Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters

Abstract

For the first time since the introduction of the Canadian Charter of Rights and Freedoms, Canada is 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, or to assist allies in doing so. This situation raises a host of novel legal issues, including the question of “targeted killing” confronted by the United Kingdom in 2015 when it directed military force against several Britons believed to plotting a terrorist attack. That incident sparked a report from the British Parliament highlighting legal dilemmas. This article does the same for Canada by focusing on the legal implications surrounding a targeted killing by the Canadian government of a Canadian citizen. It examines how a Canadian policy of targeted killing would oblige Canada to make choices on many weighty legal matters. First, it discusses the Canadian public law rules that apply when the Canadian Armed Forces deploy in armed conflicts overseas. It then analyzes the international laws governing military force, scrutinized from the perspective of 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. 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 a targeted killing of a Canadian.

Keywords: Canadian law, international law, use of force, terrorism, counter-terrorism, targeted killing, human rights law, international humanitarian law