القاعدة ذات الصلة
Canada
Practice Relating to Rule 89. Violence to Life
Canada’s LOAC Manual (1999) states that “wilful killing” is a grave breach of the 1949 Geneva Conventions and provides that the following acts are prohibited: assassination; attempts upon the lives of the wounded, sick and shipwrecked; killing of prisoners of war; and murder of persons protected by the 1949 Geneva Convention IV and the 1977 Additional Protocols I and II. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-3, § 25, p. 9-2, § 18, p. 10-3, § 26, p. 11-4, § 33, p. 11-7, § 63(a), p. 17-3, § 21 and p. 16-2, § 12; see also p. 16-4, § 21(j) (genocide as a violation of the Hague Conventions and customary law).
With regard to non-international armed conflicts, the manual restates common Article 3 of the 1949 Geneva Conventions. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-2, § 10(a).
Canada’s LOAC Manual (2001) states in its chapter on land warfare: “Assassination is prohibited. Assassination means the killing or wounding of a selected non-combatant for a political or religious motive.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 612.1.
In its chapter on the treatment of the wounded, sick and shipwrecked, the manual provides:
907. Treatment of the wounded, sick and shipwrecked
1. The wounded, sick and shipwrecked are to be protected, respected, treated humanely and cared for by the Detaining Power without any adverse discrimination.
2. Attempts upon their lives and violence against their persons are prohibited. They shall not be murdered …. The term “wounded, sick and shipwrecked”, includes civilians.
912. Acts or omissions endangering health are grave breaches
1. Any wilful act or omission which seriously endangers the physical or mental health or integrity of any person in the power of a party, other than the one on which that person depends and which violates the above prohibitions is a grave breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 907 and 912.
In its chapter on the treatment of prisoners of war (PWs), the manual states:
It is forbidden to kill PWs. The fact that captors are unable to provide the necessary facilities or personnel to restrict their movements or because they will have to be fed, thus reducing the supplies available to the captors, or because they may gain their liberty as a result of an early success by the forces to which they belong are no exceptions to the rule. In other words, self-preservation or military necessity can never provide an excuse for the murder of PWs. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1020.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual states:
[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies […] to murder…. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1121.2.
In the same chapter, in a section entitled “Treatment of internees”, the manual further states:
Whenever the death or serious injury of an internee is caused or suspected to have been caused by a sentry, by another internee, or by any other person, or if the cause of death is unknown, the detaining power must immediately hold an official enquiry into the matter and a report of the result of such enquiry must be sent to the Protecting Power. Should the result of the enquiry point to any person or persons as being guilty, the detaining power must take all necessary steps to ensure the prosecution of those responsible. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1130.
In the same chapter, in a section entitled “Additional Protocol I”, the manual also states:
1. [The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
a. violence to the life, health, or physical or mental well-being of persons, in particular:
(1) murder;
e. threats to commit any of the foregoing acts. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.1, 2.a.1 and e.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “wilful killing” is a grave breach of the 1949 Geneva Conventions. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.4.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
i violence to life and person, in particular murder of all kinds….
iv … the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.1.
In the same chapter, the manual also states:
Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:
a. violence to the life, health and physical or mental well-being of persons, in particular murder …;
g. threats to commit any of the foregoing. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1713.1.a and g.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Grave breaches of the [1949 Geneva Conventions] and [the 1977 Additional Protocol I] include any of the following actions:
a. The wilful killing, torture or inhumane treatment (including medical or scientific experimentation) of wounded and sick PW [prisoners of war], or other protected persons, or otherwise wilfully causing them great suffering or serious injury to body and health. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 4A04.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1949 Geneva Conventions] … is guilty of an indictable offence.” 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the crimes of genocide, crimes against humanity and war crimes defined in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
In 2005, in the Mugesera case, Canada’s Supreme Court confirmed a deportation order on grounds of incitement to murder, hatred and genocide, and a crime against humanity, in Rwanda in 1992. The Court stated:
2. The outcome of the appeal hinges on the characterization of a speech delivered by the respondent Léon Mugesera in Rwanda in the Kinyarwandan language. The speech triggered a series of events that have brought the Government of Canada and Mr. Mugesera to this Court.
