Règle correspondante
Canada
Practice Relating to Rule 50. Destruction and Seizure of Property of an Adversary
Canada’s LOAC Manual (1999) states: “The destruction or seizure of enemy property, whether it belongs to private individuals or to the state, is forbidden unless the damage or seizure is imperatively demanded by the necessities of war.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-5, § 47.
The manual also provides, with respect to occupied territory:
Destruction is the partial or total damage of property. Property of any type of ownership may be damaged when such is necessary to, or results from, military operations either during or preparatory to combat. Destruction is forbidden except where there is some reasonable connection between the destruction of the property and the overcoming of the enemy forces.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-8, § 68.
The manual further states that “destroying or seizing enemy property, unless imperatively demanded by the necessities of war,” 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(g).
The manual also states that “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” are grave breaches of the 1949 Geneva Conventions and war crimes.
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 12.
Canada’s Code of Conduct (2001) provides for respect for civilian property. It states:
Military necessity may sometimes require the destruction of some civilian property in order to conduct operations. This destruction should not be done needlessly. The wanton destruction, theft or confiscation of civilian property is prohibited and is an offence under the Code of Service Discipline.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 4, § 5.
Canada’s LOAC Manual (2001) states in its chapter on land warfare: “The destruction or seizure of enemy property, whether it belongs to private individuals or to the state, is forbidden unless the damage or seizure is imperatively demanded by the necessities of war.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 621.
In its chapter on rights and duties of occupying powers, the manual states:
Destruction is the partial or total damage of property. Property of any type or ownership may be damaged when such is necessary to, or results from, military operations either during or preparatory to combat. Destruction is forbidden except where there is some reasonable connection between the destruction of the property and the overcoming of the enemy forces.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1237.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “destroying or seizing enemy property, unless imperatively demanded by the necessities of war” 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.g.
In the same chapter, the manual also states that “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”, are grave breaches of the 1949 Geneva Conventions and war crimes.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.4.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Grave breaches of the GCs [1949 Geneva Conventions] and AP I [Additional Protocol I] include any of the following actions.
…
b. The extensive destruction and appropriation of property protected by the GCs and AP I when this is not justified by military necessity and is carried out in an unlawful and wanton manner.
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, § 103.2.b.
Rule 4 of Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel: “Treat all civilians humanely and respect civilian property.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 4.
The Code of Conduct further explains:
1. Rule # 4 deals with the protection of civilians in the theatre of operations … Their property must also be respected. In general, civilians should be treated the way you would like you and your family to be treated in the same circumstances.
…
4. Compliance with rule #4 is one important difference between a disciplined professional force and a band of marauders. Respect for the property rights of civilians, including civilians in the territory of the opposing force, requires discipline. If you do not obey this rule, the civilian population may turn against you. The mission may thus be jeopardised and the conflict prolonged.
5. You must make every effort to avoid alienating the local civilian population. Reckless destruction of civilian property and disregard for personal ownership rights will place the overall military mission at risk as well as damage the reputation of Canada and its soldiers. Military necessity may sometimes require the destruction of some civilian property in order to conduct operations. This destruction should not be done needlessly. The wanton destruction, theft or confiscation of civilian property is prohibited and is an offence under the Code of Service Discipline.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 4, §§ 1 and 4–5.
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] … is guilty of an indictable offence.”
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada’s National Defence Act (1985) punishes “every person who … without orders from the person’s superior officer, improperly destroys or damages any property”.
Canada, National Defence Act, 1985, Section 77(d).
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.
