Afghanistan, Ukraine updates and Canada in cyberspace
CANADA STILL IMPERILLING CANADIAN AID WORKERS IN AFGHANISTAN
In our 19 June 2022 blog post, we included a detailed segment on the recommendations of the Special Committee on Afghanistan, the most urgent of which were:
That the Government of Canada act immediately to ensure that registered Canadian organizations have the clarity and assurances needed — such as carve-outs or exemptions — to deliver humanitarian assistance and meet basic needs in Afghanistan without fear of prosecution for violating Canada’s anti-terrorism laws.
That the Government of Canada review the anti-terrorism financing provisions under the Criminal Code and urgently take any legislative steps necessary to ensure those provisions do not unduly restrict legitimate humanitarian action that complies with international humanitarian principles and law.
We return to this issue more than two months later to find no action at all has been taken.
In a paywalled Hill Times article of 11 August 2022, the leadership of two important Canadian humanitarian organizations, Asuntha Charles of World Vision Afghanistan and Reyhana Patel of Islamic Relief Canada, spoke out on this unconscionable inaction:
Canada’s anti-terror provisions of the Criminal Code have meant that for us to continue delivering life-saving aid directly to Afghan civilians could mean us potentially facing prosecution under Canada’s Criminal Code.
The consequences for the work of Canadian aid organizations have been catastrophic:
World Vision Canada… has had to cease operations altogether, which has meant, for example, that two containers of ready-to-use therapeutic food all set to go to Afghanistan in the autumn of 2021–enough for about 1,800 children—had to be cancelled….
approximately $90-million (CAD) worth of Canadian-funded projects has been severely compromised or suspended altogether.
Canada is alone among key western donors in failing to heed the December 2021 call of the UN Security Council for member states to align their domestic sanctions legislation to provide humanitarian exemptions so that aid could continue to reach those in need.
Charles and Patel write:
despite our best efforts, the [Canadian] government has failed to act.
While the government has “looked into it” for close to a year, thousands of children have already died from starvation and disease, and millions more are at severe risk without critical and immediate humanitarian interventions.
Canadian humanitarian organizations join in national campaign
As a result of this life-destroying governmental inaction, Canadian organizations of diverse backgrounds, faiths and creeds have taken action. They have:
united in launching the ‘Aid for Afghanistan’ public campaign to remove these barriers, including the amendment of the Criminal Code, to allow humanitarian organizations to resume their programs.
Charles and Patel further explain:
Ultimately, we want our government—and Canadians at large—to understand that this issue is not about the Taliban, religion, or party politics.
It is about Afghanistan being on the brink of mass starvation, where 22.8 million people—through no fault of their own—are suffering and in desperate need of urgent help.
We urge readers to go to the ‘Aid for Afghanistan’ website and sign a letter to the Government of Canada in support of immediate action.
We reiterate our 17 June call upon the Government of Canada to immediately update its sanctions and anti-terrorist regulations on Afghanistan and to act expeditiously to amend relevant Criminal Code provisions, so they fully accord with the UN Security Council resolutions aimed at facilitating humanitarian assistance in that country.
Pending legislative changes and, in accordance with the parliamentary special committee report, we call upon the Government of Canada to immediately provide the necessary assurances to Canadian humanitarian agencies operating in Afghanistan that their vital work will not lead to prosecutions in Canada.
UKRAINE UPDATE: UN SEC-GEN PLEADS FOR PEACE
On the occasion of Ukraine’s 31st anniversary of independence from the Soviet Union, UN Secretary-General António Guterres repeated his ongoing appeal for peace to the UN Security Council:
The people of Ukraine and beyond need peace and they need peace now.
At the same time, he took the occasion of the meeting to brief the Council on the Black Sea Grain Initiative, which is a joint initiative of the UN, Turkey, Ukraine and Russia:
I can report to the Council that the Black Sea Grain Initiative, signed in Istanbul in July, is progressing well – with dozens of ships sailing in and out of Ukrainian ports, loaded so far with over 720,000 metric tonnes of grains and other food products.
He referenced the role of the World Food Programme:
In Istanbul, I saw the WFP-chartered ship, the MV Brave Commander.