4. In 1995, the Minister of Citizenship and Immigration became aware of allegations against the respondent and commenced proceedings under s. 27 of the Immigration Act. A permanent resident of Canada may be deported if it is determined, inter alia, that before or after being granted permanent residency, the individual committed criminal acts or offences. In this case, the speech was alleged to constitute an incitement to murder, hatred and genocide, and a crime against humanity.
5. In July 1996, an adjudicator concluded that the allegations were valid and issued a deportation order against Mr. Mugesera and his family. The Immigration and Refugee Board (Appeal Division) (“IAD”) upheld the adjudicator’s decision and dismissed the respondents’ appeal… The findings of fact and law were subject to judicial review in the Federal Court – Trial Division (“FCTD”)…, and then in the Federal Court of Appeal (“FCA”). Décary J.A., writing for the FCA, reversed several findings of fact made by the IAD and reversed the deportation order, concluding that the Minister had not met his burden… The Minister has now appealed to this Court, and he asks that the IAD’s deportation order be confirmed.
7. For the reasons that follow, we would allow the appeal. The decision of the FCA should be set aside and the decision of the IAD in favour of deportation should be restored.
B. Incitement to Murder, Genocide and Hatred
(1) Incitement to Murder
60. As will be recalled, Mr. Duquette concluded that while there was evidence that murders had occurred following the speech by the respondent, the evidence directly linking the murders to the speech was insufficient (para. 310). This finding of fact precludes the application of s. 22 of the Criminal Code on counselling an offence that is committed.
61. Under s. 464(a) of the Criminal Code, however, it is an offence to counsel another person to commit an offence even if the offence is not committed. The Rwandan Penal Code also provides that it is a crime to incite murder, whether or not the incitement is followed by the actual commission of an offence.
77. The IAD’s findings of fact support the conclusion that Mr. Mugesera’s speech should be viewed as an incitement to kill Tutsi and opposition party members. The elements of the actus reus are met: viewed objectively, Mr. Mugesera’s message was likely to incite, and was made with a view to inciting, murder. Mr. Mugesera conveyed to his listeners, in extremely violent language, the message that they faced a choice of either exterminating the Tutsi, the accomplices of the Tutsi, and their own political opponents, or being exterminated by them.
79. This finding of fact is sufficient to meet the mens rea for counselling an offence that is not committed. It shows that, on the facts, Mr. Mugesera not only intentionally gave the speech, but also intended that it result in the commission of murders.
80. We find that the IAD correctly concluded that the allegation of incitement to murder that is not committed was well founded, and that the FCA erred in overturning that finding. We must now consider the Minister’s allegations in respect of the crime of incitement to genocide.
(2) Incitement to Genocide
83. Section 318(1) of the Criminal Code proscribes the offence of advocating genocide: “Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” Genocide is defined as the act of killing members of an identifiable group or of deliberately inflicting conditions of life on an identifiable group calculated to bring about the physical destruction of that group, in whole or in part: subs. (2). Subsection (4), at the relevant time, defined an identifiable group as “any section of the public distinguished by colour, race, religion or ethnic origin” …
(i) Is Proof of Genocide Required?
84. In Prosecutor v. Akayesu, 9 IHRR 608 (1998), the Trial Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) drew a distinction between the constituent elements of the crimes 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. A charge of incitement to genocide, however, does not require proof that genocide has in fact happened:
In the opinion of the Chamber, the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results, warrants that they be punished as an exceptional measure. The Chamber holds that genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator. [para. 562]
85. In the case of the allegation of incitement to genocide, the Minister does not need to establish a direct causal link between the speech and any acts of murder or violence. Because of its inchoate nature, incitement is punishable by virtue of the criminal act alone irrespective of the result. It remains a crime regardless of whether it has the effect it is intended to have: see also Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial Chamber I) (“Media Case”), 3 December 2003, at para. 1029. The Minister is not required, therefore, to prove that individuals who heard Mr. Mugesera’s speech killed or attempted to kill any members of an identifiable group.
