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 the debate over repeal of the Don’t Ask Don’t Tell policy, Senators such as John McCain cling to the argument that allowing gays and lesbians to serve openly in the military might negatively impact on unit cohesion, and thus on war-fighting capability. The Commander of the Marines, General James Amos, has fueled such claims, suggesting that repealing the policy in a time of war could cause casualties. As the Senate begins its debate on the issue, it is crucial to understand the assumptions and validity of this argument.

The conclusion of the argument is itself tenuous. Over 25 of our democratic allies have changed their policies within the last twenty years to allow homosexuals to serve openly. Comprehensive studies of those militaries, including those of such close allies as Great Britain, Israel, Australia and Canada, have established that the change in policy did not result in any degradation of fighting capability. Moreover, prior to the policy shifts, surveys of military members in many of those countries found that there was strong opposition to the change, and suggested that there would be significant disruption if implemented. In other words, stated attitudes grossly exaggerated the likely impact. Yet the recent Pentagon study of the U.S. military found that 70% of service members already accept the change and think it would have little impact.

But let us assume for the moment, just for the sake of argument, that there might be some disruption to unit cohesion if DADT is repealed. Why would that be? No one suggests that it is because gays and lesbians are inherently less capable of fulfilling their duties or performing combat functions than their straight brothers and sisters in arms. It is not about their conduct at all. It is all about the response of their comrades.

The argument rests on an assumption that the straight members of the military may react with hostility, suspicion, and contempt for openly gay and lesbian members. It is the hostile response of other members that will cause the disruption. And no one makes the outrageous claim that such bigotry and intolerance is itself necessary, or is inexorably linked to other characteristics that are essential for a strong warrior ethos. The assumed intolerance is no different than the prejudices against blacks and women that were overcome by the military in the past. The argument against the repeal of DADT rests not only upon an assertion that there persists a homophobic and intolerant attitude among some elements of the military, but further suggests that we as a country should continue to discriminate against the victims of that bigotry and prejudice, rather than try to change the underlying attitudes. It is no different than the claims raised in a past era that restaurants ought to be able to discriminate against people of color, since accepting them would likely be harmful to business by driving away the prejudiced white customers.

The reality of course is that the military is not nearly as intolerant or bigoted as Senator McCain and others seem to think. The experience of other armed forces, and the recent study by the Pentagon, bear this out. As I have written about elsewhere, I was a naval officer who experienced first-hand the Canadian navy’s response to the reception of women into combat roles at sea, and I can attest to how quickly the military sub-culture can adapt. All the hand-wringing at the time about disruption of unit cohesion had been grossly misplaced.

But even if there was to be some temporary disruption, it is simply odious to argue that the prejudice and intolerance that is the cause of such issues should somehow trump the most fundamental right to equal protection in this country. And when John McCain and others insinuate that the continuation of DADT is just not that big of a problem, he reveals a profound inability to comprehend the values of our democracy. It is akin to saying that being required to sit at the back of the bus is no big deal, that being forced to attend different schools is just not that important.

DADT not only wounds the gays and lesbians being forced to live a lie within the military, or those who are refused entry. It also signals to the nation at large that the country holds homosexuals to be less worthy of the state’s trust, respect, and protection, than everyone else. As such, it does injury to all homosexuals, and ultimately, it does violence to constitutional values of the country. The Senate ought not to accept that a policy that at best offers a highly questionable and marginal benefit to national security, should be maintained when it forces the military as an institution to do such profound harm to the democratic values that America is supposed to represent.

The prime minister’s advisory panel on national security has recommended a reconsideration of Japan’s adherence to the so-called three nonnuclear principles. The panel specifically urged that the third principle, the prohibition on the introduction of nuclear weapons into Japan (which forbids not only the stationing of weapons in Japan, but even the transit of weapons through Japan), be relaxed in order to permit the U.S. greater freedom in deploying nuclear weapons in Japanese territory.

This is a bad idea for many reasons, but for one it would be inconsistent with the Constitution.

As is well known, Article 9, paragraph 1 of the Constitution renounces war and the threat or use of force as sovereign rights of the nation, while paragraph two prohibits the maintenance of armed forces or other war potential, and denies to Japan the right of belligerency. The long established official understanding of paragraph 1 is that Japan can only use the minimum military force necessary for its individual self-defense. It cannot use or threaten the use of armed force for collective self-defense, or for U.N. collective security operations.

Even this understanding, long embraced by successive governments, the courts, and the Cabinet Legislation Bureau, is a strained interpretation of a clause that clearly prohibits those uses of force that remain sovereign rights under international law — which are limited to individual and collective self-defense, and collective security operations. But the proposed changes to the nonnuclear principles would violate Article 9 under even the official interpretation.

