Mr. Speaker, I would like to begin by pointing out what I think is obvious for many here. The position that the Prime Minister has taken for the last couple of days in the House suggests a serious continuity with the position he took in 2003. He was one of the cheerleaders and apologists for George W. Bush's decision to engage in a manifestly illegal and profoundly stupid invasion of Iraq.
There were two cheerleaders of note at that time. One was south of the border and became the leader of the Liberal Party. That was Michael Ignatieff. He was immediately recruited by the Liberal elites to become the anointed one. The other was the current Prime Minister. He did not give a hoot then about international law, and he does not now.
All we have to do is look at is the contemptuous response he gave in the House yesterday to the Leader of the Opposition. In the end, what the Prime Minister is telling us is “What I say is the law.” That is how he is used to running—and, frankly, ruining—this parliamentary democracy.
“I am King. I am the law.”
That is the Prime Minister.
We then heard from the Minister of Foreign Affairs today. It was a more measured speech, but at the same time, he slipped. He started saying that if we vote against this motion, we are “voting against” our own soldiers. This kind of argumentation, this kind of attempt to suggest that any concerns about wisdom—and, in this case, lawfulness—is somehow beneath debate in the House of Commons is destructive of our democracy. We talk about a goal of degrading ISIL, ISIS, the Islamic State or whatever it is called, and at the same time we are engaging in debate that helps to degrade democratic discourse in the House of Commons.
One thing that is obvious from the last two days is that the government, or at least the ministers, did not have a clue about what the legal basis would be that they were going to be putting forward. They had not bothered to clarify in their own minds what it was. Their answers were all over the map in the House. Yesterday they were scrambling to cross their t's and dot their i's because they finally acknowledged that if they were going to be following the American model, the justification would be one of collective self-defence of Iraq, for which they need an invitation from Iraq. We will see whether that gets backdated, because there is no invitation from Iraq to go into Syria at the moment. They will also need to write a letter to the UN in the way that the U.S. did in order to go into Syria on September 23, 2014.
What that suggests is that legality is an afterthought. Not knowing and not reading whatever legal opinion they purport to have in order to know how they are allowed to go into Syria, so as to then know what the purpose of the mission can be in law, suggests that it does not matter to them. They are going in for other reasons.
Some of the reasons might be very good ones, in the sense that there is this visceral response to the brutality of ISIS. The imagery from the former minister is of that ilk. The government is mixing in justifications about how maybe this is actually a humanitarian intervention, although I have not heard the government give that as the legal basis. It is also on that side.
Frankly, there is also just politics. The government wants to go in for reasons that have as much to do with electoral politics as they do with the actual need for Canada to be involved in this way, especially by extending the mission to Syria.
We debated this question back in early October. At the time, the motion that was passed by the House included Syria. We knew that it did. It was clear, and there was a condition set by the Prime Minister that Canada would not extend its active mission, particularly the bombing part of it, without the consent of the government of Syria, namely Assad.
The U.S. had already put out its legal rationale for going into Syria a full two to three weeks before, on September 23, 2014. Surely any competent Canadian government and its advisers would know what that rationale was by the time we had the debate in the House, yet the only legal basis that the government put forward then for going into Syria was one of the consent of the Syrian government. No mention was ever made of the U.S. rationale.
Was that because the government had legal advice from somewhere within the government that the U.S. rationale was dubious, or even not valid? If so, how the government went about getting a legal opinion that it liked a lot better is a question that has to be asked.
Maybe there is a hint. Newspaper reports suggests that it was the Judge Advocate General, based in the Department of National Defence, who gave that legal opinion.
It is one, of course, we are never going to see, because the current government will raise the bogus argument of solicitor-client privilege as the reason we cannot see the legal opinion. However, the Judge Advocate General has no business giving legal opinions on ius ad bellum, the use of military force as set out in general public international law. That is the role of the legal adviser to the Department of Foreign Affairs, who in every other government and every other Westminster system would be the one giving the opinion.
The question is begged: did the legal adviser give an opinion back in September and October? Was it favourable to the government? If so, why do we not know about it? If it was not favourable to the government, is that why the Department of National Defence has inserted itself and overridden the Department of Foreign Affairs in its proper role of advising the government on the lawfulness of going to war?
These are questions we have to ask. I would remind members that we have asked them and will continue to ask them. We will want to see the legal opinions. It is not for the sake of legality itself, but in order to know what the government sees as the basis for going in and to be able to hold the government to account for the reasons given, under law. It is also in order to be critical, to scrutinize, and have others who are also experts say “case made” or “case not made”.
The fact is that unless the government changes its ways, it is going to say, “Sorry, solicitor-client privilege”, which is so bogus. First of all, the client is the government. Second, this is the ultimate public interest. There is nothing reasonably confidential in what the government hears about whether it can go to war that cannot be shared, not just with Parliament but with Canadians as a whole.
Therefore, with the Minister of Foreign Affairs here in the House, I do ask him to make sure that any legal opinion that has been received by the government is tabled, and tabled forthwith.
I will briefly go over the three kinds of legal justifications that have been circulating.
One is that when things are finally clarified, it is beginning to look like the government realizes that for the Americans, the primary justification is one of collective self-defence of Iraq. Not surprisingly, the U.S. needed Iraq to request it to defend itself against whatever threat it sees coming from Syria. This is based on a very tenuous theory that does not have firm grounding in international law, possibly not even firm grounding in emerging international law: the safe haven theory.
The safe haven theory is that if another state is incapable or unwilling to eradicate safe havens from which non-state groups like ISIS are crossing the border into another state, that state can attack at will in order to deal with the threat. The fact is that the leading judgment in international law on this point, from the International Court of Justice in the Nicaragua case in the mid-1980s, specifically said that it is not a basis for exercising the right of collective self-defence.
The leading definition set out by the United Nations in 1974, the Definition of Aggression, does talk about a scenario like this, a scenario of non-state groups crossing borders to attack another state. It is not as if this issue has not arisen. However, the issue is whether another state is sending, by or on behalf of that state, or is substantially involved in sending, armed groups across the border. That does trigger a right of self-defence.
People have cited the 9/11 response. After the towers came down, after that brutal terrorist attack on New York, the response was to go into Afghanistan. People said the attack meant that we can go after any safe haven in response to a non-state terrorist attack.
That is absolutely wrong. At the time, everybody thought and understood that al Qaeda and the Taliban government of Afghanistan were so interpenetrated that any al Qaeda attack was, in effect, one that had the substantial involvement of the Taliban government. That was the basis on which self-defence was exercised, and nobody objected at the time. However, to stretch that into this broader theory requires seeing the legal opinions. Maybe the law has marched on. Despite being a public international lawyer, maybe I have not watched enough in the last five years to know it has, but we need to see to know.
The last thing floating out there, especially coming out of the mouth of the Minister of National Defence, is the idea of a George Bush-style GWOT, a global war on terror. It is the idea that all that is needed is a threat by a non-state group to allow a state to go around the world bombing, whether with drones or airplanes, if another state is somehow or other not doing the job that this state says needs to be done.
The wording of the motion actually plays exactly into that idea, because the new motion—as my colleague, the critic for foreign affairs, brought up earlier today—specifically says that it is not just against ISIS but ISIS allies, which include, for example, Boko Haram in Nigeria.
It also says that the actions Canada can take “include” air strikes in Iraq and Syria. It does not create an exclusive list. There are good reasons the official opposition is asking for legal clarity and to see the legal opinions.