Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Terrorist Fighters Abroad
Craig Forcese & Leah West Sherriff
(2017) 54 Canadian Yearbook of International Law, 134-187
For the first time since the introduction of the Canadian Charter of Rights and
Freedoms, Canada is in an armed conflict with an insurgency that has actively recruited Canadians and directed them to use or promote violence against Canada. In the result, the Canadian government may ask its soldiers to target and kill fellow Canadians abroad or to assist allies in doing so. This situation raises a host of novel legal issues, including the question of “targeted killing.” This matter arose for the United Kingdom in 2015 when it directed the use of military force against several Britons believed to be plotting a terrorist attack against the United Kingdom from abroad. This incident sparked a report from the British Parliament highlighting legal dilemmas. This article does the same for Canada by focusing on the main legal implications surrounding a targeted killing by the Canadian government of a Canadian citizen abroad. This exercise shows that a Canadian policy of targeted killing would oblige Canada to make choices on several weighty legal matters. First, the article discusses the Canadian public law rules that apply when the Canadian Armed Forces deploy in armed conflicts overseas. It then analyzes international law governing state uses of military force, including the regulation of the use of force (jus ad bellum) and the law of armed conflict (jus in bello). It also examines an alternative body of international law: that governing peacetime uses of lethal force by states. The article concludes by weaving together these areas of law into a single set of legal questions that would necessarily need to be addressed prior to the targeted killing of a Canadian abroad.
About the Author:
Craig Forcese teaches public international law, national security law, administrative law and constitutional law. He also co-teaches advanced international law and relations at the Norman Paterson School of International Affairs. He also co-organizes and instructs the Canadian component of Georgetown Law’s National Security Crisis Law course and simulation. In 2017, Professor Forcese and Kent Roach received the Canadian Civil Liberties Association Award for Excellence in Public Engagement (“for courage and commitment to human rights, human dignity and freedom”). In 2016, he was named jointly with Professor Kent Roach as among the “Top 25 most Influential in the justice system and legal profession” by Canadian Lawyer Magazine. In response to their work on national security law, Craig and Kent also received the Canadian Law and Society Association Book Prize (for their book False Security) and the Reg Robson Award (given annually by the BC Civil Liberties Association “to honour a community member who has demonstrated a substantial and long-lasting contribution to the cause of civil liberties in B.C. and Canada”). Professor Forcese was inducted as a member of the uOttawa Common Law Honour Society in 2016.