Related Rule
Canada
Practice Relating to Rule 156. Definition of War Crimes
Canada’s LOAC Manual (1999) explains that:
Broadly speaking, “war crimes” include all violations of International Law in relation to an armed conflict for which individuals may be prosecuted and punished, including crimes against peace, crimes against humanity and genocide. In the narrow, technical sense “war crimes” are violations of the laws and customs of war. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-1, § 2.
The manual further states:
The term “war crime” in its narrower meaning is a technical expression for a violation of the laws or customs of war. This includes:
a. grave breaches of the Geneva Conventions or Additional Protocols to the Geneva Conventions;
b. violations of the Hague Conventions; and
c. violations of the customs of war. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 8.
At the end of the section dealing with “War crimes in the narrow sense”, which lists “Grave breaches of the 1949 Geneva Conventions”, “Grave breaches of Additional Protocol I” and “Violations of [the] Hague Conventions and customary law”, the manual also states: “The fact that a particular act is not listed here as a war crime does not preclude its being treated as a war crime if it is a violation of the laws and customs of war (LOAC).” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 22.
With respect to non-international armed conflicts, the manual notes: “When [the 1977 Additional Protocol II] was adopted, States refused to make violations of its provisions criminal offences.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 42.
The manual adds:
Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 43.
The manual also adds: “Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 44.
Canada’s LOAC Manual (2001) states in its chapter on “War crimes, individual criminal liability and command responsibility”:
1602. General
1. The term “war crime” may be considered in a broad sense as well as in narrow, technical sense. Broadly speaking “war crimes” include all violations of International Law in relation to an armed conflict for which individuals may be prosecuted and punished including crimes against peace, crimes against humanity and genocide. In the narrow, technical sense “war crimes” are violations of the laws and customs of war.
1606. Definition
1. The term “war crime” in its narrower meaning is a technical expression for a violation of the laws or customs of war. This includes:
a. grave breaches of the Geneva Convention[s] or Additional Protocols to the Geneva Conventions;
b. violations of the Hague Conventions; and
c. violations of the customs of war. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1602 and 1606.
At the end of the section dealing with “War crimes in the narrow sense”, which lists “Grave breaches of the 1949 Geneva Conventions”, “Grave breaches of Additional Protocol I” and “Violations of [the] Hague Conventions and customary law”, the manual also states: “The fact that a particular act is not listed here as a war crime does not preclude its being treated as a war crime if it is a violation of the laws and customs of war (LOAC).” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.4.
In its chapter on non-international armed conflicts, the manual states:
1725. Breaches of Protocol II
1. When [the 1977 Additional Protocol II] was adopted, states refused to make violations of its provisions regarding criminal offences. Certain nations were reluctant to allow other states to interfere in their internal affairs by way of trials for war crimes alleged to have taken place in their national territory.
2. Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts.
3. Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law. Such crimes may be tried by international tribunals such as the International Criminal Tribunal for Rwanda. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1725.
Canada’s Criminal Code (1985) states:
“War crime” means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts. 
Canada, Criminal Code, 1985, Article 3.76.
Canada’s Crimes against Humanity and War Crimes Act (2000) defines a war crime as:
an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Sections 4 and 6.
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 held:
II - TRIAL
[8] Mr. Munyaneza was charged under the Crimes Against Humanity and War Crimes Act (the “Act”), adopted by the Canadian Parliament in 2000 (S.C. 2000, c. 24). He is the first to be prosecuted under that legislation in Canada.
IV – THE LAW
3. THE CRIMES AGAINST HUMANITY AND WAR CRIMES ACT (“the Act”)
(B) War crime
[131] Subsection 6(3) of the Act defines a war crime as follows:
“war crime” means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
[132] The four Geneva Conventions of August 12, 1949 and their two Additional Protocols of June 8, 1977 constitute the foundations of international conventional law related to national or international armed conflicts.
[133] Canada has been a party to these conventions since May 14, 1965 and to the Protocols since November 20, 1990, and Rwanda, respectively, since May 5, 1964 and November 19, 1984.
