Osgoode Hall Law School
York University, Toronto, Ontario
January 17-18, 2005
Lorna Marsden welcomed participants to York University, noting that the symposium coincided with Martin Luther King Day in the United States.
Neil Finkelstein emphasized the "extraordinary life and contributionÓ of Raoul Wallenberg and his role in saving 100,000 Jewish people during the Second World War. He said that Wallenberg "personified the goals which should animate us today - the duty to intervene against genocide and protect the victims of state-sponsored violence.Ó
Finkelstein said that the symposium was intended not only to celebrate Wallenberg's life, it was being held to mark the 60th anniversary of the end of the Second World War and the liberation of the Nazi death camps, the 30th anniversary of the founding of the Helsinki monitors, and the 20th anniversary of the equality guarantee in the Canadian Charter of Rights and Freedoms.
"This symposium comes at a time of enormous human rights and national security challenges throughout the world, and the need for the rule of law and principled responses to genocide and terrorism has never been greater," Finkelstein said. He also noted that the participants' list for the two days included - in addition to a varied group of panellists from government, the legal profession, academia, non-governmental organizations (NGOs), and the media - five chief justices from across Canada, seven law deans, and students and faculty from fourteen law schools.
Irwin Cotler said that he appreciated the opportunity to join with participants in a common struggle against hate, impunity, and injustice, and in the larger struggle for international human rights and dignity. He noted that the United Nations had declared Raoul Wallenberg the greatest humanitarian of the 20th century, and that the Swedish diplomat had been known as a "Saint Just of Nations" who saved almost as many Jews during The Second World War as any government. The Minister described Wallenberg as a "lost hero of humanity" who "stood up to the Nazi killing machine to resist and, ultimately, to prevail."
It was Raoul Wallenberg who granted the diplomatic passes that conferred immunity on thousands of Hungarian Jews, and who encouraged other legations in wartime Budapest to do the same. His network of 32 safe houses, known as the "international ghetto," was replicated by other legations in an effort that saved 32,000 people. He organized hospitals, soup kitchens, and daycare centres - operations that have since been recognized as staples of international humanitarian assistance, providing women and children, the sick and the elderly with "a semblance of human dignity in the face of horrific evil." Wallenberg used diplomatic passes to rescue thousands from a mass deportation in October 1944, and arranged food and medicine for women and children who had been sent on a 125-mile death march in November of the same year.
In his most memorable act, Wallenberg prevented the Nazis from blowing up the Jewish ghetto in Budapest. Through a combination of bluff, bravado, and moral courage, he warned the Germans that if they pursued their plans for the ghetto and its inhabitants, they would be held accountable for their war crimes and crimes against humanity. The generals desisted, and more than 70,000 lives were saved.
"To the Jews, Wallenberg was [a] guardian angel," Cotler said. To Adolf Eichmann, the architect of Hitler's "final solution of the Jewish question," Wallenberg was the Judenhund (Jewish dog). "Would that there had only been 10 Raoul Wallenbergs during the Second World War," the Minister continued.
Cotler said that the 60th anniversary of the liberation of Auschwitz and of the United Nations Charter is "a rather historic, if not paradoxical juncture" for those involved in the struggle for human rights and human dignity. On one hand, the past 15 years have seen an explosion of human rights activity that would have been considered impossible earlier. The withering away of the Soviet Union and the dismantling of apartheid "have not only happened, but have already been forgotten," Cotler said. Human rights has emerged as a "new secular religion" and the "common language of humanity." The human rights revolution is now firmly enacted in international human rights and humanitarian law, in the internationalization of human rights, and in the humanization of international law. Ad hoc criminal tribunals have convened in response to ethnic cleansing in the former Yugoslavia and to genocide in Rwanda. The world has seen dramatic jurisprudence in the Pinochet and Milosevic cases, where the Nuremberg principle of non-immunity for heads of state was invoked after 50 years. And most important of all, the International Criminal Court (ICC) is now a reality.
But Cotler contrasted this progress with the reality on the ground, where communities and minorities are vilified and civilians are subjected to the ravages of armed conflict and genocide. "The refugees of inhumanity, the assaulted of Africa, the anguished in Asia and the Middle East, the brutalized child, the violated woman, the tortured prisoner, can be forgiven if they think this revolution has passed them by," he said. Recent atrocities in the Balkans, Rwanda, Sierra Leone, and now Darfur invite the rejoinder that the triumph of international law "is so much nonsense on stilts - that it is rights without writs, principles without protections, rhetoric without remedies, semantics without sanctions."
Cotler said that now - 60 years after Wallenberg's disappearance and the liberation of Auschwitz - asking what we have learned and what we must do is critical. Recalling Kierkegaard's observation that life is lived forward, but often understood backward, Cotler suggested nine lessons drawn from Wallenberg's history and humanitarian legacy, and from the subsequent struggle for human rights and human dignity.
The first lesson, he said, is the danger of assaultive speech and of a state-sanctioned culture of hate. One of the more enduring lessons of Nazi evil was that "it occurred not only because of the industry of death and the technology of terror at the time, but because of the ideology, indeed the pathology, of hate." The Supreme Court of Canada affirmed that the Holocaust began with state-sanctioned contempt for and demonization of "the other," but that those lessons have remained unlearned, and that the tragedy continues to be repeated.
Cotler described an "international trafficking in hate" that has taken the world down the road to ethnic cleansing in the Balkans and genocide in Rwanda, and that has contributed to the growing incidence and intensity of hate speech and crimes in Western democracies. He recalled the desecration of synagogues and Jewish cemeteries and violence against individual Jews that occurred in Toronto shortly after he became Minister of Justice, as well as the subsequent firebombing of a Jewish day school in Montreal (from which the Minister had graduated) and of a mosque in Mississauga. Canada responded with a nine-point program to combat hate speech and hate crimes.
Cotler also cited Wallenberg's exemplary efforts to establish "a culture of human rights in place of hate, a culture of respect in place of contempt. The message from our leadership and our democracies must be clear: We will not be a sanctuary for hate, a haven for bigotry, and we will be inspired by Raoul Wallenberg's understanding of and need for action in these matters."
The second lesson has to do with the relationship between security and human rights. Cotler said that Canada has worked hard to promote a two-part approach to counterterrorism law and policy - an approach organized with regard to human rights principles and perspectives. The first part, embodied in United Nations Security Council Resolution 1373, affirms that terrorism is an assault on the security of a democracy and the fundamental rights of its inhabitants. Counterterrorism must therefore be seen as a process of promoting and protecting public safety, security, and human rights. The second part is the assertion that enforcement and application of antiterrorism law "must always comport with the rule of law, that torture must always and everywhere be prohibited, that individuals and groups must not be singled out for differential treatment in the enforcement and application of our laws." Canada has carried this message to a variety of forums, including a recent meeting of justice specialists from Egypt, Israel, the Palestinian territories, and Jordan. Canada has also established a cross-cultural roundtable on national security in advance of parliamentary review of the country's antiterrorism laws.
For the third lesson, Cotler emphasized the duty to act and the danger of crimes of indifference: "The Holocaust of European Jewry, the genocides from Cambodia to Rwanda, the crimes against humanity in Sierra Leone and Darfur, succeeded not only because of the industry of death or the ideology of hate, but because of crimes of indifference and conspiracies of silence." The genocide in Rwanda was unthinkable, he said, particularly because it was preventable. "Nobody can say that we did not know.... It was the silence, the indifference, the acquiescence, the complicity of the international community that made this genocide possible. Our response must be to shatter these conspiracies of silence wherever they may be, to break down the walls of indifference," Cotler said, recalling Edmund Burke's warning that evil will triumph if enough good people do nothing about it.
The fourth lesson is that human security is best protected by a culture of prevention. A Carnegie Commission study of nine affected countries found that post-conflict rehabilitation costs eight times as much as prevention of conflict - a calculation that is strictly economic. The human costs of conflict are incalculable. Empirical studies have shown that democratic development is one precondition of international peace and security, and that the national institutions that protect human rights - an independent judiciary, a free press, protection of human rights monitors, charters of rights - are the building blocks for an international justice system. "Speaking about and implementing a national agenda for justice can have a peace dividend," Cotler said, adding that a recent agreement by the justice ministers of Egypt, Israel, the Palestinian territories, and Jordan opened the door for such a dialogue.
When the duty to prevent mass atrocity is unfulfilled, the fifth lesson calls on the international community to intervene and protect vulnerable populations. Citing UN Secretary General Kofi Annan's recent statement that no international legal principle can shield against the commission of crimes against humanity, Cotler expressed support for an emerging principle of international law: that a "responsibility to protect" exists when states are unable or unwilling to protect people against mass atrocity or when the states themselves are the perpetrators. At a practical level, the implementation of such a principle would have to be based on clear benchmarks for forcible humanitarian intervention.
A distinguished UN panel recently proposed five threshold criteria that represent a precautionary principle for preventing mass atrocities:
á The seriousness of the threat, including the extent to which crimes against humanity are imminent or have already begun
á The principle of last resort, based on the solutions that have already been attempted
á The proportionality of the actions taken to avert or halt a humanitarian catastrophe
á The principle of proper purpose, measured by the degree of certainty that the primary purpose of the intervention is indeed halting or averting humanitarian catastrophe
á The balance of consequences, including the likelihood of success as well as the degree of certainty that the consequences of action will not outweigh the consequences of inaction
Given that Canada was one of the countries that championed the formation of the International Commission on Intervention and State Sovereignty in 1999, Cotler said that he hoped the country would strongly support Security Council adoption of the five criteria, in both declarative and enforcement form.
The sixth lesson is the imperative of Nuremberg, which calls for war criminals to be brought to justice. The Minister said that an aversion to impunity should be seen as part of a culture of prevention and conflict resolution - not only as after-the-fact enforcement, but also as a means of deterring future atrocities. In this light, he described the formation of the ICC as "one of the most important and historic developments in international criminal law since the end of the Second World War." In contrast to the "age of impunity" of the 20th century, when few war criminals were held accountable for their actions, the new ICC "sends a warning to perpetrators of war crimes anywhere that there will be no haven, no sanctuary for the enemies of humankind."
Cotler said that Canada will continue to take the lead in positioning the ICC as a cornerstone of international criminal law and in encouraging as many countries as possible to ratify the Rome Statute and to enact implementing legislation.
The seventh lesson focuses on the rights and protection of children in armed conflict. "If there is one atrocity that almost defies understanding, it is the maiming, the murder, the exploitation of a child, the most vulnerable of the vulnerable." Cotler said that he learned one of his most profound lessons in human rights from his daughter, who, at age 15, told him that the truest test of human rights is always to ask oneself - at any time, in any situation, in any part of the world - whether a decision or outcome is good for children. "That," she declared, "is what justice is all about."
Against that criterion, Cotler noted that the International Convention on the Rights of the Child was ratified faster and by more countries than any other global treaty, but also that it is violated more systematically than any other. "The statistics are simply numbing," he said. Each year, 1.2 million children are trafficked, 5.7 million are forced into debt bondage or other forms of slavery, and more than 2 million die from vaccine-preventable disease. In the last decade, 2 million died as a direct result of armed conflict, 6 million were seriously injured, and many millions more were orphaned or traumatized. "These tragedies of children's rights must end," the Minister said. "Behind each one of these statistics is a human being, a child with a name, with an identity. Each child is a universe." And, just as the Talmud holds that an entire universe is saved when a single life is saved, Raoul Wallenberg understood that "whoever kills a single person, it is as if they have killed an entire universe."
Lesson eight underscores the importance of international women's rights and gender security. The genocide of the Second World War and the ethnic cleansing and genocides in Rwanda and Darfur "have included horrific crimes against women," he said. "Moreover, these crimes of sexual violence against women not only attended these killing fields, not only were in consequence of these killing fields, but very often were in pursuit of the killings themselves." But the world has yet to act on the lessons it has learned about violence and discrimination against women. The understanding that human rights are women's rights "must not just be a rhetorical expression. It has to be a principle and a priority in our domestic and international justice agenda." Cotler cited both UNICEF's recent conclusion that systemic discrimination against women is a greater injustice than apartheid, and the observation by Charlotte Bunch, executive director of the Center for Women's Global Leadership, that women routinely face torture, starvation, mutilation, and murder simply because they are female.
The ninth and final lesson is that everyone shares responsibility for protecting the common heritage of humankind. The UN panel referred to a cluster of threats in areas as diverse as health, environment, and poverty that fall within a comprehensive approach to collective security. The aftermath of the Asian tsunami revealed a divide between haves and have-nots that underscored the "vulnerability of the powerless and the powerlessness of the vulnerable," Cotler said. But even as the world responds to the tsunami, a "silent tsunami" occurs in Africa every day, in which 7 million people - including 4 million children - die annually of preventable diseases. "At this point, the Western community and the international community have to make the addressing of the collective heritage of mankind a priority on our agenda."
The Minister described the present symposium as an opportunity "to learn about, to reflect upon, and most important, to act upon Raoul Wallenberg's humanitarian legacy," building on an example that "drew on the best of what has come to be known as international humanitarian law." By showing that one person could stand up to, resist, confront, and prevail over evil, Wallenberg defined the commitment to human rights and dignity that each of us can uphold each day in the workplace, the marketplace, our schools, our families, and our relationships with friends.
"Human rights is a capacity that each one of us has every day to do something, somewhere on behalf of some victim of discrimination and disadvantage," Cotler said. "We need not only dream of building a just society. We have the capacity to build it if we will act, and if we are inspired by Raoul Wallenberg's humanitarian legacy to act, we will build it."
Although there is a collective responsibility to respond effectively to mass atrocity, killings, and genocide, the UN has not yet adapted to a world in which many of the most destructive conflicts take place within national borders, Allan Rock told participants. "Put bluntly, there are no rules that govern our response," he said.
The organizing principle of the UN charter is the sovereignty of individual states, and, "to the extent to which there are rules, they argue against intervention by prohibiting any involvement in truly internal or domestic matters of a member state."
When the UN charter was drafted in 1945, the commitment in the document to protecting people from the scourge of war referred to wars between states. "That was the concern at the end of the Second World War, and there the matter stood, through to the end of the Cold War," Rock said. When the world was confronted with genocide in Cambodia and ethnic cleansing in Uganda, no response was forthcoming. "The mentality, reflecting the rules of the UN charter, was that those were internal matters, to be left to states."
With the end of the Cold War, the scene shifted. The number of internal conflicts and civil wars increased, and the advent of mass communications and 24-hour news cycles meant "these atrocities not only took place in some far-off land. They were brought into our homes and into our lives, and the pressure began to mount for someone to do something."
Hope now exists that a set of rules for humanitarian intervention will be introduced; however, the list of conflicts that have served as landmarks along the way conjures horror and shame: Somalia, Kosovo, Rwanda, and now Darfur. "The record shows that the Security Council responded to the pressure to do something by improvising in its interpretation of the [UN] charter," Rock said. "But the record also shows that the response by the Security Council was inconsistent, inadequate, and sometimes completely lacking."
In Somalia in 1992, the Security Council made the historic decision that a significant threat to civilians within a state, including impediments to the delivery of humanitarian aid, constituted a threat to international peace and security and warranted a military response under Chapter 7 of the charter. "But the affair ended badly, for complex reasons that have since been well-documented."
In Rwanda in 1994, perhaps frightened by Somalia, the Security Council was paralyzed by inaction and incurred a shame that can never be forgiven.
