What does Florida’s Stand Your Ground Law have to do with Canada? How do you administer law when your country’s judges and lawyers are all gone? And what major international legal milestone was achieved last December? We explore these questions with Queen’s Professor Noah Weisbord.

Your latest paper is called “Who’s Afraid of the Lucky Moose.” Tell us about it.

The Lucky Moose was a Toronto food mart that was robbed by a serial shoplifter named Anthony Bennett in 2009. Bennett bicycled away with a tray of flowers from the store then came back an hour later, possibly for more. 

Upon his return, store owner David Chen and two employees subdued him, tied him up, and threw him in the back of a delivery van, claiming they had made a citizen's arrest. Bennett pled guilty to shoplifting, but pressed charges against Chen for assault, forcible confinement, kidnapping and possession of a concealed weapon – a boxcutter.

The problem for Chen was that, at the time, a citizen's arrest must occur when the crime is ongoing or immediately after. Since Bennett had gone away for an hour, it didn't seem to fit. Nevertheless, at trial, the judge interpreted citizen’s arrest permissively – as if Bennett’s initial crime was ongoing – and Chen was acquitted.

This incident became front page news. Many South Asian and East Asian shopkeepers in the Greater Toronto Area were concerned about property crime and slow police responses. Chen was labelled “The Vigilante Grocer.” The Conservatives started targeting small business owners sympathetic to Chen with messaging in the lead up to the upcoming federal election, and David Chen became a recognizable face in these efforts.

Due in part to this strategy, the Conservatives won a majority government in 2011 and started to immediately consider expanding Canada’s citizen's arrest law to make it more permissive. But they didn’t just limit their lawmaking efforts to citizen’s arrest – they also contemplated expanding defence of person and of property. Parliament passed new citizen’s arrest, defence of person, and defence of property laws in 2012 with very little public discussion or scrutiny. What I argue in the paper, forthcoming in the next issue of the McGill Law Journal, is that these new laws are, in important respects, broader and more permissive than Florida's notorious Stand Your Ground law, and that they are potentially dangerous.

What is the issue with Florida’s self-defense law?

Florida’s law was highly controversial because, once it was enacted, people no longer had to retreat before using deadly force and claiming self-defense, a break from traditional common law principles. 

The Florida law resulted in all sorts of unexpected acquittals after homicides, like the acquittal of George Zimmerman for the killing of Treyvon Martin. Stand Your Ground also resulted in lesser known acquittals and decisions not to press charges, like in the killing of Reynaldo Muñoz by 14-year old Jack Davis. Davis shot Muñoz, who he suspected was stealing his Wave Runner. Muñoz did not acknowledge Davis’s family’s panicked warnings. It turned out that Muñoz was deaf. Under Florida’s “Stand Your Ground” law, Davis claimed self-defence and didn’t face criminal charges.

After Florida expanded its self-defence law in 2005, justifiable homicides nearly tripled, seventy percent of people who invoked Stand Your Ground went free, and killers were more likely to prevail if the victim was black. 

I’m concerned that Canada’s expanded self-defence law could have perverse results as well, of special significance to visible minorities and indigenous people.

That's the link with your recent chat on the Khill and Stanley cases?

Exactly. In both of these Canadian cases, the shooters confronted and killed Indigenous men who they believed were stealing their property. Gerald Stanley’s successful accident defence was predicated on defence of property and self-defence. Peter Khill invoked Canada’s Lucky Moose expansion to win a complete acquittal after he shot and killed Jon Styres, an unarmed Indigenous man who Khill suspected was stealing his truck from his driveway. Khill testified that, as a trained reservist, he reacted instinctively to “neutralize a threat” rather than calling the police from inside his Hamilton-area home. The jury found the killing “reasonable in the circumstances.”

So, my paper traces the evolution of the U.S.’s expansive Stand Your Ground laws in parallel with the Canadian evolution of “Lucky Moose.” It's a warning. We think we're immune from what’s going on in the States, but I'm not sure we are. Permissive “do-it-yourself” security is potentially very dangerous in Canada as well.

What interests you in particular about conflict?

I'm interested in how law can mitigate violence, how it can sometimes exacerbate violence – like the Stand Your Ground cases – and how it reflects society's violence in various ways. I am also interested in the intergroup dimensions of modern social unrest and how histories of intergroup conflict – slavery, colonialism, terrorism – relate to violent crime.

