Lecture 8 Saturday, July 27, 2013
• Follow-up on the Out-West excitement from the last time
• Later: War crimes, Nuremberg trials, etc.
• Stuff on drones:
o Drones are threatening to become weapon of choice for various nations
o Use by the US in relation to Obama’s “kill list” attracts a lot of focus and media
o But other nations and groups could have drones, too. It’d be a problem if they get
them. They’re unaccountable anyway. Imagine if a jihadist society had it.
o Contentious debate about them I US—CIA appointee will have to set some cards
on the table about their continued use.
o Drone use went up by 72% in 2012 (election year). Official statistics indicate
there were 16 civilians inadvertently killed. Prof’s suspicion is that it was way
more. What do we know about drone and their actual extent of use and any
o But there e were civilians either killed by air or being close to the location of fire.
o Will see increased use of drones in near future—American forces wind down
their presence in Aghanistan. The more they leave things to the Afghan army, the
more drones will keep intimidating presence even though men and women on the
ground will be reduced in numbers.
o Most civilian casualties “appear to be the result fo weaposn aimed at insurgents
but some may have been targeting errors”
o Interesting piece in the Citizen by Barry Cooper (senior fellow at Canadian
Defence an d Foreign Affairs institute)- we should be prepared to deal with
jihadists, but nevertheless, it could be that Al Qaeda enjoys the status of a
“nuisance terrorism”. His point of view is that we’re not running around with their
heads cut off, security braelets, detention without counsel, picking out teenagers
and calling them homegrown terrorists. Today, the effective operations rely more
on local cells (Mali and Algeria with the gas plant recently are not planning
international bender, striking train stations, etc.) They’re targeting where they are.
There’s no central command somewhere directing al of this.
o Interesting, sober analysis. Reflects societal views being subject to less hysteria
and more analysis.
• More stuff:
o Piece in the New York Times—Times sQuare bomber apprehended by New York
police. Do we need apparatus like Guantanamo and military tribunals o Do we need separate judicial system to dea with so-called terrorists? What’s
wrong with civilian courts?
o Faisal Shasad was sentenced to life after plea of guilty within 5 months and 4
days after his arrest. Better than the 10-11 years since 9/11. While 170 inmates
were still remaining in Guantanemo, judicial process hadn’t started. And Omar
Khadr was the only person who had faced a proceeding at that time.
o When Faisal was arrested, he used his Miranda rights (right to remain silent, right
o Great outcry: he should be processed through military justice system. He’s a
o But not only did he plead guilty, not only was he processed through civil courts
without any problem of security, but he cooperated, gave information to
authorities, and was sentenced to life!
o What is it that motivates peopleto call for military justice rather than civil courts?
o That was speedy, efficient rule of law. He got his rights. That’s justice. Military
justice system would be just punishing him, not real due process.
o It’s terrorism yeah, but it’s a criminal act!
o He saved the taxpayers a gazillion bucks, pled guilty. Why stick him in
Guantanemo? What would be achieved, other than vengeance?
• A book: “Guantanemo’s Child” by Michelle Shepherd
o Also Youtube video: “Four Days in Guantanamo”
Interrogation by CSIS in the video
• Romeo Dayerre (former general, now senator. Formerly in Rwanda). He had to more or
less sit by and watch as hundreds and thousands of Africans butchered themselves.
Since then, diplomat for peace particularly with respect to child soldiers.
o Book: “They fight like soldiers,t ehy die like children”
o Child soldiers are really tools used by adults to wage war
o The perfect, low-tech, cheap and dispensable weapon system…
o The girls frequently sold into sex slavery as well. 40% of the child soldiers are
o Intersting thing to read. Interwoven with the Omar Khadr issue and war crimes is
the issue of child soldiers. Much has been said about Ismael Bay—was a child in
Sierra Leon, used in Lord’Army, saw his family butchered and raped, was
drugged and conditioned by the adult army to kill people. Eventually rescued by
UN worker, made it to the States, degree ein New England University, book
called “long way gone”, spokesperson against use of children in conflict o Distressing: Canada didn’t acknowledge that Khadr at his age was a child soldier.