Ten years later, as diplomats "rhetorically committed themselves to ensuring that such shame would never be repeated," the Security Council declined to take action despite mounting evidence that the same type of humanitarian tragedy was unfolding in Darfur.
In Kosovo, paralysed by the prospect of a veto from one of its permanent members, the Security Council did everything but invoke Chapter 7. The NATO action that followed was so controversial that questions about its legality and legitimacy have yet to be settled. But the experience created momentum for a set of threshold principles that would support an effective international response to humanitarian crises. The 2001 report of the International Commission on Intervention and State Sovereignty "added enormously to our understanding of the legal aspects of intervention and provided principles for assessing such situations," he said. It reinforced the right to intervene with a responsibility to protect and argued that the international community must assume such responsibility when state governments are unable or unwilling to do so.
The responsibility to protect has three dimensions, Rock said:
á Prevention, which is based on close attention to the early signs of an emerging crisis
á Reaction, in the form of intervention to stop mass atrocity
á Rebuilding, working as an international community to put in place the institutions of governance that will stop future atrocities
The commission also suggested a set of thresholds for rational decision-making on emerging crises. But the attacks of September 11, 2001, took place shortly after the report was released, and international attention shifted from humanitarian intervention to counterterrorism. After that, the invasion of Iraq "caused the question to be muddied," said Rock. "Countries that had previously been prepared to support the responsibility to protect recoiled at endorsing a framework of principles that might be used by a more powerful nation against them, depending on the eye of the beholder."
Canada has maintained its support for the responsibility to protect, and the concept was reinforced by a senior panel on UN reform, which determined that the Security Council should be prepared to authorize military intervention in a humanitarian crisis as a last resort. Criteria for that intervention have been put forward, and Canada is negotiating to ensure that the responsibility to protect is included in the final declaration of the world summit on UN reform in September. The ultimate hope is that the General Assembly will recognize the responsibility of a sovereign state to protect its people and adopt a set of principles for responding to emerging humanitarian crises.
But Rock emphasized that, even if these efforts succeed, an international response to future crises will not be automatic. "We will still have to overcome political, economic, and other interests of the members of the Security Council which might disincline them to act." But the Council will be guided by a set of principles that justifies action, and that set of principles will create an "enormous advantage" for those who advocate vigorous intervention in response to mass atrocity. It might even help prevent future atrocities, by putting potential perpetrators on notice that the international community is prepared to intervene. In the last analysis, Rock said, Canada will argue for a standing force under UN authority with the ability to intervene in the name of humanity.
"There are no rules at present," he told participants, "but by reason of the bitter experience of the past and the creative work of those who contributed these reports, we stand today in a position to take this principle and put it into place," giving the Security Council a map for responding to tragedies that the world cannot ignore.
Georgette Gagnon said that Human Rights Watch recently marked its 25th anniversary as a non-governmental organization (NGO) that conducts on-the-ground fact-finding investigations of serious human rights abuses, genocide, war crimes, crimes against humanity, torture, and violence in all regions of the world. The group provides real-time information while mass atrocities are under way, in the hope that "sharp vigilance, timely protest, and real accountability" can prevent a recurrence of the human rights tragedies of the 20th century.
Human Rights Watch releases 200 reports annually and generates extensive media coverage, which "makes it impossible for governments or rebel groups to say 'we didn't know' or 'it didn't happen,'" Gagnon said. "This publicity helps to expose and embarrass abusive governments and individuals in the eyes of their citizens and the world." The organization frequently supplies information to international institutions of accountability, meets with world leaders to advocate changes in policies and practices, and interacts directly with human rights abusers and those who influence them. Throughout, the goal is to put forward immediate solutions that will mitigate human suffering, ensure accountability for perpetrators, and offer justice for victims, she said.
War often carries enormous human costs, but "we recognize that the imperative of stopping or preventing genocide or other systematic mass slaughter can sometimes justify the use of military force," said Gagnon. She acknowledged that. although "we might all accept the use of military force more readily when a government facing serious abuses on its territory invites military assistance," intervention on humanitarian grounds without a country's consent should be reserved for the most dire circumstances. In addition to its own criteria for non-consensual military intervention, Human Rights Watch endorses the principles set out by the International Commission on Intervention and State Sovereignty, and by the UN panel on global threats (Panel on Threats, Challenges and Change).
Having just returned from a month in Darfur, Gagnon described the situation there as a "compelling example" of the international community's "profound failure of will to prevent and redress the most heinous human rights crimes." Despite countless denunciations, rules, procedures, Security Council resolutions, and professions of concern by national governments, "little has been done to protect the people of Darfur, in the face of overwhelming evidence that the Sudanese government is unwilling to protect its own people," she said. "A failure of this magnitude, right now, today, again challenges the basic human rights principle that the world's governments will not turn their backs on people facing atrocities."
Gagnon noted that the preferred solution would be to deploy a large UN force to protect the citizens of Darfur. But the Security Council has handed the problem over to the African Union, a relatively new organization that lacks the experience, resources, and mandate to mount an effective response. Another important step in ending the atrocities in Darfur and the impunity that reigns there would be to ensure that the people responsible face their day in court - and since the Sudanese government has shown no inclination to see that justice is done, international prosecution may be the only way to silence the denials of responsibility.
Noting that the UN Commission of Inquiry on Darfur was scheduled to report a week after the present symposium, Gagnon said that Security Council members would at that time have to decide whether to refer the case to the ICC, even though Sudan is not a party to the Rome Statute. The Security Council debate may also turn on China's willingness to overlook its lucrative oil contracts with the Sudanese government, and the ability of the United States to overcome its antipathy toward the ICC. If not, she said, people will continue to suffer and die while the international community wastes time and resources setting up a separate tribunal or extending the mandate of the Commission for Rwanda, as some U.S. officials have suggested. Overall, an ICC reference would be the best way of preventing further suffering and providing accountability for the people of Darfur, said Gagnon.
Gagnon next showed a Human Rights Watch video that documented the destruction of villages in Darfur by Janjaweed militia affiliated with the Sudanese government. In July and August 2004, when the video was taken, the United Nations estimated that 30,000 civilians in the region had been killed, countless women had been raped, and 1.2 million internally displaced persons were facing severe shortages of food and water.
Joel Richler brought the achievements of Raoul Wallenberg into focus by suggesting that evil needs two things to flourish: evil people who are prepared to act, and good but passive people who are not. From that starting point, Richler described Wallenberg as "a man of positive action who engaged in heroic behaviour against purposefully evil people," adding that history records many other individuals who were active in the fight against anti-humanitarian activity. From the 19th century massacres in Congo to the extermination of up to 1.5 million Armenians in Turkey in the early 20th century, early human rights crusaders championed the cause of justice.
More recently, said Richler, NGOs have become a primary mechanism for marshalling individual commitment. They have facilitated the response to mass atrocities that "represent evil in its most ascendant and vile form," built on the recognition that sovereign states and their collective bodies are often limited in the action they can take. "The fight against genocide and mass atrocity requires quick, expedient, ongoing collective action from which states are hindered," particularly when the most appropriate response is likely to be unpopular or controversial with voters. When quick, effective action is also beyond the capacity of individuals, NGOs can help to coalesce and articulate the values of groups that are homogeneous philosophically, ethnoculturally, religiously, or in some other manner.
To some extent, NGOs are defined by what they are not. They are distant and independent from governments, seeking to empower individuals and to operate without external controls while maintaining a non-partisan profile. Richler provided background on the International Committee of the Red Cross and on Amnesty International, two of the most established NGOs dealing with human rights. He also cited the Canadian Jewish Congress as a source of domestic human rights advocacy.
The effectiveness of NGOs is a subject of much debate, Richler said. They have no direct authority, they rely on relatively limited membership, and they pose no economic or military threat to the governments they criticize; however, NGOs benefit from the "mobilization of shame" that occurs when governments fail to observe the international human rights standards they may have helped to devise. The discrepancy between actions by governments and the desire of those governments to be seen as civilized "creates the space in which human-rights NGOs operate."
NGOs have also assumed an important role at the international level. But, although the UN relationship with civil society has "strengthened and multiplied," an eminent persons' panel appointed by Secretary-General Annan concluded last year that difficulties have arisen, particularly with deliberative processes. Following a two-year review of NGOs and global governance, the panel found that governments are reticent to share a role that has traditionally been theirs alone, leaving NGOs to question their own effectiveness. Yet, few of the most difficult international issues can be solved by governments alone. The panel urged the UN to take a more proactive role in bringing constituencies together, by involving civil society more regularly in the work of the General Assembly and by appointing a new under-secretary to promote engagement with NGOs.
Roy McMurtry characterized this session as "most compelling, important, and timely." The last few years have seen intense discussion about retaining a traditional commitment to human rights in the face of terrorism. When threatened, people put security above all else and will cede extraordinary authority to government. McMurtry quoted a U.S. law professor who said, "We love security more than we love liberty."
McMurtry then gave the example of the internment of people of Japanese descent during The Second World War. He also mentioned two crucial decisions: the U.S. Supreme Court decision that habeus corpus rules apply to foreign nationals detained at Guantanamo Bay, and the British House of Lords decision that detention legislation confined to foreigners is not compatible with the British constitution. In the latter case, Lord Hope of Craighead said that a democratic government's first duty is to safeguard the lives of its citizens, but that the courts have another duty: to safeguard the rights of the individual, including the right to liberty.
In introducing the two panellists, McMurtry quoted Frank Iacobucci's judgment in ¤ 83.28 of the Criminal Code: "Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of law." Justice Robert H. Jackson, dissenting in the 1944 Korematsu decision in the United States, warned about the dangers of emergency powers: "They lie about like a loaded weapon," ready to be picked up by any authority with a plausible rationale.
Frank Iacobucci addressed the role of a judge in dealing with terrorism cases. After September 11, 2001, the governments of many countries - including the United States, the United Kingdom, and Canada - enacted strong antiterrorism legislation. Emerging court cases are assessing how well the new legislation is working. Canada is now reviewing its antiterrorism legislation, as required by the legislation itself. Gatherings such as the present symposium provide important information for those involved in deciding whether the law's stringent provisions should be altered.
Terrorism poses huge challenges for democracies, but also for judges. As Justice William Brennan said, "It is easy to develop civil liberties and human rights in peacetimeÉ. The challenge is to let adversity be the handmaiden of liberty."
Canadians cherish the values of human life and liberty and respect for the rule of law, without which a democracy cannot exist. Long ago, Cicero wrote "The law is silent in battle." Said Iacobucci, "We must emphatically disagree."
Panellist Harold Koh led the battle for the rule of law in terrorism cases in the United States, said Iacobucci. The response to terrorism must come through the rule of law, not beyond it. Inflammatory rhetoric about the "war on terrorism" is detrimental.
Although the rule of law is important, recognition that terrorism puts it in a different context is vital. In their decision in ¤ 83.29 of the Criminal Code, Iacobucci and Justice Louise Arbour quoted Jackson's comment that "the constitution shall not be a suicide pact."
These are difficult matters of judgment, Iacobucci noted. The stakes are immensely high. First, huge damage to the liberty of the subject is done if a person is wrongfully detained, deported, or imprisoned. Second, the administration of justice is seriously impaired if individuals in the justice system act improperly or illegally. "Those wounds are hard to heal," Iacobucci said, recalling the wartime treatment of Japanese Canadians and Italian Canadians. Apart from the damage to individuals, national self-respect is diminished.
Iacobucci found judging antiterrorism cases to be very difficult, requiring a principled approach that balances human rights and national security, while recognizing the rule of law. He noted that Israeli Chief Justice Aharon Barak said, "Sometimes a democracy must fight with one hand tied behind its back" because it cannot employ the methods used against it. Ultimately, however, an approach under the rule of law is a stronger one.
What are the pillars of judicial legitimacy in Canada? Iacobucci set forward these points:
á Qualified men and women, knowledgeable in the law, are appointed to the bench.
á Judges are impartial and independent of the executive and the legislature.
á Judges' decision-making occurs by a fair process, with counsel, arguments of the facts and the law, and a transparent, open process.
á Decision-making is based on the facts and arguments and the applicable principles of law, and decisions and the reasoning is available for public view.
Due process, independence, and openness are all now under threat. Failure to respect values that have stood the test of time will do great disservice to the response to terrorism.
The foregoing are the ingredients of the approach that the Supreme Court of Canada took to the ¤ 83.28 and Vancouver Sun cases. The Court upheld the legitimacy of the investigative approach in ¤ 83.28, allowing a judge to be the investigating agent, a heretofore unknown provision in law. The companion Vancouver Sun case preserved the presumption that courts are open. When the government chooses to go to the court, it must accept that the judicial process is independent. Judges are not an agent of the state. The Jacari case is important because it looks at terrorism in the context of the Immigration and Refugee Protection Act. It also deals with the issue of preventive detention, part of the antiterrorism law that has not yet been adjudicated for constitutionality.
Judges must preserve and protect the rule of law in the response to terrorism. "We do this through well-known balancing principles and techniques. Terrorism brings new rules and new contexts, but we should not de-emphasize well-developed principles" to look at the new context and take a principled approach.
As Justice Jackson said, "The choice is not between order and liberty; it is between liberty with order and anarchy without either."
Harold Koh of Yale Law School called Canada a beacon of human rights and cited a long list of Canadians who have been instrumental in the cause. Before September 11, 2001, the United States and Canada both relied on global co-operation to address global problems such as terrorism, AIDS, environmental injury, drug trafficking, and other issues. "The response of the new administration after 9/11 was not incremental but architectural," Koh said. The Bush doctrine has six key elements:
á The notion that the United States has enormous strength and enormous vulnerability, and that it must use its strength to protect its vulnerability
á The use of pre-emptive self-defence techniques abroad and immigration control, security detention, governmental secrecy, and information awareness at home
á A change from strategic multilateralism and tactical unilateralism to the opposite, viewing international treaties as too constraining on U.S. sovereignty in a time of terror
á A shift in how democracy is promoted: moving to a top-down military imposition of democratic government (Afghanistan and Iraq), from the former bottom-up approach
á A new constitutional vision involving extreme deference to executive authority, few internal executive checks, minimal congressional oversight, and a concerted effort to persuade the judiciary to leave the field
á In human rights, a change from Roosevelt's four freedoms - freedom of speech, freedom of religion, freedom from want, freedom from fear - to a focus on the last.
What are the results?
á Closed government: After September 11, 2001, classification of government documents rose to a new high, and declassification sank to a new low. The Patriot Act allowed the government to engage in large-scale gathering of information on ordinary citizens, through Internet service providers and library and medical records. Koh mentioned 20 peace activists who were flagged as security risks and detained simply for attending a rally protesting military aid in Colombia, and the Juneau, Alaska, high-school wrestling team, whose members were stopped at airports seven times because one was the son of a person on the FBI watch list.
á Scapegoating of immigrants and refugees: After September 11, 2001, 1200 immigrants were detained, 750 solely on the basis of civil immigration violations, an approach that the Justice Department's own inspector general called "indiscriminate and haphazard." The Immigration and Naturalization Service was absorbed into the Department of Homeland Security. The impact on people has been enormous. The number of refugees settled in the United States declined from 90,000 in 2000 to 27,000 in 2003. Since September 11, 2001, more than 15,000 Pakistani residents of a single Brooklyn neighbourhood have left. A top Iranian law student was denied a visa for Harvard Law School solely because he was Iranian.
á The creation of lands without law: The United States has established extralegal zones, especially at Guantanamo Bay.