(ii) The Criminal Act: Direct and Public Incitement
86. The criminal act requirement for incitement to genocide has two elements: the act of incitement must be direct and it must be public: Akayesu, Trial Chamber, at para. 559. See also art. III(c) of the [1948] Genocide Convention. The speech was public. We need only consider the meaning of the requirement that it be direct.
87. In Akayesu, the Trial Chamber of the ICTR held that the direct element “implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement” (para. 557). The direct element of incitement “should be viewed in the light of its cultural and linguistic content” (para. 557). Depending on the audience, a particular speech may be perceived as direct in one country, and not so in another. The determination of whether acts of incitement can be viewed as direct necessarily focusses mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof (para. 558). The words used must be clear enough to be immediately understood by the intended audience. Innuendo and obscure language do not suffice.
98. The allegation of incitement to the crime of genocide is well founded. The IAD came to the correct legal conclusion on this question.
C. Crimes Against Humanity
129. The proscribed acts listed in s. 7(3.76) of the Criminal Code provide a first and essential requirement for a crime against humanity: an “underlying offence” must be committed. In essence, the listed acts represent the different ways in which a crime against humanity can be committed. This means that various acts may become crimes against humanity as long as the other elements of the offence are met. In s. 7(3.76) those crimes are murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission.
131. The question we must now consider is whether, as alleged by the Minister, Mr. Mugesera’s speech satisfies the initial criminal act requirement for a crime against humanity. We have found that the speech counselled murders which were not committed and incited hatred and genocide. This raises two issues: whether counselling a murder that is not committed meets the initial criminal act requirement for murder as a crime against humanity and whether speech inciting hatred meets the initial criminal act requirement for persecution as a crime against humanity.
1. Counselling an Enumerated Act That Is Not Committed and Murder as a Crime Against Humanity
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 … 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 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.
2. Speech that Incites Hatred and Persecution as a Crime Against Humanity
150. … In the case at bar, there were two possible underlying acts: counselling of murder, and persecution by hate speech. For counselling of murder to be considered a crime against humanity under international law, murders must actually have been committed. Mr. Duquette’s finding that no murders were proven to have resulted from the speech therefore precludes a finding that Mr. Mugesera counselled murder within the meaning of s. 7(3.76). The other possible underlying act, persecution is a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the other acts enumerated in s. 7(3.76). Hate speech, particularly when it advocates egregious acts of violence, may constitute persecution. In this case, it does. 
Canada, Supreme Court, Mugesera case, Judgment and Reasons for Judgment, 28 June 2005, §§ 2, 4–5, 7, 60–61, 77, 79–80, 83–87, 98, 129, 131–136 and 150.
[emphasis in original]
In 2008, in the Carrasco Varela case, Canada’s Federal Court reviewed a decision by the Immigration and Refugee Board that had found the applicant inadmissible to Canada on grounds of war crimes or crimes against humanity. The Court stated:
[1] The Immigration and Refugee Board found there were reasonable grounds to believe that Mr. CARRASCO Varela, a Nicaraguan citizen and a member of the Sandinista Front of National Liberation, was an active and willing participant in combat against the Contras, armed guerrillas opposed to the government. His activities included the committing of atrocities against individuals under his guard, the killing of peasants in the mountains and the execution of four prisoners responsible for the kidnapping of a Soviet military attaché, all part of a widespread and systematic attack against any civilian population operating contrary to Sandinista rule. Mr. Carrasco was determined to be a person described in section 35(1) (a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA), and as such inadmissible to Canada. He was ordered deported.
[2] This is a judicial review of that decision, which held he violated human or international rights for having committed an act outside Canada that constituted an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. …
[6] It must be borne in mind that crimes against humanity are considered in two different Canadian contexts. Persons are not normally charged in Canada with respect to alleged crimes committed in other jurisdictions. However, war crimes and crimes against humanity are considered so heinous that those alleged to have committed them may be charged in Canada with an indictable offence and, if found guilty, are liable to life imprisonment. Mr. Carrasco has not been charged with a crime against humanity, or any crime, here or elsewhere.
