BY DAVID JACOBS, EXPERT IN INTERNATIONAL LAW,
ON THE ILLEGALITY OF CANADIAN BOMBING IN SYRIA
December 1, 2014
Stephen Harper is said to be searching for legal justification to bomb Syria. He can stop looking. Bombing Syria is an act of war, on any pretext, and it would be the supreme war crime at international law.
The late and eminent professor of international law Antonio Cassese wrote that the Charter of the United Nations allowed war only where authorized by the UN Security Council or in self defence.
The preamble to the Charter of the United Nations recites that “We the peoples of the United Nations determined to save succeeding generations from the scourge of war… to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small…”. Article II sets out the Principles of the United Nations, which include the following:
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
There can be no legal justification for any war without (a) an express request from the Syrian Government (b) meeting the preconditions for war under the National Defence Act and (c) authorization of the Security Council. None apply.
Under the National Defence Act, placing Canadian Forces on active duty requires (a) an emergency, for the defence of Canada, (b) action undertaken by Canada under the United Nations Charter; or (c) action undertaken by Canada under the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party. The NATO Treaty, and any other agreement, is subordinate to the UN Charter. In any event Canada is a signatory to the UN Charter so cannot breach the Charter by participating in armed conflict in Syria without itself committing a war crime.
As to “defence of Canada” there is no arguable case that bombing Syria is in defence of Canada. Self-defence is a very narrowly circumscribed justification for war in law. It is only permissible when the nation seeking to defend itself is under imminent attack by a the armed forces of a foreign state, and even then it is only to be used temporarily until the power of the UN Security Council is invoked under Chapter VII of the UN Charter.
Finally, even if the preconditions were to apply, the National Defence Act requires the matter to be put before Parliament.
Syria is, and remains a sovereign nation. In law, equal to all other UN member states. An attack in its territory is an act of war. Under the Nuremberg Principles, bombing Syria is the supreme war crime, a crime against the peace, defined as: “Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances”. An attack in Syria is a war in violation of international treaties, agreements or assurances. Harper may search high and low: there is no legal justification for bombing Syria.