Tomorrow, parliament will debate whether to extend the participation of the Canadian Forces in the NATO operations in Libya. First, it should be said that parliamentary approval of the operation is essential. Legislative oversight of the executive’s decisions to go to war is crucial for both democratic accountability and for reducing the likelihood of involvement in unwise or illegitimate adventures.

Canada is one of the few liberal democracies that does not have a constitutional or legislative requirement for such approval, but tomorrow’s debate is part of an increasingly established practice in Canada of parliamentary involvement in decisions to engage in armed conflict.

In order to make the debate meaningful, however, parliament must take seriously the issues before it. Members have a duty to rigorously interrogate the government’s motives, and to question the rationales advanced for continued involvement in the conflict. It is not enough to accept platitudes and vague assertions about Canada’s duties as an ally. Rather, there must be hard questions asked about the continued legitimacy of the operation, what exactly the objectives are, and how precisely our involvement advances the national interest or is consistent with our national values.

It should be recalled that the initial objective of NATO’s operation was to prevent a pending humanitarian disaster, when Libyan armed forces were poised to take Benghazi. The United Nations Security Council authorized, in Resolution 1973, the use of force to impose a no-fly zone, and to take all necessary measures to protect civilians. It was a classic humanitarian intervention, with the explicit objective of, and authority limited to, protecting civilians.President Obama and Secretary Clinton on numerous occasions stated that while the political objectives included the facilitation of a transition to a new government, for which reason Colonel Gaddafi had to leave, the military objectives of the intervention was strictly limited to the protection of civilian populations under threat from Gadaffi’s forces.

The objectives of NATO have clearly evolved. In classic “mission creep,” the operations now are obviously aimed at driving Gaddafi out. Last week NATO, with Canadian air force participation, again bombed Gaddafi’s compound in Tripoli, which cannot be explained as being related to the protection of civilians.

The Canadian government’s objectives are just as clearly aligned with this new goal of enforcing regime change. Defence Minister Peter MacKay has suggested that Gaddafi’s departure is necessary to the goal of protecting civilians. While it is patently not true that killing or exiling Gaddafi is necessary for the protection of civilians in Libya, the statement reflects an acknowledgment that forcing Gaddafi out is now the stated goal of the Canadian government.

Members of parliament need to clearly understand, for the purposes of tomorrow’s debate, that this objective of regime change is illegitimate and unlawful. The Security Council Resolution very explicitly limits the authority for the use of force to the establishment of a no-fly zone and the protection of civilians. At the urging of Arab League members of the Council, it even quite explicitly excludes any foreign occupation force in any part of Libya, in contemplation of any attempted foreign-imposed regime change.

As NATO operations increasingly extend beyond the narrow mandate of protecting civilians from immediate threats, they are moving outside of the legal authority provided by the Security Council. Under international law the use of armed force against the territorial integrity or political independence of another state is prohibited, unless it is for the purposes of self-defence or it is authorized by the Security Council. The intervention on behalf of an insurgency against a legitimate government, for the purpose of effecting regime change, is quite clearly unlawful.

How is Canada’s involvement in an increasingly illegitimate and unlawful operation in its national interest? Several other NATO countries, including Germany, Spain, and the Netherlands, have refused to participate for just these reasons. Canada’s traditional role on the international stage, from the time of Lester Pearson’s Nobel Prize-winning role in the Suez Crisis, has been to operate as an honest broker and peacekeeper. Yet now, while we refuse calls to commit funds to assist the establishment of meaningful democratic changes in Egypt and Tunisia, we throw our resources and national effort into an increasingly illegitimate military intervention in a neighboring Muslim state. Why exactly? If we are apparently so little interested in furthering the “Arab Awakening,” why are we intervening in an insurgency that sprung from the same seeds? Gaddafi’s regime poses no threat to our national security, and even the U.S. government has stated that Libya is not of critical strategic importance. The Canadian government has an obligation to explain precisely how this intervention is furthering the national interest, and is consistent with our national values and traditional roles.

The reality is that the primary reason for this policy is to curry favor with the Americans and to enhance Canada’s “influence” within NATO. It is the same reason that Canada has been so committed to the operations in Afghanistan, as Janice Stein and Eugene Lang have revealed in their book The Unexpected War: Canada in Kandahar.

Is that a sound reason for committing the nation to armed conflict? Is it worth the money and other resources that are being spent on these operations? Is it of sufficient value to justify the likely enmity that Canada is provoking in the Islamic world for its continuing involvement in military interventions that are perceived as imperialistic? And members of parliament should consider this question: is it really moral or right to ask members of the Canadian Forces to kill and die for marginal increases in Canadian influence within NATO?

