The Sydney Statement on Anti-Palestinianism

Dec 14

I recently came across The Sydney Statement on Anti-Palestinianism. It is excellent. I have reproduced parts of it below.

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An Open Letter to the Governments of the United States of America, the United Kingdom, Canada, Australia and all EU member states and EU institutions on Israel/Palestine and the Gaza crisis

Oct 24

As a group of researchers, policy analysts, and experts with deep commitments to and expertise on the Middle East and North Africa, we have always worked side-by-side to advance policies based on shared universal values. Today, we find much of the government-led responses to the Gaza war to be in grave violation of these values and principles. After the horrific slaughter of civilians by Hamas in Israel on October 7, the world correctly and justifiably reacted with condemnation and solidarity; a response we are in complete alignment with. An accumulated legacy of dehumanisation of Palestinians has resulted in far too many western governments uncritically condoning the campaign of collective punishment against millions of innocent Palestinians that Israel launched in retaliation. When Russia bombed critical civilian infrastructure in Ukraine, or Assad held Aleppo under siege, western governments loudly and rightly condemned these attacks and called for immediate humanitarian ceasefires. Many wonder why they won’t do the same here. We have reached a point where there is virtual consensus among rights groups that war crimes were committed by Hamas on October 7 where over a thousand Israeli civilians were killed, and that war crimes have been committed by Israel since its aerial bombardment campaign against Gaza began which has killed more than five thousand civilians so far. To make matters worse, incitements to ethnic cleansing removing the distinction between civilians and combatants has been broadcast from the most senior levels of the Israeli establishment. The facts make for an ominous forecast and averting it should be our collective priority and is our collective responsibility. Western capitals pride themselves on solidarity with allies, and are demonstrating this again with Israel. But to achieve long-term security for Israel and the broader region, there is a moral and strategic obligation to ensure that Israel’s self-defence is characterised by international humanitarian law and leads to an end to the occupation; Western governments have not sufficiently emphasised that obligation, despite the situation demanding it. UN experts have also raised the need to restrain Israel from international law violations. But rhetoric is not enough. Using diplomatic leverage to pressure both Israel and Hamas, who are holding hundreds of hostages, towards adhering to international law is one of our key tools for de-escalation. One that is currently being discarded. Western governments should be advancing attempts to de-escalate, rather than give the impression that ‘might is right’. Given the power asymmetry between Israel and

Palestinians, this has enabled collective punishment in Gaza, and fast-tracked illegal
settlement expansion in the West Bank, where reports indicate that Palestinians are
being dispossessed, killed, or placed in ‘administrative detention’ in their hundreds.
This path, rather than ensuring security for Israelis, deepens the cycle of violence
and only makes the conflict’s regionalisation more likely.
The lack of strategic focus and failure to pressure collective adherence to
international law, denigrates the West’s global moral standing. It isolates it from
swathes of the world, deepening divisions at a time of great power competition and
shared challenges to our climate, collective security, and the world economy. It also
creates a precedent that imperils small states and fatally undermines any semblance
of a global rules-based order.
We are mandated to respond to this challenge by foregrounding our common
universal values, and we should be forewarned that our response is nothing less
than a civilisational litmus test, which will catalyse either the spread or retreat of
these values in the world.
We, the undersigned, call on western governments and our colleagues across the
policy-making world to centre those core values, upholding the equal humanity of
Palestinians and Israelis, rejecting anti-Semitism, anti-Arab and anti-Muslim bigotry,
at home and abroad.
Above all, in this crisis, we advocate for an immediate ceasefire, the provision of
humanitarian aid to all in need, and the return to political processes that can facilitate
just and fair resolutions to the Israeli-Palestinian conflict.
If we fail to do this, and instead enable the worst, then we condemn this region to the
tumult of war, deepen global divisions, and put an indelible stain on our collective
conscience.

To add your signature to this letter please email: OpenLetterIP@gmail.com

All signatories are signing in their personal capacity so as not to imply any
institutional positions. However, the following signatories are associated with a broad
variety of noted institutions in the policy arena, including but not exclusively, the
International Crisis Group, the Carnegie Endowment for International Peace, Chatham
House, the European Council on Foreign Relations, Cambridge University, the Middle
East Institute, King’s College London, the Atlantic Council, the Tahrir Institute for
Middle East Policy, and others.

