INTERNATIONAL CONFERENCE
CONFERENCE INTERNATIONALE
Hate, Genocide and Human Rights Fifty Years Later:
What Have We Learned? What Must We Do?
Haine, g6nocide et droits de la personne, cinquante ans aprbs:
Qu’avons-nous appris ? Que devons-nous faire ?
Faculty of Law, McGill University 27-28 January 1999
Facult6 de droit, I’Universit McGill, 27-28 janvier 1999
The conference, organized by InterAmicus and the Faculty of Law, McGill University,
brought together a distinguished international group of lawyers, law professors, stu-
dents, judges, parliamentarians, government officials, NGO representatives, commu-
nity leaders, human rights activists, journalists, and diplomats for discussions of key is-
sues at a symbolic and significant time, for the conference commemorated the fiftieth
anniversaries of both the Universal Declaration of Human Rights and the Convention
for the Prevention and Punishment of the Crime of Genocide, the sesquicentennial of
the Faculty of Law, and the tenth anniversary of InterAmicus.
Cette conf6rence, organis~e par InterAmicus et la Facult6 de droit de l’Universit6
McGill, a rassembl6 avocats, professeurs de droit, 6tudiants, juges, parlementaires,
responsables gouvemementaux, reprsentants d’ONG, leaders communautaires, acti-
vistes en mati~re de droits de ‘homme, jouralistes et diplomates distingu6s pour dis-
cuter des enjeux les plus importants d’une 6poque chami~re, au point de vue pratique
autant que symbolique. En effet, la confdrence comm~morait le cinquanti~me anni-
versaire de la Diclaration universelle des droits de l’homme et de la Convention pour
la privention et la repression du crime de genocide, ainsi que le cent cinquanti~me
anniversaire de la Facult6 de droit et le dixi~me anniversaire de la fondation
d’InterAmicus.
Contents / Table des matibres
Introduction
Claire L’Heureux-Dubd
The Instructive Power of Outrage:
Remembering Nuremberg
From Sisyphus’s Dilemma to
Sisyphus’s Duty? A Meditation
on the Regulation of Hate
Propaganda in Relation to Hate
Crimes and Genocide
Hate Speech in Rwanda: The
Road to Genocide
Are Good Intentions Enough?
The Limits of the New World of
International Justice
Rwanda: Chronique d’un
g~nocide prdvisible
Does International Law Impose
a Duty upon the United Nations
to Prevent Genocide?
The International Tribunals for
Serious Violations of International
Humanitarian Law in the Former
Yugoslavia and Rwanda
The Universal Declaration of
Human Rights, Fifty Years Later
Gender Crimes as War Crimes:
Integrating Crimes against Women
into Intemational Criminal Law
Augusto Pinochet and International
Law
The Intemational Criminal Court
The Intemational Criminal Court
and the Human Rights Revolution
The U.S. Perspective on the
Intemational Criminal Court
Rosalie Silberman Abella
Jean-Frangols
Gaudreault-DesBiens
Wiffiam A Schabas
David S. Rieff
Fran ols Bugingo
Stephen J. Toope
Louise Arbour
David Matas
Rhonda Copelon
Ruth Wedgivood
Philippe Kltsch
Warren Alimand
David Scheffer
Response on Receiving an Award
Benjamin B. Ferencz
Reflections on the Development
of the Law of War
Richard Go!dstone
Introduction
Claire L’Heureux-Dub6″
It is indeed an honour to be present this evening at the opening session of this im-
portant conference. The number of brilliant minds from all over the world assembled
here for these two days is a promise of an exciting dialogue. The exchange of ideas
that will take place in this room can only bring forth exciting insights for all partici-
pants. The themes to be covered will provoke discussion and debate-both on our
thinking about and our approach to human rights, and most importantly, on strategies
for implementing their values in a troubled world.
