Reducing nuclear risks, increasing legal accountability and more
CANADA AND NO FIRST USE OF NUCLEAR WEAPONS
the sole purpose of the U.S. nuclear arsenal is to deter – and, if necessary, retaliate for – a nuclear attack against the United States and its allies.” – Adam Mount, FAS
In our 4 Dec 2021 blog we outlined the active debate ongoing in both Washington and within NATO over President Biden’s apparent desire to reduce the role of nuclear weapons in American strategy by moving to a “no first use” or “sole purpose” of nuclear weapons doctrine.
We called on Canada to forcefully support this proposal in bilateral discussions with the USA, with NATO allies and in the context of NATO’s own ongoing review of its nuclear doctrine.
Against that backdrop, we include this clarion call, in a recent Financial Times op ed, from Gro Harlem Brundtland, former Norwegian Prime Minister and one of the foremost Elder Stateswomen alive today:
President Joe Biden has a historic opportunity to demonstrate leadership by using the current US Nuclear Posture Review to implement his campaign commitment that the “sole purpose” of the US nuclear arsenal should be deterring — and if necessary, retaliating against — a nuclear attack
I will always remain a strong supporter of NATO.
However, it strains credulity that the US would launch a nuclear attack in response to a conventional attack by a nuclear power on an ally, as this would inevitably provoke a nuclear response and result in national and global calamity on an almost incomprehensible scale…
Biden should therefore not be deterred by the sabre-rattling rhetoric from domestic opponents, and instead focus on the transformative potential of a sole purpose policy on the world stage.
In the view of the Rideau Institute:
The glaring weakness at the core of nuclear deterrence is the suggestion that any use of nuclear weapons is acceptable. Nonetheless, with all its problems, a “sole purpose doctrine” is infinitely less dangerous than a nuclear war fighting doctrine.
We call upon Canada to strongly support “a sole purpose of nuclear weapons” doctrine, both in bilateral discussions with the USA in the lead up to the 10th NPT Review Conference in New York in January and with NATO colleagues in the context of the ongoing consideration of NATO’s nuclear doctrine in its decennial Strategic Concept review, due to be adopted at the Madrid Summit in June 2022.
New German Foreign Minister pushes for nuclear disarmament
German Foreign Minister Annalena Baerbock called for a “new momentum” to nuclear disarmament as she met with her Swedish counterpart with an eye toward a review of a non-proliferation treaty.
So begins an article on the attention that the new German foreign minister is giving to nuclear disarmament, shortly after taking office in the new coalition government.
FM Baerbock continues:
Our message to the [NPT] review conference will be clear: Nuclear weapons countries have to push ahead with nuclear disarmament.
In contrast to the role of her German counterpart, who co-chaired the meeting, Canada’s new Foreign Minister Mélanie Joly continued the undiplomatic tradition of sending a non-Cabinet member, to the high profile fifth Ministerial Meeting of the Stockholm Initiative for Nuclear Disarmament, the last such meeting before the NPT Review Conference it is designed to influence positively.
Pleased to represent Canada at the 5th Ministerial Meeting of the #StockholmInitiative for Nuclear Disarmament, co-hosted by @ABaerbock & @AnnLinde. We must continue to work together to set a decisive path for nuclear disarmament at the next #NPT Review Conference and beyond. pic.twitter.com/EhCwc5PQo7
— Rob Oliphant (@Rob_Oliphant) December 14, 2021
This apparent Canadian foreign ministerial disregard for the importance of arms control measures to reduce nuclear risks – at the very time they are exponentially rising – is reflected in her mandate letter, now available here.
RI President and former Canadian Amb for Disarmament to the UN Peggy Mason comments:
No where in the mandate is there a single reference to arms control, disarmament or nuclear risk reduction measures.
We call upon Foreign Minister Joly to interpret the general mandate references to “peace and security” and to “strengthening Canada’s diplomatic capacity” to include the urgent need for her to maximize opportunities for the arms control diplomacy.
For a thought-provoking article on the central importance of arms control to prevent any use of nuclear weapons, see: Biden Should Endorse No Use and Reject No First Use in the Pentagon’s Nuclear Posture Review (Michael Krepon, forbes.com) 02 Dec 2021.
UN PEACEKEEPING AND CANADIAN ACCOUNTABILITY FOR ABUSES
There has been a lot of attention, and rightly so, to the ongoing nightmare of bringing DND’s procedures for addressing sexual misconduct into the 21st century. The latest twist was reported by Murray Brewster in a CBC article entitled: Changing the military’s culture to end sexual misconduct could take 5 years, senior officer says (16 Dec. 2021). Brewster writes:
The chief of professionalism and conduct in the Canadian Armed Forces [Lt.-Gen. Jennie Carignan] is planning a five-year campaign to overhaul the military’s culture to put an end to sexual misconduct.
