Canadian drones and the UN arms embargo on Libya

The sale of a Canadian-built surveillance drone to Libyan rebels last summer may well have been in violation of the UN arms embargo. The Government says it has asked the RCMP to investigate.

In addition, a major gap in Canada’s military export control policy is exposed by reports that the Canadian Government, while encouraging the transfer of the drone,[i] the Aeryon Scout, to Libyan rebels in aid of their fight against the Gadhafi regime,[ii] allowed the sale to go through without any requirement for an export permit.

The Globe and Mail quoted CEO Dave Kroetsch of the manufacturer, Aeryon Labs Inc. of Waterloo, as saying, “we were approached by the Canadian government. They were very much aware of our technology” and also aware of the Libyan rebels’ interest in
surveillance drones.[iii] The New York Times quoted Mr. Kroetsch as saying the government had no objections, partly because the drone they were supplying was a civilian version, the kind that oil companies sometime use to survey spills.[iv]

Despite apparent official enthusiasm for the sale, it was at the time not at all clear whether the sale conformed to the arms embargo imposed by the UN Security Council (via Resolution 1970)[v] or to Canada’s own stricter regulations promulgated in February 2011.[vi]

The UN embargo did include provisions for exempting non-lethal military equipment intended for humanitarian and protection purposes, provided advance permission was received from the Security Council Libyan Sanctions Committee,[vii] a requirement acknowledged in an internal DFAIT memo acquired by La Presse.[viii] So the immediate question is, did Canada seek and receive advance permission from the UNSC Committee for the transfer of the aerial surveillance drone to Libya?

The question was put to the Department of Foreign Affairs and International Trade at the end of August and a one-sentence answer came on November 30 from a DFAIT spokesperson: “We have asked the RCMP to investigate these reports to ensure our sanctions are respected.” The response obviously fails to address the basic question about Security Council permission for the transfer, and it just as obviously raises a whole new set of questions.

The Government has not elaborated on its statement regarding the RCMP; Aeryon Labs was not prepared to comment, except to explain, in a telephone conversation, that it was not the exporter. It sold the Scout to another Canadian company, and while Aeryon would not identify its customer, the reports in the Times and the Globe and Mail identify Zariba Security of Ottawa as having delivered the Aeryon Scout to the Libyan rebels. Zariba
Security has not responded to inquiries.

If the Canadian Government had provided a permit for the sale, then the call on the RCMP would seem to be to investigate the Government’s own role, but it now seems clear that the exporter did not apply for an export permit and that therefore the Canadian Government did not give direct or formal approval to the sale – and thus Security Council permission was also not pursued.[ix]

That in turn points to a gap in Canadian export control policy. By treating the export as a commercial deal, based on the manufacturer’s assurance that the particular Aeryon Scout on offer was the civilian, not military, version, Zariba Security was taking advantage of the loophole that allows Canadians to supply equipment to foreign military end-users, provided the equipment has a civilian designation. Canadian firms regularly sell equipment designated as civilian to military forces which use it for military purposes
without having to get an export permit. Project Ploughshares tracks many such
sales, including civilian helicopter sales to the Pakistani military in 2004 without a permit.[x]

In the case of the Aeryon Scout, it is highly unlikely that the company would have proceeded with the shipment of what is clearly a dual-use piece of equipment[xi]
to a very active war zone for war purposes without consultation with the Government, without at least informal support for treating it as a civilian or non-military sale, and without confirmation that an export permit would not be needed.

But, even if Canadian export policy makes such a distinction (offering in effect a massive loophole through which a lot of equipment is shipped to foreign military forces without appropriate regulatory oversight), that does not mean the UN observes the same civilian/military distinction in managing equipment sent to a proscribed military user.

The Libyan embargo applies to a broad range of military and “paramilitary” equipment and, significantly in this case, to military training and technical assistance. So even in the unlikely case that the UN Committee would regard a surveillance drone deployed by rebel forces in offensive military operations as civilian just because the exporter called it
that (a proposition no less a sleight of hand than was the sale of “civilian” helicopters
to the Pakistani military without a permit), there remains the fact acknowledged by the company that when it delivered the drone to the Libyan rebels, a company representative accompanied the delivery and provided training and technical assistance to the rebels.

The implication is that the transfer was in fact a violation of the UN embargo and the Canadian regulations, paragraph 3 of the latter saying: “Persons in Canada and Canadians outside Canada SHALL NOT knowingly export, sell, supply or ship arms and related materials to Libya or any person in Libya. The term ‘arms and related materials’ means any type of weapon, ammunition, military vehicle or military or paramilitary equipment, and includes their spare parts.” Paragraph 5 says: “Persons in Canada and Canadians outside Canada SHALL NOT knowingly provide or transfer, to any person in Libya, technical assistance, financial assistance or other assistance related to military activities.”[xii]

Whether or not Canadian authorities were as enthusiastic about the sale of the drone to Libyan rebels as portrayed by the company is uncertain, though certainly not unlikely. Nevertheless, the Government’s decision now to have the RCMP investigate the sale is well
warranted inasmuch as there are several points at which the transfer could have been in violation of Canadian regulations promulgated to implement the UN embargo.