So rather than rubber-stamping a decision to extend the operations in Libya, members of parliament have a duty to ask tough questions. Among these are: why exactly are we engaging in unlawful regime change? How is it in our national interest? How is it consistent with our values and traditional role in the world? For what purpose are we asking our servicemen and women to die?

In June of this year the “Panel for the Reconstruction of the National Security Legal Foundation”, known informally as the Yanai Committee after the name of its chairman, filed its report with the government of Japan. The report called for a re-interpretation of Art. 9 of the Constitution so as to permit Japanese participation in collective self-defence and collective security operations. Both are currently understood to be prohibited by Art. 9.

Prime Minister Fukuda showed no interest in the report or the issues, and the report has received little public attention. With a new Prime Minister soon to be elected, and with emerging evidence that the Yanai Report is having more significant influence within the bureaucracy, it warrants more careful attention.

Over the next little while I will be posting entries here providing a detailed examination of the report. Since the report is not yet available in English (the original is available here), I will first provide an overview of the substance of those aspects of the report that I think are at least important for the analysis I wish to engage in. The substance should be reviewed in two posts, following which I will provide a segment with an analysis of the report – first criticizing its overall approach, and focusing on some of the interpretive errors that, in my view, the panel made; and then examining some of the limitations that it recommended be placed on the exercise of force, that may be useful for considerations of what a nuanced amendment might look like.

Background

Prime Minister Abe convened a “panel of experts” back in April 2007, to consider whether it was necessary to “revise the current interpretation of the Constitution”, in order to allow Japan to participate to a greater extent in international security activity. In particular, the panel was to consider four specific scenarios that highlighted the ramifications of the constitutional prohibition on collective self-defence and collective security operations.

The panel was comprised of thirteen people, mostly academics specializing in political science, foreign relations, and defence studies, and former government officals from the Ministry of Foreign Affairs and the Defence Agency. There was only one constitutional scholar among them, and only three legal specialists in total. The media was critical of the panel when it was announced for being a group with a public record of being hawkish on national security issues and of being critical of the constitutional constraints on Japan’s defence policy.

I wrote at the time (The Case Against “Revising Interpretations” of the Japanese Constitution ) that the exercise of using an extra-constitutional body to advance a “revision” of the interpretation of the Constitution, was illegitimate on a number of levels, the most important being that it was an end-run around the amendment provisions in the Constitution. The Report tends to confirm those concerns.

The Report

The report is a 32 page document, divided into four parts, each further divided into four sections. Part I is on the “The National Security Environment of Japan and the Need for a Reconstruction of the Legal Foundation; Part II is “The Panel’s Opinions Regarding Each of the 4 Types of National Security Problem”; Part III is “The Panel’s Fundamental Understanding of Art. 9 of the Constitution”; and Part IV is “Recommendations Regarding the 4 Types of National Security Problem and Related Matters.”

The approach of the panel to the issue is explained by Chairman Yanai Shunji in the forward to the report (Yanai himself is a former diplomat and ambassador to the U.S., now a professor at Chuō University, and a judge on the International Tribunal for the Law of the Sea). The emphasis of the Forward is on the changes to the international security environment and the increasing threats to Japanese national security, and how the defence posture of Japan has been constrained because debate in Japan has been straight-jacketed by the application of Art. 9.

He argues that the interpretation of Art. 9 must, therefore, be reconsidered “with an open mind, without losing sight of the meaning of peace and the objectives of security, and without being trapped by clinging to precedent and suspending our power of reason”. In short, the legal foundation of national security policy, of which Art. 9 forms the most fundamental part, must be reformed in order to develop a security policy that is more responsive to the changes in the international security environment.

To be continued….the next post will provide more detail on Parts I and II of the Report.

The Supreme Court of Canada handed down a judgment relating to detainees in Guantanamo Bay on May 23, holding that the one Canadian detained there may rely upon the Canadian Charter of Rights and Freedoms to obtain some due process protection from the Canadian government.

Overview

The decision has already been reviewed briefly from the perspective of Canadian constitutional law on the University of Toronto and Osgoode Hall law school blogs, so I will not repeat that process here. But the decision has importance from the perspective of international law, and the relationship between international and constitutional law.

I would suggest that the judgment refutes the arguments, voiced most recently by several scholars at the ASIL conference in April, that there are circumstances in the so-called “war on terror” in general, and the treatment of detainees in particular, in which neither constitutional law or international law (whether human rights or humanitarian law) ought to govern the conduct and procedures of the detaining forces.

