Practice Relating to Rule 43. Application of General Principles on the Conduct of Hostilities to the Natural Environment
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
In 2013, in the Sapkota case
, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court
… is endorsed in Canada as a source of customary law.”
In 1991, during a debate in the Sixth Committee of the UN General Assembly on the protection of the environment in armed conflict, Canada stated:
An important conclusion reached at the international conference of experts held at Ottawa [from 9–12 July 1991] was that the customary laws of war, in reflecting the dictates of public conscience, now included a requirement to avoid unnecessary damage to the environment … In effect, the practice of States, generally accepted environmental principles and public consciousness about the environment had combined with the traditional armed conflict rules on the protection of civilians and their property to produce a customary rule of armed conflict prohibiting the infliction of unnecessary damage on the environment in wartime.
In 1992, during a debate in the Sixth Committee of the UN General Assembly on protection of the environment in times of armed conflict, Canada reiterated the conclusions of the Ottawa conference and referred to the rule of proportionality as “the need to strike a balance between the protection of the environment and the needs of war” and further concluded that, under the principle of distinction, “the environment as such should not form the object of direct attack”.
At the Conference on Environmental Protection and the Law of War held in London in 1992, Canada, with reference to the Martens Clause, identified a “requirement to avoid unjustifiable damage to the environment”.