Thomas Mulcair thinks Stephen Harper should at least inform the proper officials before marching off to war. The Americans informed the United Nations of their plans to drop bombs on Syria. This afternoon, the NDP leader wondered if the Prime Minister, sitting two sword lengths away in the House of Commons, had offered a similar courtesy. At this, Harper saw fit to make a joke.
“Mr. Speaker, I’m not sure what point the leader of the NDP is making,” said Harper. “If he is suggesting, Mr. Speaker, that there is any significant legal risk to lawyers from ISIL taking the Government of Canada to court and winning, the Government of Canada’s view is that the chances of that, Mr. Speaker, are negligible.”
Islamic State taking Canada to court? Ha ha ha. Oh, Tom, you’re positively hilarious. Mulcair responded in unparliamentary terms. “Extraordinary, Mr. Speaker, living in a Canada where that sort of idiocy passes for argument.” He emphasized the I-word, the House erupted, and Speaker Andrew Scheer politely asked Mulcair to avoid language that “can cause a great deal of disorder.” So he did, and he even briefly moved on to a question about the Komagata Maru. The reprieve lasted no more than half a minute.
Mulcair’s roar returned. “The Prime Minister of Canada thinks he’s above international law,” Mulcair said, a question later. “He’s not, and Canada is not. That’s all we’ve got!”
Harper repeated, with more emotion than he generally emits in the House of Commons and more seriousness than his first reply, the legal grounds on which Canada will proceed in Syria. “If the leader of the NDP is suggesting for a moment that there is any case in the international legal community that stands behind ISIL, he is not only wrong, Mr. Speaker,” he said. “Five dozen members of the United Nations have united to confront this international terrorist organization. Canada is working with them.”
Eventually, the rest of the assembled parliamentarians asked and answered questions about matters unrelated to war. Harper and Mulcair and the rest of us, though, were left to ponder what we’d observed. The country learned that its Prime Minister is willing to joke about international law and, in the same breath, evade questions that are simple enough to answer. Asked if he directed anyone on the Canadian side to inform the UN of his government’s intentions, Harper might have said Yes or No, explained why, and moved on. Instead of joking that Islamic State has no case against Canada, Harper might have explained his government’s legal argument.
He might even have followed his defence minister’s lead.
Earlier today, outside the Commons, Jason Kenney articulated the government’s legal case, and he used definitive language: “It is a very clear principle, a customary principle in international law that if a sovereign government is unable or unwilling to control part of its territory from which hostile attacks are being launched then there is, therefore, a bona fide grounding in Article 51.” There: Canada’s intentions are legal, full stop.
Harper could have read from the same songbook in question period. He didn’t. He could have rationally laid out a legal case for war. He didn’t. He could have remained calm. He didn’t. He could have resisted the urge to make a joke. He didn’t. Hansard is worse for it.
Jason Kenney decided, at some point, that a planned press conference just wasn’t the right vibe. The defence minister left Rob Nicholson, the foreign minister, all by his lonesome at the more formal presser. Kenney preferred the cozier confines of an extended scrum with reporters, where he answered questions about the legal basis for Canadian bomb-dropping in Syria. Yesterday, Prime Minister Stephen Harper played follow the leader when Thomas Mulcair asked him for a legal case for war. Harper’s argument leaned heavily on the American rationale, conceived and delivered last autumn to United Nations Secretary-General Ban Ki Moon.
In her letter, U.S. Ambassador to the UN Samantha Power invoked Article 51 of the UN Charter, which lays out member states’ inherent right of individual or collective self-defence. Kenney, citing advice of Canada’s Judge Advocate General, pointed to the same article of the same charter, which reads:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Whatever water that argument ultimately holds or doesn’t hold (and there seems to be no international consensus on the matter), Kenney’s advice didn’t come from a stranger to the file.
Section 9.1 of the National Defence Act names the Judge Advocate General, currently Major-General Blaise Cathcart, as “legal advisor to the Governor General, the Minister, the Department and the Canadian Armed Forces in matters relating to military law.” Cathcart, who’s held the role for five years and spent another two decades in the office, is familiar with offering legal advice in a fight against terrorists:
In his capacity as the Director of Operational Law (2000-2003), he provided daily legal advice to the Deputy Chief of the Defence Staff and senior National Defence Headquarters (NDHQ) staff (including J3 Counter-Terrorism and Special Operations) on a number of issues arising from domestic and international operations. Major-General Cathcart was intimately involved in providing legal advice at the strategic and operational levels during the planning and execution of the Canadian Armed Forces participation (conventional and special forces) in the Campaign Against Terrorism.
But don’t expect that to convince a skeptical leader of the New Democrats.