must be adhered to, and any breach of its conditions would involve international responsibility if ordered by a government, and personal liability, (which might amount to a war crime) if committed by an individual on his or her own authority.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual provides:
1. Any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a war crime … may be held criminally responsible for the crime.
2. The official position of any accused person, whether as Head of State or as a responsible government official, does not relieve such person of criminal responsibility nor mitigate punishment.
In its chapter on non-international armed conflict, the manual states:
1725. Breaches of Protocol II
1. When [the 1977 Additional Protocol II] was adopted, states refused to make violations of its provisions regarding criminal offences. Certain nations were reluctant to allow other states to interfere in their internal affairs by way of trials for war crimes alleged to have taken place in their national territory.
2. Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts.
3. Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law. Such crimes may be tried by international tribunals such as the International Criminal Tribunal for Rwanda.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
If any person commits or orders others to commit [grave breaches of the 1949 Geneva Conventions or the 1977 Additional Protocol I], he is liable to be brought to trial in any country including his own or, if captured, in that of the enemy.
Canada’s Code of Conduct After Capture Manual (2004) states:
The responsibility for the treatment of PWs [prisoners of war] rests upon the detaining power. Failure to care for PWs properly may make that power pay compensation, while the individuals responsible for such ill-treatment … are liable to be tried as war criminals.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides:
Every person who, whether within or outside Canada, commits a grave breach referred to in Article 50 [of the 1949 Geneva Convention I], Article 51 [of the 1949 Geneva Convention II], Article 130 [of the 1949 Geneva Convention III], Article 147 [of the 1949 Geneva Convention IV] or Article 11 or 85 [of the 1977 Additional Protocol I] is guilty of an indictable offence and [is liable to punishment].
Canada’s Crimes against Humanity and War Crimes Act (2000) states that for offences within Canada, “[e]very person is guilty of an indictable offence who commits (a) genocide; (b) a crime against humanity; or (c) a war crime”.
The Act also states: “Every person who, either before or after coming into force of this section, commits outside Canada (a) genocide, (b) a crime against humanity, or (c) a war crime is guilty of an indictable offence and may be prosecuted.”
The Act further states: “War crime means an act or omission committed during an armed conflict that … constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts.” It specifies that the crimes described in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law”.
In the Brocklebank case before the Canadian Court Martial Appeal Court in 1996 involving the question of criminal responsibility of a Canadian soldier serving on a peacekeeping mission in Somalia for having negligently performed a military duty, the Court of Appeal (majority) stated:
I see no basis in law for the inference that the  Geneva Conventions or the relevant provisions of the Unit Guide (1990)] impose on service members the obligation, not otherwise found in Canadian law, to take positive steps to prevent or arrest the mistreatment or abuse of prisoners in Canadian Forces custody by other members of the forces, particularly other members of superior rank. I do not wish to comment on the duty that a superior officer might have in similar circumstances, but assert that a military duty in the sense of [Section 124 of the National Defence Act (1985)], to protect civilian prisoners not under one’s custody cannot be inferred from the broad wording of the relevant sections of the [Unit Guide (1990)] or of [the 1949 Geneva Convention IV]. I agree with the prosecution … that Canadian soldiers should conduct themselves when engaged in operations abroad in an accountable manner consistent with Canada’s international obligations, the rule of law and simply humanity. There was evidence in this case to suggest that the respondent could readily have reported the misdeeds of his comrades. However, absent specific wording in the relevant international conventions and more specifically, the [Unit Guide (1990)], I simply cannot conclude that a member of the Canadian Forces has a penally enforceable obligation to intervene whenever he witnesses mistreatment of a prisoner who is not in his custody.
In closing, I would remark that … it remains open to the chief of defence staff to define in more explicit terms the standards of conduct expected of soldiers in respect of prisoners who are in Canadian Forces custody. It is open to the chief of defence staff to … impose a military duty on Canadian Forces members either to report or take reasonable steps to prevent or arrest the abuse of prisoners not in their charge … This might prove a useful undertaking.
