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37th PARLIAMENT, 2nd SESSION

Standing Committee on Foreign Affairs and International Trade

EVIDENCE

CONTENTS

Thursday, February 27, 2003

0910

The Chair (Mr. Bernard Patry (Pierrefonds—Dollard, Lib.))

Prof. Thomas Franck (New York University School of Law)

0915

0920

The Chair

Mr. Roger Normand (Executive Director, Center for Economic and Social Rights)

0925

0930

The Chair

0935

Mr. Keith Martin (Esquimalt—Juan de Fuca, Canadian Alliance)

Prof. Thomas Franck

0940

The Chair

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ)

The Chair

Prof. Thomas Franck

0945

Prof. Roger Normand

The Chair

Mr. Irwin Cotler (Mount Royal, Lib.)

0950

The Chair

Prof. Thomas Franck

0955

The Chair

Mr. Bill Casey (Cumberland—Colchester, PC)

Prof. Thomas Franck

1000

Mr. Bill Casey

Mr. Roger Normand

The Chair

Mr. Murray Calder (Dufferin—Peel—Wellington—Grey, Lib.)

1005

Prof. Thomas Franck

The Chair

Mr. Roger Normand

1010

The Chair

Mr. Stéphane Bergeron

The Chair

Mrs. Karen Redman (Kitchener Centre, Lib.)

Mr. Roger Normand

1015

The Chair

Prof. Thomas Franck

The Chair

Mr. Art Eggleton (York Centre, Lib.)

1020

Mr. Roger Normand

1025

The Chair

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.)

Prof. Thomas Franck

1030

The Chair

Mr. Roger Normand

1035

The Chair

Mr. André Harvey (Chicoutimi—Le Fjord, Lib.)

The Chair

Mr. Roger Normand

The Chair

Prof. Thomas Franck

1040

The Chair

Prof. Thomas Franck

The Chair

Prof. Thomas Franck

Mr. Roger Normand

The Chair

CANADA

Standing Committee on Foreign Affairs and International Trade

NUMBER 022

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 27, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Mr. Bernard Patry (Pierrefonds—Dollard, Lib.)): We're going to start.

Pursuant to Standing Order 108(2), we are considering the situation of Iraq.

We have the privilege this morning of having with us from New York Mr. Thomas Franck. Mr. Franck is a professor of Law at New York University School of Law. We also have Monsieur Roger Normand, who is the executive director of the Center for Economic and Social Rights. Welcome, both of you, to our hearings regarding the situation in Iraq. I just want to let Mr. Franck know that one of his colleagues, Mr. Irwin Cotler, is here with us. Mr. Cotler was yesterday elected chair of the Subcommittee on Human Rights and International Development.

You will both have an opening statement, and after that there will be an exchange of questions and answers.

I'll start with you, Mr. Franck.

[Translation]

Prof. Thomas Franck (New York University School of Law): Thank you, Mr. Patry. If there are no objections, I'll address the committee in English.

[English]

Thank you, Mr. Chairman.

I've been asked to address the legal issues pertaining to the use of force against Iraq. The United Nations Charter, of course, is the fundamental instrument of international law pertaining to relations between states, and the charter empowers the Security Council to be a principal interpreter of its terms in practice. The Security Council has spoken a number of times on the question of use of force against Iraq pursuant to the use of force by Iraq against Kuwait. The leading resolutions include resolution 660, which defined the invasion of Kuwait by Iraq as an act of aggression giving rise to the right of self-defence under article 51, and resolution 678, which authorized the coalition of the willing to deploy force to compel the withdrawal of Iraqi troops from Kuwait, which they thereupon did.

Resolution 687 of the Security Council authorized the use of force by the coalition of the willing in the event that Iraq failed to comply with the terms of that resolution and authorized a resumption of the use of force were those terms to be violated. What resolution 687 does not do is establish clearly whether a material breach of resolution 687 is to be determined by the Security Council or by individual states in the coalition of the willing. However, paragraph 34 of 687 stipulates that the Security Council “decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region”, which seems to me a pretty clear affirmation that it is the Security Council, not individual members of the United Nations or of the coalition of the willing, that is to determine whether or not resolution 687 has been violated by Iraq in such a way as to give rise to a right to resume the previously authorized use of force against Iraq.

Subsequently, resolution 1441 was passed by the Security Council, and the same question arises in connection with that resolution. Paragraph 4 of Resolution 1441 provides that “a further material breach of Iraq's obligation will be reported to the Council for assessment.” And paragraph 12 states that “this would trigger a meeting of the Council in order to consider the situation and the need for full compliance.” Paragraph 13 stipulates that Iraq “will face serious consequences as a result of its continued violation of its obligations”, but it does not leave up to individual members the right to determine when and what consequences would ensue in the event of such a material breach or to determine that such a breach has occurred.

¿ (0915)

Is recourse to force by a coalition of the willing lawful under any other provisions of the charter? Article 51 of the charter does give each state the right to use armed force in self-defence against an armed attack. Resolution 1368 of September 12, 2001, following the events of the previous day in New York and Washington, clearly invoked the right of individual members to use force against Afghanistan and al-Qaeda, but that was because it was clear there was an armed attack against the United States. Other than in the event of an armed attack, the charter only makes provision, under article 39, for a collective determination by the Security Council that there exists a threat to the peace, breach of the peace, or act of aggression, as determined by the Security Council and subject then to the right of the Security Council to call upon a coalition of the willing to use force to reverse the effect of such an act of aggression or a threat to the peace.

That leaves only the question of whether there are, beyond these stipulations in the charter, in a kind of common law of the charter, rights that permit the use of force in situations of extreme necessity. We might recall that the Economic Community of West African States, through its military wing, did deploy forces in Liberia and in Sierra Leone in a humanitarian crisis under the auspices of a doctrine of extreme necessity, and that was subsequently ratified by the Security Council. NATO similarly deployed forces against the Yugoslav government in respect of matters arising out of the treatment of the Muslim population of Kosovo, and there too there is an argument that subsequent events and subsequent actions by the Security Council constituted a retroactive ratification of those events.

It might be argued that recourse to military force by a state or states without approval of the Security Council could be justifiable when the harm prevented by an unlawful act is greater than the harm perpetrated by the commission of the unlawful act. I leave it to Monsieur Normand to develop whether it looks likely that the unlawful recourse to force by the United States and its allies in the case of Iraq would indeed prevent a greater harm than the harm that would be occasioned by recourse to force.