In the first instance, even if the version of the drone sent was defined as civilian by the manufacturer, it would hardly be surprising for the UN Sanctions Committee to regard it as military equipment within its broad designation of “arms and related materiel of all types,” including paramilitary equipment. The manufacturer promotes the Aeryon Scout as a military surveillance system, meaning that at the very least it would seem logical to regard it as “related” to military equipment under the UN Resolution.

It may also be that regulators in the Canadian Government are not now confident that the particular drone shipped was in fact the civilian version.

Third, given that the UNSC embargo extends to technical assistance and training, both of which were supplied by the exporting company, the company could have been in violation of the UN resolution and the Canadian sanctions regulations on those grounds.

The question is whether Canada was in full compliance with the UN Resolution and whether Canada’s lax control over the sale of nominally civilian equipment to military end-users led to insufficient regulation and a failure to ensure that prohibited equipment did not reach Libyans in violation of the embargo.

eregehr@uwaterloo.ca

Notes


[i] The Aeryon Scout, built by Aeryon Labs Inc. of Waterloo, ON, “is a [small,
suit-case size] vertical take-off and landing (VTOL) micro unmanned aerial
vehicle used for tactical, over-the-hill aerial intelligence.” http://www.aeryon.com/.

[ii] Tu Thanh Ha, “How high-tech Canadian drones gave Libyan rebels a boost, The Globe and Mail, 23 August 2011. http://www.theglobeandmail.com/news/world/africa-mideast/how-high-tech-canadian-drones-gave-libyan-rebels-a-boost/article2139481/.

Ian Austen, “Libyan Rebels Reportedly Used Tiny Canadian Surveillance Drone,” New York Times, 24 August 2011. http://www.nytimes.com/2011/08/25/world/africa/25canada.html.

[iii] Tu Thanh Ha, “How high-tech Canadian drones gave Libyan rebels a boost, The Globe and Mail, 23 August 2011. http://www.theglobeandmail.com/news/world/africa-mideast/how-high-tech-canadian-drones-gave-libyan-rebels-a-boost/article2139481/.

[iv] Ian Austen, “Libyan Rebels Reportedly Used Tiny Canadian Surveillance Drone,” New York Times, 24 August 2011. http://www.nytimes.com/2011/08/25/world/africa/25canada.html.

[v] United Nations Security Council Resolution 1979 (S/RES/1970), 26 February 2011.
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/245/58/PDF/N1124558.pdf?OpenElement.

[vi] As reported and summarized by Cyndee Todgham Cherniak, “Summary of Canada’s New Trade and Economic Sanctions Against Libya,” Trade Lawyers Blog, 02 March 2011.
http://tradelawyersblog.com/blog/archive/2011/march/article/summary-of-canadas-new-trade-and-economic-sanctions-against-libya/?tx_ttnews%5Bday%5D=02&cHash=822eb6f8ee

[vii] Subsequently, under the UNSC Resolution 2009 (S/RES/2009) 16 Septmber, 2011,
further exemptions are added for military equipment “intended solely for security or disarmament assistance to the Libyan authorities,” but still only with prior approval from
the Security Council Sanctions Committee. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/502/44/PDF/N1150244.pdf?OpenElement.

[viii] The Montreal newspaper La Presse received, through an access to information request, a copy of a heavily redacted Departmental memo of April 2011 to the Minister of Foreign Affairs, which states that, “under the Libya Regulations [established by Canada], Canada generally cannot permit the export of arms or technical assistance to Libya
without the prior approval of the UN 1970 Sanctions Committee.

[ix] The Montreal newspaper La Presse received, through an access to information request, a copy of a heavily redacted Departmental memo of April 2011 to the Minister of Foreign Affairs which discusses the possibility that advance Security Council approval would not be required since UN Security Council Resolution 1973 over-rides the
embargo because it authorizes “all necessary measures…to protect civilians.”
The memo is noncommittal on the issue, saying some states like the US have
supported this interpretation while others have not.

[x] Kenneth Epps, “Canadian Helicopters for Pakistan Armed Forces,” The Ploughshares Monitor,  Summer 2004 Volume 25 Issue 2. http://www.ploughshares.ca/content/canadian-helicopters-pakistan-armed-forces.

[xi] The NY Times Blog, The Lede, reported on August 25 on a company news release that claimed that “the Libyan rebels have been usimg the Aeryon Scout Micro UAV to acquire intelligence on enemy positions and to coordinate their resistance efforts.” Robert Mackey, “Aug. 25 Updates on the War in Libya,” The Lede.  http://thelede.blogs.nytimes.com/2011/08/25/latest-updates-on-the-war-in-libya-2/.

Aeryon Labs Release, Aug 23. http://www.aeryon.com/news/pressreleases/271-libyanrebels.html.

[xii] As reported and summarized by Cyndee Todgham Cherniak, “Summary of Canada’s New Trade and Economic Sanctions Against Libya,” Trade Lawyers Blog, 02 March 2011.
http://tradelawyersblog.com/blog/archive/2011/march/article/summary-of-canadas-new-trade-and-economic-sanctions-against-libya/?tx_ttnews%5Bday%5D=02&cHash=822eb6f8ee

 

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