Norma relacionada
Canada
Practice Relating to Rule 62. Improper Use of Flags or Military Emblems, Insignia or Uniforms of the Adversary
Canada’s LOAC Manual (1999) provides:
It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks.
When depositing its ratification of Additional Protocol I, Canada reserved the right to make use of the flags or military emblems, insignia or uniforms of adverse parties to shield, favour, protect or impede military operations. Any decision to do so should only be carried out with national level approval.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, §§ 13 and 14.
[emphasis in original]The manual also states: “It is not unlawful to use captured enemy aircraft. However, the enemy’s markings must be removed.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-3, § 19.
The manual considers it an act of perfidy in air warfare if a hostile act is committed while “using false markings on military aircraft such as the markings of … enemy aircraft”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-2 § 18(a).
In respect of naval warfare, the manual states: “Warships and auxiliary vessels are prohibited from opening fire while flying a false flag”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 8-10, § 78.
The manual also states that “improperly using … the national flag or military insignia and uniform of the enemy” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 20(f).
Canada’s LOAC Manual (2001) states in its chapter on land warfare:
1. It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks.
2. When depositing its ratification of Additional Protocol I, Canada reserved the right to make use of the flags or military emblems, insignia or uniforms of adverse parties to shield, favour, protect or impede military operations. Any decision to do so should only be carried out with national level approval.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 607.
[emphasis in original]In its chapter on air warfare, the manual provides:
3. The following are examples of perfidy in air warfare if a hostile act is committed while:
a. using false markings on military aircraft such as the markings of … enemy aircraft;
…
…
4. It is not unlawful to use captured enemy aircraft. However, the enemy’s markings must be removed.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 706.3.a and 4.
In its chapter on naval warfare, the manual states:
Certain types of ruses are not permitted. Warships and auxiliary vessels are prohibited from opening fire while flying a false flag. They may, however, display the enemy flag or a neutral flag during pursuit. Such conduct at sea is accepted or at least tolerated, whether the ship in question is pursuing an enemy ship or is trying to escape from it.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 856.4.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “improperly using … the national flag or military insignia and uniform of the enemy” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.2.f.
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.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
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.”
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Canada made a reservation upon ratification of the 1977 Additional Protocol I, stating that it “does not intend to be bound by the prohibitions contained in paragraph 2 of Article 39 to make use of military emblems, insignia or uniforms of adverse parties in order to shield, favour, protect or impede military operations”.
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 2.
