Episode 002: Heidi Matthews

Law

Sep 23

Dr. Heidi Matthews is an Assistant Professor at Osgoode Hall Law School, at York University. She is a passionate teacher and an outspoken social critic, a legal mind to be reckoned with on subjects from international criminal justice to sexual politics. You can follow her on Twitter @Heidi__Matthews.

Transcript

Cameron Graham: My guest today is the inimitable Heidi Matthews, Assistant Professor of Law at Osgoode Hall Law School. Dr. Matthews is the force behind to take-no-prisoners Twitter account and the host of Heidi Matthews on Demand, which is, in her own words, "a barely legal podcast about sex, culture, politics, and law." I spoke with her at York University in June. I hope you enjoy our conversation.… Heidi, welcome to the show!

Heidi Matthews: [laughs] Thank you. It's a lot of fun to be here, Cameron, finally. This is a great little studio! There's so much to learn about our resources, on a daily basis.

Cameron: I know, it’s amazing. Yeah, I had no idea this studio was tucked away here, but I'm very grateful to have it made available to us for this podcast. I've been trying to get you on the show for a months, going way back to way back before your own podcast launched. I was seeking funding for this and I had gone about the kind of traditional academic route of seeking academic funding from the university, from SSHRC, and basically getting official sanction. Your podcast, just recorded episodes and got it out there, and I don't think you kind of person who asks for permission first, you just go and do it.

Heidi: Am I allowed to say it's easier to apologize after the fact, or whatever the saying is? No, I think you're definitely going about it the right way in terms of professional quality and so congrats on that.

Cameron: Thank you, thank you. You're having fun recording your podcast. You have your husband, David, as a producer. David's actually here today. David, give a shout out!

David Slavick: Hey everybody, I’m so happy to be here. York University is the best university in Canada as far as I’m concerned.

[laughter]

Cameron: Thanks for the plug. I don't know if the microphones picked up David but he said that York is the best university in Canada. I certainly think it is a fascinating place to work. It is so diverse. We have so many interesting resources and such the fantastic array of scholars, topics that they’re researching, and a vast student body that is full of bright minds. But back to your podcast. Tell me about you're, like what is the purpose of the podcast for you, Heidi Matthews on Demand .

Heidi: Great question. About a year and a half to two years ago, I suppose, I had started getting a lot of requests to do podcasts just as an interviewee, I suppose a bit like I am here today, and that kind of spiraled at the same time that I started writing, or translating, I suppose, my "academic" official work into more publicly accessible formats, right? So you know, writing for places like the Toronto Sun when no one else would publish me, or you know, doing pieces for Aeon which is a great online magazine. So it kind of went along with doing that kind of public-facing writing, and people started messaging me saying, "You know, you're really fun, you should do your own podcast." And I thought, “Och, whatever.” And then David, who is now my husband -- we met when he asked me to be on a show that he was producing called the Michael Brooks Show, which he still produces -- and so ,yeah the whole thing has become a bit of a lifestyle. And it led not only to my own show, but to my marriage, and David works with me on the show. And it's been a fun joint effort. So it really crosses I suppose all the typical boundaries between the personal, the professional and the political, et cetera. So it's kind of a way of life right now, in a sense. I know it sounds silly.

Cameron: I remember reading somebody on Twitter who said that whenever they run into somebody that they haven't seen in a while, the first thing he says is, "I'm really enjoying your podcast!" And he says, "I haven't been wrong yet." Everybody's starting a podcast.

Heidi: And I mean it's mostly men. You know that big joke, that every white guy under thirty five or something has their own podcast. And so I think having a female voice out there on a show, and also that is validly politically on the left, as well, is important. So there is that, too.

Cameron: It's interesting, you know, the Internet, podcasting, all those kinds of different media, are supposed to be universally accessible, right, everybody gets an opportunity to purchase space to generate their content, but the opportunity to do that -- and the opportunity to do that in a way that's not immediately silenced and trolled -- is quite different for women compared to men.

Heidi: Absolutely.

Cameron: So with that, maybe you can explain the origin of the title of your podcast, "Heidi Matthews on Demand."

Heidi: It was funny, I was toying with the idea of just calling it "Barely Legal." David helpfully intervened on that one. He didn't think it would work well with the Google machine, and the way that people have their preferences set up. I think, like most things, he was right on that one. And so I think David himself actually came up with "Heidi Matthews on Demand.” So you see I do very little myself, it's mostly him! So it sounded a little racy, or flirty, or something like that, but actually it was also meant to reflect the sense in which my public-facing engagement had received a kind of response that was both often hostile -- but even where it wasn't hostile, it was very demanding, right? So there's this idea that if you are a professional or an academic online, and especially somebody with less than a mainstream methodology, or even a set of political views, and also then you're a woman, and maybe a younger academic, for sure. I mean, I'm an assistant professor, not tenured. So I get responses of, "Answer me now!" So I really did start to feel like I was on demand, when I was inside the classroom and when I was outside the classroom. And so we thought it would be a funny way of saying, "Yeah! Here I am on demand!"

Cameron: Tell me about the bot.

