RSS FeedA Legal Obligation to Assist Iran
Earlier today Iran began large-scale war games to simulate a response to attacks on its nuclear sites. But these games are hardly for fun, as the country intends to showcase its capability of defending against a strike from Israel.
Although in Canada we normally think of countries like Iran as the aggressor, the country is not without fear of Israel initiating military action against them. Israeli officials have not ruled out the possibility, and there is a history of attacking Iraq in 1981 and more recently, Syria in 2007.
In response to the strikes against Iraq, the United Nations Security Council issued Resolution 487, stating,
Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”,
1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;
2. Calls upon Israel to refrain in the future from any such acts or threats thereof;
3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;
4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;
5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;
6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;
7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.
Iraq’s new government is seeking reparations from the 1981 attack. Sadr MP, Nasser al-Rubaie, recently stated,
According to the international law Iraq has the right to receive compensation from Israel. We have called for a legislation to be passed in the parliament to oblige the Iraqi government to follow up the issue.
But it’s the attack against Syria that really raised the interest of the international law community. The reason is that both attacks were justified by Israel as necessary measures of self-defence, which although questionable by international law, were given limited credence by the Bush doctrine.
The 2002 National Security Strategy of the United States of America (NSS) states,
A. Summary of National Security Strategy 2002
… the first duty of the United States Government remains
what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.
The 2006 revision retains the ability to act preemptively. But there is one important distinction between the U.S. and Israel that differentiates these policies. The NSS is based on Article 51 of the U.N. Charter,
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The obvious distinction is that while the U.S. is a permanent member of the Security Council, Israel is not. Israel cannot legitimately claim to be acting in self-defence when attacking pre-emptively, especially in light of Article 2(4),
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Additionally, the effectiveness of either of these strikes are highly disputed by analysts, who are still frustrated by refusals by Israelis to provide information about them. After the Iraq invasion on the premise of WMDs, skepticism about pre-emptive strikes, especially after claims by Israeli military intelligence officer Shlomo Brom and Israeli MPs that Israel deliberately exaggerated reports about Iraqi capabilities in order to encourage an invasion.
The Nuremberg International Military Tribunal addressed the issue of pre-emptive strikes in United States v. Goering, 6 F.R.D. 69, 100-01 (1946). The court rejected the Nazi claim that they had to invade Norway to avoid an Allied invasion, because there was no such threat imminent.
Mark A. Drumbl of the Washington and Lee University – School of Law points out in Self-Defense, Preemption, Fear: Iraq, and Beyond that the military response by Austria-Hungary to the assassination by the Serbian terrorist organization Black Hand of the Crown Prince Ferdinand and his wife was uniformly condemned by the international community. It is also largely acknowledged as the primary cause of WWI.
Nicole Deller and John Burroughs explain in Jus ad Bellum: Law Regulating Resort to Force,
The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth in a letter from U.S. Secretary of State Daniel Webster to British Minister Lord Ashburton, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster’s restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement. Oppenheim’s International Law, 9th ed., 412.
But it’s a paper by Amin Ghanbari Amirhandeh, an LLM student at the University of Tehran, that gives the greatest pause. He claims in Preemptive Attacks on Iran’s Nuclear Facilities?, that the Security Council would actually be required to assist Iran if attacked by Israel.
As Iran is a non-nuclear state, a military strike on a nuclear facility could still be considered a nuclear attack, given the resulting environmental damage. He states,
In resolution 984, the Security Council “takes note with appreciation of the statements made by each of the nuclear-weapon States (S119951261, S119951262, S119951263, S119951264, S/19951265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons”, and further “[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any nonnuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.
As the ICJ stressed in its historic opinion on legality of nuclear weapons
(1996), the Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized “that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim”; and welcomed the fact that “The intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non- Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.Gesturing the concept of threat is enough for the Security Council in the present case, even if it is obvious that the five nuclear weapon states are
individually responsible for taking appropriate measures in order to assist Iran, to condemn any direct threat from Israel against Iranian nuclear installations.
Now that’s a consequence that would make Sarkozy’s description of an Israeli strike on Iran as an “absolute catastrophe” the understatement of the year.
Rae: Canada Has Its Own Voice on the International Scene
Hon. Bob Rae spoke this morning at the University of Western Ontario Law School on A Changing World: New Directions for Canadian Foreign Policy. What follows are notes (not a transcript) from his talk.
Law Students and Public Policy
Rae said that Canadian foreign policy as an issue that is a significant one in the politics of the country. As soon to be lawyers, the issue of Canada’s role in the world is a critical concern to all of us, and one that has tremendous opportunities as law students.
There is no clearer area of public policy where the ideological contrast between parties can be demonstrated. Western has produced some of the great legal minds of our time. Justice Rand, a former Dean of the school, made considerable contributions to the foreign policy of this country.
What is Canada’s Role?
Rae asked whether Is Canada’s role in the world is to essentially ally itself with the U.S. in terms of American foreign policy and position in the world. Or is Canada’s voice in the world one of greater independence – one in which we look to Canada’ expressing strong support for multilateralism, international law, and support for multilateral institutions in relation to trade relationships.
It seems over the past 50 years there has been an implicit debate in the country over these issues, and that Harper has now made this debate explicit. His view in the world is quite simple: Canada is a country whose values and interests are tied up with the U.S., who is our most important trade partner. Our primary role is therefore to be an ally and supporter of the U.S. Other areas of foreign policy are all subordinate to that. That is the key relationship, the driving force between Canada’s role in the world.
This is a view that puts a great deal of emphasis on military power, and expects that Canada has to play a much stronger role in the military side of the equation. It downplays Canada’s traditional role at UN in supporting international institutions. Our efforts against land mines and in support of the International Criminal Court are examples of this.
