Canada’s Failure to Prevent Genocide
The Legal Centre for Palestine’s case against the Canadian government seeks two key declarations from the government. In this post, we will focus on the first declaration: Canada has a duty to take all measures within its power to prevent genocide, and Canada has violated that duty.
Canada’s obligation to prevent genocide
Canada has an obligation to prevent genocide under both Canadian and international law. Canada ratified the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in 1952. A cornerstone of international law, the Genocide Convention codifies a legal duty to prevent genocide, stating:
“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
As customary international law, the rules that underlie the Genocide Convention are automatically part of domestic Canadian common law, without any need for legislative action by Parliament. However, the Canadian government has taken the additional steps to enshrine the punishment of genocide and other war crimes into its legal system via the Crimes Against Humanity and War Crimes Act in 2000.
An additional piece of customary international law which helps clarify international obligations of third parties is the Draft Articles on Responsibility of State for International Wrongful Acts (“Draft Articles”). Unlike the Genocide Convention, the Draft Articles are not legally binding in themselves, but they are frequently referenced by international courts. A key provision of the Draft Articles states,
“No State shall recognize as lawful a situation created by a serious breach… nor render aid or assistance in maintaining that situation.”
In January 2024, the International Court of Justice, the judicial body of the United Nations, decided that there was a plausible case of genocide in Gaza. This decision immediately triggers third state responsibility.
How Canada failed to prevent genocide in Gaza
In its responses to previous genocides in modern history, Canada has used sanctions, refugee resettlement, declarations, and even military action to attempt to fulfil its legal obligation of prevention. In contrast, Canada has not leveraged diplomatic, economic, or military action to exert meaningful influence over Israel, despite its close ties offering ample opportunity to make an impact.
Since October 9th, 2023, the Canadian government has not:
Ceased the export of parts for military equipment bound for Israel to the U.S.
Revised the Canada-Israel Strategic Partnership Memorandum of Understanding, which promotes defense cooperation
Imposed sanctions against members of any Israeli cabinet official or military officer
Deterred Canadian citizens from serving in Israel’s military
Banned the sale of products originating from Israel’s illegal West Bank settlements
These actions, were they undertaken, could have constituted a reasonable attempt to fulfil Canada’s third state obligation to prevent genocide. However, Canada has instead chosen to continue to cooperate with Israel, approving record levels of military exports in 2023 and even purchasing USD 32.2 million in missiles from an Israeli state-owned company.
Where the Canadian government has acted, it has been “too little too late”. In March 2024, after a non-binding motion passed Canadian Parliament, the Canadian Minister of Foreign Affairs announced that it would “suspend” future arms export licenses to Israel, without addressing existing arms export licenses or creating accountability mechanisms. Additionally, Canada launched a limited refugee resettlement program in December 2023, which only applied to relatives of Palestinian Canadians.
For these reasons, our lawyers arrived at the conclusion that Canada’s decision to not exert any meaningful influence over Israel during its bombardment of Gaza is an unjustifiable violation of its duty to prevent genocide.