Heidi: Oh my god! I know this is terrible, I sound like I'm talking too much about my husband. This is a nightmare. [laughter] But we are newly married, so there's that. So the bot. Again, this was wholly David's invention and he describes it as a flirtation device, or more than that, even, maybe a courting mechanism. He says it was the best valentine he ever wrote. And so it was designed -- it's very funny, I think it's hysterical -- designed it as a way of dealing with people who were t0o demanding and/or too borderline abusive, for lack of a better word, online.

Cameron: I don't think "borderline" needs to enter into it. I mean, I've seen some of the comments that get posted on your Twitter feed, and it's just downright abusive sometimes.

Heidi: Yeah, fair enough, I may as well just come out and say that. Yeah, so when that happens, we will "bot" people. Usually it's men. And it's quite fun. And actually, at the end of every class I teach at Osgoode, I will ask the students if they will -- and of course it's wholly voluntary -- if they want to participate, they can write a little 280-character observation or take away from the class. So it's not meant to be a review as such, but just kind of a take-away opportunity. And they can write whatever they want and I won't censor it and I won't know who they are, so it's anonymous. I'll fold up little piece of paper and put it in a bucket or whatever, and then I'll post them all online. And I've had more than once, "The best thing about about the class is the bot!" Even though it's not formally, of course, part of the class. But the students love it, too.

Cameron: So who is the audience for your podcast. You said it's public-facing, so this is not a podcast for other academics to listen to. This is a public thing.

Heidi: I think it's both. We have nine released episodes right now, a whole bunch of logged ones. The struggle to get actual financial and infrastructural support for a project like this is certainly real, especially when you have a full-time job that isn't about podcasting as such. But it's seeking to find a way to incorporate that kind of dissemination and impact, right. So we're definitely still working on, as I know that you are. And so the nine episodes have addressed all sorts of different audiences and topics, and ideally a generally educated, generally informed, generally curious audience will get something out of the show. Sometimes it's about some really minute legal point and oftentimes it will be with a legal academic, because that's circles that I run in, but not only that, you know? I'm talking to a journalist tomorrow. Our last episode was with Andray Domise who writes for Macleans and who is now a good friend of ours. A good friend of mine that we interviewed anonymously, who is not an economic at all, but he's very into salsa and tango dancing, we talked to him about the relationship of consent in a me-too era, in the dance space. So quite wide ranging in terms of people and also projected audience

Cameron: So you're basically, as I see it, able to intervene in public discourse around these hot topics, around consent or whatever, that provides a little bit of insight on the legal framework is. People often have wild assumptions for what the law is.

Heidi: It's astounding to me how many armchair lawyers are out there, actually. I suppose they exist in other areas. I mean, David and I were talking about that yesterday: I had a particularly difficult ... you know … it's hard. People think that being online is easy, simply entertaining, and it's not. And so yesterday was a bit of a struggle. And we realize, I think, that is there something about the law in particular, that people feel not only entitled but sometimes compelled to comment in public spaces on issues that are really complex, really difficult, but also really emotionally fraught for the people involved, and for society at large, and me-too is one of them. We may talk later about the recent debate in Canada over Indigenous genocide. That's another one. Yeah, and so there is a real desire ... you know, people think they know what “consent” means. So I should be really clear here: the way that "the law" thinks about difficult moral, ethical, and political questions is not "right" in any sense, right? It's not an authoritative source in the sense of, you know, it has “an answer.” But it's a space where people have thought very carefully about the questions involved, and where there's a long history of that thought that we can turn to if we're curious about it, instead of just pontificating about what Webster's dictionary might say, or what we might assume to be the everyday mainstream usage attached to terms or concepts.

Cameron: Well, if you're expecting people who think before they tweet, I think that's not likely to happen. It would be the death of Twitter if people had to think first. Let's talk a bit about you're writing. I'm going to talk to you about two different pieces. One is an actual legal article written for a legal academic audience, and then I want to talk about one or two of your more public media kinds of writing, and we can kind of see the connection between the underlying legal work that you're doing and then the way that you translate that into a more public understanding of it. So, the academic piece I want to talk to you about is the essay called "Reading the political," and this is an essay -- just to sum it up for the listener -- this is an essay about the legality of a UN tribunal that was established in 2007, and the tribunal was to try the assassination of Lebanese Prime Minister Rafic Hariri as a terrorist crime. So the UN set up this tribunal to deal with the people who had perpetrated this and to treat this as a terrorist crime, right? And so your article is about the legality of this and how the participants in that tribunal tried to argue whether the tribunal itself was allowable, whether it had jurisdiction, and stuff like that. So you're getting it these fine legal arguments about whether this tribunal itself is able to do it's job. So maybe we can get into this, starting maybe with, like, how did you get involved in this?

Heidi: So this piece came out of my doctoral dissertation, and I was rereading it this morning. It's been a while, actually. [laughs] It's a really, god, it's almost too tightly written. I have to almost apologize to myself for that in hindsight. But it came out of the dissertation and specifically out of a personal experience of mine working at this tribunal. So the tribunal is called the Special Tribunal for Lebanon. It is an ad hoc tribunal, international criminal tribunal. There are several of these tribunals people may or many not be aware of, right? So there's the Rwanda Tribunal set up after the genocide there in 1994, there's the International Criminal Tribunal for the Former Yugoslavia, there's a Special Court for Sierra Leone, there is a tribunal in Cambodia, and a few others, as well as now the permanent International Criminal Court. And so all of these ...