Ce soir, nous nous pencherons sur la Ddclaration universelle des droits de
l’homme’ et la Convention pour la prdvention et la r6pression du crime de gdnocide,
cinquante ans apr s leur passage. Cet anniversaire invite A la fois ai la c6&bration et Ai
une prise de conscience des ddfis auxquels nous devrons faire face. D’une part, nous
cle’brons l’espoir que suscite le droit international dans la domaine des droits de la
personne et les promesses qu’il contient. Depuis d6cembre 1948, les pays du monde
ont proclam6 i maintes reprises leur engagement a assurer que, oti qu’ils soient dans
le monde, tous les humains aient des droits inali6nables, ainsi que leur conviction que
le respect de ces droits assurerait paix, justice, et libert6 pour tous les membres de la
collectivit6 mondiale.
One of this evening’s distinguished guests, Justice Rosalie Silberman Abeila, has
written that the Genocide Convention and the Universal Declaration
“Justice of the Supreme Court of Canada. Madame Justice L’Heureux-DubS was moderator for the
Sharansky-Sakharov Lectures in Human Rights and introduced Professor Harold Hongju Koh of Yale
Law School, US. Assistant Secretary of State for Human Rights, Democracy, and Labour, and
Madam Justice Rosalie Silberman Abella of the Ontario Court of Appeal at the opening of the inter-
national conference Hate, Genocide and Human Rights Fifty Years Later: What Have We Learned?
WhatMust lTe Do? (Faculty of Law, McGill University, 27 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 109
Mode de rf6rence: (2000) 46 R.D. McGill 109
‘Rs. AG 217(11), Doec. off. AG NU, 3 sess., supp. n 13, Doec. NU A/810 (1948) 71 [ci-apras
Universal Declaration, Dclaration universelle].
2 9 d~cembre 1948,78 RtT.N.U. 277, R.T. Can. 1949 n* 27 (entr&e en vigueur: 12janvier 1951) [ci-
apris Genocide Convention].
110
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
were both products of the Holocaust, and represented the triumph of hope over
history. Both screamed “Never Again” in their birth announcements, and both
demanded the chance to grow with dignity and respect. They were the wings of
a Phoenix that rose from the ashes of Auschwitz, the symbols of regret of a
world shamefully chastened … Both are looked to as symbols that notwith-
standing despairing evidence to the contrary, the international community re-
mains dedicated to the aspiration of universal accessibility of human rights and
justice. We bask in the radiance of their symbolism because we so desperately
need their illuminating vision!
The rights set out in the Universal Declaration are nothing short of the conditions
necessary for full participation in society. The declaration speaks of equality of all
human beings. It speaks of the right to life, liberty, and security of the person. It pro-
hibits torture and degrading treatment or punishment. It defines the right to recogni-
tion as a person before the law. It gives the right to privacy, to family, and to a home. It
sets out the right to a nationality, to own property, and to freedom of thought, con-
science, and religion. It articulates the right to work, to receive equal pay for equal
work, and to join trade unions. It establishes the right to rest and leisure, to an ade-
quate standard of living, and to special protection for motherhood and childhood. And
it sets out the right to education, and underlines the importance of educating people
about the principles of human rights. It emphasizes the need for democracy and the
necessity of its constant respect. The Universal Declaration constitutes a blueprint of
the conditions necessary for respect for the human person. It and the numerous inter-
national human rights provisions that have built on its ideas and its spirit contain a
message of peace and justice, and of the conditions necessary to truly achieve these
goals.
Les droits de la personne sont des phares qui nous rappeilent pourquoi, et com-
ment, nos socirt6s doivent accorder
tous nos citoyens la possibilit6 de s’6panouin
Les droits de la personne sont l’aune A laquelle tous doivent mesurer leur conduite,
celle de leurs gouvemements et de leurs dirigeants, et A laquelle la collectivit6 mon-
diale dans son ensemble doit mesurer son progr~s.
