University of Connecticut |
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Thomas J. Dodd Prize
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Justice Louise ArbourBiography | Speech | |
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Justice Richard GoldstoneBiography | Speech | |
Arbour is best known for serving an indictment on Yugoslav President Slobodan Milosevic in 1999. She was the chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda, when the court upheld the first-ever conviction of a head of state, Jean Kambanda of Rwanda, for orchestrating genocide. As a result of her work at the tribunals, rape was recognized for the first time as a crime against humanity in international law. In 1995, she served as the single commissioner under the Inquiry Act, investigating and reporting on events at the Prison for Women in Kingston, Ontario, making recommendations to the solicitor general of Canada about the operation of Canada’s Correctional Service.
Having served as a professor and associate dean at Osgoode Hall Law School at York University in Canada, Arbour left academia to serve on the Supreme Court of Ontario (High Court of Justice), the Court of Appeals for Ontario and, beginning in 1999, a Justice of the Canadian Supreme Court. She left the Supreme Court in 2004 to become the United Nations High Commissioner for Human Rights.
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Remarks made by Justice Louise Arbour, United Nations High Commissioner for Human Rights
Monday, 17 October 2005, at the University of Connecticut, Storrs, CT
"Senator Dodd, Justice Goldstone, President Austin, Ms. Kennelly, Distinguished guests, colleagues, and friends.
I am very honored to be with you today and extremely pleased to share the limelight with my friend Richard Goldstone. As I have spent an important part of my professional life in his footsteps, I am thrilled to have a chance to speak before him today. It gives me a wonderful opportunity to pay tribute to a trailblazer and to tell him, and all of you, that I can think of few greater honors than to have my name associated with his, and with that of Thomas J. Dodd. Our work reaches across continents and across decades to celebrate our common faith in justice and in legal process.
Thomas J. Dodd fully realized at Nuremberg, in the words of his son, that 'the way to respond to even the cruelest, and most callous, disregard for humanity was through laws, and justice.' Richard Goldstone believed that too, and put it to the test, both in South Africa and on the international scene. Like them I share the profound conviction that, as was so famously put by Justice Robert Jackson at the opening of the Nuremberg trial,' …to submit… captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.' This statement not only lays the foundation for the morally superior choice of justice over brutal revenge, but it also asserts the undeniable superiority of the Rule of Law over the rule of force.
We have seen, since the Second World War, the growth of international legalism. We have witnessed a proliferation of legal instruments, particularly in the field of human rights, which have led to a similar growth of domestic legislation and, although at a much slower pace, a growth in actual implementation of some now universally accepted international norms. But it took until the early 1990s for the true legacy of Nuremberg to bear fruit as we witnessed an irreversible trend in judicial accountability for serious violations of international human rights and humanitarian law. The death, a few weeks ago, of Simon Weisenthal, was a sharp reminder of the necessity to put in place institutions that will carry higher pursuits beyond the dedication of a single man.
Nuremberg has of course crystallized what is now the bedrock of international criminal justice, i.e. individual criminal responsibility. Individual criminal responsibility was included in the London Charter, which established the Nuremberg Tribunal, and was subsequently endorsed by the General Assembly. Despite that, it was controversial then, as it continues to be resisted today. Defendants at Nuremberg submitted that international law is concerned with the actions of sovereign states, and provides no basis for punishment of individuals. Their arguments were rejected by the Tribunal, which held that 'crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.'
This landmark erosion of the concept of state sovereignty as a shield against personal accountability found its echo, some 50 years later, in the creation of the two international criminal tribunals with which Justice Goldstone and I have had the privilege of being associated and, in 2002, it was properly institutionalized with the creation of the International Criminal Court. Meanwhile jurisdictional gaps and – to be frank political expediency – have launched parallel initiatives: the Special Court in Sierra Leone, the Serious Crimes Unit in Timor Leste, as well as the soon to be and long awaited mixed jurisdiction in Cambodia to try the remaining Kmer Rouge engineers of the killing fields.
