The Canadian Government Has a Difficult Case to Make for Legally Bombing Syria

As Ottawa mulls bombing Syria, the legal case for intervention is basically: ¯\_(ツ)_/¯.

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Mar 23 2015, 6:29pm

Azaz, Syria. Photo via Flickr user Christiaan Triebert.

This article originally appeared on VICE Canada.

Stephen Harper's Canadian government will announce this week that it intends on extending the bombing campaign against the Islamic State. But the big question isn't how long the prime minister plans to extend the mission, but where he's willing to take it.

Speculation has been following the mission for months as to whether or not Harper intends to send Canada's CF-18 fighter jets to take out Islamic State positions in Syria. Harper stoked speculation last week when he told a room full of media that "the current authorization laid open the possibility of going to Syria, although we have not done that. But we'll address issues like that next week when I make a proposal to the House of Commons."

He had previously said that Canada would be open to bombing parts of Syria, "only as long as those are not interpreted as war against the government of Syria."

Problem is, that's virtually impossible.

If Ottawa announces that it's going to start dropping bombs across the border, it will join a very small contingent of nations in doing so. Right now, only America, Saudi Arabia, Jordan, Qatar, Bahrain, the UAE, and Morocco have launched strikes in Syria.

That would make Canada only the second NATO nation to join the Syrian side of the mission.

There are two main reasons why that's the case: One, it's really hard for a Western nation to legally justify airstrikes on a country against whom you've not declared war and who did not ask you to do so; and two, everyone's afraid that bombing Syria is only going to lead to more chaos.

The former problem leaves Canada with the option of either getting really creative with the law or ignoring it outright, while the latter is a fear that has informed the prime minister's trepidation about Syria for the past four years.

While Ottawa has supplied defensive equipment, humanitarian aid, and even media training to opposition Syria groups, it has always resisted the temptation to send arms or military aid to the ragtag militias, out of a pretty reasonable fear that they could end up in the wrong hands.

That's partially because Canada doesn't trust its would-be partners in Syria.

While other countries have recognized the Syrian National Council (SNC)—the de facto voice of moderate anti-Assad organizations and, nominally, the political wing of the Free Syrian Army—as the legitimate opposition group to the Syrian Government, Canada has not.

As a policy, Canada doesn't recognize governments—it recognizes states, and it recognizes opposition groups as being "legitimate."

Libya's opposition council, for example, got the endorsement from Canada a few months after the Air Force's CF-18s began dropping bombs on Qaddafi's forces (with a UN mandate). That council later transitioned into governing Libya, which hasn't gone all that well.

Canada hasn't even gone so far as to recognize the SNC as the legitimate voice of Syria's disparate opposition groups and, so far, it appears unwilling to reconsider. According to scores of briefing notes obtained from the Department of Foreign Affairs, the government has feared that the SNC has insufficient representation from minority groups, that it hasn't done enough to denounce radical elements in the anti-Assad coalition, and that it lacks the backing of most of the Syrian population.

Just the same, Canada continued to meet with the SNC. But it flatly rejected getting involved in their fight against Assad.

Lines developed for then-Minister of Foreign Affairs John Baird in 2012 expressly rejected the idea of intervening in Syria on behalf of the opposition groups to either oust Assad or, at least, to reduce his military capabilities.

"Syria is not Libya," the briefing document reads under a header reading: "RESPONSIVE ONLY—INTERVENTION." The language appears in dozens of briefing notes for the minister's meetings with NATO, Arab League, and United Nations counterparts. The documents were obtained via the access to information regime.

"There is no Security Council mandate for international military intervention. The Arab League has not called for intervention nor has the Syrian opposition."

In another briefing note, Baird's responsive lines included: "Military option not viable, would likely worsen situation."

He was probably right then, and chances are he'd be even more right saying that now. Less-crazy rebel forces are getting squeezed, especially around Aleppo, by government forces (who have been dropping barrel bombs full of chlorine), the al Nusra Front (who've forged an unholy alliance with the Islamic State), and the Islamic State themselves.

Bombing Islamic State fighters could just make the situation worse.

However, the Americans have focused most of their bombing on northern Syria, near Islamic State strongholds like Raqqa and around Kurdish-held towns under assault by the Salafist fighters, like Kobani. Most of the fighting between Assad's forces, al Nusra, and the main opposition groups are around Aleppo in the South. So if Canada does get involved, it would likely target a very narrow stretch of territory. At present, it's entirely clear which side of the bloody Syrian civil war would benefit from increased pressure on the Islamic State in Syria.

