OTTAWA — Prime Minister Stephen Harper laughed off concerns Wednesday that Canada is about to flout international law by launching airstrikes against the Islamic State in Syria.
Harper announced Tuesday that the government would extend Canada’s mission against ISIL, which so far has been limited to Iraq. The Tories intend to bomb ISIL targets in Syria but do not plan on asking president Bashar al-Assad for his consent.
In question period Wednesday, NDP Leader Thomas Mulcair wanted to know what was the legal basis for Canadian airstrikes in Syria without Assad’s approval.
Had Harper informed the UN Security Council about Canada’s plan to bomb Syria, Mulcair asked.
Had the Iraqi government formally asked Canada to intervene in Syria, he inquired.
Harper didn’t answer either question.
“The government is pursuing this action on exactly the same legal basis as its allies,” the prime minister responded.
“I’m not sure what point the leader of the NDP is ultimately making. 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 chance of that, Mr. Speaker, are negligible,” Harper said to laughter and loud applause from his caucus.
Last September, the U.S. outlined, in a letter to the UN, the legal justification for its military campaign in Syria, citing Article 51 of the UN Charter.
“States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, 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,” wrote Samantha Power, the U.S. ambassador to the UN.
Power said the Syrian regime had shown it could not and would not confront the threat of ISIL effectively and argued the U.S. had to step in to protect Iraqis from further attacks.
Wednesday, Defence Minister Jason Kenney said he had received advice from the military’s top lawyer that Canadian airstrikes in Syria could be justified by Article 51 of the UN Charter.
The minister said Iraq had asked for Canada’s help to defend its civilians from terror attacks being launched from parts of eastern Syria that al-Assad's government was either unwilling or unable to control.
"There is a very clear principle, customary principle in international law that if a sovereign government is unwilling to or unable to control part of its territory from which hostile attacks are being launched that there is therefore a bona fide grounding in Article 51," Kenney said.
University of Ottawa law professor John Currie, however, told HuffPost Tuesday that the argument the Conservative government and the U.S. were making was a “real stretch on the doctrine of self-defence.”
“Usually in international law, the right to use force in other state in self-defence is when you yourself have been the subject of an armed attack against that other state,” Currie said. “The threshold requirement would be that the government of Syria be responsible for the attack.”
Canada was making a pretty big departure from well-established rules of international law, Currie said. “We [are] signalling that we are willing to join the ranks of those who are willing to push the boundaries of the law.”
Kenney also told reporters Wednesday that he believes Canada has an independent right to self-defence because ISIL has explicitly targeted Canada. He also suggested Canada could find justification through the Convention on the Prevention and Punishment of the Crime of Genocide, and the “responsibility to protect.”
"I know that the right to protect requires...UN Security Council endorsement but it seems to me that we are acting in accordance with the spirit of the right to protect which was previously championed by the Liberal government," Kenney said.
The UN has stopped short of calling the situation a genocide, saying ISIL may have committed war crimes including possibly genocide against the Yazidi minority in Iraq. The U.S.-led campaign in Iraq and Syria against ISIL does not have the backing of the UN.
Liberal Leader Justin Trudeau also criticized the Conservative government’s justification for the expanded mission.
"One of the requirements every time one invokes R2P [responsibility to protect] is that we not make the situation worse,” he said. “I believe that the unintended but predictable consequence of helping Bashar al-Assad consolidate his grip on power in Syria is definitely something that qualifies as making things worse."
The Liberals, the NDP and the Green party argue that airstrikes against ISIL in Syria will help strengthen Assad’s brutal regime by getting rid of his major opponents.
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