The three nonnuclear principles were articulated by the government of Prime Minister Sato in 1967, and formally adopted in a Diet Resolution. Japan went on to sign the Nuclear Nonproliferation Treaty in 1970 and ratified it in 1976. The nonnuclear principles caught the imagination of the Japanese people and quickly became powerful elements of the broader pacifist identity associated with the constitution. As the only victim of nuclear weapons, this stance also made Japan a powerful symbol for the nonproliferation movement. Sato won the Nobel Peace Prize for his efforts.

Of course, reality is always more complicated and messy. Sato had in fact sanctioned a study to determine whether Japan should develop a nuclear weapons program. Only after deciding against it did he articulate the nonnuclear principles. Moreover, in 1969 he then entered into a secret agreement with U.S. President Richard Nixon and U.S. Secretary of State Kissinger to permit the stationing of nuclear weapons in Okinawa (then still under American control) in the event of a crisis.

Recently discovered evidence confirms that a secret agreement has also existed from even earlier, permitting American forces to “introduce” nuclear weapons into Japan itself without prior consultation, in clear violation of the third nonnuclear principle. The advisory panel actually argues that since the practice has been going on secretly, it should simply be formalized, and the principle prohibiting it abandoned.

That is absurd. When someone betrays an agreement or violates a compact, the response is not to formalize and perpetuate the breach, but to take measures to ensure that the violation cannot continue.

Which brings us back to the Constitution. Leaving aside the suspicion that the panel is also obliquely suggesting that Japan should consider developing its own nuclear weapons (a suggestion that has been advanced by politicians several times recently), even the presence of U.S. nuclear weapons in Japan would likely constitute a violation of Article 9.

First, such nuclear weapons could not be construed as being for the individual self-defense of Japan. While they would no doubt be part of the nuclear umbrella that serves to protect Japan, in legal terms the use of the weapons, and even their deterrent power (which effectively constitutes the threat to use the weapons), would not be for the exclusive defense of Japan, but rather would be for the defense of the United States, its other allies and perhaps its “vital interests.”

This is in fact consistent with recent U.S. National Security Strategy. It should also be noted in passing that while the deployment might be strategically useful for the U.S., it is certainly not necessary.

Moreover, it is very dubious whether the use of nuclear weapons could ever constitute self-defense as the concept is understood in international law. The Cabinet Legislation Bureau opined in 1959 that nuclear weapons could possibly be “defensive” in nature. Since then, however, the International Court of Justice, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, held that it is improbable that the use of nuclear weapons could ever meet the tests of necessity and proportionality so as to be justified as self-defense.

The International Court of Justice also suggested that it was unlikely that such use could ever satisfy the humanitarian law prohibition against the indiscriminate and disproportionate killing of civilians. The threat of such use would similarly run afoul of the prohibition against the threat to use force, found in both the U.N. Charter and Article 9.

Some will argue that the weapons would not be under the command and control of the Japanese government, so would neither constitute the prohibited “war potential,” nor be the basis of a “threat or use of force” attributable to Japan. The Supreme Court of Japan famously decided in the 1959 Sunakawa case, using just such logic, that the U.S. armed forces in Japan did not constitute the “maintenance of war potential” as prohibited by paragraph two of Article 9.

But that was 50 years ago. The definition of aggression adopted by the U.N. General Assembly, and subsequently applied by the International Court of Justice, attributes culpability for aggression to states that permit their territory to be used by other states or entities for acts of aggression or the launching of armed attacks. Indeed, that principle was the justification for the U.S. invasion of Afghanistan following 9/11.

The same principles of attribution would apply by analogy to any use of weapons launched from Japanese territory, even if they did not constitute an act of aggression. These principles should therefore help shape the constitutional analysis as well. Thus, Japan cannot sidestep the constitutional prohibitions against maintaining “war potential” and the “threat or use of force,” through coy arguments that the nuclear weapons being deployed in Japan, with Japanese knowledge and consent, are not under Japanese command and control.

The “revision” of the nonnuclear principles would therefore require amending the Constitution to permit the use of force for collective self-defense, and the maintenance of “war potential” consisting of nuclear weapons.

There are many reasons why doing so would be ill-advised. But choosing to simply ignore the constitutional issues, and proceeding with changes to the nonnuclear principles that would lead to violations of the Constitution, would have much more serious consequences, both inside and outside of Japan.

Changing the nonnuclear principles would undermine the normative power of the constitutional system, raise questions about the country’s commitment to the rule of law, and reawaken the deepest suspicions among its neighbors.

From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

Moreover, to the extent that some think there might still be some disruption of cohesion, it is important to note that the cause would necessarily be the underlying prejudice and homophobia within the military sub-culture. To argue against integration is to suggest that such prejudice should be protected and nurtured. That is profoundly inconsistent with the values of a democracy, and utterly untenable. It was rejected decades ago when the discrimination against non-white troops was terminated.

Even putting aside questions of motive or rationale, the policy denying people the opportunity to serve in the military because of their sexual orientation constitutes unjust discrimination that is entirely at odds with the fundamental right to equal protection. The right to be treated as an equal, and not be discriminated against on the basis of shared but personal characteristics that are tied to one’s sense of identity and dignity, is a right that is at the foundation of all liberal democratic systems, and a bedrock of international human rights.

