NDP’s motion on Israel represents a profound shift in Canadian foreign policy, says academic

Foreign Affairs Minister Mélanie Joly made it clear within minutes of the passage of the NDP’s motion on the Gaza war and the Israeli-Palestinian conflict that the government didn’t regard it as just another non-binding opposition day motion that could be swiftly forgotten.

“This is clearly the intent of this government, to make sure that we follow what is written in this motion,” she said. “And that is why we’ve worked very hard to make sure that we could get to a text where we could abide by it.”

In fact, most of the original text in the motion was rewritten during last-minute talks between New Democrats and Liberals.

That extensive rewrite changed or toned down much of the substance of the original motion, and completely removed its most controversial clause — the one calling for unilateral recognition of a Palestinian state, a move already taken by 139 other countries.

Disappointment among those who had pushed for a stronger motion coloured initial reactions to it. New Democrats countered that they had still won important concessions that would do more to protect Palestinian civilians in the short term.

“We were able to force the government to move on things that they had not supported before,” said NDP Leader Jagmeet Singh. “Things that will provide immediate relief to people on the ground in Gaza.”

NDP foreign affairs critic Heather McPherson, the driving force behind the motion, pointed to specific achievements.

“We can now hold the government accountable for a ceasefire, for access, for humanitarian care, to make sure Canadians in Gaza are able to come home, to make sure that arms are no longer being sent to Israel,” she said.

Neither one that night mentioned one of the few clauses in the deal that was not heavily rewritten during negotiations.

That clause may yet turn out to be the most significant part in the long run, said international law professor Mark Kersten of the University of the Fraser Valley, who in November testified before the Commons foreign affairs committee about Canada’s legal position on the conflict.

“I was actually surprised that part stayed in the motion,” he told CBC News, “because it is one of the few things that I think is a diametrical shift in what the Liberals have said in the past, or what the government has ever said in the past.”

The major change buried in the wording

That part of the final text says Canada will:

• (d) support the prosecution of all crimes and violations of international law committed in the region;
• (e) support the work of the International Court of Justice and the International Criminal Court;

Those simple words, if they’re turned into policy, represent a reversal of Canada’s previous positions, said Kersten.

“There’s no statement from a senior government official ever that has said they would support the ICC in relation to the Palestinian situation,” he said.

Kersten said that, according to what he’s heard about the negotiations, the Liberals were reluctant to allow those clauses to go through.

“But it came down to the last five minutes and they had to say either go or no,” he said. “And it had already been watered down so much that that part survived.”

McPherson agreed that those clauses reverse Canada’s previous positions on Israel.

“Our expectation, based on the motion the government supported, is a significantly changed approach to the International Criminal Court,” she said. “This meaningful step forward brings Canada in step with international law.

“Canada must support, and of course recognize, ICC/ICJ investigations and decisions.”

Canada has long argued that neither the ICJ — which essentially sues governments — nor the ICC — which prosecutes individuals — should have any jurisdiction over the Israeli-Palestinian conflict because Israel has not accepted their jurisdiction, and Palestinians cannot ask for their protection or intervention because Palestine is not a recognized state.

Canada most recently reiterated that position at a UN-mandated ICJ hearing on Israeli policy in the Occupied Palestinian Territories in February.

But under the government of Prime Minister Justin Trudeau, Canada has gone much further. The government has sent letters to ICC prosecutors warning them not to pursue cases against Israel or Israelis — while reminding them that Canada is one of the court’s major sources of funding.

An about-face in Canadian foreign policy

McPherson told CBC News the new motion should prevent those interventions.

“Now the Liberal government can’t pick and choose when they’ll support the work of the court, and when they’ll interfere based on which countries are under investigation,” she said.

Kersten said that while the Trudeau government’s policy may have been intended to shield Israeli officials from legal accountability, it also has the effect of opposing the prosecution of leaders of Hamas for their well-documented war crimes against Israelis — effectively placing the entire conflict under an umbrella of legal impunity that is the opposite of the rules-based international order the government says it supports.

James Kafieh, vice-president of the Palestinian Canadian Congress, called the two clauses “a 180-degree reversal” that was “long overdue.”

“It does represent a real material change in Canadian policy” toward the two international courts, he told CBC News. “Canada has worked relentlessly to undermine these. And an obvious example is Canada sending regular briefs to the International Criminal Court to argue that Palestine has no jurisdiction, that the court had no jurisdiction to hear any complaints from the Palestinians, effectively giving Israel political cover.”

CBC News asked Global Affairs Canada about what that part of the motion would mean for Canadian policy, but received no response.

Israel’s supporters focus on arms export ban

Liberal MP Anthony Housefather, who opposed the motion and says he is now reconsidering his future in the Liberal caucus, said the motion violated an understanding that the Trudeau government would follow Stephen Harper’s famously pro-Israel approach to the conflict — with one exception.

“This would be completely in violation of what the Liberal Party has promised in 2015, 2019, in 2021,” he told CBC News, “which is that Canada would be an ally of Israel and that our policy would be no different than the Conservatives with respect to Israel, other than the fact that we wouldn’t make this a wedge issue.”

His reaction to his government’s decision to back an amended version of the motion was mirrored by responses from the Israeli government and from Canadian pro-Israel organizations, some of whom focused on the damaging symbolism of prohibiting arms exports to Israel.

