In a speech at the Wilson Center on April 30, John Brennan, Assistant to the President on Homeland Security and Counterterrorism, addressed the subject of targeted killing. In particular, he set out to explain the legality, ethics, and operational wisdom of the policy of using drone-mounted missiles to kill suspected terrorists and insurgents in countries other than Afghanistan – that is countries with which the U.S. is not in an armed conflict. His speech was the most elaborate and open statement yet by the administration on the policy, which remains officially covert, but it provided little new analysis, and it did not respond to the most fundamental challenges to the policy.

The stated objective was a laudable one. He acknowledged that the U.S. policy of targeted killing has been the subject of significant international criticism. He referred to President Obama’s commitment, made in his Nobel Peace Prize acceptance speech, that the “United States of America must remain a standard bearer in the conduct of war,” and that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” Moreover, Brennan stated that President Obama understands the need for greater transparency, and the requirement to explain to both the American people and the world the rationales for the policy.

Unfortunately, however, Brennan provided little new analysis to explain how the targeted killing adheres to the governing principles of international law. Harold Koh, legal counsel to the State Department, provided the basic legal justification two years ago – that is, that the U.S. is in an armed conflict with Al Qaeda, the Taliban and associated forces, such that members of those groups can be lawfully targeted as combatants in an armed conflict; and that the U.S. is entitled to use force in the exercise of its inherent right of self- defense.

Attorney General Eric Holder expanded on that justification somewhat in March of this year, adding that the armed conflict is with a stateless enemy, and that the U.S. is entitled to use force against countries that are either unwilling or unable to prevent the operations of these terrorist groups. John Brennan added nothing new to explain the validity of the assumptions underlying those justifications – that there is an armed conflict with the various terrorist and insurgent organizations, and that the state can use force against countries that are unable or unwilling to prevent terrorist operations.

The problem is that while all of these representatives of the government keep asserting that the policy is in full compliance with international law, the majority of international law scholars and jurists outside of the U.S., and very many within it, do not agree with the most fundamental premises of the rationale. The United Nations Special Rapporteur for Extrajudicial Killing (himself a renowned American legal scholar), has held that such targeted killing constitutes extra-judicial killing in violation of human rights law. Just a few weeks ago, in the keynote address to the American Society of International Law, the President of the International Committee for the Red Cross, one of the key institutions in monitoring compliance with the laws of armed conflict, quite emphatically rejected the U.S. government assertion that it can be in a transnational armed conflict with amorphous terrorist organizations all over the world, without geographic limitation.

This is not the place to attempt an analysis of the highly complex issues raised by the various legal objections to the U.S. policy. But it is important to understand that there are several key questions that remain highly disputed. Koh, Holder and Brennan all emphasized the necessity of U.S. compliance with the laws of armed conflict. Indeed, it is only the privileges granted by such laws that could legitimate killing that would otherwise be murder or extrajudicial execution. But that legal regime itself defines the conditions in which armed conflict exists, thus triggering the operation of the legal regime’s rights, immunities, and constraints.

The sporadic violent attacks launched by various terrorist groups from various countries does not satisfy the criteria for the existence of armed conflict as a matter of law. At best, the U.S. must argue that the law of armed conflict needs to evolve to recognize and accommodate these new kinds of conflict. Brennan, however, did not address the issue, but merely re-asserted the contested claim that the U.S. is in an armed conflict with these groups.

Moreover, even if there were such an armed conflict, terrorists are not “combatants” under the law of armed conflict, but civilians who can only be targeted for such time as they take direct part in hostilities. It is not clear that the targeting process, on which Brennan spent considerable time but about which he disclosed very little, focuses on any such determination. Nor did Brennan address how it is that the killing by non-combatant CIA personnel can be lawful under the law of armed conflict. The U.S. is prosecuting insurgents in military commissions for having allegedly killed US troops without the privilege of being a combatant. Yet the CIA, the personnel of which do not enjoy combatant status under the law of armed conflict, is doing the lion’s share of the killing in the targeted killing program.

Finally, the justification says very little about the use of force against states like Yemen, Somalia, and Pakistan, in which the killings take place. When conducted without their consent, the missile strikes constitute a use of force against those states, in violation of the prohibition on the use of force in the United Nations Charter, unless it can be justified as self-defense.

