The Rule of Law and the Emerging Culture of Accountability on the World Scene

"The Rule of Law and the Emerging Culture of Accountability on the World Scene"

Thank you very much for this generous, too generous, introduction. I have to tell you--, although they were watching me, too, I can tell you, so I can testify first-hand as to how ferocious they can be in the pursuit of human rights ideals.

I'm delighted to be amongst you today, particularly since I have left my post in the Hague almost a year ago--it will be a year next week. In taking on my new duties on the Supreme Court of Canada I consider it a luxury and a privilege to have an opportunity to reflect with some distance, not tremendous emotional distance, but some distance, on the work that I did in The Hague and in Arusha in Tanzania for their tribunal. So I consider it a real opportunity to be able to talk to you today and later on to take your questions, again as an opportunity for me to reflect on the work that has been done and on the work that is ahead of us.

I think it is appropriate for speakers to give some context, or at least to issue a disclaimer, as to where they're coming from in their presentation. I think it's fair to say that I certainly perceive myself, as a Canadian and as a judge, as coming neither from an indispensable nation nor an indispensable profession. Having said that, I hope that my perspective today will reflect my commitment as a Canadian and as a judge to the rule of law. So if you will allow me, I will try to give you a little bit of an overview, a broad sketch, of where we've come from on the international human rights agenda and then turn to where I think this is heading and express, I think, my confidence that it is heading very much in the right direction.

Since their inceptions, the tribunals with which I was associated dealt on a daily basis with some of the worst excesses of intolerance and injustice. We did that work despite the setbacks, despite the skepticism, and even worse, in my view, despite the widespread indifference that often surrounded that kind of work. But we worked in an environment where commitment, determination and the vindication of hope prevailed at all times. I think this is one of the hallmarks of the human rights community. These same qualities, I think, we can now reseek and refind amongst the work of many, including Human Rights Watch and many other organizations who are promoting throughout the world the idea of the growth of principles of democracy including justice. I said earlier I cannot claim much emotional detachment, I cannot even claim much intellectual detachment, when I speak to you today about international criminal justice and peace. It is my firm belief that we stand at a critical moment in the development of fundamental concepts of international justice as they relate to human rights. Effectively, we are on the brink of a new era of international humanitarian law, one that has grown out of what has really been an evolving recognition that as global citizens we are all entitled, regardless of where we live, to access to justice and freedom from the grossest abuses of the most basic human rights. So allow me to reflect briefly on how we have arrived at where we currently stand and what are the challenges that are ahead of us.

At the outset of what can be called the first era of international humanitarian law, its rudiments served the basic purpose of laying down what was commonly called "the law of war." It addressed itself essentially to states, and it declared when it was permissible to wage war and what form of belligerent conduct was acceptable to the community of nations. This first era of international justice saw a progressive passage from regulating intrastate relations to recognizing human rights. Efforts to humanize war through law evolved beyond the regulation of the conduct of hostilities to converge more and more on a protection regime for the most vulnerable, ranging obviously from prisoners of war to civilian populations. This led them to the second era of international justice, articulating, codifying and enshrining rights. In fact, immense progress in the implementation of international humanitarian law, the law of war, was made during that second era, and it came essentially from the leading international instruments of the second half of what we must now call the last century.

Notable milestones included the 1945 Nuremberg and Tokyo Charters, from which the concept of crimes against humanity emerged. The 1948 Genocide Convention, the 1948 Universal Declaration of Human Rights, the 1949 Geneva Convention and their two additional protocols in 1977, as well as several other international instruments targeting the elimination of torture and discrimination--these instruments took on mostly a declaratory quality. Yet I don't think we can minimize the impact of these international instruments. The basic tenets of human rights were established, serving as a model for many national codes and charters which were then enacted and which were accompanied domestically by very strong enforcement mechanisms. This certainly was the case in Canada with the enactment, in 1982, of the Canadian Charter of Rights and Freedoms which led to the unprecedented vitality of human rights and civil liberties litigation in progress in Canada. On the international scene, the broad scope of the ideal of justice was painted, but in enforcing the codified rights to attaching an international criminals sanction to the deliberate violations of these fundamental human rights seemed for a very long time completely out of reach. And yet there were many calls for international enforcement mechanisms that were made in the course of that second era.