[7] The second context arises in refugee and immigration matters. It may be determined that the United Nations Convention Relating to the Status of Refugees is not applicable because section 1F thereof specifically excludes its application to persons who have committed crimes against peace, war crimes or crimes against humanity, or that a putative refugee or immigrant is not admissible for having committed an act outside Canada that constitutes either a war crime or a crime against humanity. The burden of proof is neither on the criminal standard of beyond a reasonable doubt nor on the civil standard of the balance of probabilities. Section 33 of IRPA only requires that there be “…reasonable grounds to believe…”
i) El Chipote prison
[14] A case very much on point, and a case frequently cited, is the decision of the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In speaking for the Court, Mr. Justice MacGuigan held that simple membership in an organization which, from time to time, commits international offences is not normally sufficient to tar a mere guard with same, unless the organization is principally directed to a limited brutal purpose such as secret police activity. The Sandinistas formed the government and so cannot be considered as being limited to brutal purposes (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A) and Murillo v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 287 per Lemieux, J. at para. 42).
[15] Mere presence at the scene of an offence is not enough to qualify as personal and knowing participation, and as Mr. Justice MacGuigan added, one must be careful not to automatically condemn everyone engaged in conflict under conditions of war as the law does not demand immediate benevolent intervention at a person’s own risk. “Usually, law does not function at the level of heroism.” However, he went on to say: “With respect to the appellant’s serving as a guard, I find it impossible to say that no properly instructed tribunal could fail to draw a conclusion as to personal participation”.
[16] He added that Mr. Ramirez:
[37] […] was an active part of the military forces committing such atrocities, he was fully aware of what was happening, and he could not succeed in disengaging himself merely by ensuring that he was never the one to inflict the pain or pull the trigger.
[17] Mr. Ramirez only had 20 months of service. Mr. Carrasco had six years; six years which afforded him ample opportunity to withdraw his services and to leave Nicaragua. He did not. The finding that he participated in these atrocities should not be disturbed.
ii) The killing of peasants
[19] According to Mr. Carrasco, because he regularly raised the plight of prisoners at El Chipote Prison at party meetings, he was banished to the countryside. He served as a guard in the village of San Jose de los Ramates for a time in 1986. He was concerned that the hunting down of Contras in the countryside was indiscriminate. He did not wish to be a member of search parties. With the help of an understanding superior officer, he was protected from active service as he was issued a medical certificate which stated he had a heart condition. The Board member did not consider this evidence credible, and his finding stands up to examination. He pointed out that it would be highly unlikely that a commander would jeopardize his own situation as once Mr. Carrasco returned to El Chipote Prison, which he did, it would likely be discovered that he had no heart condition. Mr. Carrasco claims that after six months at that village, he deserted and was captured but only spent two weeks in jail before he returned to his duties at El Chipote Prison and later formed part of a death squad.
[20] However, it does not follow that the situating of Mr. Carrasco in the mountains, hunting down Contras, gives rise to a crime against humanity. I see no clear and compelling information which would give reasonable grounds to believe he deliberately killed innocent peasants.
[21] As stated in Mugesera, above, the facts are one thing, but the determination that a crime against humanity has been committed is quite another, a matter of law.
[22] In Gonzalez v. Canada (Minister of Citizenship and Immigration), [1994] 3 F.C. 646, (1994), 115 D.L.R. (4th) 403, the Court of Appeal dealt with a refugee applicant who had been a member of a Nicaraguan battalion which encountered Contras hiding in a peasant’s house. In the ensuing gun battle, three women and six children were killed along with about ten Contras. Apparently, Mr. Gonzalez had objected to firing on the women and children. The Court of Appeal held that this was an incident of war, not a war crime. In the circumstances, Mr. Gonzalez had committed neither a war crime nor a crime against humanity and so the Immigration and Refugee Board erred in applying exclusion clause 1F of the Convention. In concurring reasons, Mr. Justice Létourneau added:
However, I do not wish to be understood as saying that the killing of civilians by a private soldier while engaged in an action against an armed enemy can never amount to a crime against humanity or a war crime so as to never give rise to the application of the exclusion found in Article lF(a) of the Convention. Each individual case will depend on its own particular facts and circumstances. It may be that in a given situation, while the death of innocent civilians occurred at the time of, or during, an action against an armed enemy, such deaths were not the unfortunate and inevitable casualties of war as contended, but rather resulted from intentional, deliberate and unjustifiable acts of killing and slaughtering.