En meme temps, la Diclaration universelle, et les trait6s en mati~re de droits de
la personne qui s’en sont inspir6s, constituent des symboles de nos 6checs passds et la
mesure du trajet que nos pays doivent parcourir pour rraliser entirement leur pro-
messe. Puisqu’ils sont fondas sur les horreurs du passe, nous ressentons une immense
responsabilit6 lorsque nous prenons conscience de la distance qui s~pare cet id6al de
son application.
Even in the developed world, there are numerous reminders of what remains to
be done. Crises of homelessness, unemployment, and poverty remind us of how the
‘ R.S. Abella, “Human Rights and the Judicial Role” (Annual Oration in Judicial Administration,
Council of the Australian Institute of Judicial Administration, 23 October 1998), online: AIJA Publi-
cations
2000]
C. L’HEUREUX-DUBt- INTRODUCTION
rights to a home, to work, and to an adequate standard of living have not fully devel-
oped. Violence against women, sexual harassment, hate crimes, racism, and discrimi-
nation against the disadvantaged-whether minorities, women, people with disabili-
ties, or on the basis of sexual orientation-are just some of the problems that interna-
tional human rights law implores all people to confront. It demands that we pursue
their elimination.
In the world as a whole, the challenges-and our failures-are still greater. In re-
cent years, war and genocide in Bosnia, in Rwanda, and now in Kosovo, and the in-
ability of the international community to prevent or stop these deadly manifestations
of intolerance, mean that what was never to happen again is happening before our
very eyes. The inequality between developed and developing countries, and the vastly
different opportunities and standards of living available to people in different parts of
the world, show us that there is much to be done before the rights guaranteed by the
Universal Declaration and other international conventions become a reality for every-
one. The number of places where people are imprisoned for expressing their political
beliefs, where torture is rampant and where people live in fear of the authorities, sets
off alarm bells about the monumental task ahead. For many, freedom and human
rights are still just words on a distant page, words that have not yet come to have
meaning in their daily lives.
The conference theme focusses on the dual questions of “What have we learned?”
and “What must we do?”. The past fifty years have taught us that words and ideas in
declarations and the documents that expand upon them are inspiring, encouraging,
and important in spurring us to action. They have also taught us that words are not
enough. “What must we do?” We must find ways to turn principles and values into
realities of constant respect for human rights and an end to genocide. We must find a
way to work toward a world where the human rights culture permeates everywhere-
in governments, in homes, in schools, in factories, and on streets-so that these funda-
mental rights have real meaning for all citizens of the world. It is to this challenge that
all those supportive of human rights must devote their efforts in the years to come.
The Instructive Power of Outrage:
Remembering Nuremberg
Rosalie Silberman Abella”
The speaker acknowledges the deep significance
that Nuremberg holds for her as a Jew and as the child
of Holocaust survivors. By relating some of her per-
sonal story, she powerfully conveys the despair of those
for whom the justice of Nuremberg came too late. The
speaker argues that Nuremberg represents the failure of
Western nations to respond to the anti-Semitism that
grew to horrifying proportions in Germany in the
1930s. Further she stresses that the justice that Nurem-
berg offered was fleeting because of the same nations’
willingness to repress the memory of the horrors that
led to it. Thus, while Nuremberg led to the develop-
ment of concepts, institutions, and conventions that
have forwarded the cause of human rights, it was not
sufficient in itself to prevent the continued oppression
of Jews. The speaker concludes from the example of
Nuremberg that war crimes tribunals do not prevent
gross violations of human rights, nor do they create an
international moral culture that does not tolerate the
slaughter, abuse, and terrorization of men, women, and
children. The memory of Nuremberg, and the outrage
of the Nazi atrocities, must be used to create a society
of tolerance; the speaker maintains that as a Jew, and as
a member of the human family, she has lost the right to
stand silent in the face of gross injustice. The speaker
concludes by passionately declaring there must be no
more victims.