It was proudly flying the UN flag with its cargo destined for the Horn of Africa where millions of people are at risk of famine.
Just a few weeks ago, much of this would have been hard to imagine.
We are seeing a powerful demonstration of what can be achieved, in even the most devastating of contexts, when we put people first.
At the same time, Guterres drew attention to further actions that are urgently needed:
The other part of this package deal is the unimpeded access to global markets of Russian food and fertilizers, which are not subject to sanctions.
It is critical that all governments and the private sector cooperate to effectively bring them to market.
In addition, Guterres highlighted the issue of equitable access to vital foodstuffs:
The shipment of grain and other foodstuffs is crucial, but it won’t mean much if countries cannot afford them.
Developed countries and International Financial Institutions must do more to ensure that developing countries can fully capitalize on the opportunities of the Black Sea Grain Initiative.
No end to fighting in sight
The Secretary-General then stated:
Despite progress on the humanitarian front, fighting in Ukraine shows no signs of ending, with new potential areas of dangerous escalation appearing.
Guterres drew particular attention to the fighting in the vicinity of Europe’s largest nuclear power plant in Zaporizhzhia:
The security of the Plant must be ensured, and the Plant must be re-established as purely civilian infrastructure.
The Secretary-General continued:
In close contact with the IAEA, the UN Secretariat has assessed that we have in Ukraine the logistics and security capacity to support any IAEA mission to the Zaporizhzhia Nuclear Power Plant from Kyiv, provided both Russia and Ukraine agree.
I welcome expressions of support for such a mission and urge that to happen as soon as possible.
The Secretary-General also reiterated his deep concern about allegations of violations of International Humanitarian Law and violations and abuses of human rights related to the armed conflict:
The United Nations Human Rights Monitoring Mission in Ukraine — and the UN Independent International Commission of Inquiry on Ukraine — continue to monitor, document and report with a view to supporting the investigation of alleged violations.
In the view of the Rideau Institute:
It is clear that the UN is playing an ever more important role in Ukraine on the humanitarian and security fronts. It is long past time for NATO members, including the USA and Canada, to support further UN diplomatic peacebuilding efforts.
Will Europe fracture over the war with Ukraine?
This is the question that Mary Dejevsky asks in a 23 August article for The Nation with the following sub-head:
As winter looms, double-digit inflation and energy costs will test unity.
Dejevsky begins with this observation:
Six months after Russia’s invasion…. What has endured, largely undiminished, at least in Europe, is the early sense of popular solidarity with Ukraine….
The question is: How much longer can it last? And what will happen if it starts to fracture or simply retreats?
In her view, and we agree, this is an extremely difficult question to answer because, as we have noted often before in these blog posts:
there has been a conspicuous lack of discussion in most European countries about the role of Europe in the war and nothing at all that could pass for an informed debate.
Anyone on the European side who even hints that Ukraine might at least [need] to think about a time when it might need to cut its losses is dismissed as an appeaser, a shill for Russia, or worse.
But stifling debate has no impact at all on the costs of the war to Europe as winter sets in.
As Dejevsky observes:
with much of Europe facing either double-digit inflation or winter rationing of energy, or both, governments face some profoundly difficult choices.
Dejevsky explains further:
The difficulty for the Europeans is that, however much we blame Russia for triggering an energy shortage and withholding supplies (especially gas), this is not quite what has happened.
It was the UK and the EU who abandoned their long-standing practice of exempting the energy sector from sanctions and moved to curtail imports of Russian oil and gas, actions which have “spectacularly rebounded”, in the short term at least.
Dejevsky summarizes the devastating result:
Not only are many EU countries now struggling to reduce consumption or replace Russian supplies—in some instances competing against each other—but also Russia has been able to find new markets and exploit a rise in prices.
If the aim was to starve Russia of funds, this has failed, and much of Europe now looks forward to a very cold and expensive winter.
Dejevsky ends her article with two key questions:
How far will people accept hardship for the sake of a principle—punishing an aggressor—and how far will they continue to support a war they were never asked to approve—either in Parliament or in any other public forum?
CANADA AND INTERNATIONAL LAW IN CYBERSPACE
In April 2022 Canada released its position on the application of international law in cyberspace.
