Sunday, July 5, 2009

Rules of Engagement and the Hockey Rink

In most (legal) cultures, there is an ambivalent relationship with violence. In the majority of circumstances, violence that is engaged in by private (that is to say non-state) actors is not endorsed, even where they consent or assume the risk of being injured. Yet, in some limited circumstances, violence between private individuals is permitted and legalized. This is particularly so in the context of certain sporting events. In contact sports like boxing, kickboxing, and ultimate fighting, the principal goal is to inflict the maximum amount of bodily damage to one's opponent in order to emerge victorious. However, in other sports, violence may not be the principal feature/goal, yet nevertheless it plays a significant corollary component. One of these sports is hockey.

In hockey games, fighting between players is condoned to a certain level without intervention of the referees. However even though such violence is condoned, it is certainly not approved by all, with some certainly decrying this type of violence. Still, as it is permitted, there are certain norms that govern such violence, whether explicit or implied. For example, what happens when a hockey player, notwithstanding the violence that seems prevalent in the sport, refuses to engage in a fight when challenged and is then assaulted nevertheless. Is there a limit to the aggression one can engage in against an "unwilling combatant"?

A recent case arising out of the Quebec minor hockey league (Ligue de hockey junior majeur du Quebec - LHJMQ) provides one answer to that question. During a melee amongst several players, a player from one team ("the aggressor") approached a player from the other team, struck him twice in the chest, inviting him to fight. The latter refused to engage and according to his testimony, he remained as still as a statute and refusing to remove his gloves indicating a willingness to fight. The aggressor then struck the other player with his stick resulting in a laceration requiring stitches and was confined to a liquid diet for a week. The aggressor was suspended for 15 games.

Yet the rules of the League was not the only normative framework in play. The player is now the subject of criminal prosecution for his unwarranted conduct. This in part demonstrates that unwarranted violence in a sport that often accepts violence is not tolerated in certain circumstances. It also demonstrates application of two different sets of rule-based frameworks that apply to a certain type of human interaction. In addition to this of course are any civil damages that the victim might seek.

The incident however implicated for me another series of norms that fall under the category of international humanitarian law, particularly the treatment of soldiers who have laid down their weapons. For instance, Common Article 3 of the 1949 Geneva Conventions provides that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms...shall in all circumstances be treated humanely...." In furtherance of this, the following acts are prohibited: "violence to life and person"; "outrages upon personal dignity, in particular humiliating and degrading treatment."

As a quick caveat, by raising this analogy I am in no way attempting liken or trivialize the seriousness of armed conflict to something akin to the violence of a hockey match. There are however, ideas we may grasp from the most unlikely venues. Soldiers are expected as part of their profession to engage in combat against enemy combatants. Yet, they are also expected to treat their enemies, particularly those who are wounded, rendered "hors de combat," or who have surrendered, in a humane manner. In our hockey scenario just discussed, we had one player clearly indicating his unwillingness to engage in a fight, but in the face of the refusal to fight, he was meted out the aggressor's punishment, subjecting him to unwarranted violence. What the law of armed conflict tell us is that if soldiers, individuals engaged in the most violent of human activity, are expected to observe certain norms of conduct against certain classes of individuals who would normally have been their enemies, clearly it is reasonable that stringent rules should apply to hockey players.

Turning to the real world, however, we are all painfully aware that notwithstanding the numerous international and national legal frameworks that apply to the conduct of soldiers, violations take place and will continue to be. The enterprise of trying to set down rules to govern warfare seems for many paradoxical given the (sometimes) utter savagery of the enterprise. Still there are some basic norms that soldiers must abide by. So too in other civilian based human activity, certain minimum rules exist.

Sources consulted:

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, 75 U.N.T.S. 135 (entered into force 21 October, 1950).

Marie-Claude Lortie, "Amateurs, pourquoi ne faites-vous pas le menage vous-memes?" La Presse. 3 Juillet 2009. A3.

Caroline Touzin, "La violence au banc des accuse." La Presse. 3 Juillet 2009. A2.

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