h
faire
l’auteur falt tat de l’importance pIrtiulihre qua
revit pour cie le proc s de Nurembug, en rant qua
Juive et qu’cnfant de survivans de l’Holocaustc. Rcla-
rant des extraits de son histoire personnelle, elle fait
ressortir avec force le d&spoir de cemy pour lesquels
la justice de Nuremberg vint malheurcuset nt trop
tard. Le prochs en lui-mbne a mis en lumire l’M-hec.
face A
des dmocraties ooidentales
l’antisdmitisme qui aait ddj%. dans l’Allemagne des
anndes 1930, atteint des proportions horrifiantes: il n’a.
de plus, offert qu’une justice dphdmhre en raison d. ia
volontd de ces mames nations de refouler 4 jamais la
mdmoire des horreurs qui en furent la cause. Ainsi.
bien que le procs at permi le dfveloppament da con-
cepts, d’institutions ct de conventions internationales
qui ont mend a des progrs importants da la came des
droits de l’homma, il se rdvdla insuffisant pour pdvenir
l’oppression des Juifs. Cat exemple montre qua leas tri-
bunaux intemationaux chargds da juger las crim-s da
guerre sont en eux-m&mes impuissants a prdvenir les
violations des droits de r’homme ou h eaer eun culture
morale intemationale qui metralt fin au massacres, aux
mauvais traitements et aux tactiques da terreur 4 ldgard
de populations innocentes. La mdmoire d.- Nuremrbeg
et des atrocit6s commises par les Nazis dolt Eire mise t
contribution pour cr&r un soci.d &- toldranec- en
tant qua Juive et qua membre ela famille humaine,
l’auteur affimne avoir perdu le droit au silence face aux
pires injustices. II ne faut pas laisser des dvdnamants da
ce genre faire d’autres victimes.
“Justice, Ontario Court of Appeal. This speech was delivered by Justice Abella as the Sharansky-
Sakharov Lectureship in Human Rights at the opening of the international conference Hate, Genocide
and Hwnan Rights Fifty Years Later: Wat Have We Learned? Wat Must 1e Do? (Faculty of Law,
McGill University, 27 January 1999).
Rosalie Silberman Abella2000
To be cited as: (2000) 46 McGill LJ. 113
Mode de rf6rence: (2000) 46 R.D. McGill 113
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
The Universal Declaration of Human Rights’ and its spiritual sibling the Geno-
cide Convention’ were the wings of the phoenix that rose fifty years ago from the
ashes of Auschwitz. In conceptual solidarity against the ravages of intolerance, they
were the powerful legal symbols of a world shamefully chastened. But what lifted the
phoenix and gave it the power to fly was the momentum it got from Nuremberg,
where responsive justice swiftly reared its head from the Holocaust atrocities and
roared its outrage.
The Holocaust was the defining event of this century, and human rights in our
lifetime cannot be understood without appreciating its conceptual proximity to the
concentration camps of Europe. Because of the brutal offence to tolerance and human
dignity the Holocaust represented, people who carried its genocidal picture in their
souls as moral inspiration set to work creating a just rule of law.
The result was the triangular triumph of the Universal Declaration, the Genocide
Convention, and Nuremberg, which far from fading in relevance, has, it seems to me,
become an increasingly illuminating moral vision. But where once it represented ma-
jestic idealism and miraculous regeneration, today it wistfully represents the distances
not yet travelled.
While the rhetorical and metaphorical splendour of the Universal Declaration and
the Genocide Convention are magnetic preoccupations to me, the side of the triangle I
want to discuss tonight is the one that most preoccupies me as a lawyer and judge:
Nuremberg.
Elie Wiesel said, “Nuremberg is the story of those who did the killing … Nurem-
berg is also the story of those who did nothing” It is quite a story. A story about in-
humanity, about immorality, about indifference. A story with many lessons to teach.
But the past fifty years have shown how few of them the world has wanted to learn.
