Recap of the CBA 2018 Military Law Conference

  • October 16, 2018
  • Lt-Cdr Derek Schroeder

The CBA National Military Law conference was held in Ottawa on the May 24, 2018 with a cyber theme.

Cyber issues have become pervasive for legal practitioners in both the private and public sectors. For those whose practice overlaps or touches upon military law, the conference provided an excellent lineup of speakers able to identify the uncertainty of cyber concepts as they relate to international law (be it in the law of armed conflict, public or private international law). They also identified general views of Canadian, treaty and new domestic law that can assist Canadian practitioners in providing advice to their clients.

Col. Robin Holman, Deputy Judge Advocate General, Operational and International Law, provided the keynote address. His opening set the stage for some ongoing themes throughout the conference. While Canada, as a general principle, might have accepted that international law applies to cyber activities by or on behalf of state actors, this view is not necessarily shared by all states. Fortunately, the two Tallinn manuals, an initiative led by experts in the field, provide guidance on legal questions currently left unaddressed by domestic state and international treaty law. Col. Holman also highlighted the ongoing legal development, through international organizations, of a consensus for cyber warfare concepts as they relate to state sovereignty.

Col. Holman was followed by Carolyn Knobel, Director General and Deputy Legal Advisor at Global Affairs Canada. Ms. Knobel reiterated that Canada views states as subject to international law when taking action within the realm of cyberspace. Although there has been, to date, a failure within the international community to establish a consensus or a clear rule-based order, Global Affairs Canada is seeking to promote Canada’s views and develop a national cybersecurity strategy.  Ms Knobel’s remarks were followed by a panel discussion between Martin Michaudville, Counsel at Justice Canada, and Karla Unger, Senior Counsel at the DoJ’s National Security Litigation and Advisory Group.  They reviewed for conference participants the complex relationships between the Communications Security Establishment, the Canadian Security Intelligence Service, the Canadian Armed Forces, the Department of National Defence and the Ministry of Public Safety. They reviewed Bill C-59, which establishes the National Security Intelligence Review Agency and in Part 3 establishes the Communications Security Establishment Act, which creates a mandate for defensive cyber operations and active cyber operations with ministerial cyber security authorisations that are not meant to cause bodily harm, obstruct justice, or democracy.

Later in the conference, Dr. Michael Hennessy, Professor and Interim Vice-Principal, Research and Dean of Graduate Studies;  and Dr. Scott Knight, Chair of Cyber Security, both at the Royal Military College of Canada, gave an illuminating presentation titled “The Cybersecurity Spectrum of Concerns,” discussing specific concepts connected to cyber operations through real-world examples of kill chains and offensive cyber effects. Their presentation elaborated on the need for more research, cooperation and engagement on cyber issues by both the broader military and legal community in Canada.

In the afternoon, Lt-Col. Nancy Isenor, Director of Law/Intelligence & Information Operations at the Office of the Judge Advocate General, and Robert Young, Legal Counsel at Global Affairs Canada, described their experiences and perspectives on the difficulty of establishing a consensus amongst states within the United Nations legal regime concerning basic cyber issues such as attribution.  Their presentation emphasized the importance of considering technological capability and the impact of technological development on the political interest of a state within international organizations.

In contrast to the challenges of defining cyber concepts within the United Nations, and a good example of Canada’s commitment to the rule of law, is the Convention on Cybercrime in force in Canada as of Nov. 1, 2015, which arose when Canada participated as an observer state on the Council of Europe. It is a criminal justice treaty that seeks to establish international cooperation and common standards for the investigation, policing and prosecution of cybercrime. The Lucca G7 Declaration on Responsible States Behaviour in Cyberspace is yet another example of progress for the rule of law amongst allies.

At its end, the conference shifted its focus to increasing the knowledge of participants on the applicability of the duty of procedural fairness to grievances within the Canadian Armed Forces. This update was presented by Chione Robinson and Tasha Emmerton, both Legal Counsel at the Military Grievances External Review Committee.  Their discussion included Issues relating to the correct standard of review, disclosure of the case to meet and delay in making determinations. 

Overall, the conference demonstrated to members the need to stay informed and engaged on emerging cyber legal issues and technological capability. Military law, like other areas of the law, overlaps with a diverse range of legal practices and is not just limited to those  who wear a uniform. For students, lawyers, judges, public servants, law enforcement agencies and Canadian citizens or organizations interested in the rule of law, cyberspace provides the perfect example of the importance of professional development and engagement with domestic Canadian military law and specific international legal issues.

Lt-Cdr Derek Shroeder is a legal officer in the office of the Judge Advocate General