The violation of that right simply cannot be justified in this context. Not only is there no important purpose served by the policy, given the compelling evidence that integration would have no significant impact on military effectiveness, but the disproportionate harm it causes is extreme. As compared to a marginal and temporary impact at the very most (and most studies of such transitions in other countries demonstrate that there is no impact at all), the discriminatory policy not only injures those gay and lesbian members who are denied entry or are drummed out of the military. Rather, the policy perpetuates the societal prejudice against all homosexuals. The policy effectively communicates to the entire society that homosexuals are less worthy of our respect and concern than the rest of Americans. It signals that gays and lesbians cannot be trusted to serve in the defence of the nation.

But the harm does not even end there. It not only causes egregious harm to all gay and lesbian members of our society, but it erodes the normative power of the right to equality itself, and thereby undermines the very values of our democracy. It casts the United States as a backward nation relative to other liberal democracies in the protection of equality rights, and human rights more generally.

We used to quip in the Navy that “we are here to defend democracy, not to practice it.” Nothing could be further from the truth. A military cannot defend a democracy while doing violence to the democratic values that constitute the very foundation of the nation.

A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic “reasonableness” test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution.

According to this test, the court would first decide whether the subject matter of the impugned law, which discriminated on the basis of some prohibited ground such as race, gender, creed, social status and the like, was an area upon which the government had the legitimate authority to legislate. If it was, and the means chosen by the law to advance the legislative purpose was rationally connected to its objective, then any discrimination it may have caused was deemed to be reasonable. It collapsed the entire analysis into a simplistic inquiry into whether the discrimination could be justified.

For example, a provision of the Civil Code limits the inheritance of illegitimate children to half that of legitimate children in the event that a parent dies without a will. This is discrimination based on family and social status, in apparent violation of Article 14 of the Constitution. The Supreme Court, in 1995, held that the objective of the law was to encourage people to marry, and to foster respect for the institution of marriage. The court reasoned that since the discrimination against illegitimate children might encourage prospective parents to marry, there was a rational connection between the objective and the means chosen, and so the discrimination was reasonable.

Now, the most insidious discrimination could be justified under this test. Indeed, something as horrendous as the Holocaust could be justified on the basis of a mere rational connection between objective and means. As such the right to equality in the Constitution of Japan, which on its face provides a strong protection against discrimination, in the hands of the courts was no protection at all.

But the Supreme Court may have finally abandoned this doctrine in the Nationality Act case of last year. The majority of the Supreme Court employed a more sophisticated analysis, looking at several key elements, and employing criteria external to the law in question. First, before examining the question of justification or “reasonableness,” the court carefully examined the nature of the discrimination itself and the harm that it caused. It explored how the provision discriminated against children on the basis of illegitimacy, and how the law not only harmed those children who were denied Japanese citizenship, but added to the stigmatization of all illegitimate children in Japan.

Turning to the question of justification, the court noted that the objective of the legislation was to ensure, as a condition of acquiring citizenship, that there is a close bond between the children born to unwed couples of mixed nationality, and the Japanese nation.

While the court accepted that the objective was legitimate, and within the scope of government authority to enact, it also concluded that the discrimination it created was not reasonable.

Yet, in its analysis of this “reasonableness,” the court employed external criteria in a manner that it had not done before. To begin with, it examined the extent to which marriage between parents was a sufficiently accurate proxy for a close bond between the child and Japan. The court concluded that, in this day and age, it was not. Marriage is simply no guarantee of where the child might live or grow up.

Moreover, the court looked to Japan’s obligations under international law to not discriminate against persons on the basis of legitimacy, as yet another yardstick for assessing the law’s reasonableness. It further inquired into whether there were alternative methods of ensuring a close bond between children and Japan, which would not discriminate on the basis of legitimacy.

Finally, the court examined the proportionality between the grievous harm caused to children by the discrimination, and the marginal benefit alleged to be gained by the legal distinction in the Nationality Act. It was only able to do this, of course, because it had initially made a careful inquiry into the nature of the discrimination and the harm that it caused, and the objective of the law itself. Each of these elements of the analysis went far beyond the “reasonable discrimination” test traditionally employed by the courts, and together form a framework that is designed to give real effect to the right to equality.

The right to be treated equally, and not to be discriminated against on the basis of personal characteristics in a manner that perpetuates unfair stereotypes and prejudice, and unjustly denies benefits or imposes burdens, is one of the most basic and profoundly important legal rights in a democracy. If the more sophisticated analytical framework employed in the Nationality Act case becomes the standard doctrine for discrimination claims, then the right to equality enshrined in the Constitution will be given new life. All minorities in Japan, not just foreigners, will benefit.

Indeed, since discrimination against the aged is one of the forms of discrimination that is prohibited by Article 14, everyone in Japan’s aging society may have good cause to celebrate the development of this new doctrine, and the re-birth of the right to equality in Japan.