In addition, under any conceivable doctrine of necessity, the Caroline rule would be applicable. That is, there must be no opportunity to deal with the problem in a manner other than the use of force. And the doctrine of proportionality would have to be applied, and the doctrine of clean hands. That is, that the party having recourse to an unlawful use of force did so without any intent other than the intent to prevent a greater harm from occurring.

¿ (0920)

Finally as to the law, I think it's necessary to consider what the effect would be on the United Nations system, now an almost 60-year-old, relatively successful venture at developing the rule of law among states, if the United States and its allies were to use force without prior authorization of the Security Council in a manner that would be generally regarded as unlawful. I think the consequences to the system would depend, at least in part, on whether the administration in Washington was right in its assessment that this is a matter that can be handled very quickly, and if it were handled very quickly, it would occasion very few casualties, and in occasioning very few casualties, it would make it possible to demonstrate that Iraq was in fact in the process of developing weapons of mass destruction. If all those conditions were met, I think the system could recover, because there would be a retroactive inclination to ratify the action taken. If, however, the guess is wrong and massive casualties resulted and it were judged that those casualities far exceeded any that might result from any predictable act by Iraq itself against its neighbours or against other states, I think it very possible that this would be the end of the UN system, because countries would simply conclude that the process of deliberation and negotiation that is at the heart of the Security Council system had not worked in an event that was such a fulcrum of history that it could never fully recover, and the cost of that would be enormous. So I think the next few weeks will make it quite clear to us whether or not the UN system will be able to survive an illegal use of force by the United States at this time.

The Chair: Thank you very much, Professor Franck.

Now we'll go to Mr. Normand. I understand, Mr. Normand, that you're just back from Iraq, and the Center for Economic and Social Rights has just released an assessment of civilian vulnerability to projectile war in Iraq based on consultations you had with UN officials in Iraq, NGOs, and staff on the most recent UN report. I just want to tell you all the members of the committee were provided with a summary of that report.

Mr. Normand, it's yours.

Mr. Roger Normand (Executive Director, Center for Economic and Social Rights): Thank you very much, and I want to thank this committee for inviting me to address this very important issue the world, as well as Canada, is facing, the issue of war or peace in Iraq.

I hope that my testimony will flesh out a little the humanitarian implications of what Professor Franck just described in terms of the international law framework that governs the resolution of the crisis of war in Iraq. Let me start by making a fairly strong statement, and then justifying that. In the event of war in Iraq, there will be a humanitarian disaster that the world, the United Nations and humanitarian relief agencies in particular, will not be able to address, given the limited resources they currently have. This was the conclusion of the research team we sent, which went all over the country for two weeks, interviewed government and UN officials, and visited hospitals and health centres. We also had access to a series of confidential UN documents that said these things, but of course, not publicly. One of the reasons we were given these documents is that there was tremendous concern on the ground on the part of field staff that these very urgent issues of lack of preparedness and likely humanitarian disaster were not being addressed at the political level. There was a hope that this would happen before any decision on war was taken.

To come to why this will be a disaster, Iraq in 2003 is very different from, for example, Afghanistan in 2001, and even Iraq in 1991. The population, after 12 years of sanctions, has fallen into a far greater state of poverty than existed 12 years ago. In fact, Iraq has suffered the most rapid reported decline, according to the UN development statistics used for the human development index. Sixty per cent of the population is now dependent for survival, according to UN statistics, on a food distribution system run by the government and supplied strictly by funds under the UN oil for food program. This is one very important factor to take into account. That's 16 million people. The second factor is that the entire infrastructure, including the public health infrastructure, the water and sanitation infrastructure of Iraq, previously a modern system, is held together right now but barely. This is something that's confirmed not only by our report, but by every single UN agency assessment that's out there.

The reason there will be a humanitarian disaster in Iraq has to do with the type of war we are being told by U.S. military authorities will be waged in Iraq. There are two fundamental targeting questions we need to understand. The first is electricity. Electricity in a modern system like Iraq is essential to run the whole range of public health infrastructure on which people's lives depend, particularly water and sanitation. After the 1991 war, it's been conclusively shown by studies after the fact, including studies the Center for Economic and Social Rights undertook, as well as UNICEF and others, by far the largest aspect of the humanitarian disaster was not from the direct effects of the bombing, but from the bombing of electricity, which then stopped the flow of electricity to the water and sanitation systems. People in Iraq, which is 70% urban and where, as in Canada, people rely on clean tap water for drinking, suddenly had to be looking for water outside their homes in wells or wherever they could get it, water that was contaminated and caused a huge increase in simple diarrhea, which children in particular could not survive, given the state of war. This will happen again, and we have been told that electricity will be targeted.

¿ (0925)

The second issue is the food distribution system. As I mentioned, as soon as the UN withdraws from Iraq, all the food system will come to a halt, meaning there will be no further supplies that enter the country from the moment of war. That's the first problem. The second problem is that this is the largest food operation in world history. The food that comes in from outside is distributed by 46,000 ration agents throughout Iraq, essentially storefronts where people go and redeem their monthly coupons. These 46,000 storefronts will stop being able to receive the food supplies, because transportation is, of course, going to be a target, bridges, roads, etc., and they will be unable to do this incredibly massive logistical operation to get food to people.

The point is that immediately after the commencement of hostilities you will have a breakdown of the public health system, a breakdown of the water and transportation systems, and a collapse of the food distribution system. For a population that is as vulnerable as Iraqis are today, according to the scientific statistics, this is certain to cause a far greater problem than we had in 1991.

The CESR team did not want to speculate on numbers of casualties, because they felt this is impossible to do under the circumstances without knowing in advance how long the war will last. This, of course, is the crucial issue. We do want to point out, however, a nightmare scenario that seems fairly probably. The war plan seems to call for a rapid invasion from the north and south, but an extended siege of Baghdad. Apparently, this is where Iraq is concentrating its fighting forces, and the United States is hoping for an internal coup or some form of collapse, but not wanting to engage in street-to-street urban fighting in Baghdad. This raises the possibility that the five million-plus people living in the central city of Iraq will be facing an extended period without access to food, without access to clean water and sanitation, with no ability to generate income, and this is a recipe for humanitarian disaster.

I want to read very quickly a statement. UN agencies have made many statements about what they expect to be a coming disaster. This is an excerpt from a very recent report of the ICRC, which is known as not the most dramatic of agencies: “This extremely vulnerable population has few resources to enable us to cope with another armed conflict. The human cost of renewed conflict could therefore be disastrous.”