Furthermore, the doctrine of universal jurisdiction, which enables any state to try anyone accused of such international crimes, is now also beginning to be take roots. Best associated with the attempts to have Augusto Pinochet tried in Spain for torture, it is currently being invoked in the case of Hissène Habré, former dictator of Chad, against whom Belgium recently issued an international arrest warrant under its universal jurisdiction law. Domestic courts are also more willing to try their own nationals for international crimes. The supreme courts of Chile and Argentina gave a remarkable example, by stripping former powerful torturers of their immunities.
Yet the rise of international criminal justice has also met with strenuous resistance, ranging from cynical dismissal to outright hostility. So too did the Nuremberg initiative, including within the legal profession in this country. Chief Justice Stone, referring to the work of his colleague Justice Jackson acting as Chief US Prosecutor at Nuremberg, said this:
Jackson is away conducting his high-grade lynching party in Nuremberg [...] I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas. (Quoted in Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law, New York, Vicing, 1956, p.176: see Gary Bass “Stay the Hand of Vengeance; the Politics of War Crimes Tribunals”, ( Princeton University Press, 2000))
In the same vein, a well known Canadian lawyer also referred more recently to the Milosevic trial in The Hague as a 'lynching,' on the basis, as he put it, that the presiding judge had unduly and arbitrarily restricted Mr. Milosevic’s right to cross-examination, a well-known and inviolable principle of the common law.
Mr. Milosevic himself of course, like many Europeans, comes from a legal system in which there is no such well known principle since there is no right to cross-examination as we know that trial technique in the common law world.
My point simply is that a lynching is an illegal, unjustified killing, and no one ever suggested that the only way to run a fair trial in a democracy is as per the common law. But the unease with anything foreign, and therefore possibly different, is widespread, and there is no reason to assume that the entire legal community would be any more open-minded and responsive to novel approaches today than it was at the time that Harlan Stone was Chief Justice of the United States.
In fact, the dismissal of things foreign, and different, continues to have some currency in the highest judicial circles in this country. The comments of Chief Justice Renquist and Justice Scalia, dissenting in Atkins v. Virginia ( 536 U.S. 304 (2002), decided 20 June 2002, argued 20 February 2002) are very direct. The case dealt with the constitutionality of the imposition of the death penalty on persons said to be mentally retarded criminals. Among other things, the dissenting judges took objection to the majority’s reference to the views of professional organizations, opinion polls and the laws and practices of other countries in the search for an evolving standard of decency in relation to the Eight Amendment prohibition against cruel and unusual punishment. The dissenting judges repudiated in the strongest term any suggestion that foreign law could have any relevance to such determination. Justice Scalia said:
The views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the “world community”, whose notions of justice are (thankfully) not always those of our people.
This rejection, not on their merit, but simply as irrelevant, of the views of those who are not 'our people,' coming as it does from leading American jurists, is in my view cause for a sober assessment of the likelihood of persuading the United States to ratify the Rome Treaty creating the International Criminal Court. Not surprisingly, like many I deplore the United States rejection of the ICC. All the more so because of the substantial consensus that the need for an international criminal forum such as the ICC has generated in the community of nations. The rapid and robust expansion of accountability through the use of criminal sanctions on the world scene requires us to draw upon a rich capital of legal concepts, ethical reflexes and practical know-how. This inevitable legal step forward merges the best of social purpose and legal creativity.
War crime trials are a natural extension of the idea of universal rights, which is itself the cornerstone of rights-based democratic regimes. The ICC reflects the emerging power of an international human rights culture. The old strategy of peace without accountability, to which there have been some historical exceptions, Nuremberg being the most noted, is no longer effective, nor is it keeping pace with the human rights expectations even of those who did not until recently know or believe that they were themselves human rights-holders. But now they know. Half a century after fundamental rights were declared, and decades after their infringements have been monitored, denounced and regretted, they are now beginning to be enforced and vindicated. It follows, in my view, that we are witnessing an irreversible globalization of human rights expectations, and a consequent growth in institutions necessary to remedy the grossest abuses of the most fundamental of these rights.
