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May 26, 2008

Bernier and the State of Canadian Conservatism

Maxime Bernier's resignation - or, more to the point, his replacement by the formerly Liberal David Emerson - emphasizes once again the paucity of first-rate Conservative politicians. Indeed, it has long struck me that Stephen Harper's centralization of executive power, attributed by a hostile press to a controlling nature, was at least as much a consequence of necessity. But two years into the current parliament, it's fair to ask: where are all the Conservative heavy hitters?

I think the Conservatives have been the victims of their own success. In 2005 Tasha Kheiriddin and Adam Daifallah published a prescient book entitled Rescuing Canada's Right. In it, the authors argued that the revival of Conservative fortunes in Canada depended on the successful creation of a conservative intellectual counter-establishment, with active conservative participants in the news media, the academy, civil society, and so on. The book was (properly) lauded in the aftermath of Harper's 2006 general election victory, but I wonder whether many Conservatives haven't made the mistake of assuming that the 2006 election was the fulfillment of the task Kheiriddin and Daifallah laid out.

The truth is that Canadian conservatism has miles to go before it can begin even to think about resting on its laurels. The Harper government presents great opportunities for the development of a conservative counter-establishment, perhaps most importantly by serving as an example to young Canadians that conservatism is, and can remain, a mainstream ideological approach to politics. But the Bernier episode should remind us that the hard work remains ahead, not behind.

What's more, I think there's a growing risk that the Harper Tories' increasing populism stands to impede the emergence of a true counter-establishment. None can doubt the success of the Tim's-versus-Starbucks narrative of the 2006 election campaign. But the Tories run a great risk in adopting that sort of anti-intellectualism as a governing principle. I think it should be obvious to even the most casual observer that the Conservatives need to win both crowds if they hope to form a working majority in this country. Indeed, that ought to have been the lesson of the movement's wilderness years from 1993-2006. It would be a terrible shame if, having begun to see the first fruits of a more professional approach to politics, the Conservative party promptly squandered its gains by reverting to the worst instincts of the Reform years.

Bernier's fall is a blow to the Canadian conservative movement; here was a supremely promising MP, a committed and thoughtful conservative, telegenic and with a safe Quebec seat. Perhaps Foreign Affairs was too much responsibility too soon; perhaps he would never have been up to the job; perhaps he's simply the victim of a parliament without discernible purpose. I leave it to others to explain his failures. But his resignation should be a wake-up call to Canadian conservatives and a catalyst to renewed efforts to create a comprehensive counter-establishment dedicated to the spread of conservative principles. Such a counter-establishment will, in time, stock Conservative benches with competent and capable MPs ready to fill every cabinet portfolio. Until then, I fear, the fall of rising stars like Bernier will continue to plague Conservative governments.

Posted by David Mader at 10:45 PM | (1) | Back to Main

May 16, 2008

O'Malley on Child Soldiers

Maclean's' Kady O'Malley has been a particularly vocal critic of Canada's official approach to the Khadr case, and today she cited the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts in support of her argument.

I posted a comment to her blog post, but it appears not to have made it through, so I'll repeat my comment here: what does the Optional Protocol have to do with Khadr? The Protocol enjoins ratifying states from recruiting or deploying children for or in combat. But Canada didn't recruit or deploy Khadr; nor did the United States. If anyone has violated the Protocol, it's the Taliban, or whatever sect Khadr was fighting for when he allegedly killed the American soldier. (Though I have a sneaking suspicion they aren't signatories to the - uh - Optional Protocol.)

As I said at ITQ, if we're so determined to get our collective balls in a knot over Khadr, shouldn't we be expressing our anger towards those who actually recruited and deployed him, rather than at those who, had he been within their power, would have prevented him from engaging in combat?

So pace Ms O'Malley and Sen. Dallaire, I don't see what the Optional Protocol contributes to their argument that Khadr shouldn't stand trial for his actions. No, Khadr shouldn't have been in combat in the first place - but that's the fault of the Taliban or whomever, not the fault of Canada or the United States. And once he was in combat, nothing in the Optional Protocol says he can't be held accountable for his actions - taking into proper account, of course, the fact that he was a minor.

There's a lot of righteous anger about Khadr floating around the Canadian blogosphere; I'd very much like to see an articulated explanation of that anger.

Posted by David Mader at 03:52 PM | (8) | Back to Main

May 15, 2008

What's Wrong with Trying Child Soldiers?

Some time ago on his excellent blog Kelly Nestruck voiced his opposition to the trial of Omar Khadr for war crimes. In the comments to Kelly's post, I raised a semantic question about one of Kelly's points; I subsequently forgot all about it - until Sen. Dallaire's recent comments reminded me of the exchange. I see that Kelly responded to my comment and asked why I wasn't taking a position on the underlying merits of the Khadr case.