I would like to close by offering some suggestions. First, I think it's very important that the potential humanitarian consequences I'm describing be tied to the international law framework Professor Franck described. Suppose the United States, in a coalition of the willing, engages in a war that is outside the established legality of the UN charter and, furthermore, is outside the established legality of what is called international humanitarian law, which governs the means and methods of warfare. It would be outside because the tremendous disproportionate impact on civilians overcomes or is greater than the military advantages, and here I'm thinking specifically of electricity, for example, if that is targeted, even though in the 1991 war General Colin Powell said it was not a high-priority military target, because the Iraqi army had run around in redundant systems to supply electricity where the population is not. If that happens, you have the possibility, and I would say the likelihood, of war crimes being committed, according to the current plan the United States and its coalition of the willing will engage in. These dramatic consequences I hope would spur governments like Canada to raise these issues, the humanitarian and legal consequences of this war, in a very public way, both bilaterally with the U.S. government and others, and multilaterally in the United Nations, before any decision as to whether to go to war or not is taken.

¿ (0930)

This, I think, is something fundamental. There seems, in my opinion, to be a dangerous development within international law circles. You have very prominent groups of international lawyers and law groups in the United States, in Canada, in the U.K., in Australia, who are publicly calling for pre-emptive war crimes prosecutions in the event that this war goes forward. I think one of the reasons this is happening is that there is a feeling that at the governmental level these issues are not being taken as seriously as is warranted and that the UN charter itself is not being defended and discussed in a way that needs to be done. So I think Canada, given its historical role as a defender of human rights and as a country that takes these international law principles very seriously, both in preventing war and in peacekeeping, has a very important role, especially given its close relations with the United States.

I apologize for going a little bit over time, and I'll save the rest of my remarks, potentially, to answer any questions.

Thank you very much.

The Chair: Thank you very much, Mr. Normand. Your testimony is complementary to that of all the Canadian experts who have come in front of our committee. I noticed that your research team's main finding is that the international community is unprepared for the humanitarian disaster from another war in Iraq. I just want to let you know that our committee passed a unanimous motion last Tuesday, all five parties agreeing, and I will read it.

That, in view of the recent compelling evidence presented to the Standing Committee on Foreign Affairs and International Trade, the Committee call upon the Government of Canada to increase our involvement in ongoing efforts with members of the United Nations to relieve the existing humanitarian crisis in Iraq and contribute to averting the certain humanitarian catastrophe that will be caused by a war on that country.

I will ask the clerk to provide you, through e-mail, with this motion. It was carried forward to the House of Commons in Canada.

Now we'll pass to questions and answers. Our rule is five minutes for questions and answers. We'll start with the official opposition, Mr. Keith Martin.

¿ (0935)

Mr. Keith Martin (Esquimalt—Juan de Fuca, Canadian Alliance): Thank you, Mr. Chair.

Thank you, Professor Franck and Mr. Normand, for your very interesting comments.

Professor Franck, I have a couple of questions for you. How much do you think the cogent legal argument you put forth will affect U.S. and U.K. foreign policy with respect to this problem?

Second, you mention that the UN system will be shaken by its failure to deal with this situation. Why is this different, when the UN has failed to deal with humanitarian, human-made catastrophes in the Sudan, the Congo, the famine in southern Africa that has cost the lives of millions?

Finally, how do we deal with Saddam Hussein if a military option is not exercised?

Prof. Thomas Franck: Thank you very much for those questions, which are very perspicacious.

How much do the legal issues affect actual policy? It varies considerably from country to country and from occasion to occasion. My own experience is that if a country's political leaders are absolutely determined on a course of action, the question of legality may well be lost or subsumed in a makeweight argument put forward by the legal advisors in that country. It's a pretty poor legal advisor who can't cover with at least some figment of law any course of action a government wants to take.

However, there is a great public out there, as we've been saying over the last few weeks. I think they do constitute a kind of global jury. That global jury is still out, but it's often out on the streets. I think they are making up their minds, at least in part, on the basis of the questions of legality, not because they're lawyers or particularly interested in international law per se, but because they know they, their children, and their grandchildren have a substantial stake in a global order that is predictable. Predictability requires some respect for norms, the conduct must be coherent and normative. They see normativity and predictability falling away into a Hobbesian kind of world in which each country does whatever it can get away with. They know, in a nuclear age, the chances of survival in such a Hobbesian world are very slight. I think a lot of people do feel that they have a stake in this order.

As to your second question, of course, the order is very imperfect and has failed to solve many other issues. There have not just been failures to alleviate humanitarian disasters in countries like the Sudan, but there has been generally a failure to stop recourses to force by states, not just by European and western states, but also by African and Asian states, which have had recourse to force without encountering resistance from the international community, even though those countries were violating the norms. I think what we are faced with here is the possibility of a recourse to force in violation of the rules of such dimensions and involving such a huge population, when you take into account the whole of the Arab-Muslim world, that it may be impossible thereafter to put the pieces back together again.

India invaded Goa, and Adlai Stevenson said, oh well, that's the end of the international order, because you, India, have violated the law. Laws do get violated, in both our domestic societies and international societies, but when laws are so massively violated by such a large player or such large players in the system, it becomes more difficult. As I said earlier, it will depend in part on what happens after the recourse to force has begun. If it turns into the kind of catastrophe Mr. Normand and others have predicted, most recently Brent Scowcroft, who was the national security advisor to Bush senior, it would be very difficult in the future to persuade any state that can see short-term gain by recourse to force not to have recourse to force, because they would know the system is essentially toothless to prevent violations of this sort.

¿ (0940)

It is a matter of dimensionality, and this is probably an event of such pivotal importance that if it goes wrong--and I think there is a very high degree of possibility that it will go wrong--the system will not recover as we know it.

The Chair: Monsieur Bergeron.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Thank you, Mr. Chairman.

As you know, for the very first time ever, the National Security Strategy of the United States of America incorporated the concept of a preventive strike, confirming in the process the United States' role as a superpower. The US government even went so far as to stipulate in this strategy paper that its own interests flowed from or were a matter of law. Do you not view this position as somewhat disturbing, to say the least, given the impression -- at least that's the impression I have and have already shared here in committee - that the United States are in the process of trying to redefine the current international legal framework, confirming their superpower role on the international stage and, to all intents and purposes, calling into question the legal system inherited from the bipolar world that emerged after World War II?

The Chair: Professor Franck.