I have spent countless hours reading books and articles about Nuremberg and
have tried to take it all in. I read-and believed-Goldhagen’s book about the German
people’s knowing acquiescence;’ I read Ingo Miller’s indictment of the enthusiasti-
cally complicit judges and lawyers of the Third Reich;
I reread Hanna Arendt’s
‘ GA Res. 217(m), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [hereinafter
Universal Declaration].
2 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78
U.N.T.S. 277, Can. T.S. 1949 No. 27 (entered into force 12 January 1951) [hereinafter Genocide
Convention].
D. Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York:
Alfred A. Knopf, 1996).
‘ I. Miiller, Hitler’s Justice: The Courts of the Third Reich (Cambridge, Mass.: Harvard University
Press, 1991).
2000]
R.S. ABELL4 – REMEMBERING NUREMBERG
Eichmann in Jerusalerr and The Orighs of Totalitarianism;6 and I read about Nur-
emberg prosecutor Telford Taylor’s idealism.7 I even rented the movie Judgment at
Nuremberg, on the assumption, which proved to be correct, that the movie would have
far more of an impact on me as a fifty-two-year-old woman than it did when I was a
fifteen-year-old girl, especially since the movie is about the trial of four judges, and I
would not have understood then, as I now do, that no one, whatever his or her status,
is above evil.
The lawyer in me, the judge in me, the child in me, the mother in me, the Jew in
me-each part of me reacted differently to different parts of the Nuremberg story. At
times I found myself planning a lecture for this evening on whether there is an inher-
ent morality to law, or about whether the perverse laws of Hitler’s Germany gave
permanent lie to the joinder of law and morality. At other times I was the amateur
historian, marvelling at the horrifying unfolding of nightmarish events and how en-
ragingly predictable they seemed in hindsight to be. And at other times I was the
judge planning a lecture on the sanctity of an independent bench and bar, and how un-
forgivable it is for the justice professionals-the people charged with delivering jus-
tice-to exchange their independence for state approval, as the lawyers and judges of
the Third Reich had so willingly done.
In the end, as my brain struggled to make sense of the information it was absorb-
ing, my emotions were far too wounded by what they were learning from my brain to
let me write a neutral treatise. To me, the issue was about justice itself. And in the end,
thinking about this talk, what troubled me most was how little justice there had been.
The lawyer in me was offended and so was the judge. But no part of me resonated
more as I learned the Nuremberg story-no part despaired more-than the Jew in me.
I am the child of survivors. It is almost fifty years since the end of the Nuremberg
trials. It is just over fifty-six years since my father’s parents, his three younger broth-
ers, and my parents’ two-and-a-half-year-old son were rounded up from the town of
Shenoh in Poland and sent to Treblinka.
My father was the only person in his family to survive the war. He was thirty-five
when the war ended; my mother was twenty-eight. As I reached each of these ages, I
tried to imagine how they felt when they faced an unknovn future as survivors of an
unimaginable past. And as each of my two sons reached the age my brother had been
when he was killed, I tried to imagine my parents’ pain at losing a two-and-a-half-
year-old child. I couldn’t.
5L Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Harmondsworth: Penguin,
1976).
6 H.Arendt, The Origins of Totalitarianismr (New York- Harcourt Brace, 1951).
T. Taylor, The Anatomy of the Nurenberg Trials: A Personal Afemoir (New York: Alfred A.
Knopf, 1992).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
I was bom in July 1946 in Stuttgart, Germany, and came to Canada with my par-
ents and sister and grandmother a few months after the Nuremberg trials ended. My
father was a lawyer. He set up the system of legal services for Displaced Persons in
southwest Germany at the request of the Americans. I was born at the beginning of
Nuremberg, was surrounded by the survivors for whom it was created, was nurtured
by parents who had somehow escaped the final Nazi verdict, and watched a father try
to create a system of justice for people who didn’t know such a thing could exist in
Germany for Jews. All before I was five years old. I grew up with a passion for jus-
tice, but I have also, now that I am grown up, developed a sadness for what has be-
come of it, despite Nuremberg.
