Call for A Few Good Academics & Lawyers

To my friends and colleagues in international law around the world,

I am looking for some of you good people to volunteer some of your time and grey matter towards an analysis project reviewing the UK’s Iraq (Chilcot) Inquiry. It is without doubt that many of us have waited a very long time for the report to be released. Indeed, some of you may have been involved in matters directly related to representations before the Chilcot Inquiry. I know many of you will be interested in reading the report for personal and/or professional reasons. As somebody who lectures on War Crimes, I anticipate my students will be keen to raise the matter in the autumn.

Here is the thrust of the project:

I’m asking for us to come together and share our insights amongst ourselves, and to put out our review to media outlets for their use in the future. No matter where you are in the world, if you are able to hunker down with a PDF section of the report, provide annotations, and be able to write a review of the key information, we are looking to collaborate on a sort of international legal Cliffs/Coles notes to Chilcot, followed by a summary of possible implications the report might have. This may include providing interviews to television news, radio, and newspapers in your various locations – the wider the spread of academics and lawyers, the wider we will offer the final review.

Please get in touch if you are interested in participating. I’m hoping to get this project going rather soon, with the aim of having a completed publication by the early autumn 2016. You can either get in touch be responding to this post, or if you have my personal details get in touch directly.

You will require internet access, Adobe Acrobat Reader (free), and access to Google Docs. Ideally, you should be able to also participate in either Skype or Google Hangouts audio/video conferences too. I will provide technical support as needed.

I look forward to hearing from you all. I’m certain many others are as well.

Best,
George

Canada’s Last Chance? Truth, Reconciliation, Identity, and the Way Forward

A former high school teacher and now friend, Rex Taylor (@RexFTaylor) , posted to Facebook an article by John Ralston Saul ( (novelist, essayist and co-chair of  The Institute for Canadian Citizenship) regarding the conclusions of the Truth and Reconciliation (“Truth and Reconciliation is Canada’s last chance to get it right” Globe and Mail, 5 June 2015)  looking into the nightmarish ‘Indian Residential Schools’ system that rightfully should be a shameful and condemned chapter in Canadian history. Rex had asked for my opinion on this article, and due to the limits of commenting in-line on Facebook, I thought this would be a more effective medium.

Canada: A Nation in its Spring

First thing first: Canada is multi-cultural nation unique in my opinion amongst other States in the international community. (Mea culpa: I am a mixed-race Canadian citizen, as well as being a British citizen – currently living in London, UK) Growing up in Toronto, I was immersed in a diverse community where the word different did not necessarily mean bad. In contrast, my experiences in the UK have many a time included statements such as “if they’re going to come to our country, then they should accept the way things are here…”, often times whilst tucking into a tasty curry. (I’ll return to the concept of ‘the Other’ later…)

It was a period of transition, however, whereupon a culturally European-centric domination within Canada was being replaced by a more reflective and inclusive system of tolerance, exploration, and camaraderie. Certain stalwart and entrenched attitudes sounded off about this departure from their self-styled vision of historic privilege (and no, I’m loathe to go around accusing all of inherent expressions of privilege) wherein their homogenous vision of Canada was relegated to the waste bin of history. These growing pains are inevitable, particularly given a difficult existential question posed to most students in Canada: What is a Canadian?

“…No constitution, no Charter of Rights and Freedoms, no sharing of powers can be a substitute for the willingness to share the risks and grandeur of the Canadian adventure. Without the collective act of the will, our Constitution would be a dead letter, and our country would wither away.”

Prime Minister Trudeau, 17 April 1982

I suspect that such a question’s elusive answer depends greatly upon one’s self-identity, their surrounding community, and their experiences within the Canadian context. The lack of a single definition can be both traumatic and exciting – much of our identity comes from certain historical (genealogical) linkages that provide relational sets of rules and expectations of conduct, and where these do not sound in a national identity, one may begin to question the value of a society where expectations and rules may differ from one person to the next, from one to community to another. On the other hand, there exists a freedom to carve out a truly unique identity for Canada, one distinct from our colonial past and its cultural homogeneity. Canada is still in its ‘spring’ – though a process started in 1867, we only truly separated completely from Britain in 1982 with the Constitution Act (Canada) / Canada Act (UK) repatriating the Constitution and establishing our Charter of Rights and Freedoms. In a positive light, it is perhaps enlightening to remember the spirit of the nation when it became a truly sovereign and independent State:

However, in order to pursue the freedom of that Canadian identity (what PM Trudeau referred to as a “fresh start”), we must confront our past treatment of disenfranchisement of Canadians who suffered greatly from discriminatory policies and continue to experience the generational effects of those transgressions. This includes, inter alia, the horrific legacy of the so-called ‘Indian Residential Schools’, as well as our troubled relationship with the indigenous peoples of Canada.

(Dis-)Honouring the Treaties: Rediscovering our Canadian Legacy

By very brief means of a history, the nature of the relationship between the indigenous communities in Canada and the European nations that settled there were established by treaties, such as the Great Peace (1701), the Peace and Friendship Treaties (1725-1749), the Royal Proclamation (1763), and the Numbered Treaties (1871-1921). Most of these treaties meant land acquisition rights for Europeans in exchange for material goods thereto unseen amongst the First Nations peoples. Alliances were forged that ultimately lead the British domination of North America, and subsequently the repelling of American attempts to seize Canada after the US Independence from Great Britain. In short, there would have been no Canada without our First Nations brothers and sisters – settlers would have succumbed to the harsh winters and lack of geographic knowledge would have meant defeat at the hands of the USA.

Interestingly, from my perspective as a public international lawyer, is how these treaties are in essence international covenants between sovereign peoples. In fact, the Truth and Reconciliation Commission frequently refers to these agreements in the recommendations (Calls to Action). However, it is clear that this treaty-based relationship has deteriorated over the centuries, with many of the treaty provisions being ignored, unilaterally rescinded, or forgotten. The conditions of living for the First Nations indigenous peoples have been repeatedly subject to interventions due to public health and welfare concerns – often without consulting the people themselves.

One of these interventions was the Indian Residential School system. Originally conceived as a means of ensuring education for subsequent generations of Native people, the schools (typically run by the Church with the approval of the Canadian government) sought to assimilate children by preventing them from exploring their First Nations identities. The federal police, the RCMP, were authorised by law to remove Native children from their families by force and relocate them into the residential schools. These children were made to dress in non-Native clothing, and set a curriculum intended to create industrial workers – farming for the boys, and seamstresses for the girls. Religious indoctrination was part and parcel of this ‘education’, where the spiritual aspects of the children’s heritage was sacrificed for Christian worship. As funding became an issue for these schools, the work carried out as ‘education’ was typically used to subsidise the running costs of the school – in essence, these were Canada’s sweatshops run with child labour.