  1. Comfort Ero, Institute Director
  2. Marwan Muasher, former Foreign Minister
  3. Yair Wallach, Reader
  4. Yezid Sayigh, Senior Fellow
  5. Lara Friedman, Foundation President
  6. Maha Yahya, Center Director
  7. Michelle Dunne, Institute Director
  8. Nathalie Tocci, Institute Director
  9. Hugh Lovatt, Senior Policy Fellow
  10. Mohanad Hage Ali, Deputy Director for Research
  11. Jonathan Portes, Professor
  12. H.A. Hellyer, Senior Fellow & Professor
  13. Joost Hiltermann, Programme Director
  14. Adel Abdel-Ghafar, Programme Director
  15. Alessia Melcangi, Associate Professor
  16. Mai el Sadany, Institute Director
  17. Kelly Petillo, Programme Manager
  18. Johan Schaar, Researcher
  19. Emad Badi, Senior Research Fellow
  20. Eduard Soler I Lecha, Assistant Professor
  21. Hafsa Halawa, Independent Consultant
  22. Zuri Linetsky, Research Fellow
  23. Zaha Hassan, Human Rights Attorney
  24. Gerd Nonneman, Professor
  25. Timothy Kaldas, Institute Deputy-Director
  26. Virginie Collombier, Programme Deputy Director
  27. Dalia Ghanem, Programme Director
  28. Beverley Milton-Edwards, Professor
  29. Tarik Yusuf, Institute Director
  30. Haizam Amirah-Fernandez, Senior Analyst
  31. Riccardo Fabiani, Project Director
  32. Intissar Fakir, Programme Director
  33. Wolfram Lacher, Senior Associate
  34. Elham Fakhro, Research Fellow
  35. Cinzia Bianco, Senior Policy Fellow
  36. Noha el Mikawy, Dean
  37. David Butter, Analyst
  38. Sami Nader, Institute Director
  39. Marc Owen Jones, Professor
  40. Noha Aboueldahab, Assistant Professor
  41. Sarah Yerkes, Senior Fellow
  42. Assad al-Achi, Institute Director
  43. Shahram Akbarzadeh, Professor
  44. Abdullah Baabood, Professor
  45. Karim Emile Bitar, Professor
  46. Galip Dalay, Senior Research Fellow
  47. Ishac Diwan, Director of Research
  48. Aziz al-Ghashian, Researcher
  49. Karim Haggag, Professor
  50. Adel Hamaizia, Institute Director
  51. Asma Khalifa, Institute Director
  52. Tarek Megrisi, Senior Policy Fellow
  53. Kholood Khair, Institute Director
  54. Khaled Mansour, Writer
  55. Renad Mansour, Senior Research Fellow
  56. Karim Mezran, Senior Fellow
  57. Ahmed Morsy, Senior Researcher
  58. Farea al-Muslimi, Senior Research Fellow
  59. Tariq al-Olaimy, Institute Director
  60. Rouzbeh Parsi, Programme Director
  61. Randa Slim, Programme Director
  62. Andreas Kreig, Professor
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UBC Faculty Response to Interim President and Vice-Chancellor Deborah Buszard’s October 11th Statement

Oct 24


At time of publication, this letter has been endorsed by over 125 faculty members
and over 1,030 students and community members

LINK: Sign to Support This Petition

As members of the UBC academic community and educators committed to principles of social
justice and equality, we are troubled by the statement that UBC Interim President Deborah
Buszard issued on October 11th titled “Supporting the UBC Community.”

The statement explicitly refers to “the atrocities from the terrorist attacks on Israel” but remains
silent regarding the ongoing state terror committed by Israel against Palestinians.

At the time of this writing, and as reported by UN bodies, Human Rights Organizations, and
news agencies, Israel has:

● Killed more than 3,500 Palestinians including over 1,000 children
● Displaced over 260,000 civilians and ordered the forcible population transfer of over 1
million
● Cut off supplies of food, water, medicine, fuel and electricity, along with humanitarian aid
● Bombed schools, media offices, universities, ambulances, hospitals, houses of worship,
and civilian residences
● Used white phosphorous in its bombing of Gaza and southern Lebanon
● Called for hospitals in Gaza to rapidly evacuate, which as the WHO states is a death
sentence to the sick and injured.

These actions are a clear violation of international humanitarian law and amount to crimes
against humanity.