War in Iraq
Rae pointed to two speeches of by Howard Hampton and Stephen Harper at time of Iraq war. His point was made by a choice made by Chretien at the time – Canada was not willing to participate in invasion of Iraq. Harper saying yes we will. Interesting enough, the words he used were borrowed from President of Australia.
Canada’s decision not to participate in the Iraq war was a defining moment, and was based on two major factors:
- The existence of WMDs
- An imminent threat
The Canadian government did not believe Saddam had WMDs, or that the evidence supporting assertion was in any way adequate. The U.S. relying on secret information, but the information provided from Hans Blix could not justify assertion.
If Canada didn’t have that information, it would still have to establish some other idea as to why it is justified as act of outside invasion. Canada’s position was clear – but the U.S. and U.K. was emphatically on the other side that whether or not there were WMDs, the risk justified invasion.
It took courage for Chretien and Graham to explain to Canadians why we were not joining our two closest allies. Now people say it’s a no-brainer – because we look at it retrospectively at the mess it created. It was controversial at time, and the criticism came mostly from Harper, who bought Bush/Blair doctrine. Harper insisted that was where Canada’s interests lay, where our values should take us.
Economic Relations
When it comes to trade relations it was Mulroney, following Royal Commission Report, that took the great leap towards negotitiations on free trade that eventually became NAFTA. Mulroney believed that if we could get from out underneath the U.S. trade umbrella and trade harrassment it would be a great deal for Canada. We would benefit from coming firmly within an America economic framework, and at the same time free ourselves from trade harassment.
By way of contrast, many people believe our long term protection is not in bliateral protection but with many countries that include the Americans. The history of our free trade is well-known, and we are going to experience its full effects in the next major while.
And we have not been able to free ourselves from trade harassment. The U.S. Senate is based on states where less than 20 percent of population control 50 percent of Senate, and is therefore dominated by agriculture and natural resource interests. The U.S likes to portray itself as supportive of free trade, but it actually relies far less on free trade than any of its trading partners.
This is just another example of where our decisions to make a special deal has actually proved short sighted.
A Foreign Policy that is Our Own Voice
Whether it is on the economic or political side, do we want to have a foreign policy where we find our own voice, or do we see ourselves as essentially being the junior partners in the American enterprise?
In recent days that choice has become very clear and sharp, and a clear example of that is the case of Omar Khadr, a Canadian citizen. He grew up in Afghanistan and was eventually captured and charged in the efforts to kill an American soldier, and has since been incarcerated in Guanatanamo Bay for that last few years.
We have to try to understand what this issue means for Canada. It’s not just about the politics of do we like what he did or was accused of doing. There are two major issues:
- What do we do with child soldiers?
- What do we do with Canadians in these situations?
There have been enormous procedural delays in his trial, with the head of the military tribunal recently being replaced. There have been two recent Supreme Court cases in the U.S. critical of Guantanamo, and how it is being administered by the American government.
They stated that the law of habeas corpus does apply, and that it is not simply possible to incarcerate people without letting them know what htey have been charged with. These are fundamental principles of our justice system. The second case is worth reading simply to review the very basics of habeas corpus and its role in the legal system.
Canada is a signatory to the international treaty aimed at rehabilitating child soldiers. It’s fundamental to get these people out to rehabilitate them to let them continue on with their lives.
Sri Lanka has an issue with this on the rebel side, where people can be recruited as young as 12 and sent into battle by the age of 14 or 15. If you capture them, what do you do? Do you treat them as a soldier, as a child, or as a child soldier?
There are protocols that have to be followed. The U.S. military tribunal has said we are not interested in this, and it does not pertain to the treatment of Omar Khadr.
The Question for Canada
The question for Canada is that we’ve gone along for a long time to see what kind of justice people like Omar Khadr can get. We said, let’s hold judgment until we see what kind of treatment he gets.
And frankly, we’ve seen quite enough.
Senator Obama and McCain have both said they would close Guantanamo, and find another method to try people that are there.
We can also look at the issue of members of the Uighur community of Xinjiang in Western China, which has long issues with the extent of which it is being ruled and human rights issues. How do we respond as a country when dealing with the possibility of courts where we disagree with their approach to a legal system?
In the case of Guantanamo, it puts us in a ridiculous position where the only person thinking Omar Khadr should stay in the U.S. and would get a fair trial in the U.S. is Stephen Harper.
Again, even McCain says it should be closed. This is an absurd position for Canada to be in.
Differing with America is not Anti-Americanism
Mr. Rae also distinguished the mission in Afghanistan from that in Iraq. The U.N. agreed to the mission. contrary to Iraq. We believed we were going there to help set up a new government and support them.
The Liberals would like to change the focus to reflect this interest, away from military activities to training the Afghan army and politically helping the government create a more stable arrangement. The 2011 withdrawal date was what was initially agreed upon by parliament, and when all countries said the mission would come to an end.
These are the principles we should try to apply: that we intervene when we believe it is lawful to do so, and when it is justified by international law.
Canada is not a superpower. It is not an empire, and we do not have imperial ambitions. All we want to do is participate in a stable international world order.
That is why we’ve been such strong supporters of the U.N. The Universal Declaration of Human Rights was drafted by a Canadian after all.
Our interests as a small country, a relatively small power, are different from that of our neighbours. It means we will agree and disagree from time to time. It does not mean we are anti-American, it just means we have different interests.
Get Involved as Law Students
There are many ways you can be involved and engaged in this world.
Your generation has more opportunity to see more, to do more, to be more engaged than any generation in hum history.
Try to make a difference. Find out what gives you passion, and take those ideals and interests wherever you may go.
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