The Supreme Court held that it is precisely when the agents of the Canadian government participate in conduct and circumstances that constitute violations of international law, that the application of the Charter will be triggered and its protections available to detainees (or at least Canadian detainees – more on that distinction below).

Background

Omar Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in July, 2002. He was one of the few detainees who has been arraigned and who is actually moving towards a trial before the much-disputed Military Commissions in Guantanamo Bay. He has been charged with murder and with conspiracy to commit other acts of murder and terrorism. The murder charge arises from the death of a U.S. soldier during the skirmish in which he was captured.

The Supreme Court decision was in respect of an application by Khadr for full disclosure of all information in the hands of the Canadian government that may be relevant to his case. He had been interviewed and interrogated by officials of the Canadian government in Guantanamo Bay, and the evidence reflected that the Canadian government had shared some of the information so obtained with the U.S.

The importance of disclosure to his case before the Military Commissions is difficult to overstate, as detainees obtain only very limited disclosure from the prosecution. After the U.S. Supreme Court held that the procedures of the Military Commissions were unlawful in its decision in Hamdan v. Rumsfled (2006), Congress promptly passed the Military Commissions Act to provide the legislative authority for most of those same procedures. They included the admissibility of evidence obtained through “coercion”, denying the accused access (even at the hearing itself) to classified evidence, and even excluding the accused from the hearing in certain circumstances. The disclosure obligations on the prosecution are very limited.

There has yet to be a full trial before the Military Commissions, but the conduct of the Combat Status Review Tribunals (CSRT), which were created to determine whether detainees met the definition of “unlawful combatant” for the purpose of prosecution, have been analyzed by a team at Seaton Hall Law School (report here). The denial of the most fundamental rights expected in administrative and judicial proceedings was found to be extreme, and is suggestive of the entire Military Commission process.

Indeed, the D.C. Circuit Court held in Bismillah v. Gates (2007), that the lack of disclosure by the government in judicial review proceedings of CSRT decisions was unconstitutional. But there is little relief in sight with respect to the lack of due process in the Military Commission hearings themselves (the other significant Guantanamo case before the U.S. Supreme Court, Boumediene v. Bush, in which Khadr is also a party, relates primarily to the legality of the provisions of the Military Commissions Act that purported to strip the federal courts of habeus corpus jurisdiction with respect to detainees). Thus any disclosure Khadr can get from the Canadian government will be helpful for his case.

The Decision

Khadr sought full disclosure from the Canadian government, on the grounds that section 7 of the Charter governed his relationship with the Canadian government. Section 7 of the Charter, which provides for the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, was interpreted in the seminal case of R. v. Stinchcombe (1991), as requiring the government to provide the accused in a criminal proceeding, whose liberty interests are thus at stake, with full disclosure of all material relevant to the issues in the case. The government argued that the Charter did not apply to the operations of government officials operating abroad, and that Stinchcombe was thus irrelevant.

In deciding the case in Khadr’s favour, the Supreme Court expanded an exception it had created in R. v. Hape (2007), the case which revised the general principles for Charter application to the conduct of government officials abroad. The basic rule is that the Charter will not apply, due to the deference owed to the laws of the foreign jurisdiction in which the Canadian agents are operating. Such deference, manifested by refraining from any attempt to extend the operation of one’s own laws to conduct within a foreign jurisdiction, is required by the principle of comity in international law. But the Court held in Khadr that where the conduct in which the Canadian agents are participating violates international law (and more specifically Canada’s international law obligations), then the basis for deference is negated, and the Charter will apply to the extent of the participation.

Rather than engage in an independent inquiry into the extent to which conduct in Guantanamo Bay violated international law, the Court simply relied upon the decisions of the Supreme Court of the United States in Rasul v. Bush (2004) and Hamdan v. Rumsfeld(2006) as the basis for finding that the deprivation of habeus corpus, and the procedures established for the operations of military commissions, were in violation of international law and illegal under U.S. law during the period in which Canadian agents interrogated Khadr in Guantanamo.

As such, the Court held that “the regime providing for the detention and trial of Mr. Khadr at the time of the [Canadian interviews] constituted a clear violation of fundamental human rights protected by international law.” (para. 24) Canadian agents participated in that activity, which would have clearly been a violation of Khadr’s Charter rights had it occurred in Canada, and the violation of international law by the U.S. negated the deference that would otherwise prevent application of the Charter.