á The creation of a category of extralegal persons: The United States has detained the people it calls "enemy combatants," whether these are "ghost detainees" or U.S. citizens held within the United States, or foreign nationals held at Guantanamo Bay or elsewhere.
á A reduction in the U.S. human rights presence abroad: Indonesia has used the Guantanamo example as justification for building its own offshore prison camp for suspected Aceh terrorists. Egypt and China have pursued similar actions.
The change in policy has led to a "new normal." A frog put in hot water will jump out; but, if put into cool water that is heated gradually, the frog will asphyxiate "because it understands too late the radical implications of what has happened."
The United States is now seen as promoting a double standard, one for itself and another for the rest of the world. "A country which has led the building of a system of international law and human rights is now its most visible outlier," Koh said, What is the explanation, and what can be done about it?
Many Canadians and Europeans adopt the Bowling for Columbine explanation: the problem is American culture, which is obsessed with power, parochialism, and unilateralism. Koh disagrees with this view, noting that in recent years, individuals such as George W. Bush, Donald Rumsfeld, Jesse Helms, John Bolton, and Antonin Scalia have held strategic positions, allowing them to promote "a sea change in U.S. human rights policy."
But, if particular people can be part of the problem, other people can be part of the solution. The pattern of hope lies in growing social resistance. Career bureaucrats and diplomats, military judges, prosecutors and defence lawyers, librarians and booksellers are all putting up resistance. Americans are not as harsh as their leaders, Koh said, citing surveys that show that the majority of Americans reject torture and the mistreatment of prisoners.
In the last year, the decisions of the U.S. Supreme Court have shown it to be skeptical about government policies, especially those that diminish the role of the courts. Increasingly, a split is evident between six of the justices, who could be called "transnationalists," and the remaining three, who could be called "nationalists." The transnationalists are gaining the upper hand.
In the Hamdi case, the court upheld the constitutional principle of due process, which requires notice and the opportunity to be heard before an enemy combatant can be held on U.S. soil. In the Rasul decision, the transnationalists ruled that a foreign national held at Guantanamo could get a writ of habeas corpus. An example of other Supreme Court decisions that give cause for hope is the striking down of the death penalty for the mentally challenged. The Bush administration is not carrying the day before the court.
The administration's position had been "Trust us," because trusting in the executive branch diminishes the role of the judiciary. The Abu Ghraib scandal damaged people's trust in the executive. At the confirmation hearings for U.S. Attorney General nominee Alberto Gonzales, a government legal opinion held that
á acts causing serious pain, but not bodily injury or death, do not constitute torture. (If that were true, then most of what Saddam Hussein's forces did in Iraq would not be torture.)
á the president, as commander-in-chief, has the power to order torture in the face of a contrary criminal statute. (If that were true, then the president as commander-in-chief also has the power to order genocide in the face of a contrary statute.)
á those who follow the president's directives can be immunized from prosecution. (This stance would resurrect the Nuremberg defence of "just following orders.")
"It was one of the worst legal opinions ever drafted by the U.S. government," Koh said. Fortunately, it has been withdrawn.
Hope comes from the work of individual citizens and the courts. In the last few terms, the Supreme Court has imposed judicial review on Guantanamo, granted due process rights to enemy combatants, sustained litigation under the Alien Tort Claims Act, and acknowledged the relevance of international standards with regard to privacy and equal protection. "The transnational majority seems to be holding," Koh said.
"I do not accept the inevitability of a 21st-century U.S. human rights policy that is at odds with core American and universal values," Koh said. He then quoted Benjamin Franklin, who wrote, "They who can give up essential liberty to obtain a little temporary safety deserve neither." Preserving both liberty and safety in the United States will require commitment from ordinary citizens, courage from the courts, and support from friends abroad, Koh concluded.
Ed Morgan began the session by asking, "If torture is such an obvious legal judgment call, then why is it so hard?" He noted the decision of the Supreme Court of Canada in the Suresh case, which dealt with the deportation of a person to a country where that person might face torture. The court ruled that the convention against torture has a dominant status in international law. Moreover, the UN, and courts around the world, including those of the United Kingdom and Israel, have rejected torture as an antiterrorism measure.
Canada has signed numerous treaties and conventions that ban torture. Nothing should be more non-controversial as a human rights issue. In the Suresh case, the Supreme Court stated that "both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests." If the taboo is so absolute, then, "Why are there so many hard cases, especially here in Ontario?"
The Bouzari case asked whether a victim of foreign torture can sue for those injuries in Canada. The initial Court of Appeal ruling held that Canadian jurisdiction would probably hold. But the State Immunity Act blocked the case, because the torture had taken place in Iran, not Canada. Bouzari had argued that his suffering continued in Canada and therefore fell under Canadian jurisdiction, but the court rejected that argument. Based on current treaty law and international custom law, the appeal judge rejected the appeal.
"On one hand, we have torture - the one categorical wrong," said Morgan, but the jurisdictional issues are complex, especially when pitted against national security. In the Ahani case, an individual was non-admissible to Canada for being a threat to national security, but returning him to his home country (Iran) would put him at risk for torture. The case went to the UN Human Rights Committee, which requested that Canada not deport Ahani until his case could be heard in the Court of Appeal of Ontario. Justice John I. Laskin held that to agree to the request of the UN Human Rights Committee would convert treaties and conventions into Canadian law, binding in the courts. This view of international law as a system of agreements between sovereign states that does not apply domestically is the classical one.
In dissent, Justice Marc Rosenberg, held that having signed the protocol, which gives people a final legal hope when all else has failed, hope cannot be made illusory. "A human being whose security is at stake should, within reason, be given opportunities to access remedies at the international level. It is fundamental to justice that where there is a right, there is a remedy." International law is seen here in the human rights sense, as a metaconstitutional system of rights protection. For countries such as Canada that accept these universal constitutional rights, no jurisdictional escape is possible.
The debate goes deep into the Canadian legal assessment of international law. In the Finta war-crimes case, the debate was sharply articulated in the Court of Appeal of Ontario. The majority held that the Criminal Code, in implementing war-crimes legislation, created two new international crimes: war crimes and crimes against humanity. The dissenting opinion held that the new provisions, instead of creating offences, put war crimes under Canadian jurisdiction if they contravene Canadian law. The majority saw the crimes as being committed against the family of nations, victimizing the community of communities. The dissent saw war crimes as a crime against persons, but that wartime conditions required special jurisdictional rules.
These views of international legality compete with each other. A trade-off always occurs between the two, even in the cases of the most heinous crimes. Said Morgan, "Are we a world of communities or of human beings?"
Morgan outlined the 1948 decision of the U.S. Supreme Court in the Bob-Lo case. The island of Bois Blanc, Ontario, which lies just off Detroit, is known as Bob-Lo in Michiganese. In the 1940s, the whole island was privately owned and run as an amusement park. In June 1945, Sarah Elizabeth Ray went to Bob-Lo Amusement Park on a high-school trip with 40 other girls. When she tried to board the ship, she was turned away because she was not white. In Ontario at the time, no human rights laws were operative. The only applicable law was English property law, which held that a property owner could exclude anyone from his or her property. Michigan, on the other hand, had a very early civil rights statute. The question before the Supreme Court was whether Michigan could apply its civil rights statute to Bois Blanc, Ontario. The court stretched its jurisdictional imagination and held that, although the island was clearly territorially Canadian, socially, it was part of Detroit. Therefore, Michigan civil rights legislation prevailed.
In the right cases, creativity is possible, although there is always a trade-off. "I always ask my class who should win this case: Sarah Elizabeth Ray or Canadian sovereignty?" In the right human rights case, bypassing sovereignty is worth it.
Catherine Beagen Flood then spoke on the right to privacy, noting that the question of identity is especially relevant on Raoul Wallenberg Day. One method by which Wallenberg saved the Jews of Budapest was by changing their identities. Wallenberg's methods highlight the importance of identification and classification methods to a genocide.
Part of the right to privacy is the right to anonymity: the right not to have to identify oneself, or to carry and produce identifying papers, or to wear an identifying badge. Privacy also incorporates autonomy, which includes the right to define one's identity rather than be labelled by the state. Those who seek to commit genocide must first destroy anonymity and autonomy. The first step in genocide is to identify and label members of the "inferior" group.
People in Nazi Germany were labelled Jews if they matched the criteria of the Nuremberg Laws, even if they did not self-identify as Jews. A 1938 decree forced Jews to have only certain first names; if they had a different first name, they had to change it to Israel (for men) or Sarah (for women). This action negated personal identity. Passports for all Jews residing in Germany were declared invalid in 1938, and new passports were issued only for emigration. Beginning in occupied Poland, and occurring later in Germany and in all German-occupied territories, Jews over the age of six were required to wear the yellow Star of David badge, making them even easier targets.
"The Justice Minister reminded us this morning that behind every statistic there is a child with a name and an identity," Flood said. "In a racist regime, demonization and dehumanization of the other begins by taking away their name and identity and replacing it with a demeaning label."
Identity cards played a significant part in the Rwandan genocide of 1994. In 1933, the Belgian colonial government issued identity cards imposing new, rigid racial-group identities on groups whose racial identity had previously been fluid. Both groups spoke the same language, were primarily Roman Catholic, and frequently intermarried. Tutsis were the economically wealthier class, but Hutus could move into the Tutsi class if their economic situation improved. When the Belgians colonized the region, they classified everyone with ten or more cows as Tutsi. Everyone else was Hutu, regardless of self-identification. The colonial government later registered all citizens and issued identity cards. It treated the two groups as separate for purposes of employment and education, magnifying their differences.
During the genocide, killers went from house to house with prepared lists of victims. Death squads were able to set up roadblocks and execute anyone with a Tutsi identity card. More than 800,000 men, women, and children were murdered in just 100 days. General Roméo Dallaire described the genocide as one of the fastest and efficient of any in recent history. Ethnic identification and identity cards made the genocide so fast and so efficient.
Dozens of countries still identify citizens on the basis of nationality or ethnicity, race, and religion. U.K. legislation that would create identity cards and a central database received second reading in December 2004. The database would include current and past nationality, immigration status, place of birth, all previous addresses inside or outside the United Kingdom for a prescribed period, other identification numbers, and biometric data. (Biometrics takes a unique physical feature, such as iris pattern or thumbprint, digitizes it, and stores the results.) Although the identity cards will initially be voluntary, the government seeks to make them mandatory in the next six or seven years.
In Canada in 1999, the government decided against replacing social insurance numbers with identity cards. But in 2002, the Minister of Immigration announced support for a national identity card and suggested that the House of Commons Standing Committee on Citizenship and Immigration study the issue. The committee's interim report in 2003 raised a number of concerns. The issue has since been on the back burner. But the government announced a related measure in its national security policy of April 2004: the use of biometric technology on Canadian passports.
The International Civil Aviation Organization announced in 2003 that facial recognition would be the international biometric standard for travel documents. Canada will begin issuing biometrically coded "smart chip" passports early in 2005. Passport photos will be digitized and stored on a chip in the passport. Half of all Canadians will have such passports in the next two to three years. These passports raise many of the same concerns as identity cards do. If the passports merely confirm identity, without a national database, the privacy issues are fewer. But a central database is likely, and it could include other information and be used for other purposes, such as tracking the passport owner. It could also be linked to other government databases. As Justice Gérard LaForest held in R. v. Dyment , "Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual."
Privacy is therefore worthy of constitutional protection, but it also has profound implications for public order. Restraining governments from prying into the lives of citizens is central to a democratic state. The identity card shifts the balance between the individual and the state by requiring the individual to prove identity. It abrogates the right to anonymity or to use multiple identities provided that the purpose is not fraudulent. As Richard Sobel notes, the existence of identity cards and databases implies that society has rights of surveillance over its members and can define their identities. If individual rights can be exerted only with proper documentation, the nature of personal and political identity is degraded.
Cross-linking of multiple databases (for example, medical and tax records) raises still more concerns. Very sensitive information could be revealed. The U.S. government could collect information on its citizens in the way that the Stasi collected information on East Germans. "Function creep" (using a database for purposes other than the original one) is a particular concern. If a new use saves money, increases efficiency, or improves safety, it is apt to be approved even if the information was initially collected for one use only. Such small, incremental expansions are rarely closely scrutinized.
Since September 11, 2001, security has been the reason advanced for identity cards, in the belief that the cards would prevent false or multiple identity use by terrorists. "But the American authorities knew the real identities of most of the September 11th hijackers. It was their intentions that were unknown," said Flood. The problem was intelligence gathering, not identity.
National identity cards would not have prevented acts such as the Air India bombing. Using identity cards to detect terrorists works only if the cards are compulsory, use biometrics, and are linked to international databases with the same conditions - a highly unlikely scenario. To have any effect on terrorism, the privacy intrusion would have to be very high. Other security measures are apt to be more effective.
Stanley Cohen opened his remarks by citing an Ontario Court of Appeal decision. In 1991-1992, the Durham regional police stopped members of the Paradise Riders motorcycle club on the way to their clubhouse. The club sued, claiming that their Charter rights to be free from arbitrary detention had been violated. Justice David H. Doherty dismissed their case, but wrote, "The balance struck between common law police powers and individual liberties puts a premium on individual freedom and in some cases makes crime prevention and peacekeeping more difficult for the policeÉ. We want to be safe, but we need to be free."
In a free democratic society, that view of policing is the traditional one. The intersection of the police and the individual usually happens after a crime is committed, and the harm done justifies the state's action against the individual's freedom. Police conduct is reactive, relying on making a connection between the event and the individual, according to established standards and with enough strength to warrant interfering with the individual's constitutional rights. Assessments of what has happened are far more reliable than assessments of what may happen.
When national security enters the picture, the matter becomes more complex. Although law enforcement and national security both come under the umbrella of the rule of law, they are quite distinct. Their requirements differ, in some cases dramatically.
Law enforcement is reactive. It does gather information for prevention, but such information gathering usually occurs after the commission of an offence. National security, on the other hand, looks for advance warning of security threats and is not necessarily concerned with breaches of law. Law enforcement involves considerable publicity; national security requires secrecy. Law enforcement is results-oriented, emphasizing apprehension and adjudication; its members operate with a high degree of autonomy. Security is information-oriented; participants have less-well-defined roles, and control is hierarchical. Law enforcement is a closed system with finite limits and defined stages. Security operations are more open-ended, with emphasis on investigation, analysis, and the formulation of intelligence. Both have a bearing on how our society balances liberty and security, and both require rigorous oversight.
The appearance of terrorism in North America causes many to think about the balance between liberty and security. Michael Ignatief wrote that a succession of terrorist attacks "would tear at the fragile tissue of trust that binds us to our leadership and destroy the trust we have in one another." We might find ourselves in a state with constant identity checks, forcible confinement, and other restrictive measures. "The worst of it is that these measures would not be imposed on us; we would demand them for our own protection," Ignatief wrote. If government proved ineffective, people might take the law into their own hands.
The American jurist Richard Posner counsels civil libertarians to be less troubled about the post-September 11 changes in civil liberties: civil liberties expand or contract as a result of the threats a nation faces. Posner thinks that making liberty a priority is an error. Cohen said that security is a requirement for liberty, but that it must not be valued above liberty. A society that elevates security may debase the values it most cherishes. "Torture and genocide have been justified by security," he said. To emphasize their humanity and civility, free societies accept some pain and suffering.
Security is one of our great rights and is necessary for the enjoyment of all our other rights. National security is essential for the rule of law. Canada's antiterrorism legislation preserves individuals' rights to question both law and its enforcement. Parliament eschewed any resort to emergency powers or to the override in ¤ 33 of the Charter of Rights and Freedoms, maintaining civil liberties and constitutional remedies.