The next most important step in the development of this body of international regulations, of course, came in 1946 during the trials at Nuremberg where the Nazis war criminals faced criminal trials triggering their own personal responsibility and imposed upon them by the victorious allies. The subsequent Geneva Conventions developed a judicial stage further by establishing a minimum requirement that states must either prosecute themselves or extradite to countries willing to do so violators of the conventions in non-international conflict.

We find for the first time in Article 6 of the Genocide Convention and in Article 5 of the Apartheid Convention the further step of calling for the creation of an international criminal jurisdiction to prosecute these types of crimes, which are rooted in the concept of an affront to the dignity of humanity itself. Unconscionable atrocities had to recur to act as a catalyst to revive the call for international criminal justice, events of unprecedented barbarism, unthinkable after the excesses of the Second World War. Mass genocide in the Great Lakes region of Africa, ruthless ethnic cleansing in the former Yugoslavia brought the idea of judicial enforcement to the forefront of the international agenda and paved the way to what I would now see as the third era of international criminal justice-the era of enforcement.

How to effectively prosecute war crimes and, if necessary, to pierce the veil of state sovereignty became the principal focus in the early period of this new era. Criminal law, with very few exceptions, is domestically applied and reaches only very modestly outside state borders. In the most extreme case, this is done essentially with the effect of insuring the impunity of those who can control the might of the state for their own benefit. Often that tends to be the case in states which become the prime violators of human rights and the main oppressor of their own people. Therefore, prior to the international criminal justice third era-this era of enforcement-the norm remained that the only entity that was legally entitled to prosecute the violations of international law was often the perpetrator itself.

This obvious tension and paradox demonstrates how the establishment of an international criminal jurisdiction faces many conceptual and practical hurdles. For example, the implementation of international criminal justice requires, in my view, a solid intellectual underpinning, and that is not immediately apparent. It calls for the merger of two legal disciplines that are conceptually very different. On the one hand, international law is fundamentally a consensual body of law created by sovereign states and very deferential to state sovereignty. It's a body of law that depends largely on the willingness of states to comply with normative rules, very few of which are applicable to all states regardless of their specific acceptance. The main source of these norms in international law is either signed covenants or treaties or international customs that are derived from state behavior. Criminal law, on the other hand, is anything but consensual. It is authoritarian and corrosive. It's profoundly preoccupied with abuse of power, and at times criminal law is very suspicious of state action. Essentially, it is focused on the individual, not on states, on individuals whom it calls to account in the name of the state. If criminal law were to become an instrument of international peace and security, it was apparent that it would probably have to avoid the notion of putting states on trial. Not only would a system seeking to characterize one state as guilty and another one as innocent have difficulty promoting peace and harmony in the international forum of equal states, but also it would betray the idea that crimes are committed by people, not by abstract entities.

Another hurdle to enforcing international criminal justice was the concept, which is a fundamental concept in international law, that only states participate in international affairs. Since states can only act through their officials, these officials are granted some of the attributes of the states, such as privileges and immunities. Under the general construct, these individual actors do not engage their own personal responsibility but only that of the state, with the convenient result that individuals could escape altogether any form of criminal accountability, at least outside their own borders. The Nuremberg Charter, like the statute of the international criminal tribunals for the former Yugoslavia and for Rwanda, explicitly rejected the concept of the merging of the idea of state sovereignty into the immunity granted to officials, at least in the face of genocide, crimes against humanity and war crimes. It began the important process of unraveling the culture of impunity that had allowed such crimes to go unpunished.

This is essentially where we now stand, at a critical moment in the development of fundamental concepts of international justice as it relates to human rights, on the eve of the establishment of an effective international criminal jurisdiction. The past half decade, in my view, has witnessed more positive incentives toward enforcing human rights than the last half century. Fifty years after the advent of the UN Charter and the Declaration of Human Rights, this new era is marked by the dramatic passage from the caring rights to enforcing rights. Justice is now asserting itself as a partner to peace and security. At least in the common law tradition, a crime is called "a breach of the peace." This explains why law enforcement officers are often called "peace officers." The link between criminal law enforcement and the restoration of peace and order, which is so obvious in a domestic environment, is still being challenged on the international scene by many who argue that justice can, in fact, be an impediment to peace. This, I believe, is a misguided view which simply equates peace with the absence of open warfare and which focuses only on the short-term admittedly disturbing, consequences of the exposition of the truth through criminal prosecutions.