iii) The murder of the kidnappers
[23] Notwithstanding the many run-ins Mr. Carrasco said he had with the authorities, and notwithstanding his prior desertion, he was assigned to be part of a death squad to deal with four just captured kidnappers of a Soviet military attaché. They were led out into a field handcuffed and blindfolded. There, they were murdered in cold blood. Mr. Carrasco said that he did not fire and protested. …
[24] Mr. Carrasco did not fire, and again was punished. He remained on the job and only left Nicaragua, however, more than a year later.
[25] The remarks of Mr. Justice MacGuigan in Ramirez are even more telling when it comes to cold blooded murder.
Crimes against humanity and Mr. Carrasco
[26] I have no doubt that the Board was correct in holding that Mr. Carrasco had committed crimes against humanity not only with respect to the murder of the kidnappers, but also with respect to his participation in the abuse of other prisoners at El Chipote Prison. As mentioned above, and relying on Gonzalez, there is insufficient evidence to give reasonable grounds to believe he participated in the murder of peasants in the mountains.
[28] Mr. Carrasco argues that the kidnappers were garden variety criminals out for personal gain. Although they were civilians, there is no evidence that the murder was committed as part of a widespread or systematic attack, or against a civilian population, as opposed to four specific individuals. While these events might give rise to serious criminality, another ground for inadmissibility under section 36 of IRPA, that was not the basis of the report against Mr. Carrasco which led to the admissibility hearing.
[29] … As Mr. Justice MacGuigan said in Ramirez, it does not really matter whether the crime is a war crime or a crime against humanity. It was a crime committed during the course of what was either a civil war or civil insurrection. He simply employed the term “international crime”. In Sivakumar, above, Mr. Justice Linden referred to article 6 of the Charter of the International Military Tribunal. Historically, a crime against humanity was committed against one’s own nationals, which helped distinguish it from a war crime. In Gonzalez, above, Mr. Justice Mahoney made mention of the United Nations Handbook on Procedure and Criteria for Determining Refugee Status, 1979, which in turn referred to the London Agreement of 1945. A war crime included murder, and ill-treatment of prisoners of war. Crimes against humanity included murder, or other inhumane acts committed against any civilian population. Article 8 provided that superior orders would not free a person from responsibility, but could be considered in mitigation of punishment.
[30] Regardless how the matter is considered, Mr. Carrasco was rightly ordered deported. The order states: “The Immigration Division determines that you are a person described in 35(1) (a) of the Act.” Both crimes against humanity and war crimes are covered.
Defences and mitigation
[34] The defences of superior orders and duress do not apply. Section 14 of the Crimes Against Humanity and War Crimes Act repeats the long standing rule in international law that the defence of superior orders has no application if the order was manifestly unlawful. Cold blooded murder is always manifestly unlawful. 
Canada, Federal Court, Carrasco Varela case, Judgment, 8 April 2008, §§ 1–2, 6–7, 14–17, 19–26, 28–30 and 34
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes commited in Rwanda in 1994. The Court held:
3.2 Genocide
(A) Indictment
[68] The first two counts allege that the accused committed an act of genocide in two ways:
- by the intentional killing of;
- by causing serious bodily or mental harm to;
members of an identifiable group of people, the Tutsi.
[71] The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (the “1948 Convention”) is the foundation of conventional international law as it pertains to genocide.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
Killing members of the group;
[72] This convention was ratified by Canada on September 3, 1952 and by Rwanda on April 26, 1975. It applied to Rwanda in 1994.