The Antiterrorism Act was quickly drafted and passed in a climate of urgent concern that the West could not adequately prevent or respond to acts of catastrophic terrorism. It contains extraordinary measures, but its powers should not be exaggerated. It was not intended to be a comprehensive, definitive way to protect national security, but only a means for preventing and prosecuting terrorism offences.
Two misperceptions about the act are prevalent. One is that it was entirely a last-minute production - ill-considered and misconceived. The other is that the legislation was "in the can"; that the government was "merely waiting for a chance to foist it on an unwitting public." Both of these ideas are mistaken. True, the legislation was produced in short order and the consultation process was cut short as Canada struggled to move quickly in the wake of September 11. But several key elements of the legislation (including changes to the Official Secrets Act and the Canada Evidence Act) were in hand well before September 11, 2001, and they had been carefully considered. Existing legislation dealing with organized crime and money laundering provided templates for some provisions, and charity deregistration had already been before Parliament. Canada had signed ten conventions on antiterrorism and was shortly to sign two more. Although the new legislation had to be created swiftly, and other laws needed updating, constitutional norms had to be respected.
Classical criminal law is designed to punish offenders after the event with a view of deterring others. Many believed that the new legislation had to be geared to preventing terrorist action. National security measures typically have features that threaten human rights, and Canada's Antiterrorism Act is no exception. It is a substantial investigative and prosecutorial tool. But it was created with a concern to make a balanced, proportional response to terrorism.
The act has been called "Charter-proofed." It provides for numerous accountability measures. Thus far, only one provision - for investigative hearings - has made its way to the Supreme Court, which found that the measure accorded with Charter guarantees. Even the most controversial measures in the act have restrictions on their use and are not intended to become a template for law enforcement practices. With few exceptions, the act deals solely with terrorist activities. Where individual liability is concerned, safeguards are in place.
The capacity for open debate and dissent is one of the strengths of Canadian society. That strong measures taken with regard to national security has attracted searching inquiry, even denunciation, is "emblematic of democratic vibrancy," Cohen said. Those actions express the anxiety that free people feel when liberty is hanging in the balance. Liberty and security are never in equilibrium, and even constitutionally guaranteed rights may come into question when a country is under threat. Retrenchment may be permissible, and may even gain public respect as long as the justification for infringing upon rights is strong enough and the means are minimally impairing.
Balancing liberty and security requires democratic vigilance, open political debate and dissent, and true accountability. No legislation can completely prevent abuses; therefore a proper enforcement culture and review mechanisms are extremely important to ensure that the Antiterrorism Act contributes to Canadians' safety while avoiding the undermining of constitutional rights. The act provides for judicial supervision and ministerial review, and a full review is now under way. Annual public reports by the Attorney General of Canada, the Solicitor General of Canada, and their provincial counterparts are also required. A five-year "sunset clause" is applicable to the act's provisions.
People wonder if government has gone too far in reducing the constitutional and legal rights that Canadians cherish. Those fears should not be neglected. "If we have learned anything from history, it is that embracing authoritarian measures too ardently can ultimately damage the very fabric of society that we wish to preserve."
Richard Goldstone opened the session by praising Canada for its human rights record, mentioning that Raoul Wallenberg and Nelson Mandela are Canada's only honorary citizens. Canada's Minister of Justice, Irwin Cotler, is one of the country's foremost human rights activists; the UN Commissioner for Human Rights is Mme. Louise Arbour of Canada, former Justice of the Supreme Court of Canada (1999-2004); and the president of the International Criminal Court (ICC) is a Canadian, Philippe Kerr. The list is no coincidence: it reflects Canada's role in human rights.
The practice of holding individuals liable for international crimes was an innovation of the Nuremberg tribunal. Before the Second World War, the idea of international justice did not exist. At Nuremberg, individuals, including heads of state, were held liable, and the defence of superior orders was done away with. Nuremberg was also the first tribunal to recognition crimes against humanity: "crimes so huge and horrible that they are not merely crimes against the immediate victims, but against all of humankind."
Also out of Nuremberg came the concept of jurisdiction based not on where a crime occurred, but on the nature of the crime. Charges can be brought in any country, no matter how tenuous the connection. This understanding led to the idea of universal jurisdiction, and the Fourth Geneva Convention (1949) gave all nations jurisdiction to prosecute war crimes. Signatories (nearly every country in the world) are obligated to investigate and prosecute grave breaches of the convention or to hand violators over a country that will do so.
A 1973 UN convention declared apartheid in South Africa to be a crime against humanity, although the West did not take the convention seriously. Torture was made a universal crime, thus permitting the arrest, in the United Kingdom, on a Spanish warrant, of General Augusto Pinochet on charges of crimes against humanity in Chile almost two decades earlier. Long before September 11, 2001, universal jurisdiction applied to more than a dozen UN conventions dealing with terrorism, starting with the 1973 convention on hijacking. "The idea is that no country should be a haven for terrorists or torturers."
After Nuremberg, the international community assumed that a permanent international court would be established. The Convention on the Prevention and Punishment of the Crime of Genocide (United Nations, 1948) stated that genocide would be tried by national courts "or by an international court having jurisdiction." But the Cold War intervened, and the idea was put on hold. Attempts to revive the idea were made between 1948 and 1990, and the International Law Commission was instructed to draft rules for such a court. However, the rules gathered dust until 1993, when the UN Security Council, in the wake of terrible crimes in Bosnia and Herzegovina, decided to use its Chapter 7 powers to establish the International Criminal Tribunal for the Former Yugoslavia. In doing so, the Security Council had to use its peacekeeping powers under Chapter 7. To justify legally an international court, peace and justice had to be linked. After much debate, evidence is emerging that that connection has credibility.
"It fell to me to set up the first international prosecutor's office in The Hague," Goldstone said. The Nuremberg tribunal had had separate national prosecutors; a single international prosecutor was something new. Many felt that the new tribunal would not succeed. Could so many countries, with different legal systems, really work together? But both the Yugoslavia tribunal and the Rwanda tribunal (begun in 1994), established that an international court can, in fact, work, and provided the impetus for setting up a permanent ICC.
The two ad hoc tribunals made huge advances in international law. Previously, the International Committee of the Red Cross had drafted the laws of war (humanitarian law), an enormous and frustrating effort that lasted more than a century. Before 1993, humanitarian law was taught only in the best Western military colleges, received no attention, and was not on any political agenda. The two ad hoc tribunals changed that.
For example, humanitarian law lacked reference to systematic mass rape as a war crime. Mass rape has been an age-old tool of war, but the law - written by men for men - assumed rape to be a natural consequence of war and not a war crime. That stance changed under the influence of women judges in the two ad hoc tribunals. The Rome Statute made a huge advance in the doctrine of gender crimes.
The ad hoc tribunals also narrowed the gap between international conflicts and internal conflicts; an irrational tradition gave civilians little protection in civil wars.
The foregoing advances, and many others, happened because the laws were being used and implemented.
The ad hoc tribunals therefore established that international justice can work. Can international justice also be a deterrent?
When the NATO powers bombed Serbia heavily for 78 days to protect the human rights of Kosovo Albanians, the number of civilian casualties was remarkably low - less than 2000. In Korea, 84% of the dead and injured were civilians; the figure for Vietnam was 90%. In the Second World War, civilians were intentionally targeted. In Kosovo, commanders took legal advice on what constituted justifiable targets. When the United States invaded Afghanistan after September 11, 2001, it took care to protect civilians. When a wedding party was bombed in error, the country issued a full apology. The United States also tried to protect civilians when it invaded Iraq.
The two tribunals were not, of course, entirely responsible for that change, but they put the law of war on the map and on the agenda of politicians. Sooner or later, even evil leaders will be deterred.
The tribunals gave impetus for the establishment of the ICC. With Canadian leadership, 97 nations have now ratified the Rome Statute. That momentum, beginning with the Security Council resolution, gives grounds for optimism, said Goldstone. "It is a tragedy that the United States is not on board," he said, "because the court is weaker for it." Whether the court can survive U.S. attempts to undermine it remains to be seen. Sooner or later, the United States will participate because its people reject war crimes and want to see them prosecuted.
Claire L'Heureux-Dubé spoke of the arguments made by the United States against a permanent ICC. UN Secretary-General Kofi Annan has said that an international court holds out the promise of universal justice. The Nuremberg tribunal and the international criminal tribunals for Yugoslavia and Rwanda have had some success, but the devastation of the Second World War showed the need for a permanent international justice system that would punish atrocities and prevent abuses. On April 11, 2002, that need was met. The new court will overcome the problems that hampered the ad hoc tribunals, such as delays, high start-up costs, and dependence on the Security Council, and will therefore have greater effect.
Canada played a prominent leadership role in founding the ICC. It chaired a coalition of 60 states from all regions and provided diplomacy, public relations, lobbying, and funding to the UN to increase international participation. At the Rome conference in 1998, Canada was an articulate advocate for the ICC. Hon. Lloyd Axworthy urged the nations to create "a court worth having."
Despite its allies' support for the ICC, the United States has not given its support. In fact, on May 6, 2002, the Bush administration took the unprecedented step of withdrawing the U.S. signature from the Rome Statute. The United States also made it clear that it would not provide information that would help in prosecutions before the court. No other nation has voided its signature on a binding international treaty. At the time of the unsigning, Libya was the only other country actively opposing the ICC.
The U.S. position is based on myth rather than reality, L'Heureux-Dubé said. Its principal concern is that the ICC might be politically motivated to try American military and foreign service personnel. But the court's statutes have safeguards (originally negotiated by the United States), making such prosecutions highly unlikely.
The Rome Statute limits the court's jurisdiction to crimes committed after its establishment. Numerous restrictions limit the prosecutor's powers, and a pretrial chamber of judges must first approve any prosecution. If a U.S. citizen were to be charged, the chamber would be obliged to stand down for six months while the U.S. pursued its own investigations. ICC prosecution could occur only if the chamber found that the United States had wilfully obstructed justice. This deferral to domestic justice was one of the major negotiating points forwarded by the United States. In addition, the UN Security Council can suspend an ICC prosecution for 12 months, and suspensions may be extended for successive 12-month periods.
It is also an error to believe that, if the ICC is defeated or if the United States refuses to sign the Rome Statute, Americans would be protected from foreign jurisdiction. Without signed agreements, the jurisdiction of the country in which a crime is committed will prevail. Territorial jurisdiction prevails over jurisdiction based on nationality.
The United States has expressed fear that the ICC will violate the U.S. Constitution, particularly the protection of due process. In fact, the ICC has one of the most extensive lists of due process guarantees ever written, thanks to U.S. negotiators. The due process provisions of the Rome Statute are, in fact, more detailed and more comprehensive than those set out in the U.S. Bill of Rights, including presumption of innocence, assistance of counsel, the right to remain silent, privilege against self-incrimination, and many others. Only the right to trial by jury is absent from the Rome Statute. But trial by jury is not available to military personnel, and the United States has long accepted that its citizens, including the military, may be tried in countries such as France and Japan, which do not use juries. Many extradition treaties allow Americans to be tried without juries.
The United States further believes that the Rome Statute threatens sovereignty because Article 12.2 states that a national of a non-party state may be subject to the ICC if either the state in which the crime occurred or the national state of the accused agrees to the ICC's jurisdiction. These concerns are exaggerated. The ICC has no jurisdiction over crimes committed on U.S. soil as long as the United States remains a non-party to the treaty. Americans accused of crimes abroad are already subject to the jurisdiction of the country in which the crime occurred. The ICC's complementarity provisions assure the primacy of national courts, and its due process guarantees surpass those of countries to which the United States deports its own citizens.
"Perhaps the most important question is whether sovereignty is a legitimate concern when we are talking about the pursuit of international justice and the worldwide development of the rule of law," said L'Heureux-Dubé. The Rome Statute speaks of the commonality of humankind, a "delicate mosaic [that] may be shattered at any time." The international body of human rights law, developed over the last 50 years, could not exist without some erosion of state sovereignty.
Goldstone identified the recognition of individual human rights as the beginning of the end of strict sovereignty. "If individuals become the object of international law, the argument of government that 'it's not your business' ... begins to lose force." Many nations, including the United States, hold the traditional idea that sovereignty is inviolable. Yet the U.S. government does not hesitate to interfere in the affairs of many nations. That country has sought international co-operation in tracking down terrorists, yet it opposes a new institution for comparably serious crimes.
The absence of the United States will be felt, especially in the early years of the ICC. The ICC safeguards depend in part on the quality and expertise of the people administering them, and for that reason, U.S. involvement is important, even if the country does not ratify the Rome Statue. The court needs U.S. help in selecting personnel and creating a corporate culture. Opposition to the court will damage U.S. foreign policy, global stability, international justice, human rights, individual freedom, and the rule of law. There is no better instrument than the ICC to promote those goals.
The United States argues that the best solution is to help states rebuild their shattered judicial systems. But "the harm done to society by crimes of this magnitude is so massive that it disables society, even if it had decent criminal justice systems to start with. This is why ad hoc tribunals and the ICC were created in the first place," L'Heureux-Dubé said. States acting on their own could not deter Pol Pot or Saddam Hussein and bring them to justice.
Acting as a deterrent, providing justice without violence, acknowledging crimes and advancing reconciliation, marginalizing criminals, and facilitating the pursuit of international criminals - these are all among the ICC's goals. Obviously they will not be easily or quickly achieved. But, said L'Heureux-Dubé, "I have faith. As the Minister of Justice said, 'Impunity no more; silence no more.'"
Sharon Williams reviewed the establishment of the ICC by the Rome Statute on July 17, 1998. The court has jurisdiction over the most heinous crimes: genocide, crimes against humanity, and war crimes. It may have jurisdiction over crimes of aggression, but consensus on a definition of "aggression" needs to be reached.
An independent, impartial, and effective court with an independent prosecutor's office must discourage at least some of those who would seek to commit atrocities and violations of international customary and treaty law. There is no way of telling what effect a court like this might have had on events in the 20th century. "Would a real threat of prosecution, together with international enforcement capabilities, have made a difference to the course of history?" Williams said.
In all likelihood, the answer is yes. At Nuremberg in 1936, Hitler referred to the massacre by Turkish authorities of 1.5 million Turkish Armenians during the First World War: "Who, after all, is today speaking about the destruction of the Armenians?" In that case, international inaction told Hitler and others that the international community would do little to prevent them from doing the same. "The most monstrous crimes could be committed with impunity."
The International Law Commission, established to draw up the genocide convention, also drafted the principles that emerged from the Nuremberg Trials charter and judgment. The Commission was also mandated to draw up a code of crimes against the peace and security of mankind, on which it is still working. The political will to bring that project to fruition has been lacking.
Why did it take so long to set up the ICC? What were the obstacles?
The International Law Commission presented drafts to the UN annually, but those drafts were always sent back for more work. States were reluctant to further the work for a number of reasons:
á Reluctance to surrender any element of sovereignty
á Nationalistic pride in domestic legal systems
á Problems of consensus on subject matter jurisdiction
á Issues of cost and who would foot the bill
But the bloodshed in the former Yugoslavia and in Rwanda pushed the international community and the UN Security Council into action, leading to the establishment of the two ad hoc tribunals. Those tribunals and the ICC have the same aims: deterrence and prosecution, with protection of the rights of the accused, justice for victims, and the replacement of impunity with accountability. The ICC will prosecute not states or governments but individuals, and it will seek out the leaders, not the foot soldiers. Especially in internal ethnic conflicts, individualizing the guilt will help to bring about peace and reconciliation.
