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Canada
Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Canada’s LOAC Manual (1999) states:
Commanders may be held personally and criminally liable in respect of illegal acts committed by those under their command, especially if they knew or should have known that such acts were being committed or were likely to be committed. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-1, § 7.
The manual also states:
Heads of state as well as members of the administration may be held personally and criminally responsible for illegalities committed … by persons under their authority if they knew, should have known or acquiesced in such behaviour. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 10.
The manual further states:
The fact that any such crime [i.e. a war crime] was committed by a subordinate does not relieve a superior of criminal responsibility if the superior knew or had reason to believe that the subordinate was about to commit a war crime, and the superior failed to take the necessary and reasonable measures to prevent or to punish the crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 27.
In addition, the manual states:
A commander who is aware that subordinates or other persons under his control are about to commit or have committed a breach of the LOAC is required to initiate such steps as are necessary to prevent violations of the LOAC and, where appropriate, to initiate disciplinary or penal action against these persons. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-7, § 51.
The manual also states:
The fact that a subordinate committed a breach of the LOAC does not absolve superiors from penal or disciplinary responsibility. Superiors are guilty of an offence if they knew, or had information which should have enabled them to conclude, in the circumstances ruling at the time, that the subordinate was committing or about to commit a breach of the LOAC, and they did not take all feasible measures within their power to prevent or repress the breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-7, § 53.
The manual also provides: “Commanders are responsible, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities, breaches of the LOAC.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-7, § 49.
Canada’s Code of Conduct (2001) contains the rule: “Report and take appropriate steps to stop breaches of the Law of Armed Conflict and these rules. Disobedience of the Law of Armed Conflict is a crime.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11.
The Code of Conduct goes on to say:
It is also of the utmost importance that any breach of the Code of Conduct or other provision of the Law of Armed Conflict be reported without delay. A failure to comply with the Code of Conduct represents a failure in the “habit of obedience’, the cornerstone of discipline. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, § 1.
The Code of Conduct adds:
If a CF [Canadian Forces] member believes that the Law of Armed Conflict or these rules are being breached, the member must take the appropriate steps to stop the illegal action. If the CF member is not in a position to stop the breach, then the member shall report to the nearest military authority who can take appropriate action. It is recognized that it may sometimes be difficult to report a breach, for example when a junior believes a breach has been committed by a higher ranking member. However, there is always a way to report a breach. The member can report to his or her superiors in the chain of command, the military police, a chaplain, a legal officer or any other person in authority. If a breach of the Law of Armed Conflict or these rules has already occurred, the member shall report that breach. The old adage “bad news doesn’t get better with time” definitely applies to these types of breaches. Any attempt to cover up a breach of the Law of Armed Conflict or these rules is in itself an offence under the Code of Service Discipline. Experience has shown that isolated breaches committed by a few members of the force, even a momentary lapse in one’s duty, could dishonour the country and adversely affect the accomplishment of the overall mission.
It is essential that any alleged breaches of these rules and the Law of Armed Conflict be investigated rapidly in as impartial a manner as possible. An impartial investigation will not only assist in bringing violators to justice, thereby maintaining discipline, but will also provide the best opportunity to clear anyone who has not acted improperly. In most cases that investigation will be carried out by the military police or National Investigation Service. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, §§ 2–3.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1014. Responsibility
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. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1014.
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual states:
1504. Command responsibility
1. Commanders have a responsibility to ensure that forces under their command are aware of their responsibilities related to the LOAC and that they behave in a manner consistent with the LOAC. Commanders may be held personally and criminally liable in respect of illegal acts committed by those under their command, especially if they knew or should have known that such acts were being committed or were likely to be committed …
1506. State responsibility
1. 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 or by persons under their authority if they knew, should have known or acquiesced in such behaviour. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1504 and 1506.1 [sic].
