Canada as a Potential Safe Haven for War Criminals and the Role of Immigration Law in Defining “Complicity”

February 18, 2026

OVERVIEW

Canada enacted the Crimes Against Humanity and War Crimes Act (CAHWCA) in 2000.  The CAHWCA allows Canadian courts to prosecute genocide, war crimes, and crimes against humanity committed anywhere in the world under universal jurisdiction, which allows for prosecution even when neither victims nor perpetrators were Canadian.  However, there have only been two cases prosecuted under the CAHWCA, which relate to the Rwanda genocide.  Certain provisions of the Criminal Code also allow for universal jurisdiction in specific crimes such as torture, hostage-taking, offences defined in international conventions if the alleged person is in Canada. 

According to Amnesty International Canada, Canada’s Crimes Against Humanity and War Crimes Program is significantly underfunded and not utilized.  Canada has failed to adequately prosecute alleged war criminals or has opted to deport them without any guarantees that they will be investigated for their crimes.  Due to inadequate budget for criminal prosecutions, the War Crimes Program has generally preferred to assess individuals and deny them entry into Canada rather than seek prosecution.  Amnesty International Canada states that from 1997 to 2007, over 17,000 cases of suspected war criminals were reviewed in the offices of the Canada Border Services Agency and Citizenship and Immigration Canada.  Approximately 3,700 people were barred from entry into Canada as a result.  From 2009 to 2015, 138 individuals were removed from Canada as there were reasonable grounds to believe they were involved in crimes against humanity, war crimes, or genocide, 285 people were denied refugee protection, 47 claimants were found inadmissible, and one person’s citizenship was revoked.  The budget for the War Crimes Program is $15.6 million per year and has remained unchanged since the program’s inception in 1998. 

Recently, the Canadian government has decided to prosecute an alleged perpetrator of war crimes committed abroad.  Ahmed Eldidi has been charged with multiple war crimes, relating to his apparent involvement in the torture and killing of an Islamic State detainee in northern Iraq.  The allegations stem from an ISIS propaganda video which shows Eldidi dismembering the hands of a prisoner of ISIS in 2015.  He was charged with the war crimes of murder, mutilation, torture, and outrages upon personal dignity under the CAHWCA.  Eldidi made an asylum claim in 2018 and was granted citizenship in 2024.  Since he gained citizenship, Canada cannot legally deport him.  There are concerns that the prosecution of Eldidi may be manipulated for short-term political gain.  Such prosecutions must not be exploited for anti-immigration or xenophobic purposes.  Trial is set to begin in November 2026. 

LAW

According to section 6(1) of the CAHWCA, genocide, crimes against humanity, and war crimes are criminalized in Canada when committed abroad. Section 8 of the CAHWCA outlines conditions for Canada to exercise universal jurisdiction.   

Section 6(3) of the CAHWCA defines genocide as:

“[…] an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.”

Section 6(3) of the CAHWCA defines crimes against humanity as:

“murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.”

Section 6(3) of the CAHWCA defines war crimes as:

“[…] an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.”

Torture is also criminalized as a stand-alone crime in section 269.1(1) of the Criminal Code and when committed by a foreigner or Canadian citizen abroad and falls under different jurisdictional requirements set out in section 7(3.7), including if the person who commits the act or omission is a Canadian citizen (c), the complainant is a Canadian citizen (d), or the person who commits the act or omission is, after the commission, in Canada (e). The crime of torture under the Criminal code requires that the act or omission is committed by an official or a person “acting at the instigation of, or with the consent or acquiescence of, an official”, where an official includes peace officers, public officers, members of the Canadian Forces, and anyone who exercises these same powers in a foreign state, whether the powers are exercised inside or outside of Canada.

PROSECUTORIAL DISCRETION AND POLITICAL APPROVAL

Two principles guide decisions on whether or not to prosecute: the existence of a reasonable prospect of conviction and public interest. Where both conditions are met, prosecutors will proceed with the case. Prosecutors have discretion over the assessment of both tests. The “reasonable prospect of conviction” test requires more than a prima facie case, but does not require a probability of conviction. This assessment also considers the availability and credibility of witnesses and evidence and possible defences. The public interest criterion is influenced by the gravity of the alleged offence, the accused person’s circumstances, age and background, the degree of culpability, the prosecution’s likely effect on the public’s confidence in the administration of justice, the need for specific or general deterrence, whether prosecution could entail disclosure of confidential information, and the degree of public interest around the alleged offence(s). For universal jurisdiction cases, the international context will be considered.