After five weeks of intensive negotiations, the UN's Rome conference adopted the Rome Statute in July 1998. The process involved much political posturing and accommodation. Simply drafting the statute was a major achievement. It defined core crimes and added specific crimes of sexual violence such as rape, sexual slavery, forced prostitution, and forced pregnancy as war crimes and crimes against humanity. Of the foregoing, forced pregnancy was highly controversial in countries with strong antiabortion policies; the statute had to stipulate that its provisions did not relate to national laws on pregnancy.
The statute made provision for impartial investigations, an independent prosecutor's office, and due process for the accused. Innovations included the right of victims to representation and the possibility of compensation. Crimes under the statute's provisions have no statute of limitations and no reservations.
The Rome Statute does, however, have some weaknesses. Many views were expressed at the Rome conference, and an ironclad statute could probably not have been adopted.
á The United States views Article 12 as a weakness. That article allows nationals of non-signatory states to be brought before the ICC if the country in which the crime was committed is a signatory. If the perpetrator is found in a third state, neither the state of origin nor the territorial state, the ICC cannot act. (Williams said that the custodial state should be able to turn the person over to ICC jurisdiction.)
á If a civil war occurs in a non-signatory state, with perpetrators and victims being of the same nationality, the ICC will not have jurisdiction unless the UN Security Council refers the situation to the tribunal.
á As a result of compromises, certain crimes, such as drug trafficking, are not included.
á Some states wanted provisions dealing with terrorism.
á The list of prohibited weapons does not include nuclear, biologic, or chemical weapons, although this situation may be reviewed.
A total of 137 nations have signed the statute, and 97 have ratified it, but those numbers are not enough. Many signatories have not yet created the necessary domestic legislation.
Moderator Monahan than opened the meeting to questions. One participant mentioned a Vietnam War-era initiative by the British philosopher Bertrand Russell to bring governments to justice and asked if the ICC contemplated this option. Williams responded that the idea is not practical. Prosecuting top leaders would be more effective: "You have to individualize the guilt; you can't make whole nations responsible."
Lars Henriksson said that Raoul Wallenburg's name was associated with outstanding personal courage, humanity, and decisiveness. In connection with a 2001 report, Prime Minister Gran Persson of Sweden said that without unequivocal evidence, it is uncertain whether Wallenberg is dead. The preface to the report said that Wallenberg never asked what needed to be done; he took action in the face of overwhelming evil: "His unerring moral compass indicated the path that he should take," said Henriksson. Wallenberg set an example for all people. Henriksson also mentioned that Wallenberg's assistant in Budapest, Per Unger, was later Swedish ambassador to Canada.
When Neil Finkelstein told his son Jonathan about Cicero's statement that "the laws are silent in battle," his son said that Cicero was right. Cicero's statement was not philosophical but constitutional. If Rome were about to be invaded, the Senate could appoint a dictator for a period of six months. During that time, the dictator could do anything with impunity. (During his dictatorship, Sulla killed all his personal enemies and went scot-free, paving the way for Julius Caesar.) Alternatively, the Senate could take control, again lifting all laws. "Cicero remained right for a very long time," Finkelstein said.
During the Second World War, the courts of the United States, the United Kingdom, and Canada paid absolute deference to the executive military decisions about the conduct of war, national security, executive detention, deportation, and the like. Finkelstein reviewed those old cases to give the background to current decisions.
In the Korematsu decision, Fred Korematsu, an American citizen of Japanese descent, was convicted of remaining in his home in San Leandro, California, designated by executive order as a military area. Although no contention was made about his loyalty, the U.S. Supreme Court refused to review the executive decision or his conviction for failing to report for internment, despite the lack of any rationale. It merely accepted the executive decision. Canada did the same. In Re Persons of Japanese Race, the facts were especially egregious. Japan had surrendered on September 1, 1945. On December 15, 1945, the Governor-in-Council passed an Order in Council providing for the deportation of people of Japanese descent. The war had been over for three and a half months. But because the order was passed under the War Measures Act, the Supreme Court refused to review it.
The United Kingdom followed suit in Liversidge v. Anderson. The Home Secretary, Sir John Anderson, could detain anyone if he had "reasonable cause" to believe that a person belonged to a "hostile association." Anderson ordered the detainment of Robert Liversidge and refused to explain the rationale. Liversidge sought particulars, but the House of Lords refused to act in the case. Lord Maugham found it preposterous that the courts would review an Order in Council. Lord Atkin, in dissent, said, "In the midst of war in England, the law is not silent.... It has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges are no respecters of persons" and should stand between the individual and encroachment on his or her rights by the executive. Only 15 years ago, in the United Kingdom, a review court refused to review the Home Secretary's reasons for ordering a deportation during the Gulf War.
More recently, executive discretion has come under challenge. In Canada, the Supreme Court's 2004 decision in ¤ 83.28 of the Criminal Code, Justices Frank Iacobucci and Louise Arbour expressed the need to balance national security with individual liberty and stated that it was the courts' responsibility to find that balance, not the executive, with unreviewable discretion. Iacobucci wrote, "While Cicero long ago said the law is silent in battle, we, along with many others, must strongly disagree."
A 2004 U.K. decision with regard to executive detention maintained that "unreviewable discretion is repugnant to British law." It is the duty of the courts to ensure that legislation and ministerial decisions do not overlook human rights.
"When you look at the Supreme Court of Israel, you see an enormous arrogation of power by the courts," Finkelstein said. The Israeli government and military have erected a separation wall. A Palestinian village brought petition to have the route of the wall changed. The Supreme Court reviewed the matter and ordered the change. Israeli Chief Justice Aharon Barak said that the court, although not expert in military matters, could put itself in the shoes of a reasonable military commander and direct the military to change the route.
Finally, in the United States, in the Shafiq Rasul et al. v. George W. Bush et al. decision, the U.S. Supreme Court ruled that it has habeas corpus jurisdiction to review the detention of non-nationals outside the country.
All of the preceding decisions were made in the year preceding the present symposium. All assert that, although deference has to be paid to national security issues, there must also be a balance that considers human rights. "Cicero is no longer right, but he has only been wrong for a very short time," Finkelstein said.
Patrick Monahan examined key court decisions on human rights and national security in the United Kingdom, the United States, and Canada. After the tragedy of September 11, 2001, governments around the world passed legislation responding to terrorism. The challenge for democracies is to respond effectively to terrorism without sacrificing respect for the rule of law and individual liberty.
Monahan proposed to examine executive detention: detention of individuals by the executive without review of the courts. Protection against indefinite detention without charge or trial is at the core of the rule of law. The Magna Carta (1215) prohibited the seizure of individuals "except by the law of the land," and the Petition of Right (1628) forbade imprisonment without charge. British common law developed the writ of habeas corpus, allowing individuals to challenge the legality of their imprisonment, which the government would have to prove to the court.
Do the special threats of terrorism justify executive detention without trial?
It is easy to understand why governments wish to resort to this practice in combating terrorism, detaining individuals on mere suspicion. Recent decisions of the House of Lords and the U.S. Supreme Court have tackled this question, with encouraging results. Although Canada does not have executive detention, we do have some useful parallels.
Under a 2001 U.K. statute, the Home Secretary could issue a certificate against a non-citizen of the United Kingdom if the Home Secretary reasonably believed that this person poses a national security risk or is a terrorist. The certificate could result in detention or deportation. Certificates could not be issued against British citizens. A procedure was in place to review the Home Secretary's decision before an independent tribunal, but that tribunal could rule only on the reasonableness of the Home Secretary's suspicion, not on whether the individual had engaged in terrorist acts. The U.K. Parliament enacted a derogation of the right to liberty and security, protected by the European Convention on Human Rights (ECHR). Normally, such derogation is permitted only in times of war or national emergency, and only as far as necessary.
Nine foreign nationals were detained indefinitely and without charge. They were held for more than three years. They could not be deported, because returning them to their home nations would put them at risk for torture. The Court of Appeal deferred to the government. The detention of these individuals was appealed to the House of Lords. In that chamber's December 16, 2004, decision in A (FC) v. SSHD, a nine-member panel of law lords quashed the derogation order by an eight-to-one margin, declaring that the legislation allowing the Home Secretary to detain individuals on the basis of suspicion was inconsistent with human rights legislation.
Courts cannot decide if "terrorism is a threat to the life of the nation." But the derogation order went beyond what was strictly necessary in the circumstances. If potential terrorists were such a threat, why were certificates restricted to foreigners? British nationals might be - and probably were - equally dangerous. The government's justification therefore failed. Moreover, by applying only non-citizens of the United Kingdom, the certificates were discriminatory. "This was a bold and courageous judgment," Monahan said.
Lord Nichols said that courts are conscious that only the government can decide on antiterrorism measures. But they are required to hold governments to account with regard to civil liberties. Parliament had given too little weight to the human rights of non-nationals. The right to individual liberty is a fundamental human right. "Indefinite detention without trial wholly negates that right." The government has to offer a justification in a court of law with a principled approach to justify its measures.
In two key decisions, the U.S. Supreme Court examined the legality of executive detention. Rasul v. Bush concerned a non-citizen of the United States detained at Guantanamo Bay, who had had no opportunity to challenge the legality if his detention. The U.S. government ceded that the detention of American citizens would be subject to review. The court ruled 6-3 that detention of individuals who are not U.S. nationals would be subject to judicial review, even though the United States lacks ultimate sovereignty over the base. Three justices dissented on the basis of a 50-year-old precedent and out of fear of courts interfering with military affairs.
Hamdi v. Rumsfeld concerned a U.S. citizen captured during military operations in Afghanistan. Hamdi was detained without charge or trial for three years as an "enemy combatant." While accepting that the government has a right to detain enemy combatants indefinitely during military conflicts, the court ruled that such detainees must be given a judicial hearing to answer the accusations against them.
Contrasting the U.K. and U.S. decisions, Monahan said that, although the reasoning of the U.S. Supreme Court was "less robust" than that of the House of Lords, and was more apt to cede authority to the executive, both courts ruled that arbitrary detention without review was not an acceptable way of combating terrorism.
Canada did not resort to executive detention. All cases of detention are subject to judicial review. Canada did not attempt to override ¤ 7 of the Charter of Rights and Freedoms.
Turning to Canadian decisions, Monahan described the Supreme Court of Canada's decision in the case of ¤ 83.28 of the Criminal Code, upholding the constitutional validity of the investigative hearings provision of the Antiterrorism Act. The court affirmed that, "although terrorism changes the context in which the rule of law must operate, it does not call for the abdication of law." Canada has judicial oversight of investigative hearings and detentions. The antiterrorism legislation does not override the Charter of Rights and Freedoms. The same immunity for compelled testimony extends to immigration proceedings.
In its decision on Suresh (2002), the Supreme Court of Canada upheld the Canadian definition of terrorism and ruled that the Minister of Citizenship and Immigration should not deport individuals if returning them to their original countries puts them at substantial risk for torture. Suresh was given a new hearing.
Summarizing, Monahan said that all three high courts affirm that, in responding to terrorism, we must respect the rule of law, the separation of powers, and judicial independence. Executive detention must be exceptional and subject to judicial review and oversight. These decisions reflect a commitment to core values of liberty and the separation of powers.
"In looking at justice and impunity today, we understand the need to use our power not only to resist evil, but to bring the perpetrators of crimes against humanity to justice," Lori Spivak told participants. She said that the present session would explore the relationship between truth, justice, accountability, and prevention; consider whether transitional justice is an adequate remedy for victims; and identify the lessons learned from Canada's experience of providing sanctuary to Nazi war criminals and failing to bring them to account for their crimes.
Michel Proulx drew on his experience as advisor to the Deschnes Commission to discuss the definition of justice from the perspective of victims of massive violations of human rights. Throughout Latin America, Europe, Africa, and Asia, those abuses have included killings, genocide, disappearances, rape, torture, and severe ill treatment, and have been perpetrated by past governments on their own citizens.
Such complex issues are often beyond the capacity of traditional justice systems, Proulx said, leading to the development of innovative measures under the general heading of "transitional" or "restorative" justice. In its broader sense, this term applies to a post-conflict situation in which a new government wishes to provide a measure of accountability, to avoid impunity, and to provide redress for past human rights abuses, while at the same time creating a social order that can prevent further abuses.
The Nuremberg and Tokyo trials are seen as major precedents for this obligation. Nuremberg in particular emphasized the duty to prosecute so as to preserve collective memory, build a deterrent, and impose just punishment. But Proulx said that Churchill, Roosevelt, and Stalin had difficulty agreeing on the most suitable form of justice for the major perpetrators of Nazi atrocities. At first, the leaders agreed that summary execution was the right response, arguing that the treatment of Nazi leaders should be seen as a political decision, not a judicial matter. They foresaw formidable difficulties constituting the court, formulating the charge, and assembling the evidence, and Britain still remembered its difficult attempt to try Kaiser Wilhelm and other German leaders after the First World War.
Due process eventually prevailed, with key advisors urging the leaders to avoid the impression that they were simply taking vengeance on the architects of the Third Reich. But despite the considerable moral and ethical legacy of the Nuremberg model, Proulx said that that model is of limited value to most societies in transition. When leaders of the African National Congress debated the formation of South Africa's Truth and Reconciliation Commission, they had to confront the "subtle and dangerous issues that can divide a country when it seeks to punish its own violators." The Truth and Reconciliation Commission eventually gained majority support as an alternative to prosecution of those responsible for egregious human rights violations.
Chile rejected the Nuremberg model when it formed its own Truth and Reconciliation Commission in 1990. There, the transition to democracy took place after a new government had negotiated the rules of the game, but that government still had to contend with a united, undefeated minority that still enjoyed a degree of political support. Based on pitfalls experienced in neighbouring Argentina and Uruguay, Chile adopted the guiding principle that reparations and prevention must be the overall objective, but that priority would be given to disclosure of the truth. An underlying concern was that, if truth and justice received equal priority, neither would be achieved.
More broadly, Proulx said about 20 countries in Latin America, Eastern Europe, Africa, and Asia have formed truth and reconciliation commissions since the 1970s. "This explosion in the number of truth commissions has led to a diversification in their form," with some countries establishing criminal tribunals in tandem with truth commissions. He added that the Nuremberg precedent is reaffirmed in the statutes of the special international tribunals on the former Yugoslavia and on Rwanda, and of the International Criminal Court.
Yet, said Proulx, a gap exists between the needs of victims in transitioning societies and the capacities of traditional criminal justice systems. "Our common law system focuses mainly on the accused, not the victim," he said. It relies heavily on concepts of fairness and due process to make sure that accused persons have their day in court. The adversarial procedure and rules of evidence "can hardly satisfy the victims or the public watching the trial that the whole truth comes out. Indeed, the common law sacrifices the truth and privileges more fundamental values," relying on "the evidence rather than the event" in reaching a verdict.
In transitional societies, the goal is to reach a degree of accountability for those responsible for egregious human rights abuses, "departing from a tradition of impunity and thus pursuing a goal of legitimacy." Proulx said that justice for victims is concerned with the future as well as the past and serves the need to restore confidence in the social order by helping victims to emerge from their intolerable silence and to confront their perpetrators - and thereby to break the code of impunity. Wherever truth and reconciliation commissions have been established, their final structure has reflected the specific social and political circumstances of the particular country in transition.