They are taking place while Israeli officials continuously dehumanize
Palestinians. Israel’s defense minister called Palestinians “human animals.”

Members of Israel’s house of representatives, the Knesset, and apologists abroad openly advocate for slaughter, ethnic cleansing, collective punishment, amounting to another Nakba, or catastrophe, when
over 750,000 Palestinians were expelled from their homes in 1948.


President Buszard’s statement also makes no reference to Palestine or Palestinians,

choosing to refer instead to “Israel, Gaza and elsewhere”.

The erasure of Palestine as a geography, Palestinians as a people, and their plight as a nation dehumanizes Palestinians and denies them the fundamental right to safety, security, freedom and liberation.

It runs contrary to the claim that UBC is committed to “providing a safe, inclusive environment, with a shared value of peaceful relations.”

UBC’s declared support for decolonization and practices of equity, diversity and inclusion ring hollow in light of this partisan approach.

Such dehumanization comes in the wake of similarly lop-sided statements by UBC’s Faculty Association and other university administrations across Canada, the US, and the UK.


Statements that erase or dehumanize Palestinians may have a dire impact in Palestine and in
the diaspora, as made evident by the hate-driven murder of Wadea Al Fayoume, a 6-year old
Palestinian-American child in Chicago.

In light of all of the above,

We send a message of support to all Palestinian colleagues and academic communities across
North America and Europe that are facing a hostile climate of intimidation from their
governments, media, and university administrations.


We affirm the right of the Palestinian people to freedom and sovereignty from Israeli occupation,
settler colonialism, and apartheid.


We renew our commitment to and valuation of the safety and well-being of UBC’s Palestinian
students, faculty, staff and their allied colleagues.


We demand that the UBC’s President’s office:

  1. Rectify the statement and condemn Israeli state violence and violations of international
    humanitarian law.
  2. Publicly denounce and actively prevent attempts to silence, demonize, or harass any student,
    staff, or faculty member for expressing their solidarity or support for justice in Palestine.
  3. Reiterate UBC’s full commitment to protect academic freedom and freedom of speech,
    including the right to teach on Palestine and criticize any state or group’s crimes and violations
    of international humanitarian law
  4. Provide meaningful support to all faculty, staff, and students who are subject to bullying or
    harassment in class or on campus as a result of their support for justice in Palestine

    LINK: Sign to Support This Petition
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Palestine and the Melian Dialogue: Thoughts on the Ongoing Slaughter in Gaza

Oct 20

For anyone with the least awareness of the recent history of the Middle East, the most recent violence that began when Hamas launched a devastating assault on Israeli military bases and kibbutzim along the cease-fire lines between Israel and the Gaza Strip, was the culmination of a more than 75 year history of conflict between first, Zionist settlers, and then, the Israeli state, and Palestinian Arabs who were obstacles to the realization of the Zionist state. We are now fast approaching the denouement: either peace based on recognition of the equality of Jew and Palestinian Arab in historical Palestine, or something approaching genocide. If Israel chooses the latter strategy — and it seems likely that it will — it will not stop with Gaza. It will quickly turn its attention to the Palestinians in the West Bank and seek to liquidate as many of them as possible too. The only way to put an end to this slaughter, and restore a dynamic for peace, is intervention by outside powers, namely, the United States, but everything seems to suggest that the United States, under the leadership of “Genocide Joe” Biden, has come to accept genocide as a solution to the Palestine-Israel conflict.

How did we get here? In my opinion, the basic dynamic of the conflict between Israel and Palestine can only be understood through what behavioral economists call the ultimatum game. One of the lessons of the ultimatum game is that human beings have a general tendency to reject unjust outcomes, even when submitting to an unjust outcome would advance their economic welfare from the perspective of classical economics.

The tendency of human beings to prefer self-destruction over submission to unjust outcomes is well-illustrated in the famous Melian Dialogue of Thucydides’ The Peloponnesian Wars, the classical account of a several decades’ long war between Athens and Sparta over domination of the ancient Greek world.