Cameron: And so that's the one in The Hague?

Heidi: It is. So several of them are in The Hague but not all of them. So the International Criminal Court sits in The Hague, and the Special Tribunal for Lebanon also sits in The Hague, as well as the Yugoslavian court and the appeals chamber for the Rwandan tribunal -- both of those are in the process of wrapping up. They've been doing their work since the mid-90s, so it's really been, what, about 25 years. Some other ones sit in the local areas where the crimes occurred, or nearby. So for example, I also worked at the Special Court for Sierra Leone when I graduated law school, that sat in Freetown, although one of the trials was moved to The Hague, the trial of Charles Taylor, who's the former president of Liberia. But all of that to say that The Hague, there's not just one court at The Hague. So often times people will think international criminal law, crimes against humanity, genocide, et cetera, all of that happens at the ICC, and the ICC sits in The Hague, and that's kind of it. But it's actually this whole web of interrelated institutions, which is important for this piece, because the piece seeks to puzzle through the nature of this particular court for Lebanon - I won't call it a "Lebanese Court," we can talk about why -- it seeks to puzzle through the nature of this court, which is a really odd one structurally, right? So the way that it has been set up institutionally is very odd, in terms of international law.

Cameron: Are you talking about this particular tribunal or all of these similar tribunals?

Heidi: No, this particular tribunal. So we can talk about this. It's a little bit technical.

Cameron: No, this is what I'm trying to understand.

Heidi: So, this was very odd. Rafic Hariri, as you mentioned, the former prime minister of Lebanon, a very pro-business, pro-West, pro-neoliberalism (for lack of a better word) guy, many were thinking was trying to get back into power at the time, and we can imagine in the mid aughts -- this was before the war in Syria had started and took over the domestic political scene -- Lebanon was in a position where it was starting to open up in a very strong way to Western monetary and other sorts of in influence, right? So, he was assassinated in 2005, in downtown Beirut, It was a big scene, there was a huge crater in the ground, several other people were killed, and it became a matter of international concern, particularly when the US got worried, right? So this tribunal, at the end of the day, is an American, for lack of a better word, creation. The US thought that Hariri had been assassinated by Syria. It turns out that the accused in the case are Hezbollah operatives, and so Hezbollah is not the same as the Syrians but obviously aligned with Syria. And so the idea that this needed to be treated as a terrorism case at the height of the War on Terror, right, so in the mid-aughts, the war in Iraq is raging, counterinsurgency is just starting to get going in both Afghanistan and Iraq, and there's a lot of international appetite -- and American, specifically, appetite -- for expanding the War on Terror as much as possible. And the idea was to create a new tribunal to expand the scope of criminal prosecution for terrorist crimes. So it's a very, very different sort of tribunal compared to the other ones that exist.

Cameron: So is it different because of the topic that it's addressing, terrorism, as opposed to war crimes?

Heidi: Yes, so it's different substantively, and that concerns the crime of terrorism, and it's different institutionally in terms of how it was set up. And those two things work hand in hand. And so I'll give you the short story about that. The tribunal was initially intended to be a joint project between the Government of Lebanon at the time and the United Nations, right. And so the way that these sorts of joint projects get set up is through a bilateral treaty between the government of the concerned state and the UN. And so that's what happened with the Special Court for Sierra Leone, right? The prime minister at the time requested the secretary general work to conclude an agreement that would authorize the creation of this court. Because these courts, jurisdictionally, they pop up out of nowhere. So the thing that makes international law wholly different from court systems that we might talk about in a moment domestically, in Canada or the US or wherever, is that international law doesn't have a background structural framework, right?

Cameron: You have to invent it as you go.

Heidi: Yeah. So there is a kind of a permanent structural framework when it it comes to state-on-state obligations, but when it comes to criminal law, in particular -- so this deals with genocide, crimes against humanity, now terrorism, and war crimes -- those courts need to be produced as we go along. To there's no supreme "International Supreme Court." Even the ICC is not that. Whereas domestically, the court system is just there, and we turn to it. And so that's why the legality of this particular tribunal was an issue from the get-go. The short story is that the United Nations worked with Lebanon. They produced a draft treaty agreement, in other words, that would create the court. But quickly -- if anyone knows about the internal political system in Lebanon, it's confessional system, it's very complicated, it's a power-sharing system between the different religious factions -- the sort of Hezbollah-aligned party (because Hezbollah as we know is a political party in Lebanon, it has a lot of political power) basically instigated a domestic constitutional crisis when it came to ratifying the agreement which would establish the tribunal at the domestic level. In other words, the agreement provides the legal foundation for the construction of the new court. For obvious reasons, they didn't want to be hauled up before an international tribunal. Significant political factions in Lebanon didn't want the court to go ahead, so they stalled its approval domestically, okay. This went on for some time.

Cameron: Stalling approval is a bit of a theme these days.

Heidi: [laughs] It is! So they stop -- but you know, I have to say, all of that was, to the extent that we might want to be interested in something like the rule of law, all of that was perfectly legal within the way that their own domestic system was set up.

