Protecting against International Insecurity and Armed Attack

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 141-178

CHA PTER 5

PROTECTING AGAINST

INTERNATIONAL

INSECURITY AND

AR MED ATTACK

In classic terms, a state’s most pressing national security objective is to

protect its territory from foreign inva sion or attack. To counter exactly

these thre ats, milita ry response is a key pla nk in the n ational security

strategies of some nations. For i nstance, the 2002 National Security

Strategy of the United States famously pledged to use force to pre-empt

threats from states developing weapons of mass destr uction.1

With a subst antially smaller mil itary and a different place in t he

hierarchy of international power, Canada has not historically projected

military power as readily a s the United States. Nevert heless, it s 200 4

national security policy noted that Canadian military assets may be

deployed “to protect against direct th reats to i nternational peace and

se c u r it y.” 2 Likewise, the 2005 Canadian Internationa l Policy Statement

(IPS) concluded that “in making a distinctive contr ibution to a safer

world, we will rely heavily on the Can adian Forces.”3

1 White House, Nation al Security Strategy of the United States (2002) at 15, online:

www.whitehouse.gov/nsc /nss.pdf [U.S. National Secur ity Strategy 2002].

2 Canada, Sec uring an Open Society: Canad a’s National Secur ity Policy (2004) at 6,

online: ww w.pco-bcp.gc.ca/doc s/InformationRe sources/Publicat ions/NatSecur-

nat/nat securnat_e.pd f [Securing an Ope n Society].

3 Canada, Inte rnational Policy Stateme nt — Overview (2005), online: htt p://geo.

internat ional.gc.ca/cip -pic/ips/over view-en.a spx.

141

NATIONAL SECUR ITY LAW142

The defence paper that accompanied the IPS4 highlighted “the im-

portance of meeting threats to our security as far away from our borders

as possible, wherever they may arise. Security in Canad a ultimately

begins w ith stabilit y abroad,” especially in the world’s failed or failing

states. The defence statement listed these weak states, anti-terrorism,

countering weapons proliferation and regional “hot spots” as issues im-

plicating the Canad ian Forces (CF).

These defence priorities continued by the time of this writing.

Planning record s employed in developing the Department of National

Defence’s a nticipated 2007 Defence Capability Plan predict that “no

large-scale conventional military threat to Canada currently exits” but

that “the Canadian Forces wi ll continue to deploy overseas in an en-

vironment marked by failed states, global terrorism and proliferation of

weapons of mass destruction.”5

International i nstability has ram if‌ications for domestic use of mil-

itary force as well. Violence originating abroad may spill over to Can-

ada, for e xample, in the form of a terrorist att ack. Indeed, the 2005

defence paper placed great emphasis on defending Canada itself as the

CF’s f‌irst priority, while the 20 04 national security strategy empha-

sized the CF’s key role “in protecting Canadians from inter nal th reats

to their security, both accidental and intentional.”6 Can ada’s Special

Forces, for instance, may be called upon to counter ter rorism both

internationally and domestica lly,7 and its airforce might be called upon

to down a hijacked aircraft en route to a 9/11-type attack.

Exactly how mil itary force may be deployed internationally and do-

mestically is a richly legal topic. This chapter discusses both internation-

al and domestic deploy ments of t he CF, exa mining the inte rnational and

domestic law that governs when and how military force may be used.

4 Canada, A Rol e of Pride and Inf‌luence in the World: Defen ce (2005), online: ww w.

dnd.ca/site /reports/dps/inde x_e.asp [Defence Policy Stateme nt].

5 See David Pugl iese, “Military Ge ars Up for 20 Years of Overseas Ant i-Terror Ef-

forts” Ottawa Citizen (4 December 20 06) A.1.

6 Defence Policy Statem ent, above note 4 at 47.

7 Ibid. at 48.

Protecting Aga inst International I nsecurity and Ar med Attack 143

PART I: INTERNATIONAL USE OF FORCE

A. DEPLOYING FORCE

1) Basic Principles of International Law

Jus ad bellum is the body of international r ules determining when re-

course to military force is per missible. Art icle 2(4) of the U.N. Charter

lies at the core of the modern international law on use of force. It speci-

f‌ies that “all Members shall refrain in their international relations from

the threat or use of force against the terr itorial integrit y or political in-

dependence of any state, or in any other manner inconsistent with the

Purposes of the United Nations.” The rule exists also as part of custom-

ary international law8 and is w idely regarded as a jus cogens norm.9

There is occasional debate as to the reach of Article 2(4) and its

customary equivalent. Certain jurists urge, for example, th at a use of

force might fall short of impairing the “territorial integrity or political

independence of any state” and t herefore would not be prohibited.10 In

practice, however, it is diff‌icult to imagine any nonconsensual use of

force involving state s that does not in some way impair a state’s terri-

torial integrity or political independence. For instance, t he very act of

using t he force is an assault on a state’s sovereign control over a ffairs

within its borders.11

8 Nicaragua v. United States of Americ a, [1986] I.C.J. Rep. 14 at para. 187 et seq.

9 A jus cogens, or peremptor y, norm “is a norm acce pted and recognized by the

internat ional community of States as a wh ole as a norm from which no dero-

gation is perm itted and which can be modi f‌ied only by a subsequent norm of

general inter national law having t he same character.” Vienna Convention on th e

Law of Treaties, 23 May 1969, 1155 UNTS 331, Art. 53. See di scussion in Helen

Duffy, The “War on Terror” and the Framework of Intern ational Law (Cambridge:

Cambridge Univer sity Press, 2005) at 147 [War on Terror].

10 The nar row interpretation of Art. 2(4) is sometimes r aised to justify “huma ni-

taria n intervention.” See discuss ion, for example, in Celeste Poltak, “Huma ni-

taria n Intervention: A Contemporar y Interpretation of the Charter of t he United

Nations” (2002), 60 U.T. Fac. L. Rev. 1. Humanitaria n intervention is discu ssed

further be low.

11 See Ma lcolm Shaw, International Law, 5th ed. (Cambridge: C ambridge Univer-

sity Press , 2003) at 1021 (noting that the “weight of opinion pr obably” supports

a demanding re ading of Art. 2(4)). Support for this strict re ading of the pro-

hibition on the use of force i s found in the U.N. General Assembly’s in f‌luential

Declaration on Princ iples of International Law co ncerning Friendly Relation s and

Co-operation. G.A . Res. 2625, Annex, 25 U.N. GAOR, Supp. (No. 28), U.N. Doc.

A/5217 at 121 (1970). The Declaration denounces “arme d intervention and all

other forms of inte rference or attempted threats a gainst the personal ity of the