In 2005, before I became a law professor, but was already despondent over the future of the Middle East and despairing over a just settlement of the Palestine/Israel conflict with the collapse of the Oslo Peace Process, I wrote a short essay, “Palestine and the Melian Dialogue.” The Melian Dialogue is a poignant presentation of the conflict between perceived right and the realities of might, precisely what I believe drives the conflict between Israel and Palestine. The Zionist movement, and later Israel, has always relied on overwhelming military might to create facts favorable to its political ambitions, and then seeks to compel the Palestinians to recognize those facts, regardless of the dubiousness of Israel’s normative claims. Given the structure of the interactions between Israel and Palestine, the only rational moves for Palestine are either to surrender or, by engaging in effective, but ultimately self-destructive, violence, convince Israel that it would be better off making a more generous offer. But for a strategy of resistance to superior power to prevail, the weaker party must also rely on the possibility of third-party intervention, others moved to act based on the injustice they see being done. Hence, the necessity of international law for the Palestinians, but its irrelevance to Israel.

We are witnessing this dynamic in real time today, as Israel applies genocidal violence against Palestinians in the Gaza Strip, and supporters of the Palestinians’ rights are mobilizing worldwide to restrain Israel in the name of international legality. My 2005 essay, although written almost 18 years ago, is frighteningly relevant to current events. I reproduce it below:

Watching the progress of the bloodletting among Palestinians and Israelis, one feels that he is a witness to a reenactment of Thucydides’ Melian dialogue.  Thucydides, the celebrated ancient Greek historian, tells us that when mighty Athens “invited” the tiny island of Melos to join its empire, the Melians responded by noting pessimistically that “all we can reasonably expect from this negotiation is war, if we prove to have right on our side and refuse to submit, and in the contrary case, slavery [if we submit and accept your terms].”  The Athenians dismissed the relevance of the Melians’ response, telling them that “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”  The Athenians warned the Melians of the grave consequences that would befall their land if they stubbornly insisted on independence, warning them against entertaining hope in either the gods or their kindred against Athens’ awful might.  The Melians, however, disdained the path of prudence, and instead, did choose to place their trust in “the gods . . . and in the help of men.”  Unfortunately for the citizens of Melos, the gods and men proved themselves unworthy of their trust. The Athenians laid siege to their city, and after some initial setbacks, they took the island, killed all the adult males, enslaved the women and children, and replaced the Melians with Athenian settlers.

Today’s Palestinians are in a situation not substantially different from that facing the Melians – either to stand on right, and face almost certain annihilation, or to accept the path of prudence, and submit to permanent Israeli domination.  In a rare moment of lucidity, Newsweek, at the time of the Camp David II negotiations, noted that peace would require Palestinians to “accept the bittersweet reality of permanent domination by Israel.”  In that one sentence, the naked power that lay behind the peace process was made plain to all by disclosing, honestly and forthrightly, that the purpose of the peace process was not to establish reasonable terms of coexistence between Arabs and Israelis; rather, its purpose was to enshrine Israeli domination over the Palestinians by “convincing” them that it was more prudent to submit to superior power than it was to stand fast on principle.  As we now know, the Palestinians, like the Melians before them, “foolishly” chose to have hope in the future rather than to submit to a certainty of domination, a domination made more “bittersweet” if obtained under the imprimatur of a legitimate peace treaty.

That the expected outcome of the peace process was not to be peace so much as submission should not have surprised any but the most casual observer of Israeli-Palestinian relations.  When Theodore Herzl, the founder of modern Zionism, dispatched two rabbis on a fact-finding mission to Palestine in the late 19th-century, they reported to him that “[t]he bride is beautiful, but she is married to another man,” a reference to the incontestable fact that Palestine was not an empty land awaiting Jewish settlement, but a land that already teemed with inhabitants, inhabitants who lived in its cities and towns, inhabitants who developed that country with their labor, as demonstrated in their arts, crafts, agriculture, business, and other manifestations of human civilization.   Instead of this fact deterring the Zionist project, however, the Zionist movement adopted the strategy of the “Iron Wall”: Zionism would prevail over the Palestinians not on the basis of a superior moral claim that could be presented to Palestinians with the reasonable expectation that they would give it their assent, but on the basis of overwhelmingly superior power, presented in the nature of a fait accompli or ultimatums, that would compel the Palestinians to submit to the Zionist program.  

Zionism’s stubborn refusal to recognize the existence of inalienable Palestinian rights in historical Palestine has resulted in the two sides being caught in a deadly ultimatum game.  The internal logic of an ultimatum game requires that each move be accompanied by a marginal increase in violence until one of two possible long-term outcomes is reached: either both parties realize the irrationality of the game, and abandon it in favor of a compromise based in equality, or the stronger player obliterates the weaker one. 