In 2005, in the Mugesera case, Canada’s Supreme Court confirmed a deportation order on grounds of incitement to murder, hatred and genocide, and the crime against humanity of persecution, in Rwanda in 1992. Regarding the counselling of a murder that is not committed as the initial criminal act requirement of the crime against humanity of murder, the Court stated:
132. The first question raised on the facts of this appeal is whether the fact that Mr. Mugesera counselled the commission of murders that were not committed meets the initial criminal act requirement for a crime against humanity. Section 7(3.77) of the Criminal Code provides that “counselling” an act listed in s. 7(3.76) will be sufficient to meet the requirement. Murder is one of the acts listed in s. 7(3.76). Mr. Duquette found, as a matter of fact, that Mr. Mugesera’s speech counselled the commission of murders. His findings of fact are sufficient to conclude, as discussed above, that Mr. Mugesera satisfied both the physical and mental elements of the “underlying offence” of counselling a murder that is not committed.
133. This does not end our analysis, however. As we noted above, s. 7(3.76) expressly incorporates principles of customary international law into the domestic formulation of crimes against humanity. We must therefore go further and consider whether the prevailing principles of international law accord with our initial analysis. A review of the jurisprudence of the ICTY and the ICTR suggests that it does not.
134. The statutes of the ICTY and the ICTR (U.N. Doc. S/RES/827 (1993) and U.N. Doc. S/RES/955 (1994), respectively) do not use the word “counselling”. This does not mean, however, that the decisions of these courts cannot be informative as to the requirements for counselling as a crime against humanity. Both statutes provide that persons who “instigate” the commission of a proscribed act may be liable under international law. This Court found in Sharpe, at para. 56, that counselling refers to active inducement or encouragement from an objective point of view. The ICTR has found that instigation “involves prompting another to commit an offence”: Akayesu, Trial Chamber, at para. 482. The two terms are clearly related. As a result, we may look to the jurisprudence of the ICTY and the ICTR on instigation in determining whether counselling an offence that is not committed will be sufficient to satisfy the initial criminal act requirement for a crime against humanity under s. 7(3.76) of the Criminal Code.
135. In Prosecutor v. Rutaganda, Case No. ICTR-96-3-T (Trial Chamber I), 6 December 1999, the ICTR conducted a review of the jurisprudence of the ICTY and the ICTR on individual criminal responsibility. The ICTR found that instigation (other than of genocide) involves (1) direct and public incitement to commit a proscribed act; but (2) only where it has led to the actual commission of the instigated offence: para. 38; see also Akayesu, Trial Chamber, at para. 482. It should be noted that the second requirement does not mean that the offence would not have been committed “but for” the instigation. However, a sufficient causal link must be made out: Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T (ICTY, Trial Chamber III), 26 February 2001, at para. 387.
136. Mr. Duquette of the IAD [Immigration and Refugee Board Appeal Division] was unable to find that the commission of murders had actually occurred as a result of Mr. Mugesera’s counselling. An interpretation of ss. 7(3.76) and 7(3.77) of the Criminal Code
in light of customary international law shows that Mr. Mugesera’s counselling of murder was not sufficient to satisfy the initial criminal act requirement for a crime against humanity.
Regarding the difference between complicity and incitement to genocide, the Court stated:
In Prosecutor v. Akayesu
… the Trial Chamber of the International Tribunal for Rwanda (“ICTR”) drew a distinction between the constituent elements of … complicity in genocide and incitement to genocide. In the case of a charge of complicity, the prosecution must prove that genocide has actually occurred.