My family are progressives who have been attuned to the political violence of various eras from the Spanish Civil War to World War II to the Vietnam era. I came of age during the ethnic conflicts of the 1990s, and that’s when I started trying to understand what leads people to violence.

Your career has (so far) basically had three major projects. Tell us about them.

Intergroup conflict and criminal law in Canada is the most recent one. The first one was about justice and healing after genocide in Rwanda. 

As a law student, I was also doing a Master’s of Social Work degree. Through one of my professors, I heard about a process underway in Rwanda to bring healing while also administering justice to the over 120,000 people accused of genocide who were being held in overcrowded, substandard prisons around the country.

The judicial system was eviscerated by the genocide. There were hardly any lawyers left, and the rebels who took control of the country knew there was a risk of continued genocide if the situation was not handled well. 

What Rwanda’s leaders chose to do was to blend a 14th-century Rwandan restorative justice practice called gacaca (pronounced “ga-cha-cha”), with elements of the South African Truth and Reconciliation Commission and the post-World War II Nuremberg trials. 

Communities across Rwanda met weekly, sitting on grassy hills, while prisoners were brought before them in their pink jumpsuits. There were no lawyers. There were no real judges. There were just lay judges who were selected because they weren't involved in the genocide, and because they were seen to have integrity. The group would rehash what happened in the genocide – whether this prisoner had killed women at a roadblock, for example, or whether it was someone else or whether he had tried to stop it.

I traveled to Rwanda to observe the process. I went around on a motorcycle with my Rwandan friend Samuel, and we would visit the different communities. He would translate for me and we would watch the gacaca trials and interview people afterward. We learnt about how people saw justice in Rwanda how people understood healing – individual, interpersonal, and intergroup healing.

So that's the first one. What’s the second one? 

A law professor at Harvard named Martha Minow who had written a very insightful book called Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence took an interest in my research on gacaca. Minow’s book catalyzed a whole movement in transitional justice about how societies face history and contend with mass violence.

After I finished my law and social work studies at McGill, I reached out to Martha Minow. We discussed my research in Rwanda and she became the supervisor of my Master of Laws thesis at Harvard. When I switched into the doctoral program, she remained my supervisor. Project number two was about the century-long effort to hold political and military leaders criminally accountable for aggressive war. 

My gacaca project evolved into the crime of aggression project when I was a law clerk to the Chief Prosecutor at the International Criminal Court (ICC) in The Hague. The court was established to try political and military leaders for genocide, crimes against humanity, and war crimes. There was a fourth crime that the ICC was supposed to be able to try – the crime of aggression. The Nazis had been tried for aggressive war following the invasion of Czechoslovakia, Poland and other countries during World War II. The trial of the Nazis for what was then known as “the crime against peace” was intended by the Allied victors to be a precedent binding the leaders of all states. 

But the Cold War prevented agreement on a definition of the crime and blocked the creation of an international court with jurisdiction to try leaders. Lawfare – the continuation of warfare by legal means – was endemic and the superpowers could not agree on a crime or an impartial court to try aggressors.

Was there somebody really pushing for aggression to be included as a prosecutable crime?

Yes! I met Benjamin Ferencz at the ICC in 2004. Ferencz was one of the Nuremberg prosecutors after World War II and he was visiting my boss, ICC Prosecutor Luis Moreno Ocampo. Ferencz is yelling. He's furious. He said the US attacked Iraq in spite of the Nuremberg legacy and then they lied about it, claiming it was based on weapons of mass destruction which it turns out were non-existent.

Ferencz saw the need to urgently get aggression defined as a prosecutable crime. I was brought onto the aggression working group as a note taker at first. Over time I became an independent expert. For years, diplomatic delegations met in Princeton, New York City, and The Hague to negotiate a definition of the crime of aggression. Then, in 2009, the working group managed to complete a consensus definition of aggression and in 2010 states added aggression – by consensus – to the list of core international crimes alongside genocide, crimes against humanity, and war crimes. For the first time since Nuremberg, there was an international court with a mandate to prosecute individuals for illegal war.

One of the compromises required to achieve consensus was that the crime could not be prosecuted for a minimum of seven years, to give states time to adjust their policies to the new legal reality. In December 2017, states met at UN headquarters and finally activated the crime. When the jurisdictional conditions are right, any world leader can now be investigated, arrested, and prosecuted for an illegal war.

