What Role and Rules for Canada’s Armed Drones?

Published a short essay, “What Role and Rules for Canada’s Armed Drones,” in the Canadian Global Affairs Institute: Policy Perspectives, Dec. 23, 2018. Here is the abstract:

The Canadian government announced in June 2017 that it was planning to purchase and deploy armed drones. Yet to date it has provided virtually no information on how and for what purpose such armed drones would be used, beyond anodyne comments that they would be used like any other conventional weapon. However, conventional weapons have varying capabilities and purposes, and implicate international law in different ways as a result. Armed drones have been primarily used for the purpose of targeted killing, in ways that have raised significant legal questions and triggered claims of excessive civilian deaths. Canadians should be concerned about how, for what purpose, and according to what limitations the government plans to deploy armed drones. Other countries have provided greater transparency than Canada regarding the law and policy framework governing the use of armed drones. This short essay reviews how armed drones have been used elsewhere, explains the significant legal issues that are implicated by the different ways in which drones have been used and what that implies for the role of Canadian armed drones. It suggests that strict, clear and publicly disclosed limits be placed on drone use to ensure compliance with Canada’s international law obligations.

Jus ad Bellum Implications of Japan’s New National Security Laws

(Published in Opinio Juris, Apr. 21, 2016; re-published in The Asia-Pacific Journal: Japan Focus, Vol. 14, May 15, 2016)

Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes.

The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law. … Read more…

Media Should Stop Legitimizing Abe’s Article 9 ‘Reinterpretation’

(Published in The Japan Times, Jun. 13, 2015).

3 Con Law Scholars

Three of Japan’s preeminent constitutional law scholars testified on June 4 that the government’s recently tabled national security bills were unconstitutional. The proposed legislation is intended to implement the Cabinet resolution that purports to “reinterpret” the war-renouncing provision of the Constitution. The legal scholars’ testimony was greeted with apparent surprise in the media, as though it had not occurred to anyone until that moment that the draft bills might be unconstitutional.

The media reporting on the so-called reinterpretation has reflected a profound misunderstanding of the constitutional effect of the Cabinet resolution ever since it was issued last summer. The press has typically stated that the meaning of Article 9 had been “changed” or “revised” by the Cabinet resolution. That is simply wrong as a matter of law. It is important that the media understand that the Constitution was not amended or changed in any way by the Cabinet resolution, and that laws must continue to be judged against long established interpretations of Article 9. Otherwise, misleading and mistaken reporting on the issue could contribute to making an illegitimate attempt at reinterpretation a de facto amendment. … Read more…

Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'” … Read more…