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states:
The fact that any such crime [i.e. a war crime] was committed by a subordinate does not relieve a superior of criminal responsibility if the superior knew or had reason to believe that the subordinate was about to commit a war crime, and the superior failed to take the necessary and reasonable measures to prevent or to punish the crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1610.4.
In the same chapter, the manual further states:
1621. Duty of commanders
1. Commanders are responsible, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities, breaches of the LOAC.
3. A commander who is aware that subordinates or other persons under his control are about to commit or have committed a breach of the LOAC is required to initiate such steps as are necessary to prevent violations of the LOAC and, where appropriate, to initiate disciplinary or penal action against these persons.
1622. Failure to act
1. The fact that a subordinate committed a breach of the LOAC does not absolve superiors from penal or disciplinary responsibility. Superiors are guilty of an offence if they knew, or had information which should have enabled them to conclude, in the circumstances ruling at the time, that the subordinate was committing or about to commit a breach of the LOAC, and they did not take all feasible measures within their power to prevent or repress the breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1621.1 and 3 and 1622.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Any evidence or allegation of grave breaches of the [the 1949 Geneva Conventions and the 1977 Additional Protocol I] are to be reported to an appropriate authority for further investigation. Such reporting shall be through the chain of command for a member of the Armed Forces, and through the PW Camp Commandant for a PW [prisoners of war]. 
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, § 103.1.
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 or for allowing it to occur are liable to be tried as war criminals. 
Canada, The Code of Conduct After Capture for the Canadian Forces, B-GJ-005-110/FP-010, National Defence Headquarters, 28 October 2004, § 301.
Rule 11 of Canada’s Code of Conduct (2005) states:
Report and take appropriate steps to stop breaches of the Law of Armed Conflict and these rules. Disobedience of the Law of Armed Conflict is a crime.
1. … It is also of the utmost importance that any breach of the Code of Conduct or other provision of the Law of Armed Conflict be reported without delay. A failure to comply with the Code of Conduct represents a failure in the “habit of obedience,” the cornerstone of discipline.
2. … If a CF [Canadian Forces] member believes that the Law of Armed Conflict or these rules are being breached, the member must take the appropriate steps to stop the illegal action. If the CF member is not in a position to stop the breach, then the member shall report to the nearest military authority who can take appropriate action. It is recognized that it may sometimes be difficult to report a breach, for example when a junior member believes a breach has been committed by a higher ranking member. However, there is always a way to report a breach. The member can report to his or her superiors in the chain of command, the military police, a chaplain, a legal officer or any other person in authority. If a breach of the Law of Armed Conflict or these rules has already occurred, the member shall report that breach. The old adage “bad news doesn’t get better with time” definitely applies to these types of breaches. Any attempt to cover up a breach of the Law of Armed Conflict or these rules is in itself an offence under the Code of Service Discipline. Experience has shown that isolated breaches committed by a few members of the force, even a momentary lapse in one’s duty, could dishonour the country and adversely affect the accomplishment of the overall mission.
3. It is essential that any alleged breaches of these rules and the Law of Armed Conflict be investigated rapidly in as impartial a manner as possible. An impartial investigation will not only assist in bringing violators to justice, thereby maintaining discipline, but will also provide the best opportunity to clear anyone who has not acted improperly. In most cases that investigation will be carried out by the military police or National Investigation Service. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 11, §§ 1–3.
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that military commanders and “superiors” may commit indictable offences if they meet all of the following conditions: (a) fail to “exercise control properly over a person under their effective command and control” and as a result that person commits a war crime; (b) know or are “criminally negligent in failing to know, that the person is about to commit or is committing such an offence”; and (c) subsequently fail to take “as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences” or fail “to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution”. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Article 7(1) and (2).