And if that were not enough, the children were subject to extreme physical and sexual abuses at the hands of their Church-provided teachers. The emotional and psychological traumas suffered by these people continue to present in generational challenges regarding their relationships with family and community. Alcohol and substance abuse amongst these victims is both common and tragic. It is unsurprising that Canada’s highest ranked jurist, the Rt Hon Beverley McLachlin (Chief Justice of the Canadian Supreme Court), has agreed with many that this dark Canadian legacy should be considered as ‘Cultural Genocide’.

We as Canadians, both indigenous and non-indigenous, must turn our attention to this matter that deeply affects such core community within our lands. We owe it not only to the victims of this legacy, but also to ourselves as Canadians who must understand how our relationship with the First Nations is perhaps the first and foremost aspect of answering the question of What is a Canadian?

Beginning Again, Remembering the Past

Over the past 33 years, the relationship between the Canadian federal government and the First Nations reads like a dysfunctional family history. The Oka standoff in Quebec, numerous blockades – notably the one I witnessed personally just outside of the Six Nations of the Grand River reserve in Caledonia, Ontario (this dispute began in February 2006 and continues today), and numerous failings regarding quality of life on the reserves across Canada. One cannot help but feel frustration and anger that such a situation exists in a country that is typically viewed by the world as a beacon for tolerance and understanding in a multi-cultural population.

We have, of late, seen a much more politically engaged Native population, eager to address these concerns and to seek constructive methods for building a new and positive relationship. Here is a video by John Ralston Saul from October 2014 addressing this very point:

However, as with any Truth and Reconciliation process, we should begin with a certain ethical foundation:

  • Our intentions should always drive towards a strong, dignified, and respectful pan-Canadian relationship with each other going forward.
  • We are all Canadians – any approach that aims to create an ‘us and them’ division ultimately will fail. Canada should never have two-tier citizenship, in attitudes or in practice.
  • Inclusion and consultation with affected persons should be the bedrock of any policies, whether specifically dealing with indigenous peoples or non-indigenous groups.
  • We must recognise the failings of our past: there is not a light under which the current treatment of the Aboriginal peoples of Canada can appear to be positive. For instance, the current system of land claims settlements based on the Treaties is a violation of our principles of law, namely to have legal redress in a timely manner. The current system typically takes over 20 years to consider each claim, and that is simply unacceptable.
  • Equally, mutual respect between all the peoples of Canada requires that we individually do the heavy lifting of changing, what Trudeau referred to as the ‘willingness to share the risks and grandeur’. Ralston Saul suggests that it is the non-Natives of Canada that are the only ones that must change. I disagree – change must come of us all, and we must together embrace the effort to begin again, to have ‘failed and to try again’.

McLachlin CJ (in her speech of 28 May 2015) points out three principles that apply not only to the TRC, but overall to the relationships of Canadians throughout the land, what she refers to as essential to the ‘norm of tolerance’: “first, insisting on respect for the human dignity of each person; second, fostering inclusive institutions and cultural attitudes in civil society; and third, maintaining the rule of law.

“Living together in the ethic of tolerance is not easy. But it is worth the effort.”

Rt Hon Beverley McLachlin, Chief Justice of Canada

While the first two of the Chief Justice’s points are relatively undeniable, it is the third point that should be scrutinised by both sides of this situation. Certainly, the legal obligations undertaken in the past by Britain and France, now inherited by Canada, have been treated with a declining sense of importance by provincial and federal authorities – in certain circumstances completely violating what amounts to international law. This too is not typically the vision of Canada that most citizens wish to see as their identity. Equally, however, both Native and non-Native participants in reconciliation must submit to the precept that it is the law that treats us all as equals, and we all must commit to adhering to the law whilst moving forward towards a mutually beneficial process of re-establishing normal and positive relations between all Canadians. It is this commitment to the legal and social equality of its citizens that takes us further into the realm of answering the question of our collective Canadian identity, non-Native and Native citizens alike.

Asymmetric Citizenship: How the Canadian adventure may end in disaster

While accepting the premise of Chief Justice McLachlin, and (personally) finding much to admire in PM Pierre Trudeau’s 1982 vision of the ‘Canadian adventure’, there is one more aspect that truly ought to concern all Canadians: Canada must be for all of us, equally and simultaneously.

Much of the Constitution of Canada is predicated upon a collective system of resource sharing and power sharing in order to offset the various means of fluctuating circumstances that can befall one community or another from time to time. The financial relationship between the provinces was conceived as a means of equalising the Canadian quality of life in a manner that no Canadian would be left behind.

Sadly, this Constitutional premise has been sorely neglected in relation to the sharing of Canadian resources with the indigenous peoples to whom we owe our nation’s existence. All one has to do is pay attention to the plight of Natives living on certain reserves where there has been a complete collapse of social welfare and infrastructure. It is a difficult thing to realise standing at the intersection of Bay and King Sts in Toronto that there are entire communities without adequate sanitation, running water, or even shelter against our notoriously unforgiving winters. It is difficult perhaps due to a lack of active consideration, or worse, complete ignorance. As a society, we should be able to stand in the most advanced of cosmopolitan metropolises and still feel a kinship with the East Coast fisher, the Prairies farmer, the Inuit hunter. A Canadian is a Canadian is a Canadian – we must equally “share in the risk and the grandeur”.

When we can allow our fellow Canadians to be treated less than equally, I would be remiss to neglect Shakespeare’s sage wisdom in the Merchant of Venice:

“If you prick us with a pin, don’t we bleed? If you tickle us, don’t we laugh? If you poison us, don’t we die? And if you treat us badly, won’t we try to get revenge? If we’re like you in everything else, we’ll resemble you in that respect.” – Shylock, Act 3 Scene 1

While I have suggested that the future of the Canadian citizen must be grounded in the rule of law, we must also accept that, much like Shylock, the turbulent response of the Native peoples was warranted given the abhorrent history of treatment by the colonial and post-colonial governments of the country. As mentioned in the TRC’s Call to Action recommendations, the history of the residential schools ought to form a part of the factual background when dealing with those persons who have taken up acts of civil disobedience and action to draw attention to this plight.