Cameron: Okay.

Heidi: So then the prime minister at the time was like, "Fuck, this isn't going to work. So I have to go to the secretary-general and see if they can figure out a way to make the court work." And so what happened was the Security Council, which is the real strongman arm of the United Nations, right, came in. It passed a resolution -- the resolution, if anyone is interested, was 1757 -- saying, under Chapter 7, which made it binding on an all states, saying if this agreement does not get ratified domestically, the Security Council is going to quote-unquote "enforce" its provisions.

Cameron: So we're going ahead without you.

Heidi: Yeah. So the Security Council steps in and says, "We're going to create the court regardless of whether you, Lebanon, actually want it to happen or not." So it's a very ...

Cameron: Is this is quite unusual with these ICTs?

Heidi: Yes

Cameron: So almost all the other ones have had some kind of an agreement? So say, like the Rwanda one? Is there a functioning government in Rwanda at that time to ratify that?

Heidi: These other ad hoc tribunals all have slightly different modes of being put together. The Yugoslavian and they Rwandan ones were created pursuant o Chapter 7 of the Security Council, right? So they were also created via Security Council resolution, okay? But there was never any attempt to do it on a kind of consent or agreement basis.

Cameron: So it was just a fiat.

Heidi: Exactly. so it was essentially fiat. The difference here was that it was meant to be a partnership-type thing. Again, keeping in the background that the United States is behind this, right?

Cameron: Yeah.

Heidi: This meant to at least look like a consensual partnership type thing. And when that doesn't look like it's going through, and the Lebanese are unhappy, and also the US is unhappy, they force it through the Security Council. Now, the interesting thing about that is that opens up a really significant issue, from the perspective of the nature of the court itself, right? So, all the courts that are created via Security Council resolutions are called ad hoc tribunals. They apply international law, okay, international criminal law. This tribunal, the draft agreement to set it up that was never approved by the Lebanese parliament but was then forced through, attached to that agreement was the statute of the tribunal itself. In other words, was the document -- it's like vaguely analogous to a domestic constitution like our Charter of Rights.

Cameron: So this was something written by the UN to be passed and attached to the bill in Lebanon.

Heidi: It was written, again, as a sort of partnership type thing, between the UN and the Lebanese government, right? Now, really interestingly, that statute as you noted, prioritized the crime of terrorism, but it prioritized the crime of terrorism as it was defined in Lebanese law, not as it was to defined in international law. So, then there was this big question of, "Oh my god, what -- now that the court is going to be forced through and created -- what law is it actually supposed to apply?" Because the statute says Lebanese law but it's not even a Lebanese court. It's not even a shared court because it was forced through by the Security Council. That was a question -- so when I was working, I spent like four or five months when I was doing my PhD at the tribunal in the office of the prosecutor -- and at that time in 2010, I said to them, "You know, you have a really big issue" -- this was before any of the trials had started, they were in the preparatory and investigative stages -- "you've got a really big issue. You don't know what law to apply." And they said, "What are you talking about? It's in the statute." And I said, "Yes, but this court now has become something different, and it might be that instead of applying domestic Lebanese law, which you might not be authorized to do that, (a) because it's not a Lebanese court, and (b) there's an open question about whether or not you're authorized to apply the international of law terrorism. Nobody listened to me at the time. It turned out I ended up being right about that. There was a big decision ...

Cameron: Not for the first time, David would say.

Heidi: Well, that's kind of an example. It's been a long story but it's an example of how institutional design and politics work together, and how mistakes or decisions along the way have really important substantive impacts in terms of what the court as a body ends up doing in the world, right?

Cameron: Mm-hmm. Right from the beginning, the defense in this case, when the tribunal did start it's proceedings, objected to the very existence of the tribunal and challenged its legality, and the basis of their challenge, as I understand what you've written, is that they said that this tribunal has been set up for political reasons, and you've outlined what they were, so I don't think they were wrong about that. It was a very highly political decision to create this, and they just said that because this was established for political reasons, it didn't have legal authority to continue. So, can you talk to me a little bit about this, this kind of principle in justice, of this firewall between the political and the legal that's supposed to be there, and how it worked out in this case?

Heidi: Yeah. So, the defense lawyers here for a group of accused launched something that's quite normal in these course, and that's a challenge to the jurisdiction of the court, right? And there are several layers to that, but as you mentioned, one of the layers involved the argument that the court was illegally constituted in the first place, right? So the idea [was] that what the Security Council did was outside of what it was empowered to do by its own authorizing document, which is the United Nations Charter. So, as I mentioned a moment ago, it's within the authority of the Security Council, acting under Chapter 7 of the UN Charter, to decide that a threat to -- so this is the language -- that a threat to international peace and security exists, and then it to devise or craft political and institutional ways of dealing with that threat. So there's a wide range things can happen there. The Security Council can authorize the use of force, can authorize sanctions. There's all manner of sanctions. And it can also, as it did in Yugoslavia and Rwanda, and now in Lebanon, authorize a creation of courts that are meant to help to resolve ongoing violent disputes using the law. So it's a really unique and interesting thing, but it's within the power of the Security Council to do that. So part of what the defense said -- many positions, some of them were internally contradictory -- but sort of the basic thrust of what they were arguing was that the Security Council abused it's power when it decided that the failure, within in Lebanon, to ratify the draft agreement that was meant to established the court, constituted a threat to international peace and security that then justified the creation of the court. Doe that make sense?

