Human Rights

What was the International Legal Basis for the Strike on al-Zawahiri?

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(Published in Just Security, Aug. 9, 2022)

The killing of al-Qaeda leader Ayman al-Zawahiri in a CIA drone strike has been touted as a political win for President Joe Biden, a vindication for an over-the-horizon counter-terrorism strategy, and even as “justice served.” Yet there appears to be little interest in whether it was lawful. The media has not seriously raised the question, the punditry has not addressed it, and the government has not yet provided any official legal basis for the killing (to be fair, some law and policy blogs, such as Lawfare, Just Security, and Articles of War, have begun to address it). This disregard is problematic, as there are indeed serious questions as to the lawfulness of this strike – and people should be demanding answers.

Let us acknowledge up front that Ayman al-Zawahiri was the second-in-command of al-Qaeda at the time of the 9/11 terrorist attacks on the United States – which were heinous crimes, terrorist acts, and amounted to an “armed attack” against the United States under international law.

Nevertheless, his killing some 21 years later requires a legal justification under international law. What is more, the drone strike also constituted a use of force against Afghanistan, with which the United States is no longer engaged in an armed conflict – and so that too requires legal justification. This essay briefly reviews the international law regimes that are implicated (leaving aside entirely the domestic law considerations, such as the 2001 Authorization for Use of Military Force), and some of the questions regarding the lawfulness of the strike that arise under each regime – and argues that these questions are important.

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Why Canada Should Rethink its Approach to Economic Sanctions

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(Published in The Conversation, Mar. 6, 2022)

Western countries have imposed massive sanctions against Russia for its invasion of Ukraine. The West has increasingly relied on economic sanctions to punish or change the policies of foreign governments in the last several decades. The conventional wisdom is that economic sanctions are an effective and peaceful foreign policy tool.

Some sanctions regimes, such as the current effort against Russia, may be both effective and lawful. But as I explored in a recent research report, some economic sanctions may violate international law principles, including those the sanctions are intended to enforce. They may therefore undermine the very legal regimes that Canadians like to champion.

The nature of economic sanctions

Many economic sanctions are authorized by the United Nations Security Council or regional organizations. But countries are increasingly imposing sanctions without such legal authority. It’s these so-called unilateral or autonomous sanctions that raise legal questions.

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Economic Sanctions Under International Law: A Guide for Canadian Policy

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My report on economic sanctions has been published: “Economic Sanctions Under International Law: A Guide for Canadian Policy,” Rideau Institute and the Human Rights Research and Education Centre, University of Ottawa: Research Report (2021).

The abstract is below, and a short blog post that discusses the report was also published on the Rideau Institute blog.

Economic sanctions have become an increasingly favored tool of Western states in their international relations over the last several decades, but there have also been growing questions regarding the lawfulness of autonomous sanctions (those not authorized by the U.N. Security Council) generally, and so-called secondary sanctions and targeted sanctions more specifically. This report provides an examination of the nature and operation of both authorized and autonomous economic sanctions and the distinct areas of international law that govern the various forms of economic sanctions, with a view to informing Canadian foreign policy on sanctions.

The report provides an analysis of the different legal bases for possible objections that these different forms of sanction are unlawful, from claims that they may constitute unlawful coercive intervention, or be an unlawful extraterritorial exercise of jurisdiction, to claims that they violate specific principles of human rights law, or international trade and investment law. It also examines whether any such violations could be justified as legitimate countermeasures. The report finds that there is a degree of uncertainty regarding some of these aspects of international law, with differing perspectives between the developed and developing states on these questions.

The report provides a brief review of the Canadian domestic law authority for imposing economic sanctions, and places Canada’s current sanctions regimes within the context of the foregoing legal framework and analysis. Canadian law authorizes broad autonomous sanctions both against states and against individuals and private entities, though it has thus far avoided the use of secondary sanctions. The report ends with the suggestion that Canadian policy makers should take the unsettled state of the law as a cause for caution. Moreover, they should be mindful of Canada’s role in helping to shape the evolving customary international law regime, and whether the use of some economic sanctions may be inconsistent with its support for human rights, respect for sovereignty, and the international rule of law.

Canada’s Not Back Yet: Debating Canada’s Place in the World

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(Published in A Blog Called Intrepid, Jul. 27, 2020).

Canada’s failure to win a seat in the United Nations Security Council has provoked a debate over Canada’s place in the world. It was seen as a personal failure of Prime Minister Justin Trudeau, who when elected famously declared that “Canada is back!” But it has raised deeper questions regarding the reasons for the failure, what Canada’s role in the world should be, and indeed what it once was—should we want to be “back?” And what does that mean anyway?

Some have suggested that the past that Trudeau invoked is more myth than fact, and that we should, in any event, look to the future with a more narrowly pragmatic and realpolitik approach. But the soft power and outsized diplomatic influence that Canada wielded during the latter half of the Twentieth Century is no myth—and I would argue it is important to understand what explained Canada’s stature in the world, and indeed to get “back” to embracing the principles that made us who we then were. Those principles are closer to the values that still make us who we are today as a nation.

I personally witnessed evidence of this influence in the autumn of 1989. I was a junior naval attaché seconded to serve in the Canadian Mission to the United Nations in New York City. Joe Clark, then the Minister of External Affairs in the Mulroney government, was to address the General Assembly at the end of September, and Canada was to take over the rotating presidency of the Security Council in October. It was an exciting time to be at the UN, as the Berlin Wall was coming down and there were other seismic shifts suggesting a coming new world order. But like most members of Canada’s then under-funded military, I shared the perspective that Canada’s anemic hard power gave it little influence in the world.

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