However, if we are to move forward together, we must not simply be aware of the tragedy of the residential schools as events that affected only the indigenous people of Canada. I have been aware of public attitudes when discussing similar events that traditionally fulfill the international legal definition of genocide, e.g. the Holocaust, the Rwandan Genocide, the conflict in the territories of the former Yugoslavia. Most of the perception is that these crimes were committed against a particular group who were the identified victims. I am often concerned that, while indeed the targeted protected group are the primary victims of these crimes, the path towards eradicating actions conceived in genocide (in the present case, the aforementioned cultural genocide) must rely upon the larger humanity recognising that these crimes are crimes against all of us. The diversity of humankind is its strength – linguistically, socially, culturally, ethnically, genetically – and attempts to reduce this diversity injures the human condition for us all. In Canada, the heritage of the Native peoples in Canada is as much a part of their identity as it is ours. We collectively must work to alleviate the injustice and inequality between Native and non-Native citizens because in the final sum, each of our individual identities can only truly be conveyed in relation to all of our fellow Canadians. Understanding the place of the residential schools requires us all to employ, in a word, empathy.

Is this Canada’s last chance?

John Ralston Saul has employed the rhetoric of this moment being the proverbial gun-to-the-head for any conception of Canadian identity being one of compassion, tolerance, and inclusiveness. While most of his discourse is agreeable and well-considered, I’m afraid I cannot agree with the terminal diagnosis that he has determined for Canada.

This is not a country defined by last chances, but moments of reckoning whereupon we are called upon to recognise our history, reconsider our direction, and reinvest ourselves in pursuit of our principles as a nation. Saul himself states: “The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony.” Agreeing with this, it follows that we can never assume that we have perfected the Canadian formula. Indeed, even if we could fully implement the recommendations of the TRC, we must be brave enough to realise that other challenges may arise in the future.

What makes us all Canadian is a commitment to ourselves and each other that we will come together in these moments of reckoning with the entirety of our community’s will to deliver on the promise of Canada for all of her citizens. The Constitution provides us a very robust and principled framework for engaging these challenges. However, as noted by PM Trudeau, it is the people who breathe life into this country, no matter what hurdles come our way.

While it is right and overdue that the dishonourable legacy of the residential schools be openly addressed and rectified, it is important for all Canadians that we maintain our commitment to each other, conceived in dogged determination and hope for our nation’s future. We must, in our uniquely magnificent multi-cultural diversity, empathise with each other in a manner consistent with tolerance and admiration for our differences, and to truly feel the tragedy of the few is a tragedy for us all. This is not only a moment of healing for the indigenous peoples of Canada, it is a moment for us all to come together in strength and support for all Canadians. We must move forward together, or the dream of Canada shall wither on the vine.

Is this Canada’s last chance? No, it is not. However, answering the question ‘What is a Canadian‘ will greatly depend on how we deal with our past and work towards ensuring a bright and inclusive future for all people in Canada.

I wish to take the opportunity to dedicate this post to my friend and teacher Mr Rex Taylor. You opened the eyes of many of your students and imparted the skills of critical thinking and compassion. I could not possibly have begun to answer the question had it not been for teachers like you.

Down the Digital Rabbit Hole: Public Expectations of Internet Privacy

black_laptop_spy_watching_500_clr_4398By way of an introduction, HBO’s Last Week Tonight with John Oliver pulled off quite a coup when bringing the issue of state surveillance back to America’s attention. Oliver appropriately highlighted the public’s waning interest regarding the NSA’s sweeping information program PRISM and its analogues, revelations that came to light when an NSA sub-contractor’s employee, Edward Snowden, fled the US with thousands of classified documents which he has illegally disclosed to journalists around the world. Using the format of ‘streeter’ interviews, we are afforded a glimpse of relative unfamiliarity with the subject by a sampling of people on the streets of New York City. However, as has become expected of HBO’s humourous current events show, Last Week Tonight takes the opportunity to drive forward from a simple satirical piece and had its host, John Oliver, travel to Moscow to meet with Snowden to discuss the impact of his actions two years on. Here’s the interview as broadcast on HBO:

In the interests of full disclosure, I am a huge fan of John Oliver, and this piece reinforced my position. Unlike a number of appearances by Snowden in the media in the past, Oliver packed in some serious questions and assertions that have been absent in those other interviews. Perhaps most provocative on a personal level was when the previous streeter footage was shown to Snowden with, amongst other errata, some wrongly identifying him as Julian Assange, the WikiLeaks founder currently under asylum in the Ecuadorian embassy in London.

However, this post is not necessarily a shot-for-shot analysis of Snowden’s statements or world view, nor is it a review of Oliver’s penetrating questioning of, as he puts it, “the most famous hero and/or traitor in recent American history”. The interview is simply the beginning of a more complex issue facing Americans and the rest of the world: What is the relationship between the technology of the internet, the ability of states to intercept information, and the public (civilian) expectations that they may communicate without unlawful interference?

The Internet as a Communication Medium

Snowden rightly states that it is difficult to synthesize the complexity of the technology into a few seconds that fit nicely into a sound bite. Indeed it is: the internet is nothing short of a silicon marvel that has exponentially moved the global human condition closer together. The good, the bad, the in between. The same network of fibre optics and microprocessors deliver your ‘like’ on an old primary school friend’s Facebook post, connect your Skype call with your parents in another country, and allows us all to get news of world events in near-real time – whether through conventional or new (social) media. The international exchange of information has never been faster, wider or convenient.

Now for the inevitable truth: the internet is a tool. Any moral evaluation of its social value is more appropriately a statement of the user. A similar albeit more difficult question exists about nuclear technology, a conversation also mentioned in Sunday’s LWT with regard to ongoing negotiations with Iran over its nuclear ambitions. Nonetheless, the internet has no inherent value but that for which it is utilised. For the most part, human usage of the internet is relatively innocuous and banal. In the present context, included in that is what may be considered low level domestic criminal activities that may lie outside the scope of legitimate national security interests.

However, the internet has the capacity to provide a means of communication for individuals and groups in coordinating and carrying out acts of terror and international criminal activities. Some of these include logistical support to groups like al Qaeda and Islamic State, or may be used by states to conduct illegal actions, such as the current conflict in Ukraine. It does not help that the sheer volume of data flowing throughout the internet masks the trail left by these subjects, making detection increasingly more difficult and prevention of action more so. It would also be salient to consider the novel means of use that are constantly being employed – in certain circumstances, free email accounts are set up and messages relayed using drafts in order to avoid actually sending a message between two people. Some terrorist groups even utilise the increasingly-prevalent VoIP technology used for in-game voice chat for popular video games as means to communicate via the internet. As access to and use of the internet spreads into every conceivable corner of our lives, those wishing to use this tool for violent acts of terror and criminality will develop new and innovate methods to thwart detection by intelligence and law enforcement agencies.