I never asked my parents if they took any comfort from the Nuremberg trials
which were going on for four of the five years they were in Germany. I have no idea if
they got any consolation from the conviction of dozens of the worst offenders. But of
this I am very sure: they would have preferred-by far-that the sense of outrage that
inspired the Allies to establish the Military Tribunal of Nuremberg had been aroused
many years earlier, before the events that led to Nuremberg ever took place. They
would have preferred, I’m sure, that world reaction to the 1933 Reichstag Fire Decree,
which suspended whole portions of the Weimar Constitution; to the expulsion of
Jewish lawyers and judges from their professions that same year; to the 1935 Nurem-
berg laws prohibiting social contact with Jews; or to the brutal rampage of Kristall-
nacht in 1938. They would have preferred that world reaction to any one of these
events-let alone all of them-had been, at the very least, public censure. But there
was no such world reaction. By the time World War II started on 3 September 1939,
the very day my parents got married, it was too late.
There should never have had to be a Nuremberg tribunal. There should never have
to be any war crimes tribunal. But there was, there is, and unless we rethink what
we’re doing to each other as an international community, there always will be.
For me, Nuremberg represents the failure of decent, well-meaning Western
democratic nations to respond, when they should have and could have, to a virulent,
horrifying strain of anti-Semitism in Germany in the 1930s. Millions of lives were lost
because no one was sufficiently offended by the systematic destruction of every con-
ceivable right for Jews to feel the need for any form of response.
And so, the vitriolic language and venal rights abuses, unrestrained by anyone’s
conscience anywhere-in or out of Germany-turned into the ultimate rights abuse:
genocide.
I do not for one moment want to suggest that the Nuremberg trials were not im-
portant. They were crucial, if for no other reason than to provide juridical catharsis.
But more than that, they were an heroic attempt to hold the unimaginably guilty to ju-
dicial account, and showed the world the banality of evil and the evil of indifference.
At Nuremberg, victims bore public witness to horror, and history thereby committed
to memory the unspeakable indignities so cruelly imposed.
But although Nuremberg represented a sincere commitment to justice, it was a
commitment all too fleeting. Not for long did the prosecution of war crimes remain a
2000]
R.S. ABELLA – REMEMBERING NUREMBERG
117
magnetic national preoccupation for the Western Allies who created it in the intimi-
dating shadow of the Holocaust. By 1948 Britain issued a communiqu6 to the Com-
monwealth countries putting an end to the attempt to prosecute Nazi war crimes, as a
response to tripartite talks about political developments in Germany. The British
communiqu6 said, “[]t is now necessary to dispose of the past:” The crisis in Berlin
with Russia thereby turned Germany from an enemy to be restrained into a prospec-
tive ally to be recruited.
By 1949 it was all over. No more Nuremberg trials, no more Nazi war crimes
prosecutions anywhere in the Western world for over two decades, and the early re-
lease of many convicted war criminals who had been sentenced at Nuremberg. The
past was tucked away, and the moral comfort of the Nuremberg trials gave way to the
amoral expedient of the cold war.
Worse, as the passion for justice faded into the passion for reconstruction, the
world once again lost its compass and yielded to the seductive temptations of intoler-
ance. Even before the decade was over—the decade that had seen the Holocaust and
the Nuremberg trials-Nazis were being welcomed in the Vest as immigrants to help
design the military-industrial strategy against the new villain, communism. The Jew-
ish victims of the old villain fascism, on the other hand, were welcomed nowhere. In
addition, Senator Joseph McCarthy revived the odour of anti-Semitism in the United
States; Canadian universities still had quotas on Jewish students; Canadian courts up-
held restrictive covenants preventing Jews from buying property; and there were signs
on Canadian beaches saying “No Jews or Dogs Allowed”. With stunning alacrity, the
world abandoned what proved to be its momentary pursuit of tolerance at Nuremberg,
and reconstituted itself within five years as if neither Nuremberg nor the Holocaust
had ever happened. It was a collective form of repressed memory.
