Practice Relating to Rule 65. Perfidy
Section F. Simulation of protected status by using the distinctive emblems of the Geneva Conventions
Canada’s LOAC Manual (1999) states that “feigning … non-combatant status” is a perfidious act and that medical personnel of the armed forces are non-combatants.
The manual also provides that “using false markings on military aircraft such as the markings of … medical aircraft” is an act of perfidy in air warfare.
The manual further provides that “perfidious use of the distinctive emblem of the Red Cross or Red Crescent” constitutes a grave breach of the 1977 Additional Protocol I and a war crime.
Canada’s Code of Conduct (2001) provides: “The use of the Red Cross to shield the movement of troops or ammunitions is … prohibited … Committing a hostile act under the cover of the protection provided by the distinctive emblem would constitute perfidy.”
Canada’s LOAC Manual (2001) states in its chapter on naval warfare: “Warships and auxiliary vessels are also prohibited from actively simulating the status of: … f. vessels entitled to be identified by the emblem of the Red Cross or Red Crescent”.
In its chapter on air warfare, the manual states that it is an example of perfidy in air warfare “if a hostile act is committed while … using false markings on military aircraft such as the markings of … medical aircraft”.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual identifies as a grave breach of the 1977 Additional Protocol I and a war crime the “perfidious use of the distinctive emblem of the Red Cross or Red Crescent”.
Canada’s Code of Conduct (2005) provides:
False and improper use of the Red Cross/Red Crescent emblem is prohibited. The use of the Red Cross to shield the movement of troops or ammunitions is also prohibited. Perfidy is a war crime. Committing a hostile act under the cover of the protection provided by the distinctive emblem would constitute perfidy.
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.”
In an amendment to that Act, assented to on 22 June 2007, provision was made for the distinctive emblem contained within Additional Protocol III to be considered a distinctive emblem within the context of the Additional Protocol I provision that regards perfidious use of the distinctive emblem as a grave breach of the Protocol. This stated: “[T]he distinctive emblems mentioned in Article 85, paragraph 3(f) of [the 1977 Additional Protocol I] are deemed to include the third Protocol emblem, referred to in Article 2, paragraph 2 of [Additional Protocol III].”
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 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.”