Practice Relating to Rule 96. Hostage-Taking
Canada’s LOAC Manual (1999) prohibits the taking of hostages in international and non-international armed conflicts.
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, states:
[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel. The following are expressly prohibited:
e. the taking of hostages.
In the same chapter, in a section entitled “Additional Protocol I”, the manual states:
1. [The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
c. the taking of hostages;
e. threats to commit any of the foregoing acts.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “In the case of civilians in the hands of the adverse party, it is also a grave breach: … e. to take hostages”.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
ii taking of hostages.
In the same chapter, the manual also states:
Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:
c. taking of hostages;
g. threats to commit any of the foregoing.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states: “Grave breaches of the 1949 Geneva Conventions and [the 1977 Additional Protocol I] include any of the following actions[:] … Taking hostage protected persons.”
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’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 the Fuentes case
in 2003, the Federal Court of Canada recognized that “the international community through its Convention against the taking of hostages has proscribed hostage taking and characterized it in the circumstances set out in that Convention as an act of terrorism”.
In the Ribic case in 2005, Canada’s Ontario Superior Court of Justice stated:
[H]ostage-taking is a very serious offence under any circumstances. That Parliament has made it punishable by up to life imprisonment underscores this. The fact that Parliament has asserted worldwide jurisdiction over hostage-taking committed by a Canadian or perpetrated against a Canadian signifies, as well, how seriously our country regards this offence. Even in war between nations that is recognized as war and as governed by international standards of war, the taking of hostages and threatening the lives of combatants or of civilians is not sanctioned and is a crime. There is absolutely no basis on which to countenance the taking of anyone hostage, let alone doing that to unarmed personnel of other nations participating in the work of the United Nations and trying to bring about and maintain a peace in a vicious civil war in which innocent civilians are being subjected to atrocities on widespread basis.
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.”