There are two short answers to Kelly's question: first, I don't feel well-enough informed about Khadr's case to take a position; and second, taking a position on the merits would require me to take a position on matters of American law, which I'm precluded from doing in my current job.

But I'm not precluded from taking a position on the more general issue raised by Kelly and Sen. Dallaire, namely whether child soldiers should be subject to trial for their combat actions. And my simple question to Kelly and others in the Dallaire camp is: why not?

The general argument against holding children liable for criminal activity is that children lack the mental capacity required to commit a crime. In traditional common law, crime was seen to have two main components: an act, and a culpable mental state. In other words, it wasn't enough to simply do a criminal act; you had to mean to do the act for liability to attach. Think of it this way: if you were chopping wood, and the ax flew out of your hands and killed your neighbor, you wouldn't be liable for his murder. But if you threw the ax at your neighbor and killed him, you would be - because in the latter instance you did the act while meaning to commit the crime.

The argument here is that children lack the mental capacity to commit crime - that because they are children, we cannot say that they truly meant to commit a crime when they performed the otherwise-criminal act. That seems to be the basis of the Dallaire position: child soldiers are children; children can't form the mental state necessary to commit crime; therefore child soldiers can't be liable for crimes.

But while Dallaire and company are correct that children are different when it comes to criminal law, they're wrong to suggest that children can never be criminally liable. Children are generally thought to lack mental capacity because they are simply too young to understand that their actions are criminal. But the development of mental capacity is a process, not an event; and even if it were an event, there's no reason to think that it would correspond directly to the child's eighteenth birthday. In other words, the closer a child gets to majority, the more likely it is that he or she will be able to comprehend the criminality of his or her act.

Many jurisdictions address this problem by applying a sliding scale of assumptions regarding the mental capacity of children. For instance, many jurisdictions hold children aged seven and under to be immune from criminal prosecution; impose a strong presumption against criminal liability for minors aged eight to fourteen, which can be rebutted by a showing that the individual defendant did in fact have the required mental state; and limit the punishment, but not the criminal liability, of children aged fifteen and older.

Of course the prosecution always bears the burden of proving that a defendant had the required mental state; this is as true for minors as it is for adults. And it follows that a defendant can always argue that he lacked the required mental state - because, for instance, he was brainwashed by his family and culture. Whether or not such an argument succeeds depends on the evaluation of the tendered evidence by the trier of fact in the case.

The point being, just because someone was a child when they committed a criminal act doesn't mean they can never have criminal liability. Sen. Dallaire frames his argument in legalistic language, so I put to him, and to Kelly, the question why this basic principle of criminal law should not apply as much to child soldiers as to other child criminals. A child criminal tried for war crimes should be treated differently than an adult tried for the same crimes, of course - given our presumptions regarding a child's mental capacity. But when a child is close to the age of majority, I don't see why that child shouldn't stand trial like any other child criminal, with the ability to refute the prosecution's argument that he had the mental state required to commit the crime charged.

I said I couldn't talk about matters of American law, and I won't; but there's another problem with Dallaire's argument that bears considering. Dallaire declares that the trial of a child soldier for war crimes is contrary to international law. But international law only has legal force in a jurisdiction if it has been adopted or ratified by that jurisdiction, either legislatively or judicially. I do not know, and make no claim regarding, whether or not the United States has adopted any international law prohibiting the trial of child soldiers for war crimes. I think it would be important to know. Because if the United States has not done so, then Sen. Dallaire's claim that Khadr's trial is "illegal" amounts to no more than Dallaire's belief that the United States should be bound by a code of laws it has not adopted.

And since we've entered the realm of asinine comparisons, I have to ask: doesn't that argument sound familiar?

Posted by David Mader at 02:04 PM | (3) | Back to Main

Corner Gas: Genius, or Best Program on Canadian Television?

I'd say both, but I'm currently unable to watch Canadian television. I am able to watch Corner Gas though, nightly, and I do - because it's genius.

Posted by David Mader at 12:15 AM | (2) | Back to Main

May 13, 2008

Speaking of Canadian Politics...

Keith Martin has an absolutely must-read op-ed in today's Post calling for a rethinking of our attitudes towards Parliament. From the piece:

First, MPs should be given more freedom to vote according to the interests of their constituents, rather than by party lines.... Second, dissension by an MP should not be seen by a party as an act of disloyalty or by the media as a failure of the party, or the party's leader.... Fifth, the executive power of the Prime Minister's Office over everything from MPs to the public service is greater in Canada than that possessed by any other Western leader. This could be changed by allowing MPs to select their leader from the ranks of their own which would force the prime minister to work more closely with his or her caucus.
Note especially Martin's call for the prime minister to be selected by MPs. Currently the selection of the PM is left, as a practical matter, to the whims of the party executives, since the PM is simply the internally-selected leader of the majority party in the Commons. Because leadership selection is a private party matter, implementing Martin's change would be relatively simple. It's unclear, though, whether Martin's proposal would have all MPs of all parties select the PM, or whether he merely means that the parties should select their leaders via a ballot of MPs (as is the practice of the British Conservative Party). The difference would arise in a minority Parliament, when the opposition parties might gather to select a prime minister of a party other than the one holding a plurality of seats.