[75] Even without that conventional definition, the crime of genocide in 1994 was in contravention of all the peremptory rules of customary international law.
(B) Intentional killing
[81] The notion of “intentional killing” does not exist in the Canadian Criminal Code. Murder is defined in section 229 as follows:
Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.
[82] By using in [Canada’s 2000 Crimes Against Humanity and War Crimes] Act a term that differs from the one used in the Criminal Code, the Canadian legislator wished to refer to the definition of “intentional killing” found in international law and its jurisprudence.
[83] But the difference is rather slim. In international law, it must be demonstrated that:
(a) the person is dead;
(b) the accused caused the death by means of an act or omission, or contributed substantially to the death;
(c) the accused intended to cause the death of the victim or inflict grievous bodily harm that he knew was likely to result in death.
3.3 Crime against humanity
(A) Indictment
[108] Counts 3 and 4 allege that the accused committed crimes against humanity:
- by intentional killing;
- by the act of sexual violence.
[112] [Canada’s 2000 Crimes Against Humanity and War Crimes] Act confirms a consensus of the League of Nations, prior to 1945, that crimes against humanity were part of customary international law. Killing, sexual violence and the other crimes listed in subsection 6(3) of the Act constituted crimes before 1945 and, therefore, in Rwanda in 1994.
(C) Intentional killing
[118] The elements essential to proving intentional killing, which are described in the chapter on genocide, are the same in the context of a crime against humanity or a war crime.
3.4 War crime
(A) Indictment
[129] Counts 5, 6 and 7 allege that the accused committed a war crime by means of:
(a) intentional killing;
(b) an act of sexual violence;
(c) pillage.
(B) War crime
[135] As for customary international law, Article 4 of the ICTR Statute, regarding non-international armed conflicts, provides that it applied on Rwandan territory in 1994 and that the list of war crimes included killing, outrages upon personal dignity, rape and pillage.
(C) Intentional killing
[140] The elements essential to intentional killing are the same in a context of genocide, crimes against humanity and war crimes.
[2087] While an armed national conflict raged in Rwanda between the RAF [Rwanda Armed Forces] and the RPF [Rwandan Patriotic Front], Désiré Munyaneza intentionally killed dozens of people in Butare and the surrounding communes who were not participating directly in the conflict, sexually assaulted dozens of people and looted the homes and businesses of individuals who had nothing to do with the armed conflict.
[2088] In doing so, he committed a war crime according to the Act.
[2089] Désiré Munyaneza is guilty of the seven counts filed against him by the Crown. 
Canada, Superior Court, Criminal Division, Province of Québec, Munyaneza case, Judgment, 22 May 2009, §§ 68, 71–72, 75, 81–83, 108, 112, 118, 129, 135, 140 and 2087–2089.
[footnotes in original omitted]
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:
[W]hen the conflict began in February 2011 in Libya you were called upon [by Al-Saadi Gaddafi] to provide security services for him in Libya. …
Now, with respect to specific examples of crimes against humanity perpetrated by the Gaddafi regime, there is quite extensive documentary evidence that has been put forward by the Minister, so I’m going to mainly focus on the atrocities committed between February and August 2011 …
We also have reports of the regime … conducting public[] lynchings and executing the injured in their attacks against the civilians.
We have a report from August 23rd, 2011, at page 352 of exhibit three which documents mass killing of approximately 100 people at the Yaramuk(ph) Detention Centre and there is a report in exhibit four at page 23 of a family against [which] forces opened fire … in a car on August the 22nd, 2011, where three [people] were killed and three were injured.
I am … satisfied, based on the totality of the information before me, and the findings relating to both allegations, that there are reasonable grounds to believe that you are described pursuant to both paragraphs 35(1)(a) and 37(1)(b) of the Immigration Refugee Protection Act and I am therefore issuing deportation orders against you.
As per my explanation at the outset of the hearing on January 14th, 2013, and at the beginning of this decision today, the only avenue of recourse available to you is to seek judicial review from the Federal Court of Canada and that application must be filed with the courts within 15 days of today’s date. 