Romeo Dallaire was of the opinion that he was.
o We’ve seen the protocol. Cnada was a lead proponent of the protocol to the
international convention on children, which stated that children shouldn’t be used
in armed conflict. But during the Khadr case, refused to admit that he was a child
o Besides Ismael Bay (classic example that humanity is recoverable), here’s
another one. Emanuel Jal. Very successful rap artist now. He very similarly to
Khadr and Ismael Bay became a child soldier, largely because of the perverted
influence of their fathers. Khadr took hi to Afghanistan and taught him to ahte at
age 11. Emanuel was fleeing strife in Sudan, told he was being taken to a place
where he’d be safe and was instead recruited Liberation Army. He was also
rescued. A UNICEF worker who was married to Sudanese officer got his
collaboration, he was smuggled out into England where he eventually got a
degree. His music was used in the soundtrack for the movie Blood Diamond, and
also in the show The ER, also asked to perform in Live 8 concert in 2005.
o Quite a confutation of the idea that these people are all write-offs and can’t be
o Child soldiers are victims. They shouldn’t be accused and prosecuted.
o What’s the message to the Lord’s Army who use children and know that Canada
doesn’t recognize the essence of child soldiering—they could feel free to
o It’s a deep, dark area, and there are hundreds and thousands of child soldiers.
o During 2010, UNICEF and other associations helped with the release and
reintegration aof about 10,000 children who wer involved in armies and armed
groups. Called it UN Child Soldier Black List: Central African REpubic, Congo,
Colombia, Myanmar, Nepal, Philippines, Sudan, Uganda, etc. Meanwhile, China,
Afghanistan, and Russia have refused to sign onto the protocol.
o Recommend reading Romeo Dallair’s book—puts the facts out.
• Following up on the adventures out west
o Indian Day celebration at Banff, Alberta.
o In Aboriginal clothing
o When Canada was sanctuary for the Soux, Sitting Bull was there.
o At a time when they were dignified association
o Now we have more contentious protests and litigation. The Native community
receives bad PR. Idle No More movement, Attawapiskat, etc. Issues seem more
muddy. o All of these years later, as we approach another century, how far are we?
Residential schools aside, we’re no better now.
o How did it get that way? How did we have such unfortunate Aboriginal issue?
How did we let a group of noble First Natiosn feel so badly but us mistreat them
o After Woolf came to Quebec, royal proclamation in 1763 (Treaty of Paris)—the
British Crown took over all the rights to land, in return gave promise to Aboriginal
peoples but they were limited by Western settlement, the promises made to them
that the rights to their land could only be extinguished trhough treaties (they have
to be consulted). But as our colonie became a confederation, routinely the Crown
abrogated those rights, ignored a lot of those promises, neglected Aboriginal
rights. At the same time, aboriginals became subject to Canadian criminal courts.
So they became British subject,s surrendered their land. Now you see endless
land claim disputes—they didn’t fully understand the nature of surrendering land.
At the time, had different concept of the land—didn’t understand hectares, lots,
etc. It was shared by all of the people. To suddenly be told through interpreters
who aren’t always dependable, records that aren’t always dependable, that they
were ceding their land (the legality of it), British officials writing down the
surrender of certaint erritory…they may have thought of it as a friendship treaty.
They didn’t realize that their resources were being filtered away.
o We’re reaping the whirlwind now. The problem was this European principle in
territorial acquisition: Terra Nullius (the land belonging to no one). Policy-makers
an dphilosophers (John Locke) were of the view that when the Brits came to
Canada, they were coming to land that wasn’t really inhabited. Aboriginals
(nomads), going around from land to land. They felt they had immediate
sovereignty because it wasn’t really inhabited.
o The danger was that the fact that the land din’t appear to be occupied came to be
termed—the people at the land weren’t civilized. This made it even more
profound (the distinction). Eventually, the Indians retreated to being different—led
to prejudice. The entire relationship was poisoned.
o We tend to see the arrival of European sin North America was a black and white
issue (there were savages, hunting around with no clothes, Europeans brought
civilization and colonized the place). But it wasn’t that siple. They were as
complex as the Europeans, had their own forms of government, regulations and
rules. Their agriculture was such that when the Brits came, they had complex
fertilization process…it went back to the old world and helped fuel the industrial
o When the first people came to Canada (16 and 17 century), the people back in
the highlands of Scotland were living in huts, moving around, not very many
clothes. It’s a misperception that the Europeans were so sophisticated.
o One guy wrote that they’re savages, without any law or government, led by their
own lusts and sensuality. There is no “meum” or “teum” (“mine” or “yours”), so if
the whole land should be taken from them, there’s no man who would find anything wrong with it. (You can see how this led to taking advantage of them.)
They didn’t have legal counsel and sound advice…they were invited to sign
treaty of friendship in return for being looked after and things flowed from there.
o We never accepted their religious philosophical conceptualization for what the
land meant, rather than the British obsession with property (the foundation for
rule of law—most of the criminal precepts emerge from the desire to protect
property in Britain)
o As late as the late 19 century, Canadian courts (in the case of St Catherine’s
milling) said that: must assume that Indians have form of government, but they
don’t have government or organization, can’t be seen as people capable of
o John Locke was very influential in legitimizing the complete takeover of aboriginal
lands by Europeans. Fostered the notion that they were in pre-political state.
For us, he’s an Enlightenment figure, but he messed this one up.