[English]

Prof. Thomas Franck: The notion of preventive force is an increasing of a concept of anticipatory self-defence that has become relatively well established in international law over the course of the more than half a century the United Nations has been in effect. The UN Charter, article 51, says force may only be used in self-defence in response to an armed attack, but the ink was fairly dry on the page when that became a preposterous proposition because of the invention of nuclear weapons. The idea that a state would sit there and wait to be attacked by the new kinds of weapons that were being developed in the middle of the last century and only then respond was obviously absurd, and so you have many instances in which states have resorted to force in anticipation of immediate attack. It goes back to the Caroline doctrine, in which it is incumbent on those making first use of force to demonstrate that nothing stood between them and disaster except that they act first and only at the last moment, after all other means have been exhausted, and in a way proportionate to the threat. I think most international lawyers would agree that there is a viable doctrine of anticipatory use of force in international law today and that the United Nations, by its action and inaction, has recognized that right. Not to do so would make the law absurd. It would be absurd to insist that you must always wait to be attacked.

The trouble with the NSS statement is that it pushes that particular doctrine well beyond the breaking point, not so much by expanding when you can have recourse to it, but by assuming that each country can decide for itself when it has reached the point where it must use force in anticipatory self-defence. That, of course, is chaos. If every state may unilaterally determine when its self-interest is so seriously threatened that it must have recourse to the right of preventive self-defence, you really don't have any kind of limitation any longer on first use of force. Many people down here, legal experts and even supporters of this government, have been bewildered as to why the statement broke off so much more than it could possibly chew by asserting such a broad unilateral right to make that determination. If you think you're about to be attacked, the logical thing to do is go to the Security Council or, failing that, to the General Assembly and announce that you are under imminent threat of attack and you're going to use force and lay out all the evidence as to why you feel threatened. The community will then, in one way or another, make its determination as to whether that's a valid use of the right of pre-emptive self-defence. To simply say that whenever you feel threatened, you have a right to use force is totally unacceptable to the international community, because it is a recipe for chaos.

¿ (0945)

Prof. Roger Normand: If I could just add a comment, I think something to keep in mind is that the entire basis and function of the United Nations was to establish these kinds of rules to promote peace and to prevent war. Just prior to that the military tribunal at Nuremberg explicitly rejected Germany's argument of preventive war, which is very similar to the argument we're now seeing come out on U.S. official documents. Germany's argument that it needed to invade Norway and Denmark as a preventive measure was held to be utterly illegal, for the very reasons Professor Franck has noted. Thus was set up the collective security mechanism of the UN Charter. This is why I think in a case like Iraq, which so clearly doesn't fit within the principles of the UN Charter we're talking about, the threat is that if the most powerful countries of the world are allowed to move forward outside international legality, outside the UN Charter, it will be very hard to recover.

The Chair: Thank you, Mr. Normand.

Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): Good morning, Tom.

It seems to me that the U.S. has very recently added to the argument of the doctrine of anticipatory self-defence musings about humanitarian intervention, namely, that it will be using military force to save the Iraqi people from the suffering, from the torture, from the repression, in a word, from the international crimes being perpetrated by the dictatorial Saddam Hussein regime. This leads to two questions.

The first is with respect to anticipatory self-defence. In a post-9/11 universe that perhaps needs to be reasonably interpreted, can the U.S. use the notion of not just the terrorist connection, which I don't think any evidence has been established for, but the prospective use of weapons of mass destruction under some doctrine of imminence, as you put it, whereby you don't have to wait until somebody uses nuclear weapons? If the U.S. does not get a Security Council resolution to support this, because there might be a veto, but a majority of nations on that Security Council support it, could it use a kind of Kosovo precedent and principle to try to justify its use of force as not being only used unilaterally, but as having a majority of a coalition of the willing in some sort of reasonably interpreted doctrine of anticipatory self-defence?

Second, could the doctrine of humanitarian intervention I mentioned to you be stretched at this point to suggest that the crimes being perpetrated by the Iraqi regime and the international humanitarian disaster Mr. Normand mentioned, which is also the responsibility of the Iraqi regime, can now also legitimize the use of force?

¿ (0950)

The Chair: Professor Franck.

Prof. Thomas Franck: It's a particular pleasure to see my friend and colleague Irwin Cotler, even though slightly dimly, on the screen. Those are also tremendously important and perspicacious questions.

Let me answer first the question of anticipatory self-defence. Mr. Cotler has put it in terms of a prospective use of weapons of mass destruction and a majority vote at the Security Council. Do I think that could scrape by as legal? I think my answer to that would be yes, subject to those two contingencies he's stipulated, but I should add that I am very doubtful about the actuality of the contingencies. I've spoken to my former student and lifelong friend Mohamed El Baradei, and he is convinced that there is not an active development program for construction of nuclear weapons currently under way in Iraq and that if such a weapons program were started up, as, for example, it has been in North Korea, he and his inspectors and the overflying U-2s and Mirages would know about it. You can't really disguise that, just as North Korea seems not to have been able to disguise it. It's different with chemical and biological weapons, because some of those you can make in your bathtub and they are much harder to locate, but so far at least the several hundred weapons inspectors looking for those kinds of traces under the direction of Hans Blix have also not come up with any evidence that there is a program under way to make those weapons, although they have evidence that weapons that were to have been destroyed in the post-1991 period may not have been destroyed.

So that's a somewhat iffy proposition, that he has weapons of mass destruction there is strong reason to believe he would deploy. If there were such a reasonable belief in the existence of such weapons and a reasonable belief that they were about to be deployed, I think it would be lawful to have recourse to anticipatory self-defence.

That brings up the second part of Professor Cotler's question, which is the question of humanitarian intervention. Is a majority of the Security Council better than unilateral action? I think the answer to that question is yes, as was demonstrated in the Kosovo case. There Russia took the ill-advised step of calling for a vote on the illegality of NATO recourse to force in the humanitarian intervention in Kosovo, and it lost that vote by, I think, 12 votes to 3, and ever since it's been firmly asserted by international lawyers, including myself, that that negative vote on the censure motion was the closest thing you needed to have to ratifying the recourse to force, even in the absence of an affirmative Security Council resolution.

¿ (0955)

The charter evolves in practice, and lots of things that would have seemed impossible in a literal reading of the charter as it was drafted in 1945 have become accepted and practised, because the charter, like the British North America Act, is a growing tree, and the practice of the Security Council vis-à-vis its fundamental instrument has changed the meaning of the instrument. For example, it's quite clear from a reading of the relevant provision of the charter that an abstention by a permanent member in the Security Council does constitute a veto, but in practice, it hasn't been treated as a veto for more than 30 years. In the southwest Africa case the International Court of Justice ruled that this practice has changed the meaning of the charter, so that now in law an abstention is no longer a veto, despite the literal text of article 27. So the charter does evolve, and I think the Kosovo case has pointed the way to a conclusion that the charter now probably, in demonstrable cases of extreme humanitarian necessity, permits a coalition of the willing to intervene to prevent a major humanitarian catastrophe if the only thing standing in its way is a veto by one or two permanent members and provided that there is majority support in the Security Council. That's a very creative reading of what the charter means today, but I think you're right in pointing to it as a possibility.