Cameron: Mm-hmm.

Heidi: So the defense is a strange thing: "Look, we can't allow the Security Council to do whatever it wants. There has to be some" -- for lack of a better word -- "form of institutional checks and balances on what it can do. Now that we have this court, staffed with international judges, those judges should be able to come in and effectively judicially review the Security Council's decision about the existence of the threat to international peace and security." The courts responded saying, "We don't have the authority to do that, because the decision of the Security Council was a political decision, and we are a court of law and we don't have any right to intervene and tell the Security Council that they're politics are wrong.

Cameron: Right. So the argument being made by the court there, is that, sure, this is a political decision, there's no question about it, but that doesn't change the validity of what we're doing. Those political decisions are a separate issue from this legal matter that we're here to determine.

Heidi: Absolutely.

Cameron: So we're going to come back to this topic later on in our discussion, about this notion of the political and the legal. You argued that this distinction between the legal and the political is a bit quixotic because it really suppresses the issue of politics and pretends that you can then have this neutral venue that is apolitical. So, tell me about what happens to this political force, this political urge that we have as people, if when we -- in the legal system -- when we try to push it out of a way and create this apolitical situation. You're suggesting is still there.

Heidi: Yeah. So, one way of thinking about the defense arguments in that challenge to the jurisdiction of the court, even though the defense used the language, things like the rule of law, et cetera, right, there's a lot of legal language that looks like it's committed to separating politics from law, because the only way that law can work in a matter that's justifiable, let's say, is if it's not political. What I did in the piece was go through carefully all of the defence arguments, in the details of them, and read them through the lens of Carl Schmitt's legal theory, international legal theory, and actually attempted (I hope successfully) to show that there's no such thing as this hard and fast separation between law and politics. In particular, what the defence council in this case were doing was pointing out that the only way that this particular court could be justifiable, right -- which is itself a political decision -- but the only way that it could be established by law -- but what they really mean is justifiable -- the only way it's justifiable within the international legal system is if it were actually more political rather than less political. So that's a kind of counter-intuitive claim, right? The idea is that they wanted -- so defense council was pleading with the judges, first at the trial chamber and then at the appellate level at this court, they were pleading with the judges to say, "Look, the Security Council doesn't get to be the ‘sovereign’ here." -- right, the sovereign in the sense like, in Canada, the Queen or whatever, the people, in the US -- "The Security Council isn't a sovereign. It shouldn't have the right to do whatever it wants. You as a court of law should have a say on whether or not it abused it's power." So they were actually asking the court to be more political, to understand that its decisions on jurisdiction don't make sense outside of politics. Because look, I already outlined some of the politics behind the creation of this court, so if you want to be simplistic about it, when the tribunal refuses to decide whether or not the Security Council abused it's power, it's in effect ratifying the will of the United States. Right? That's a simplistic way of putting it.

Cameron: Because the United States was behind the creation of the tribunal.

Heidi: Because the United States was behind the creation of the tribunal, because they wanted a person in power who was going to be friendly to them and their business, hence Rafic Hariri.

Cameron: A person in power in Lebanon.

Heidi: In Lebanon. Exactly. And they wanted to limit the influence of Syria in the region. And this is in a moment where Syria had recently withdrawn from Lebanon after having been present for many, many years during the civil war, right? So, another writer, another legal scholar, had -- I'm just going to quote him because I think it's a beautiful quote -- he had said that, effectively, what the tribal did was, “it empowered the powerful while disempowering the rule of law and judges.” And so when we talk, what's really interesting about that observation, is that when we talk about the rule of law, we're not saying law should be separate from politics, were saying that law has to have a role in the political in a way for to make sense at all. And that's a counterintuitive thought for, not only what the public thinks about law, but certainly even the mainstream legal academy.

Cameron: Okay, so let's cut the chase.

Heidi: Those were long answers, I apologize.

Cameron: Well no, no, I mean I want to bring it to today. We heard today that the Supreme Court in the US had ruled 5-4 that the Federal Court, federal judges, had no authority to restrict gerrymandering activity by politicians in the States. And their argument was exactly the same as what we're talking about here. They said, "Those are political issues and the court should not be intervening in political issues." Right? It's not a legal matter. That should be resolved democratically rather than legally. So the article that you wrote about this International Criminal Tribunal to deal with the assassination of Hariri in 2005, created by the UN, that article has immense significance to me at this very moment in time.

Heidi: That's very kind of you.

Cameron: Well, it's very sad. I wish that you would write articles that after, you know, 10 years or so had gone by, no longer had any relevance because the issues had gone away. That's not the case here. So how do you begin to make sense of that kind of a decision. It's the same kind of logic, with maybe the exception that there might be this role of a sovereign somewhere in the American system that's missing from the UN case. But that principle of the firewall between the political and the legal, that fundamental doctrine that you're saying is almost untenable when you try to argue it right down to its basis, there will always be a political element in these things, and yet here you have the Supreme Court saying, "We wash our hands of this." It's a Pontius Pilate moment, right? They're just washing their hands.