I believe that as American, South African and Canadian jurists, we are particularly attuned to the significance of this emerging recourse to judicial redress. The model of fundamental rights enforced by judges is very much part of our understanding of the role of law in a democratic society.
Courts have indeed become for many in our countries the forum of choice for the vindication of claims based essentially on an idea, and an ideal, of justice. I am not so naive as to suggest that we are on the eve of experiencing a similar primacy of the juridical over the political on the international scene. But I think that legalism is the inevitable by-product of globalization of rights.
It is fair to say that even within liberal democracies, the legalization of politics is not viewed by all as a positive development, just as the emergence of a juridical international regime of accountability for gross human rights violations is still struggling to establish its credentials. It seems that this debate will be with us for a long time. But I think that what should be ousted outright from that very legitimate debate is the idea that an international model should be rejected because of 'what is done to the common law' or because it is not 'that of our people.' It is difficult to operate comfortably and confidently in the disorganized broader world, and to participate in the dissonant discourse of all the people of the world claiming to have something to say. There is no doubt that is it easier, cleaner, more orderly, to just do things 'our way,' with 'our own people.' Our need to belong, to fit in, to discover our own identities through those with whom we associate makes us resistant to the accommodation of such a plurality of hopes, expectations and ways of doing business.
I think that the need to belong, to identify with and through others is both a wonderful source of collective human accomplishments and also, when it becomes pathological, a terrible impetus for exclusion and even for the elimination of all differences. Many of the old and current conflicts throughout the world are driven in large part by this kind of pathology which, as provocatively put by Michael Ignatieff, is also at the root of the impulse to commit genocide.
So the history of genocide teaches us something about the history of the century in general: ours has been the first to perfect mass murder and the first to understand the exact sense in which this is a crime. Our future depends on whether our consciousness of it as a crime is equal to the strength of it as a temptation. Essay by Michael Ignatieff, 1998 in Simon Norfolk “For most of it I have no words - Genocide, Landscape, Memory.”
In my view, the International Criminal Court is the very first institution that posits the world’s consciousness of genocide as a crime. This is the true legacy of Nuremberg. I hope its history will be one of inclusion.
Thank you very much for your kind attention."
Justice Richard J. Goldstone has participated in a number of key human rights events of the 20th century, including the transition from apartheid in South Africa. He serves on the boards of Human Rights Watch and Physicians for Human Rights, is a director of the American Arbitration Association, and is the Henry Shattuck Visiting Professor of Law at the Joan B. Kroc Institute for Peace and Justice at the University of San Diego.
From 1991 to 1994, Goldstone was chair of the Commission of Inquiry Regarding Public Violence and Intimidation, which came to be known as the Goldstone Commission. He has also served as chief prosecutor of the United Nations International Criminal Tribunals for Rwanda, and served as chairperson of a group of international experts who met in Valencia, Spain, and drafted a Declaration of Human Duties and Responsibilities (known as the Valencia Declaration), for the director general of UNESCO.
Goldstone was chair of the International Independent Inquiry on Kosovo, and co-chair of the International Task Force on Terrorism established by the International Bar Association. He is the author of a number of articles on human rights, and two books: For Humanity: Reflections of a War Crimes Investigator, and Facing Ethnic Conflicts: Toward a New Realism. He also was involved in drafting the post-apartheid South African Bill of Rights.
Remarks made by Justice Richard J. Goldstone
Monday, 17 October 2005, at the University of Connecticut, Storrs, CT
"President Austin, Senator Dodd, the Honorable Barbara Kennelly, High Commissioner Arbour, Ladies and Gentlemen:
It is a special honor to receive an award that bears the name of Thomas J. Dodd. Senator Dodd devoted his life to public service and human rights. As the Executive Trial Counsel at the Nuremberg Trial of the Nazi leaders, Thomas J. Dodd played a leading role in shaping some of the strategies adopted at the trial. As a member of the Senate, Senator Dodd supported the civil rights programs of Presidents Kennedy and Johnson.