The crux of Canadian participation in the process was the obtaining information from Khadr and providing it to the U.S. Thus, the Court reasoned, the refusal to disclose the information related to those interviews was a breach of section 7 of the Charter, and Khadr’s remedy is to obtain disclosure of that information, subject to possible privilege claims (the remedy is significantly narrower than that sought, which was disclosure of all relevant information in the government’s possession – it is entirely unclear to me why the order would not at least also include any information that the government received from the U.S. in the course of the interviews and information exchanges related thereto).

Significance

As indicated above, it seems to me that this decision refutes the arguments of some in the U.S. that the treatment of detainees in such places as Guantanamo, Afghanistan and Iraq, should not be subject to either the constitutional law of coalition countries, or international law. Moreover, as discussed elsewhere in these posts, the U.S. has undertaken efforts to ensure that detainees will not even have access to any protections afforded by the local legal system in Afghanistan either (and of course there is no other legal system available in Guantanamo), thus leaving them with virtually no legal protection whatsoever.

These arguments in essence suggest that constitutional law ought not to apply, since the nexus of citizenship, presence within the jurisdiction and so forth, do not exist to trigger its operation in respect of detainees. At the same time, since they are not lawful combatants in an international armed conflict, the laws of international humanitarian law should not apply. But since they are being detained in the “war on terror”, which is an armed conflict of a sort (or so the argument goes), international human rights law ought not to apply either. There is thus, according to these arguments, a legal black hole in which detainees can be afforded the most limited procedural protection and due process, entirely at the discretion of the detaining power.

The Supreme Court of Canada decision in this case, it seems to me, stands in stark contradiction to such arguments, with its holding that Canada’s constitutional protections and remedies will be applied by the Canadian courts precisely when it is determined that international law has been violated. In essence, rather than accepting the notion that these are circumstances in which no law will be deemed to apply, the Court has recognized what is effectively double coverage: international law is recognized as governing the treatment of detainees generally, and when it has been violated in circumstances in which agents of the Canadian government have participated, the Canadian Charter will also be applied to the extent of that participation.

As Sujit Choudhry notes in his initial discussion of the case (in the University of Toronto blog cited above), that will likely inform the Court’s pending analysis of Canada’s obligations to non-Canadian detainees captured by Canadian Forces in Afghanistan. The distinction there, of course, will be that the detainees are not Canadian, and the Court will not have U.S. precedents to rely on in assessing the question of Canadian participation in violations of international law. The issue of Canadian Forces’ compliance with the Geneva Conventions will be squarely before the Court, and it will be interesting to see whether the nationality of detainees will become a significant factor in the Charter analysis.

Thus, while there has been some early criticism of the decision (e.g. the Osgoode Hall blog noted above, which questions why the broader aspects of the government’s participation, and failure to act, in the Khadr case remains largely unexamined), from the perspective of the relationship between international and constitutional law, particularly in the context of the treatment of detainees in counter-terrorism efforts, the case may be viewed as a positive step, and one more blow against the black hole paradigm.

This is utter rubbish, as there is no conceivable scenario in which the disclosure of when he learned of the decision could be of any value to insurgent forces in Afghanistan, far less impact on any actual operations in Afghanistan. But it is far more dangerous that we increasingly allow our government to use assertions of “national security” and “military operations” considerations to shield their own acts, omissions, and policy decisions from the public eye. The detainee issue involves questions of Canada’s compliance with international law, and is thus of public importance.

There are times when national security requires secrecy, but we must be rigorous in demanding that the government justify with precision their attempts to invoke such secrecy. The media, in particular, should demand explanations of public figures as to how, exactly, the disclosure that is being refused would pose a threat to national security.

As the debate continues in Japan’s Diet this month over a new Antiterrorism Special Measures Law (ASM Law) authorizing Japanese naval force activities in the Indian Ocean, serious attention must be paid to the issues of exactly how such activity is to be limited, and how the Diet can meaningfully monitor compliance with such limitations.

These are not simply political or operational issues, but constitutional issues.

The current draft of the ASM Law purports to authorize the Maritime Self-Defense Force (MSDF) to supply fuel to coalition forces engaged in maritime interdiction operations related to Afghanistan. The law would restrict, among other things, the MSDF’s area of operations, its involvement in any use of force, and the purpose for which the fuel it provides may be used. These limitations have been explained as being necessary to ensure that Article 9 of the Constitution is not violated.

Yet the U.S. government has recently made clear that it will not agree to respect any limitations that Japanese law may seek to impose on the use of fuel provided by the MSDF.