But Jews did not forget. The world’s repression was the Jew’s obsession. For the
Jew, it was not enough that the truth had emerged at Nuremberg. For Jews, the people
who had been the victims of this truth, who had been forced daily to live with the de-
monization and dehumanization, it would not be enough until justice-not just the
truth–emerged.
Some justice did, in fact, emerge in the aftermath of Nuremberg, and there are
many connective dots of history leading to the present of which we can be proud.
These include the adoption of the Universal Declaration and the Genocide Conven-
tion in 1948; covenants in 1966 on civil and political rights9 and on social, economic,
‘ Secret cable cited in Library of Parliament, War Crinilnals: The Desciznes Conunission, rev. ed.
(Current Issue Review) (Ottawa: Canada Communication Group, 1996) at 2.
9 International Covenant on Civil and Political Rights, 19 December 1966,999 U.N.T.S. 171, Can.
T.S. 1976 No. 47 (entered into force 23 March 1976, accession by Canada 19 May 1976).
118
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[Vol. 46
and cultural rights;’ the reformulation of the word “discrimination” and the new con-
cept of “human rights” to confront violations of group rights; and the establishment of
domestic and international bodies like the International Criminal Court to enforce the
new legal norms. All these and more are tributes to the justice lessons learned from
the Holocaust. We have made remarkable progress and we are immeasurably ahead of
where we were fifty years ago in many, many ways.
But we have still not learned the most important lesson of all-to try to prevent
the abuses in the first place. We have not finished connecting history’s dots. All over
the world, in the name of religion, domestic sovereignty, national interest, economic
exigency, or sheer arrogance, men, women, and children are being slaughtered,
abused, imprisoned, terrorized, and exploited. With impunity.
We have no international mechanism to prevent the ongoing slaughter of children
and other innocent civilians, and no overriding sense of moral responsibility that in-
forms us and helps develop a consensus for when responsive military action is re-
quired to protect human rights. We have, in fact, no consensus on what our interna-
tional moral responsibilities are, period, and that is why we are so desperately lacking
in enforcement mechanisms, legal or otherwise.
Fifty years after Nuremberg, we still have not developed an international moral
culture which will not tolerate intolerance. The gap between the values the interna-
tional community articulates, and the values it enforces, is so wide that almost any
country that wants to can push its abuses through it. No national abuser seems to
worry whether there will be a “Nuremberg” trial later, because usually there isn’t, and
in any event, by the time there is, all the damage that was sought to be done has been
done, with or without the backdrop of war.
Trials are important, but they are too late, and they are no alternative to the pre-
vention of the destruction of life or liberty in the first place. Trials are a response, not
a solution. We cannot simply sit back and watch the horrors occur, knowing our in-
dignation will be mollified by subsequent judicial reckoning. Where injustice is pre-
ventable, it should be prevented when first identified, not permitted first to create its
human devastation before being held to account.
How can we teach people to respect the rule of law when the law only rears its
retributive head after the acts of inhumanity it has been in the audience watching have
already been committed, or when, as in Nazi Germany, the law itself promotes the
abuses? How can we teach people to value morality when there is no reward for com-
pliance and no punishment for its violation? How can we teach people to deliver and
expect justice when there are no predictable consequences in the international com-
munity for its absence? Why hasn’t the Holocaust-the single most outrageous crime
‘0 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993
U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 3 January 1976).
2000]
R.S. ABELL4 – REMEMBERING NUREMBERG
119
in civilized history-created a desperate, unquenchable thirst for enforceable interna-
tional norms that make human rights abuses intolerable anytime and anywhere they
occur?
How, then, do we create an international consensus of moral outrage? How do we
create an international conscience that will not tolerate cruelty? How do we, in short,
create a climate of justice, keep it, and protect it?
