Intervention in Syria could create tricky legal situation

Canada would “certainly” be breaking international law if it gets “swept up” in a war against Syria without United Nations Security Council approval, a legal expert is warning.

There is a real risk Canadian leaders could be hauled in front of the International Criminal Court if they lend military support to a U.S.-led intervention, according to Jillian Siskind, past president of Canadian Lawyers for International Human Rights.

In a legal sense, the U.S. has “less to lose” than Canada, argues Siskind, who has worked at the International Criminal Tribunal for the Former Yugoslavia and at the federal Department of Justice. This, she says, is because the U.S. — unlike Canada — has not signed the Rome Statute recognizing the ICC.

At a meeting of the five permanent members of the UN Security Council yesterday, Russia and China opposed a draft resolution to authorize the use of force against Syria following last week’s alleged use of chemical weapons by Bashar al-Assad’s forces.

It is not clear what role, if any, Canada would play if countries such as the U.S., Britain, and France decide to act despite a security council veto.

Foreign Affairs Minister John Baird on Monday called for a “firm response,” and it is widely believed Canada could provide political, and possibly logistical, support for a strike.

International law is clear about the illegality of military action in the absence of unanimous support by the veto-holding members of the Security Council, says Siskind.

“If Canada was to get involved militarily [despite a veto], that would certainly be breaking international law,” she stresses.

If Canada avoided front-line action, but helped out in other ways, for example by providing supplies, it could still be accused of “aiding and abetting” an illegal intervention, although the ICC may lack the capacity to take a complaint to trial, according to Siskind.

Written legal advice presented to the British Parliament yesterday stated that a military intervention could be justified as “an exceptional measure on grounds of overwhelming humanitarian necessity.”

But Siskind highlights the diplomatic approach set out in chapter 7 of the UN Charter dealing with breaches of the peace and acts of aggression.

It could be more “legally defensible” if the Security Council at least waited to read the report being written by UN inspectors, Siskind says. “There’s a lot of political posturing right now, especially with America. I’m not sure we need to get swept up in that.”

The inspectors are expected to submit their findings after leaving Syria on Saturday.

Some have argued a strike against Syria could be legally justified under Art. 5 of the Washington Treaty, under which an attack on a NATO member is treated as an attack on all. This approach triggered NATO action in Kosovo in the late 1990s.

Under this scenario, a case for collective intervention could be presented as a response to attacks by Syria on Turkey.

But this rationale may not be “totally successful if we had to defend that in a prosecution,” says Siskind.

However, while it is prudent to wait, “we can’t just stand by and let Syria swallow itself whole,” she adds. An alternative way to circumvent a Security Council deadlock could be to use the responsibility to protect principles, dealing with the duty to act in the event of a humanitarian crisis.

Canada played a major role in establishing the principles, which are grounded in international law.

“R2P isn’t a perfect model . . . but it might be a way to break the law with international consensus,” says Siskind.

The current president of Canadian Lawyers for International Human Rights, Juda Strawczynski, also advocates the use of R2P principles. But he says it is “too early” to discuss what Canada’s legal options may be in the event of a security council veto.

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