Related Rule
Canada
Practice Relating to Rule 47. Attacks against Persons Hors de Combat
Canada’s LOAC Manual (1999) states: “It is prohibited to deny quarter”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 15 and p. 7-3, § 20.
It also states: “A combatant who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be attacked.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-3, § 18; see also p. 4-5, § 42, p. 6-2, § 16 and p. 7-3, § 21.
The manual further states that “making a person the object of attack knowing he is hors de combat” is a grave breach of the 1977 Additional Protocol I and a war crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 8(a) and p. 16-3, § 16(e).
Canada’s Code of Conduct (2001) provides: “The ‘denial of quarter’ is prohibited.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 5, § 2.
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”: “A combatant who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be attacked.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 309.2.
In its chapter on targeting, the manual further states:
408. Combatants
1. Combatants are legitimate targets and may be attacked unless they have been captured, surrendered, expressed a clear intention to surrender, or are hors de combat (i.e., out of combat), provided they refrain from hostile acts and do not attempt to escape …
433. Enemy “hors de combat”
1. A combatant who is recognized or who, in the circumstances, should be recognized to be hors de combat (out of combat) shall not be attacked. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 408.1 and 433.1.
In its chapter on land warfare, the manual also states: “It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 608.2.
Similarly, in its chapter on air warfare, the manual states: “It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 707.2.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual provides that “making a person the object of attack knowing he is hors de combat” constitutes a grave breach of the 1977 Additional Protocol I and a war crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.2.c.
Canada’s Code of Conduct (2005) instructs: “The ‘denial of quarter’ is prohibited.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 5, § 2.
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 1977 Additional Protocol I] … is guilty of an indictable offence.” 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada’s LOAC Manual (1999) provides:
It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).
A combatant is hors de combat if that person:
a. is in the power of an adverse Party (i.e., a prisoner);
b. clearly expresses an intention to surrender; or
c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of self defence;
provided that in any of these cases this person abstains from any hostile act and does not attempt to escape. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, §§ 16 and 17 (land warfare); see also pp. 3-2 and 3-3, §§ 17 and 18, p. 4-5, §§ 42 and 43 and p. 7-3, §§ 21 and 22 (air warfare).
The manual also states that “killing or wounding an enemy who, having laid down his arms or no longer having a means of defence, has surrendered” 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(c).
Likewise, “firing upon shipwrecked personnel” is a war crime “recognized by the LOAC”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 16-3 and 16-4, § 21(f).
Canada’s Code of Conduct (2001) instructs: “Do not attack those who surrender.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 5.
The Code of Conduct adds: “It is unlawful to refuse to accept someone’s surrender … Anyone who wishes to surrender must clearly show an intention to do so (e.g., hands up, throwing away his weapon, or showing a white flag).” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 5, §§ 2 and 3.
The Code of Conduct further provides:
Members of opposing forces who have been rendered unconscious or are otherwise incapacitated by wounds or sickness, and therefore are incapable of defending themselves, shall not be made the object of attack provided that they abstain from any hostile act. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 7, § 2.
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
A combatant is hors de combat (out of combat) if that person:
a. is in the power of an adverse party;
b. clearly expresses an intention to surrender; or
c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of self defence,
provided that in any of these cases the individual abstains from any hostile act and does not attempt to escape. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 309.1.
In its chapter on targeting, the manual further states:
433. Enemy “hors de combat”
2. A combatant is hors de combat if that person:
a. is in the power of an adverse party (PW);
b. clearly expresses an intention to surrender; or
c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending himself;
provided that in any of these cases the combatant abstains from any hostile act and does not attempt to escape.
434. Personnel bearing the white flag
1. Personnel bearing a white flag are indicating a desire to negotiate or surrender. They should not be attacked but should be dealt with cautiously …
435. Wounded, sick and shipwrecked
1. All the wounded, sick and shipwrecked, to whichever party they belong, shall be respected and protected and shall not be attacked.
2. The “wounded” and “sick” mean persons, whether military or civilian who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care. The wounded and sick are protected so long as they refrain from any act of hostility.
3. “Shipwrecked” means persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them. The shipwrecked are protected so long as they refrain from any act of hostility.