Her aim is to institute “effective, irreversible, positive changes” in a military system that has “resisted” efforts to change it for decades.
As the article notes, the briefing by Carignan and the Head of the Sexual Misconduct Response Centre (SMRC), Denise Preston, follows an “history making apology” from the federal government to those who’ve experienced sexual assault:
Today, as Minister of National Defence, I am apologizing to you on behalf of the Government of Canada.
Ministerial Mandate and Sexual Misconduct
The attention by the government to sexual misconduct in the Canadian military is reflected in the mandate of the new Defence Minister, released on 16 December, which makes it an “immediate priority” for Anita Anand to “build an inclusive and diverse Defence Team, characterized by a healthy workplace free from harassment, discrimination, sexual misconduct and violence.”
Specific directions in the mandate include:
- In consultation with survivors, take action to transform the culture of the CAF, rebuild trust and build a healthy, safe and inclusive workplace, free from harassment, discrimination and violence, including by….
- Implementing interim and final recommendations of the Independent External Comprehensive Review conducted by Justice Louise Arbour on a priority basis, including to institute external oversight over the reporting, investigation and adjudication of complaints, outside the chain of command…. and, inter alia,
- Implementing the recommendation from Justice Louise Arbour and Justice Morris J. Fish to move the investigation and prosecution of sexual assault cases from the military justice system to civilian courts….
Lack of action on sexual misconduct by Canadian police officers in UN peace operations
All of this much-needed attention to addressing sexual misconduct in the Canadian military stands in sharp contrast to the failure to close a glaring gap in Canada’s justice system which allows Canadian police officers to escape legal accountability for sex crimes committed while deployed on UN peacekeeping operations.
A “gap” in the Criminal Code means Canadian police (as opposed to Canadian military) are immune from prosecution for crimes committed while deployed as UN peacekeepers.
Global Affairs Canada (GAC) has been aware of this for years.
Asked to comment on the problem back in 2019, then Foreign Minister Chrystia Freeland told the CBC:
It is totally unacceptable for [officers] to harm the people who they are sent to protect. And it is important for us to be sure that we have a framework here in Canada that allows us to deal with any offenses committed outside the country.
Yet, as Melvin points out, Canada still has not put in place the “framework” to allow for Canadian prosecution of such offenses:
In other words, Canada’s “framework” for peacekeeper accountability hasn’t changed since Freeland said Canada needed a more effective one in 2019.
Since the UN lacks the authority to compel cooperation in their investigations and has limited authority in terms of sanctions even where there is cooperation, victims of sexual abuse committed by Canadian police on UN missions “have little chance of seeing justice”.
Melvin believes the best response is for Canada to pass legislation, committing the government and all relevant entities to fully cooperate with UN investigations of abuse.
In the view of the Rideau Institute:
Canada should emulate the Norwegian example which requires full cooperation with UN investigations, but also makes sexual offences committed by police while deployed in UN peace operations criminal acts under the Norwegian Penal Code. Thus, Norway has full authority to prosecute such offences.
We call upon the Government of Canada to fast-track legislation providing that the Criminal Code of Canada, as with military peacekeepers, “follows” Canadian police officers while deployed on UN peacekeeping missions, such that they can be prosecuted in Canada.
WAR CRIMES, UNIVERSAL JURISDICTION AND LEGAL ACCOUNTABILITY
On 30 Nov 2021 France24.com included the following headline:
In a world first, Germany sentences Iraqi jihadist to life in prison for Yazidi genocide.
Arab Digest in its 16 Dec 2021 Newsletter reflects on the importance of this legal ruling, summarizing its significance (and that of related recent court rulings) as follows:
Summary: in the past, international criminals in the Arab world have rarely faced justice but a landmark trial in Germany signals the legal landscape is changing.
Today, ISIS member Taha AJ was convicted of genocide and sentenced to life in prison. This is the first genocide verdict against an ISIS member. This verdict is a win for survivors of genocide, survivors of sexual violence, & the Yazidi community. https://t.co/xnUYfBZshq pic.twitter.com/Os8OZcZcge
— Nadia Murad (@NadiaMuradBasee) November 30, 2021
Arab Digest goes on to say that this trial was the first in Germany based on the principle of universal jurisdiction, addressing crimes under international law committed abroad by a perpetrator who is not a German citizen and who was only extradited to Germany on the basis of an international arrest warrant. None of the crimes in this case were committed in Germany and neither the victims nor the suspect were German nationals.
