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SOPHIA OF WISDOM III - CAROLINE-MCLEOD CASE
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THE LIBRARY OF SOPHIA OF WISDOM III
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CAROLINE E. KENNEDY____________________________
SEPTEMBER 27, 2006
MISKOLC JOURNAL OF INTERNATIONAL LAW
HOLY RELIC
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RE: THE AFFAIR OF THE CAROLINE AND THE MCLEOD CASE
Journal of the International Law Department of the University of Miskolc -MiskolC Journal of International Law-Miskolci Nemzetközi Jogi Közlemények-Vol. 1. (2004) No. 2. pp. 104-120.-Louis-Philippe ROUILLARD[1]:
The Caroline Case : Anticipatory Self-Defence in Contemporary International Law
(The Carolina - drawing in a contemporary newspaper)
On June 1st, 2002, the President of the Republic of the United States of America announced to the graduating class of the United States Military Academy at West Point, and to the world at large, that his Government is determined to guarantee the safety of America and that it is determined to wage preventive wars to do so if necessary[2]. The following National Security Strategy released in September 2002 reflected this change of policy[3]. It went from deterrence and containment to first strike against rogue States and terrorists. Its chapter V stipulates that this is rooted in the changes of circumstances, mainly that terrorists and rogue States will not be deterred from using weapons of mass destruction. Therefore, it argues that the United States can rest upon a long-held option of pre-emptive action to counter a threat to national security. In fact, chapter V goes as far as to say that this option has long been recognised under international law and that the United States need not suffer injury before they can take action to defend themselves[4].
However, the legal basis for such a bold policy has not been clearly stated by the United States’ government. And of what has been stated, there has been a very one-sided version of the applicable international law of the use of force prior to the suffering of an armed attack. While the Administration has claim high and mighty its right to use force pre-emptively, most scholars have disputed this notion and minimized the reach of the custom that is currently recognised in international law. While a history of the use of force has existed for centuries, the right of self-defence under the Charter of the United Nations does not support a broad right of pre-emptive actions.
The right of self-defence has always been recognised, whether in municipal or international laws. But the right to anticipatory self-defence has not been expressively incorporated. Indeed, the Charter of the United Nations makes a very clear point of trying to limit the right to use force to two instances: self-defence, individual and collective after an armed attack under article 51[5], and collective measures to restore international peace and security under article 42[6].
Nonetheless, some States have indeed maintained that there remain within the right of self-defence a right to prevent an armed attack from occurring by using anticipatory self-defence. The United States are one such country, and it is the Caroline incident with the United Kingdom in 1837 that gave rise to a formal interpretation in international of what anticipatory self-defence consist.
From this case and its subsequent application, the United States’ government bases it new “Bush Doctrine”. However, the interpretation of the Caroline incident today, even if international law had not changed since, remains to be determined. Furthermore, the application of the Caroline incident in contemporary international law after the adoption and application of the Charter of the United Nations may also very well not be possible.
To determine the validity of the proposed Bush Doctrine, one must therefore review the doctrine of anticipatory self-defence and examine the application from the Caroline incident and it subsequent interpretation. This is what this article will do.
I will first look at the facts of the Caroline incident of 1837 and the legal conclusions applicable in international law as determined at the time by the parties concerned. I will then analyse the effects on this concept by the
League of Nations and the Organisation of the United Nations.
I will finally examine the contemporary development and the application of the doctrine to the cases created by the actions of the United States in the past two years.
**The affair of the Caroline and the McLeod Case**
**My name is Caroline E. Kennedy, Jr. and Kirk McLoed of Seven Nations recorded songs SEEDS OF LIFE & GOD. It also happens that the TERRORISTS have taken me back in time. I should of been the 1st President of The United States under the name of "MOTHER" ANN LEE and again the last President as Caroline E. Kennedy, Jr. in 1977 after HIGH SCHOOL which explains the POTUS REPORT from Skolnick Report.**
The Caroline incident concerns a steamboat bearing that name used for revolutionary purposes in the rebellion of Upper Canada, a Province of the Dominion of Great Britain ; nowadays the Province of Ontario, Canada. The rebellion of 1837 was rooted in the political system of cronyism that pervaded colonial politics in the British colonies of the Canadas, both Lower and Upper. It flared because of insensitivities of the British authorities towards the complaints of the inhabitants of the Canada and the confrontationist attitude of the Crown[7]. While much have been made of the democratic and nationalistic issues of the Quebeckers, the rebellion had more to do with a non-representative system and underlying patronage. The rebellion of Lower Canada was over by the end of the summer and that of Upper Canada was in disarray by December 1837.At that time, the remnants of the rebels fled to the United States where they tried to raise support for further continuation of the rebellion in Buffalo (New York). This presence and threat caused to international peace between Great Britain and the United States was known to the American authorities. Instructions were issued to the districts attorneys of Vermont, Michigan and New York stating the President’s intention to respect its international obligations and abstaining from any intervention in the domestic affairs of another nation[8].
On December 13, 1837 the rebel MacKenzie issued a proclamation for rebellion and recruited American help for the invasion of Upper Canada. A headquarter was set up on Navy island, a small island part of British territory across the Niagara River where the shores between Canada and the United States are at a very close point. These movements created enough attention on the British side of the river as to have the Lieutenant-Governor of Upper Canada send a message to the Governor of the State of New York to inform him of the situation. No answer came back. Between the 13th and the 28th of December, 1837, up to 300 men under the leadership of an appointed an American ‘general’ named Van Rausselear were armed and joined the headquarters of the Canadian rebels on Navy Island[9]. By the night of December 29, 1837, this force was seen growing to 1000 armed men. Reinforcements were made through constant movements from the American shore to Navy Island[10], between three in the afternoon and dusk[11].