436. Prisoners of war
1. PWs [prisoners of war] must be protected and shall not be attacked so long as they refrain from any hostile act and do not attempt to escape. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 433.2, 434, 435.1–3 and 436.
In its chapter on land warfare, the manual also states:
2. It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).
3. A combatant is hors de combat if that person:
a. is in the power of an adverse Party (that is, a prisoner);
b. clearly expresses an intention to surrender; or
c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of self defence;
provided that in any of these cases this person abstains from any hostile act and does not attempt to escape. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 608.2–3.
Similarly, in its chapter on air warfare, the manual states:
2. It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).
3. A combatant is hors de combat when that person:
a. is in the power of an adverse party (that is, a prisoner);
b. clearly expresses an intention to surrender; or
c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of self-defence;
provided that in any of these cases such combatant abstains from any hostile act and does not attempt to escape. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 707.2–3.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “killing or wounding an enemy who, having laid down his arms or no longer having a means of defence, has surrendered” 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.d.
Likewise, “firing upon shipwrecked personnel” is a war crime “recognized by the LOAC”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.3.f.
Rule 5 of Canada’s Code of Conduct (2005) instructs: “Do not attack those who surrender.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 5.
The Code of Conduct further states:
Those who surrender and who are no longer a threat must be protected and treated humanely. The “denial of quarter” is prohibited. In other words, it is unlawful to refuse to accept someone’s surrender or to order that no PWs [prisoners of war] or detainees will be taken. It is also illegal as well as operationally unsound to make threats to opposing forces that no PWs or detainees will be taken. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 5, § 2.
With regard to intent to surrender, the Code of Conduct states: “Anyone who wishes to surrender must clearly show an intention to do so (e.g., hands up, throwing away his weapon, or showing a white flag).” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 5, § 3.
The Code of Conduct further states:
Members of opposing forces who have been rendered unconscious or are otherwise incapacitated by wounds or sickness, and therefore are incapable of defending themselves shall not be made the object of attack provided that they abstain from any hostile act. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 7, § 2.
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 2010, in the Semrau case, Canada’s General Court Martial stated:
[1] …[T]he panel of the General Court Martial found you guilty of having behaved in a disgraceful manner. You were also charged with second degree murder, of attempt to commit murder using a firearm, and of negligent performance of a military duty, but the panel found you not guilty of these charges. I must now impose a just and appropriate sentence.
[4] You were found guilty of behaving in a disgraceful manner contrary to section 93 of the Code of Service Discipline, which is in the National Defence Act (NDA). The Code of Service Discipline promotes the need for good order, discipline, and high morale. The Criminal Code does not contain an offence similar to the one found at section 93 of the National Defence Act. The prosecution had to prove each of the essential elements of this offence beyond a reasonable doubt before the panel could find you guilty of this offence. The elements of that offence are:
a. your identity as the alleged offender;
b. the date and place of the commission of the offence;
c. that you had shot an unarmed and wounded unnamed male person while acting as the Commander of call sign 72A Operational Mentoring Liaison Team;
d. that such act constitutes disgraceful behaviour; and
e. your blameworthy state of mind at the time of the commission of the offence.
[5] You deployed to Afghanistan in 2008 as part of the Operational Mentor Liaison Team [OMLT] assigned to mentor the Afghan National Army (ANA). You were the commander of call sign 72A. This team was composed of four members divided into two fire teams. During the month of October 2008, you were involved in a clearing operation with the Afghan National Army in Helmand province in Afghanistan. You were mentoring the commander of an Afghan infantry company during that operation. On 19 October 2008, the lead element of that company encountered an enemy position. Attack helicopters were called in to suppress the enemy position. You and your fire team partner were located with Captain Shaffigullah, the ANA company commander, at the rear of the company when you first came upon the first insurgent who was lying on a path by a cornfield.
[6] The situation on the ground at the time seemed relatively calm although the potential for danger is omnipresent in such combat operations. After a brief examination of the insurgent, the ANA company commander moved to the position of the dead insurgent in the next cornfield. You also went to the location of the second insurgent and then you returned to the location of the first insurgent so that your fire team partner could photograph the insurgent for intelligence purposes. Once the photographs had been taken, you shot the insurgent.