International law on the use of force only permits the use of force in self-defense against another state for the purposes of striking a non-state actor within that state,  if that state has been substantially involved in supporting, directing, and facilitating the operations of the non-state actor (i.e. the terrorist organization). The fact that it is simply “unwilling or unable” to prevent terrorist operations is not a sufficient to attribute to the state responsibility for the terrorist group’s actions, and thus provide a basis for attacking the state (I have written in some detail on this issue elsewhere). So again, the U.S. might argue that the law on the use of force must adapt, but it is difficult to claim that the strikes are consistent with current international law. This issue too received no explanation.

The bottom line is that the Brennan speech was disappointing. Even the strong supporters of the policy have argued that there must be greater transparency not only in how it is implemented, but in developing a coherent legal justification that is persuasive. The Supreme Court of Israel, in considering the legality of its own targeted killing policy in 2002, held that there must be transparent and independent oversight of any such policy, including ex post review. We still know nothing of the actual process of targeting, and there is certainly no independent oversight. It is known that an Office of Legal Counsel memo has been prepared to provide the legal justification, but it remains classified. The administration has chosen to litigate rather than disclose it in response to an ACLU freedom of information request.

While purporting to address the calls for transparency and proclaiming how important it is for democracies to observe the rule of law, the administration continues to conduct its targeted killing policy in the shadows, and in a manner that leaves the rest of the world questioning America’s adherence to international law. Moreover, it may be establishing new norms and precedents that will justify the conduct of other countries, which will soon develop targeted killing policies of their own. And that, in the end, may not be in the best interests of U.S. national security.

The Canadian newspapers reported this week that Prime Minister Netanyahu would be seeking the support of the Canadian government for a possible military attack on Iran. There is increasing speculation that Israel will launch military strikes before summer against the nuclear enrichment facilities within Iran, in an attempt to prevent Iran from developing nuclear weapons. Prime Minister Harper has given Netanyahu hope that Canada might back such a move. But the strikes would violate international law, and Canadian support for them would utterly betray the values that Canada has long championed.

First, let us examine the legality. The international law regime under the United Nations system prohibits all use of armed force, except in self-defence in the event of an armed attack, or for collective security purposes as authorized by the U.N. Security Council. The Israelis are trying to characterize the proposed military strikes as acts of self-defence to prevent an existential threat from materializing. Such strikes would not, however, satisfy the test for self-defence.

While there is some agreement in international law that states can use force to defend against an imminent armed attack, rather than being required to wait for the first blow to actually fall, the test for imminence is strict. Such “anticipatory self-defense” is permitted only when the “necessity of self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation” (a formulation that arose from an incident between Britain and the U.S. in 19th-century Canada, as it happens). In contrast, there has been widespread rejection of the concept of “preventative self-defense” — that is, the use of force to prevent the development of a more distant and speculative future threat.

The threat posed by Iran’s possible development of nuclear weapons does not satisfy the “imminent armed attack” standard. There is still no conclusive evidence that Iran is developing nuclear weapons (as opposed to simply enriching uranium), and the U.S. intelligence community is not convinced that Iran has made the decision to develop nuclear weapons, given that it may be more in Iran’s interest to stop short at “break-out capability.” Even if the plan is to develop nuclear weapons, there is no sound evidence of any clear intention to use them against Israel or anyone else.

The historic evidence from states that have gone nuclear, including the case of Israel itself, reflects that countries seek to depend on the deterrence provided by nuclear weapons contemplate using them aggressively, and even tend to become more secure and less strident in their international affairs. The U.S. government itself has dismissed the notion that the Iranian regime is not a rational actor. There is still, of course, good reason to be concerned about the prospect of a nuclear-armed Iran, and the international community ought to continue to oppose such efforts. But the prospect of Iran obtaining nuclear weapons in the next year or two does not now rise to the level of being an imminent threat of armed attack, and military strikes against Iran are certainly not the “only alternative” to addressing the potential threat at this stage. Such strikes would be “preventative” at best, and are prohibited under international law.

The most recent condemnation of the “preventative self-defense” doctrine arose with the invasion of Iraq in 2003. The Bush administration argued in the run up to the invasion that it was justified on the grounds of “preventative self-defense,” given the belief that the Hussein regime was on the verge of developing weapons of mass destruction. But in the face of withering criticism, neither the U.S. nor the U.K. actually tried to justify the legality of the invasion on such arguments, choosing instead to rely upon tenuous claims that prior U.N. Security Council resolutions authorized the action.