He said: “Aboriginal people possessing neither government nor poperty in
their hunting and gathering territories, have property rights only in the
rights of their labour—the fish they catch, the deer they hunt, the corn
they pick. Anyone in state of nature is free to appropriate land as long as
the land is not cultivated.”
North America is basically vacant, no real people or organized
government that we need to respect.
These differences became understood as inferiorities—prejudice
o Famous case (The Drybones case): really started the flow of modern Native
litigation, recognized that there were unfair differences being visited upon the
native population. Drybones was charged with being intoxicated off of the
reserve. The case concluded that this was unfair because no one else in the
country could be charged with being intoxicated in such a case because they
weren’t on or off any reserve. This guy shouldn’t be charged with that. Start of
o There was considerable diversity amongst the Aboriginal nations at that time, as
much as there was between European countries! Even the use of the term
“Aboriginal” is a problem now.
o BIG CASES in Canadian juridical experience:
St. Catherines Milling & Lumber Co. v. The Queen (1888)
• This is the 19 century case that put out the ignorance an
dprejudice of the whites towards Indians
R v. Drybones (1967)
• He mentioned this one R v. Sparrow (1990)
Guerin v. The Queen (1984)
Delgamuuk v British Columbia (1997)
• THESE 3 deal with the contemporary notions that Canada has
had a fiduciary relationship with First Nations over the years, also
that the Aboriginals had what they claimed to have as “an inherent
right to self-government”. Unfortunately, many First Nations
politicians take that to mean a sovereign state, that dealing with
Harper is state to state. But it’s really more like quasi-municipal
level of political organization—local policing and infrastructure.
• Many of these cases deal with land claims. Often you see tha a
particular First Nation will lay claim to the whole Bruce Peninsula,
not because they think they’ll get it but because they know it’ll
make an impact.
• One of the tragedies of the Aboriginal experience is that they
picked up the white man’s game (litigation). But litigation rarely
solves anything, costs tons, goes on forever.
• Often, these cases involve complex problems because you run
into traditional perceptions of the right to hunt and fish (recognized
in the treaties), but did that mean commercially, did that mean
neglecting environmental concerns?—the Marshall case.
R v Marshall (1999)
• This Marshall was wrongfully convicted of murdering…
• He became a native symbol in this case (a resource case)
o These cases are interesting.
o Way back in late 1800s, when the border was no longer an issue (NWMP
pacified things), Aboriginal rights no longer seen as an issue, things began to
slide. Commercial encroachments with the railway, more setlers moing out west.
The treaties didn’t hold water.
o Arguably today, there’s no systematic approach to Aboriginal issues that’s
superior to anything of the past. You don’t hear many people doing anything
o McNaught would toss the Indian Act completely! It ghettoizes, allows local
politicians who may not be correct and filled with integrity to abuse their own
people sometimes, without the sensor that might be attracted if they were in a
conventional relationship with the government. Until they’re treated like all other
Canadians, how will other Canadians trat them? There has to be a beginning,
there has to be respect. o We don’t even have to go into the horrible criminal aspects. Incarceration rates
disproportionally are reflected by the native population (particularly in Manitoba
• WAR CRIMES!
• Nuremberg--- the origins of war crimes.
• Dave Brown did a piece called “Time to End it”.
• One of the themes of this course is the notion of context—nothing happens in a vacuum.
The acts (Act of Settlement) don’t just happen. All kinds of things happen around them.
Understanding why they did requires understainding the times.
• Nuremberg trials often come under criticism for being victors’ justice (the Allies won, now
they get to hang, draw and quarter all the losers). But we need to understand context.
• Positive aspect of the trials—need to keep in mind that there were also many courts set
up by the Allies in what was now occupied Germany to de-Nazify the populace.
o There were numerous absues
o Pretty much concentration camps set up
o 545 de-Nazification courst set up at the end of the war. Determined who could be
trusted, who’d be considered guilty
o Over 22,000 Americans employed by these courts I nGermany.
o Britain, France, Russia, US: principal allies
o British sector: holding camps.
o Amercan zone: 3.6 million Germans prosecuted, 800,000 punished for various
o Second echelon Nazi officials held to account. (The first echelon was the
showcase trial with high-level Nazis). This second was for lawyers, government
officials, administration, who had orchestrated all kinds of things that constituted
o Judges who said they were just enforcing the law—doesn’t make it right, the laws
o Billions paid in reparations. Not until the 90s that the account was really closed
and we moved on.
• One student was a believer in the whole victor’s justice thing. Said that the Allies were
basically playing Solomon, broke down the place and had trials in the ruins.
o Picture of Nuremberg: not exactly ruins, it’s all still pretty nice. o Nuremberg was picked for a number of reasons:
The war ended in May, 1945. The war in the Pacific (involving Japanese)
ended in August 1945, m