Looking ahead, I believe that building up the legitimacy of international criminal justice is absolutely key to any effort to establish peace where conflict and human rights abuses have had the upper hand. We take the legitimacy of criminal justice for granted in Canada and the United States, but unfortunately there are many people elsewhere who have never been before exposed to a justice system in which they can have confidence because their own system often lacked integrity and resulted in political interference and corruption. It is, therefore, very difficult for us to truly understand the profound vulnerability of people who struggle to survive in war-torn areas of the world, who live precariously in fear of death, torture, rape, persecution, and deportation. In fact, we may at times feel overwhelmed by their loud and insistent demands for help in establishing peace democracies when we find ourselves lacking the means and sometimes the patience to respond in the face of atrocities and human rights abuses we had promised ourselves at the end of the Second World War would never happen again.

Fifty years after the Holocaust, after our revulsion at the worst excesses of two world wars, it seemed inconceivable that we would ever tolerate again these manifestations of man's inhumanity to man. Thankfully an increasing number of actors are emerging from all sectors of civil society to insist on being more than impotent witnesses to history. At the same time, we cannot easily export our well-founded North American assumption that justice always acts fairly and independently. Therefore, any effort at enforcing international humanitarian law must convincingly demonstrate that it is not the mirror image of the local human rights abuses that it is designed to address, and this is not a small task. It is often difficult to persuade those who reduce everything to ethnic, racial, religious, or political loyalty that there is a historical reality driven by less noble forces, such as greed and the quest for personal power at all costs.

Fear also plays an important role, both in the experience and in the perpetuation of human rights abuses. More often, fear is perceived as oppressive and paralyzing, especially for the innocent civilians who bear the brunt of these atrocities. At the same time, however, fear is a trigger for irrational action and is often found at the root of oppression. In the raging conflicts where crimes against humanity occur, perpetrators of atrocities may find themselves acting out a misperceived and fabricated self-defense fueled by their own fear and, most importantly, by their shame of being afraid. If we can eradicate fear through institutions of democracy and justice, creating a safe environment, tolerant of dissent and difference, I believe that we will succeed in liberating both the oppressed and their oppressors.

For people who have survived the oppression of war crimes and human rights abuses in wartime, rebuilding a state of law and order requires the eradication of the culture of impunity. The international criminal tribunals, like the Nuremberg Tribunal before them, explicitly reject the concept that state sovereignty provides impunity from prosecution for genocide, war crimes, and crimes against humanity. These ad hoc tribunals embody the ideals of universal jurisdiction and personal criminal accountability, which I believe, is a powerful antidote to this cyclical revenge pattern, which maims one generation in the name of another.

Fifty years ago in the preamble to the Universal Declaration of Human Rights, justice was inextricably linked to peace. Today we postulate that enforcement of the former guarantees stability of the latter and that lasting peace requires accountability for war criminals. A retreat from the promise of the third era of international criminal justice would be a cynical encouragement to those who until recently had every reason to believe that they were unanswerable for their crimes, that there existed no authority higher than their own, and it would also be a betrayal of those who obey the law and seek its protection. In the 1995 preface to a new edition of his 1954 book called Tyranny on Trial, Whitney Harris, who was a junior prosecutor at Nuremberg under the direction of Justice Robert Jackson, the U.S. Supreme Court judge who led the American prosecution team, expressed that same sentiment in referring to the ad hoc tribunal and to the proposed international criminal court. He said, "Some day there will be an international court of criminal jurisdiction to deal with the tyrants of tomorrow." We have put tyranny on trial. It is our duty to keep tyrants under the law.

Once again you dove into the New World Order pool. Are you sure you're not a socialist? Do you have any idea what the Universal Declaration of Human Rights is??? Sounds great until you get to Article 29 (3). The devil is in the details.

Universal Declaration of Human Rights

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Good response.

Socialists overwhelm you with self congratulatory, high felutin, utopian chatter while glossing over the succinct poison pill.

By the time you get to Article 29 you are so lost in the sauce that you could fly right by it.

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