In any case, these are all important ideas, and Martin is to be highly commended for trying to kick-start a rethinking of our approach to this most important of our democratic institutions.

Posted by David Mader at 10:54 AM | (0) | Back to Main

I Haven't Been Blogging Much, Have I?

But I've been reading. I've been reading John Scalzi's Old Man's War and Ghost Brigades, and I'm waiting on The Last Colony in the mail. The first two are highly recommended; they're less politico-philosophical than Heinlein, but they better realize the science part of the sci-fi genre, and to his credit Scalzi does successfully explore various non-political philosophical concepts without resorting, per Heinlein, to setting chapters quite literally in lecture halls.

I've also been reading a lot about British politics. Political nerds in the Anglosphere have been focused on the American presidential election. As MaderBlog readers know, or may have guessed, my current job precludes me from blogging about American political matters; but even if I could, there wouldn't be much for me to say that isn't being said, at greater volume, pretty much everywhere else. [Incidentally, the restraint on my American political blogging will continue at least through the summer of 2009, although I should be free to live-blog the results of the election in November, without partisan political comment.]

So American politics is out, and Canadian politics is, well, boring. It's not that nothing's happening; lots is happening, on a macro level. And I've stuck my fingers in the free speech debate (about which I'm writing something longer, actually), and in the related due process debate (which may be all in my head). But in terms of good old-fashioned politics, there isn't much to say.

But Britain; oh, Britain. Are you guys watching this? From the absolute implosion of Gordon Brown's Labour government to the rise of Boris Johnson as London Mayor to David Cameron's perplexing brand of third-way conservatism, something special is going on in the UK. Each of those topics deserves its own post, and I'll try to do that this week. But if you've been wondering "hey, remember MaderBlog? I used to read that sometimes. I wonder what happened," the answer is, I'm still here, and I'm still reading. And I do hope to be back, in force, soon.

Posted by David Mader at 10:19 AM | (1) | Back to Main


Hugo Chavez compares Angela Merkel to Hitler:

Mr Chávez described Mrs Merkel's conservative Christian Democratic Union party as “the same right wing that supported Hitler and fascism”. "Ms Chancellor, you can go to..." he said, before adding: "Because you are a lady, I won't say any more."
And what had Chancellor Merkel done to prompt this wise observation? She had the nerve to say:
"President Chávez does not speak for Latin America. Every country has its own voice, with which they pursue their own interests."
Cuba suffered more than thirty-two years under Fidel Castro; Zimbabwe still suffers in the twenty-first year of Robert Mugabe's presidency. Pray that Venezuela does not suffer under Chavez nearly that long.

Pray that Venezuela's neighbors don't either.

Posted by David Mader at 10:15 AM | (0) | Back to Main

May 08, 2008

Can You Blame Them, Though?

After all, the speed with which Harper has moved from a Two-Nation Canada to a One-Nation Canada is enought to give anyone whiplash.

Is Two-Nation Canadianism inconsistent with Harper's invocation of Quebec's founding as the founding of Canada? Not necessarily. One might suggest, for instance, that the Quebecois are and always have been a separate and distinct people, but that their history and actions have contributed, directly, to the identity of the Canadian nation of which they are a constituent part. Maybe that's what Harper's up to.

But it sure doesn't sound that way, and that's sure not how it's being interpreted in LBP. Instead, Harper's remarks - and those of the Governor General - are being seen as an appropriation of the historical fact of the founding of Quebec on behalf of all Canadians, not just those of pur laine. In other words, Harper is not simply saying "this instant in Quebecois history led, in time, to the emergence of Canada, and therefore we celebrate this Quebecois moment for its importance to us." Instead, he's saying "this is a moment in Canadian history, and we celebrate it as such; not as a precursor, but as a genesis; not as a mere contribution to our national formation, but as its crucible."

This, it seems to me, is the fundamental claim of One-Nation Canadianism: that we are all the inheritors of all that has come before to make our nation what it is today; that we are all the descendants of Cartier and Champlain as much as Cabot and Hudson; that we are all the descendants of both Wolfe and Montcalme; and that therefore Quebec's history is our history, not the history of one constituent part of us that has merely contributed, in a historical sense, to our present.