The Chair: Now we'll go to Mr. Casey.

Mr. Bill Casey (Cumberland—Colchester, PC): Thank you very much.

This has certainly been an interesting presentation. I want to point out that Mr. Cotler may be dim on television, but he's never dim in real life.

I want to get your thoughts on some aspects of Afghanistan that may or may not be repeated in the event of a war in Iraq. Canadian and U.S. forces captured a number of people in Afghanistan, though no war was declared and no criminal charges were laid that I know of. They were captured and taken to a portion of Cuba. Were laws broken there? Are laws continuing to be broken by their holding these people of a variety of nationalities? They just seemed to capture them and take them.

Prof. Thomas Franck: I can't be doctrinaire about this. The people who were taken to Cuba were taken in the midst of an armed conflict in which they apparently were actively engaged and bore arms. If that is correct, their detention during the continuation of the conflict seems to me to be okay legally, on my reading of the applicable Geneva conventions. The questions, however, arise once you look closely at those two ifs. The first is if they were actively involved in combat and were bearing arms, and that is really a matter of who decides whether they were in fact doing that and whether there is a satisfactory process for making that decision that accords with the Geneva conventions. The second of my ifs pertains to the continuation of the state of war, and you are as good a judge of that as anybody else. No war has been formally declared. There are, however, two pieces of legislation passed by Congress and signed by the President that, in effect, constitute responses to a state of war.

Is the state of war still going on? Has anybody terminated the state of war? There's probably a pretty good argument that the state of war continues in Afghanistan, but how you answer that question in part determines your view of the legality of the holding of the people in Quantanimo. The fact that some of the people being held are not Afghanis, but nationals of other countries, seems to me to be legally irrelevant, except if they are Americans. If they're Americans, the Constitution of the United States has some relevance, and that seems to have been accepted by the authorities. In the only instance, as far as I know, in which it was alleged, the person was taken from Quantanimo, put into the prison process of the United States, and charged with an offence under U.S. law.

À (1000)

Mr. Bill Casey: Okay.

Mr. Normand, you've just come back from Iraq. Do you have any kind of estimate of the potential civilian casualties in the event of a war in Iraq, directly from the war and from famine and health care problems after it?

Mr. Roger Normand: I mentioned that our research team, which had quite respected heads of public health departments in major universities here, did not want to put a specific number on it, because to answer that question, one would need to know if there is to be a siege of Baghdad or not. If so, will it last one month or six months? And will nuclear weapons be used? There has been talk of the potential use of nuclear weapons in different scenarios. The estimates are are so wide-ranging that I think it's difficult to give a number. We do cite other agencies, for example, the United Nations and the World Health Organization, which gave a figure of half a million casualties--this was in another document that started as confidential and is now part of the public domain--not distinguishing between death and injury.

But I think the most important point to take from here is that the casualties will certainly be far greater from the ripple effect of the bombing than from the direct effect. This is where the argument that smart bombs and smart weapons will minimize civilian casualties is incorrect. It will minimize the risk of civilian casualties on the assumption that they will hit the targets they want, but if those targets include what are termed dual-use items, electricity, things of this nature, that cause disproportionate civilian casualties, which our studies and all the UN studies say they certainly will--there is really very little speculation here--that will be an illegal act.

I want to make one point here on the concept of international law in general. There's been much talk about human rights violations by Saddam Hussein and his government. On the part of the human rights community, we support that 100%, and there's no need to talk about the whole litany of abuses his government has perpetrated. But it's very important, fundamental, in fact, to the concept of international law and the UN Charter, that these rules apply to all countries, the strong and the weak, the one who starts the war, the one who doesn't. This is where I think the world, Canada, the United States, other countries, needs to be very aware of the legal implications of actions, both in going to war and in conducting the war. If this war is conducted and these dire predictions come true and you have enormous casualties, these are potential war crimes. These are violations of basic principles of international humanitarian law, which are about the distinction of targets and proportionality. This is where I think we need much more public discussion.

The Chair: Thank you, Mr. Normand.

Mr. Calder.

Mr. Murray Calder (Dufferin—Peel—Wellington—Grey, Lib.): Thank you very much, Mr. Chairman.

Good morning, Professor Franck and Mr. Normand.

I'm going to do a very quick preamble, and I have one question for each one of you. I know the answer is going to be long, so I'll make the question short.

We have a country right now that basically is ethnically divided and has little experience with democracy, and after 12 years of sanctions its infrastructure is incredibly fragile. So my question to you, Professor Franck, is, what are the prospects of the American-British intervention being able to establish democratic rule within Iraq, and what problems do you see them facing?

To Mr. Normand, with the infrastructure within Iraq, how do we minimize the civilian casualties? Because I agree with what you're saying. I see a protracted siege of Baghdad very similar to what happened in the Second World War with Stalingrad.

À (1005)

Prof. Thomas Franck: I don't have any information you or the Canadian foreign office don't have, and my guess is probably not as good as yours would be on the prospects of democracy in Iraq. I do remember vividly the voices that maintained that the British had tried for 100 years to domesticate Afghanistan, the Soviet Union had tried for 20 years, and it all had been a disaster. Now there seems to be a possibility that in a matter of three months a coalition was able to do it; there is a chance that under the auspices of the international community, a democratic Afghanistan might arise. Women's rights seem to be protected. There seems to be a constitution drafting process en route, an electoral process being established, a police force being trained, an army being trained. The chances of its going off the road are pretty good, but the remarkable thing, I suppose, in Samuel Johnson's phrase about the dog playing chess, is not that they do it so badly, but that they do it at all.

Who knows about Iraq? That question is a very large warning sign. Iraq has not thrown up the kind of leadership that had been thrown up already in Afghanistan. Iraq has not thrown up a large on-the-ground fighting force such as the Northern Alliance constituted in Afghanistan. Afghanistan is not an Arab country, and so there wasn't the kind of identity with Afghanistan from the Arab neighbourhood that there certainly is among the Arab neighbours around Iraq. The consequences of getting this one wrong would be enormous. This is not to say that it's impossible, that it couldn't be pulled off, but the odds are quite long and the risks are extremely high. Beyond that, you'd have to be a better clairvoyant than I to know how it's actually going to come out.