Heidi: [laughs] So we just tell people we didn't, like, we didn't know that, obviously, that this decision was going to come out a couple of hours ago, so the gods have been kind to us.

Cameron: Oh, I would rather they had been unkind!

Heidi: [laughs] Yeah, I mean you're right. It's funny how close the parallels are here between the politics in the international legal realm and, you know, what's going on in the United States, and so in today's 5-4 opinion, authored by Chief Justice John Roberts, he mentioned the court deploys the "political question" doctrine to reject, as you noted, two constitutional challenges to gerrymandering, apparently. I'm just looking at the Wall Street Journal report: one was brought by Democrats in North Carolina and another by Republicans in Maryland. And so it looks even like a bipartisan thing, in some loose sense, right? Gerrymandering is a question that has significance across the political spectrum, obviously. So what the Court's doing here, is in some sense tricky, because it's attempting not to be what we call an activist court, right? Now this is nonsense language, because when you hear people saying, "Look, judges shouldn't make the law, they should apply the law!" -- we hear this language all the time when we're looking at the appointment process for judges in the US, but we also hear it in Canada, as well -- and so the basic idea is that in order for law to be legitimate, there should be this bright line between law and politics: "Judges just apply the law, they don't make it." If the question is something that is at base political, it should be resolved via the democratic process outside of the legal process -- although, that sort of pretends that law isn't part of the democratic process, but anyway -- so that's what's going on here. The Court can get, can look ... what's tricky about this case is that it's going to look good to mainstream and also conservative thinkers on both sides of the political spectrum, because it's going to appeal to the idea that law is only justified when it is separated from politics, and they're going to say, "Look, because we rejected these two decisions on both sides of the aisle, what we're actually doing is we're respecting the political process, we're not making it part of a judicially activist court." And my basic contention is very much like I explained in the article about Lebanon, that, you know, that's a choice that the court makes, the court doesn't have to do that. Right? That's a political choice. So it is a political choice to decide that they don't have authority to decide. Right? It's the exact same issue. And so when we're talking about this case today, and over the coming days, it would be a big mistake to fall back into the really comforting liberal, I should say liberal dogma, this is fundamentally liberal dogma, that law and politics are separate. But they're not

Cameron: This is not simply an issue that affects the United States. We're seeing at least the early shoots of this in Canada when you have Premiered Doug Ford in Ontario referring to federal judges -- first of all he referred to them as provincial judges, saying that they were appointed by a previous premier. What he was really referring to was the fact that they were federal, they were appointed by the federal government. So the idea here [is] that "These judges are not legitimate, they're not as legitimate as me, an elected official, because I have been voted for, where they were appointed." And this attempt to delegitimize the court system is a very, very slippery slope that I don't want to see us going down. What's your take on what's happening in Canada compared to the United States?

Heidi: Yeah that's a really interesting one. That's in ... that's ... let me puzzle here. So that's interesting because it's ... yeah .. it's speaking out of both sides of its mouth, that point.

Cameron: Podcast listeners can't see that when Heidi wants to think, she starts to doodle. So she's got her pen out.

Heidi: [laughs] Well, I've got some words here, and also some arrows. [laughs] So Ford claimed, "Only judges who are appointed ..." -- I mean, if you're going to take that kind of a contention to its logical conclusion, it would be something like "Only judges that are appointed by the government that's currently sitting are actually legitimate, and that every time you have a new government you have to turn over the judiciary." I mean, it's crazy, it's so stupid. That's pulling on the idea that law should be political in a different way than I did a moment ago. So I'm fully committed, as a kind of leftist legal scholar, fully committed to the idea that we need to think carefully through the ways in which law is political and support the politicization of law. But that doesn't mean it's willy-nilly, right? Supporting the politicization of law means emboldening and empowering judges to be able to make decisions -- this is using a Schmittian lens -- to be able to make decisions in the space where law and power, where there is a gap between the rule and the decision, right? So the idea is that where the rules don't provide a clear outcome, someone has to make a decision. Oftentimes that's a political party, a political person, but it should also be able to be the court. So Ford is directly connecting -- I mean, in a sense he's making a democratic argument, right, and it's not wholly stupid, actually -- if judges are only legitimate through their connection to an elected politician, he's trying to draw a line back to the people.

Cameron: Right, but this is a populist argument, not a democratic argument.

Heidi: Yeah, yeah, yeah!

Cameron: Two different things.

Heidi: Yeah, yeah, yeah. No, no, no, no, no, sure, sure, sure. But well, it depends on how you talk about it, we can have a longer discussion.

Cameron: You'll have to come back tomorrow.

H; Yeah, yeah, yeah, for sure. Like, I think "democracy" -- so you're quite right, I used that word capaciously, right? We'd have to have a discussion about what kind of democracy we're talking about. You're right, it is a populist view of democracy. There are others. But in a sense, that makes sense. But when he does that, when I said he was stupid earlier, it's because he's arguing that judges are simply the arm of the state, and don't have any sort of .. independence is a bad would here but it's the right one -- they don't have the independence of thought about political decisions themselves. So it's actually kind of intriguing, right? Judges are only legitimate when appointed by the person who has populist democratic authority, and that's because they're just going to do what that person wants. In other words, being non-activist doesn't mean enforcing the law, it means doing what the person in power wants. That's really intriguing. Yeah. Problematic.