The collapse of the peace process, the ensuing bloodletting, and the strategies subsequently deployed by both the Israelis and the Palestinians during Intifada II are perfectly predictable consequences of a framework that afforded no concern to legality.  Some might dismiss a stubborn insistence upon legal rights as either pie-in-the-sky idealism, or extremely dangerous insofar as it promotes false hope in the Palestinians, or both.  Yet, lawyers know that in the absence of a baseline of entitlements that only law provides, it is virtually impossible for any negotiation to be concluded successfully.  In a context of lawlessness, each party gets only what it is strong enough to take.  By its very nature, therefore, the Palestinian-Israeli peace process, has encouraged unilateral actions that only produces in the other side the desire to strike quicker, faster, and harder. 

Moreover, because the Israelis enjoy overwhelming military, the Palestinians know that the end game is their annihilation, and accordingly, the only way they can “win” this game with Israel is to convince it that the cost of victory is too high by demonstrating their toughness.  Indeed, if we are to believe Thucydides, the Melians, upon rejecting the Athenians’ offer, did not sit around waiting for the inevitable Athenian invasion: They immediately initiated hostilities with Athens. But, because of the overwhelming disparity in the power of the two sides, the only likely outcome, if the parties are left to themselves, is the destruction of the Palestinians. Certainly Israel has no incentive to abandon the game, and the Palestinians, cannot abandon the game without surrendering.  The United States is the only power that can impress upon both parties the desirability of abandoning their game.  Were the Bush administration to insist that the peace process proceed on the basis of the universal values enshrined in international humanitarian law, it would rescue the Israelis and the Palestinians from the ever-increasing spiral of violence that marks the grim progress of an ultimatum game.  So far at least, the Bush administration has eschewed a law-based approach to the Israeli-Palestinian dispute, and has tacitly chosen to remain passive in the face of Israel’s decision to proceed in its next round of escalation.  In these circumstances no one, especially President Bush, should be surprised that, in the words of Yeats’ Second Coming, “Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world,” and we are all left to wonder “what rough beast, its hour come round at last, Slouches toward Bethlehem to be born?”  And, Israel too, ought to heed both the prudential words of the Melians – that exercise of might unrestrained by justice inevitably reduces security, as all will feel threatened and will eventually confront what they collectively perceive to be a dangerous threat – as well as the eventual, disastrous defeat the Athenians suffered at the conclusion of the Peloponnesian War.   Israel may very well its immediate battle with the Palestinians, but in so doing, it may also end up losing the war.

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What does Carl Schmitt Have to do with the Spiro Scandal at the University of Toronto?

Oct 09

Over the last few days, I received several personal emails from Jewish attorneys in Toronto, expressing alarm and pain after learning from a B’nai Brith Canada press release that I had included a picture of Justice Spiro in my Twitter profile, along with a quote from political theorist and jurist Carl Schmitt, who also happened to be a Nazi. They also thought the phrase in my Twitter profile, “Schmitt lives in Toronto,” was a reference to Justice Spiro. They therefore concluded that I had compared Justice Spiro to a Nazi. I replied to them politely, but without a thorough explanation why I chose the Twitter profile picture that I did, and why it included one of Carl Schmitt’s most (in)famous statements. Although I never intended to compare Justice Spiro to a Nazi, I can understand in retrospect why some people understood that my twitter profile did just that. I am deeply sorry for the pain that I unintentionally caused them.

I feel that I also owe them an explanation. My intent with the profile and the adoption of the moniker “Schmitt Lives in Toronto” was to highlight both the lawlessness Justice Spiro displayed in his actions in connection with the hire of Dr. Azarova, and the weak-kneed institutional response of the University and the Faculty of Law to his conduct.

The lawyers who reached out to me were right to note that Carl Schmitt was a Nazi who played a role in the rise of the Nazi Party to power in German in the 1930s, and I certainly agree that his politics and actions were loathsome.

But Schmitt was much more than a run-of-the-mill Nazi apparatchik: even before the rise of Nazism, he had been recognized as a prominent conservative legal professor and a powerful critic of liberalism and the liberal ideals of the rule of law. Unfortunately, despite his association with Nazism, his writings have made a comeback in the post-9/11 world. Questions similar to those he posed in Weimar Germany about the relationship of the rule of law versus emergency law have re-emerged in the wake of 9/11. Some contemporary scholars found his searing critique of liberalism appealing, even while distancing themselves from his Nazism. For example, legal scholars such as Paul Kahn at Yale, and Adrian Vermeule at Harvard, who are each critical of liberalism in his own way, have adapted elements of Schmitt’s political critique of liberalism to their own analysis of American law. 