The real question is whether this risk is worth taking, as opposed to the alternatives. What are the alternatives? Well, the alternative, I guess, is mortality. Saddam Hussein is in his sixties, he's not going to live forever. If we can have controls on the ground that preserve us from the danger of his developing nuclear weapons--that is now the case, we do have that capability--and we're willing to bear the costs of making that system work, I think there is an alternative to going in there with military force, although it's less spectacular and has its own possibilities of failure.

The Chair: Thank you.

Mr. Normand.

Mr. Roger Normand: I want to quickly touch on that question of democratic rule also. As someone who has spent a fair bit of time in Iraq, I fear there is a real misperception in the United States as to how U.S. troops will be welcomed. Almost nobody I talked to felt they would be recognized as liberators, which is a change from the 1991 war, and it's also different, at some level, from Afghanistan, even though there is nearly universal opposition to the Saddam Hussein. That is very important to take into account.

As to how to avoid the humanitarian consequences, I don't want to be bleak, but I think, realistically, they can't be avoided except by avoiding war. This is why the Center for Economic and Social Rights, which is not a pacifist organization, but an organization based on international law, feels that the UN Charter must be adhered to and that this war can and should be avoided. I really want to stress that as the first point.

Let me offer a couple of scenarios that can at least have some impact on the humanitarian situation, though I don't think they're realistic, I don't they're likely with current U.S. policy. The first one is that a way must be found for the UN oil for food program to continue, even during the war. Why? Iraq has already paid $10 billion whereby it is supposed to receive goods, food, and medicine, and we have been told that will be cut off. Compare that to what has been pledged right now by the U.S. and the U.K., which I think is $60 million. You cannot take care of the humanitarian situation in Iraq without the oil for food program, it's simply impossible. You cannot take care of the humanitarian situation in Iraq without using the existing Iraqi government system for food distribution, you can't find 46,000 new ration agents. So that's another precondition. Without that, you will have a terrible disaster.

The final point is that there has to be a way of establishing what are called humanitarian corridors, which have worked in the past to some extent, especially to Baghdad. If there is to be a war, you will need an explicit commitment by all the warring parties, particularly the United States, that they will allow ongoing shipments of food and medicine, clean water, whatever is necessary to avoid the consequences. It was said earlier that these consequences could be seen as the current government's fault. I think that is very dangerous. This government is an abusive government, everyone knows that, but the government systems, which are staffed by thousands and thousands of professional Iraqis, are working fairly well in food distribution and public health. If it is a war led by the United States that attacks these systems, the responsibility, on the legal front, has to be with the United States and its allies.

À (1010)

The Chair: : Thank you.

[Translation]

Very briefly please, Mr. Bergeron, to give other committee members a chance to ask questions.

Mr. Stéphane Bergeron: I can wait until later, Mr. Chairman.

The Chair: Fine then.

[English]

We will pass, then, to Mrs. Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair.

Gentlemen, good morning. It's been very interesting.

We've heard previous witnesses talk about the activities of the non-government agencies and the fact that they will be pulling their people out, and certainly, the threat of biological warfare is huge in its implications. There are peace activists in this country and internationally. Despite what you may read in some of the national newspapers, people on this side of the border are very well aware of the fact that there are many people who are working hard towards peace and the avoidance of any kind of war in Iraq, as in the United States as well. My question revolves around the peace activists who are going over to act as human shields. I come from a riding in southern Ontario, and we have many Mennonite people who are very keen to see that peace at all costs, including their own lives, is attended to. We've heard the United States talk about the fact that they may not be able to guarantee that these people are safe and that they may become what's euphemistically known as collateral damage. What kind of role do they play, and how effective are they when they're going over to Iraq and placing themselves in what could be certain danger?

Mr. Roger Normand: We did speak with and encounter very many international solidarity activists in Iraq, including people who wanted to act as human shields. Of course, everyone in the world should act as their conscience dictates. My own personal opinion and that of my organization is that acting as a human shield is not the best way to promote peace. In addition to the obvious dangers, and you have the U.S. statements, what's very important with this kind of activism is to highlight the more human level exchange of information between people in Iraq and people in the outside world, that Iraq has 25 million people, mothers, fathers, children, who don't all look like Saddam Hussein, that kind of information and the information that this war will affect those people very dramatically, just as sanctions have really not touched the regime, but the people. This war will obviously affect the regime, but those who will suffer, as in most wars, will be vulnerable populations, women, children, etc. That's something that needs to be highlighted and talked about at the level of this solidarity. That, I think, would be much more effective than this notion of acting as a human shield.

Human Rights Watch recently came out with a report in which they addressed this issue. They say, while obviously not advising that this should happen, it does not absolve attacking parties from recognizing that the rules of international law still apply, that these are civilians and need to be treated as such.

À (1015)

The Chair: Mr. Franck, do you have something to add?

Prof. Thomas Franck: I agree entirely. Mr. Normand has better, more direct information than I do. I do think, though, that the course of the discussion perhaps needs some slight correction. What has been happening until now in the United Nations is not precisely what we have been talking about, that is, the United States has not used force unilaterally, it has not even asserted that it will use force unilaterally. Instead, the United States has been engaged in very active negotiations with other countries. It has put in place something that badly needed to be put in place, an effective system of inspections. Those inspections, if they work, ought to be able to prevent this war. So to some extent, the actions of human shields have to be seen in the context of making the inspection system work effectively. I wonder whether the human shields are not a form of obstruction of the work of the inspectors.

Of course, if you believe all of this is just a prelude to what is already determined by the United States to be a military strike to overturn the Saddam Hussein government, we're just talking about ephemera here. On the other hand, if the inspectors are to be given a real chance, it's important for the states that have taken the inspectors over there. They, after all, are a form of human shield too, because if we're going to have recourse to war, they're sitting over there and they have to be got out. We've put our human shields in place and put the inspectors in danger there as a kind of token of good faith that we really do want the inspection system to work. I don't think it helps to have a lot of freelancers standing around by hydro plants and so on to ensure that whether Saddam Hussein discloses what he has or not, there will be civilian casualties if force is used.

The Chair: Thank you.

Mr. Eggleton.

Mr. Art Eggleton (York Centre, Lib.): Thank you very much, Mr. Chairman.

Professor Franck, unfortunately, I wasn't here when you gave your initial presentation, but I did hear your presentation, Mr. Normand, and I couldn't agree with you more. We have a human catastrophe in waiting here if war does proceed. As the chairman has pointed out to you, we have already passed a resolution indicating our concern about humanitarian aid, and that's also something I have been speaking on in the last few days. But to get the Government of Canada to get this on the front burner, what specifically do we say to the United States or Britain about what needs to be done here? Quite aside from those who are killed or injured from the conflict itself, there are thousands and thousands of potential deaths from starvation and disease. They're already having a great deal of difficulty in these regards, and have for a number of years, with the sanctions in place. This, of course, is going to get a lot worse with war. A lot of it depends upon the length of the war. If it goes fast, it may not be as much of a catastrophe, but if it does drag on, we're going to see just terrible things happening. And you've painted, Mr. Normand, quite a grim picture of what potentially could take place.

