Applicants seek judicial review, argue exports breach international treaties and domestic law
By approving export permits for military goods and technology to Israel amid the ongoing war in Gaza, Global Affairs Canada is offside domestic and international law, argues a coalition that filed an application for judicial review at the Federal Court on Tuesday.
The applicants are three Palestinian Canadians, an asylum seeker, Canadian Lawyers for International Human Rights, and the Palestinian human rights NGO Al-Haq. They seek various declarations, including that any export permits allowing the transfer of military goods or technology to Israel, on or after Oct. 9, breach the Export and Import Permits Act (EIPA) and breach Canada’s international treaty obligations. The applicants ask the court to declare that export permits are unlawful because of the risk that the exports will be used to facilitate violations of international humanitarian law and international human rights law and place the federal government in breach of Canada’s obligations under s. 7 of the Charter.
“Fundamentally it’s about ensuring respect for internationally protected human rights and the rule of law,” says James Yap, a lawyer for the applicants. “The legislation is clear: once a substantial risk is made out, which it more than is here, then the government should not issue a permit to export arms, full stop. No other factor like who our allies are or where our geopolitical interests lie is relevant.”
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Under ss. 7.3-7.4 of the Export and Imports Permits Act, when deciding whether to issue a permit on “arms, ammunition, implements or munitions of war,” the Minister must consider whether their export would “contribute to peace and security or undermine it” and whether they could be “used to commit or facilitate” a “serious violation” of either international humanitarian law or international human rights law, “an act constituting an offence under international conventions or protocols relating to terrorism,” and “serious acts of violence against women and children.”
“The government is not just contravening its international obligations, it is flagrantly defying Canadian law and the express intent of Parliament as well,” he says. Barbara Jackman and Veromi Arsiradam are also representing the applicants. They have brought the notice of application against the Minister of Foreign Affairs and the Attorney General of Canada.
The applicants seek an order immediately quashing the issuance of export permits for military goods or technology to Israel, including items “capable of being adapted for military use.” They also want all previously issued permits cancelled and all pending permits denied.
Henry Off, a lawyer and board member for Canadian Lawyers for International Human Rights, says the lawsuit follows a growing trend of similar lawsuits in countries such as the US, the UK, and the Netherlands. Last month, a Dutch appeals court ordered their government to stop exporting F-35 fighter jet parts following a civil suit brought by three human rights organizations arguing that there was a clear risk the parts would be used to violate international humanitarian law. Belgium, Italy, and Spain have recently suspended arms exports to Israel.
“In many ways, we're asking the court to follow the example of the Dutch appeals court, and much like these countries, Canada has legal obligations not to supply these military goods,” says Off.
The applicants sent a letter to Minister of Foreign Affairs Mélanie Joly on Jan. 28 asking for information on the export of military goods or technology to Israel and demanding an end to the issuance of any such permits. They asked for a response within 14 days but did not receive one.
“All the while, the Canadian government has been approving the transfer of military goods and technology to fuel these violations of international law,” says Off. “They've actually dramatically increased.”
A spokesperson at Global Affairs Canada told Canadian Lawyer in February that “Canada has not received any requests, and therefore not issued any permits, for full weapon systems for major conventional arms or light weapons to Israel for over 30 years.” The permits granted to Israel since Oct. 7 have been only for “non-lethal equipment,” the spokesperson said.
But the applicants cite recent media reports based on Access to Information requests that reveal Canada approved $28.5 million in exports of military goods and technology between October 9 and early December. These include “bombs, torpedos. rockets, missiles, other explosive devices and charges and related equipment and accessories, and specially designed components,” according to the statement of claim. Off says the quantity of exports in just two months exceed annual totals going back many years. In all of 2022, Canada exported $21.3 million worth of military goods to Israel.
Canadian Lawyer contacted Global Affairs for this article and sent questions via email, but the ministry did not respond in time for the deadline.
Israel began its military campaign on Oct. 9, two days after the Hamas attack in Israel that killed around 1,200. The applicants argue that the conduct of the Israeli government and Israel Defence Forces (IDF) since the war began violates fundamental principles of international law, including serious violence against women and children. This includes the killing of more than 30,000 and injuring more than 71,000 people in Gaza, the majority of whom are women and children; the displacement of around 1.7 million people; the indiscriminate attacks on civilian infrastructure; and targeted attacks on hospitals, medical centres, ambulances, and medical convoys.
The alleged violations of international law include targeted attacks on zones and routes designated as “safe” by the Israeli government; the use of starvation as a method of war through withholding food, water, fuel, and electricity; attacks on humanitarian aid convoys and people seeking essential aid supplies; and the deliberate targeting of Palestinian children. The applicants also accuse the Israeli government and IDF of killing doctors, medical staff, journalists, civil defence, and aid workers; killing unarmed civilians waving white flags, including Israeli hostages; arbitrary detentions; and acts of genocide accompanied by statements by Israeli officials “demonstrating an intent to destroy the Palestinian population of Gaza in whole or in part.”
The applicants note that Canada and Israel are parties to the Geneva Conventions, which require partes “differentiate between legitimate military targets versus civilian populations and objects, prohibit attacks that would cause excessive incidental harm to civilians (including infrastructure) compared to the direct military advantage anticipated, and take all feasible precautions to avoid and minimize incidental harm to civilians.”
The applicants argue military exports to Israel are also counter to the Genocide Convention, the Rome Statute, the Arms Trade Treaty, and the International Covenant on Civil and Political Rights.
The applicants submit that s. 7 of the Charter, which protects “life, liberty, and security of the person” is engaged when the federal government decides to transfer military goods or technology to other states.