Going into Syria also raises fears that forces in Syria—either Assad's or the Islamic State's—have the power to shoot Western jets out of the sky. In December, a Jordanian F-16 went down near Raqqa, with the Islamic State claiming they shot it down (the Americans said the evidence suggested otherwise). Whether the plane was shot down, by the Islamic State or whoever else, or whether it was an accidental crash, the captured pilot ended up becoming a part of one of the group's more extreme propaganda efforts. Canadian Air Force personnel have, however, maintained that the CF-18s are generally immune to what they would face in the region, given they've got ample equipment to evade anti-aircraft weaponry.

Baird was right to note that Syria is not Libya because, thus far, neither the United Nations nor NATO has endorsed formal action in Syria.

Last year, President Barack Obama tried to lead a coalition to bomb Syria. His plan was to send cruise missiles and drones (neither of which Canada has) into Syria to take out military targets. That backfired when the United Kingdom suddenly backed out after a humiliating defeat in a Parliamentary vote on the mission.

Obama's legal justification in the run-up to that mission hinged on the idea Assad had violated treaties on chemical weapons, and thus actions designed to stop him were legally justified.

This time around, Washington invoked protection for Iraq in its reasoning for raining hell on the Islamic State. Basically, Obama said that Assad wasn't doing enough to reduce the threat to Iraq, and therefore America had to do it alone.

Obama also cited the threat from the still-not-really-understood Khorasan Group, saying that America had to act because the group was planning attacks on US soil.

All that legal wrangling has been panned as pretty much meaningless, given that America essentially just bombs whatever it wants.

Canada has never really had that luxury.

So if it actually wants to go bomb Syria, things will significantly more complicated. Syria is, after all, still a member of the United Nations.

Canada has not declared war on Syria, and it almost certainly will not, so right there is one option out the door. It will also be quite a stretch to suggest that bombing Syria will somehow reduce a direct threat to Canadian citizens, which would offer some legal cover.

So what is a prime minister to do?

Canada may be leafing back through old UN Security Council resolutions, hoping one provides legal cover to bomb Syria.

There is one resolution that encourages UN states to aid civilian populations threatened by the Islamic State, but it, by design, stops short of authorizing force.

Harper could swallow his pride and ask Assad for permission to bomb the Islamic State on territory that Assad still legally controls. That option has already been vocally chided by the opposition NDP.

Alternatively, Harper could do what he's always resisted and recognize the SNC as Syria's government, and ask for their permission. However, the SNC is even more marginalized than it was two years ago, and the Free Syrian Army is virtually nonexistent thanks to increasing prominence of other Islamist fighting forces.

It could also follow America's example and argue that it is defending Iraq by bombing Syria, but that sort of stretch is usually only reserved for American jingoism.

A variation on this theme could be to recognize Syrian Kurdistan as independent and cite the bombing campaign as necessary to their defense. Problem is, Ottawa has already flat-out declined to recognize Kurdish independence, as doing so would make Ankara irate.

Ottawa could also try and cite the Responsibility to Protect doctrine, which sort of gave NATO cover in its bombing campaign of Yugoslavia, even though it wasn't sanctioned by the United Nations. But if it's only America, Canada, and a smattering of Middle Eastern states, Harper loses the ability to call the Syrian mission multilateral.

When the question came up last year, University of PEI political science professor Peter McKenna penned an op-ed basically acknowledging that Canada really has no legal justification for the mission and that, by expanding to Syria, it's creating an off-putting precedent.

"It would hardly serve Canada's standing in the world to be seen by others as willfully violating international legal precepts," he wrote.

The likely outcome of the Prime Minister's announcement this week is that Ottawa will inch closer to bombing Syria, depending on cover from NATO or the United Nations, but that authorization will be kicked down the line some ways.

Justice Minister Peter MacKay was asked by CBC on Friday what sort of legal study had been done on expanding the mission to Syria.

"We will have to build a legal case, and that will occur through the Parliamentary process. In respect to that, I'm not going to say what's in the motion," MacKay said. He acknowledged the fear that bombing the Islamic State in Syria could aid Assad's campaign against his enemies, but added that anything Canada does would keep that in mind.

In what may may be a tip of his hand, when asked about why Canada has to be the one to head into Syria, MacKay said the Islamic State "is a direct threat to our country," adding: "they have made very real threats and have participated in threats that have harmed Canadian citizens."

Given the fact that the Islamic State now appears to pose a larger threat to states like Libya, the Sinai Peninsula, Yemen, and Nigeria, Syria might be farther down the ladder than some other countries on Canada's to-bomb list.

Follow Justin Ling on Twitter.

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