Maybe you can square the circle; maybe Two-Nations Canadianism is a secular national version of the Holy Trinity. The Prime Minister doesn't seem to be going out of his way to argue as much, though; and the excitable Quebecois nationalists whom Wells highlights certainly don't seem to be finding much solace in the possibility.

So while I certainly celebrate the Prime Minister's newfound embrace of One Nation Canadianism, I repeat my first point: can you blame anyone for being surprised?

Posted by David Mader at 02:38 PM | (0) | Back to Main

May 06, 2008


In the flood of op/eds and articles marking the sixtieth anniversary of the founding of the State of Israel, it was inevitable that some mainstream publication would publish something along the lines of this unapologetic blood libel by Jeet Heer [see below for clarification], although I'm a bit surprised it appears in the pages of the National Post. (Perhaps they've been so caught up in the recent free speech debate that they've forgotten that when the state abstains from policing private speech, it falls to us to express societal attitudes regarding what is and is not appropriate political discourse.) [EDIT: Kudos to the Post for doing just that, giving Heer's column credit where deserved but mincing no words in pointing out its flaws.]

In any case, if you need an antidote to Heer's tired and fatuous claptrap, I recommend Efraim Karsh's rather exhaustive, and rather more thoughtful, treatment of precisely the same issue in Commentary.

It is beyond debate that the entire existence of the Israeli state, from its creation down to the present, has been attended by unending tragedy. One of the greatest tragedies is the persistent unwillingness of the country's critics to separate the state's many true failings from the hysterical fantasies and conspiracy theories that essentially define modern anti-Zionism.

FURTHER THOUGHTS (18:41 EDT): Lest my post be seen as somewhat intemperate, let me expand. It is a matter of settled historical fact, insofar as such a thing ever exists, that during the period of Israeli independence - say roughly 1947-49 - many Arabs living in Palestine fled their homes while many more were killed by Jewish paramilitary groups. The debate, such as it is, is between (1) those like Heer who claim that (a) the Jewish leadership in Palestine desired, organized, and executed a deliberate program of ethnic cleansing, and (b) the subsequent killings and flight of Arabs from those parts of Palestine that later became Israel were a direct consequence of this Jewish program of ethnic cleansing; and (2) those like Karsh who claim that (a) no such program of ethnic cleansing ever existed, and (b) while some Arab deaths and flights were the result of Jewish paramilitary activity, many Arabs were killed by or fled at the explicit instruction of Arab leadership in Palestine in anticipation of the impending attack on Israel by its Arab neighbors.

Importantly, few, if any, serious Zionist historians deny the acts of a not-inconsiderable number of Jewish paramilitary groups that did in fact engage in the deliberate targeting of Arab civilians for the express purpose of removing parts of the Arab population from parts of British Mandatory Palestine. The disagreement, again, is over whether there was a movement-wide, organized program of removal of Arabs from parts of British Mandatory Palestine.

The historical record is there to be debated; I submit that at least as between Heer and Karsh, Karsh has the better argument. But recall the simple fact that in 1947, the United Nations voted to partition British Mandatory Palestine into two states, one Jewish, and one Arab; and recall that the Jewish political leadership in Palestine approved the partition plan, while the Arab political leadership in Palestine rejected the partition plan. Recall further that in response to the partition plan, and Jewish approval of it, the Jewish leadership subsequently declared the independence of the State of Israel - the anniversary we mark this week - on only that land apportioned to the Jewish state by the United Nations, while Arab leadership, in coordination with the governments of the neighboring Arab states, declared war on the fledgling Jewish state.

Recall these oft-overlooked facts and consider again which set of acts seems more consistent with a deliberate program of ethnic cleansing.

A PARTIAL RETRACTION: As MaderBlog readers would, I hope, agree, I generally strive for clarity and intellectual honesty in my writings - especially when I write on topics about which I have strong feeling. I've been thinking quite a bit about my characterization of Heer's piece as a blood libel, and on reflection I think I must retract that characterization.

A blood libel, classically defined, involves a false accusation of Jewish violence against non-Jews for supposed Jewish ends, where that accusation is made maliciously or with deliberate indifference to its truth or falsity. In this case I have no reason to believe that Heer has made his arguments regarding supposed Jewish ethnic cleansing of Palestinian Arabs either maliciously or with any deliberate indifference to the truth or falsity of those allegations. Accordingly, while I believe that the underlying accusation could easily constitute a blood libel - since it is an accusation of Jewish violence against non-Jews for supposed Jewish ends, which accusation is, in my opinion, completely unsupported by common sense or the historical record - I do not think it is fair to accuse Heer of perpetrating a blood libel in this instance.

Posted by David Mader at 06:11 PM | (0) | Back to Main