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Canada’s Role in the Development of the Law of Armed Conflict
Published online by Cambridge University Press: 09 March 2016
Extract
Perhaps the most important contribution made by Canada to the development of armed conflict law, and one that is possibly equal in significance to that made by any other country, was not in fact made by Canada as such, but rather in response to Canadian actions. During the 1837 rebellion, Canadian forces had seized an American vessel, The Caroline, which had been used to support the rebels, and tipped it over Niagara Falls. In response to United States protests, the Canadian authorities justified their action on the ground of self-defence. In negotiations with the British, who then governed Canada, Daniel Webster, United States Secretary of State, propounded a formulation of the plea of self-defence which has stood the test of time. In his words, preventive action in foreign territory is only justified in the case of “an instant and overwhelming necessity for self-defence, leaving no choice of means, and no moment of deliberation.” This concept of the right is so universally accepted today that it was adopted in its Judgment by the International Military Tribunal at Nuremberg when rejecting Germany’s explanations of the invasions of Denmark and Norway.
- Type
- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 18 , 1981 , pp. 91 - 112
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1981
References
1 Note of August 6, 1842, 2 Moore, Digest of International Law 412.
2 U.K., Cmd. 6964 (1946), at 28.
3 21 Int’l Leg. Mat. (1977), Pr. I (international) 1391, Pr. II (non-int’l), 1442.
4 See, e.g., Hague Convention III, 1907, on the opening of hostilities.
5 See, e.g., Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham S. S. Co., [1939] 2 K.B. 544. For a discussion of the differentiation in terminology, see Green, , “Armed Conflict, War and Self-Defence,” 6 Archiv des Völkerrechts 387 (1957).Google Scholar
6 (1812) Stewart 301 (italics in original).
7 (1812) Stewart 333.
8 See, e.g., Llandovery Castle (1921), arising from the unlawful sinking of a British hospital ship carrying Canadian medical personnel (reported in Cameron, The Peleus Trial, 1948, App. IX). See also Green, , “The Man in the Field and the Maxim Ignorantia Juris Non Excusat,” 10 Rev. de Dr. de l’Univ. de Sherbrooke 135 (1979).Google Scholar
9 (1805) Stewart 49; see also Topay v. Crow’s Nest Pass Coal Co. (1914), 18 D.L.R. 784, and Re Beranik (1915), 25 D.L.R. 564.
10 [1925] Ex. C.R. 196, 199; see also his decision in Sec. of State for Canada v. Alien Property Custodian for the United States [1930] Ex. C.R. 75.
11 General Orders No. 100, 1863 ( Schindler, and Toman, , The Laws of Armed Conflicts 3 (1973), Art. 37.Google Scholar
12 Reg. 53 (ibid., 53).
13 (1813) Stewart 482.
14 Schindler and Toman, op. cit. supra, note 11, at 529 (italics added; cf. Convention Preamble, which speaks of “the cultural heritage of all mankind”).
15 (1812) Stewart 312 (italics in original) ; see also La Reine des Agnès, (1803) Stewart 9.
16 Justinian, Institutes, Lib. IV, tit. 17, s. 2.
17 [1916] 2 A.C. 77.
18 Thus, Art. 63 of the Treaty of Westphalia, 1648, provided for the release of all prisoners of war by both sides without payment of any ransom ; see Levie, , Prisoners of War in Infi Armed Conflict 5 (1978).Google Scholar
19 The Cossack, (1813) Stewart 313.
20 (1914) Ex. Ct. of Canada (Official Stenographer’s Notes, c. MacKenzie, and Laing, , Canada and the Law of Nations 515 (1938).Google Scholar
21 (1864) Stockton 208, 284.
22 See Foreign Enlistment Act, R.S.C. 1970, c. F-29.
23 (1947), ch. 3.
24 (1181) Stewart 254.
25 E.g., The Friendship (1803), 4 C. Rob. 420.
26 H.C. Deb., October 11, 1966, at 8510; December 21, 1966, at 11445-46.
27 Prisoners of War Convention (Schindler and Toman, op. cit. supra note 11, at 345), Arts. 84, 96, 99; moreover, no sentence of death may now be carried out on a prisoner of war until six months after notification to the Protecting Power, Arts. 100, 107.
28 [1946] 3 W.W.R. 678; see also R. v. Werner, [1947] S.A.L.R. 828.
29 Regulation 8.
30 Arts. 47-51.
31 (1943), 80 C.C.C. 279.
32 (1858), 169 E.R. 1105.
33 By the National Defence Act, R.S.C. 1970, c. N-4, s. 66(b), it is the duty of every Canadian taken prisoner of war to attempt to escape if the opportunity offers.
34 [1944] 3 W.W.R. 125.
35 Arts. 45, 51, 56, 60-75.
36 (1945) 83 C.C.C. 199.
37 (1945) 83 C.C.C. 353.
38 At 358, citing Order in Council P.C. 4121, December 13, 1939 (Proclamations and Orders in Council passed under the authority of the War Measures Act, vol. 1, at 218).
39 See text supra note 30.
40 R.S.C. 1927, c. 206 (the Regulations were appended to the O. in C).
41 These comments are based on the unpublished transcripts. The relevant extracts concerning the defence of superior orders are reproduced in Green, , Superior Orders in National and International Law 888–92 (1976).Google Scholar
42 (1945) 4 Law Reports of Trials of War Criminals, 1; (1946) 327 U.S. 1.
43 Re-enacted as a Schedule to the War Crimes Act, 1946, c. 73, s. 10 (4) and (5) (italics added).
44 The account given here is based on the unpublished transcript, pages 839, 840-45.
45 The Judge Advocate was the legal adviser to the Court. He took no part in reaching the actual judgment, but he summed up the evidence and expounded the law for the Court. Military tribunals did not render a reasoned judgment, and the summing up of the Judge Advocate, when the judgment was in line with his advice, must be regarded as expounding the Court’s view of the law.
46 In the Neitz case (1946), the Judge Advocate made the same point: “It is for you to say what the customs and usages of war are, and … in the final analysis, whether there has been a breach of those laws and customs … and to do so you may draw upon military knowledge which has been acquired from your years of experience in your profession” (unpublished transcript, page 197).
47 Art. 51(2).
48 Ibid.
49 Art. 52(2).
50 Art. 51(4), (5).
51 Art. 51 (5) (b).
52 Art. 54(1).
53 Art. 54(2).
54 Art. 37(1) (d).
55 Art. 85(4) (c).
56 See e.g., Green, , “Human Rights and the Law of Armed Conflict,” 9 Israel Yearbook on Human Rights (1979).Google Scholar
57 See I Canadian Defence Quarterly 64–67 (No. 2, 1971).
58 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Doc. CDDH/212, April 8, 1975.