Norma relacionada
Canada
Practice Relating to Rule 11. Indiscriminate Attacks
Canada’s LOAC Manual (1999) states that “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive collateral civilian damage” constitutes a grave breach.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16–3, § 16(b).
The manual also provides: “Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, § 22, see also p. 6-3, § 28, p. 7-5, § 48 and p. 8-5, § 38.
Canada’s LOAC Manual (2001) states in its chapter on targeting: “Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 416.1.
In its chapter on land warfare, the manual states: “The bombardment of any legitimate target must not be ‘indiscriminate.’”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 613.1.
In its chapter on air warfare, the manual states: “Indiscriminate attacks, as defined in Chapter 4 (Targeting), are prohibited.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 716.4.
In its chapter on naval warfare, the manual states:
1. The bombardment of any legitimate target must not be “indiscriminate”. It is prohibited to carry out an attack by bombardment by any means (such as aircraft, naval fire and missiles) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects.
2. This prohibition applies to shore bombardments by naval forces. In this respect, “shore bombardments” include bombardments from both ships and aircraft.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 827.1–2.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual further states that “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive collateral civilian damage” constitutes a grave breach of the 1977 Additional Protocol I.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.2.b.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides that “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).
In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of complicity in crimes against humanity in Libya. The Board stated:
[W]hen the conflict began in February 2011 in Libya you were called upon [by Al-Saadi Gaddafi] to provide … security services for him in Libya. …
…
Now, with respect to specific examples of crimes against humanity perpetrated by the Gaddafi regime, there is quite extensive documentary evidence that has been put forward by the Minister, so I’m going to mainly focus on the atrocities committed between February and August 2011, …
…
At least 16 civilians were killed in indiscriminate attacks in Misrata between April 14th and 17th in 2011, including one incident where eight people were killed while standing in line for bread.
…
I am … satisfied, based on the totality of the information before me, and the findings relating to both allegations, that there are reasonable grounds to believe that you are described pursuant to both paragraphs 35(1)(a) and 37(1)(b) of the Immigration Refugee Protection Act and I am therefore issuing deportation orders against you.
As per my explanation at the outset of the hearing on January 14th, 2013, and at the beginning of this decision today, the only avenue of recourse available to you is to seek judicial review from the Federal Court of Canada and that application must be filed with the courts within 15 days of today’s date.
Canada, Immigration and Refugee Board, Peters case, Record of an Admissibility Hearing under the Immigration and Refugee Protection Act, 29 January 2013, pp. 4, 13–14 and 15–16.
In 2013, in the MJS case, Canada’s Federal Court dismissed an appeal against the Applicant’s exclusion from refugee protection on grounds of complicity in war crimes and crimes against humanity. The Court stated:
[2] The Refugee Protection Division [the Panel] found that Mr. MJS was excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act … and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees …
…
IV. Analysis
(a) Did the Panel apply the wrong test to determine the complicity of Mr. MJS?
…
[22] The Panel also reiterated that Mr. MJS acknowledged in his testimony that he knew of the human rights violations committed by [the Group]. Earlier in its decision, the Panel found that “the documentary evidence clearly demonstrates that [the Group] committed crimes against humanity as well as war crimes in the period 1998 to 2005”, by, for example, … committing … indiscriminate attacks on civilians. …
[23] Simply because the Panel stated that some of these crimes had also been committed by [another group] does not detract from the Panel’s conclusion regarding [the Group’s] involvement in these crimes.
Canada, Federal Court, MJS case, Reasons for Judgment and Judgment, 20 March 2013, §§ 2 and 22–23.
In 2011, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, the deputy permanent representative of Canada stated:
The attack against UNHCR in Kandahar, Afghanistan, on October 31st, serves as a reminder of the great risks for those who work tirelessly to deliver humanitarian assistance. … These attacks underscore the importance of continued and sustained cooperation between the international and Afghan security forces to ensure civilians are protected from indiscriminate acts of violence.
Canada, Statement by the deputy permanent representative of Canada during a UN Security Council meeting on the protection of civilians in armed conflict, 9 November 2011.
