Practice Relating to Rule 144. Ensuring Respect for International Humanitarian Law Erga Omnes
In the Sinnappu case before a Canadian Federal Court in 1997, the applicants, unsuccessful claimants for refugee status, argued that, inter alia, their deportation to Sri Lanka would violate Canada’s obligations under the Geneva Conventions Act of 1985. The judge held:
I cannot agree that common Article 1 of the Geneva Conventions of 1949 imposes upon Canada an obligation not to return unsuccessful refugee claimants to Sri Lanka. In my opinion, Sri Lanka is engaged in an internal armed conflict to which common Article 3 of the Geneva Conventions, 1949 and customary law on armed conflicts apply. Since Canada has no involvement whatsoever in that dispute, common Article 1 of the Geneva Conventions, 1949 does not impose upon our country an obligation to ensure that the parties to that conflict respect common Article 3. Furthermore, even if Canada does have such an obligation under common Article 1, I cannot accept that it would affect the application of our laws pertaining to immigration. Alternatively, even if I am wrong in determining that the armed conflict in Sri Lanka is internal in nature, I have nevertheless concluded that nothing in common Article 1 of the Geneva Conventions, 1949 would prevent Canada from removing a person, who had exhausted all of his avenues of recourse under the Act and Regulations, to the territory of a state engaged in an international armed conflict.
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated:
Australia, Canada and New Zealand condemn the ongoing grave violations of human rights and international humanitarian law in Darfur, Sudan, which are having a huge impact on the civilian population in that part of the country … We call on the Government of Sudan to acknowledge these violations of human rights and international humanitarian law, and for it and all parties to the conflict in Darfur to take the necessary measures to halt the atrocities being committed against the civilian population and to respect their international legal obligations.
In 2006, in response to a question during House of Commons debates relating to the Canadian Government’s reaction to civilian deaths in the Gaza Strip in consequence of armed violence, Canada’s Minister of Foreign Affairs and Minister of the Atlantic Canada Opportunities Agency stated: “We called upon the Palestinian Authority, as well as Israel, to take concrete steps toward reducing violence, protecting civilian life and taking all steps to move toward a peaceful solution.”
In 2009, in its third and fourth periodic reports to the Committee on the Rights of the Child, Canada stated under the heading “Optional Protocol on the involvement of children in armed conflict”:
Under current export control policy guidelines, the Government of Canada closely controls the export of military goods and technology to countries that pose a threat to Canada and its allies; that are involved in or under imminent threat of hostilities; that are under United Nations Security Council sanctions; or whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population. An application to export small arms and light weapons to a country where they might be utilized by child soldiers, regardless of whether these children take a direct part in hostilities as members of their armed forces or armed groups that are distinct from the armed forces of a State, would be closely examined. Any available information in this regard would be among the most important considerations of the Minister in reaching a decision on the disposal of such an application.
[footnote in original omitted]
In 2012, in a statement before the Third Committee of the UN General Assembly on the promotion and protection of human rights, the permanent representative of Canada stated:
[A]ll parties to the conflict [in Syria] must respect international law and ensure the protection of civilians … Canada has imposed tough sanctions on the Assad regime. We call upon the [UN] Security Council and the international community to do the same to increase international pressure on the Syrian regime. Canada calls … for those countries in a position to influence Syria to press the Syrian regime to end the violence and allow an inclusive, Syrian-led political transition to occur.
In 2013, in a statement before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, the permanent representative of Canada stated:
The Friends … urge relevant Member States to allow for dialogue between the United Nations and non-state actors to influence them to cease violations against children and conclude and implement action plans to this end … The Friends [network] reiterates its call for the [Security] Council to ensure that grave violations against children trigger the imposition of sanctions in all relevant sanctions committees.
In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the permanent representative of Canada stated: “Canada calls on all parties to the conflict in Syria to refrain from attacking civilians and other protected persons and facilities in conformity with their obligations under international law.”