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Must-see QP: How legal are Canadian airstrikes in Syria?

Your daily dose of political theare


 
Adrian Wyld/CP

Adrian Wyld/CP

Maclean’s is your home for the daily political theatre that is question period. If you’ve never watched, check out our primer. Today, QP runs from 2:15 p.m. until just past 3. We livestream and liveblog all the action.

The must-see moment

Stephen Harper once dissed Vladimir Putin and then showed off that he told another world leader to “get out of Ukraine.” The Prime Minister wants to sound like a tough guy. Thomas Mulcair, who never much cares what Harper wants, accused him of hiding behind Canada’s allies in the fight against Islamic State.

Earlier today, when the PM asked that the House support bombing of Syrian targets, he told his colleagues that the Canadian Armed Forces “will not seek the express consent of the Syrian government,” but will “work closely with our American and other allies who have already been carrying out such operations against ISIL over Syria in recent months.”

That got NDP defence critic Jack Harris thinking. Last year, Harper was clear about the terms under which CF-18s would engage their enemies. “We will strike ISIL where—and only where—Canada has the clear support of the government of the country in question,” he said, last October, when he made the case for war. “At present, this is only true in Iraq. If it were to become the case in Syria, then we will participate in air strikes against ISIL in that country also.”

In that autumn speech, Harper explained his rationale for those limited terms of that then-possible Syrian expansion. “The Government of Canada will not hide its disgust at the actions of the Assad regime. What we are doing is taking part in an anti-terrorist operation against ISIL and its allies,” he said. “We do not want to wage war on any government in the region.”

Well, Harris wondered, without permission from Assad’s sovereign government, what legal basis would guide prospective Canadian airstrikes in Syria? Rob Nicholson, the foreign minister, didn’t reward Harris with much of an answer. He did offer that Canadians are fighting Islamic State “on the same basis” as allies overseas: simply put, the terror group poses a threat to us all. Speaker Andrew Scheer again recognized Harris, who would normally pose a supplementary question. He never got the chance. Mulcair subbed himself in, paid particular attention to that bit about Canada following the lead of others in Syria, and demanded an answer from Harper.

“You can’t hide behind someone else’s actions,” he said. “This is about Canada. What is the Prime Minister of Canada basing himself on? What is the legal authority for bombing in that country?”

Harper gave a fuller reply than his minister. “As our allies have indicated, they are taking necessary and proportionate military action in Syria on the basis that the Government of Syria is unwilling or unable to prevent ISIL from staging operations and conducting attacks there, including, ultimately, attacks that include this country as a target. Mr. Speaker, that is the legal basis on which which are proceeding,” he said.

Indeed, the Prime Minister’s aides copied and pasted much of the American legal justification for Syrian strikes onto the note their boss read into Hansard. Last September, as American fighter jets warmed their engines, Samantha Power made her case to Ban Ki-Moon. In a letter, the U.S. ambassador to the United Nations reminded the UN Secretary-General that the Iraqi government requested an American-led campaign in Syria as a means of protecting the Iraqi people.

Ambassador Power Letter to UNSC

Power also asserted her country’s right to self defence, a key component of Harper’s own justification. The bold parts of this excerpt will sound familiar north of the border.

ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 of the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat…”

Power did inform the Syrians of American intentions, but never requested express consent (an important nuance, Michael Petrou reminds us). At the time, Americans and others debated the legality of Power’s claims. Vox‘s Amanda Taub wrote that international law is fuzzy on the argument of collective self-defence as it applies to non-state actors, including the likes of Islamic State.

The implicit argument here — that states can rely on collective self-defense to defend themselves against threats from non-state actors like ISIS and Khorasan — currently has uncertain status in international law. It’s not a crazy case to make, but it’s not a home run either.

Traditionally, collective self-defense has only applied to threats from state actors. However, because this is a customary law argument, its specifics are derived from patterns of state practice, not just written treaties or court decisions, and those can change over time. As law professor Jens David Ohlin points out, there are indications that state practice is trending towards support for this type of self-defense. So the response to the US action in Syria may end up crystallizing the rule as applying to non-state actors like ISIS. But that hasn’t happened yet.

Theo Farrell wrote at the Telegraph that the war in Syria might well be illegal, but most countries will accept it, anyway.

The upshot is that US strikes against ISIL in Syria are probably illegal but widely recognised as legitimate. We are likely to see a rerun of what happened in 1999 [in Kosovo]. Some states may seek to reaffirm the illegality of using force for humanitarian ends or to otherwise interfere in the internal affairs of states. However, most states will welcome this necessary action and simply stay silent on the question of legality.

Meanwhile, Canadians are also skeptical of existing legal arguments for bombs over Syria. But with polling numbers like these to buoy a tough-talking PM, nothing stands between fighter jets and the end of the runway.

The blog

The recap

Stephen Harper made a pitch this morning for more war in Iraq and, as many properly predicted, airstrikes that hit Syrian targets. The Prime Minister continued to call the Canadian mission a non-combat role, a characterization utterly disputed by both opposition parties. Harper also informed the House of Commons of his government’s determination to drop bombs wherever it damn well pleases, so long as those bombs blow apart Islamic State.

“ISIL must cease to have any safe haven in Syria,” Harper said. “Let me be clear that in expanding our airstrikes into Syria, the government has decided we will not seek the express consent of the Syrian government.” Harper doesn’t want to explicitly cooperate with Bashar al-Assad’s repressive, destructive regime. He doesn’t want to play on the same team as, or join forces with, a brutal dictator. So whose lead will Canada follow in the next iteration of war? “We will work closely with our American and other allies who have already been carrying out such operations against ISIL over Syria in recent months.” Put another way, Canada will bomb anything it wants. Hey, the Americans started it.

Thomas Mulcair, the loudest voice of parliamentary opposition to any war against Islamic State, appeared to ignore Harper’s intention to not work with the Syrian government. In fact, he called whatever comes next “an alliance of sorts” with Assad, proof that Harper is, indeed, “willing to work with” the dictator. Anyone who agrees with the NDP leader will assert that any fight against Assad’s Islamic State foes on his turf, no matter the intention of that effort, counts as an alliance—an instance where the enemy of my enemy is, no matter how much I can’t stand to admit it, my friend.

Justin Trudeau adopted a subtler tone. The Liberal leader never accused Harper of being in league with Assad, but he nonetheless cautioned against dropping more bombs. “The Syrian people have been oppressed and terrorized by their own government,” he said. “We cannot support a mission that could very well result in Assad consolidating his grip on power in Syria.”

MPs said the word “Syria” 406 times between October 1, 2014 and the end of yesterday’s sitting. Count on that number to balloon as the House of Commons debates a government’s intention to open up bombing runs wherever it sees fit.


 
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