While the ongoing appeal of Schmitt deeply disturbs me, he has become a central figure in contemporary jurisprudential debates involving issues of democracy, constitutional law and the liberal ideal of the rule of law. Anyone concerned with preserving liberal ideals of the rule of law in today’s environment must contend with Schmitt’s critique of liberalism and the rule of law. Indeed, one of my colleagues at the Law Faculty, David Dyzenhaus, has written extensively and eloquently, in defense of the liberal ideal of the rule of law and against Schmittian conceptions of the law and politics. Outside of the narrow circle of political and constitutional theorists, and some critical humanities scholars, however, Schmitt is an obscure figure, and so it is not surprising that my twitter profile could cause confusion.

I decided to change my twitter profile to a picture of Justice Spiro, with the quote “The sovereign is he who decides the exception” shortly after the release of the Cromwell Report, and after the University and the Faculty used it to claim full vindication of their conduct after Justice Spiro intervened to block Dr. Azarova’s appointment as director of the International Human Rights Program. The University continued to claim vindication despite the searing criticism that had been leveled at the incompleteness of the Report and its unjustified conclusions by voices within the Faculty of Law and voices outside of it. I observed that Justice Spiro’s intervention and the reaction of the Faculty and the University to it, raised in principle – albeit at a much smaller scale – some of the same theoretical problems concerning how to respond to breaches of the rule of law that we at the Faculty of Law have been discussing over the last two decades since 9/11.

One of Schmitt’s most important critiques of liberalism is that liberals constitute a “chattering class.” He asserts that liberals, when push comes to shove, lack the moral courage to defend the rule of law against authoritarian assertions of sovereign privilege, even when democracy itself is threatened. I adopted the phrase “Schmitt Lives in Toronto” as a critique of the University of Toronto and the Faculty of Law’s reaction to the IHRP hiring scandal. From my perspective these institutions behaved in precisely the fashion that Schmitt predicted when their norms were threatened: by backing down. In my opinion, the institutional response to Justice Spiro’s conduct was, and to a large extent has been, one of paralysis, served with a large dollop of wishful thinking on the side. The institutional indifference to Justice Spiro’s intervention in the IHRP matter sadly confirmed Schmitt’s criticism of liberals.

As for Justice Spiro himself, his conduct mirrored that of the Schmittian sovereign. He flagrantly disregarded the applicable norms of the rule of law when he interfered in Dr. Azarova’s hire and arrogated to himself the prerogative of excepting himself from ordinary legal norms that apply to others.

Justice Spiro gave himself the authority to breach at least three different sets of legal norms, ostensibly out of concern to deal with the “emergency” arising out of the imminent hire of a scholar who had written critically of Israel and in solidarity with Palestinian human rights.

First, he must have known that the information CIJA received regarding Azarova’s imminent hire was obtained by means of an unauthorized disclosure. Legal ethics prohibited him from taking advantage of that unauthorized disclosure. Yet, that did not stop him from contacting the University and further relay additional confidential that he acquired from his contacts within the University back to CIJA.

Second, he knew that as a judge, the judicial code of ethics prohibited him from involving himself in a controversial political issue. Yet, he interfered anyway.

Third, he knew that it was inappropriate for him – from the perspective of the University and the Faculty of Law of which he considers himself a close friend– to attempt to influence a hiring process. Yet, he did so anyway.

That he did so for what he believed were altruistic reasons makes it no less an exercise of the “exception” and no less subversive of the rule of law.

Justice Spiro, it is true, has expressed “contrition” over his conduct before the Canadian Judicial Council. To my knowledge, however, he has not apologized to those whom his conduct most directly injured: Dr. Azarova, the University of Toronto Faculty of Law’s student body, and the Faculty of Law itself. He has taken no concrete steps, to my knowledge, to rectify his breaches of the norms of legality that apply to all of us, to say nothing of the norms applicable to the conduct of a sitting judge, whom we reasonably expect to abide by such norms more strictly than the ordinary citizen.