In 2011, in the Ishaku case, Canada’s Federal Court dismissed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo. The Court stated:
Accomplices as well as principal actors may be found to have committed crimes within the meaning of international criminal law: international crimes. The concept of complicity is recognized in the case law, defined as personal and knowing participation, and complicity by association, whereby individuals may be rendered responsible for the acts of others because of their close and voluntary association with the principal actors in an organization that commits international crimes. Complicity rests on the existence of a shared common purpose and the knowledge that the individual in question has of the commission of the crimes
[emphasis in original]
In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of complicity in crimes against humanity in Libya. The Board stated:
Subsection 6(1) [of the Crimes Against Humanity and War Crimes Act] indicates that every person who either before or after coming into force of this section commits outside of Canada, a) genocide, b) a crime against humanity, or c) [a] war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
Subsection 1.1 indicates that every person who conspires, or attempts to commit[,] is an accessory after the facts in relation to, or counsels, in relation to an offence referred to in subsection 1 is guilty of an indictable offence.
Now, I would also note that the Criminal Code of Canada has incorporated this definition into the legislation and it is an established principle in international domestic law that people who have personally [committed] war crimes, crimes against humanity, crimes against peace, and other international crimes, would generally be held accountable for those crimes.
As well, people who have been involved in the commission of such acts in a peripheral way and who are not directly involved may also be held responsible for the commission of those crimes.
In complicity resulting from membership in an organization, it is important to know … the nature and type of the organization to which the person belongs, [as] there are three types of organizations, brutal, non-brutal, and/or hybrid.
Briefly, a brutal organization is one whose main purpose, or activity, is to be involved in human rights abuses. Non-brutal organizations are those originally established for legitimate purposes and functions, but which would quite frequently get involved in human rights abuses, such as regular armed forces, militias, political parties.
Hybrid organizations are those organizations which have [different] units some of which are involved in crimes against humanity, others [are] not.
To attach responsibility through peripheral participation in the crimes of non-brutal organizations, that is complicity arising from the actions of a participant, a person could either aid … , or [abet] the perpetration of those crimes or may be complicit in the perpetration of those crimes through a shared common purpose.
Aiding and [abett]ing arises when a person substantially facilitates the mission of the organization by assisting in, or engaging in, activity that contributes directly or indirectly, to the purposes of the organization in question. A person’s complicity may also arise from the existence of a shared common purpose and knowledge that all parties in question may have of the purpose of the organization.
The commonly considered factors for shared common purpose as established by the Federal Court are nature of the organization, the method of recruitment, position or rank in the organization, length of time in the organization, opportunity to leave and knowledge of the organization's atrocities. It is also possible to commit crimes against humanity as an accomplice without personally committing the acts that are designated international crimes.
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
46. … [I]t looks like the defence does not contest anymore that the modes of participation [in a crime] provided in paragraphs 21(1)(a) and (b) [of the Canadian Criminal Code] are applicable to the present case. Her final claim is more that it is not sufficient for the prosecution to prove the mere presence of the accused at the attacks where one or more people have been killed[,] but the prosecution has to prove that the participation of the accused to such attacks was substantial or significant.
47. In the first instance, I conclude that the prosecution can establish that the accused committed the intentional murder of a person by demonstrating that he committed the crime in one of the two ways described in article 21 of the [C]riminal Code:
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
48. On one side the international case law[,] relying on the provisions of paragraph 25(3) of the [1998 ICC] Rome Statute, applies among others the same modes of participation recognized by article 21 of the Code:
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (my emphasis)
49. On the other side, it would be nonsense to assume that the Canadian legislator had wanted to exclude from the CAHWCA [Crimes Against Humanity and War Crimes Act] the applicability of the different modes of participation in the criminal acts of genocide and crimes against humanity when such modes are so well recognized in the Canadian criminal law. On this basis alone, unless the Parliament has expressly excluded them, it is right to conclude that the modes of participation provided in paragraph 21(1) are applicable to the charges under the Act.
50. The Parliament already indicated that the provisions of the [C]riminal Code are applicable to the criminal acts created by one of its acts by enacting paragraph 34(2) of the Interpretation Act. L.R.C. (1985), c. I-21. “All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment … ”.
51. There are no contrary provisions in the CAHWCA[,] and consequently the provisions of paragraph 21(1) are clearly applicable to the criminal acts created by this act, in the present case genocide and crimes against humanity.