We've had in Afghanistan the American forces dropping packages from the air to provide some of the necessities. I'm told that didn't work very well. What is it that actually can happen here? What is it that Canada can urge the United States, the U.K., and others who are going to be part of any attack, should it occur--we hope it won't, but I can't help but feel the train has left the station in that regard--to do? What kind of corridors? You mentioned something about corridors, but on the other hand, as Ms. Redman pointed out, a lot of NGOs may well be pulled back from any support they might give if chemical or biological weaponry becomes involved. So we may have to rely upon the United States or U.K. military to deliver this aid. As you also point out, they put very little money towards that aid, while they're putting in billions preparing for the war effort. So if Canada tries to bring more attention to humanitarian relief, how specifically would you see us urging the countries that are going to carry on this conflict to do that?

À (1020)

Mr. Roger Normand: That's a very important question for your committee. The overall answer I would give is that Canada should play the role, the very important role, of being a defender of the application of international law and being a promoter of a full discussion of the humanitarian facts as they're known by UN agencies and others. I'll give some specifics about what that means, but I want to preface that with my only disagreement with what Professor Franck has said, which I think is in general unimpeachable.

He said, if the United States government really wants to go to war and is determined on war, we're talking about ephemera. I believe an important sector of the U.S. government absolutely wants to go to war, and this is right now the sector, unfortunately, in my opinion, that controls things, and yet I still don't think we're talking about ephemera, because this war is not yet inevitable and there are important people in the United States, not just among the public, but in the military, in the State Department, and throughout the government, who have grave questions--Brent Scowcroft was mentioned. So I think Canada's potential role as a friend is to tell the United States government that there are some mistakes in the approach, and here's what they would suggest.

To be specific on the relationship of international law with humanitarian issues, the first matter is the resort to force Professor Franck talked about. I think any resort to force outside the bounds of the UN Charter, which means without Security Council approval, an approval that is consistent with the UN Charter's fundamental purposes and principles, is an enormous mistake, not just in Iraq, but for the world. I think Canada can be making the point that the UN process and the charter should be respected.

The second thing would be the application of international law in the event of a conflict, the Hague and Geneva conventions on means and methods of warfare. It's true that it's a bleak assessment, but unless something dramatic is talked about publicly at the governmental level with regard to humanitarian corridors, finding ways to get the enormous amount of food and medicines Iraqis now daily depend on into Iraq, the disaster cannot be prevented. This is an issue that has not been raised yet publicly in the Security Council. It needs to be raised. People need to be asking the question, how are you going to get the billions of dollars of supplies necessary, how are you going to get the funding, and how are you going to get the access? There is a way to get the access, by getting an agreement from the U.S., its allies, and Iraq that they will allow safe corridors that can be monitored to make sure they're not used by the military, but that can truck the food in with immunity. It can be done. Politically right now it's impossible, but that's because it hasn't been raised yet. So it needs to be raised.

Again, there are international law principles that govern humanitarian action, the ICRC principles and others. These principles talk about neutrality, impartiality, humanity. These need to be respected. It hasn't yet been accepted publicly by the U.S. and many other countries, but there needs to be access for the ICRC, for independent humanitarian agencies. This has not yet been granted, and it needs to be granted publicly in advance. That is another thing I think Canada, as a friend of the United States, could bring forward.

À (1025)

The Chair: Thank you.

Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

Dr. Franck, it's really a privilege to listen to your analysis and to be able to take a quiet moment as we all face this horror and have you walk us through it. I'd like to just ask you to comment on this, and I'm taking you back to anticipatory self-defence. You said the consequences of getting this wrong are enormous. Like everyone, I would, of course, agree with you, because I think the possibility of a nuclear component is the terrible one. We, as parliamentarians, just as all of those members of the Security Council, are faced with the onus of assessing, because in the end, it will be a judgment that has to be made on all of this, but particularly on the nuclear component.

I want to give you some information. Earlier this week we had Terence Taylor, who is the president and executive director of the International Institute for StrategicStudies. His analysis of El Baradei's work doesn't really converge with yours. He said, while he respected his views enormously, when he says his organization can demonstrate that Iraq is free of nuclear weapons within a few months, that is just not possible at all. He then went on to give a technical analysis of his reasons for that conclusion.

What I'm coming back to is the onus on the part of those 15 members of the Security Council to get it right. On the definition of anticipatory self-defence, is there a need to broaden “self”? We're laying the judgment of all of this at the foot of the American government, but if indeed we are looking, as you said, at a Hobbesian nuclear world where survival for anybody is remote, then the onus of getting it right, as we assess what does exist in Iraq today, is huge. I think we're into risk analysis, and I think it's the precautionary principle that could in the end rule the day.

Prof. Thomas Franck: Yes, that's absolutely the heart of the matter. You've characterized it perfectly. The costs of getting it wrong are so enormous that there is a tendency, a natural human tendency, to apply, transposing it from environmental law, the precautionary principle. But to go down that road, you would still have to answer the question of who is going apply the precautionary principle. I suppose my argument would be that there is no perfect global jury, but that to leave it to any single state or to any two or three states to make the decision that the precautionary principle requires anticipatory use of force is too risky, because the wisdom of one or two or three states may be unduly influenced by interests they have of a collateral kind.

If I were today, for example, asked by some global organization to present the case for applying the precautionary principle to prevent the proliferation of nuclear weapons into the hands of terrorists, I would put North Korea far higher on the list of countries to which the precautionary principle might be applied than I would Iraq. North Korea does sell to terrorists, we know they do. North Korea does have these weapons.There's no evidence so far that Iraq has them. So it seems to me odd that this American government has decided that North Korea is no real problem, they'll handle it through diplomacy, they'll try to get the Chinese to lean on North Korea, but in some way, it will be managed. Also, of course, the President of North Korea is a good deal younger than Saddam Hussein, so he's going to be there longer, making him a higher risk.