The Physical Nature of the Internet

I will endeavour to keep this brief: the internet is not a metaphysical concept – it is a physical object consisting of fibre optic cables, computer hardware and various languages of coded software. This reality is psychologically juxtaposed by nature of individual interactions by users of the network – whereas you would previously had to leave your house or invite others in to interact with people, the internet now provides the means of ‘telecommuting’ to work and socialising in 1s and 0s. Moreover, the actual technology we use now to connect obscures the nature of the internet. No more must you be seated in front of a great big desktop tower and screen using dial-up connections over the phone line, as 4G mobile data and WiFi have literally cut the physical cord from our digital devices. In fact, recent statistics have shown that more people access the internet now from their smartphone or tablet device than from a traditional laptop or desktop computer.

Much as a letter in the post sent to another country would travel through multiple locations on its way, the data we send from our phones, tablets, and computers traverses numerous jurisdictions before reaching its destination. In most instances, people cannot state where their information has gone even if they can identify to whom that information was sent. I recall visiting the House of Lords (‘HoL’ – the upper chamber of the UK Parliament) in law school and witnessing a debate over the posting of sensitive information about UK police officers on Facebook. Though I winced more than once at the concept of the internet being misconstrued by HoL peers, I was immediately impressed when one Lord stated that a legislative debate in the UK was pointless as the computer servers hosting the data for Facebook were all located in California, USA.

Therein lies the conundrum.

We may think of the internet as an unbridled worldwide information revolution, but as a physical network it is very much subject to the jurisdiction and governance of domestic laws. However, as data flows from jurisdiction to jurisdiction, there exists the possibility of unknowingly breaking the law of a particular country merely by sending an email via Google.

Consider the Turkish Penal Code Article 301 that has been used repeatedly against any persons suggesting that Turkey’s killing of 30,000 Kurds and more than a million Armenians was a genocide. As such, academic historians, sociologists and lawyers have been banned from Turkey for making reference to the event as a genocide. If I send my genocide conference footage via YouTube to a colleague in Ankara, and that video is routed through a server in Turkey, my next trip to Istanbul may be considerably longer than I may have planned. (The maximum sentence under this law is four years.) Other European countries have similar laws (Italy, Poland, Spain, Germany and Denmark) and collectively there have been over 550 convictions. I may not have intended to cause ‘public denigration’ in any of those nations, but if my communication were relayed through these jurisdictions, my actions may have contravened these laws.

As a general operating principle when using the internet, consider where you are sending your information as much as you might consider what and to whom you are sending material.

What do you consider to be private?

There is an irony to groups like WikiLeaks (who provide an outlet for leaking information) and Anonymous (a group who obtains digital information) in that they actually take advantage of an overwhelming general ignorance towards digital security and utilise it to impose their views as to what the internet should be. I’m sure both started out with the best of intentions, but it would be remiss to not consider the rather large Robin Hood complex that allows each to commit lesser crimes supposedly to prevent greater crimes. (It should be noted that in certain narrowly construed circumstances, this is a legitimate defence at law – the so-called choice-of-evils or general defence of necessity.)

So let us ask the question: what is greater crime prevented? In the context of the United States, most of the legal debate surrounds the Fourth Amendment that protects citizens against unreasonable searches by the government. Just over a year ago, the US Supreme Court declined to hear a case (Klayman v Obama) after a federal court justice had ruled that the NSA’s surveillance programme may infringe on the constitutional right. Other courts have come to different conclusions, and as such the question remains open.

What is essential to understand is the nature of such surveillance – the likes of WikiLeaks and Snowden are preoccupied by the state’s ability to collect information on its citizens. What is rarely talked about however is how much information is voluntarily made available by people using the internet. Between 2008 and 2014, Facebook saw the number of subscribers go from 100 million to 1.4 billion users – with most everybody providing a lot of personal data on a day-to-day basis.

Statistic: Number of monthly active Facebook users worldwide as of 4th quarter 2014 (in millions) | Statista
Find more statistics at Statista

As for the 140-character medium of Twitter, their user base grew from 30 million in 2010 to 288 million in 2014 (that’s more users than the US population over 15 years old).

Statistic: Number of monthly active Twitter users worldwide from 1st quarter 2010 to 4th quarter 2014 (in millions) | Statista
Find more statistics at Statista

All you need to do is to check your feed from either of these services to see your friends and acquaintances posting photographs and comments about events that would have previously remained private. Despite Facebook and Twitter offering varying degrees of protection and privacy, most users are either not aware of these tools, not able to locate them in the interface, or not bothered about what they post. The rise in popularity of people who have massive numbers of followers on Twitter virtually encourages others to open themselves up to the voyeurism of the masses. The ‘next big thing’ is usually touted as being found in social media. The most infamous of unfortunate Canadian exports, Justin Bieber, was discovered on the video-sharing site YouTube at the age of 13 – an age that breaches the terms and conditions (‘T&C’) for YouTube’s usage. (Section 2.3 of the Terms of Service)

It has been the subject of many jokes that nobody has ever truly read the T&C for Apple’s iTunes. Eddie Izzard put it beautifully, “Nobody in the universe has ever read the terms and conditions…”

Despite our collective disdain for anything involving fine print, almost everybody using services on the internet have at some point just clicked ‘I have read and agree with the Terms and Conditions’ and considered the act an annoyance. Consumption of internet services is the very nature of the internet in the first place: it is an information provider and receiver, whether or not that information is true, public, private, salacious, provocative, or even illegal. We are so dependent on this service, it has changed the nature of human interaction irreversibly. Without concern, we post information about ourselves to the internet and then become concerned when strangers come to posses this information. (Ask anybody who has had somebody they met in 2012 reference that trip you took in 2004 in an over familiar way.)

Yet, the numbers of people signing up to social media and moving their memories and experiences online is ever-increasing. Most companies now conduct due diligence searches of employees, background searches of this ‘open information’ for clients, and require contract clauses referencing social media usage policies. All done in an effort to minimise the potential of embarrassing public spectacles, typically reinforced after similar PR disasters for others making the headlines.

It is this dependence on being socially connected with our on-line lives that makes programmes like the NSA’s PRISM both economically and practically feasible – we’re putting it out there, so why shouldn’t the government read what we’ve given freely?

