Global trend supports parliamentary say on deployment: expert

Prime Minister Stephen Harper’s recent suggestion that he will not consult Parliament in deciding whether to send more troops to the Middle East has riled opposition leaders and runs contrary to evolving trends in international law, according to one expert.

Harper made the remarks yesterday at a question-and-answer session in New York hosted by Goldman Sachs.

In an interview with Wall Street Journal editor Gerard Baker, Harper revealed he had received a letter from U.S. President Barack Obama requesting additional support for the counter-terrorism campaign against the Islamic State group.

When asked for specifics, Harper declined and offered a vague suggestion that any parliamentary debate would be moot. “We need to have some additional debate within our government before we reach any final decision but we’re wanting to see this be successful and we want to be supportive as best we can,” he said.

The government stressed that any new troops would be restricted to non-combat roles, but NDP Leader Tom Mulcair pressed the Harper government in Parliament for a full debate and vote on the matter: “If it’s about Canada going to war, we have the right to vote on this question, and they promised it.”

Mulcair’s use of the term “war” may score political points, but the word actually carries little weight in international law, according to Christopher Waters, a professor and researcher in the area of international armed conflict at the University of Windsor Faculty of Law.

“It used to be a legal requirement that there be a declaration of war,” he says. “That simply doesn’t happen anymore. Now, what international law refers to is the ‘use of force’ or ‘armed conflict.’ This is designed to get around the semantic discussion of what is war and what is not war.”

Whatever you call it, there can be no doubt that the military campaign in the Middle East is an international armed conflict, and Waters says parliamentary consultation for troop deployment is a growing trend in that arena, at least in other countries.

“Constitutionally, the government of the day does not have to consult Parliament,” he says. “However, I think it’s fair to say that there’s an evolving tradition, and this is part of a worldwide trend.”

In Britain, for example, Prime Minister David Cameron’s government has made parliamentary consultation a requirement for the deployment of British military units in active hostilities.

“It seemed for a while as if that trend was going to continue in Canada as well,” says Waters. “But Mr. Harper appears to be not ready to commit to a parliamentary consultative role at this time.”

Then there’s the question of whether these armed conflicts — regardless of parliamentary approval in Canada — are legal under international rules of engagement.

While the Iraqi government has formally requested aid in its fight against Islamic State forces, Syria hasn’t, and this, says Waters, raises doubts.

The western coalition is using self-defence — specifically, the defence of its Iraqi ally — as justification for its bombing campaign in Syria, where the government is unable to control the spread of Islamic State rebels.

But while self-defence may be a legitimate justification for an armed response, western leaders are relying on an entirely different argument when addressing the public back home: that the mere existence of such organizations poses a threat.

Take this statement from Prime Minister Stephen Harper: “It is obviously essential — and this is the ultimate purpose of everything being done in Iraq and Syria — that while terrorists and terrorist organizations may continue to exist, that they not have visible and open bases of operations from which to conduct either regional or eventually global attacks.”

In other words, the notion of self-defence in the context of international armed conflict seems to have expanded to include pre-emptive attacks on future threats posed by terrorist organizations.

“It’s problematic,” says Waters, who adds that Russia used that same line of reasoning to carry out air strikes in Georgia, where terrorists were supposedly based.

“This is clearly open to abuse. At the same time, if self-defence means anything, it means that sometimes you’re going to have to take actions to protect yourself when a host country to a terrorist organization is unable to control that organization itself.”

Waters points to the immediate response to the Sept. 11 attacks when U.S. forces attacked Al-Qaida bases in Afghanistan after the Taliban government refused to co-operate. “That claim of self-defence was largely accepted by the international community, including by Canada and by NATO, which invoked its Article 5 self-defence provision.”

“So I think in the post 9/11 world, we’ve come to a situation where we’ve expanded the notion of self-defence to mean that, under some circumstances, you can target non-state actors in another state’s territory,” he says.

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