Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.
Prime Minister Justin Trudeau defends the $15-billion sale of armoured vehicles to Saudi Arabia on the basis that he must respect a contract signed by Canada's previous government. However, the contract is already void – because of crimes against humanity committed by Saudi-led forces in Yemen.
In January, a UN panel of experts reported that Saudi-led forces were targeting civilians, "either by bombing residential neighbourhoods or by treating the entire cities of Sa'dah and Maran as military targets."
The panel described the actions as a "grave violation of the principles of distinction, proportionality and precaution," which would make them war crimes. Some were "conducted in a widespread and systematic manner," which would make them crimes against humanity.
Protocol I, added to the Geneva Conventions in 1977, states: "The civilian population as such, as well as individual civilians, shall not be the object of attack." It identifies the targeting of civilians as a "grave breach" of the Geneva Conventions.
Protocol I was ratified by Canada and Saudi Arabia. More importantly, the prohibition on targeting civilians has become customary international law binding all countries. Most importantly, the prohibition against targeting civilians in a widespread and systematic manner – the crime against humanity – has become an especially strong "peremptory rule."
Peremptory rules render void any international agreements that impede their implementation. They include the prohibitions on genocide, torture and the targeting of civilians in a widespread and systematic manner.
The peremptory status of the rule is evident in the behaviour of states. Those who target civilians always deny and seek to conceal their actions, and all the more vigorously when the targeting is widespread and systematic. Russia, for example, responded angrily to allegations that its warplanes were causing disproportionate civilian casualties in Syria.
No two countries would ever agree, in public, to target civilians in a widespread and systematic way. This is the tribute that vice pays to virtue – and the existence of a peremptory rule.
The contract for armoured vehicles is between the Canadian Commercial Corp., a Crown corporation reporting directly to the Minister of International Trade, and Saudi Arabia. As an agreement between states, it is subject to peremptory rules.
Of course, there is no evidence that the vehicles will be used in Yemen, for they have not yet been built, let alone transferred. But there is similarly no evidence that they will not be used in Yemen, or elsewhere, to commit crimes against humanity. With Saudi Arabia having already been found by a UN panel to be committing actions that amount to such crimes, the presumption must be that it will continue doing so.
The purpose of a peremptory rule is to ensure enforcement by preventing assistance to perpetrators. Even if the vehicles were not destined for use against civilians, their transfer would strengthen the capabilities of the Saudi regime and thus facilitate its illegal actions.
The existence of this peremptory rule of customary international law is reflected in the 2014 Arms Trade Treaty. Article 6 of the treaty prohibits arms transfers if the transferring country knows they will be used "in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such."
In the absence of such knowledge, Article 7 requires the transferring country to assess the potential of the arms being used to "commit or facilitate a serious violation of international humanitarian law," and to block the transfer if "there is an overriding risk" of a war crime.
Again, these provisions reflect a rule that applies to Canada now, even before it joins the treaty. And because of the peremptory character of the rule, any agreement that facilitates such violations is void.
On March 2, Foreign Minister Stéphane Dion announced that Canada would eventually join the Arms Trade Treaty. He said the move would improve Canada's practice in future, while honouring contracts made in the past.
But Mr. Dion and Mr. Trudeau should ask themselves this: Would they allow arms transfers to Saudi Arabia if a UN panel found that Saudi forces were committing genocide?
The answer is obvious and the consequence inescapable, because the prohibition on targeting civilians in a widespread and systematic manner has the same legal weight as the prohibition on genocide. The contract with Saudi Arabia is void.