The Canadian statement was extremely favourably reviewed in the European Journal of International Law by Michael Schmitt, an eminent legal expert in this area.
That the Canadian statement did not draw attention is unfortunate, for it sets forth the views of an influential player in the interstate cyber law dialogue, and one that has devoted significant resources to legal capacity-building globally in the field.
Schmitt surmises that a key reason for the statement’s failure “to attract the attention it merited” was that
it arrived as the international law community’s attention was riveted on Russia’s unlawful attack against Ukraine….
In the statement’s Introduction, Canada describes “cyberspace” in accordance with the Canada Defence Terminology Standardization Board (DTSB) as follows:
Although cyberspace has no single agreed upon definition, it consists of interdependent networks of information technology structures—including the Internet, telecommunications networks, computer systems, embedded processors and controllers—as well as the software and data that reside within them….
In his article, Michael Schmitt describes key elements of the Canadian statement, compares it to other states’ positions, and offers his legal assessment of certain positions Canada takes.
He concludes that
it is a statement that reflects care in preparation and offers sophisticated legal analysis.
He explains further:
Canada endorses the applicability of international law…. [but] goes further than most statements by zeroing in on the challenging international law question – how international law rules apply.
Eschewing the ambiguity that some states and commentators applaud for the “flexibility” it provides in calibrating their actions, Canada calls on states to “develop and publish” their national views, arguing:
articulation of national positions on how international law applies to State action in cyberspace will increase international dialogue and the development of common understandings and consensus on lawful and acceptable State behaviour.
These statements can help reduce the risk of misunderstandings and escalation between States arising from cyber activities.
Capacity building is key to informed interpretation of international law in cyberspace
In order to help develop informed interpretation by the broadest possible group of states, Canada strongly advocates for capacity building on the application of international law in cyberspace.
And GAC is “walking the walk” by supporting legal capacity-building programs in Latin America, the Caribbean, the Middle East, and Africa.
Schmitt goes on to review in detail both Canada’s “conventional” views on how international law applies to cyberspace (that is, those positions on which there is broad agreement) and the “striking elements” of the Canadian position which relate to contentious or unsettled issues.
The unsettled issues include cyber operations that may violate another state’s sovereignty, the concept of “significant harmful effects” of a hostile cyber operation, including effects that do not constitute physical damage but relate, for example, to situations involving loss of functionality, and the threshold at which a cyber act of influence “crosses into the realm of coerciveness”.
Canada defines coercive effects as those that:
Deprive, compel, or impose an outcome on the affected State.
Schmitt explains further:
As the GAC statement notes, this definition excludes public diplomacy, criticism, persuasion, and propaganda from the ambit of intervention.
However, for Canada, disabling an election commission, preventing individuals from voting, and conducting cyber activities against a major gas pipeline that compel the affected State to change its position in bilateral negotiations regarding an international energy agreement would qualify as coercive.
Professor Schmitt is particularly impressed that Canada has expounded a position on the applicability of the international law principle of sovereignty that is different from that of the UK — thus publicly disagreeing with an interpretation by another “Five Eyes” state, something only New Zealand has done in the past.
Another area that Schmitt deems particularly important is Canada’s view that characterization as a “non-binding norm” by a UN Group of Governmental Experts (GGE) does not preclude it also being a binding rule. He writes:
all labelling a norm as such does is confirm that unanimity could not be achieved within the GGE on its normative status.
Of the overall position paper, Schmitt concludes:
even where I disagree, I find the Canadian statement to be a significant contribution to understanding how international law applies in the cyber context. Simply put, Canada has moved the discussion forward.
And it continues to do so through active international engagement on the subject and its robust global capacity-building program.
In the view of the Rideau Institute:
The GAC statement is an important and timely contribution by Canada to the elaboration of urgently needed “rules of the road” for state activities in cyberspace, a domain central to daily life.
We highly recommend the full Schmitt commentary available here: Canada Takes on International Law in Cyberspace (ejiltalk.org, 14 July 2022). An important companion piece is his article on The Sixth United Nations GGE and International Law in Cyberspace (justsecurity.org, 10 June 2021).
The Canadian position paper is available here: International Law applicable in cyberspace (international.gc.ca, April 2022).
Photo credit: Wikimedia Commons
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