“By adopting such a one-sided and irresponsible motion, the House has expressed an appalling degree of disregard for Israel’s right to defend itself,” said David Granovsky of B’nai Brith Canada.

“It’s regrettable that the Canadian government is taking a step that undermines Israel’s right to self-defence against Hamas terrorists,” tweeted Israeli Foreign Minister Israel Katz. “History will judge Canada’s current action harshly.”

Idit Shamir, Israel’s consul-general in Toronto, went further. “Now Canada is going to deny weapons to Israel?” she asked in a tweet. “That’s going to be a moment that Canada’s going to have to deal with now for 10, 20, 30, 40 years. That in Israel’s darkest moment they abandon it. That’s what they just did and frankly I think it’s shameful.”

A symbolic victory

Palestinian advocates saw that part of the motion as a major victory, although a symbolic one.

“It’s very significant not because Canada sells a lot of weapons to Israel. We’re limited to about $20 million a year — very little,” Kafieh told CBC News.

“The real problem, as is witnessed in the Jerusalem Post’s editorial about it, is that Israel is in a full panic because this essentially gives permission for other western allies that have historically aided and abetted Israel to take similar action. And that’s the beginning of censure, the beginning of holding Israel accountable to international laws.”

Montreal-born Knesset member Dan Illouz, a member of the governing Likud party, sent a letter to Joly warning that the arms ban “sends a dangerous signal to the world.” It comes as Israel faces warnings from other governments that its access to their arms could be limited.

British and Israeli media reported Friday that U.K. Foreign Minister David Cameron has ordered a review of Israel’s actions that could lead to a suspension of arms sales. Alicia Kearns, chair of the U.K. Parliament’s foreign affairs committee, said a decision could come “within the week”.

Cameron also warned Israeli officials they could face a Europe-wide “arms embargo” if they continue to deny Red Cross officials access to prisoners, as required by international law.

Colt rifle contract remains a question

One arms contract that may yet cause problems for Canada is an Israeli order for 24,000 Armalite-style assault rifles that already has been the subject of a hold order from the U.S. government. Three-quarters of those rifles are to be supplied by Colt.

Colt’s subsidiary Colt Canada (formerly Diemaco) manufactures small arms for the Canadian Forces and was expected to supply some of the Israeli contract.

Protests over the sale have targeted both the main Colt plant in West Hartford, Conn. and the Canadian plant in Kitchener, Ont.

But concerns haven’t been limited to protesters. The U.S. State Department demanded reassurances from Israel that the rifles would not be given out to civilians or settlers as part of a large gun-giveaway program under the auspices of Israel’s far-right National Security Minister Itamar Ben Gvir, head of the Jewish Power Party.

Ben Gvir, who has criminal convictions for supporting terrorism and inciting hatred, has held several such giveaways, pledged to issue 400,000 new civilian gun permits and recently boasted on X about arming 100,000 Israeli citizens since Oct 7.

Ben Gvir’s opponents have warned that the guns are going to his far-right supporters, including violent West Bank settlers who use them to kill and displace Palestinian civilians.

Even Israel’s defence minister has accused Ben Gvir of trying to create a private militia that could one day challenge the Israeli state.

CBC News asked Global Affairs Canada about the proposed sale but received no response.

Sanctions on settlers

Much of the rest of the motion was merely a reiteration of existing policies, or of measures the Liberal government already had announced it would back.

A commitment to sanction extremist settlers, who have dramatically escalated their attacks on Palestinian civilians in the West Bank under the current government, already had been made verbally by Joly on February 4 (although there has been no follow-up).

The call for an “immediate” ceasefire also changed little. Canada already voted for such a ceasefire at the UN back on December 12, 2023. It repeated that call in conjunction with Australia and New Zealand on February 14.

As for Palestinian statehood, recognition was replaced with the language that has guided Canadian policy through decades of Liberal and Conservative governments — language that leaves it up to the two parties to negotiate a division of the land.

Kafieh said that language “is a non-starter” given the Netanyahu government’s declared intention to continue to oppose a two-state solution.

“Even if people made good faith efforts to support it,” he said, “fundamentally you have Palestinians who are a subject people in a room with the Israelis who dominate them.

“How are you supposed to free them or negotiate a settlement that could be based on anything other than the massive power imbalance that exists between the two parties?”

McPherson says NDP will hold government’s ‘feet to the fire’

But Kafieh said he is confident that the statehood issue will return. McPherson said the same on Monday night.

For now, she said, New Democrats will make sure the Liberal government is not allowed to forget that it has changed its posture on the international courts’ jurisdiction over the Israeli-Palestinian conflict.

“This cannot be an empty promise from the Liberal government,” she said. “New Democrats will continue to do the hard work of holding this government’s feet to the fire. We’ll use the tools we have in committee and Parliament to ensure the government honours their commitment to this approach that respects the role of the ICC/ICJ.”‘

Kersten said it’s the pressure applied after the fact that will determine how significant the change is.

“Whether or not it has an impact depends on, do people expect it to have an impact?” he said.

“If no one thinks it has an impact, then it’s just a vacuous statement saying, ‘Support the ICC.'”

Kersten said most people have focused on issues such as statehood and weapons sales and have failed to notice the important legal change.

“And if that continues and this ICC/ICJ part of the motion falls out the bottom as a result of that, then it can’t really change much because the Liberals don’t want to act on that,” he said.

“I don’t think this motion changes the fact that they do not want to act on that. And whether they do act on that will depend on whether their feet are held to the fire.”