52. We will later see that the Crown relies both on paragraph 21(1)(a) and on paragraph 21(1)(b). The first paragraph is applicable when the prosecution alleges that the accused himself committed the crime or otherwise that he is the main perpetrator. Case law however recognizes that [this paragraph] is applicable also when two or more people participated to the crime. In such circumstances, there is more than one main perpetrator, and each one is individually responsible. The Crown pleads that the accused could be found guilty by applying one of these aspect of paragraph 21(1)(a). In the judgment
R. v. Pickton  2 R.C.S. 198 at para. 63, the Court stated as follows:
63 … Co-principal liability is codified in s. 21(1)(a) of the Criminal Code: “Every one is a party to an offence who actually commits it”. It therefore arises whenever two or more people “actually commit” an offence to make both people individually liable for that crime. It also arises where two or more persons together form an intention to commit an offence, are present at the commission of the crime, and contribute to it, although they do not personally commit all of the essential elements of that offence (R. v. Mena (1987), 1987 CanLII 2868 (ONCA), 34 C.C.C. (3d) 304 (Ont. C.A.), at p. 316). If the trier of fact is satisfied beyond a reasonable doubt that the accused committed all elements of the crime, it does not matter whether another person may also have committed it.
64. In relation to murder, which, as noted above, is premised on a causal requirement (the allegedly unlawful act must “cause” death), the classic scenario in which the potential for co-principal liability arises is when two or more persons assault the victim at the same time, by beating him or her to death: see, for example, R. v. McMaster, 1996 CanLII 234 (SCC),  1 S.C.R. 740. In a joint beating case, since each accused commits each element of the offence of murder (the entire actus reus and mens rea of the offence), and only factual causation may be uncertain (which person delivered the “fatal” blow), legal causation will allow for uncertainty as to the actual act which caused the death. The only requirement for “causation of death” is that related to murder/manslaughter generally. It must be established that each accused’s assault of the victim was a “significant contributing cause” (for manslaughter or murder generally) or an “essential, substantial and integral part of the killing (for first degree murder under s. 231(5)): Nette, at para. 73.
53. On the other side, paragraph 21(1)(b) envisages the situation in which the accused is not the main perpetrator of the crime but has helped the main perpetrator or perpetrators to commit such crime. In international law, aiders are qualified as accomplices. In the Pickton judgment (above) at paragraph 76, the Supreme Court stated the principles underlying the analysis of this paragraph:
73. … While it may be true that a separate party instruction on co-principal liability may not generally be necessary, given that its elements are the same as for sole principal liability, the same cannot be said of liability as an aider or abettor. Although the ultimate legal liability is the same for a principal or for an aider or abettor, the findings of fact necessary and the specific legal principles which apply to each are different.
76. The main focus of s. 21(1)(b) and (c) is on the intention with which the aid or encouragement has been provided. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal’s commission of the offence, with knowledge that the principal intends to commit the crime: R. v. Briscoe, 2010 SCC 13 (CanLII),  1 S.C.R. 411, at paras. 14 and 16-18. To be found liable for first degree murder as an aider and abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate: Briscoe, at para. 17. Wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at para. 21.
54. To sum up, to succeed in the indictment of genocide by virtue of paragraph 21(1)(a), the Crown must convince the trier of facts that the accused shaped with other people the plan to kill the Tutsi, that he was present while the murders of the Tutsi were committed and that he acted in such a way as to contribute in a significant way to their death. It is not necessary to know whether there has directly been a link of causality between the acts of the accused and the death provided that the acts of the accused in the context of the joint attack against the victim or victims constituted a significant contributing cause of the death of the victim or victims. The accused and the other participants must share the same criminal intent, namely, the will to eliminate in whole or in part the Tutsi ethnic group.
55. Likewise, to succeed in the indictment of genocide by virtue of paragraph 21(1)(b), the evidence must convince the trier of facts that one or more individuals have intentionally caused the death of one or more Tutsi with the aim of eliminating this ethnic group and that the accused committed one or more acts which resulted in aiding in the commission of the murders, that he had the intention to facilitate such murders and that he knew the genocidal intention of the author or authors of the murders of these Tutsi. On the contrary, it is not necessary for the accused to be he himself motivated by the desire to destroy the Tutsi ethnic group provided that he knew that such was the aim of the author or authors of the crime at the time of the intentional murder of the Tutsis.