The concept of reconciliation has been a part of African systems of domestic dispute resolution for centuries, Proulx noted. Rather than simply punish the guilty, the focus of law enforcement is to restore balance, reconcile the disputing parties, re-establish harmonious community affairs, and compensate the victims. In contrast to the occupying powers in postwar Europe, which had little need or desire to reconcile with a defeated adversary, he said most modern transitional governments have little choice but to promote reconciliation, accommodation, and dialogue.
For those societies, reconciliation is a way of dealing with the legacy of the past and keeping the primary focus on people who require a moment of recognition and escape. It was the South African commission that defined truth as a road to reconciliation, Proulx said, but others have found that reconciliation cannot be achieved by "sweeping the truth under the rug of national consciousness." Many survivors, after a lifetime of being ignored and disrespected, have attested to the healing power of being able to tell their stories to an official commission. But the ultimate illustration of the difference between a truth commission and traditional legal proceedings came from South Africa when the chair of the Truth and Reconciliation Commission, Archbishop Desmond Tutu, wept in response to the evidence he had heard.
In contrast to a traditional trial, with its focus on the accused, a transitional justice system offers victims a chance to tell their story without being subjected to legal hurdles. But the system makes it difficult to achieve retributive justice, and considerable debate has ensued over the role of national truth commissions and international tribunals in prosecuting war criminals. Various countries have answered that question in various ways, Proulx said. But "the strength of transitional justice comes from its ability to face its own limits and entirely accept the risks of departing from traditional justice, because of a fear of a greater sense of injustice."
Even so, the South African commission heard frequent demands for justice to follow the truths that were being told under the promise of amnesty. While acknowledging that reconciliation is more difficult to achieve without prosecution, Proulx said that punishment is not a sine qua non to accountability. Even if accountability is limited to a formal apology, he said that truth commissions break down the culture of impunity in these ways:
á Naming the perpetrators and exposing them to social stigma
á Creating a context in which perpetrators can admit to much more than they would have disclosed through a more adversarial process
á Identifying many more perpetrators than would have been possible through regular investigations and prosecutions
á Promptly addressing the causes and consequences of human rights abuses, at considerably less cost than are incurred in traditional trials
Jurists have been considering similar innovations for international war crimes tribunals, hoping that traditional and transitional systems might ultimately complement one another. Proulx said the ultimate goal should not be to choose between the two approaches, but to adopt the most pertinent forms of justice from both systems.
Irving Abella traced the discussion of Canadian sanctuary for Nazi war criminals to December 1949, when the Canadian Jewish Congress (CJC) learned that a recent immigrant from Lithuania had been convicted in absentia of war crimes and sentenced to death. As a local chief of police, the man had led a unit that had killed thousands of people, mostly Jews, between 1941 and 1944. The CJC demanded this man's deportation, but received no response until 1996, when the federal government tried to deport the 90-year-old for his involvement in crimes against humanity. In February 1997, after 48 pleasant years in Canada, the accused man was finally brought to court to hear the charges against him. That night, he died peacefully in his sleep.
The foregoing story symbolizes Canada's "pathetic record in dealing with Nazi mass murders," Abella said. Historians say that 2000 to 5000 Nazi war criminals settled in Canada after the Second World War, and "almost nothing was done until very recently to get rid of these people." After six decades, one person was extradited to Germany, two were deported, two others left of their own accord, and "the rest remained so unconcerned about being charged or so dismissive of any attempts at apprehension that some of them have not even bothered changing their names or hiding their identities."
Ultimately, little was done because few people cared, Abella said. In the postwar period, governments were unmoved by moral arguments and had no inclination to offend immigrant communities with substantial voting power that might object to having some of their compatriots investigated. Postwar investigations were also seen as a Communist attempt to destroy reputations and sow dissent in East European immigrant communities.
With the appointment of the Deschnes Commission in 1984, Canada finally appeared to have the political will to act. Expectations were heightened two years later when the government accepted the commission's recommendations and amended the Criminal Code to permit prosecution and deportation of war criminals.
Although the political will may have existed, Abella said that little bureaucratic interest existed in pursuing the hundreds of files that the commission had handed over for investigation. Few charges were laid, and the prosecutions that did take place were unsuccessful - largely because federal officials "lacked the necessary fire in the belly to undertake the prosecutions.... And thus, a significant opportunity was frittered away." After the 1993 federal election, when it appeared that political and bureaucratic will were in alignment, a series of "strange interpretations of the law" by judges and immigration adjudicators became the major impediment.
Abella attributed the presence of war criminals in Canada to a postwar immigration policy that sought to protect the country from being "swamped by Jews and Communists." Canada accepted almost no Jews before 1948, and favoured immigrants who had fought the Soviets during the war. "The fact that [some immigrants] had fought with the Nazis and may have committed war crimes seemed to bother few at the time," Abella said, suggesting that the admission of a few war criminals was seen as a cheap price for keeping out Communists and other threats to Canadian democracy.
Although more Jews were eventually allowed to enter Canada, federal policy continued to favour immigrants with strong anti-Communist credentials. Cold War hysteria had been sparked by revelations of a Soviet spy ring in Ottawa, and despite warnings that its policies would virtually ensure entry of a significant number of Nazi collaborators, the government persevered. The historical record shows that Ottawa allocated insufficient funds to screen potential immigrants, and a 1948 security panel meeting reported "great difficulty in finding suitably qualified personnel to keep out these alleged war criminals." Canadian visa control officers had insufficient experience, and had learned nothing about Germany, the German army, or concentration camps before they were sent to work. One officer told Abella his assignment was to keep out Communists and their sympathizers, "and by that, I understood them to mean Jews."
The Canadian Armed Forces prosecuted many people accused of crimes against Canadian prisoners of war, and Canada joined other UN countries in reaffirming the judgment of the Nuremberg tribunal. But the Nuremberg process was not allowed to run its course: In 1948, the British and American governments agreed that the strategic importance of strengthening the West German government outweighed the value of continued prosecutions. After that, as Deschnes reported, the matter of war criminals in Canada quietly vanished.
The Canadian Jewish community was dimly aware of the government's policies at the time, Abella said. But many people were still traumatized by the war, and the effort to help new arrivals settle and integrate took much time and attention. The trial of Adolf Eichmann caused a momentary stir. But when Jewish organizations petitioned Prime Minister John Diefenbaker to prosecute Nazi war criminals, the government declined. Senior officials warned against being seen to pander to the Jews, with one advisor suggesting that the request "smacks very strongly of a witch hunt."
By the late 1970s, attitudes had begun to change: Holocaust survivors were more vocal, Jewish organizations were more determined, and politicians were more responsive. The U.S. government had been embarrassed by reports of Nazis living in the United States, but even then, Prime Minister Pierre Elliott Trudeau warned that a Canadian response would risk offending Polish and Ukrainian communities and create difficulty for Jewish Canadians. In the interest of a multicultural society, the Prime Minister took the view that "the problems of the Old World ought not to be imported into Canada."
In 1984, Prime Minister Brian Mulroney characterized the presence of Nazi war criminals in Canada as a moral issue that went to the heart of the country's value system. He then appointed the Deschnes Commission. After reviewing the cases of 900 suspected war criminals, the Commission identified 29 individuals for immediate attention, flagged another 250 for further investigation, and called for legislative amendments to permit war crimes trials in Canada and to improve the existing procedures for extradition, denaturalization, and deportation.
By 1988, the government had committed itself to a "made-in-Canada" solution that identified prosecution as a preferred option and that amended the Criminal Code, the Immigration Act, and the Citizenship Act in line with the Deschnes recommendations. But, said Abella, federal officials were not up to the challenge. "It appears, according to the first head of the War Crimes Unit, that most senior bureaucrats of the government were determined to delay, even to thwart prosecutions." In an assignment that called for creativity and determination, key decision-makers evidently saw no value in prosecuting alleged war criminals from another era charged with crimes committed outside Canada. They may also have been concerned about the cost and logistic difficulties of assembling evidence. In the end, only five people were brought to trial in the 10 years following Deschnes.
By the mid 1990s, Abella said, the issue had become an international embarrassment. A U.S. private investigator armed with little more than a telephone book and a list of names supplied by the CJC turned up scores of suspects, some of whom were captured by a hidden camera giving detailed accounts of their murderous activities. Even in the face of this incriminating evidence, the government prosecuted only 2 of the 82 alleged war criminals under investigation. By the late 1990s, the Department of Immigration had learned that Canada was seen as a refuge of choice for war criminals and warlords from Bosnia, Somalia, Rwanda, and elsewhere.
"To the government's credit, under the new Canada Border Services Agency a real effort has been undertaken in the past few years to get rid of them," Abella said. But "clearly, the attempt of these alleged war criminals to settle in Canada is a legacy of our hands-off policy toward Nazi war criminals. Our refusal for so long to deal with the most heinous criminals in human history has raised questions about our system of justice, undermined our credibility, and robbed us of some of our moral standing in the international community." Ultimately, said Abella, Canada paid a heavy price for 50 years of turning away victims of Nazi war crimes, accepting the perpetrators, and failing to live up to its own standard as a just, humane society.
Mark Berlin introduced keynote speaker Albie Sachs using the justice's own quote: "The kingdom of heaven is within you, and you are part of the struggle." Describing Sachs as a first-hand witness who had personally suffered gross violations of his human rights, Berlin noted that Sachs had not simply studied major human rights cases. "He is the case," said Berlin - having shown leadership, courage, and perseverance against insurmountable odds and moral conviction in the face of zealous intolerance. After facing "trials that most of us here can barely imagine," Sachs moved on to shine a light on one of the darkest regions of the world and to become a "beacon of hope in a world awash with intolerance."
Albie Sachs traced the formation of South Africa's Truth and Reconciliation Commission back to a "very heated meeting" of the National Executive of the African National Congress (ANC) about nine months before the country's first democratic elections in April 1994. An investigative commission had just confirmed reports of torture and inhumane treatment of ANC captives during the years of civil war, and had recommended that appropriate action be taken against the security personnel responsible. The recommendation split the national executive. Some members felt that the circumstances warranted harsh action against the people who had been sent to kill ANC members; others insisted that torture is never justified.
"It was a deeply moral question - a liberation organization, fighting for freedom and justice itself, but betraying the values it stood for," Sachs said. "You can't decide that by a show of hands."
Participants gradually realized the irony of debating ANC members' behaviour without shedding similar light on the actions of the apartheid government. Eventually, from an initial position of desire to place its own errors on the record, the group choose to create a commission that would examine violations of rights from all sides, "not in the name of one organization or party, but in the name of the nation."
In the end, Sachs said, that decision became the cornerstone of South Africa's democratic development. The 1994 elections faced the threat of right-wing violence. South African security personnel (who had been offered amnesty by the former apartheid government) had agreed to protect the electoral process, but they were now threatening to resign if any possibility arose that they would face incarceration following an investigation of their past actions. As a leading member of the ANC's Constitutional Committee, Sachs recommended that the new government honour the amnesty - but only on an individual basis, for people who came forward to the Truth and Reconciliation Commission.
Rather than sweep aside or forget the crimes of the past, Sachs said, the disparate parts of South African society were able to come together through the decision to trade amnesty for truth. The Commission was formed in a spirit of reconciliation, not revenge, with the statement that "we acknowledge the crimes, the injustices, the violations, the divisions of the past, but with a view to healing and building a bridge to the future."
In retrospect, Sachs said, it was fortunate that objections from civil society - which already had its doubts about the amnesty - outweighed his initial assumption that the Commission would conduct its hearings in private. Sachs had doubted that perpetrators would come forward in public. But, "in the end, that turned out to be the critical factor. We saw their faces. We heard their voices. It humanized, and it personalized. It gave texture and human substance to the whole process."
The amnesty had three components:
á The Commission itself, which was chaired by Archbishop Desmond Tutu and which travelled the country and heard the voices and stories of more than 10,000 people
á A separate, somewhat less effective, structure to deal with reparations
á A forum in which perpetrators could come forward to tell their stories
Sachs recalled how important it was to separate personal testimonies from any quest for reparations. "People mustn't come and tell their stories because they want to get damages or denounce anybody," he said. The purpose was to acknowledge "the pain in their hearts," after years of being told their stories were exaggerated or untrue.
Experience suggests that the reparations commission should also have placed more emphasis on individuals' sense of worth and less on trying to compensate human suffering or disability - for example, Sachs' own experience of losing an arm to a car bomb. "You can't place it in the market," he said. "But to achieve democracy? To live in a free country? To have a constitution? That makes roses and lilies out of my arm.... It's the sense of being someone, the sense of moral citizenship in your society."
When perpetrators did come forward, Sachs said, it was fundamental that they came from both sides of the former conflict. Although the overwhelming weight of evidence had to with human rights abuses by the former government, the testimony by Thabo Mbeki - then the ANC's Deputy President, and today the South African President - on behalf of his organization regarding gross human rights violations was important. "Truth and justice can't lie with any particular person or party," Sachs said.
Knowing that "the truth came pouring out in these proceedings," which lacked the rigours of due process, Sachs claimed puzzlement about how little truth comes out in standard court cases. That line of thinking led him to define four types of truth:
á Microscopic truth, in which an institution or onlooker defines the field, examines the variables within that field over a period of time, and observes their interaction
á Logical truth, in which the results of a microscopic analysis are translated into an indictment, testimony, and a decision to assign responsibility
á Experimental truth, which grows out of Gandhi's process of drawing lessons and inferences from personal life experience
á "Biological truth," which draws together the rich, complicated, incomplete, intense, meaningful personal experiences brought forward by people to a truth commission
Formal legal proceedings are based principally on the interactions between microscopic and logical truth, Sachs said, but the combination of experimental and biological truth was fundamental to the work of the Truth and Reconciliation Commission.
The commission investigating atrocities in the former Yugoslavia has been asked to get at the facts, but Sachs indicated that the process is "missing what is most profound. It's not the facts. It's the voice. It's the emotion. It's the personalizing. It's the sense of reality that people can connect with." The facts are important, and in South Africa's case, they are there to be read, but what matters most was the "huge transition from knowledge to acknowledgement." Acknowledgement, Sachs said, is absorbed into a worldview, gives dignity to the people who participate, and recognizes that victims are not statistics, facts, names, graphs, or memories - they are human beings.
In South Africa, the victims' pain was acknowledged by the nation, and perpetrators acknowledged what they had done. However hesitant or incomplete some of the acknowledgements might have been, Sachs said that the experience connected them with the rest of the world, so that "now we start living on the same moral plane." Rather than act like defendants in the witness box, trying to deny or mitigate actions, the perpetrators told their stories - some defiantly, some abjectly, some weeping - and explicitly admitted that what they had done was cruel, wrong, unjust. Without that experience, he said, "you're not living in the same country - you're existing in the same territory," but not sharing the same constitutional or moral space.
In the end, Sachs said, enough perpetrators came forward in their own voices to provide "[profound] healing for our country" not because of torture, sleep deprivation, or solitary confinement, but to gain the benefits of amnesty. "Some of them also wanted to come clean to the world for the things they had done that were now possibly giving them nightmares.... Now they started becoming human beings again."
Did the process of truth lead to reconciliation? "It did and it didn't," Sachs said. "Many of the families who lost sons, daughters, parents - people who had been tortured - felt the state can't forgive: 'I can forgive. The state can't forgive.' Others felt it opened up the wounds." But at the same time, Sachs said that the process of testimony means, "the light comes in. We know what's happening. It doesn't heal in itself, but it creates a basis for healing," particularly because the commission hearings were so public that no one could totally escape the events.
