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Canada
Practice Relating to Rule 58. Improper Use of the White Flag of Truce
Canada’s LOAC Manual (1999) provides: “It is prohibited … to deliberately misuse … internationally recognized protective emblems, signs or signals including the flag of truce.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 11(b).
It further states that “improperly using a flag of truce” constitutes a war crime. Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 20(f).
Canada’s LOAC Manual (2001) states in its chapter on land warfare that it is prohibited to “deliberately misuse … internationally recognized protective emblems, signs or signals including the flag of truce”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 605.1.b.
In its chapter entitled “Communications and contact between opposing forces”, the manual states:
Although reinforcements may be brought up while the parlementaire is conducting negotiations, it is an abuse of the white flag to make use of it solely for the purpose of moving troops without interference by the adverse party.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1402.6.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual further states that “improperly using a flag of truce” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.2.f.
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.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
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.