Illegal Interference: When state surveillance goes beyond open-source collection

Certain information is collected by states that the average civilian has no access to – the NSA was collecting the meta-data (an unfortunately vague term for what it represents) of calls made by US citizens. What does the meta-data represent? Put simply, it means the number you call and the duration of the call. In some instances, intelligence agencies can obtain the name of the person or company you call. It should be stressed that the content of the call (the conversation itself) still requires a warrant for authorities to eavesdrop on the call.

However, a recent article regarding the FBI’s usage of a cell intercepting technology called StingRay has been made public after the organisation EPIC (Electronic Privacy Information Center) successfully obtained a FOIA disclosure on its usage, not just by federal authorities, but also local police services. What was concerning was the systematic support that the FBI provided local law enforcement in resisting disclosure of the technology – even going as far as to drop criminal charges rather that have this tool exposed for public scrutiny.

judge_with_robe_1600_clr_12812Where law enforcement circumvents the legal requirements of obtaining warrants (and thus having judicial oversight and accountability for ‘reasonable belief’), such procedural failures result in increased miscarriages of justice. Mere suspicion without reason is insufficient in most democracies to permit such intrusion into our private lives (e.g., listening in on conversations on the telephone, intercepting our communications). However, one must draw a distinction between law enforcement (in the USA, this would include the FBI) and their efforts to thwart criminal actions including terrorism, and the efforts of intelligence agencies in their remit to collect information both domestic and foreign in order to provide risk assessments and responses to national security risks.

How does this fit with the why the public feels aggravated (albeit temporarily…) by this intrusion into their online activities? It comes down to what the public expects the internet to be, both in terms of information provider and open means of communication.

Misconceived Expectations: Not-So-Anonymous?

Anonymity, or the perception that one is anonymous on the internet is more or less a common misconception that people have of their activities online. In fact, in order to access the internet in a manner that may conceal your identity, most people do not even know the first steps. There are tools out there to assist in this, touted to allow users to ‘browse the Web in confidence’ or to circumvent state-based censorship (e.g., the Great Firewall of China, etc.). This may be great if your concern is anybody discovering your love of cute kitten videos or Last Week Tonight’s YouTube postings. However, what if your intentions run significantly darker?

It's what you can't see that gets you...
It’s what you can’t see that gets you…

Most of the internet is obscured from search engines and metacrawlers that index the ‘entirety’ of the visible internet. Consider the metaphor of an iceberg: what you see on the surface cannot prepare you for the enormity of what you cannot see. It is here where criminals, drug dealers, killers-for-hire, terrorists, and their ilk come to ply their trade.

Earlier this year (2015.02.04), Ross Ulbricht, the founder of the Silk Road website – a sort of eBay for crime – was convicted on seven charges, including money laundering. Reflecting on the conviction, the Canadian CBC Radio show The Current interviewed Alex Winter (the director of an upcoming documentary film about Silk Road), as well as Ulbricht’s mother Lyn.

What struck me was the insistence by Lyn Ulbricht that “it is impossible to prove somebody’s identity online”. Ask anybody who works in forensic I.C.T. (I.T.) services, and you will quickly be dispelled of this popular myth. We all leave a digital footprint – it is only the degree of perseverence by an investigator that determines whether you remain anonymous or not. A number of countries are now introducing legislation to aide in combating on-line trolling and stalking, both typically being characterised as criminal harassment in nature. Most local police forces now have in-house experts in forensic I.T., and most regional/national police forces have dedicated task force units to deal with the digital side of crime.

To reiterate: none of us are truly anonymous on-line. Just because you’re holed up in your house in your bathrobe alone does not mean somebody somewhere can’t see what you’re doing, or trace your rants back to the very device you’re using right now.

Time for the Tin Foil Hats? Not quite…

The first step to really being safe on the internet is to understand what it is. Much like most of the modern world, the science behind how the internet works has taken on mythological attributes in place of insisting on its users actually understanding the technology. We do so only at our peril.

Secondly, though it may sound worse than a root canal at the dentist’s office, try reading the terms and conditions, as well as the privacy policies of the websites you use. Most of the populist bleatings of privacy infringement are reduced to a low din upon being informed that consent to disclose information was given at the time the aggrieved party joined the website. Pleading ignorance of such a consent is difficult: why do you think you had to tick the box declaring that you had actually read the T’s & C’s?

Finally, on the overall concern that the government is peeking at your ‘dick picks’ (you’re wishing you watched the LWT Interview at the beginning of this post now…), it’s extremely to remember something important: don’t do anything on-line you wouldn’t consider doing ‘IRL’ (in real life). Why? The internet is the real world, with real people and real consequences. Here are a couple of videos that make the point:

But the government spooks shouldn’t be snooping at photos of my junk! Indeed. Photos of ‘your junk’ are unlikely to trigger DEFCON 1, and there is virtually no reason that the CIA or the NSA should even take notice. They should be focussed on the ‘clear and present dangers’ that exist out there in cyberland. However, the digital toolset necessary for those agencies to prevent terrorism or cybercrime is always powerful enough to dip into your snapchats or vines. And, like any other workplace, there are a couple of people who will abuse their positions by keeping tabs on personal connections without cause. For those people, perhaps you should consider a more appropriate career hosting Jeremy Kyle or Jerry Springer-type shows on daytime TV – the responsibility of safeguarding any nation is clearly beyond your abilities.

However, rather than shouting down the government agencies for being efficient at collecting information that you have freely put out there for the world to see, we should all take a step back and consider how much privacy we have given up on-line in a desire to have the most friends or followers. As 1 June 2015 looms around the corner, and is the date on which the US Congress & President need to renew the PATRIOT Act (where most of the surveillance authority comes from), I welcome a reasoned debate on a point-for-point review of those powers. It is a balance that we must strike: not too much government surveillance, but also not such blind exposure of our personal lives. The government cannot invade your privacy at will, they require authority to do so (judicial or legislative). But you better believe what information you give away freely is infinitely harder to argue later should have remained private.

I’m off to go re-read the iTunes T’s and C’s for gazillionth time… they probably just inserted a comma, but that could make all the difference in the world.

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The Road to PhD: Day 1 – Application and Ideas

stick_figure_sit_in_question_mark_1600_clr_2623

I have spent the last year or so struggling to determine where my career should go next. As a matter of background, I wrote my LL.M Thesis on the Scottish Referendum and the international legal aspects that should inform that process. Necessarily, my interests were more than academic – research and writing must eventually be tested in the crucible of reality. In this instance, that meant continuing observations and analysis of the Referendum, including the aftermath. (I authored a submission to the Smith Commission post-referendum with regards to the implications of the promises for further devolution and constitutional change during the campaign.)

This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.

stick_figure_hold_earth_1600_clr_1925However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?

