At the end of March, Leader of the Opposition Thomas Mulcair posed a series of questions to the Prime Minister concerning the legal basis for extending the scope of the Canadian military mission against the Islamic State in Iraq and the Levant (ISIL) to include bombing targets within the borders of Syria. The PM replied with reference to the American position as well as, with uncharacteristic levity (and even wit), that he doubted that “lawyers from ISIL” would be taking the government of Canada to court over the mission.
Following limited debate, the majority government would permit the authorization of the expansion of the current Canadian mission for another year, until March 31, 2016, and its expansion territorially, into Syria. On April 8th, Canadian jets conducted their first strike on ISIL targets in Syria.
In actual fact, regardless of whether lawyers are swelling the ranks of ISIL (actually relatively likely, given that the movement has drawn willing supporters from diverse countries and walks of life), the international legal aspects of the ongoing mission against IS are entirely relevant, and were the subject of some analysis by Marc Weller for the American Society of International Law.
Weller details the international legal justification for foreign militaries operating in Iraq, at the request of the Iraqi government, to help the national government combat the emergent threat. This is similar to the decision more recently to dispatch roughly 200 Canadian soldiers to Ukraine to help train the Ukrainian military, likewise at the request of that sovereign government. However, where the legal waters become considerably more muddied, is concerning military actions taken against IS within Syria, without the consent of the Syrian government of Bashar al-Assad.

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A F/A-18 Super Hornet taking off from USS Carl Vinson before carrying out strikes on ISIL targets in Syria

The ultimate fact of the matter is, that in the absence of a clear United Nations Security Council (UNSC) authorization for other countries to use force within Syria(that has not come, and is unlikely to come) that Canada, the US, and indeed the other Arab countries conducting military action within Syria’s sovereign territory might be found to be in breach of international law, as stipulated in the UN Charter’s Article 2 prohibition of the use of force “against the territorial integrity or political independence of any state,” a foundational international legal order instrumental in the understanding of the post-Second World War global order.
Further, if we are discussing the legal aspects of this mission and violations of territorial integrity of sovereign nations, it will be increasingly difficult for the Prime Minister or his ministers to take the moral high ground with Putin as regards Russian actions in eastern Ukraine (even as we commit our own troops there, at the behest of the Ukrainian government).
It should be noted that there are numerous International Security experts, including former vocal critic of the current government, former Ambassador Paul Heinbecker, that have lauded the decision to engage targets within Syria. However, many of those supporting the move to intervene in Syria made arguments on the basis of moral considerations for the ongoing humanitarian crisis in Syria, and questions of morality, no matter their weight in public opinion, have very little currency in legal considerations.
The other side of the argument however, is the legal argument put forward by the United States, and apparently the one echoed by the PM in response to Mulcair’s earlier queries detailed at the beginning of this article (although not in so many words at the time). This amounts to the assertion that as ISIL is operating not only in Iraq but also from bases in Syria used as “safe havens” for “training, planning, financing, and carrying out attacks across Iraqi borders” that attacking those sites in Syria, where the Syrian government is unable or unwilling to do so, keep the coalition efforts in line with Iraq’s right to self-defence under Article 51 of the UN Charter.
There are legitimate legal arguments to be made here, as well as the contention that fighting an entity in one region while it is able to run across an (at this point almost arbitrary) international border and be declared off-limits is certainly a fools-errand. However, these topics are by no means settled points of international law, and open up Canada and the other coalition members to increased scrutiny by the international community for the reasons listed above.
But plans need to be made for the future, and these questions will involve international law, and particularly the law of armed conflict as the tide begins to turn and the Islamic State is pushed back by coalition forces, and those we have apparently allied ourselves with in the battle against this greater threat. Notably, a former Canadian defense attaché to Turkey recently promoted the idea of sending “as many lawyers as possible” in order to ensure that the same crimes that Islamic State fighters have been committing are not in turn committed in retaliatory acts by those very groups we are helping (both directly and inadvertently) in combating the Salafi-Jihadist threat.
The coalition cannot afford to simply declare “Mission Accomplished” once more and seemingly wash our hands of the affair while bloodletting continues, for if we do, we run the very real risk of repeating the very conditions that gave rise to the Islamic State in the first place.
In trumpeting the cause of the Syrian mission for good or ill, and beating the “drum of war” the Prime Minister has sought to position himself in opposition to the other parties as the only capable helmsman during this latest Canadian military endeavor. The fact that he has taken the actions he has, and that it is an election year, cannot be ignored. And it is playing well domestically, with an electorate that is repulsed by the brutality of the self-proclaimed caliphate, but it should be noted that given the above international legal considerations, few of our other allies (notably David Cameron who is facing an election in the United Kingdom himself later this year) are willing to take the steps the Prime Minister has. Whether this is a sign of political courage or misjudgement on the part of the PM is largely a matter of debate.
It is not the sign of a serious leader however, to make a joke of rather legitimate concerns that have direct bearing on Canada’s stature globally, as well as possibly opening Canada to charges of international illegality as relates to the laws of war. Further, some might not find it encouraging however, that in addition to the above considerations, the PM has sought to so casually approach this issue of widening the scope of the mission against ISIL and continuing to put Canadian soldiers in harm’s way, where we have already lost one soldier in the Iraq mission, and given the government’s past lacklustre record of supporting both troops, and veterans.


George Stairs is a second year M.A. candidate in the Conflict Analysis and Conflict Resolution field at the Norman Paterson School of International Affairs. He has written on various conflicts before, including extensive research and writing on the possibility of instability in the Middle-East arising from the Arab Spring uprisings.
Feature Image From Wikimedia. 


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