Killing Canadians: Targeted Killing is No Longer Theoretical for Canada
Wednesday, June 6, 2018 at 3:32PM
craigforcese in Chapter 05: Protecting Against International Insecurity and Armed Attack, Chapter 06: Countering Terrorism at the International Level, constitutional law, international law, targeted killing

Over at Global, Stewart Bell has a series of excellent stories on the “targeting” of Canadians in the armed conflict in Syria and Iraq. For the context, I recommend readers first review those stories here and here.

A few years back, Leah West and I memorialized our understanding the laws governing the overseas killing of Canadians. Much of this focus was on armed conflict situations, where killing of combatants is, for the most part, lawful. In Stewart’s most recent article, he cites me proposing the new National Security and Intelligence Committee of Parliamentarians (NSICoP) take up this issue, as its UK counterpart did in 2015. In our article, Leah and I urge:

Transparency on the legal basis of targeted killings by those states that engage in it has been modest, giving rise to the fear that such killings amount simply to expedient assassinations. Should the Canadian government embark on the path of targeted killings of Canadian nationals abroad (and, indeed, the extraterritorial use of force at all outside conventional “hot” armed conflicts), it should aim to meet a higher standard of accountability. The UK parliamentary committee studying the United Kingdom’s 2015 targeted killings made repeated observations about the indefiniteness of the UK government’s legal positions on key issues, a sobering assessment. It also observed, correctly, that

for the Government’s policy to command public confidence, and to make it more likely that decisions pursuant to it do not lead to breaches of the right to life, the decision-making process must be robust, with sufficient challenge built into the process, rigorous testing of intelligence to minimise the risk of mistakes, and access to the requisite advice including legal advice at the appropriate stages in the process.[1]

After all, targeted killing both presumes guilt and applies the sternest sanction any state could impose. It follows that for the sake of its credibility — and to preserve its personnel from legal exposure — the Canadian government should make its choices on the difficult legal conundrums raised in this article now rather than in the midst of a crisis. What is more, the government should articulate and debate those positions openly since these questions demand difficult policy choices that are not, in many instances, preordained by clear, existing law.

The bottom line is that we know next to nothing about the Canadian government’s legal thinking on targeted killing. The basic international humanitarian law issues are plain. But within those issues are a series of decisions on matters of legal interpretation that, to the best of my knowledge, have never been articulated by the government.  And so if I were the NSICoP, I would want answers to these questions:

International Law

  1. As a “jus ad bellum” matter, the government’s theory for lawful use of force in Syria is predicated on an “unwilling or unable” theory of self-defence, which it argues brings it into compliance with the UN Charter’s framework. What is the outer limit of that theory?  Now that Syria has demonstrated a greater willingness and ableness, does the self-defence justification abate?  This is the major problem with “unwilling or unable”: is it a one-way ratchet?
  2. The government clearly believes there is an armed conflict in Syria/Iraq, which triggers the “jus in bello” of international humanitarian law (or the law of armed conflict, LOAC). At what point does the degree of violence with the remnants of ISIS fall below the threshold for a non-international armed conflict, requiring thereafter full application of human rights law rather than LOAC?  Put another way, once an armed conflict is triggered, does it ever turn off? (This is a real issue since 9/11).
  3. Where LOAC applies, combatants may be targeted. And “civilians” who directly participate in hostilities (DPH) lose protected status and may be targeted. What does the government see as the threshold for DPH? Is it the International Committee of the Red Cross (ICRC) standard, which permits targeting only while the civilian is en route, partaking and returning from hostilities, or is does it follow the US view: once a civilian DPHs, they remain targetable until they permanently abandon participation in hostilities. Alternatively, would Canada consider that anyone who journeyed to join ISIS was in a continuous combat function and targetable, and therefore take a position that would surely exceed how the ICRC defines this concept?  I suspect that Canada simply follows the US on this, since we are simply participating in US target packaging. Would we continue to follow them if the US takes the view that the “armed conflict” against ISIS extends beyond the hot theatre of Iraq and Syria and extends to wherever ISIS affiliates may be found? That would be very controversial, as it means the places where you can lawfully kill becomes, potentially, the whole world.

Constitutional Law

  1. Does the government agree that the Charter applies to its extraterritorial targeting of Canadians, to the extent that Canada’s international obligations apply to the extraterritorial targeting of Canadians? I do not see how they could contest this point, given the Hape and Khadr line of cases.
  2. Does the government agree that Canada’s international obligations (under LOAC) do extend to the extraterritorial targeting of Canadians? Again, I cannot see how the government could argue that LOAC does not apply to Canada in Syria and Iraq.
  3. Does the government take the view that compliance with LOAC complies with the Charter? But if so, then it becomes even more important to resolve the LOAC issues raised in points 2 and 3 above.
  4. Does the government believe that the “international obligations” that serve at the litmus test for the extraterritorial application of the Charter are confined to those international law principles that protect the person (such as LOAC and human rights law)? What would the government say about the possibility that the Charter may also be engaged where other international law issues are in play, such as the jus ad bellum issues in point 1 above? Personally, I think it fair to conclude that the Charter is only engaged by person-protecting rules in international law and not state sovereignty-protecting rules, but the issue is undecided.

Other countries have pronounced on these issues (or at least some of the international ones). I think it is dangerous that Canada is clearly prepared to kill Canadians without explaining in any real way how it does so lawfully.  For one, that creates confusion even at the political level, with debates over “extrajudicial executions”. For another, when Canada applies a principled legal approach to the use of hard power, actually spelling out those principles distinguishes us from countries (say Russia) who are less fastidious. But the public might be forgiven for failing to see the difference between Russian bombing and Canadian bombing if Canada doesn’t bother with the explanations.

 

 


[1] Joint Committee on Human Rights, supra note 1 at para 4.24. See also ISC, supra note 11 at para 72, expressing related process concerns.

 

Update on Wednesday, June 6, 2018 at 9:03PM by Registered Commentercraigforcese

An exchange this evening prompts me to add a caveat: it is unclear from the memo released under ATIP whether Canada itself targeted the three Canadians who had been killed (as of 2015) as part of the Coalition mission. But it also seems clear that Canada has been willing to participate in a targeting process that *can* produce that outcome. That inference seems to follow naturally from what is left of the redacted memo. Either way, I believe the questions I raise are acute ones.

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