National and regional courts can also prosecute aggressors. Ukraine has made aggression part of their domestic criminal law and they’ve prosecuted Russian pilots for the crime of aggression. Russia also has the crime of aggression in their domestic criminal code. This is a potential game changer in international diplomacy. It could also be very dangerous as well if politicized.

My new book, The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats, coming out in June with Princeton University Press, is about the past and future of the crime of aggression, the place of law in a rapidly changing world. The political situation is changing, the technological situation is changing…and now, rather than regulating states, for the first time since the end of World War II leaders can be prosecuted individually and sent to prison for illegal wars. 

How did you end up teaching at Queen’s?

My first academic job was at Duke Law School and then I taught for a number of years at Florida International University (FIU) College of Law, a law school in Miami specialized in international law. The dean of the College of Law, Alexander Acosta, became Donald Trump’s current Labour Secretary. In early 2017, I decided to come home to Canada as the political situation deteriorated in the States.

I was hired for a visiting year at Queen’s, teaching Criminal Law and Evidence, and married my long-time partner, Alana Klein – a criminal law prof at McGill. We celebrated mightily when I was offered a tenured position. It was a festive homecoming.

It must have been tough to be in Florida given your position on the use of force?

Some faculty members in Florida warned me against writing this book pre-tenure. Others were quite supportive – it was a divided faculty. I started writing the book in 2014 and left FIU in 2017 to move home to Canada. Political changes in the U.S. and elsewhere made the book especially timely.

Do you ever find yourself kind of slipping into that conflict mediation mentality at home? Are you the mediator, the facilitator, the collaborator in your circle of friends?

Because of childhood experiences, I'm hyper-vigilant to interpersonal and intergroup dynamics. Perhaps this explains why the themes of justice and healing have permeated my work. I’ve got a social work perspective on conflict, looking at people and systems and patterns before blame.

You mentioned your parents being a part of the “flower child” generation. Was your perspective towards peace influenced by them?

I learned that lesson even more so from the grandparents. My grandparents were Canadian communists – progressives, really – agitating to get Canada involved against the fascists. They were critical of social inequality and backed Canada’s labour movements. War was gathering, people were dallying, inequality was increasing, and they took a stand.

Given the recent events with North Korea, continued unrest in the Middle East, the flare up between India and Pakistan…Are we getting further and further away from global peace?

A theme that runs through my work is “climates of fear.” In a climate of fear, neighbours and nations don’t trust each other. They’re afraid of an imminent attack. In response, they arm up. That makes the other party arm up too. They’re preparing to preempt each other’s preemptions. In a way it’s Zeno’s paradox, getting closer and closer to a nuclear disaster. In climates of fear aggression and self-defence can become indistinguishable. 

That’s what I’m concerned about in the U.S.-North Korea negotiations and with Canada’s new self-defence laws. I believe that the interactions between Donald Trump and Kim Jong-un have a possibility of diffusing the situation, but they also may exacerbate the situation, since it is two reactive, authoritarian-minded leaders interacting directly with each other. Donald Trump and Kim Jong-un have accumulated power and can launch attacks with little oversight. If something goes wrong in these meetings, there can be a very sudden escalation.

Same with India and Pakistan, though there seem to be more established patterns of interaction. Recently, alarmingly, Pakistan shot down Indian war planes that had crossed into their territory…now it looks like it’s defusing. But in climates of fear where weak leaders struggling to consolidate power are appealing to warmongering bases, history warns that it can rapidly degenerate into armed conflict.

So what’s next for Noah Weisbord?

I have a new project in mind, which I’ve started researching, about wartime criminal justice and the transformation of Canada. It connects in some ways to the emergency powers discussion going on in the U.S. now.

With practically every war, Canada has modified its criminal justice system in subtle and less subtle ways. Sometimes those changes are dialed back after the war or emergency is over. At other times, those changes remained in place. The aim of this project is to discover the residual effects of Canada’s wars on peacetime criminal justice. My hypothesis is that Canadian criminal justice has been shaped in important ways by major armed conflicts, from the 1885 North-West Rebellion, through World Wars I and II, the Cold War, the Drug Wars in Central and South America, 1990s peacekeeping, and the War on Terror. 

There are implications of this research for Canada’s foreign policy, Canada’s criminal justice policy, and Canadian citizens weighing whether to support the use of Canadian armed force abroad.