Mr. Speaker, there is an old and not unfamiliar adage which says, “When the guns roar, the muses are silent”. While the countdown to war has begun and while the legal muses may be unable to prevent it, international law does provide an appropriate framework: first, for appreciating the general principles of international law respecting the use of force; second, for assessing the validity of the recourse to the use of force by the United States, the United Kingdom or any coalition of the willing; third, for invoking or applying the legal norms that govern the exercise of the use of force; and finally, for providing a normative guideline of the conduct of foreign policy, be it that of the United States, the United Kingdom or Canada.
Accordingly, with this in mind, I will share some basic principles that underpin such a juridical analysis. One preambular comment: the United States' resort to force or the resort to force of the coalition of the willing might well seem on the face of it an arguably justifiable use of military force, for, simply put, Saddam Hussein has directed and presided over one of the most tyrannical and brutal regimes in modern history.
Indeed, for more than 25 years Saddam Hussein has sought to acquire chemical, biological and nuclear weapons and has, in several documented cases, not only succeeded but has in fact used them. He gassed 60,000 of his own people in 1986 in Halabja in a modern genocide. He launched two catastrophic wars, sacrificing nearly a million Iraqis and killing or wounding more than a million Iranians. He has violated the United Nations resolutions, some 16 resolutions over 12 years, resolutions that found him to be in material breach of his disarmament obligations, including the most recent one of four months ago, a resolution that gave him a final opportunity to fully and immediately disarm or face serious consequences.
Most important and most disturbingly, he is the only head of state to have committed the most horrific of all international crimes, crimes against the peace, sometimes referred to as the mother of all crimes, war crimes, crimes against humanity, and genocide. But while Saddam Hussein is clearly a war criminal and has committed the most serious of international Nuremberg-type crimes, this does not necessarily authorize the use of force against him, unless such recourse to the use of force is consonant with international law.
Admittedly, it has been said that international law is something that the powerful need not heed and that the righteous need not obey. It may well be that President Bush believes that the convergence of power and right on his side is such that it authorizes the use of force, but there is an normative and juridical framework applicable both to the powerful and the righteous, which I shall now seek to share with colleagues in the House.
The first and foundational principle, which is set forth in article 2, paragraph 4 of the United Nations charter, is the prohibition on the use of force save for two exceptions: first, the exercise of the right of self-defence in response to an armed attack as mandated under article 51 of the charter; and second, the right of the Security Council, acting under chapter 7 of its authority, to determine a situation to be one of a breach of international peace and security and to authorize military action to address that breach to counter aggression and the like.
President Bush has argued, first, that he has a right of pre-emptive self-defence, that is to say, that in a post-9/11 universe the United States nor any other power is not required to await an armed attack which, with the convergence of terrorism and weapons of mass destruction and rogue states, can convert that into a suicide pact.
However, even allowing for a flexible interpretation of the right of self-defence in a post-9/11 universe, even allowing for a broader interpretation of that right, nonetheless there must at least be credible evidence of the imminence of such an attack. There must be credible evidence of a clear and present danger of such an attack. No such evidence exists at the present time.
Second, the president has argued, and has argued again this evening, that Iraq is in material breach of UN Security Council resolution 1441 and that serious consequences thereby ensue, including authorizing the use of force. This brings me to the second principle, that is to say, UN Security Council resolution 1441 as a basic juridical framework for appreciating the legalities here.
It is somewhat ironic that President Bush, who helped craft the UN Security Council resolution, which was very much a creature of the United States and the United Kingdom, should seek to invoke that UN Security Council resolution as a legal basis for the recourse to the use of force, because that resolution states clearly that it is only the UN Security Council, not the United States, not the United Kingdom, not the combination of them or others, that can determine whether, first, there has been a material breach, second, that serious consequences flow from that material breach of Iraq's disarmament obligations and, third, that it authorizes the use of force. No such determinations have yet been made by the UN Security Council. Simply put, the UN Security Council resolution 1441 is not a self-executing act that can be invoked by any state acting on its own.
That brings me to the third principle, the principle known as the exhaustion of remedies short of war. Indeed, the United Nations charter on customary international law requires states to seek peaceful resolutions to their disputes. Article 33 of the charter states:
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
It may well be, and the United States and the United Kingdom may well argue, and have argued, that they have exhausted all other means, but even in the case of a clear act of aggression or threat to the peace and even in the case of the presumed exhaustion of other means, it is only the UN Security Council which is required, under the charter article 41, to first employ measures not involving the use of armed force, and only when such measures would “be inadequate or have proven to be inadequate”, as article 42 states, can the Security Council authorize the use of force.
I might state parenthetically that I regret that the Canadian bridging proposal, which set forth disarmament benchmarks or tests for Iraq to comply with as part of its disarmament obligations and provided timelines for testing the implementation of those disarmament obligations, was not adopted. We are in fact only 10 days away from the expiry of those timeframes; to think that we may have to witness a recourse to the use of force in 48 hours when we could have waited another week and arguably had a UN Security Council resolution that in fact determined that Iraq was indeed in breach of its disarmament obligations as set forth in those benchmarks or tests. And there would have been a timeframe within which that needed to be fulfilled.
That brings me now to principle number four and that is a refined multilateralism approach, or the invocation of the Kosovo precedent and principle. I am referring here to the invocation of the argument that the coalition of the willing resorting to or invoking the Kosovo precedent and principle can go to war. In the same way that a UN Security Council resolution did not exist then but there was a coalition at the time, so can a coalition now engage in the recourse to force without such a resolution.
However, this ignores the fact that at that time a significant majority was secured for a UN Security Council resolution that resulted in a veto by Russia and therefore did not pass.