More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)

Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…

To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community  at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)

table_of_the_world_1600_clr_8705There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a  political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.

However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.

And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.

 After all, what’s the worst that could happen?

Do not look at the Ark!
The Raiders of the Lost Ark (Copyright 1981 Paramount Pictures and Lucasfilm)

 

Alanis Morissette is God?
Dogma (Copyright 1999 View Askew Productions and STK)

 

Torture! What Is It Good For? Absolutely Nothing… Ever.

US Senate Report on CIA Detention Interrogation Program (Wikimedia)

The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.

However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.

Neither are true.

In rejecting another set of ‘Enhanced Interrogation Techniques’, the Israeli Supreme Court in Public Committee Against Torture in Israel v The State of Israel (H.C. 5100/94) stated:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)

One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).

Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.

And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.

Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.

Gaza: why Operation Protective Edge was not genocide (Re-post)

By Dr. Paul Behrens, University of Edinburgh

When, in armed conflict, civilians are killed on a large scale, when schools are attacked and children are orphaned, charges of genocide are often not far behind. In discussions about Operation Protective Edge, the Israeli military attack on Gaza earlier this year, accusations of genocide have therefore played an important role.

Mahmoud Abbas, the Palestinian president, recently accused Israel of carrying out a “war of genocide”. The National Lawyers Guild of America raised the charge of genocide in a letter to the prosecutor of the International Criminal Court requesting that the matter be investigated. Genocide was also investigated in a special session of the Russell Tribunal on Palestine, which resulted, a few weeks ago, in one of the most detailed assessments of Operation Protective Edge to date. It is a crime for which the international authorities can impose a sentence of life imprisonment (as the International Criminal Tribunal for Rwanda did on several occasions following the 1994 atrocities in that country).

Tribunal gathering

The Russell Tribunal was originally set up by Bertrand Russell in the 1960s to investigate allegations of US crimes in Vietnam. It is not a court of law, but its jury contains prominent legal minds (including Prof John Dugard, Prof Richard Falk and Michael Mansfield QC), as well as people who have made their mark in other fields of life (including the film director Ken Loach, the writer Paul Laverty and the author and activist Christiane Hessel).

What matters to international courts is the mindset behind the action […] the perpetrator must have the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

Ken Loach and Roger Waters (EPA)

I was invited to address the tribunal on the legal elements of genocide (but was not involved in the drafting of its findings). For some, it may have been a somewhat surprising presentation. Lawyers have traditionally given genocide a very restrictive interpretation – and a good part of my talk thus dealt with the reason why applying it to the situation in Gaza is not straightforward. To my mind, “genocide” is simply not the correct term for the Israeli offensive.

In common speech, genocide tends to describe atrocities which result in very large victim numbers. Yet that is not how the law has approached the concept. What matters to international courts is the mindset behind the action. In the words of Article II of the Genocide Convention, the perpetrator must have the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

That causes difficulties from the outset. In Operation Protective Edge, a main target of the Israeli forces was Hamas – clearly a political group, and thus outside the protection of the convention. The Palestinians do qualify as an “ethnic” (perhaps even as a “national”) group. But proving that they had been targeted “as such” is a tall order.

Convention on the Prevention and Punishment of Genocide (1948) (UN)

Motivationally speaking

Looking into the mind of a perpetrator is difficult, if not impossible. Take the attacks on civilians and civilian objects in Gaza. That they occurred is a matter of fact. But the motive is far from clear. Sometimes military considerations were invoked (Hamas had reportedly used residential areas and even hospitals as launch sites for rockets). Sometimes the attacks may have been accidents. Sometimes no clear explanation was provided. This makes it difficult to satisfy the requirement under international law that genocidal intent had been the “only reasonable explanation” for the perpetrators’ acts.

Not even the extent of the operation is helpful evidence. It is reported that more than 2,000 Palestinians lost their lives in the conflict – a horrific number for a conflict lasting 50 days. But victim numbers do not say much about the underlying intent. When the UN General Assembly in the 1990s asked the International Court of Justice to rule on the legality of nuclear weapons, several states claimed that the use of these arms indicated genocidal intent. The court did not agree: even in situations of this kind, intent had to be established on a case-by-case basis. The threshold for evidence for genocidal intent can be very high indeed.

In situations of this kind, war crimes and crimes against humanity are often applicable as well […] Under international law these crimes are not seen as less severe than genocide.

An impartial tribunal also has to consider evidence which may negate genocidal intent. Where Operation Protective Edge is concerned, this includes the fact that the Israeli military at times issued warnings before attacks on civilians were launched. Even if the warnings may often have been ineffective, they may indicate that the perpetrators had motives other than the destruction of the Palestinians as a group.

Israeli ground offensive as Operation Protective Edge gets underway (EPA)
The fact that Israeli extremists – including those who reportedly kidnapped and killed a Palestinian teenager – had to face trial in their own country, casts further doubt on the existence of genocidal intent within the Israeli leadership.
 

Strict interpretation

The concept of genocide which emerges from these considerations may appear very narrow indeed, and it is true that the strict application of rules on evidence will often favour the accused. That is the reason why I was unable to conclude that genocide had been committed. It is probably the reason why the Russell Tribunal did not enter a finding of genocide either.

That does not mean that those who launch attacks on civilians have committed no crimes under international law. In situations of this kind, war crimes and crimes against humanity are often applicable as well (and they, too, were considered by the Russell Tribunal, along with the crime of incitement to genocide). Under international law these crimes are not seen as less severe than genocide.

The very rejection of the genocide charge will still cause controversy, but it was the right decision. Since the tribunal accepts international law as its frame of reference, that law has to govern its findings. And there is merit in that. Going back to the rules of international law, the common hymn-sheet of the international community, may yet provide the measure of reason which is so desperately needed in this debate – a debate on an issue which can hardly be of greater concern to the world as a whole.

The Conversation

Paul Behrens was awarded funding by the British Academy in 2011 for a research project on genocidal intent.

This article was originally published on The Conversation.
Read the original article.

Smith Commission Submission: Expectation & Limits for Scottish Devolution

I’m very pleased to report that I have contributed to the devolution process in a submission to the Smith Commission.

It was a very short timetable to work to, and as such this paper is not fully worked up as it will be when I submit for journal publications. However, I wanted to share the original which is intended to be understood by all persons, not just those steeped in the typical language of law.

I hope this brings some understanding to those of you who read it, and I would very much appreciate any feedback you might have. Please consider sending me an email if you wish to keep your opinion confidential.

