JAG Deploys at the Law School

Photo caption: Professor Joanna Harrington (left) poses with Brigadier-General Ken Watkin.

By Paul Chiswell (3L)
 
On November 17, 2009 students at the law faculty were treated to a lecture by visiting speaker Brigadier-General Ken Watkin, Judge Advocate General (JAG) of the Canadian Forces. The soft-spoken Royal Military College and Queen’s Law graduate gave an engaging talk which was part briefing, part lecture, and part recruitment campaign.

The briefing included a broad description of the Canadian military justice system in which the JAG essentially serves as a military attorney general, supervising legal officers stationed across Canada and on operations around the world. The system also includes independent prosecutors, defence counsel, and military judges. The lecture portion involved a refreshingly in-depth discussion of the law applicable in the military context, running the gambit from the Charter, treaties, landmark SCC and international cases, the principles of proportionality and collateral damage, and the unique conflict of laws problems facing military lawyers (affectionately called “lawfare”).

Although recruitment efforts were not overt, one would find it hard to blame any student who might have been convinced to enlist as the JAG touted his branch as an “international law firm” with an “aggressive” post graduate program and the opportunity to work abroad. He also shared a story of showing up to work one morning to find the Stanley Cup on his desk.

Following the lecture, Watkin answered a few questions.

Q: Which assignment was your favourite? Why?
A: My most professionally rewarding assignment was representing Gen. Romeo Dallaire post Rwanda; I did that for nearly 10 years. The man, the experience, it was at a time in the mid-90s when the whole question of accountability by the world community writ large, and the genocide were at the fore. It gave me a different perspective on command responsibility. We as lawyers think of command responsibility in a negative way in terms of holding people accountable. He’s a man who saw command responsibility from a different perspective, morally and ethically.

Q: What is the difference between military legal work and working as a lawyer for the Department of Justice?
A: There are a lot of similarities. In any government service there are those broader questions of being a government lawyer and giving advice within a broader policy environment. The difference we have is our operating in the field… and the lawyers we send out on operations get involved in a broader range of topics that aren’t the normal practice of law, but still require the same skill set of a lawyer.

Q: Why did you join the Canadian Forces and why did you join as a lawyer?
A: I joined at 17. I grew up in Kingston, Ontario near the Royal Military College. My father was in the Royal Air Force and came to Canada during WWII. My grandfather was in the U.K. army in WWI so there was always a military connection. All of my uncles served in WII so it was a common discussion around the table. I actually got out of the military and went to law school on my own but quickly came to the conclusion that private practice wasn’t for me, maybe because I had been in the military before and had this sense of broader public service… I missed the military.

Q: What courses in law school would you recommend to students interested in becoming legal officers?
A: Criminal law, international criminal law, a human rights law course… more in the sense of an international human rights law course, and there should be more law in armed conflict taught in law school.

Q: What was your experience advising the government on September 11th as the Deputy JAG for Operations?
A: The issues are obvious, what was the nature of the threat? It’s clear what the government was struggling with then: is this an armed attack on North America? There was a concern over the Canadian airspace but all the attacks were happening in the U.S. There were lots of issues surrounding grounding all of the planes which became a big focus.

Q: From your experience as legal counsel to Boards of Inquiry arising from the genocide in Rwanda, what are the legal lessons learned from Canada’s involvement?
A: From Rwanda and from other things like Bosnia, the Canadian government created the Responsibility to Protect. The question is how much of the Responsibility Report deals with policy versus law. One of the interesting things from the legal perspective is the criteria that is used actually mirror the old just war criteria in terms of deciding when to intervene or act. So in many ways the circle has returned in terms of those challenges. For the international community, the question is not what the law requires or doesn’t require, but what is the appropriate response for governments when they are confronted with that? The other lesson learned is the degree to which someone like Romeo Dallaire could take to heart his responsibilities and it very much became part of his view of himself as a commander – his mission wasn’t done until he participated in the accountability process. He testified twice: in 1998 on behalf of the defence in the Jean Paul Akayesu case and he testified later in 2004 on behalf of the prosecution.