Cameron: Problematic indeed. So I want to spend a little bit of time, and this is not nearly going to do the topic justice, but I want to spend a little bit of time talking about the other kind of writing that you do, which is to publish insightful commentary, opinion pieces, whatever, in mainstream media about particular issues. So the one that I want to talk to you about is the piece you wrote earlier this month in Macleans magazine. The occasion was the release of the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The report itself triggered a lot of anguish in Canadian settler society because it dared to use a particular word. The word was "genocide." And you wrote a piece clarifying what this word genocide really means. And I think it was a really interesting move from the point of view of an academic, to step into, to wade into a debate, expose yourself to attack, risk being seen as somehow less than objective. You know, academics are supposed to be these detached observers of the world, and you, in the same way that you're advocating that the courts should be engaged in political decisions, more engaged not less engaged, you're demonstrating through the work that you do that as an academic, you to be more engaged public discourse, not more removed and "objective." So maybe you can just kind of summarize what this argument is around the world genocide is in this report.

Heidi: This is a tough one, but as you know, a very, very important one. And so, again, as you and your listeners know, in the wake of this report which came out of a few weeks ago, there was a very swift and very harsh backlash from, not only the ranks of conservative punditry, right, but very much coming from the mainstream.

Cameron: Oh yeah, yeah.

Heidi: So very few people who have a public platform of any kind -- whether journalists or academics -- very, very few came out in support of the language and analysis that the National Inquiry's report used and deployed. That was a really fascinating thing to watch, and what they did was they fell back into, again, this politics-versus-law question, right? And this is the eternal problem of law. No matter what class I'm teaching, it's ultimately the conundrum that I'm asking the students to deal with and to wrangle with. And the mainstream approach was to say, "What Canada did with respect to its Indigenous peoples and nations could not possibly constitute genocide,” for a number of reasons. One of the really popular ones was to say, "Well, these people still exist."

Cameron: Right, so it can't be genocide. Right? So I find it so frustrating.

Heidi: So I explain why that's wrong.

Cameron: How many people have to be killed for it to qualify as genocide?

Heidi: Well, none, in fact.

Cameron: Yes, and so explain that part of it, first of all.

Heidi: What the mainstream was doing, it was objecting on the basis of let's say "politically disinterested law." Except it was an armchair law, it was a Webster's Dictionary law, it was a Google Dictionary law, it wasn't actually the law. Right? So there are two levels in which I operated in this piece. The first was to point out, "Well, your understanding of the law is simply wrong." Right? And then also, to explain why the use of the language of genocide here was politically important and why that's okay. So on the legal end, people came up with a whole bunch of arguments that are easy to find online. I'm gonna come out hard against Jonathan Kaye and his mom here, who both published egregiously misinformed and misinforming pieces -- but others did as well -- on the definition of genocide and its applicability here. I started getting a lot of attention online in the lead-up to writing this piece when I pointed out that, in fact, no one needs to die in order to have a genocide. Okay? And that's because when you turn to the definition of genocide that's found in the 1948 Genocide Convention, to which Canada obviously is a party, the actus reus, the act that constitutes the crime ... everyone knows about actus reus and mens reus, if you've watched Law and Order, but there needs to be an act-requirement combined with an intent-requirement. With respect the act-requirement, killing is only one way of committing genocide. There are other ways. I'll just list them: causing serious bodily or mental harm to members of a protected group, deliberately inflicting on that group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended prevent birth within a group -- so that was interesting because the White Genocide people came out in support of -- no sorry, the anti-abortioners came out favor of that one, so they're trying to flip it to say, well, isn't abortion genocide? right? -- and then the last one is forcibly transferring children of a group to another group. And that's where the White Genociders came in. And so the alt-right was very active of this argument, and as well as the mainstream media. All of that to say, killing members of the group is just one way of committing genocide. Any of those other listed ways are also forms of the required actus reus. Part of what makes genocide special as a crime is that it's about group destruction. right, and that doesn't mean physical destruction necessarily, it means...

Cameron: The elimination of a cultural identity, a cultural group.

Heidi: Cultural identity, cultural group, or the language that the report uses is "social unit." And you're quite right to point out, cultural genocide, interestingly, was the language that was used in the 2015 Truth and Reconciliation Commission. The reason why ... I'm glad you mentioned that, because the Murder and Missing Indigenous Women and Girls report very consciously, and as a political move, chose not to use the language of cultural genocide, because cultural groups are not one of the protected groups in the definition of genocide. So the protected groups are national, ethnical, racial, or religious. So we can note some obvious absences here, rightly or wrongly and we won't have to have that discussion, cultural groups are not included, political groups are not included, gender is not included.

Cameron: Gender or [sexual] orientation.

Heidi: Yup. All of those things not included. And there are interesting historical reasons for that. Cultural groups -- during the drafting of the Convention, their inclusion had been supported by the Soviet bloc, and it's really fascinating history for anyone interested -- but it eventually was deleted from the draft of the Convention. And so when the TRC used the language of cultural genocide, they were using it more in a kind of ...