Canada, Immigration and Refugee Board, Peters case, Record of an Admissibility Hearing under the Immigration and Refugee Protection Act, 29 January 2013, pp. 4, 13–14 and 15–16.
In 2013, in the MJS case, Canada’s Federal Court dismissed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in war crimes and crimes against humanity. The Court stated:
[2] The Refugee Protection Division [the Panel] found that Mr. MJS was excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act … and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees …
IV. Analysis
(a) Did the Panel apply the wrong test to determine the complicity of Mr. MJS?
[22] The Panel also reiterated that Mr. MJS acknowledged in his testimony that he knew of the human rights violations committed by [the Group]. Earlier in its decision, the Panel found that “the documentary evidence clearly demonstrates that [the Group] committed crimes against humanity as well as war crimes in the period 1998 to 2005”, by, for example, … perpetrating unlawful killings … and massacring [ethnic minority] civilians. …
[23] Simply because the Panel stated that some of these crimes had also been committed by [another group] does not detract from the Panel’s conclusion regarding [the Group’s] involvement in these crimes. 
Canada, Federal Court, MJS case, Reasons for Judgment and Judgment, 20 March 2013, §§ 2 and 22–23.
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted the accused of the charges of genocide and crimes against humanity committed in Rwanda in 1994. The Court stated:
35. The CAHWCA [Crimes Against Humanity and War Crimes Act] defines genocide in paragraph 6(3) as follows:
“genocide” means 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.
36. The Convention on the Prevention and Punishment of the Crime of Genocide [1948 Genocide Convention] adopted by the United Nations includes the murder [“meurtre”] of members of the group which is intended to be destroyed in whole or in part as an act of genocide. The case law of the International Criminal Tribunal for Rwanda (ICTR) has taught us that the term “murder” means the act of causing death with the specific intent of causing death. Consequently, the term intentional murder [“meurtre intentionnel”] is used in international law in order to prevent any ambiguity on its juridical interpretation given the use of the word “killing” in the English version of the [1948 Genocide] Convention. (Prosecutor v. Kayishe[m]a and [Ruzindana] case No. ICTR-95-1-A at pages 56-57).
38. The first count of indictment is in fact constituted of two crimes. The underlying crime of intentional murder[,] which requires evidence of the act of causing death with the specific criminal intent of doing it. The underlying crime becomes the crime of genocide when it is demonstrated that the intentional murder is accompanied by the genocidal intention, which is to target an ethnic group in particular with the intention to destroy in whole or in part such group.
40. The CAHWCA defines crimes against humanity in paragraph 6(3):
“crime against humanity” means murder … 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 …
41. On one hand, murder is one of the prohibited acts listed in paragraph 6(3). The term “murder” must be understood in the same way as it is laid out in the [Canadian] Criminal Code[,] as it is prescribed by paragraph 2(2) of the CAHWCA.
(2) Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.
42. A murder (the underlying crime) becomes a crime against humanity according to the principles of international law when it is committed in the context of a widespread or systematic attack against an identifiable group of people and if the author of the murder was aware of the attack and knew that his act was part of such attack, or was likely to be.
1188. … [E]very participant to the deadly 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.
1190. … [E]very participant in one or more of the deadly attacks at stake is guilty of a crime against humanity … 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. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 35–36, 38, 40–42, 1188 and 1190.
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.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated: “To our dismay, serious abuses of human rights and international humanitarian law have become common place in Darfur, including … arbitrary executions”. 
Canada, Statement by the representative of Canada to the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, 2005, p. 1.
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 that “war crime … includes … violence to life and person, in particular murder of all kinds”. 
Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, § 176.
In 2012, in a statement during a UN Security Council open debate in connection with the agenda item “Children and Armed Conflict”, the permanent representative of Canada stated: “This year’s Secretary General’s report continues to document grave violations and abuses being committed against girls and boys – including the killing … of children … These despicable actions must be stopped.”  
Canada, Statement by the permanent representative of Canada during a UN Security Council open debate in connection with the agenda item “Children and Armed Conflict”, 19 September 2012, p. 2.