Notes

• Author: Craig Forcese
• Pages: 265-358

265

Notes

epigraph

1 Rear Admiral Andrew Drew, A Narrative of the Capture and Destruction of the

Steamer ‘Caroline’ and Her Descent over the Falls of Niagara (London: Spottis-

woode & Co, 1864).

Acknowledgements

1 The Queen’s Advocate, Attorney and Solicitor-General to Viscount Palmerston

(21 February 1838), Doc 29, in Kenneth Bourne, ed, British Documents on Foreign

Af‌fairs: Reports and Papers from the Foreign Oce Conf‌idential Print, Pt 1, Ser-

ies C, North America 1837–1914, vol 1 (Frederick, MD: University Publications

of America, 1986) at 27 & 28. Also reproduced in Arnold (Lord) McNair, Inter-

national Law Opinions (Cambridge: Cambridge University Press, 1956) at 225.

Preface

1 William Faulkner, Requiem for a Nun (New York: Vintage International, 2011)

at 69.

Chapter 1: Introduction

1 Counter-terrorism question — 9656 (8 September 2015), online: www.

parliament.uk/written-questions-answers-statements/written-question/

commons/2015-09-08/9656.

266

notes For pages 1–3

2 ISIS is the acronym for “Islamic State in Iraq and Syria” while ISIL stands for

“Islamic State of Iraq and the Levant.”

3 UK Intelligence and Security Committee (ISC), UK Lethal Drone Strikes in Syria

Report (April 2017) at 6–10, online: https://b1cba9b3-a-5e6631fd-s-sites.goog-

legroups.com/ a/independent.gov.uk/isc/f‌iles/20170426_UK_Lethal_Drone_

Strikes_in_Syria_Report.pdf.

4 For a discussion of the relevant facts, see Letter from the Permanent Repre-

sentative of the United Kingdom of Great Britain and Northern Ireland to the

United Nations (7 September 2015), addressed to the President of the Secur-

ity Council, S/2015/688. See also UK Parliament, Joint Committee on Human

Rights, The Government’s Policy on the Use of Drones for Targeted Killing, 2d

Report of Session 2015–16, HL Paper 141; HC 574 (10 May 2016), online: www.

publications.parliament.uk/pa/jt201516/jtselect/jtrights/574/574.pdf. Soon

after, two other Britons were killed in US airstrikes. In one of these instances,

the prime minister announced “the UK intelligence and security Agencies had

been working with US colleagues to track down” the target. UK Intelligence and

Security Committee of Parliament, Annual Report 2015–2016 at 7, online: http://

isc.independent.gov.uk/f‌iles/2015-2016_ISC_AR.pdf.

5 UK, HC, Parliamentary Debates, vol 599, col 25 (7 September 2015).

6 Letter (7 September 2015), above note 4.

7 Joint Committee on Human Rights, above note 4; ISC, above note 3 at 6–10.

8 See Joint Committee on Human Rights, above note 4 at 45 and 97. See also

Counter-terrorism question, above note 1.

9 For the “grammar” analogy, see Martti Koskenniemi, From Apology to Utopia:

The Structure of International Argument (Cambridge: Cambridge University

Press, 2005) at 563 et seq. For similar points in relation to war, see Scott

Andrew Keefer, “‘An Obstacle, Though Not a Barrier’: The Role of International

Law in Security Planning during the Pax Britannica” (2013) 35:5 International

History Review 1031 at 1032.

10 See Max Roser, “War and Peace” (2016), online: Our World in Data https://

ourworldindata.org/war-and-peace. See also Steven Pinker, The Better Angels

of Our Nature (New York: Penguin Books, 2012). There is occasional contro-

versy over the data and how they should be interpreted. See John Gray, “Ste-

ven Pinker Is Wrong about Violence and War” The Guardian (13 March 2015),

online: www.theguardian.com/books/2015/mar/13/john-gray-steven-pinker-

wrong-violence-war-declining; Kristian Skrede Gleditsch & Steve Pickering,

“Wars Are Becoming Less Frequent: A Response to Harrison and Wolf” (2014)

67:1 Economic History Review 214. See also Oona Hathaway & Scott Shap-

iro, The Internationalists: How a Radical Plan to Outlaw War Remade the World

(Toronto: Simon & Schuster, 2017) at 334.

11 See, for example, Eric Posner, “Have the Use of Force Rules Reduced the Fre-

quency of War?” (5 March 2014), online: Eric Posner http://ericposner.com/

have-the-use-of-force-rules-reduced-the-frequency-of-war. Posner (along

with others) is generally skeptical of the role international law plays in shaping

267

notes For pages 3–10

state behaviour. See Jack Goldsmith & Eric Posner, The Limits of International

Law (Oxford: Oxford University Press, 2009).

12 See Eliot Cohen, The Big Stick: The Limits of Soft Power and the Necessity of

Military Force (New York: Basic Books, 2016).

13 There is a considerable literature on this issue. For an overview on the “pol-

itics of justif‌ication” and studies detailing the impact of international law and

political decision-making in the context of use of force, see Ryan Goodman,

“Humanitarian Intervention and Pretexts for War” (2006) 100 American Jour-

nal of International Law 107 at 114 and 123; Charlotte Peevers, The Politics of

Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford:

Oxford University Press, 2014). For a more detailed theory of international

law and international decision- making, see Jutta Brunnée & Stephen Toope,

Legitimacy and Legality in International Law (Cambridge: Cambridge Univer-

sity Press, 2010). See also Harold Koh, “Why Do Nations Obey International

Law?” (1997) 106 Yale Law Journal 2599; Oona Hathaway & Scott Shapiro,

“Outcasting: Enforcement in Domestic and International Law” (2011) 121 Yale

Law Journal 252.

14 On this last point, the International Criminal Court will soon have jurisdiction

over the crime of “aggression,” at least in relation to those states who par-

ticipate fully in the regime. More generally, see Peevers, above note 13, for a

discussion of the political calculus associated with international law and use

of force.

15 Keefer, above note 9 at 1037–38. The Earl of Clarendon’s statement was made

about the ef‌fect of including a mediation provision in an 1856 peace treaty.

16 See, most recently, Hathaway & Shapiro, above note 10 at xxi.

Part I: The Destruction of the

Caroline

1 Poem which appeared originally in Coburg Star (7 February 1838), reproduced

in Robina Lizars & Kathleen MacFarlane Lizars, Humours of ’37: Grave, Gay

and Grim: Rebellion Times in the Canadas (Toronto: William Briggs, 1897) at 9.

Chapter 2: The Insurgency

1 Robina Lizars & Kathleen MacFarlane Lizars, Humours of ’37: Grave, Gay and

Grim: Rebellion Times in the Canadas (Toronto: William Briggs, 1897) at 203.

2 Alasdair Roberts, America’s First Great Depression (Ithaca: Cornell University

Press, 2012) at 86.

3 Herbert Bell, Lord Palmerston (London: Longman, Green, 1966) vol 1 at 244.

4 Except as otherwise noted, the summary of the situation in the Canadas and

the 1837 rebellions is drawn from Edwin Guillet, The Lives and Times of the

Patriots (Toronto: Ontario Publishing, 1963); Frederick H Armstrong & Ronald

J Stagg, “Mackenzie, William Lyon” in Dictionary of Canadian Biography, Vol IX

(1861–1870), online: www.biographi.ca/en/bio/mackenzie_william_lyon_9E.