Ignoring Complex Identities: Canada’s Continuing Post-Ezokola Overzealous Application of Article 1F(a) of the Refugee Convention

Abstract

International criminal law (ICL) and refugee law both struggle with the reality that victims of international crimes are often individuals who have themselves participated to some degree in atrocity violence. Pursuant to Article 1F(a) of the Refugee Convention, a claimant is disqualified from obtaining refugee status if found to have participated in the commission of an international crime. This provision draws a bright line, distinguishing refugees from atrocity participants. However, this distinction is routinely far from clear-cut, as amidst the chaos of atrocity violence, numerous individuals may span the victim perpetrator divide, or otherwise have their agency deeply constrained. They may participate in atrocities in ways that place them at the margins, or possibly outside the purview of ICL liability, if they were to be viewed as potential prosecutorial targets. This article explores how the complex identities of such individuals are addressed at the intersection of refugee law and ICL in the Canadian context. It argues that Article 1F(a) continues to be overused in Canada to deny refugee status to claimants with complex identities and calls for greater restraint in excluding such claimants.

Keywords: International Criminal Law, Refugee Law, Human Rights