June 15, 2010

Searching for Hints About Canadian Ken Watkin, One of Two International Observers of Israel's Flotilla Inquiry

I searched for info on Canadian Ken Watkin, Judge Advocate General for the Canadian Armed Forces from 2006 - 2010; on 'June 13, 2010, the Israeli government appointed Ken Watkin to be one of two international observers serving on an Israeli commission of inquiry looking into the events surrounding an Israeli raid on the Mavi Marmara' (Gaza Freedom Flotilla) [Wikipedia]

At the above Wiki bio link for Watkin, interesting link to a CTV news article on the fact that Watkin refused to testify before a Canadian House of Commons inquiry into Afghan detainee abuse and what he knew, arguing solicitor-client privilege between himself and the Government of Canada.  Hmmm.

Here is an excerpt of one interesting document he wrote regarding humanitarian principles in law and the treatment of those not considered by their captors to be legal combatants.  Mr. Watkin's take in it appears to be reassuringly bent towards the humane treatment of anyone in detention, regardless of any legal or illegal status in hostilities.  In my cursory search this afternoon I have not identified a link between Mr. Watkin and Israel, unlike the obvious bias so swiftly identified by the press with regard to the other invited outside investigator, Trimble.

From, 'Warriors Without Rights?  Combatants, Unprivileged Billigerents, and the Struggle Over Legitimacy'; Kenneth Watkin; 2005; PDF; Program on Humanitarian Policy and Conflict Research Harvard University


Combatancy has throughout the history of organized warfare been an
exclusionary concept. To the extent that the separation of combatants
from others in society is linked to the principle of distinction, the
creation of an exclusive group of warriors has a laudable goal.
Unfortunately, the attempt to codify international humanitarian law in
this area has been the subject of a significant struggle between
powerful states and those seeking to recognize a broader ‘patriotic’
reaction to external threats. It is here that the greatest challenges have
occurred in attempting to ensure the law addresses fully warfare in
terms of both its nature and scope.
326 See Anthony Dworkin, Revising the Law of War to Account for Terrorism: the Case Against
Updating the Geneva Conventions, On the Ground That Changes Are Likely Only to Damage
Human Rights http://writ.news.findlaw.com/commentary/20030204_dworkin.html
(“reopening the debate will allow groups to push for other changes to the law…that could
set back humanitarian values.”) and Dr. Jakob Kellenberger, International Humanitarian Law
at the Beginning of the 21st Century, Statement at the 26th Round Table in San Remo on the
Current Problems of International Humanitarian Law: The Two Additional Protocols to the
Geneva Conventions: 25 Years Later - Challenges and Prospects (Sep. 5, 2002), available at
www.icrc.org/Web/eng/siteeng0.nsf/html/5E2C8V?OpenDocument. (“[D]o they want to
lower existing standards of protection? As far as this last point is concerned, you will
understand that the ICRC will never be associated with initiatives aimed at weakening
existing standards of protection.”).


At the turn of the twentieth century, the attempt to codify international
law reflected a Eurocentric idea of armed conflict in which dominant
states established successfully a preference for the large uniformed
armed forces. However, participation in hostilities has ultimately a
cultural basis that is not limited to either standing armies or the
wearing of uniforms. In order to address warfare comprehensively,
international humanitarian law must address both its direct and
indirect manifestations. To the extent the 1907 Hague Regulations
legitimized primarily the former type of warfare, it was shifting ideas
of legitimacy related to indirect warfare that ultimately led to
fundamental change in the manner in which warfare was to be

As far back as the Lieber Code, there were indications that phraseology
used to describe unlawful combatants (e.g. “brigand”) masked a more
complex relationship between the participants in the conflict than its
criminal connotation suggested. For example, captured Confederate
personnel were treated as prisoners of war even though the conflict
was a civil war.327 The failure of the Hague Regulations to address fully
the nature of warfare was demonstrated perhaps most graphically by
the reliance placed by major European states on ‘special’ forces to
conduct guerrilla operations in both World Wars. Although the
drafters of the 1949 Geneva Conventions failed to account realistically
for the participation of organized resistance movements during the
Second World War, it is clear that their use resulted in an altered
perspective on legitimacy in the Hostages Case328 and in scholarship.
The heavier reliance on indirect warfare during the Cold War
increased pressure to broaden the privileged class of warriors as is
reflected in Additional Protocol I. Notwithstanding the reluctance of a
number of states to ratify this mid-1970s effort to broaden
humanitarian law, it is perhaps inevitable that the increasingly
complex nature of modern conflict will bring further pressure to
advance this area of the law in the twenty-first century.

327 While the Lieber Code refers to prisoners of war it was specifically written in the context
of providing humanitarian protection and not to afford implicit recognition of Confederate
sovereignty “but would not constitute recognition of the rebels as true belligerents in
international law, nor would the United States forfeit the right to try the rebels for treason.”
See Hartigan, supra note 186, p. 9.
328 The Hostages Case, Trials of War Criminals (Washington: Government Printing Office 1950).


In humanitarian terms, it is unfortunate that the standard of treatment
applied to captured personell has been – and in many respects remains
– linked intimately to notions of legitimacy. While there are no gaps in
the humanitarian protection offered to the warriors of modern conflict,
it is also not possible to state that there is equality either. The highest
level of protection associated with prisoners of war remains tied to the
concept of lawful combatancy. However, the imprecise criteria for
attaining combatant status and the fact that the determination of
legitimacy rests largely with the detaining power can mean that any
claim to be a lawful combatant is subject to considerable uncertainty.

Even where protection similar to the prisoner of war standard is
provided in the guise of internment under the Civilian Convention, the
entitlement to that treatment is limited by concepts such as nationality
and territoriality. Additional Protocol I maintains a hierarchy of
unprivileged belligerents dependant upon whether a link can be made
to a state or other right authority as a combatant. In introducing
human rights standards of protection for those not otherwise covered
by humanitarian law, Article 75 of Additional Protocol I was designed
to fill any gap in protection.
While this goal has been reached it does
not remove what often appears to be a patchwork of statuses and

The issue of whether ‘unprivileged belligerents’ would be entitled to
the protection associated with internment was decided fifty years ago.
The remaining question is why that protection should not also be
extended to those who technically may be outside the reach of the 1949
Civilian Convention. In 1951, Richard Baxter stated that “[a]s the
current tendency of the law of war appears to be to extend the
protection of prisoner of war status to an ever-increasing group, it is
possible to envisage a day when the law will be so retailored as to
place all belligerents, however, garbed, in a protected status.”329 Given
the continuing link between prisoner of war status and legitimacy that
goal may not be attainable. However, extending the internment
provisions of the Civilian’s Convention would have a similar effect.
This would ensure a consistent application of international
329 Baxter, supra note 11, p. 343.


humanitarian law protection based on the treatment standards
associated with prisoners of war without introducing the emotive and
often divisive issue of legitimacy.
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