From the U.S. perspective, Operation Enduring Freedom, the U.N.-authorized ISAF (International Security Assistance Force) operations in Afghanistan, the U.S. operations in Iraq, and, for that matter, potential activities in other areas in the region, are all part of a broader campaign, and U.S. naval assets are not dedicated exclusively to any one operation. Operational flexibility is paramount.

The Japanese government has been desperate since November to renew its contribution to U.S. efforts, and may feel the pressure now to agree to ill-defined or legally ambiguous naval operations. Canada went through a similar process in 2003.

In February 2003, Canada assumed command of a multinational naval task force — TF 151 — operating near the Persian Gulf in support of operations in Afghanistan. The Canadian Department of National Defense (DND) had agreed to take command on the assumption that Canada would likely participate in the looming invasion of Iraq.

The Canadian government decided in March 2003, however, not to support the U.S. invasion of Iraq, but it was clear by then that TF 151 would be involved in support of operations relating to both Afghanistan and Iraq.

This created an enormous dilemma for Canada. The DND was of the view that it could not continue in command of TF 151 under such circumstances. It had internal legal opinions that concluded that any Canadian participation in maritime interdiction operations related to the war in Iraq would make Canada a belligerent in that war under international law, regardless of what position the government adopted publicly.

The Ministry of Foreign Affairs was opposed to Canada relinquishing command of TF 151, fearing that doing so would further antagonize Canada’s most important ally. The prime minister went along with Foreign Affairs, and publicly stated that Canada’s naval forces would continue to operate in TF 151, but only with respect to the operations in Afghanistan.

This was possible for some countries in the task force, as their ships were assigned to sectors far removed from Iraq. But in practical terms, this was impossible for Canada, as it was exercising command of the task force, and the task force as a whole could not be so limited. In practice, Canada continued with a “double-hatted” operation (serving two mandates simultaneously), but one mandate was in respect of a war that Canada had publicly refused to join and whose legality Canada had publicly questioned.

Canada continued in command of TF 151 until June 2003. It is still not known to what extent Canadian forces were involved in operations relating to Iraq. It was only due to extreme good fortune that Canada was saved from potential legal and public relations nightmares arising from direct engagement with Iraqi assets or the detention of high-profile Iraqi officials during that period.

Canada was actually engaged in interdiction operations — not merely logistical support — but then again Canada has no constitutional constraints on its involvement in the use of force either.

Notwithstanding these differences, Japan can take some lessons from the Canadian experience. For one, it should be recognized that many naval operations in the region are “double-hatted.” More importantly, Canada got into a legally untenable situation primarily due to a perceived need to satisfy its American ally, which made no distinctions between operations in support of Afghanistan and those in support of war in Iraq.

In practical and legal terms, Canada’s conduct was inconsistent with its public political posture. It was lucky to have avoided any serious embarrassment, but then the integrity of its constitution was not at stake either. Finally, political monitoring for compliance with the public position was difficult.

In Japan there have already been incidents of the MSDF providing false information to politicians regarding its fueling operations in the Indian Ocean, leading to members of Cabinet making false statements to the public about the nature of Japan’s military involvement in so-called antiterrorism operations.

Yet the current ASM Law has less Diet oversight and control over the MSDF than the previous one. Without specific legal requirements, oversight and control of operations will be difficult. But consider the effect if it were later disclosed that the MSDF had supplied U.S. ships that were shortly thereafter involved in strikes on “terrorist sites” in northern Pakistan, or engagements with Iranian vessels.

To the extent that the Japanese government and people believe that support for military activity other than maritime interdiction operations related to Afghanistan could violate Article 9 of the Constitution, then the new ASM Law ought to contain clear limitations to that effect, and provide clear and effective mechanisms for the Diet to monitor MSDF operations to ensure compliance.

Moreover, the new ASM Law ought to specify that the MSDF may only supply fuel to those coalition countries that formally agree to limit their use of such supply for those purposes.

Several coalition nations have limited their naval forces to support for operations relating to Afghanistan. Japan’s efforts are in support of NATO as a whole, and if the United States finds such limitations overly restrictive for its own operational effectiveness, it will nonetheless benefit from Japanese supply to other NATO forces.

On the other hand, if such limitations are determined to be truly unworkable from an operational perspective, then Japan needs to rethink whether it can provide the logistical support requested. But Japan cannot allow itself to slide into a legally ambiguous situation that could result in a violation of a core principle in its Constitution, merely to accommodate the operational flexibility requirements of the U.S. Navy.