56. In the judgment Vasilyevic No. IT-98-32A, 25 February 2004, para 102, the International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeal Chamber clearly explained the different concepts of participation as an co-perpetrator (21(1)(a)) and participation as an accomplice [aider and abettor] (21(1)(b)), with regard to both the acts and the mental element.
(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.
(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.
57. Mrs. Nerenberg, relying on the ICTY Kvocka IT-38-30 judgment, of 2 November 2001, claims that in order to be guilty of complicity, the contribution given must be of a kind which, in a substantial or significant way, enables the realization of the plan of the author of the crime.
58. In the judgment Zazai v. Canada  303, para 16, the Federal Court of Appeal seems to adopt this standard. It must be understood that in Zazai, the issue the Court had to decide upon was whether the notion of complicity was excluded from the CAHWCA. The Court decided that the CAHWCA included the notion of complicity as participation to the perpetration of a crime by aiding the main perpetrator of the crime[,] but did not pronounce itself on the degree of aid required.
59. Mrs. Boucher pleads that the extract of the Kvocka judgment on which Mrs. Nerenberg is relying upon was repudiated by the ICTY Appeal Chamber IT-98-30/IA 28 February at para. 97 and 98.
60. I hesitate to rely on the passage invoked by Mrs. Boucher in order to decide upon this issue. I conclude that the tribunal at that moment was considering the degree of participation in the much broader context of participation in a joint criminal enterprise: see para. 96.
61. The court in Kvocka analyzes the specific principles which distinguish accomplice from co-perpetrator at paragraphs 88 to 92:
88. The Trial Chamber considered that a co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and actively furthers the enterprise. An aider or abettor, on the other hand, need not necessarily share the intent of the other participants; he need only be aware that his contribution assists or facilitates a crime committed by the other participants. The Trial Chamber held that the shared intent may be inferred from the knowledge of the criminal nature of the enterprise and the continued significant participation therein. It acknowledged that there may be difficulties in distinguishing between an aider or abettor and a co-perpetrator, in particular in the case of mid-level accused who did not physically commit crimes. When, however, an accused participated in a crime that advanced the goals of the criminal enterprise, the Trial Chamber considered him more likely to be held responsible as a co-perpetrator than as an aider or abettor.
90. Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.
91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.
92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.
62. I conclude that it would be correct to use the term “actual aid”, which is used by the Supreme Court in the Pickton judgment. It would be correct to speak of physical or tangible aid. These expressions would fit with the sense of the expression “[to make a] substantial contribution to the crime” used by the Appeal Chamber in Kvocka. I am of the opinion that regarding international criminal prosecution, one must refer to the case law of the International Criminal Tribunal [ICTY] to the maximum extent possible. I therefore adopt the expression “[to make a] substantial contribution to the crime” for the purposes of this trial.
1188. … [E]very participant to the deadly attacks at stake [the attacks against the Tutsi which took place between April and July 1994 at the Mugonero Hospital complex, at Gitwe, Murambi and Bisesero] who put in place one or more acts which contributed in a significant way to the death of one or more Tutsi and who shared, along with other participants, the plan of causing the death of the Tutsi in order to destroy in whole or in part their ethnicity, is guilty of genocide.
1189. … [E]very person who has committed one or more acts which have substantially contributed to the perpetrators’ commission of the deadly attacks at stake, with the intention to facilitate the perpetration of the attacks and knowing the genocidal plan of the perpetrators, is guilty of genocide.
1190. Likewise, every participant in one or more of the deadly attacks at stake is guilty of a crime against humanity as a co-perpetrator pursuant to paragraph 21(1)(a) if he has committed one or more acts which have contributed in a significant way to the death of one or more Tutsi with the intention to cause the death of [such] Tutsi and while knowing that the deadly attack or attacks he was participating to were part of a widespread or systematic attack against the Tutsi.