[7] Your identity as the offender and the time and place of the offence were never in contention during this trial. It was evident the insurgent was unarmed and that you were the commander call sign 72A at the time of the offence. The nature and extent of the insurgent’s wounds were described by numerous witnesses during the trial. Four witnesses testified he was alive when they observed him. I instructed the panel they had to be satisfied beyond a reasonable doubt that the unnamed male person was alive when you shot him, because the particulars of the charge allege that the unnamed male person was wounded. As I instructed the panel, a “wound” is defined as an injury to living tissue caused by a cut, blow, or other impact; thus one must be alive to be described as “wounded.” Therefore, I conclude the panel was satisfied beyond a reasonable doubt that the insurgent was still alive at the time you shot him.
[8] When addressing your state of mind, I instructed the panel that the prosecution had to prove beyond a reasonable doubt that you intended to shoot the unarmed and wounded unnamed person. I take from the panel's verdict that they believed you intentionally shot the first insurgent. It does not really matter whether you shot the insurgent twice in quick succession – a “double-tap,” as we are taught in our infantry training – or whether you only shot him once.
[9] As I explained to the panel, to behave in a disgraceful manner requires that the behaviour is shockingly unacceptable in the circumstances. “Shocking” is defined as causing indignation or disgust. Having considered all of the evidence on the roles and duties of the OMLT members, the conduct expected of CF [Canadian Forces] members involved in operations in Afghanistan and the evidence pertaining to the circumstances surrounding the shooting of the insurgent, the panel decided that this behaviour was shockingly unacceptable in the circumstances.
[10] Why is shooting an unarmed and wounded person considered disgraceful? The code of conduct for CF personnel clearly states that we must offer assistance to wounded enemies that do not pose a threat to us. The code of conduct was taught to every OMLT member and was part of the soldier's card issued to every OMLT member. It was clear from the testimony of every witness that one cannot shoot an unarmed and wounded enemy. I conclude that shooting a wounded and unarmed person in the circumstances of the present case is considered disgraceful because it is so fundamentally contrary to our values, doctrine, and training that it is shockingly unacceptable.
[33] The prosecutor stated that Canadian soldiers must treat the enemy hors de combat humanely and that such mistreatment represents a grave breach of the Geneva Conventions. He then mentioned you had not been convicted of a grave breach, but that he only wished to underline the seriousness of the offence. He also argued that ending the life of another is not permitted under Canadian law and that assisted suicide is an offence in Canada. He then referred to courts martial pertaining to the mistreatment of the young detainee in Somalia.
[34] I find these submissions orient the discussion in the wrong direction and are of no assistance to the court in determining an appropriate sentence. You were not charged under section 130 of the NDA of having committed a grave breach contrary to section 3 of the Geneva Conventions Act. You have not been found guilty of murder or of assisting a suicide. The facts surrounding this offence bear absolutely no resemblance to the facts surrounding the atrocities committed on the young Somali. I will say it again: You are to be sentenced for the offence for which you were convicted and not for an offence for which you might have been charged or for an offence for which you were found not guilty. The particulars of the charge do not allege you killed the insurgent; they allege you shot the insurgent.
[37] You explained to members of your team you felt you had to shoot the insurgent because of his condition. You told Captain Shaffigullah that you wanted to help the insurgent. Your actions might have been motivated by an honest belief you were doing the right thing; nonetheless, you committed a serious breach of discipline. You failed in your role as a leader because you chose to put aside your training and orders. Thus you put your subordinates in one of the most precarious situations imaginable: that of knowing their leader had committed a serious breach of discipline. …
[44] The Code of Service Discipline contains 60 distinctive military offences that may be found at ss. 73 to 129 of the National Defence Act. A review of the maximum sentences prescribed by these service offences indicates that this offence is objectively one of the more serious offences found the Code of Service Discipline. The maximum punishments for 28 of these 60 service offences are punishments of imprisonment for life or imprisonment for more than two years. The maximum punishment for behaving in a disgraceful manner is imprisonment for five years. Therefore, based on the maximum punishment a court martial may impose for this offence, the offence to which you have been found guilty is objectively one of the more serious service offences.