As WordPress does not allow me to attach a document (or I haven’t found out how to do that yet…), I have uploaded the document for your review at Academia.edu – a website for all manner of academics worldwide. The link is here:

Expectation and Limits on Further Devolution of Parliamentary Powers to Scotland

I look forward to hearing from all of you on this matter.

Best,
George.

Kenyan President uses Tory human rights plans to defend war crimes charges

This follows thematically from my first blog entry regarding the UK’s threat to withdraw from the ECHR and the Council of Europe. ‘Putting Britain First’ policies that ignore that Britain is part of the international community in order to quell short-sighted, nationalistic and isolationist political minorities threatens to undermine the reputation of the UK as a global role-model for the adherence to the rule of law (including international law to which all countries are bound) and as supposed champions of human rights at home and abroad.

Original Article by @AdamWagner1 of 1 Crown Office Row chambers and ukhumanrightsblog.com – Definitely endorsing you to follow both.

UK Human Rights Blog

Photo credit: Guardian.co.uk Photo credit: Guardian.co.uk

It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.

This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.

Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving…

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An Uncomfortable Look in the Mirror: Canada in the World, Before and After the Ottawa Shootings

Brilliant addition to this now-unfortunately unavoidable conversation for Canadians. Fully endorse your consideration of Mark’s statements here.

Justice in Conflict

Ottawa. (Photo: Creative Commons / Endlisnis) Ottawa. (Photo: Creative Commons / Endlisnis)

Amongst many Canadians, a popular response to the shootings in Ottawa that claimed the life of Nathan Cirillo earlier this week has been: “This doesn’t happen here… This is Canada.” And that’s true enough. Political violence of the sort we witnessed this week rarely touches Canadian lives. Ottawa is one of those curiously apolitically political cities – a place where the majority of the workforce works directly or indirectly for the government but a community where global politics rarely penetrates every day life. But the Ottawa shootings should bring into relief the need for the Canadian government and Canadians at large to look themselves in the mirror and ask a simple yet tough question: why did this happen?

The easiest answer, and one that has already been proffered by a host of observers, is that a single, crazed lunatic who hated Canadian values went on…

View original post 1,158 more words

Oh Canada: A Eulogy for Innocence

CAN Pegman w tearOh Canada…

You are the country of my birth, my youth and that beacon in my heart that reminds me that another way is possible where our individual and collective voices trumped violence and terror. Alas, our voices are now momentarily silent from the shock that has followed from the targeting of our soldiers on home soil. Our hearts have taken a blow as we consider the implications that the events in Québec and Ottawa have for our unique multicultural democracy.

As noted by MPs whilst locked down in the Parliament speaking to the world’s press, ‘ours is an open society that is welcoming for all’. There were no barriers preventing these individuals from storming Parliament Hill because that is not the Canada we want – one where our politicians and institutions reside behind fortified ramparts, only accessible after multiple security checkpoints. One Canadian journalist even stated that there is weekly yoga open to the public on the lawn out front.

We should remember that the casualties of these attacks have been two soldiers at home.

Our collective sorrow at the presence of political violence in Canada is understandable. I had grown up thinking of our soldiers as wearing the blue berets of peacekeepers. I enjoyed the positive reputation that the country of my birth afforded me when travelling elsewhere in the world. Having moved to the United Kingdom, I still get a prompt apology when an incorrect assumption is made based on my distinctly non-British accent. (To be fair, I always say there is no reason to apologise. I’m from Toronto. As Alec Baldwin quipped in 30 Rock: “It’s like New York, without all the stuff.”)

FLQ and the October Crisis of 1970

But this is not the first time that Canada has borne witness to such acts on home soil. In 1970, during the FLQ October Crisis, terrorists (I won’t even acknowledge their agenda for separatism – it is an insult to those separatists in Québec who act peacefully as one should in a just democracy) kidnapped a British diplomat (James Cross) and killed a Québec Provincial Minister (Pierre Laporte), and also set off almost a hundred explosive devices during their campaign. Ultimately, James Cross was released in exchange for safe passage to Cuba for the kidnappers. However, in order to deal with the crisis, the War Measures Act was invoked, suspending habeus corpus, and the military was deployed in Québec and Ottawa to re-establish order. This crisis was where Prime Minister Pierre E Trudeau famously stated: “Just watch me” in response to a question of how far he would be willing to go to deal with the matter.

During that crisis, Warrant Officer Class II Walter Leja of 3 Field Engineer Regiment was gravely injured whilst attempting to disarm an FLQ mailbox bomb. He was later awarded the George Medal by Queen Elizabeth II. A watchman, Wilfred O’Neill, was killed when another bomb went off at a Canadian Army recruitment office in Montréal.

The legacy of this crisis was such that violent political extremism was condemned as repugnant and unnecessary, and as testament future separatist efforts were pursued under the rule of law by peaceful means.

Oka: A Breakdown of Relations with First Nations

In 1990, following encroachment upon lands subject to claims by the Mohawk Nation and an attempt by Québec Police (Sûreté du Québec) to dismantle a barricade around that land, a stand-off ensued between the Canadian Military and the paramilitary arm of the First Nations, the Warriors. In a famous image from the tense events, a Native Warrior stood face-to-face with a Canadian soldier in an effort to provoke violence. Here is the CBC evening news report on that day:

What makes this distinct from the FLQ, and what gives pause to labelling the events as ‘terrorism’ is difficult relationship that has endured between the Government of Canada and the First Nations. Under the original alliances with the British Crown, the First Nations were recognised as ‘friends of the Crown’, as opposed to subjects – the status of non-native Canadians.

A colleague of mine who served in the Canadian Forces at the time was deployed to Oka. Conversing with him on the matter, he stated that it was the most difficult mission he had ever undertaken. Given that he was also deployed in the first Gulf War, I asked how this engagement differed. His answer was as stark as it was to the point: “When I looked down sight of my rifle, I realised I was aiming at a fellow Canadian. I’m not sure I could’ve shot.”

A Mohawk Warrior and a Canadian soldier engage in an iconic scene from the Oka Crisis

Sadly, during the initial police intervention, SQ Corporal Marcel Lemay was struck and killed by gunfire. The stand-off lasted 78 days, with the Mohawks and the military commander Lieutenant-Colonel Robin Gagnon (Royal 22e Régiment) negotiating for a peace. It should also be noted the intervention of the Mohawk women who intervened and ordered the Warriors to de-escalate tensions. However, this crisis formed the basis for further tensions in other parts of Canada with First Nations peoples. Much is yet to be resolved.

