03/26/2015 05:00 EDT | Updated 05/25/2015 05:59 EDT

Anti-ISIS mission in Syria built on shaky legal ground, critics say

Earlier this week, Prime Minister Stephen Harper stood in the House and said that Canada "will not seek the express consent of the Syrian government" to launch strikes against ISIS targets in northeastern Syria.​

Simply put, Canadian fighter jets will be dropping bombs on a sovereign nation without an explicit invitation or UN mandate to do so. 

The move has raised difficult questions about whether the operation would violate international law. Similarly, it would mean Canada is joining a very small group of nations pushing the boundaries of international law in the name of self-defence, say legal experts.

The government has cited Article 51 of the UN Charter, which ostensibly guarantees the right to self-defence if a country is subject to an armed attack. 

- Listen | Canada's airstrikes in Syria break international law, critics say

"Collectively, the coalition — which includes the government of Iraq — needs to defend themselves and have the right to defend themselves from ISIL [ISIS]," James Rezan, parliamentary secretary to the minister of defence, told CBC’s As It Happens.

Canada would become just the second NATO country, aside from the U.S., to launch airstrikes in Syria. The current effort, anchored by the U.S. and supported by five Arab nations, has no backing from the United Nations or NATO.

If RCAF jets fly missions over Syria it would mean that Canada has joined an exclusive alliance of countries — namely the U.S. and Israel — that have spent the past 15 years trying to broaden the legal justifications for attacking non-state actors within sovereign nations.

"We are taking sides in a decade-long debate, and the side we are taking is one that was carved out by George W. Bush and cultivated by his administration — very controversially," says Michael Byers, a Canada research chair in global politics and international law at the University of British Columbia.

'Dubious legal framework'

The effort began in earnest after the attacks of Sept. 11, 2001, when the Bush administration launched the global "war on terror" and rapidly expanded its drone program. In the years since, the U.S. has targeted militant groups in countries such as Afghanistan, Pakistan, Yemen, Libya, Somalia and Nigeria and argued the attacks are legal.

"The U.S. has been operating for 14 years on a very dubious legal framework, and it hasn’t stopped them in any way," says Thomas Juneau, an assistant professor at the University of Ottawa and a former analyst at the Department of National Defence.

The government’s pivot to Article 51 is likely a last-ditch effort to justify a campaign into Syria that was months in the making, whether or not it actually applies, he says.

"Most of the time states make a decision, and after that they try to come up with a legal rationale because they have to. If that legal rationale actually works, good, if not, most of the time they will just move on."

The extended mission into Syria, however, falls into an evolving realm of law, and the rise of a group like ISIS blurs lines of legality because it is a new kind of entity. Byers describes the question of pre-emptive strikes on non-state actors as "one of the most controversial areas of contemporary international law," and says that two camps have emerged in response.

The U.S. and Israel account for one camp, while the "mainstream" view is that self-defence is limited to responsive action against another state. In other words, the Syrian government would have to attack Canada to legally justify an incursion into Syrian airspace.

But some legal scholars argue that the traditional understanding of sovereignty has been eroded by the circumstances of the modern world, and the immediacy of the threat posed by ISIS to those in its crosshairs opens legal corridors for Canadian strikes in Syria.

Duties and responsibilities

"Sovereignty is not only about right, but also about duties and responsibilities," says Aurel Braun, a professor of international relations and political science at the University of Toronto.

Part of that duty, Braun maintains, is to ensure that entities like ISIS are not able to threaten the citizens of Syria, its neighbours and the international community. If a state cannot do that, then it arguably surrenders its right to maintain sovereignty, Braun says.

Similarly, ISIS presents a "credible, immediate and global threat" that under Article 51 provides grounds for a tenable argument for strikes in Syria.

The regime’s failure to control ISIS and its repeated claims that it intends to inspire, support and mastermind attacks in Canada provides reasonable legal grounds to target the group in its strongholds, he says.

"The international community is not required to just stand by and suffer the consequences of that loss of control within Syria.… Sovereignty is not an absolute barrier and never has been," Braun says.

A hardline Canada?

Of course the legal wrangling could be avoided if Syrian President Bashar al-Assad, whose forces are battling ISIS and a host of rebel groups, invited Canada and its allies to strike ISIS in Syria.

American planes are flying over Syria with no apparent fear of being shot down, which suggests the U.S. is communicating with Assad in some capacity, perhaps through Iraqi proxies, Byers says.

It’s possible that such an offer has been extended in some form, but coalition countries are hesitant to be seen collaborating with a brutal regime that has used chemical weapons and barrel bombs on its own people, Byer says.  

In joining the U.S. and Israel, Canada could undermine the arguments often used to oppose aggression from other countries, such as Russia’s current actions in Ukraine. It could also lead to rifts with more moderate allies that don’t support weakening laws intended to protect sovereignty.

"We’re going to add to the perception that we are increasingly becoming a pretty hardline country," says Byers.