Can Canada kill its own citizens in combat?

By Justin Ling July 6, 20186 July 2018

Can Canada kill its own citizens in combat?

 

That question has been thrust into the Canadian legal world in recent months, after Global News reported that, not only has Ottawa determined that it can legally kill fighters who fled Canada to fight for foreign terror groups, it likely already has.

In May, Global published a report detailing how the Canadian military had targeted three Canadian citizens in Syria and Iraq. Earlier in June, they released details on the discussions that occurred between senior officials on the legality and possibility of launching airstrikes that could kill Canadian citizens.

The discussion is the first time the issue has escaped from the academic legal world into actuality. While other countries, like the United States, United Kingdom, France, and Israel have all grappled with the legality and morality of killing its citizens on the battlefield, Canada has mostly sidestepped the issue.

In 2017, national security law professor Craig Forcese, who teaches at the University of Ottawa, published Killing Citizens: Core Legal Dilemmas in the Targeted Killing Abroad of Canadian Foreign Fighters, alongside Leah West Sherriff, who was pursuing her law degree at the University of Ottawa.

In that paper, Forcese and Sherriff note that Canada maintains a military legal structure that can, and has, held Canadian soldiers legally responsible for crimes — including Criminal Code offences — committed on the battlefield. Those types of charges, however, generally involve unauthorized actions, not specific orders from the chain of command. Lawful orders are required to comply with the law of armed conflict, which sets a legal basis for military actions. As such, the idea of a prosecutor bringing charges against Canadian Forces personnel, Forcese notes, seems remote.

But there is a constitutional question at play. Even if they have fled Canada to join a foreign terrorist organization, they may still retain their Charter rights. When it comes to targeted killings, the two write, “its lawfulness would depend, therefore, on whether the Charter reached a targeted killing conducted overseas and, if so, whether that killing was inconsistent with section 7’s guarantee and with section 1 of the Charter.”

The bulk of the courts’ analysis of how the Charter applies in foreign jurisdictions turns mostly on the Supreme Court of Canada’s decision in R v Hape, which saw the court determining whether a warrantless search in a foreign jurisdiction infringed an accused’s right to be free from unlawful search and seizure.

“Canadian law, including the Charter, cannot be enforced in another state’s territory without the other state’s consent,” the Supreme Court wrote in that case. The majority court continues: “Individuals in Canada who choose to engage in criminal activities that cross Canada’s territorial limits should expect to be governed by the laws of the state in which they find themselves,” but adds a caveat: “individual rights cannot be completely disregarded in the interests of transborder co-operation.”

That ruling is hardly definitive, Forcese and Sherriff note, given that Hape created “unexpected murkiness” on the issue.

They do note that, even if the Charter did apply, there might well be a compelling Section 1 case to justify the targeting of Canadian fighters in Syria and Iraq. “We suspect that in a targeted killing context, bona fide exigency in staving off a terrorist attack may be enough to satisfy these standards.”

Ultimately, they write, if Ottawa can ensure that the targeted killings comply with its international obligations — specifically, the targeting complies with the Geneva Convention of 1949 and the law of armed conflict — it seems entirely possible there is a legal basis for the killings.

“Based on the assessment in this article, targeted killing may be legal in international law. As a result, it may also be legal in domestic law, to the extent that the latter is indexed to international law,” they write, before adding: “But the details matter.”

That is, the Canadian Armed Forces would still need to ensure they have correctly identified the target, determined that the target is likely to perpetrate an attack, and that they have authority to conduct the strike in that territory.

Global did receive two pages of legal advice from Justice Canada regarding the strikes — they were, unfortunately, wholly redacted.

While the discussion may not have broken entirely into the public zeitgeist yet, Forcese is still drilling into the issue. The law professor, along with co-host Stephanie Carvin — assistant professor at The Norman Paterson School of International Affairs — released an episode of their national security podcast earlier this month where they broke down the issue and its legality with Major-General Blaise Cathcart, retired Judge Advocate General of the Canadian Armed Forces.

In the interview, Cathcart took issue with the idea that those foreign fighters would automatically have their full Charter rights, akin to what they would receive if they were to have committed their crime within Canada’s borders.

“They have rights under the law of armed conflict, no question,” he noted. But he echoed Forcese’s comments: “Citizenship has no role to play if you’re validly part of the enemy force.” He points to World War II case law, where American citizens had fought alongside the Italians and were captured. The courts determined that they did not have their full U.S. constitutional rights.

Regardless of the legality, there appears to be some  consensus that strong rules and oversight need to be maintained around any targeted killing programs to ensure that Canada doesn’t run afoul of the law of armed conflict.

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