Post-9/11: Responding to the ‘War on Terror’

The events of 11 September 2001 in the United States prompted Canada to reorient our military efforts to support the American-led and ISAF/NATO operations in Afghanistan. Putting Canada ‘on a war footing’, Canadian military forces entered Afghanistan in late 2001, with the initial insertion conducted by the elite Joint Task Force 2 (JTF2).

 PPCLI soldiers killed by American friendly-fire: (clockwise from top-left) Sgt Marc Léger, Cpl Ainsworth Dyer, Pte Nathan Lloyd Smith, Pte Richard Green. (2002.04.17)

PPCLI soldiers killed by American friendly-fire: (clockwise from top-left) Sgt Marc Léger, Cpl Ainsworth Dyer, Pte Nathan Lloyd Smith, Pte Richard Green. (2002.04.17)

On 17 April 2002, four soldiers from 3rd Battalion Princess Patricia’s Canadian Light Infantry (‘PPCLI’) were killed, and eight wounded, following a friendly-fire bombing by an American F-16 mistaking the Canadian’s live-fire training operation for a Taliban assault (the Tarnak Farm incident). These casualties were the first for Canadian Forces since the Korean War.

Capt Nichola Goddard
PPCLI Capt Nichola Goddard, the first female military casualty in Canadian history (2006.05.17)

In another tragic first, on 17 May 2006 Canada suffered its first female servicemember’s fatality, when PPCLI Captain Nichola Goddard’s armoured vehicle was struck by RPGs.

The toll on our soldiers from the Afghan conflict was extreme. According to currently available reports, 158 soldiers were killed and 1,859 were injured or wounded. The Canadian public attitude towards the war shifted from supportive (from 2001-2005, only 1 in 5 Canadians opposed the war) to opposition (by 2010, 56% were opposed to the mission in Afghanistan). However, throughout the conflict, the dissent was mostly directed towards the political decisions and not targeted towards Forces personnel.

On 15 March 2014, the last Canadian soldiers in Afghanistan returned home.

This week…

WO Patrice Vincent was killed when he was struck by an individual known to police for having radicalised ideologies and sympathies for Islamic State terrorists. 2014.10.20)
WO Patrice Vincent was killed when he was struck by an individual known to police for having radicalised ideologies and sympathies for Islamic State terrorists. (2014.10.20)

On Monday (2014.10.20), two soldiers walking in a parking lot outside a veteran’s support centre were run down by a car driven by a 25-year-old man who was known to police for radical ideology and sympathies for the terrorist group ISIL/ISIS/Islamic State. 53-year-old Warrant Officer Patrice Vincent succumbed to the injuries he sustained in the attack. The other soldier is still in hospital. The perpetrator also died of injuries sustained when he was shot by Québec Police attempting to apprehend him.

Corporal Nathan Cirillo, 24, was killed by a gunman while standing guard over the Tomb of the Unknown Soldier at the National War Memorial in Ottawa, Canada (2014.10.22)

Then, earlier today (2014.10.22), a gunman approached the National War Memorial in Ottawa and opened fire on the honour guard protecting the Tomb of the Unknown Soldier. Despite medical interventions by civilian by-standers, Corporal Nathan Cirillo died of his gunshot injuries.

The gunman proceeded towards the Canadian Parliament buildings, entering inside and reportedly firing more than thirty times. The Sergeant-at-Arms (typically a ceremonial post) for the Parliament, Kevin Vickers, intercepted and killed the perpetrator just outside the rooms where Canadian MPs were holding their caucuses. Reports have suggested that the federal police (RCMP) and Canadian Army are still looking for multiple suspects believed to be involved. Most of the capital was subject to lockdown until 2025hrs EST. Parliament Hill remains closed to the public.

…going forward

The subtitle of this post is ‘A Eulogy for Innocence’. The innocence I speak of is that which all Canadians have in relation to our self-image as a tolerant nation inclusive of all that transcends the problems elsewhere in the world. This innocence is, unfortunately, one of youthful naivety. Canadians are today, perhaps more than at any other time, now realising that not everybody else in the world thinks fondly of our Northern paradise. Furthermore, we also must come to realise that our servicemembers experience real peril when we send them out on deployment. While these professionals carry the Maple Leaf on their shoulders, they represent the best of us: compassionate in the face of tragedy, defiant in the face of tyranny, and resolutely heroic in the face of danger. The True North Strong and Free.

When they come home, however, Canada should be the one corner of the earth where we all share in these values. They should not find themselves facing the possibility that their fellow citizens may pose a danger to their lives.

Caption
Fusilier Drummer Lee Rigby, Royal Regiment of Fusiliers, who was murdered outside the Royal Artillery Barracks in Woolwich, London by British-born radical extremists. (2013.05.22)

Living in south-east London, I was very close to where Fusilier Drummer Lee Rigby was murdered on the streets of Woolwich outside the Royal Artillery Barracks. The deranged acts of his killers were a result of similar radicalisation as had occurred with the attacker on Monday. (The gunman in Ottawa has not, at time of publication, been identified by authorities as having shared in radical ideology.) And it is further lamentable to consider that here in the UK, soldiers on home soil have had to be on guard against numerous threats in the past, including from the IRA. To see so many soldiers in uniform in public during the 2012 Olympic Games was disconcerting at first, but they did a wonderful job of securing the venues and providing assistance where needed.

Nonetheless, I think that any person serving their country should never have to hide that identity for fear of retribution whilst at home. But pragmatic security concerns have made it so. After all, rhetoric will be of little comfort to their family if practical measures could have saved a soldier’s life.

What makes me sad is that these measures that I have grown accustomed to here in Britain could possibly be necessary back in Canada now. The barriers outside Westminster Palace (British Parliament) and the security just to enter will need to be considered for Parliament Hill in Ottawa. Self-protection measures for soldiers in uniform in Canada will have to be developed in order to keep them safe when amongst the public.

But saddest of all for me is that after today’s horrific tragedy, is that my military friend’s psychological dilemma of even pointing his rifle at a fellow Canadian may no longer be a justifiable concern. When citizens take advantage of their mutual goodwill towards each other to commit heinous acts of violence, suspicion may be the legacy that lingers longest amongst us.

I sincerely hope that I am proven wrong.

UPDATE (2014.10.26): It is too early to consider how this week’s events could alter the national conversation that most Canadians know we must have in order to go forward from this tragedy. However, I wish to point out that I have never heard a more patriotic and emotionally-rousing performance of the National Anthem prior to any Hockey Night in Canada. Click here: Ottawa, Toronto, Montreal unite for stirring Canadian anthem (Courtesy NHL)