I am also delighted to be coupled with Louise Arbour in this award. She was responsible for many of the successes of the UN war crimes tribunals after she succeeded me as Chief Prosecutor. I was also thrilled when she courageously agreed to succeed the late Sergio Vieira de Mello as the UN High Commissioner for Human Rights.
Senator Dodd would have applauded many of the advances in human rights that have been achieved since his death in 1971 and he would have been horrified at the manner in which some of those gains have been cut back in the opening years of the 21 st Century.
Until the end of World War II there were no individual human rights recognized by international law. It was the horror of the Holocaust that spurred the international community to find a place in the law of nations for the rights of individual human beings. The inspiration came from the United States and more particularly from Eleanor Roosevelt, the first chairman of the Human Rights Commission of the United Nations. She played a leading role in drafting the Universal Declaration of Human Rights which was adopted by the General Assembly on December 10, 1948.
The Universal Declaration was the inspiration for all of the subsequent United Nations conventions recognizing and protecting fundamental civil, political, economic and cultural rights.
At the end of the Cold War in 1989 it was again the United States that led the way in establishing the first ever truly international criminal tribunals for the former Yugoslavia and Rwanda. As the first chief prosecutor for both tribunals I can attest to the fact that without support from the United States neither tribunal would ever have functioned.
It was the United States, too, that led in encouraging the Secretary-General of the United Nations to call the diplomatic conference in Rome in the middle of 1998 that gave birth to the permanent International Criminal Court.
While leading the way to these exciting developments, the United States has traditionally harbored fears for and suspicions of international organizations and especially those that might exercise any oversight over the actions of the United States or any of its citizens. This explains why the United States has been tardy in ratifying many human rights conventions and is today the only member of the United Nations not to have ratified the Convention on the Rights of the Child. Its opposition to the International Criminal Court is notorious.
My greater concern, however, is the way in which the leading democracies have in some ways over-reacted to the scourge of terrorism and given the terrorists a victory by the manner in which fundamental rights of their citizens have been diminished. And yet there have been corrections.
In my own country, South Africa, a cabinet decision to re-introduce detention without trial, so hated during the Apartheid years, was thrown out by the Justice Committee of Parliament. In the United Kingdom, draconian laws allowing for the indefinite detention of foreigners was held to be unlawful by the Judicial Committee of the House of Lords. In this country the attempt by the Executive to place prisoners at Guantanamo Bay beyond the reach of your courts was thwarted by the Supreme Court. Even in times of war, the President has been held subject to the law.
The disturbing and persisting reports of torture and degrading treatment of prisoners held in US prisons is yet to be independently investigated. The blame continues to be directed to the lower ranks in the military without any appropriate inquiry into the failure of leadership that has allowed these previously unthinkable things to happen. In this area too, recent correction has come from the impressive Senate vote to outlaw all torture and degrading treatment of any person subject to United States control wherever they may be. It is disappointing that the White House opposes this demand for lawfulness on wholly unmeritorious grounds.
An important virtue of democracy is that the voices of ordinary people are not silenced and their concerns eventually have to be taken into account by their leaders. Human rights organizations played a crucial role in the establishment of the international war crimes tribunals and, it was also human rights organizations that were primarily responsible for the reference of the Darfur situation to the ICC.
This University should be proud of the program of its still young Human Rights Institute. I feel very proud of my association as a member of its advisory board. It is its work and that of other similar institutes around this country that hope lies for the future not only of the protection of human rights but indeed of democracy itself.
It is in that context that this Award is so meaningful to me and for which I express my gratitude to the Thomas J. Dodd Research Center."
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