[45] Subjectively, this is also a serious offence. One must examine the conduct of the accused as well as the reasons why this behaviour is deemed disgraceful. The act of unlawfully shooting a wounded and unarmed person is serious. In the military context, you committed a grave breach of discipline because you decided to set aside your orders, training and fundamental principles. As I stated previously, this conduct is deemed disgraceful because it is so fundamentally contrary to our values and training that it is shockingly unacceptable. …
[47] … You decided to shoot an unarmed and wounded insurgent. Notwithstanding your motive, you chose not to follow the clear directives that had been provided to you throughout your training in the Canadian Forces and by your chain of command. … Had you respected the clear, simple rules found on your soldier’s card and inculcated in every Canadian soldier, you would not have shot the wounded and unarmed insurgent and you would not have behaved in a disgraceful manner.
[48] I believe this sentence must focus primarily on the denunciation of the conduct of the offender and on general and specific deterrence. …
[49] … Having considered the specific circumstances of this offence and of the offender, and the mitigating and aggravating factors, I do not believe that in the present case a sentence of imprisonment is the appropriate minimum necessary sentence to maintain discipline and to restore discipline in the offender and in military society. I would add that separating the offender from society, in our case military society, may be done through incarceration, but also through dismissal from Her Majesty's service.
[50] Dismissal with disgrace from Her Majesty's service is a most severe punishment. A punishment of dismissal with disgrace from Her Majesty's service means you are not eligible to serve Her Majesty again in any military or civil capacity unless there is an emergency or the punishment is set aside or altered. It also affects some of the benefits you could receive upon release from the CF.
[51] While the evidence as found in the exhibits and in the testimony of witnesses demonstrates that you are a person of good character, I have not been presented with any evidence that suggests you take responsibility for your actions and their consequences or that you would not repeat this serious breach of discipline. On 19 October 2008, you chose to shoot an unarmed and wounded insurgent instead of respecting clear, fundamental and unambiguous directives. This behaviour is unacceptable and is disgraceful. …
[52] The court must impose a sentence that will provide a clear message to you and to others that such behaviour is unacceptable and will not be tolerated. … You also demonstrated a lack of self-discipline and of respect for fundamental principles and orders. The sentence I am about to pronounce will address these concerns.
[53] … I conclude that the minimum necessary sentence in the present case is dismissal from Her Majesty’s service and a reduction in rank to the rank of second lieutenant. 
Canada, General Court Martial, Semrau case, Reasons for Sentence, 5 October 2010, §§ 1, 4–10, 33–34, 37, 44–45 and 47–53.
[footnote 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.
Canada’s LOAC Manual (1999) states:
Where persons entitled to protection as prisoners of war (PWs) have fallen into the power of an adverse party under unusual conditions of combat that prevent their evacuation as provided for in [the 1949 Geneva Convention III], they shall be released and all feasible precautions shall be taken to ensure their safety.
The “unusual conditions of combat” may include, for example, the capture of a PW by a long-range patrol that does not have the ability to properly evacuate the PW. In such circumstances, there would be an obligation to release the PW and take all feasible precautions to ensure his safety. Such precautions might include providing the PW with sufficient food and water or other aids to assist in rejoining unit lines. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-3, §§ 18 and 19.
Canada’s LOAC Manual (2001) states in its chapter on land warfare:
1. Where persons entitled to protection as prisoners of war (PWs) have fallen into the power of an adverse party under unusual conditions of combat that prevent their evacuation as provided for in the GIII, they shall be released and all feasible precautions shall be taken to ensure their safety. For the obligations of a belligerent with respect to the evacuation of PWs, refer to Chapter 10 (Treatment of Prisoners of War).
2. The “unusual conditions of combat” may include, for example, the capture of a PW by a long-range patrol that does not have the ability to evacuate the PW properly. In such circumstances, there would be an obligation to release the PW and take all feasible precautions to ensure his safety. Such precautions might include providing the PW with sufficient food and water or other aids to assist in rejoining unit lines. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 609.
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.