Wednesday, April 02, 2003

 

Right Honourable Jean Chrétien,
Prime Minister of Canada,
Office of the Prime Minister,
80 Wellington Street,
Ottawa K1A 0A2.

The Honourable William Graham,
Minister of Foreign Affairs,
Lester B. Pearson Bldg.,
A-10, 125 Sussex Drive,
Ottawa, Ontario, K1A 0G2. 

The Honourable John McCallum,
Minister of National Defence,
Major General George Pearkes Building,
North Tower, 13th Floor, 101 Colonel By Drive,
Ottawa Ontario, K1A 0K2 

Dear Sirs;

On January 23, 2003 Lawyers against the War wrote to you stressing the grave implications of Canada’s participation in an illegal war against Iraq (copy enclosed ).

As you are well aware, this horrifying assault on the land and people of Iraq has not been authorized by the Security Council of the United Nations, as any honest reading of Resolutions 1441, as well as 678 and 687, will show. Nor is it within the narrow confines of the right of self-defence, which permits neither “pre-emptive strikes” nor "regime change".  Thus, this war violates the most fundamental principles of international law, as well as the Charter of the United Nations, a treaty binding on the US, the UK and Canada.

According to the judgment of the Nuremberg Tribunal, such a war constitutes “the supreme international crime.”[1]

Furthermore, every act of violence committed in the pursuit of such a war is itself a crime. In the words of Justice Robert Jackson, Chief U.S. prosecutor before the Nuremberg Tribunal:

Any resort to war--any kind of war--is a resort to means that are inherently criminal.  War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property.  An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive war illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave the war-makers subject to judgment by the usually accepted principles of the law of crimes.[2]

During the first week of this war more than a thousand Iraqis were killed, and not just soldiers but civilians, too-- men, women and children.  This relentless slaughter is, legally and morally speaking, murder.  It is the deliberate killing of human beings without lawful justification or excuse. The absence of any lawful justification is a direct result of the absence of any moral justification.

Under the National Defence Act, the Canadian government has no right to order our forces to participate in any war except

(a) by reason of an emergency, for the defence of Canada; or

(b) in consequence of any action undertaken by Canada under the United Nations Charter, the North Atlantic treaty or any other similar instrument for collective defence that may be entered into by Canada.[3]

Not only is the invasion of Iraq not an action undertaken pursuant to the NATO Treaty, even that treaty is expressly subordinated to the Charter of the United Nations. The relevant parts of the NATO treaty are as follows:

[Preamble]: The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.

Article 1: The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the united Nations.

Article 7: This treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.[4]

Like most Canadians, we were relieved when your government declared it would not participate in this war without a Security Council resolution specifically authorizing the use of force.  However, it is increasingly apparent that this laudable declaration is subject to unacceptable exceptions. It is clear that, by reason of your decision, Canadian troops and ships are now participating in this illegal war.

You have said that you do not want to give comfort to Saddam Hussein, but your aid and comfort to the American forces is implicating Canadians in a horrible crime. We cannot stand by and allow this to be done, in violation of both Canadian and international law.

We feel bound to remind you that your material support for this war has no lawful, let alone moral, justification or excuse; it is, therefore, nothing short of the aiding and abetting of murder, as well as a host of other grave crimes against person and property punishable under the Canadian Criminal Code.

As you know, responsibility under Canadian criminal law is personal. There is no exception for government officials, be they Prime Ministers, Foreign Ministers or Defence Ministers. As you also know, Canadian courts have jurisdiction to punish such crimes to the extent that significant elements of them -- such as decisions on the assignment of Canadian troops -- take place in Canada or on board Canadian vessels.

Furthermore, the massive bombing of cities and towns is a systematic violation of the Geneva Conventions and violates the Rome Statute and the Canadian Crimes against Humanity and War Crimes Act.

Therefore, we implore you to withdraw Canadian troops and ships from the invasion of Iraq and stop implicating yourselves and Canada in this appalling criminal enterprise.

Should further clarification of anything in this letter be required, we would welcome the opportunity to provide it to you, preferably in person.

Sincerely,

 

 

Gail Davidson and Michael Mandel[5] on behalf of Lawyers against the War.


 

[1] International Military Tribunal, Trial of The Major War Criminals, 30 September 1946, page 426.

[2] Robert H. Jackson, The Nuremberg Case as Presented by Robert H. Jackson Chief of Counsel for the United States Together With Other Documents (1971), 82-84. (Emphasis added.)

[3] The National Defence Act R.S. 1985, C. N-5, section 31 (1). 

[4]The NATO Treaty (1949).

[5] Michael Mandel, Professor, Osgoode Hall Law School, York University, 4700 Keele Street, Toronto,  Ontario,  M3J 1P3. Tel: 416 736-5039, Fax: 416-736-5736,

Email: MMandel@osgoode.yorku.ca