In a now-famous classified memo to Prime Minister Tony Blair, Attorney General Lord Goldsmith analyzed the legal justification for the use of force, and rejected the “preventative self-defense” arguments as being inconsistent with international law. In short, the potential possession of nuclear weapons by a regime that had invaded Iran in one of the bloodiest wars since World War II, then invaded Kuwait less than a decade later, and which had employed chemical weapons against its own people, did not constitute an imminent threat, or justify a “preventative use of force.”

Twenty years earlier Israel itself had tested the doctrine. In 1981, Israel launched an air-strike against the Osirak nuclear reactor in Iraq. It did so on the same grounds as it proposes to use force against Iran today. The international community immediately condemned the Israeli strike as a naked act of aggression, with even the U.S. uncharacteristically voting in favor of a U.N. Security Council resolution condemning Israel’s actions. Ironically, even though the strike severely damaged the reactor, evidence would later show that the attack caused Iraq to move its nuclear program underground rather than to discontinue it.

Canada has been a champion of the U.N. system since its inception, playing a significant role in its development. Canada has been a loud advocate for an international rule of law. On the issues of war and peace, it has carved out a role as honest broker and peacemaker within the U.N. system, symbolized most clearly with Lester Pearson’s winning of the Nobel Peace Prize for his role in resolving the Suez Crisis in 1956, and the establishment of the first U.N. peacekeeping force. More recently Canada’s values were reflected in the decision not to participate in the arguably unlawful war against Iraq in 2003. Far less known is the role that Canada has played over the years in negotiations surrounding the Nuclear Non-Proliferation Treaty, and nuclear disarmament issues.

The idea that Canada would now support an unlawful act of aggression by Israel, itself a nuclear power that has rejected the Nuclear Non-Proliferation Treaty regime, based on arguments that Iran is violating its obligations under that same treaty, should be abhorrent to most Canadians. It would not only put Canada in the role of endorsing a violation of the U.N. Charter’s most fundamental prohibition, but it would also utterly shred our credibility as an honest broker in the region, and in our role as a middle power on nuclear disarmament and non-proliferation issues.

Canada would, moreover, be out in front helping to facilitate illegal actions that could lead to severe international disruption. The U.S. and U.K. governments have been trying to discourage the Israeli attacks precisely because of fears that they would not prevent the Iranian development of nuclear weapons, but would only cause serious retaliation against Israel as well as the U.S. and other Western states, and possibly lead to the eruption of wider armed conflict in the region. The impact on the global economy and peace in the region are difficult to predict but could be catastrophic. Canada must not play a role in contributing to such a turn of events.

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?

The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

So what are the real reasons for rejecting torture? The first is that it is abhorrent to both the principles underlying the rule of law, and our understanding of fundamental human rights — both of which are cornerstones in the foundation of our democracy. The common law rejected the practice of torture, and the admission of any evidence procured by torture, as early as the fifteenth century. It did so not only on the grounds that the information so obtained was inherently unreliable, but also because it was felt that the practice of torture would degrade all those who engaged in it, ultimately undermining the authority and effectiveness of the judicial system itself. And indeed, the continued use of torture by the Star Chamber in the sixteenth century became one of the central issues between the Crown and Parliament, with torture being cited as being “totally repugnant to the fundamental principles of English law… and repugnant to reason, justice, and humanity.” That view, of course, informed the drafting of the 8th Amendment of the U.S. Constitution.

With the development of human rights law in the twentieth century the prohibition against torture was embedded in international law conventions. This reflected the recognition that to torture another human being is not only to treat them as being less than human, and to destroy aspects of their physical and mental integrity, but it is also to degrade and undermine the humanity of those who perpetrate the torture. The U.S. was a harsh critic of regimes that engaged in torture in the past. The prohibition against torture has become one of only four or five “peremptory norms” in international law — norms that apply to all states and which cannot be derogated from by any state, for any reason. The U.S. helped to champion these norms and develop the treaty regimes that support them. The other peremptory norms include the prohibitions against genocide, slavery, crimes against humanity, and piracy. Would we really countenance a debate on the possible effectiveness of genocide or slavery?