What is universal jurisdiction?
Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity.
For a more thorough discussion of the importance of the principle of universal in relation to grave breaches of international law, see the 21 May 2021 Factsheet by the ICRC, available here in PDF format. And click here for the list of countries – including Canada – with universal jurisdiction for international crimes.
In the view of Arab Digest, and we agree:
…universal jurisdiction … has become an increasingly important tool for achieving accountability and justice for the survivors and victims of international crimes. Hundreds of investigations are ongoing and dozens of convictions have been obtained.
It is particularly important in cases where an ICC prosecution has been stymied by a Security Council veto in circumstances where the International Criminal Court cannot exercise jurisdiction on its own, since the crimes were committed in the territory of a State which is not a party to the Rome Statute.
Good and bad precedents from the Netherlands
Arab Digest draws attention to the very positive action of the Netherlands in establishing a special unit within the police, prosecution and even immigration services, dedicated to identifying perpetrators of international crimes and bringing them to trial.
On the negative side, these exemplary Dutch efforts have been offset by the astoundingly bad ruling by the Dutch appeals court on 7 Dec 2021, upholding a lower court’s decision to throw out a civil case against Israel’s defence minister and another former senior military officer over their roles in a deadly 2014 airstrike, on the following reasoning:
The Hague Court of Appeal said Tuesday that the lower court was right to rule that Gantz, who was military chief of staff at the time of the airstrike, and Eshel had immunity because they were carrying out Israeli government policies.
The defence of “carrying out orders” has not been lawful since Nuremberg, while the doctrine of command responsibility is explicitly incorporated into the Rome Statute of the ICC.…
If allowed to stand, this ruling will open the way to eg Syrian Air Force commanders to be acquitted for eg gassing Douma, or other war criminal “government policies”, such as Saddam’s genocide of the Kurds.
(See below for more on the status of the investigation by the International Criminal Court into Israeli and Palestinian war crimes.)
Canada and war crimes prosecutions
Canada too has a specialized unit within the Department of Justice although the last Report under the program was published in 2016. A significant portion of the effort seems to be focused on the exclusion of suspect individuals from Canada or their deportation and, in the case of Canadian citizens, revocation of their citizenship.
In the view of the Rideau Institute:
This approach does nothing to bring the accused individuals to justice and amounts, in our view, to Canada shifting the responsibility to other countries who may be in a much less capable position than Canada to hold these alleged perpetrators to account.
With respect to criminal-based remedies, the 2016 report indicates that, during the period 2011-2015, there were some prosecutions for war crimes or crimes against humanity but it provides no statistics and lists only two “case samples”.
It is unclear why statistics are given for exclusions and removals but not for criminal prosecutions.
Based on this material, it is hard not to conclude that, despite the ability to exercise universal jurisdiction and the presence of a specialized unit, Canada can hardly be said to be active in pursuing accountability for international crimes.
Recall the words of lawyer Natia Navrouzov:
It doesn’t matter where the crimes were committed and it doesn’t matter where the perpetrators are, thanks to the universal jurisdiction, they can’t hide and will still be put on trial.
If we want the promise of universal jurisdiction fulfilled, then Canada must close the gap – yet again – between our human rights rhetoric and our actions on the ground.
We call upon the GOC to, at a minimum, give priority for these most serious international crimes to Canadian criminal prosecutions, rather than exclusion and removal proceedings. In cases where another jurisdiction seeks extradition, then a determination can be made as to the most appropriate forum for prosecution.
Israel and non-accountability for war crimes – yet
A Dec 2021 report from the NGO Airwars, entitled: ‘Why did they bomb us?’ Urban civilian harm in Gaza, Syria and Israel from explosive weapons use” (Dec 2021) finds both Israel and Hamas likely guilty of grave breaches of international humanitarian law during the Gaza conflict in May 2021.
Airwars’ report demonstrates that choices made by belligerents continue to have devastating effects on civilians – clearly showing why the use of explosive weapons in urban centres must be restricted.” – Report summary
In particular the Report finds that the Israeli bombardment of densely populated areas of Gaza constitutes “excessive and disproportionate force” while Hamas too bears responsibility for locating fighters and weapons caches in civilian areas.
What of the “human shields” argument?
Hamas is responsible for civilian casualties inflicted during those strikes, Israeli officials say, because it fires rockets close to schools, offices and homes. – New York Times
What of this argument?