[134] International conventional law related to armed conflicts was in force in Rwanda in 1994. The 1994 armed conflict was a national conflict, as the ICTR recognizes.
[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.
[138] The prosecution must demonstrate that:
(a) the armed conflict in Rwanda was non-international;
(b) the victims were not taking part in the hostilities at the time of the alleged violation;
(c) there was a nexus between the accused’s alleged crimes and the conflict.
(F) Non-international armed conflict
[147] For a war crime to be proven, there must be an armed conflict and the prohibited act must be related to it.
[148] It has been demonstrated, and it is not contested, that a non-international armed conflict occurred in Rwanda between April 1 and July 31, 1994 …
[149] A war crime can be committed far from the main hostilities. The perpetrator need not be a belligerent party but can be simply a civilian. The prohibited act must be related to the armed conflict:
… That requirement would be satisfied if the crime were committed either during or in the aftermath of the fighting, provided that it is committed in furtherance of, or at least under the guise of, the situation created by the fighting.
[150] An excerpt from Semanza [ICTR, The Prosecutor v. Laurent Semanza, Separate Opinion of Judge Yakov Ostrovsky, Trial Chamber III, 15 May 2003, Case No. ICTR-97-20-T] illustrates those words:
518. In the Chamber’s opinion, the ongoing armed conflict between the Rwandan government forces and the RPF [Rwandan Patriotic Front], which was identified with the Tutsi ethnic minority in Rwanda, both created the situation and provided a pretext for the extensive killings and other abuses of Tutsi civilians. The Chamber recalls that in this case the killings began in Gikoro and Bicumbi communes, shortly after the death of President Habyarimana, when the active hostilities resumed between the RPF and government forces. Civilians displaced by the armed conflict, as well as those fearing the increasing violence in their localities, who were mostly Tutsi, sought refuge at sites such as Mabare mosque, Musha church, and Mwulire Hill, or went into hiding, such as Victims A and B.
519. In the Chamber’s opinion, certain civilian and military authorities, as well as other important personalities, exploited the armed conflict to kill and mistreat Tutsis in Bicumbi and Gikoro. Rwandan government soldiers and gendarmes played an active role in the attacks against the concentrated refugee populations at Musha church, Mabare mosque, and Mwulire Hill. The participation of armed soldiers and gendarmes in the massacres substantially influenced the manner in which the killings were executed. The evidence reflects that these attacks generally involved a number of armed soldiers, gendarmes, Interahamwe militiamen, and commune authorities. The involvement of military officials and personnel in the killings of local Tutsi civilians tied these killings to the broader conflict.
520. The Accused participated in these operations by gathering or bringing Interahamwe militiamen and soldiers to the attacks. He also worked in tandem with the soldiers and Interahamwe to identify and kill Tutsi civilian refugees. The Chamber also recalls that with soldiers and high ranking military and commune officials at his side, the Accused asked a crowd how their work of killing the Tutsis was progressing and encouraged them to rape Tutsi women before killing them.
522. The Accused’s participation in the military operations conducted against civilian refugees and, in particular, his attempt to elicit information concerning the advance of the enemy army reveal that his conduct was closely related to the hostilities. The Chamber therefore has no doubt that a nexus existed between the Accused’s alleged offences and the armed conflict in Rwanda.
[151] The prosecution must demonstrate that the accused had knowledge of the armed conflict, that the illegal act he or she committed was related to it and that the victim was not a party to the conflict. The prosecution need not demonstrate that the accused knew he or she was committing a war crime.
[152] A war crime need not be premeditated and the prosecution need not demonstrate that it was committed in accordance with a given policy.
(G) A person who does not take part in the conflict
[153] For a war crime to occur in a non-international armed conflict, the victim must be a protected person taking no direct part in the hostilities, a civilian, or a person who has laid down his or her arms or has been placed hors de combat.
[154] That person is protected under Article 3, which is common to the Geneva Conventions of 1949 and the Protocols of [1977]. 
Canada, Superior Court, Criminal Division, Province of Québec, Munyaneza case, Judgment, 22 May 2009, §§ 8, 131–135, 138 and 147–154.
[footnotes in original omitted]
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.