Practice Relating to Rule 92. Mutilation and Medical, Scientific or Biological Experiments
Canada’s LOAC Manual (1999) provides that it is a violation of the 1949 Geneva Convention I to “subject the wounded, sick and shipwrecked, even with their consent, to physical mutilations, medical or scientific experiments, or the removal of tissue for transplantation, except where justified by their medical needs”.
The manual prohibits similar acts with regard to persons protected by the 1949 Geneva Convention IV.
The manual further provides that it is a war crime and a grave breach of the 1977 Additional Protocol I to subject a person to a medical procedure that
is not indicated by the state of health of that person, and … is not consistent with generally accepted medical standards applicable in similar circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty [and to subject a person] to medical or scientific experiments, [or] the removal of tissue for transplantation, except for donations of blood or of skin for grafting given voluntarily and in conformity with generally accepted medical standards, unless justified by the medical needs of the person.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
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 or subjected to biological experiments, left without proper medical care and attention or exposed to conditions, which might result in contagion or infection. The term “wounded, sick and shipwrecked”, includes civilians.
909. Medical experiments
1. It is prohibited to subject the wounded, sick and shipwrecked, even with their consent, to physical mutilations, medical or scientific experiments, or the removal of tissue for transplantation, except where justified by their medical needs.
910. Blood transfusions and skin grafts
1. It is permitted to take donations of blood for transfusion or skin for grafting, provided this is done solely for therapeutic purposes and given voluntarily without coercion or inducement. The taking of blood or skin must be done in conditions consistent with standards and controls designed for the benefit of donor and recipient in accordance with generally accepted medical standards.
911. Right to refuse surgical operations
1. The wounded, sick and shipwrecked as well as any person detained as a PW [prisoner of war] or for any other purpose connected with the conflict is entitled to refuse any surgical operation. In such case, however, every endeavour should be made to secure from the PW a written and signed statement to this effect.
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.
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 not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel.
In the same chapter, in a section entitled “Additional Protocol I”, the manual 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:
e. threats to commit any of the foregoing acts.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states:
It is a grave breach of [the 1977 Additional Protocol II] to commit a wilful act or omission that seriously endangers the physical or mental health or integrity of any person who is in the power of a party other than the one on which that person depends. The wilful act or omission may consist of,
a. subjecting a person to a medical procedure that:
(1) is not indicated by the state of health of that person, and
(2) is not consistent with generally accepted medical standards applicable in similar circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty; or
b. subjecting a person, even with that person’s consent, to any of the following:
(1) physical mutilations,
(2) medical or scientific experiments,
(3) removal of tissue or organs for transplantation (except for donations of blood or of skin for grafting given voluntarily and in conformity with generally accepted medical standards), unless justified by the medical needs of the person.
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, mutilation, cruel treatment and torture.
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 as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
g. threats to commit any of the foregoing.
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’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 or of the 1977 Additional Protocol I] is guilty of an indictable offence.”
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 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 committed in Rwanda in 1994. The Court stated:
 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.
(C) Serious bodily or mental harm
 Rape, sexual violence, mutilation and interrogation accompanied by blows or threats are recognized as acts causing serious physical harm.
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.”
Upon ratification of the 1977 Additional Protocol I, Canada stated:
The Government of Canada does not intend to be bound by the prohibitions contained in Article 11, sub-paragraph 2 (c), with respect to Canadian nationals or other persons ordinarily resident in Canada who may be interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1, so long as the removal of tissue or organs for transplantation is in accordance with Canadian laws and applicable to the population generally and the operation is carried out in accordance with normal Canadian medical practices, standards or ethics.
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:
The CAHWCA [Crimes Against Humanity and War Crimes Act] criminalizes torture as an underlying offence for crimes against humanity and war crimes committed either inside or outside Canada, as provided in sections 4(3) and 6(3) of the CAHWCA.
The CAHWCA also criminalizes cruel, inhumane or degrading treatment, as such conduct may constitute a crime against humanity (which includes “other inhumane acts”) or a war crime (which includes inhuman treatment or wilfully causing great suffering, or serious injury to body or health, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; committing outrages upon personal dignity, in particular humiliating and degrading treatment are war crimes).
In 2012, in a statement before the UN Security Council during an 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 and maiming of children … These despicable actions must be stopped.”