Practice Relating to Rule 113. Treatment of the Dead
Section A. Respect for the dead
Canada’s LOAC Manual (1999) provides: “The remains of all persons who have died as a result of hostilities or while in occupation or detention in relation thereto shall be respected.”
The manual considers that “mutilation or other maltreatment of dead bodies” is a war crime.
Canada’s Code of Conduct (2001) provides that “there is … an obligation to … protect and pay proper respect for the dead”.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked: “The remains of all persons who have died as a result of hostilities or while in occupation or detention in relation thereto shall be respected, and their gravesites properly respected, maintained and marked.”
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, the manual states:
As far as military considerations permit, the belligerents must facilitate any steps to search for killed and wounded, to assist shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual further states that “mutilation or other maltreatment of dead bodies” is a war crime.
In its chapter on non-international armed conflicts, the manual states:
After any engagement and whenever circumstances permit, all possible steps must be taken without delay to search for and collect the wounded, sick and shipwrecked … Steps must also be taken to search for the dead [and] prevent their despoliation.
Canada’s Code of Conduct (2005) states that there is “an obligation to … protect and pay proper respect for the dead”.
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.”