Israeli law lecturer, Eliav Lieblich, in a blog for Just Security, writes:
Under International Humanitarian Law (IHL), the fact that one party violates its obligations – among them the obligation not to use civilians as human shields – does not release the other party from its own obligations. Additionally, law prohibits “reprisals” against civilians, which means that a party cannot break IHL rules that protect civilians to try to compel the other party to cease its violation.
He goes on to explain that both provisions reflect the “basic idea” that people “on the other side” have fundamental human rights, regardless of the political entity that controls them.
Lieblich then provides a most useful analogy in response to the question, as to how to morally and legally account for civilians under the power of a group that uses them as human shields:
The… only morally defensible view is recognizing them for what they are: hostages of the situation….The lives of the civilians must remain a paramount concern for the attacking force, whatever the responsibility of the other side.
Armed groups might be responsible for harm that they occasion to civilians under their control. But to argue that this absolves the other party from responsibility is to get both law and morality wrong.
For a further report of the May conflict, by Human Rights Watch, see “Gaza: Apparent War Crimes During May Fighting: Israel, Palestinian Violations Show Need for International Criminal Court Inquiry (hrw.org, 27 July 2021).
In the view of Human Rights Watch:
The Office of the Prosecutor of the International Criminal Court (ICC) … should include in its Palestine investigation Israeli attacks in Gaza that resulted in apparently unlawful civilian casualties, as well as Palestinian rocket attacks that struck population centers in Israel.
Canadian self-proclaimed championing of human rights as “the core” of our foreign policy will lack any moral underpinning so long as we continue to turn a blind eye to grievous breaches of international law by our “friends”.
In this regard, in addition to the overarching priority the mandate gives to human rights, we draw particular attention to that portion of the new mandate of the Minister of Foreign Affairs which reads:
- continuing to expand the broad coalition of states supporting Canada’s initiative to condemn and eradicate the practice of arbitrary detention and advancing an action plan to coordinate collective international responses to specific incidents of arbitrary detention
A member of the coalition supporting this initiative is Israel. Yet, here is what an October 2021 report by the UN High Commissioner for Human Rights has to say:
In violation of international law, Israel continues to use administrative detention to imprison more than 500 Palestinians – including six children – without charges, without trials, without convictions, all based on classified secret information that the detainees have no access to….They have no recourse to challenging these undisclosed allegations, and they do not know when, or if, they are going to be released. [emphasis added]
We would also draw attention to Canada’s terrible voting record in the UN on resolutions relating to Israel, where we routinely join with a tiny number of countries to oppose greater scrutiny of Israeli practices in the Occupied Territories.
We reiterate our call on the government of Canada to ends its cynical selectivity in the defence and promotion of human rights and, to this end, to join with the vast majority of UN member states, including western “likeminded”, seeking to hold Israel to account for its ongoing human rights violations.
UPDATE: SUMMIT OF DEMOCRACIES WAS USEFUL – SORT OF
We promised to include an assessment of the outcome of President Biden’s Summit of Democracies, ongoing at the time of last week’s blog, which provided a lot of critical commentary on why it might not have been such a great idea.
Today we look at some of the post-Summit assessments, beginning with an analysis by CBC’s Alexander Panetta with the astonishing lead-in:
3-day gathering in Washington resembled therapy session about democracy in retreat
The “good” news about the Summit, such as it is, is summed up in the headline to Panetta’s article:
Countries at the global democracy summit take the first step — admit there’s a problem
In the view of the Rideau Institute:
This welcome focus on addressing democratic deficits at home – as the necessary foundation for defending and promoting democracy abroad – could bode well for the future. However, as critics have noted, the lack of benchmarks for implementing commitments made at the Summit – from combating corruption and disinformation to strengthening election integrity and independent media – undermines the prospects for meaningful progress.
WEBINARS NOT TO MISS
Recording of December 16, 2021 webinar debate on U.S. and China now available
The Institute for Peace and Diplomacy co-sponsored a policy debate organized by the Quincy Institute between Professor John Mearsheimer and Professor David Kang. The debate question was: “Should the U.S. Seek to Contain China?”.
The youtube recording of that debate is now available by clicking the link below:
January 18, 2022 webinar will explore Economic Sanctions Report findings and implications
On 29 Nov 2021 the Rideau Institute launched a new, bilingual report by Professor Craig Martin, entitled Economic Sanctions Under International Law: A Guide for Canadian Policy, a co-publication with the Human Rights Research and Education Centre, University of Ottawa and part of a co-project with the Group of 78.
On 18 January 2022 from 10:00 -11:30 am EST, these three organizations will co-sponsor a webinar to explore with the author the Report’s important and timely findings.
Please keep watch for further details and registration information.
Photo credit: Wikimedia Commons (The Elders)