The main problem with reconciliation was the continuing inequity in South African society created by apartheid. At the end of each day, the torturers drove back to their homes, their swimming pools, and the good schools their children attended. The people who had suffered took taxis back to the shacks in which they lived and a second-rate education system. With the dismantling of apartheid, people can vote, can move freely about the country, and can enjoy basic human dignity, "but the discrepancies in our society are still enormous, they're still connected with race, they still flow from apartheid, and until we've dealt with these massive inequalities in like opportunities, we won't have full reconciliation," said Sachs. At the same time, that burden did not belong to the Commission - its role was to cleanse the moral climate of the nation, so that the other inequalities of apartheid could be confronted honestly.
Sachs said that he still favours prosecution of former Chilean dictator Augusto Pinochet, who granted a general amnesty with no link to individual responsibility and who has never acknowledged his own actions. Sachs also described the Nuremberg trials as one of the great moments in human history, in which "the conscience of humankind came together in legal form to denounce this principle that nations can war with other nations, that all's fair in love and war, that there are no standards once you're fighting for survival and domination." The defect in that process, its failure to involve the German society in which Nazi ideology emerged and grew, made it possible for some people to blame the entire experience on a few rogues and gangsters.
"What our process did was to make it a very deep, internal thing involving the whole nation, involving everyone," Sachs said. Although the Nuremberg trials were the right course of action in their time, South Africa's innovation was to separate truth-telling from the prosecutions that eventually took place.
"If we hadn't had the possibility of a truth commission amnesty, we mightn't have had the elections, the civil war would have carried on, we wouldn't have a constitutional court, we wouldn't have a constitution, we might have gone for a form of punishment of those guilty, the cases would have dragged on forever, and our country would have been mired in a situation of perpetual conflict and rancour." Instead, the new South Africa was able to build its constitutional court building on the site of Fort Prison, the notorious place where the government had held Gandhi and many other political prisoners.
The site is located on a hillside near the centre of Johannesburg, not far from the train station, but "we chose it because of the history. Everybody locked up everybody there. We wanted to take that enormous negative energy and convert it into positivity" - not by suppressing it, but by using it to produce something beautiful
Simon Potter said that the media play two roles in relation to human rights. Reporters sometimes become direct players in human rights issues, such as when an Ottawa Citizen reporter was visited in her home by the RCMP to collect evidence in an investigation. "But I'm sure the major part of what we will discuss today is the duty of the media in helping us to come to grips with these questions of human rights."
Balanced reporting garners wide support, Potter said, but "the balances we are trying to make since September 11 are new, and we have to recognize that the media are coming to grips with something difficult." One challenge is to move beyond the daily news to report on broader issues, "issues such as what comes up when you round people up and incarcerate them for years without lawyers. Round them up on the basis of their ethnicity. Round them up when the population says, 'Yes, please, round them up.'" A second challenge is to determine whether news is determined by the event or the audience, and how reporting will change in response to demographic shifts over the next century.
Edward Greenspon addressed the critical role of foreign correspondents, noting that both the Globe & Mail and the Canadian Broadcasting Corporation (CBC) have good reason to invest so heavily (though not as heavily as either would like) in maintaining a network of reporters overseas.
For the media, said Greenspon, one of the most enduring lessons of the war in Vietnam was the ease with which a story can be missed when a breakdown in trust occurs between correspondents and editorial desks back home. In the early phases of the war, major news organizations had correspondents in theatre, news analysts in Washington, D.C., and desk staff in New York City. The people in the field tended to be younger, with less established credentials, but they were the first to suspect that official reports of U.S. successes were less than credible.
Contrary to the "mythology" that the field reporters were against the war from the start, Greenspon said that "young turks" such as David Halberstam and Neil Sheehan actually supported the U.S. war effort. They objected to the way that the war was being prosecuted and to the lies that they felt they were being told. The "big-picture guys" in Washington had no "small picture" and were more inclined to believe their official sources. The desks were caught in the middle. Not until the 1968 Tet Offensive did the media begin to question official accounts of the war.
Greenspon said that news organizations understand the importance of choosing foreign correspondents they can trust and backing those correspondents up with editors who have strong knowledge of the world beyond their borders. Foreign editors do more than facilitate the transfer of information: their job is to ask informed questions of their correspondents and to protect the integrity of the news organization.
The process of getting a story onto the page combines conversations between editors and correspondents with input from non-governmental organizations and governments and with facts that can be gleaned by monitoring other media, Greenspon said. People often use "balance sheets" to rank the South Asian tsunami against the HIV/AIDS pandemic in Africa, to weigh coverage of conflict and atrocities in Darfur and in Cte d'Ivoire. But "the media, like any other player, must choose at any given moment in time where it's going to put its attention," he said. "It doesn't have a bottomless pit of resources, and the world is full of misery, so [that] you can't document every strand of it every day." The media may make choices, he said, but so does the United Nations.
At the Globe & Mail, the magnitude of impact is one of the ingredients in selecting a story - but only one. For an organization that responds to a 24-hour news cycle, freshness and suddenness are also factors, which is why media often find events easier to cover than trends.
Greenspon cited the December 26, 2004, tsunami as an example. The story was fresh and dynamic, it was breaking news, it had captured public attention, and it happened during an exceptionally slow news period when "the appetite to 'go big' is voracious." The tsunami had greater "energy" than the HIV/AIDS pandemic, even though the pandemic was a more consequential story, but Greenspon said that any disparity in coverage had nothing to do with racism: "It's more fundamentally rooted in the nature of news."
Knowing that time-challenged readers are constantly weighing whether a particular story matters to them immediately, Greenspon said that editors will always prioritize an attack on a school over a more general feature on the conflict in Chechnya. The advantage is that an immediate "news hook" creates an opportunity to explore the wider issues behind the story.
Access to the story is a factor that limits coverage in a country like North Korea, where the Globe recently found adults scavenging for grass to eat. News organizations are also concerned about the dangers involved in reporting on humanitarian conflicts in war zones. In Iraq, some of the larger news organizations have bought their own armoured personnel carriers. Others rely on local stringers (an approach that Greenspon said is less effective in print) or have compromised their independence for the "apparent security" of being embedded with U.S. forces.
News judgement is also guided by the interest shown by major opinion leaders, and by the country's political and strategic interest. Events in Haiti might receive disproportionate attention because Canada is located in the same hemisphere and is home to a large Haitian population. Countries also tend to pay more attention to stories in their "former colonial offspring." By contrast, however many times the Globe might try to cover the great Central African wars, "it doesn't seem to stick."
Greenspon said that all reporters and editors know how to find the stories that will capture the public imagination, but that measuring that "stickiness" is an art, not a science. "You may say that what matters is whether the issue is important," he said, "but the media exist in a marketplace of news and ideas. If the market isn't interested, we'll move on." On the other hand, that determination "isn't a toggle switch. It's shades of grey."
Tony Burman described the experience of smuggling the world's first major news reports of the Ethiopian famine out of Addis Ababa 20 years ago, and recalled the enormous international response that followed. Canada's UN ambassador at the time, Stephen Lewis, addressed the issue in the General Assembly within a few days, and Canada's largest-ever relief effort saved 700,000 of the 7 million people whose lives were spared by the international response. Canadian aid to Ethiopia and Africa increased through the 1980s, but declined in the subsequent decade, so that Lewis now speaks of confronting "the limits of our passion." When the CBC's Brian Stewart produced a 20-year follow-up to his original reports from Ethiopia, he identified brutal structural adjustment policies, the failed response to the Rwandan genocide, and the emergence of the HIV/AIDS pandemic as key measures of the world's track record in the region.
Burman said that the media traditionally play a watchdog role that has drawn many journalists to their profession. But the world has changed dramatically in the 20 years since Stewart's special reports from Ethiopia. News organizations have faced tremendous cost pressures that have driven down their investment in international coverage. Years ago, a major U.S. network might have 10 times as many foreign correspondents as the CBC - a reasonable multiplier based on population. Today, Burman said, the CBC has more reporters working abroad than any of its U.S. counterparts, "so it's no wonder so many Americans are uninformed about the world."
At the same time, Burman said, Canadian media should be more aggressive in alerting audiences to emerging international human rights violations. In the 1920s, renowned journalist Walter Lippmann described the role of the media as "the beam of a searchlight that moves restlessly about, bringing one episode and then another out of darkness into vision." But Burman said it isn't easy to determine where that searchlight should be directed, and media can't make the decision on their own; they have to work with agencies that are better informed and that have the mandate to become involved.
Declining foreign aid, a generation being eliminated by HIV/AIDS, and the long-term impact of the tsunami are all factors that affect news coverage, Burman said. News organizations also know that more journalists have been killed on the job in the past year than in any preceding year, and that governments in developing countries are becoming more adept at stifling coverage. One challenge for journalists themselves is to become more aware of international human rights law and of their own professional obligations as reporters.
Burman predicted that Canadian coverage of international news will improve over time. Credible news organizations such as the CBC, the Globe & Mail, and the Toronto Star are committed to foreign reporting. A recent CBC News survey found that Canadians want more coverage that links world events to their daily lives. "That's remarkably enlightening and encouraging, and we intend to respond."
Greenspon then described the Globe's decision to open its Africa bureau, after sending reporter Stephanie Nolan to cover the HIV/AIDS pandemic and other stories in the region. Although nothing in the paper's budget or strategic plan supported a permanent presence, "the editors were very moved by her stories, and by the sense that we had the right reporter for the right place at the right time." When reports of humanitarian abuses in Darfur began to circulate last winter, Nolan was one of the first journalists on the scene. She filed "riveting reports" from the field, Greenspon said. On the tenth anniversary of the Rwandan genocide, the Globe decided to elevate its coverage of Darfur.
The lesson to be learned is that news organizations "are not devoid of values," Greenspon said. "They operate off some base, some assumption of the world. What they should be devoid of is partisanship, and those that aren't should be ashamed of themselves." But the broader issue is how to balance competing coverage priorities - and, on that issue, Greenspon quoted Nolan's mother, who recently wrote that it was hard to care much about one more African disaster after repeatedly hearing the same stories since childhood.
"A reader speaks, the mother of our Africa correspondent," Greenspon said. The job of media, he continued, is to fight indifference and shine Lippmann's spotlight on the great issues of the day, rather than pander to fatigue, but "we aren't the activists. We're the folks who provide the foundation for people's activism, and I think it's important to remember that role."
A participant asked whether op-ed (opinion and editorial) features are subject to the same judgements as news copy, and whether a line is ever drawn between facilitating discussion and alienating readers. Greenspon said that the Globe, with 2 million readers each week, is bound to offend a portion of its audience, "and they aren't always good sports about it." News reports must be fair and balanced, he explained, but opinion pieces are expected to take a stance, and editorials an even sharper one. Later, he explained that columnists receive "tremendous latitude" to express their views, within the limits of defamation and good taste.
In response to another participant's question, Burman said that the CBC News survey mentioned earlier had revealed Canadians' impatience with the artificial polarization in many news stories. "The richness in issues, as we know, is often grey," but that understanding can be difficult to reconcile with the brevity and compression that audiences also expect.
Greenspon said that journalists act as "fair witnesses to history, and I think we give our testimony in public through our broadcasts and newspapers." That doesn't mean suggesting an even balance between a Hitler or a Pol Pot and those who oppose them, but "our credibility runs into trouble when we become prosecutors." He said that many journalists were troubled when one of their colleagues agreed to testify at the Milosevic trial in Belgrade. "That's an area of activism that is ultimately dangerous to the credibility of the media and its fair witness function."
William Schabas began his presentation by saying that the question "Why have we failed" had been imposed on him - just as a charades player is assigned a phrase to act out. Schabas then said that he had chosen to focus on the third word in the question: "we." That word, he said, is the crux of the matter. Who is "we"?
Schabas indicated that people think they intuitively know who the "we" are. Had today's audience been with Raoul Wallenberg in 1945, the answer to the question would have been straightforward. Wallenberg would have had no problem identifying the "we." "I think he would have understood that 'we' implied a community of views ... shared by progressive people in Sweden, the United Kingdom, France, Ireland - and above all, the United States."
In 1945, the spokesperson for that collective "we" would have been Franklin Delano Roosevelt, who had articulated the "four freedoms" in his 1941 State of the Union speech. Eleanor Roosevelt subsequently developed those ideas, and they also appear in the Universal Declaration of Human Rights of 1948, to which Canadian John Humphrey contributed.
For some time, that community of views (which has been identified with the West, now called the North) included both Europe and the United States, with Rooseveltian thinking at its core. But sometime in the 1970s, "that 'we' started to come unhinged," Schabas said. A rift developed between the views held by Europe and the United States. Canada sided with European tradition.
The rift in the "we" emerges in a number of issues. On the first day of the present symposium, speakers addressed the International Criminal Court, said Schabas, and "there we have a dramatic division of opinion between the keenest supporters and most vicious opponents." U.S. policy has moved from the indifference of the Clinton administration to open hostility. A similar rift has developed over capital punishment. With regard to economic and social rights (such as health care, education, and social security), the United States does not maintain the same commitment as is found in European nations and in Canada. Is that rift a sign of failure, or is it an indicator of growing clarity, which will eventually lead to greater accomplishment?
Schabas said that people working in the human rights area are always trying to determine if things are getting better or worse. The negative view is almost an article of faith among non-governmental organizations (NGOs). "We always have to say that things are getting worse because otherwise people don't give you money," Schabas said. But how is the measurement achieved? Is racism less than it once was? Is the position of women better? How can failure or success be quantified?
One area in which Schabas has extensive experience is that of capital punishment. In 1944, when Raoul Wallenberg vanished, most nations had capital punishment. Indeed, some nations that had abolished it reinstated it after the war to punish collaborators and Nazis. Canada, Sweden, the United States, the United Kingdom, France, South Africa, and Russia all had capital punishment. All of those countries except the United States have since abolished it.
The international community imposed the death penalty on 11 people at Nuremberg in November 1946. But after that, the situation began to change. Germany abolished the death penalty in 1949. The rate of abolition then quickened, from one country per year in 1960 to two countries per year in the 1970s. Schabas predicts that three countries will abolish the death penalty in 2005. Only three countries in the European Union still retain the death penalty, and they will soon abolish it. Worldwide, 127 nations have abolished the death penalty; only 67 retain it. Schabas predicted that the death penalty will have vanished in 20 years. Back in 1989, when Amnesty International published an important book on subject, 100 states had the death penalty and 70 had abolished it (cited in the Kindler case of 1991). The turning point was probably when South Africa abolished the death penalty in 1995.
Schabas then reviewed evolving Canadian case history from the 1970s on. He categorized Miller and Cockerell v. Regina as a "disappointment" to those who hoped that Canada would emulate the progressive decisions in the U.S. Supreme Court. The eventual change in the positions of the Canadian Supreme Court and the U.S. Supreme Court is another illustration of the rift mentioned earlier. In the 1960s, progressive Canadians longed for a Supreme Court like that operating under Chief Justice Earl Warren. Canada eventually got such a court. Today's U.S. Supreme Court is now much like the Canadian Supreme Court of the 1960s.
Kindler and Ing was also a disappointment. "We hoped to follow the European Court of Human Rights." In Burns, Schabas said, "I was an intervener with David Matas and Irwin Cotler.... We invited the court to go all the way, and they did."
Racism, the oppression of women, the use of torture - these issues, too, show similar changes for the better that are not easily quantifiable. If Raoul Wallenberg were alive today, how would he judge our progress from 1945 to the present? What would he see as our greatest success?