In the Boland case in 1995 involving the beating and killing of a Somali detainee by two Canadian soldiers, a Canadian Court Martial Appeal Court, increasing the sentence upon the accused who had been the superior of the soldiers who directly committed the acts, stated:
In his own examination-in-chief [the accused] confirmed on several occasions that he had been negligent. The sad but unalterable fact is that negligence led to the death of a prisoner. Even taking the view of the evidence most favorable to the respondent, the panel was bound to conclude that [the accused] had strong reason to be concerned about the conduct of [his subordinates] in respect of a helpless prisoner. Even if the panel believed he did not see [one of the subordinates] strike the prisoner on the first occasion and even if it concluded that [the accused] disbelieved [the] statement [of one of the subordinates] that [the other subordinate] had struck the prisoner after he, [the accused], had left, [the accused] had admitted that he considered [one of the subordinates] to be a “weak” soldier who could surely not be counted on to resist the initiatives [of the other subordinate]. He admitted having seen [one of the subordinates] do life-threatening acts to the prisoner by covering his nose and pouring water on him. He had subsequently heard [one of the subordinates] speak of intending to burn the prisoners with cigarettes. He thus had good grounds for apprehension as to [the] conduct [of one of the subordinates]. There was also evidence from even some defence witnesses that [the] reputation [of one of the subordinates] was well known. Yet, it was clear that [the accused] had said at least once and probably twice in the presence of [one of the subordinates]: “I don’t care what you do, just don’t kill the guy”. He gave no proper order to [one of the subordinates] as to safeguarding the prisoner and left him unsupervised. Nor was it in dispute that it was [the accused’s] responsibility to take all reasonable steps to see that the prisoner was held in a proper manner. [The accused] failed in the duty, with grave consequences.
I see nothing in the instructions of the Judge Advocate, nor in the sentence, to indicate the General Court Martial had a proper regard to the fundamental public policy which underlies the duty of a senior non-commissioned officer to safeguard the person or life of a civilian who is a prisoner of Canadian Forces, particularly from apprehended brutality or torture at the hands of our own troops. That is this case … No one can dispute the difficult and sometimes hazardous circumstances under which Canadian Forces were operating in Somalia in general, nor the physical problems which [the accused] himself was experiencing at this time. Nevertheless these circumstances call for the exercise of greater rather than less discipline particularly on the part of those in command of others. 
Canada, Court Martial Appeal Court, Boland case, Judgment, 16 May 1995.
In the Brocklebank case before the Canadian Court Martial Appeal Court in 1996, involving the question of the criminal responsibility of a Canadian soldier serving on a peacekeeping mission in Somalia for having negligently performed a military duty, the majority of the Court of Appeal stated:
The standard of care applicable to the charge of negligent performance of a military duty is that of the conduct expected of the reasonable person of the rank and in all the circumstances of the accused at the time and place the alleged offence occurred. In the context of a military operation, the standard of care will vary considerably in relation to the degree of responsibility exercised by the accused, the nature and purpose of the operation, and the exigencies of a particular situation. An emergency, or the heightened state of apprehension or urgency caused by the threats to the security of Canadian Armed Forces personnel or their material might mandate a more flexible standard than that expected in relatively non-threatening scenarios. Furthermore, in the military context, where discipline is the linchpin of the hierarchical command structure and insubordination attracts the harshest censure, a soldier cannot be held to the same exacting standard of care as a senior officer when faced with a situation where the discharge of his duty might bring him into direct conflict with the authority of a senior officer.
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. 
Canada, Court Martial Appeal Court, Brocklebank case, Judgment, 2 April 1996.
At the CDDH, Canada stated that the word “feasible” when used in the 1977 Additional Protocol I, for example, in Articles 57 and 58, “refers to what is practicable or practically possible, taking into account all circumstances existing at the relevant time, including those circumstances relevant to the success of military operations”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 224.
Upon ratification of the 1977 Additional Protocol I, Canada stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 5.
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:
Sections 5(1) and (2) and 7(1) and (2) [of the 2000 Crimes Against Humanity and War Crimes Act] also create offences for a military commander or superior whose breaches of responsibility result in a crime against humanity or war crime. 
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, § 177.