Today, we have a situation where even a second resolution could not have been put to a vote because a majority vote simply was not there. At the same time the objective then was humanitarian intervention, and even arguing that President Bush has now, in fact, expanded the objective for the use of force from the breach of disarmament obligations under UN Security Council resolution 1441 to that of humanitarian intervention or regime change, it is still clear that even for humanitarian intervention a UN Security Council resolution would be required. Yet such a UN Security Council resolution for that purpose has not even been sought, let alone sanctioned, and regime change is not otherwise permissible under international law.
That leads me to the fifth principle, which is the principle of unintended consequences. If there is one given with respect to the use of force, it is that war is unpredictable. If precedent be a guide, and if the witness testimony before our Standing Committee on Foreign Affairs and International Trade be instructive in this regard, then the use of force may well trigger a humanitarian catastrophe, as the witness testimony before our committee cited.
Which segues into a sixth principle, what I would call the right action principle, having regard to all the circumstances and the prospective adverse fallouts from the use of force. Is this the right action to be taken at this time?
The prospective use of force may well result in a series of adverse fallouts, including not only untold large numbers of civilian dead and wounded--and women and children are the likely first victims of such a use of force--but also the destabilization of the region so that it may not achieve the goal of democracy, peace and security that is sought, but in fact it may unravel both with respect to Iraq and beyond.
Regarding the destruction of the Iraqi infrastructure, the undertaking by the United States and others to rebuild Iraq does not in any way assuage us. The inflaming of the Arab and Muslim world by an attack will be perceived as being an attack on Islam and on Arabs. Even though with respect to humanitarian intervention in Kosovo it was for the sake of saving Muslims at the time, nonetheless the perception at this point, in the absence of any perceived legitimate framework, may be very different. The provoking of more terror would not contribute to the struggle against terror but, in fact, to the encouragement of it through the disruption of the global economy in such a way that we would be faced with untold misery rather than the securing of a freer and stable world.
It may well be that none of these adverse actions that I have just cited may occur. I am only saying that in making a determination to go to war, one has to factor into that decision the principle of the law of unintended consequences and therefore the right action to be deployed in that regard.
That leads me to principle seven and the distinction between jus ad bellum and jus in bello . In other words, international law is relevant not only in assessing the legality of the recourse to the use of force, but also the validity in the exercise of force. However, paradoxical as the nomenclature may seem, we have laws of war, laws governing the use of force in armed conflict, that perhaps are better known as international humanitarian law principles.
These international humanitarian law principles are very clear in what is permissible and impermissible. The use of weapons in any armed conflict must be proportional to the threat, must be necessary for effective self-defence, must not be directed at civilians or civilian objects, must respect the principle of civilian immunity, must be able to discriminate between civilian and military targets, must not cause unnecessary or aggravated suffering to combatants, must not affect states not party to the conflict, must not cause severe, widespread or long term damage to the environment, and must endeavour to avoid civilian infrastructure which is already operating at minimal efficiency.
This is, generally speaking, the framework with respect to the international humanitarian norms applicable to the exercise of the use of force, which leads me now to the eighth principle.
That is the principle of accountability for breaches of international humanitarian law. Clearly, Saddam Hussein and the Iraqi leadership are responsible under international criminal law as well as humanitarian law for their Nuremberg crimes, crimes against peace, war crimes, crimes against humanity and genocide.
Clearly, one does not anticipate, nor should one impute, that the coalition of the willing forces will in any way engage in any crimes similar to that. However, the principles I enunciated with respect to the norms of international humanitarian law, the most important among them being respect for the principle of civilian immunity, are sacrosanct. We now have a regime of international criminal law and an international criminal court which is in force that can hold even members of the coalition of the willing accountable, believing as they do and even imputing to them the good faith that they are acting out of right intent. Nonetheless, they too could be held accountable for said breaches of international humanitarian law.
While the United States has not ratified the international criminal court, the United Kingdom has, and therefore armed forces from the United Kingdom could, should they engage in any breaches of international humanitarian law, find themselves liable first of all before the British court if not before the international criminal court. Even U.S. nationals could find themselves liable under principles of universal jurisdiction before other jurisdictions.
I make this statement because as a basic principle of notice before any armed conflict with the kind of weaponry that may be engaged, this principle of accountability for breaches of international humanitarian law must be given.
Clearly, I make no equivalence between that which has already been committed--the international Nuremberg crimes that have already been committed by Saddam Hussein and his regime--and prospective breaches of international humanitarian law that could be committed by the allied forces. Nonetheless, under the principle, such notice must be given.
Finally, we come to what I would call the principle of retroactive validity. That principle is perhaps the most compelling one that may operate in favour of President Bush and the coalition of the willing. The principle of retroactive validity is such that if the resort to the use of force is exercised, if a war is launched and even if there is some dubious question about the legalities of the recourse of the use of force, if the United States, the United Kingdom and the coalition of the willing do uncover weapons of mass destruction, do uncover evidence that Iraq was deceiving the inspection regime and the international community, and are greeted with a responsive greeting by the Iraqi people, who see them as liberators and the like, it may well be that at that point one might perhaps consider that the initial legalities or the question of legalities of the recourse to the use of force will have been overtaken by the realities of what I would call the principle of retroactive validity.
In conclusion, the juridical framework organized around principles of international law may yet be for us the best looking glass to appreciate what in the days ahead may become a recourse to an extensive use of military force, during which we will have to assess what is the validity of this recourse to the use of force, what is the validity of the exercise of the use of force, what is the accountability that is involved, and what are our respective obligations post the use of force.