1191. Pursuant to paragraph 21(1)(b), a person who commits one or more acts which provide a substantial contribution to the attackers in the perpetration of one or more of the attacks at stake while having the intention to facilitate the perpetration of such deadly attacks and knowing that the attack or attacks were part of a widespread or systematic attack against the Tutsi ethnic group, is guilty of having committed a crime against humanity.
In 2013, in the Ezokola case, Canada’s Supreme Court allowed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo, remitting the matter to the Refugee Protection Division of the Immigration and Refugee Board. The Court stated:
1. Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.
2. While principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.
3. Guilt by association, however, is not one of them.
4. This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?
5. In contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order …
6. Aware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.
7. However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts …
8. While individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group – a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.
9. This contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration),  2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.
10. We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. …
D. The Board Must Rely on International Law to Interpret Article 1F(a)
42. Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40,  2 S.C.R. 100, at paras. 82 and 126.
45. International criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954:
When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the extermination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS.
50. Article 25 of the [1998 ICC] Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law …
51. That said, we may not rely exclusively on the approach of the International Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of international criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts … Article 1F(a) of the Refugee Convention refers generally to international instruments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute … In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions . . . which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals.
52. As explained above, we are concerned here with the dividing line between mere association and culpable complicity. While further distinctions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are serious reasons for considering that an individual has committed an international crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusionary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, common purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence.
53. These two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group …
E. Common Purpose Under Article 25(3)(d) of the [1998 ICC] Rome Statute
54. Article 25(3)(d) of the [1998 ICC] Rome Statute recognizes a broad residual mode of commission, by capturing conduct that “[i]n any other way contributes” to a crime committed or attempted by a group acting with a common purpose:
3. … a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
See Cassese’s International Criminal Law, pp. 175–76.
55. In other words, art. 25(3)(d) captures contributions to a crime where an individual did not have control over the crime and did not make an essential contribution as required for co-perpetration under art. 25(3)(a), did not incite, solicit or induce the crime under art. 25(3)(b), or did not intend to aid or abet a certain specific crime under art. 25(3)(c): Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial Chamber I), at para. 999; Prosecutor v. William Samoei Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial Chamber II), at para. 354; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-514, Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge Silvia Fernández de Gurmendi, concurring; Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp. 237–38.
56. The actus reus under para. (d) is distinguishable from the preceding paragraphs under art. 25(3) primarily by the magnitude of contribution required. While the jurisprudence is not completely settled, a pre-trial chamber of the ICC has said that the level of contribution required by art. 25(3)(d) is lower than the forms of commission under paras. (a) to (c). Where commission under para. (a) requires an essential contribution, and para. (c) a substantial one, Pre-Trial Chamber I has concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana, at paras. 279–85.
57. While the phrase “any other way” captures every imaginable contribution in a qualitative sense, it does not necessarily apply as broadly in a quantitative sense. Not every contribution, no matter how minor, will be caught by art. 25(3)(d). Setting the threshold at significant contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana, at para. 277:
… such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed.
58. The pre-trial chamber went on to explain that the significance of a contribution will depend on the facts of each case, “as it is only by examining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed”: Mbarushimana, at para. 284. On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to determine the degree of contribution required under art. 25(3)(d): Mbarushimana, at paras. 65–68.
59. As for the mens rea requirement, the text of art. 25(3)(d) states that a contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”. The Pre-Trial Chamber I explained in Mbarushimana, at para. 289, that individuals may be complicit in crimes without possessing the mens rea required by the crime itself:
Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged.
60. While the subjective element under art. 25(3)(d) can take the form of intent (accused intends to contribute to a group’s criminal purpose) or knowledge (accused is aware of the group’s intention to commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d) itself does not refer to conduct that might contribute to a crime or criminal purpose, and the mental element codified by art. 30 has been held to exclude dolus eventualis, that is, the awareness of a mere risk of prohibited consequences: Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision on the Confirmation of Charges, 15 June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial Chamber I took a different view of art. 30 in Lubanga, at paras. 351–55.