Wallenberg would be pleased by the end of apartheid, the advent of civil rights, and other developments, said Schabas, but the greatest accomplishment that he would see would be the absence of a world war like the two he had seen in his lifetime. "It isn't worse now than it was," Schabas said. Far more people were killed in the 30 years before 1945 than have died in conflicts since then. Of course even one death is a tragedy, Schabas said. But even the Iran-Iraq War in 1980s killed 2 or 3 million, as opposed to the 45 million who died in the Second World War - 25 million of those in the Soviet Union alone. Wallenberg would see that change as a great accomplishment. Why isn't it seen as central to the victory of human rights? Why have we had no world wars?
The reasons are complex, said Schabas, but he focused on a legal explanation for the change. In June 1945, the world saw a prohibition on the use of force promulgated in the UN Charter. A month later in London, at the conference that established the Nuremberg trials, crimes against peace were made an international criminal offence. Since then, the world has had 60 years of relative peace. But the legal protection against crimes against peace also presents three problems for human rights.
The first problem is the question of humanitarian intervention. In light of the Rwandan genocide, the international community began to see the need for a human security agenda. Intervention could have prevented the genocide, but was not used. Gen. Roméo Dallaire claimed that he could have stopped the genocide with an additional 5000 troops. Since then, the world has recognized an obligation to intervene. But a second shift in thinking occurred in 1998-1999, Schabas noted. "Perhaps intervention didn't require Security Council approval, but could be carried out by a group of like-minded states." Most of the human rights community saw the NATO intervention in Kosovo as a positive development, despite its violation of Article 2, Paragraph 3, of the UN Charter. But the human rights community subsequently criticized the United States for intervening in Iraq. Tampering with this provision of UN Charter, Schabas said, "is playing with fire."
The second problem relates to the law of armed conflict. It is now fashionable to talk about human rights law and humanitarian law as two sides of the same coin. But the two are different, in important ways. Humanitarian law is the law of war; it is not interested in responsibility for war. At his war crimes trial, Slobodan Milosevic accused NATO of bombing Serbia first - a point that the judge rightly dismissed as irrelevant under humanitarian law. Human rights law, on the other hand, prohibits the arbitrary deprivation of human life. Innocent Baghdad civilians who are killed by bombing have been arbitrarily deprived of life. The bombing that caused their deaths might be a lawful act of war, but it is contrary to human rights law. "We're wrestling with this," Schabas said. In the July 2004 advisory opinion on the wall in occupied Palestine, the International Court of Justice tried to unravel humanitarian and human rights law, but failed to deal with the legality of the war.
The third of the problems concerns the relationship of peace and justice. "No peace without justice" is almost a slogan in international human rights. An NGO even bears that name. A recent judgment of the Special Court for Sierra Leone said that the peace agreement of 1999 is illegal because it gives amnesty to combatants. Is the world supposed to reopen a conflict because justice has not been done? Taking a clear position or reducing complexity to absolutes is difficult. The need for peace and the need for justice require careful balancing.
Schabas answered the question "Why have we failed" with another question: "Why haven't we succeeded in properly relating the right to peace to the other human rights? Why have we failed to put the fourth freedom on the same pedestal as the other three?"
Before introducing the panellists, David Matas spoke about Raoul Wallenberg. "We can celebrate Raoul Wallenberg's life and contribution to humanity by learning from him, by honouring him, by attempting in our own small ways to imitate him." January 17 is the anniversary of Wallenberg's disappearance into the Soviet Gulag in 1944. His fate is still unknown. He, who had saved so many from human rights violations, was himself a victim of human rights violations. Part of countering racism, intolerance, and human rights violations involves finding out what happened to a man who did so much to oppose those wrongs. Respecting Wallenberg's human rights means trying to determine his fate. The world owes this much to his family and to humanity. No one must lose sight of Wallenberg in a cloud of forgetfulness or glory. "When we ignore his fate, he disappears a second time, and for that, we are to blame."
Irwin Cotler chaired two international inquiries into Wallenberg's fate. Those inquiries reported in 1990. They provided valuable information, but they did not tell the whole story. In 1996-1998, Matas produced a report on Wallenberg's fate for Canada's external affairs department. He concluded that Wallenberg's fate is knowable, but not known. Other reports had come to much the same conclusion. But the Russian authorities had come to a different conclusion: after many contradictory accounts, the Russians concluded that Wallenberg's fate is an unsolvable mystery. Matas disagreed and said that the possibilities are not exhausted.
The core problem is access to Russian archives, which are still mostly closed to Western researchers. In 1998, Professor John McCamus of Osgoode Hall Law School wrote a report for the federal government that exonerated Peter Kramer, then head of the War Crimes Unit of the Department of Justice, from allegations of anti-Semitism, because of the unit's failure to launch new war crimes cases. McCamus found that the reasons for the failure lay with Eastern Bloc archives. The unit had repeatedly tried to get information needed to investigate cases, but the responses from the archives were dilatory, incomplete, evasive, or nonexistent. What little information was sent could not be evaluated or authenticated. The people trying to investigate Wallenberg's disappearance have encountered exactly the same problems.
The answer is to give Canadian researchers direct access to Russian archives, Matas said. For war crimes investigations, Canada negotiated with Russia a memorandum of understanding to that effect. Matas has proposed to two ministers of foreign affairs - Lloyd Axworthy and Bill Graham - that Canada negotiate a similar agreement for investigating Wallenberg's fate. Canadian war crimes researchers working in Russian archives could look for information about Wallenberg. The Russians are willing to allow limited access. Because Sweden has a natural right to take leadership in the case, Matas approached the Swedish government to determine whether Sweden would be willing to negotiate with Russia to gain access for Swedish researchers.
The existing Canadian-Russian memorandum requires three changes to deal with the Wallenberg file:
á Canadian researchers, who are already familiar with Russian archives, need to be allowed to investigate Wallenberg as well as war crimes.
á Swedish researchers, as well as Canadians, need to be given access to the archives.
á Results pertaining to Wallenberg need to be exempted from confidentiality restrictions so that they can be made public.
Because evidence for the case is apt to be found in a wide variety of sources, these conditions would require access to Russian security, KGB, and prison files, including information of genuine confidentiality. That issue requires work.
After 15 years, Matas said, he still doesn't know what happened to Raoul Wallenberg. But in considering Wallenberg's legacy of human rights, the world should remember Wallenberg's human rights.
Bob Rae told participants that, since disappearing from public life, one of the things he has been working on is federalism. "Now, before you all disappear," he quipped, "let me explain why this has a great deal to do with the rule of law and the implementation of the rule of law in places and contexts where lawlessness has prevailed."
Canadians need to reflect on what they can do, Rae said. What was remarkable about Raoul Wallenberg was that he was one man - one person. "He decided to make his life a symbol of hope and change." By his choices and by the interventions he made, he saved hundreds of thousands of people. Canadians often say that Canada is a small country, without a huge army or power - how can it make a difference?
The answer lies in how Canadians have chosen to govern themselves. Canadians have committed themselves to developing a legal, constitutional, and political structure that reflects tolerance, combats racism, and deals with the violation of human rights on a systemic basis. "This," said Rae, "is our story as a country" over the last 150-200 years.
Rae's theme was simple: in the 21st century, not only should Canadian domestic policy insist on practical steps to end racism, intolerance, and violations of human rights, those ideals should also be expressed in the country's foreign policy. The federal ideal exemplifies one important aspect of how Canada has chosen to deal with such evils. Canada will make an effective contribution in the future by insisting on dialogue about governance and legal and political structures in countries in conflict.
Schabas reflected on the conflicts, violence, and depravity of the 20th century, said Rae. Since 1945, most of the most serious, difficult, and costly conflicts in the world have not taken place between countries or competing empires, but within countries - frequently when people of different languages, religions, or colours have been thrown together by globalization or arbitrary borders. "We've seen how people who live in the same country can't live side-by-side without becoming engaged in serious and often violent conflict."
The federal ideal can be distilled into relatively simple ideas:
á First, "people can share the same geographic space without necessarily being the same." The human personality's aspiration to self-expression - individually and in groups - and that expression and the self-determination that flows from it give rise to a right that must be acknowledged. The key to successful federalism is an acknowledgement of the distinctiveness and dignity of the "other."
á Second, the necessary acknowledgement can happen with a shared form of government - one that recognizes broad universal human values. Federalism is an expression of distinctiveness and autonomy and of universalism. It is about self-government and shared government alike.
Canada and Switzerland - and other countries - have managed this particular balance. In the post-1945 world, Europe, in a 50-year act of truth and reconciliation after two terrible world wars, has come together to create a federal structure in which countries that had been at war now share a geographic, jurisdictional, and economic space. Europe is now a federal structure. That structure creates the capacity to fight racism, intolerance, and violations of human rights, not only for individuals but also for groups.
Looking at Sri Lanka, where even the tsunami relief effort gets caught up in politics, it is clear that, unless the various nationalities that share that tiny island choose some sort of federal arrangement, a stable political structure will be hard to establish. A majority of the people are Buddhist Sinhalese; the minority are Tamil. The conflict between the two groups has continued for 30 years as a result of long-standing tension between the communities. Colonialism had papered over the cracks and kept a kind of peace, but when colonialism ended, the conflict emerged full force.
Norway, far smaller than Canada, might show the way, said Rae. Years ago, Norway resolved that its foreign policy would focus on conflict resolution and mediation. As an intervener, it has brought together Israel and the Palestinian Liberation Organization. The "act of mediation and the creation of a peaceful space" is what Norway offers the world.
Canada could make a similar act of political will - could demonstrate that effective forms of governance for non-homogenous countries exist. This federalism or flexibility "is an absolute prerequisite for a regime of freedom" that Canada knows something about. Moreover, Canada has no imperial baggage. In a fast, intense process facilitated by multiculturalism, Canada has become increasingly internationalized in the last 30 years, and that process has transformed the country. Today, Rae said, is a spectacular time to reflect on the nature of governance and the legal profession's responsibility to improve governance both here and abroad.
"If Raoul Wallenberg, as one man, could save 100,000, think what a country with a sense of focus and mission and purpose, based on [its] finest traditions, can do," Rae concluded.
Zanana Akande opened her remarks by saying that "I am a firm believer that, the more complex we make issues, the more excuse we give ourselves to avoid the reality of how to affect them." She proposed pragmatism. When it comes to combating racism, intolerance, and the violation of human rights, the reality is straightforward. What can Canadians do here and abroad? The same issues obtain both domestically and internationally.
"Combating racism, intolerance, and human rights violations demands decisive action, free of selective vision and recognition. It's not easy, but it's necessary," she said. Any time Canadians fail to take action, for whatever reason, they undermine their professed intent. Qualification minimizes the country's effect. As people take time to discuss and consider and weigh and judge, then, next door or internationally, other people suffer. That seems obvious. Some people - Akande's son and City Hall included - would argue that that approach is far too simplistic and is incapable of dealing with everyday realities and world politics. But someone has to identify the offence, Akande said.
Many ways exist of avoiding such identification. Denial is the first: "It never happened," "You're being sensitive," "It's not true." Or, if the offence cannot be denied, then it is made the responsibility of only a few people. The offence is managed as an isolated incident. The credibility of the victims is questioned or the victims are cast as deserving of the maltreatment. Only when such matters become blatantly public do people admit that an offence has occurred. Then comes the search for scapegoats: leaders who can be assigned the blame. Finally, only slight punishment is meted to the offenders, and some people even become apologists for them. It all takes time. It perpetuates the wrong-doing and provides a blueprint for perpetuating the injustices.
If Canadians are serious about combating racism, intolerance, and human rights violations by using their domestic organizations and institutions, then those organizations and institutions must work, said Akande. The UN rapporteur on human rights prepares an annual report on how well countries are doing. Canada usually ranks near the top. "When he came to research our performance, we in social services had to tell him that the existing structures don't work," she said. Incidents are reported, received, and held, but nothing happens unless people persist and keep pushing. "Try sending even a bogus report into the Ontario Human Rights Commission and see how long it takes," Akande said. The problem is institutional, not the fault of employees; the system is designed to be circular. Therefore, it cannot work - at any level.
Institutions must address their own intolerance, obvious or unacknowledged. Once, Akande submitted a report on racism and religious intolerance and was asked why it had no happy stories. The report's recipient "was cherry-picking through the mess that had become our lives," Akande said. She wrote the happy story to be able to receive the funding to carry on the fight.
Institutions have to work if people are going to trust or use them, Akande said. After negative experiences, people stop reporting, because they give up in the face of inaction. The number of complaints goes down, not because matters have improved, but because people are no longer reporting problems. "If that's a measure of your efficiency, are we all on the wrong train here?"
Combating racism, intolerance, and human rights violations demands communication, discussion, consultation, co-operation, compromise, and negotiation with all the players, even those whose voices people do not want to hear or who say things with which others do not agree. The stereotyping has to stop, as does the treatment of large groups of people as though they are the problem. Mistreatment by countries, groups, individuals, or institutions, simply on the basis of appearance, has to stop. Even positive stereotyping is unfair and unreal - and dangerous. Those who work in race relations and who are "endowed with colour" are expected to be like Martin Luther King or Gandhi - never to be angry or to fight back.
Finally, perhaps an economic view of the situation should be taken. If the West had a little less, perhaps it could try not to rape too many countries while getting more, and then respond to the need for help with charity, and call those countries "ever-dependent."
Patrick Monahan thanked all participants who had made Raoul Wallenberg Day possible. The motto of Osgoode Hall Law School is "through law to justice." "That motto guides us in all the work that we do and is the inspiration for this conference," Monahan said. The need to promote human rights, justice, and the rule of law has never been more pressing than it is today, he added. Raoul Wallenberg Day "has been a call to arms and a call to action." The results will be published, and texts will be available on the Osgoode Hall website.
Monahan then called on Irwin Cotler to close.
Irwin Cotler put a question to the participants: How can Raoul Wallenberg's legacy be translated into action by citizens and government? To students in particular, he posed a series questions, asking them to think about the related issues in both national and international terms:
á How are racism, hatred, and intolerance combated at home and abroad? Both a national and an international strategy need to be developed. Students might consider setting up working groups to address each of those questions.
á How do Canadians develop, implement, and internationalize a principled approach to counterterrorism, while addressing the need to balance security and human rights? "We can patent a Canadian principled approach" regarding counterterrorism "as being itself the protection of human security in a profound sense, both of democracy and of the fundamental rights of its inhabitants." But it is important to remember, and to remind others, that in the conduct of counterterrorism, the rule of law must always be protected. Differential or discriminatory treatment of individuals or groups must never be used. Torture must be everywhere and always prohibited. When Parliament begins its review of the Antiterrorism Act, Osgoode Hall students could submit a brief.
á How is mass atrocity to be combated? How do Canadians internationalize their responsibility to protect? How can a culture of prevention of mass atrocity be developed?
á How can Canada fulfil its promise to be at the forefront in bringing war criminals to justice at home and abroad? Here, Cotler praised the work of Albie Sachs, calling him "a hero for our times."
á How does Canada protect the most vulnerable: children, women, minorities, the disabled, Aboriginals? The test of a just society is how it protects the most vulnerable.
á How can Canadians best commemorate Raoul Wallenberg every day in individual acts of conscience and commitment? As individuals, Canadians can do something every day for some victim of discrimination and disadvantage. How can Canada develop a principled human rights policy domestically and internationally, to express Wallenberg's legacy?
"These questions remain to animate and inspire us," Cotler said.