It has never been my intention to compare Justice Spiro to a Nazi: I don’t need to invent false charges to be critical of his conduct and the conduct of the University of Toronto in this sad affair. Rather, my intention was to draw parallels between the attack on academic freedom and the University’s acquiescence and broader attacks on liberal democracy and the fragility of the rule of law. I should have considered that those who aren’t versed in contemporary debates around Schmitt and his writings could interpret the choices I made on my Twitter profile differently and would be hurt as a result. Unfortunately, I didn’t, and I am deeply sorry.

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Legal Shortcomings in the Cromwell Report

Apr 24

Besides the procedural limitations inherent in the Cromwell Report that render its contested factual conclusions essentially worthless, the conclusory nature of its legal conclusions equally undermine its persuasiveness.

The principle substantive legal controversy was whether an offer was made to Dr. Azaravo and she accepted that offer, in which case the former dean’s actions would have amounted to a breach of contract, not merely repudiation of an offer.

Justice Cromwell disposes of this question in a couple of sentences:

The law of contract formation is notoriously ambiguous, and as a non-Canadian lawyer, I am in no position to comment on whether the communications between the Assistant Dean and Dr. Azarova were sufficient to form a contract under Canadian law. What I do know, however, is that Justice Cromwell reaches his conclusion that no contract was formed without any legal analysis. He simply concludes, without applying the relevant doctrinal elements of a contract to the facts, that no contract was formed. As students who have taken my classes know, that kind of defective reasoning can never earn more than a passing mark. It is certainly not what we would expect from a retired Supreme Court Justice.

But whether a breach of contract occurred is a mere distraction from the principle issue: was the dean motivated by an improper purpose when he took an adverse employment decision against Dr. Azarova, whether we call that termination of an offer or breach of a contract? This too is a complex claim, entailing substantive elements — what is an improper motive, and is it even relevant in an administrative post subject to the dean’s discretion — and an evidentiary component, namely what kind of evidence is required to show an improper motive if indeed motive is legally relevant in determining the validity of the dean’s action?

Although Justice Cromwell fails to describe the substantive legal framework structuring his inquiry, we can assume that he agrees that the former dean, even if he had plenary authority over who filled that office, did not have the right to exclude a candidate based on the political complaints of third parties unrelated to the academic and professional qualifications of the candidate. Indeed, he states that the University agreed with that position as well.

But Justice Cromwell crucially omits the evidentiary burden that those challenging the former dean’s decision must meet in order to prevail. I discussed this glaring omission in a recent twitter thread. While he gave his notorious conclusion — “I would not draw the inference that the Dean’s decision was influenced by improper considerations resulting from the Alumnus’ inquiry” — he leaves out the evidentiary basis that was required for him to reach a contrary conclusion.

We don’t know, for example, if he was of the view that proof of wrongdoing against a dean can only be satisfied by “clean and compelling” evidence — a standard a little less demanding than the criminal law’s requirement of beyond a reasonable doubt — or whether he was applying the “more likely than not” standard which is ordinarily what prevails in civil litigation, or whether he was applying an even more demanding standard, namely, that the dean could only be found to have violated his duties if no innocent explanation can be posited for his conduct. Given the procedural limitations of his inquiry, his conclusions are consistent with all of these standards. The fact that he did not tell us what standard of proof he was applying is just another reason why his findings can’t possibly bind any third-parties.

Even assuming he was a court of last resort (which the former Justice Cromwell was not), different evidentiary standards have an important role in determining the preclusive effects of a judgment. Accordingly, if he believed that he could not find against the dean in the absence of clear and compelling evidence, or only if no innocent explanation could be found for his conduct, than his evidentiary requirements would be much more demanding than that of a different tribunal, that of the Canadian Association of University Teachers, for example, or that of a trial court applying a more likely than not standard.

In short, because Justice Cromwell did not explain to us the relevant evidentiary demands required to prove the case, we are not in a position to know whether his conclusions should be respected by third-party observers who may not be bound to the same evidentiary demands. He might believe, for example, that given the role of the dean in the governance structure of the university, his discretionary actions should only be overturned with clear and convincing evidence. But that concern would not bind CAUT in its deliberations, which are concerned not with the dean as an administrator, but with the effect of a decision on academic freedom. In short, the former dean might be entitled to broad, even sweeping, deference in one forum, but little to no deference in another, given the difference in the nature of the remedies at stake.

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