In practice, due to the significant resources necessary, the Department of Justice has confirmed that only the most “promising” cases will be selected for prosecution. Similarly, officials will generally not open an investigation where the alleged perpetrator is not physically present in Canada (where “present in Canada” has been defined as longer than a “fleeting visit”).

According to section 9(3) of the CAHWCA, consent is required by the Attorney General or the Deputy Attorney General in order to commence proceedings for genocide, crimes against humanity, and war crimes.  As there is no definition of “proceedings” under the CAHWCA, case law suggests that this does not include pre-trial procedures such as investigations and arrests.  This is confirmed by the independence of the RCMP relating to matters of investigation.

REFUSAL TO PROSECUTE

The Attorney General’s refusal to consent to proceedings or decision not to prosecute can be challenged by way of an application for judicial review, however courts tend to be deferential to Crown counsel decision-making and discretion. In Zhang v Canada (AG), the Federal Court and Federal Court of Appeal dismissed an application for judicial review of the AG’s refusal to consent to a prosecution finding that the refusal is reviewable when “flagrant impropriety” can be demonstrated, and requires misconduct that borders corruption, violation of the law or bias.

PRIVATE PROSECUTIONS

A private person or organization may not bring a private prosecution in relation to crimes under the CAHWCA because section 9(3) stipulates that proceedings may only be conducted by the Attorney General or counsel acting on their behalf. In contrast, section 7(3.7) relating to torture committed abroad does not contain such a stipulation, and thus a private individual or organization may bring a private prosecution against a suspect under section 504 of the Criminal Code. In order for a case to proceed, however, the AG must consent to the prosecution within eight days of its commencement.  Two cases have tried to initiate private prosecutions but the case did not proceed in either case. In Davidson v British Columbia (AG), the appellants attempted to bring a private prosecution against George W. Bush for counselling, aiding and abetting torture in the Abu Ghraid prison in Baghdad, Iraq and in Guantanamo Bay, Cuba. The BC Supreme Court dismissed the case because the AG did not issue the consent required under s.7(7) of the Criminal Code. On appeal, the appellants argued that the AG’s consent was not required until a summons or warrant was issued, but the BC Court of Appeal found that the AG’s consent was required as soon as the information was presented under oath by the private prosecutor and dismissed the appeal for lack of jurisdiction.

The second case was initiated in 2015 by an NGO called Sikhs for Justice against the sitting Prime Minister of India, Narenda Modi, for his role in the massacre of Muslims in Gujarat. Although a judge ordered the summons of the Prime Minister, the Attorney General withdrew the charges before it could proceed.

RESPONSIBILITY TO PROTECT

Canada has publicly embraced numerous international legal frameworks that govern the conduct of war and the protection of human rights. Most notably, Canada was instrumental in the establishment of the International Commission on Intervention and State Sovereignty (ICISS) in 2000 which led to the Responsibility to Protect (R2P) agreement at the 2005 UN World Summit. The R2P was born out of the international community’s failure to prevent genocide in the Balkans and Rwanda and embodied a political commitment to end the worst forms of violence and persecution. Commentary notes that Canada has shied away from its commitments to the R2P since its inception, though Canada’s Ambassador and Permanent Representative to the United Nations Bob Rae spoke publicly in support of the R2P in 2021 and co-sponsored a resolution at the 64^th UN plenary meeting on the Responsibility to Protect and the prevention of genocide, war crimes, ethnic cleansing, and crimes against humanity.

JURISPRUDENCE

The accused in R. v. Munyaneza is the only individual convicted in Canada under the CAHWCA.  Munyaneza participated in the 1994 Rwanda genocide and was found guilty in 2009 of seven counts of genocide, war crimes, and crimes against humanity.  The seven counts refer to distinct offences committed by various means:

• two counts of genocide, one by murder and the other by causing serious bodily or mental harm;

• two counts of crimes against humanity, one by intentional killings and the other by acts of sexual violence;

• three counts of war crimes, the first by murders, the second by acts of sexual violence, and the third by pillage. 

He was sentenced to life in prison. The Quebec Superior Court stated that “[…] denying genocide is tantamount to killing the victims a second time.” The court also stated that “History has shown that what happened there can repeat itself anywhere in the world and that no one is safe from such tragedy.”

In the case of R. v. Jacques Mungwarere, the accused was allegedly involved in the Rwanda genocide and prosecuted under the CAHWCA, but was acquitted in 2013 and the government did not pursue an appeal. The indictment was filed under section 577 of the Criminal Code, which permits a case to go straight to trial without a preliminary inquiry in cases where the public interest would be served. He is the second person to be charged under the CAHWCA and although he was acquitted, the case provided another basis on which Canada can exercise universal jurisdiction

The Eldidi case is the most recent example of Canada demanding universal jurisdiction under CAHWCA to prosecute for acts committed outside Canada.

