Senior officials discussed the legality of killing Canadian foreign terrorist fighters in Iraq and Syria after the government joined the coalition against the so-called Islamic State, according to the prime minister’s former national security advisor.
Richard Fadden, who was national security advisor to both Prime Ministers Justin Trudeau and Stephen Harper, said the officials decided that international law permitting the killing of combatants in armed conflicts applied to the anti-ISIS coalition.
“As I recall, a range of senior officials discussed the issue and were convinced that applying the law of armed conflict was appropriate in the circumstances,” Fadden said.
With about 100 extremists from Canada taking part in the conflicts in Syria and Iraq, their targeting by the coalition was likely discussed by officials at Justice Canada and the Judge Advocate General, the military’s legal advisor, in order to protect Canadian soldiers from possible prosecution.
But it doesn’t appear the officials briefed cabinet ministers at the time. Jason Kenney said the issue was never discussed when he was defence minister, a position he held until Nov. 2015. “I was never part of, or privy to, a discussion or exchange on targeting Canadians,” he said.
The targeting of Canadian citizens by the coalition to which Canada belongs has not been officially acknowledged by the government but Global News reported last week that a secret briefing note to Chief of Defence Staff Jonathan Vance said three Canadians had been targeted just in the first year of airstrikes.
The heavily-redacted Sept. 2015 document was a discussion of “strategic issues” arising from the targeting of enemy combatants, who were also Canadian citizens, during Operation Impact, the Canadian contribution to U.S.-led Operation Inherent Resolve.
Trudeau halted Canadian airstrikes against ISIS in 2016, but the military continues to participate in the coalition.
While few will mourn the deaths of Canadians who joined ISIS, their targeting by the coalition forces raises questions the government does not appear to want to discuss.
The details of the government’s policy on targeted strikes against its citizens, as well as the role of federal agencies, and whether they tracked and reviewed such killings, remain cloaked in mystery.
Asked Monday about Canada’s official policy, Public Safety Minister Ralph Goodale said only that police and security agencies “would be anxious” to track the movements of those who left Canada to join ISIS and other terror groups.
“Our police and security services are doing everything they possibly can to collect accurate information on every factor and every individual that may pose a threat to the security of Canada,” Goodale said.
He said security services “do not release” the number of Canadians killed in airstrikes. He said the assumption was that “some of them are dead, but it’s a very difficult number to confirm.”
Trudeau’s office said Goodale’s response would serve as “the response on behalf of the government.”
Defence Minister Harjit Sajjan said last week that Canada followed the laws of armed conflict. A key question, however, is how Canada interprets those laws. In which parts of countries like Iraq and Syria do they apply?
In addition, international law allows the targeting of those directly participating in hostilities. But the definition of “directly participating in hostilities” is interpreted broadly by the U.S. and more narrowly by others.
WATCH: Law professor says ‘Nothing wrong’ legally with U.S.-led coalition airstrikes killing Canadians joining ISIS
University of Ottawa law professor Craig Forcese said Canada’s new National Security and Intelligence Committee of Parliamentarians should examine how the government has been defining the term in Iraq and Syria.
“The Americans have a view on direct participation in hostilities which is not universally shared,” the national security law expert said. “I am not aware of any Canadian public statement of where we come down on this issue.”
Targeting may be occurring under the more permissive U.S. interpretation, Forcese said. He also questioned whether Canadian military lawyers conducted their own assessments of whether targets met the threshold.
“Keep in mind, if we are wrong on this, and people who are not directly participating in hostilities are targeted, that is a war crime. An auditing of the American judgment to see if it meets Canadian views on this threshold seems warranted.”
The parliamentary committee would not say whether it would examine the issue. Executive Director Rennie Marcoux said the committee preferred not to discuss its work. Neither Liberal, Conservative nor NDP MPs on the committee would comment.
Experts said that while international law permitted the killing of combatants in armed conflict, Canadian law and the Charter of Rights and Freedoms were untested on the issue of Canada’s participation in the targeting of Canadian citizens.
The briefing note acknowledged that while the nationality of “targeted individuals” was “not an issue”, “domestic Canadian policy, political, and legal concerns may emerge.”
“These issues are so serious that we clearly need a public inquiry led by someone of very significant stature,” said Ryan Alford, an associate professor at Lakehead University’s Bora Laskin Faculty of Law.
He said a retired Supreme Court justice might be appropriate to head an inquiry, which could look at whether Canada had simply followed U.S. policy on targeted strikes without one of its own.
Federal agencies would say little about the topic.
The military said it did not keep track of Canadians targeted in Operation Inherent Resolve.
“However, if during the targeting process, the CAF is made aware of possible Canadian citizens involved, the information is shared with appropriate government agencies for security reasons,” said Capt. Christopher Daniel, a National Defence spokesman.
Canadian Security Intelligence Service spokesperson Tahera Mufti said she could not confirm the agency’s role and said only that “the identity of Canadian foreign fighters involved in combat would be of interest” to its investigations.
The RCMP would not discuss whether its National Security Joint Operations Centre, which tracks Canadian “extremist travelers,” followed up on Canadians targeted in airstrikes.