Cameron: Metaphorical?

Heidi: Yeah, it couldn't be in a legal sense. It wasn't a technically legal term. You see?

Cameron: Yeah. This case is different, though.

Heidi: This is very different. So when the TRC uses cultural genocide, in a way it was paving the road for the future use of the crime of genocide, but it was a discursive tool, essentially. Right? It was a descriptive thing. It was more of a plain language usage, whereas the MMIWG report moved intentionally away, adopted the language of the actual crime of genocide, and so that's important move.

Cameron: The thing that bothers me about this backlash against the use of the word is, particularly the people who say, well, you know, these people still exist! -- it requires an almost willful ignorance of Canadian history to suggest that nobody has died as a result of this genocide. People. Have. Died. Very clearly. Right? And in fact, the inquiry about murdered people. So there's no question that there's been death here. So it seems to be a complete red herring to suggest that, "Oh, this isn't really genocide because people have to die." People have died.

Heidi: So yeah, so that argument .. there are so many different ways in which the Right has aligned with the mainstream to generate those very false ideas, which I agree with you can only be generated pursuant to willful ignorance, right, about the history of Canadian society, but also the current impact of Canadian policies and also governmental omissions. And so part of their argument was that there were individual deaths but those don't -- so it gets really insidious, I'll go a step further and one-up you on this one -- to say that they were mostly committed by Indigenous men. So that's how the argument went.

Cameron: Oh my god.

Heidi: Not only were there not enough deaths, but the ones that did happen were -- this is their argument, not mine, obviously -- were perpetrated by Indigenous men. So it even gets worse. And then the other argument, in terms of numbers, was to say that this genocide, this case, couldn't have been a genocide because the numbers of deaths were not comparable to, for example, the Holocaust. Okay? This is again another common talking-point when it comes to genocide. We could go on for hours about why it's problematic, but the obvious point would be to say that the Holocaust shouldn't be approached as a gold standard in an Oppression Olympics. That's not an appropriate way of dealing with violent political history. And you know, it's funny, even the US Holocaust Museum the other day issued a statement ...

Cameron: I saw that.

Heidi: Did you? Yeah. They were very upset about the way in which the border detention camps in the United States were being compared to concentration camps, and were being called concentration camps, and then the use of the language of concentration camp, for clear reasons, very quickly led to the use of genocide in the US. So we have this debate in Canada and, and two or three weeks later, we have a similar, well, another kind of genocide debate happening the US where "genocide" is being deployed as a political tool. Again, that make it dirty. Right? So I should say, when we using legal language for political reasons, that doesn't make it necessarily bad. That's how the law works. Obviously in the United States, the idea is to garner attention for the atrocities happening at the border. And in Canada, my piece was meant to unpack this political stakes of what it would mean to use genocide here. And my own argument in that piece was to say, from my perspective, and I think in part for some of the activist and legal perspective, those who wrote there report, was to recognize that genocide is also a political crime. Right? Again, we're back to politics, etc. But it's a political crime. I'll just a read a little bit of what I wrote, because I thought it states it more succinctly than I would now: "States that engage in the destruction of groups, when they succumb to the idea that national strength depends on the construction and maintenance of a homogenous national identity..." and I write more, but it's the idea that there's something about Canadian identity, political identity, that doesn't allowed Indigenous identity where Indigenous identity has a political component.

Cameron: Yes.

Heidi: So Indigenous identity means being part of a nation, means being part of a people that is seeking self-determination within the state of Canada. And so actually, genocide is the appropriate word here because you can't have, you can't approach any kind of reconciliation, or a more revolutionary and interesting approach to the question of how to deal with Canada's abuse of its Indigenous peoples, unless we actually realize that that that question puts the basic authority of Canadian sovereignty in question. So I think that's what's on the table,

Cameron: There's a lot on the table. One of the things that I think you pointed out is that this report, in using the word genocide, does not take the issue of individual responsibility off the table. And that has got to strike fear into the heart of basically anybody has been in a position of political leadership in Canada for the past 150 years. In other situations where you've got war crimes tried and stuff, you have individuals brought to court and tried and held and found guilty for the actions of the country in perpetrating those war crimes, and that is something that makes a lot of Canadians very uncomfortable.

Heidi: Yeah, and it was interesting because again, part of the mainstream backlash response was to say, "Well, if it was a genocide, Justin Trudeau should be surrendering himself to the International Criminal Court. And so they were trading on what they thought was the impossibility of having a criminal response, in order to sort of embarrass the National Inquiry or something like this. And you're quite right that -- and I noted it in the report -- the issue of individual criminal responsibility certainly isn't off the table, and I have no idea whether interested parties will try to pursue that option, but it's certainly an option.

Cameron: Hmm. We'll see how it plays out. Thank you so much for being here today. One thing that I take away from this conversation is the wonderful consistency between the legal arguments that you're making about the necessity of political engagement by the courts and the practical example you set of the necessity of political engagement by academics, and I really love that about you.

Heidi: Thanks so much. It's so great to meet you finally in person, and to be part of this fantastic project.

Cameron: Great! Thank you so much.