Seeing the use made of the ship, Colonel Allan Napier McNab, the officer commanding the British forces at Chippewa, judged that the destruction of the Caroline would prevent further reinforcements to Navy Island and deprive the rebels of their mean of invasion. He therefore ordered an expedition to be sent out for this purpose. According to the master of the Caroline, the ship was docked and moored at Fort Schlosser for the night with ten officers and crew on board, as well as twenty-three Americans who asked to be permitted to spend the night as they could not found lodging at the tavern near by. Around midnight, a force of 70 to 80 from several small boats boarded the Caroline and commenced warfare with muskets, swords and cutlasses. The vessel was abandoned by all hands, the only efforts of its crew being to flee. Thus captured, the vessel was left to the possession of the British forces that cut her loose, towed her into the current of the river, set her on fire and let her descend the current towards the Niagara Falls, where she was destroyed[12]. Twelve persons were initially said to have been killed or disappeared.
As was established after investigations, it is a force of 45 men in 5 boats under the command of Commander Andrew Drew (Royal Navy), acting upon orders of Colonel McNab, that boarded, set fire to and let the ship descend adrift[13]. The place where the Caroline was moored was at Schlosser, a small landing point in the State of New York less than 5 kilometres upstream from the Niagara Falls, rather than Fort Schlosser, an old and abandoned American fort of the War of 1812 between the United States and Great Britain which was higher upstream from the falls.
Contrary to the opinions expressed at first, it is not 12 persons that died during that night, but two: Amos Durfee, killed on the docks by a bullet in the head, and a cabin boy known as “Little Billy”, shot while trying to escape the Caroline. Two prisoners were made: an American citizen of 19 years old and a Canadian fugitive. Both were let go: the American with enough money to pay for the ferry back to the United States and the Canadian after spending some time in the guard room at Chippewa[14].
On January 5, 1838, President Van Buren sent a message to Congress to ask for full power to prevent injuries being inflicted upon neighbouring nations by unlawful acts of American citizens or persons within the territories of the United States and General Scott was sent to the frontier with letters to the Governors of New York and Vermont, calling the militias[15]. The rebels were dispersed, but some continued the struggle within secret societies called Hunters’ Lodges. This led to another short-lived rebellion in Canada in 1838, but it was harshly and swiftly dealt with. In Canada, the impact of these rebellions was the Act of the Union of both Canadas into a single province of the Dominion, attempting to assimilate French-Canadian to diminish the likelihood of another attempt. The impact on the relations of the United States and the British Crown was one where a true settlement of the North-eastern boundary had to be reached if war was to be averted[16]. While the facts of the incident could be made light of were it not for the death of two persons, they are nonetheless of much importance as the whole doctrine of anticipatory self-defence rest upon them.
The legal argument concerning the case started with the note sent on January 5, 1838 by the American Secretary of State Forsyth to the British Minister at Washington, Fox, expressing surprise and regret for this incident and warning that this incident would be made the subject of a demand for redress. Mr. Fox replied by letter on February 6, 1838 and stated three defences for the actions of the British forces, namely: 1) the piratical nature of the vessel, 2) the fact that the ordinary laws of the United States were not being enforced at the time, and were in fact overtly overborne by the rebels and 3) self-defence and self-preservation[17]. This curt response to the American government marked an attitude of not taking the matter too seriously by the British Authorities. This exchange prompted the report of the Law Officers, but did not move the British Authorities to recognise any wrong-doing. This being judged unsatisfactory by the American government, the matter was brought up by the American ambassador in London, Stevenson, to the British Foreign Secretary, Lord Palmerston, who promised to look into the matter. The matter was indeed looked upon once more by the Law Officers. But their conclusion of March 25, 1838 and added to their report of February 21, 1838, was while the incident was regrettable, they felt that the actions of the British Authorities were absolutely necessary for the future and not retaliation for the past. As a result, they believed that the conduct of the British force had been, under the circumstances, justifiable by the Law of Nations. Arguments and reminders were made back and forth during the ensuing period, but none led to a satisfactory settlement of the question.
Meanwhile, the relations between the two nations remained difficult. The local population at Buffalo seemed inclined toward retaliation and conflict was quite possible. Also, British nationals in the United States suspected of having taken part in the events of the Caroline were made to stand Juridical Examination on charges of participating in the attack. A man named Christie was arrested those charges on August 23, 1838[18]. The Queen’s Advocate, seized of the case, counselled the British Minister in Washington, Fox, in a dispatch dated November 6, 1838, that such an arrest cannot hold due to the fact that the actions that Mr. Christie is accused of are acts of public persons obeying the orders of superior authorities. Therefore, Mr. Christie could not be held accountable for theses acts even if he had taken part in them[19].
Following this, a Canadian deputy sheriff named Alexander McLeod boasted of his part in the events of the Caroline during a passage through Lewiston, New York, on November 12, 1840. Acting on his ill-advised words, the American authorities arrested him immediately on charges of the murder of Amos Durfee and arson in connection of the burning of the Caroline.
On December 13, 1840, Fox addressed a note to Forsyth taking again the principles laid in the Christie case and by which public persons could not be held accountable for acts of governments. Forsyth replied that the arrest of McLeod was made by the authorities of the State of New York and therefore infringement by the Federal government in the state’s sphere of jurisdiction would not be appropriate.
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