Immigration

Rather than domestic criminal trials, alternative measures have been imposed when evidence may be insufficient for a criminal conviction but strong enough for immigration action such as revocation of citizenship and deportation. As such, universal jurisdiction principles have been applied in immigration and refugee decisions. Immigration authorities may invoke principles of universal jurisdiction to assess responsibility. 

In Ezokola v. Canada (Citizenship and Immigration), the accused was a former representative of the Democratic Republic of Congo who was seeking refugee protection in Canada. The Immigration and Refugee Board (the “Board”) rejected the claim for refugee protection on the grounds that the claimant was complicit in crimes against humanity committed by the government of the Democratic Republic of Congo. The Board excluded Ezokola from the definition of “refugee” under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. 

The Board noted the government of Congo worked with armed groups to kill, rape and abduct civilians and cited the authorities’ practice of recruiting child soldiers.  In the Board’s view, the appellant was complicit in these crimes as he had “personal and knowing awareness” of the crimes committed by his government.  However, the Court found there was no evidence of direct or indirect participation. As such, it was an error to assign responsibility to the claimant solely on the basis of his position, absent a personal nexus between his role and the army or police of the DRC. 

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.” Where exclusion from refugee status is the only sanction, there is no need to distinguish between principals, aiders, and abettors, or other criminal participants.   

The case considered whether mere association or passive acquiescence were sufficient to establish complicity. The case clarified the legal test for “complicity” in crimes against humanity. Mere association or awareness or passive membership was not enough.  The test required considerations as to whether the individual made a voluntary, knowing, and significant contribution to the crime or criminal purpose of the group.  Although this was not a criminal case, the case confirms Canada’s commitment to international law as universal jurisdiction was indirectly applied. 

The appeal was allowed, and the matter was remitted to a new panel of the Board for redetermination in accordance with the reasons.  The Court stated that:

“To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose. Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. In Canada, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. It is therefore necessary to rearticulate the Canadian approach to bring it in line with the purpose of the Refugee Convention and art. 1F(a), the role of the Refugee Protection Division, the international law to which art. 1F(a) expressly refers, the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention, and fundamental criminal law principles. These sources all support the adoption of a contribution-based test for complicity – one that requires voluntary, knowing, and significant contribution to the crime and criminal purpose of a group.”

[Emphasis added]

Also, unlike international criminal tribunals, the Board does not determine guilt or innocence but excludes those who are not bona fide refugees at the time of their claim for refugee status. A person is excluded from the definition of “refugee” if there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity. While the standard is lower than the actual war crimes trials, it requires more than mere suspicion. The evidentiary burden applicable to Article 1F(a) determinations is decided on a basis of the “serious reasons for considering” standard.

The Court noted that the Rome Statue 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 encompasses recklessness with respect to crime or criminal purpose, but does not capture individuals merely based on rank or association. The Court also stated that “a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles: the principle that criminal liability does not attach to omissions unless an individual is under a duty to act, and the principle that individuals can only be liable for their own culpable conduct.”

The Court concluded that whether an individual’s conduct meets the actus reus and mens rea for complicity will depend on the facts of each case and may include the following:

(i) the size and nature of the organization; (ii) the part of the organization with which the claimant was most directly concerned; (iii) the claimant’s duties and activities within the organization; (iv) the claimant’s position or rank in the organization; (v) the length of time the claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the claimant was recruited and claimant’s opportunity to leave the organization.

The above factors are not exhaustive and some may not be applicable to a case.  Also, not every contribution will be significant. As such, the significance of the contribution will depend on the facts of each case.  There is a mens rea requirement in that the contribution must be intentional and 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.

Complicity arises by contribution. The “significant contribution test” replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada. A change to the test was required to bring Canada in line with international criminal law.  The Court concluded that “an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. The evidentiary burden falls on the Minister as the party seeking the applicant’s exclusion.” The Court rejected the guilt-by-association approach to complicity to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated international crimes.  Complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant manner to the crime or criminal purpose of a group. 

The Canadian test for complicity was refined to include the following considerations:

1.      Voluntary contribution to the crime or criminal purpose – contribution must be voluntarily made.

2.      Significant contribution to the group’s crime or criminal purpose – the degree of contribution must be carefully assessed as every contribution could be characterized as furthering the criminal purpose of the group. The requirement of significant contribution is critical.

3.      Knowing contribution to the crime or criminal purpose – the official must be aware of the government’s crimes or their criminal purpose and aware his conduct will assist the furtherance of the crime or criminal purpose. 

Written by Katrina Sriranpong