61. As the foregoing demonstrates, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contributing to a group’s crime or criminal purpose.
F. Joint Criminal Enterprise
62. Having considered the broadest form of accessory liability under the [1998 ICC] Rome Statute, we now turn to what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise [JCE]. …
63. Even though joint criminal enterprise is considered to be a form of principal liability, it is relevant to our task of setting threshold criteria for art. 1F(a) of the Refugee Convention. The line between principal and accessory is not necessarily drawn consistently across international and domestic criminal law. Joint criminal enterprise, like common purpose liability under art. 25(3)(d), captures “lesser” contributions to a crime than aiding and abetting. While aiding and abetting likely requires a substantial contribution to a certain specific crime, joint criminal enterprise and common purpose liability can arise from a significant contribution to a criminal purpose. To 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: Prosecutor v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999 (ICTY, Appeals Chamber), at para. 229, cited in Lafontaine, at p. 237; Prosecutor v. Radoslav Brđanin, IT-99-36-A, Judgment, 3 April 2007 (ICTY, Appeals Chamber), at paras. 427–28 and 430. Joint criminal enterprise therefore captures individuals who could easily be considered as secondary actors complicit in the crimes of others …
64. In Tadić, the ICTY articulated three forms of joint criminal enterprise: paras. 196–206. For all three, the actus reus is a “significant” contribution to the criminal enterprise: Brđanin, at para. 430.
65. However, the mens rea varies for each form. The first form, JCE I, requires shared intent to perpetrate a certain crime. The second, JCE II, requires knowledge of a system of ill treatment and intent to further this system. The third, JCE III, requires intention to participate in and further the criminal activity or purpose of the group, and intent to contribute to the joint criminal enterprise or the commission of a crime by the group. Under JCE III, liability can extend to a crime other than one agreed to in the common plan if the accused intended to participate in and further the criminal activity of the group and (i) it was foreseeable that such a crime might be perpetrated by members of the group and (ii) the accused willingly took that risk. In other words, where an accused intends to contribute to the common purpose, JCE III captures not only knowing contributions but reckless contributions: see Tadić, at para. 228.
66. Despite the overlap between joint criminal enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes distinct. Commentators suggest that JCE III will not play a role at the ICC, largely because of the recklessness component …
67. For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s International Criminal Law, at p. 163. It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group: Brđanin, at paras. 427–28 …
G. Summary of Complicity under International Law
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.
I. The Canadian Approach to Criminal Participation Has Been Overextended
78. Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention” … The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4.
79. In our view, the Federal Court’s approach in this case brings appropriate restraint to the test for complicity that had, in some cases, inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity …
81. In our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles.
82. It is well established in international criminal law that criminal liability does not attach to omissions unless an individual is under a duty to act … Accordingly, unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest: Ramirez, at pp. 319–20. Likewise, guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct …
83. Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or passive acquiescence. Such a reading would perpetuate a departure from international criminal law and fundamental criminal law principles.
The Court also stated that “the defence of duress … is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the [1998 ICC] Rome Statute
In the annual report on its crimes against humanity and war crimes program 2004–2005, Canada stated:
A person may be considered complicit if the person is aware of the commission of war crimes or crimes against humanity and contributes directly or indirectly to their occurrence. Membership in an organization responsible for committing the atrocities can be sufficient to establish complicity if the organization in question is one with a limited brutal purpose, such as a death squad.
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
Individuals who aid or abet or carry out a common purpose in the commission of an offence under the CAHWCA [2000 Crimes Against Humanity and War Crimes Act] can be prosecuted under the CAHWCA. In addition, sections 4(1.1) and 6(1.1) of the CAHWCA criminalize conspiring or attempting to commit, being an accessory after the fact in relation to, and counselling in relation to, the commission of a crime against humanity or war crime, including the underlying offence of torture.