The Conservatives’ controversial case for war

First posted on CIPS Blog (available here)

The motion tabled in Parliament this week to extend Canada’s military engagement against the Islamic State (IS) sets a worrying precedent. The decision to expand the air war to Syria is grounded in a confused legality that blurs legitimate concerns with Iraq’s right to self-defence with the dubious legality of a global ‘war on terror’.
The motion and the various statements made by Prime Minister Harper and Defense Minister Kenney assert, in broad terms, three justifications for Canada’s military campaign against IS: the threat IS poses to Canada; the need for Canada to assist the government of Iraq in the defence of its people and territory; and the threat IS poses to civilians and religious and ethnic minorities in Iraq and Syria.
Of the three, only the second gives clear, international legal justification to the coalition campaign against IS.  Iraq is fully entitled to defend its territory against the IS incursions from Syria, or to battle Iraqi insurgents who have joined IS. In doing so, Iraq may invite nations, like Canada, to come to its aid, including pursuing IS forces in Syrian territory that is no longer controlled by the Syrian government. The case is even stronger because Syria has acquiesced in the face of US airstrikes on IS in Syria.
Given this reasonably sound legal basis for the Canadian military engagement against IS, in both Iraq and Syria, it is surprising and worrying that the Harper government also points to the threat that IS poses to Canada to justify its action. Sporadic terror attacks on Canadian soil are not the types of threat that, until now, Canada has argued give rise to a right to pre-emptively use military force in other countries to eliminate them. Yet the parliamentary motion specifically cites the fact that IS has called for attacks in Canada. And in citing the self-defence argument, both Harper and Kenney have said it refers to the defence of Iraqand Canada.
The broader self-defence argument is familiar – it has been cited by the United States for several years to justify its global war on Al-Qaeda (and the attacks on terrorist targets in Yemen, Somalia, Libya, Pakistan and elsewhere). It is a controversial extension of the self-defence doctrine that few countries or international legal experts accept. So controversial in fact, that President Obama has limited it, noting that the US will endeavour to carry out these attacks with at least the tacit consent of the country concerned.
The reason is obvious. Many countries harbour foreign dissidents, rebels or exiles who are considered ‘terrorists’ by their home country, and who may be advocating or somehow inspiring or supporting attacks at home. The logic of the global war on terror would justify dozens of new wars – something that may soon be all too real as many countries acquire drone technology. Moreover, though posited as a military strategy, such attacks often resemble little more than targeted assassinations. Independent observers have concluded in several cases that US attacks in Yemen and Pakistan amount to extrajudicial executions.
But if they’re unnecessary, and poorly supported as a matter of law, why is the Harper government making these broader self-defense claims? There is no obvious answer. Some suggest it is just domestic politics. The Tories are hyping the IS threat to gain support, as they believe they are the party most Canadians trust on national security issues. Perhaps. But if so, it is a shortsighted approach. Many countries – indeed likely a large majority – will understand and accept that Canada chooses to assist Iraq to defend its territory. Yet, very few will agree with the idea that Canadian warplanes can attack IS in Syria because its leadership inspires violence against the west.
More worryingly, the broader self-defense claim may genuinely reflect the Prime Minister’s views – that Canada has a right to attack a terrorist group that threatens Canada, no matter where it is located. The Prime Minister has repeatedly spoken in recent weeks of the “international jihadist movement” and the threat it poses. It is an “evil” that must be confronted, not only in Iraq and Syria. Of course, there is no evidence to suggest the government actually intends to attack IS targets beyond Iraq and Syria. Further, the fact that Canada simply lacks the surveillance and military capacity to take the fight much further than the current engagement in Iraq and Syria suggests that a broader threat is not intended.
Nevertheless, there is some ambiguity in the parliamentary motion itself, especially when it refers to the need to attack “terrorists aligned with ISIL”. Presumably this means only in Iraq and Syria. There is an expanding number of IS franchises in Africa and elsewhere in the Middle East. What if they too start preaching violence against Canada? Words matter in international diplomacy, not least when war is at stake.
Finally, what of the last justification? Is Canadian military action against IS in Syria justified in order to prevent more IS atrocities against civilians and minorities? As a legal matter, a humanitarian intervention in Syria would require Security Council authorization. But as a practical matter, the argument is hard to sustain. There are many forces terrorizing civilians in Syria and Iraq, not least President Assad’s army and militias. Few would treat seriously a claim grounded in the protection of civilians that aims to eliminate only one murderous faction and in doing so arguably strengthens the others. The United Kingdom and other countries in the coalition have thus downplayed the humanitarian rationale and insisted military action was justified in the self-defense of Iraq. The US too has downplayed the humanitarian argument in making its legal case.
Canada could rely solely on the limited self-defence argument to justify the extension of its air war to IS targets in Syria. Of course, the success of the campaign is far from certain. In asserting, however, a broader right to respond militarily to terrorist threats abroad, Canada is signing up to a failing US strategy, of dubious legality, that despite hundreds of attacks in several countries, and over a decade, has manifestly not reduced the spread of Islamist militancy.