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?

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.

President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

Consider the contrast between the media coverage of such topics and the analysis of the issues surrounding the Israeli operations in Gaza earlier this year. There were countless articles examining the legal significance of the claims that the Israeli use of force was disproportionate, that civilians and civilian structures had been targeted, and that Israeli forces were using illegitimate munitions. The coverage was often sympathetic to the Israeli position, but there was nonetheless an examination of the legal issues involved. In contrast, when in the same month American forces killed Afghani civilians in air strikes, there was no such analysis – the entire discussion revolved around the strategic and political ramifications of killing civilians.

Liberal advocates say in private that they did not want to raise the international law arguments against torture, because such arguments “do not play well” in middle America. So the focus of the debate in this country was on the ineffectiveness of torture, and how counterproductive it could be. That is a dangerous argument to stake one’s entire position on. The fact is that the prohibition of torture is one of the very few peremptory norms in international law (known as jus cogens norms) – meaning it is one of the most bedrock principles of international law that nations may not derogate from under any circumstance. The other such norms include the prohibitions on slavery, genocide, and piracy. Yet in America, the debate was over when and under what circumstances we might derogate from the norm, and liberals were afraid to raise the law, because it does not “play well.”

The danger in all of this is that if liberals and progressives are afraid to make the argument for international law and the rule of law, then the argument will not get made. Progressives, afraid of looking weak, abandon the defense of the rule of law in favor of functional arguments. And so the country lurches ever rightward, in a one-way ratchet effect, with crucial principles being left by the side of the road as political liabilities.
Yet this country is supposed to be a “nation of laws” that preaches to the world the importance of the rule of law. These principles are supposed to be foundational, part of the constitutional DNA of the nation. They are part of the identity that is presented to the rest of the world. It cannot reject international law without doing violence to its own notions of the importance of law and the rule of law.

Moreover, as President Obama said, if the U.S. does not respect and observe the international legal standards, then it will lose its legitimacy and moral authority in the world. And that means that the extent to which American policy conforms to international law, from military commissions to targeted killings in Pakistan, must be part of the national discourse. So progressives have to engage the legal issues more, both to help preserve the country’s identity as a nation of laws, and to help ensure that we at least understand whether policy complies with the law.