By Kendra Eyben, JD/MA in International Affairs at the University of Ottawa, Faculty of Law/Norman Patterson School of International Affairs at Carleton
The debate on acquiring armed drones for the Canadian Forces has entered a new phase. Chief of Defense Staff Jonathan Vance testified to Senators on March 6 that any CF drone acquisition needs to be capable of striking an enemy target. At this point, his opinion should hardly be controversial. Drones are safer for the human operator and cheaper than conventional aircraft. They are also incredible versatile. Drones, technically known as Unmanned Aerial Vehicles (UAVs), are the next evolution in air warfare. Canada would greatly benefit from this technology – and it fits within the Liberal government’s plan to create a ‘leaner, more agile, and better equipped’ military.
Unfortunately, the debate about drones is overshadowed by misconceptions and misunderstandings stemming from the American use of drones in the War on Terror. Errol Mendes wants the Trudeau government to develop a framework of transparency and accountability for the use of drones to avoid the public debate that has marred armed drone use in the United States. While that is sensible, it fails to address some key point that will differentiate Canada’s use of armed drones from how the United States has historically employed them. So before we even begin the debate, let’s clear a few things up.
First of all, the acquisition of a technology is not the endorsement of a policy. It’s important to stress that a significant amount of criticism against the US drone program is about the policy and not the technology itself.
Drones have been prominently endorsed by the Obama administration to conduct targeted killing operations within the War on Terror. The US government bases the legal legitimacy of targeted killing on several grounds including the Congressional Authorization for the Use of Military Force and the inherent powers vested in the Presidency to defend the country. The many critics of the US targeted killing program base their arguments against this program on human rights concerns, violations of the law of war and violations of US constitutional law among many other legal and ethical objections.
The targeted killing program – which has assassinated targets in countries such as Pakistan, Somalia and Yemen – is the most notorious and well-known policy for armed drones. Despite this, it is unlikely that Canada will implement a similar policy. Although Canada has been unclear as to what purpose drones should fulfill, the 2015 Defense Acquisition Guide suggests that UAVs will be used in surveillance and reconnaissance, the defense of the Arctic, maritime operations, and in providing ‘precision force application’ to support Land and Special Operations Forces. None of these policy options remotely resemble the US targeted killing program.
There is no basis in law or politics to suggest that Canada will engage in the same policy as the United States. Unlike the United States, Canadian executive power lacks any precedent when it comes to authorizing targeted killings. The development of a targeted killing policy to accompany armed drone acquisition in Canada is highly unlikely, and would no doubt be challenged politically and legally.
Secondly, who is using the drones is just as important as the purpose. Not all American drone strikes have the same source of authority, and it is important to distinguish them if we are going to have a sensible debate in Canada. American drones are divided between two lead agencies: the military via the Joint Special Operations Command under the Department of Defense and the Central Intelligence Agency (CIA). The Pentagon operates armed and non-armed UAVs within a military context. The CIA meanwhile is a civilian intelligence organization that operates drones according to an executive order which authorized the targeting and killing of suspects. The CIA use of drones is controversial for a number of reasons, many of which focus on the civilian and covert aspects of the targeted killing program. CIA employees are not members of the military, and are therefore not bound or protected by the laws of war in the same manner as uniformed combatants. Furthermore, the since the CIA is an intelligence agency, its operations are even less transparent than the military’s.
Other Canadian agencies, such as Transport Canada, are considering the procurement of UAVs. However, any drones with offensive capabilities would exclusively be run by Canada’s military given our existing laws. Unlike the United States, Canada’s intelligence agencies do not have the legal power to conduct deadly strikes. The Canadian Security Intelligence Service (CSIS) is permitted to operate abroad and has powers of “disruption”, however those powers of disruption do not extend to causing physical harm to individuals. CSIS, or any other Canadian intelligence agency, simply does not have the legal mandate to risk becoming a Canadian CIA with deadly, covert operating capabilities.
Canada will not be plagued by the same questions of transparency and accountability as the United States which suffered from confusion due to its two parallel programs. Of course, the Canadian military will have to ensure that the use of armed drones comply with the laws of war, however that is the same legal exercise that JAG lawyers conduct in various other contexts for our armed forces.
There are plenty of issues to discuss when it comes to Canada’s acquisition of armed drones. Canadian policy makers need to weigh many competing priorities. However, these debates are the same that accompany any major combat system acquisition. We can look to other countries such as the US as informative case studies, but we cannot forget that Canada has a unique context. And in that unique context, there’s really no reason to panic about armed drones.