On the other hand, Iraq must be handled now and must be handled by direct invasion. You could say, we're doing Iraq first because we can do it; we've already passed the point of no return with North Korea, and we can no longer do it. But that isn't an application of the precautionary principle. That's an application of very hard Realpolitik--we'll take out whatever suspects we may find if we can take them out at no real risk of their attacking us, whereas those countries that are a really serious danger to us, like North Korea, we'll leave alone, because they have the ability to retaliate against us, and therefore to deter us from acting. If that's the Realpolitik calculation, you have to add to the equation the fact that the lesson for every other country is going to be, get a nuclear weapon now. That's the only way you're not going to become a victim of the American precautionary principle.

I agree with you that there is a precautionary principle at work here, but which way it cautions us is not so simple to determine.

À (1030)

The Chair: Thank you very much.

Mr. Normand.

Mr. Roger Normand: I think what Professor Franck said is of fundamental importance, but not only is there a negative lesson that might be learned from this whole situation--get nuclear weapons now--there is the enormous cost of the positive lesson, and we forget about this sometimes. UNSCOM, the precursor of UNMOVIC up to 1998, established that it had destroyed 90% to 95% of Iraq's stocks of weapons of mass destruction and infrastructure--about the remaining amount there is a dispute: Iraq says it was destroyed in the war etc. This is the most successful weapons regime in history. Then, because of a U.S. and U.K. strike in 1998, we lost that weapons inspection regime for another four years. Now it's back, and the U.S. government may make the same mistake, a pre-emptive war, rather than letting the most successful model of weapons inspections, I would argue, that exists in the world today fulfil its course, which seems to be the demand of most of the world.

We face a very fundamental break. We have a multilateral solution using existing arms control methods that already has tremendous success, or we break with that, go with the notion of pre-emptive war, and give a lesson that everyone should be doing their best to get nuclear weapons. This is why I think the moment we face is so important.

À (1035)

The Chair: Thank you.

Monsieur Harvey.

[Translation]

Mr. André Harvey (Chicoutimi—Le Fjord, Lib.): I have three quick questions.

My first is directed to Mr. Normand. Could you describe for us quickly how the Iraqi people are controlled by the government of Saddam Hussein? We've been told that this is the case, but we haven't been given any details. Just how does the regime control communities?

Professor Franck, what is your assessment of the role currently being played by the United States, Great Britain and a handful of coalition countries in supporting the work of UN inspectors in Iraq?

Finally, do you feel that a change of government in Iraq could promote peace throughout this region in the next few years?

[English]

The Chair: The problem is, we need short answers.

Mr. Normand.

Mr. Roger Normand: How does the government control the Iraqi people? You've had the development over the course of 30 years of an extremely repressive government with a very strong security apparatus, through the Ba'ath Party, that reaches from Baghdad through the entire country. What that's done is create a climate of fear. I think control in Iraq is not only direct control, in the sense that opponents of the regime will be punished up to death, but the pervasive sense of fear you have in a society where you can't speak your mind without that kind of punishment. I think that's the basic level of control. There's even a level of control in something positive the Iraqi government has done, with its very good social programs, food, medicine, education, etc., but then again, you end up, under sanctions, with a notion of the population being dependent on the Iraqi government. This is another form of control, but one I think is due largely to the international community, through sanctions.

I would just say it's a very brutal government with a very strong security apparatus.

The Chair: Professor Franck.

Prof. Thomas Franck: I know we're short of time, but I'll just address the huge question of the effect of regime change in Iraq on the region. I'm not an expert on this subject, I'm just an international lawyer, but I'll try anyway. Lawyers think they can do anything, and I suppose I'm living the same fantasy.

The first question is what democracy would achieve in Iraq, and some of the answers are obvious. What is not so obvious is that the prospect of holding Iraq together in a true democracy is minimal. There is no reason to believe a really democratic election in Iraq would not produce a political mirror of the socio-religious fragmentation of Iraq into Kurdish, Shiite, and Sunni states that are relatively compact and relatively uniform in their populations. This would, if it were a real democracy, have to lead to the break-up of Iraq. Perhaps the answer to that is, well, so be it, but then you have to measure the consequences of, for example, a Shiite state in southern Iraq that would be very heavily under the influence of Shiite Iran.

What does all this tell us? That democracy, while it may be a terrible system except for all of the alternatives, also may be a system that accentuates the centrifugal tendencies within societies, because it will lead to those tendencies being validated through the legitimating effect of the political process. You have to count that among the probable consequences.

You also have to count on the probability of instability in surrounding countries. The United States is dispatching forces to the Jordanian border with Iraq, not forces intended to launch an attack on the ground, but support forces for aerial combat, and those who know a great deal more about this than I do fear that it may be the end of the Hashemite Jordanian monarchy, if the Palestinian majority in Jordan take to the streets and decide to use this occasion to overturn it. Of course, we've been afraid of that before and it hasn't happened, but it is considered to be a very serious danger by people who are students of the region, and it has to be counted as one of the imponderables, and therefore as one of the costs of what we are trying to do.

The President of the United States last night posited that part of the American effort was based on the notion of creating a democratic, stable Middle East. The obstacles to that are pretty formidable, and whether taking hold of them by invading the most nearly modernized of the Arab states and occupying it for ten years is a sensible way to approach the democratization and modernization of the Middle East is an open question, but it doesn't seem to me self-evident that the answer to that is yes.

À (1040)

[Translation]

The Chair: Thank you, Professor Franck.

[English]

I have a last question. Does resolution 1441's reference to serious consequences include whether or not a second resolution can be agreed to?

Prof. Thomas Franck: Resolution 1441, in positing serious consequences, makes a prediction, but it's a prediction about what the Security Council will do, not what individual members of the United Nations will do on their own. The United States' legal position, I think, has never been that 1441 authorizes the United States to act on its own. Rather, the United States' position has been, as also the British position, that it is violations of resolution 687 that set the terms for the ceasefire with Iraq, that it's the violation of those provisions that permits unilateral action by the previously authorized coalition of the willing. In other words, the legal advisors in the United States and Britain take the position that resolution 678 is something that is revived whenever there is a material breach of 687, that the effect of resolution 1441 is to declare--not for the first time, incidentally--that there has been a material breach, and that once there's a declaration that there has been a material breach, the violation of resolution 687 brings back to life the situation under 678 that permitted the coalition of the willing to act without further authorization from the Security Council. I disagree with that position, but I think it needs to be understood.

The Chair: Professor Franck and Mr. Normand, thank you very much. We are very pleased and privileged to have had you both not just as witnesses, but mainly as experts in front of our committee. I would like to thank you for your disponibilité. I think it was very important, and once again, thank you for sharing your analysis of the situation in Iraq.

Prof. Thomas Franck: Thank you for the honour of the invitation.

Mr. Roger Normand: Yes, thank you very much.

The Chair: Thank you.

The meeting is adjourned.