The purported moral arguments trotted out in support of torture are in fact fallacious. In the context of the famous ticking time bomb hypothetical, it is argued that it is surely moral to torture one person in order to save the lives of thousands — that the right to life trumps the right to physical integrity and security of the person. The problem of course is that this is a false construct. We will virtually never be in a situation in which we know for certain that a person has specific information which, if obtained through torture, we know will definitely save the lives of a specific set of people. At most we will think that we know that the person might have information, which may help us save some undetermined lives. Like the CIA officials who “knew” that Abu Zoubayidah was a high-level al Qaeda operative, certain to have crucial information, which would absolutely save American lives, when they ordered him water-boarded 83 times – only to discover that he was never even a member of al Qaeda, and that he had no such information. As a matter of morality it is not justifiable to torture one person on the mere possibility that it might save the lives of some unknown people, and a hypothetical that will virtually never occur is no basis for a public policy.

In short, we should reject torture because it is contrary to the fundamental principles underlying the rule of law and our understanding of human rights. It is utterly inconsistent with the values that form the foundation of our democracy. It will degrade us as a people. The experience of countries that have in the past century adopted the use of torture for “national security” purposes, illustrate how the policy seeps into other areas of the judicial system, corroding the integrity of criminal justice and undermining the authority of the state. The proponents of torture are no doubt animated by the desire to protect the people and interests of the United States. What they fail to understand is that the strategic objective of terrorism is to gut our value system and destroy the foundation of our democracy. Engaging in torture only helps them achieve their aims. Frankly, even having the debate is harmful to our national interests. We cannot champion the rule of law and espouse the benefits of democracy while we argue at home about whether to torture people.

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America’s role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

The problems arise if the U.N. Security Council refuses to authorize such operations. France and Russia, both of which are permanent members with vetoes, have already expressed misgivings, and the three Arab members of the Security Council have been even more strongly critical of such a move. But surely, it will be said, the West cannot sit idly by if Libyan civilians are being slaughtered in ever increasing numbers by the Libyan government.

The ghosts of Rwanda continue to haunt us. Humanitarian motives require some kind of intervention to prevent crimes against humanity. And indeed, it has been argued that there is an emerging norm of customary international law in support of humanitarian intervention, as a third exception to the general prohibition on the use of force. This was the claim made in justification of the NATO air strikes against the Federal Republic of Yugoslavia in 1999, to prevent the ongoing atrocities against civilian populations in Kosovo. The claim has been further bolstered since by the development of the “responsibility to protect” principle.

The trouble is that while it may be an “emerging norm,” it is not yet an established principle of international law. The bombing of Yugoslavia continues to be characterized as a violation of international law, even if many think it was nonetheless justified. Thus, a unilateral U.S. or NATO intervention in Libya, whether in the form of an imposed no-fly-zone, or surgical strikes against Libyan forces, will run the very high risk of being similarly classified as illegal under international law. Even an overly aggressive involvement in the provision of rebel forces with weapons, money, and other logistical support, such that the U.S. is seen as directing or controlling their actions, could be construed as constituting an unlawful intervention, as the world court held with respect to U.S. support of the Contra rebels in Nicaragua in the 1980s.

These legal issues are not merely academic. While in the case of Yugoslavia it might be said that the illegality was trumped by the greater good, here the perception of illegality could have profoundly negative ramifications for the direction that the entire protest movement in the Middle East takes, and the relationship that the U.S. has with the region going forward. Within the growing policy debate, many are already arguing that any military intervention could taint the rebel cause and feed into narratives of ongoing U.S. interference in the internal affairs of Islamic states.

The questions of legality ought to inform this debate. Regardless of how noble and pure Western motives may be for mounting any humanitarian intervention in this instance, if it is conducted without U.N. Security Council authority, and can be credibly attacked as being unlawful, the risks of blowback are compounded exponentially. In the wake of a what many see as an illegal war of aggression against Iraq, any unilateral action in Libya, another oil-rich Islamic state with a history of conflict with the West, will be spun in ways that will be profoundly inimical to the image of the U.S. in the region.

This of course leaves us with the most agonizing of problems if the scale of the humanitarian crisis does indeed escalate. But unlike the situation in the former Yugoslavia, in which the Serbs had a strong ally in a veto-wielding Russia on the Security Council, there is good reason to believe that the Security Council will act if the Qaddafi regime begins to engage in crimes against humanity. There is breaking news that rebel leaders may themselves call for U.N. authorized intervention. But in the interim, the U.S. government is well advised to proceed very cautiously in its consideration of military options. The unlawful use of force is no way to encourage the emergence of democracies founded upon respect for the rule of law, and it could well undermine the ability of America to influence events in the region over the longer term.