For a start, we can try the old way. By protecting people’s dignity, humanity, and
freedoms. Edmund Burke said, “All that is necessary for the forces of evil to win this
world is for enough good men to do nothing:’ I have now read enough about the un-
conscionable acquiescence of the academic, legal, and judicial professions in Nazi
Germany to know that we cannot put our faith exclusively in the people and institu-
tions from whom we normally expect justice leadership-laws, courts, and intellec-
tual elites. The Holocaust was not illegal under German law; the rule of law can be
immoral. What we need is a collaborative public consensus, nationally and interna-
tionally, that we will not tolerate a world order which tolerates injustice. We need to
find a way to immunize ourselves from complacency, moral lethargy, self-serving ra-
tionalization, and stubborn self-denial.
We must lay siege to the culture of indifference in which we have permitted our-
selves to indulge, and replace it with a culture of commitment. We must regain the
moral high ground we temporarily occupied at Nuremberg, and remind ourselves that
genocidal human rights violations are history lessons we must commit to permanent
memory. In the absence of other remedies, episodic responses, like trials, to episodes
of preventable injustice are unconscionably inadequate and disrespectful to the vic-
tims, to their families, and to the cherished concept of a civilized future. What was
Nuremberg for, if not to signal to potential violators that justice must prevail?
Can we, having watched millions die from indifference during the Holocaust,
stand by and yet again-over and over again-watch the perversion of law and lan-
guage in the aid of injustice?
The judgment at Nuremberg was an encomium to justice; the judgment on Nur-
emberg, fifty years later, is a lament. We have forgotten too many of its lessons too
quickly, and we must try to remember them before the next fifty years renders the
memories meaningless.
Fifty years ago, in his opening address at Nuremberg, Robert Jackson warned:
The wrongs which we seek to condemn and punish have been so calculated, so
malignant, and so devastating, that civilization cannot tolerate their being ig-
nored because it cannot survive their being repeated.
To which I would add, it may survive, but it cannot call itself civilized. To call our-
selves civilized, justice must be seen as more than a defining ideal; it must be seen as
a necessity.
Nuremberg was supposed to be the ultimate civilizing history lesson. It still can
be. History is a teacher. It trains us for the future by reminding us of what we came
fron. History does not exaggerate. It can be placed in context, but it can never be un-
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done. And in its explication of what was, history shows us what should never be
again.
The Holocaust entered the soul of history with a searing cry. It is a cry that needs
to be heard through the generations. As a Jew, I feel that, through the Holocaust, I
have lost the right to stand silent in the face of injustice. And as a member of the hu-
man family that saw the Holocaust happen, I feel I have gained the right to expect
everyone else to share my fear of intolerance.
We are the generation that bears the historical weight of Nuremberg’s pain, the
generation whose commitment to justice was shaped by the outrage of Auschwitz.
How
any more outrages will our generation witness before we lose the final victim:
our humanity?
Our outrage over World War II inspired us to create a Universal Declaration of
Human Rights, a Genocide Convention, and Nuremberg trials. This memory should
be all we need to keep the fire lit under human rights-the memory of the horror
when they do not exist. The memory inspires us, but it is an inspiration we should
never knowingly let anyone experience.
There have already been too many victims. There must be no more victims.
From Sisyphus’s Dilemma to Sisyphus’s
Duty? A Meditation on the Regulation of
Hate Propaganda in Relation to Hate
Crimes and Genocide
Jean-Frangois Gaudreault-DesBiens”
The author examines central legal and philosophical
issues peita ining to the regulation of hate speech. In par-
ticular, he evaluates the competing perspectives of the
“causationist” approach, which requires a direct causal link
between the expression it purports to regulate and the harm
it allegedly causes, and the “correlationist” approach.
which would regulate hate expression based on a rational
correlation between the expression and the harm. In con-
trast, the correlationist approach adopts a preventive logic
that seeks to structure attitudes by enforcing positive
norms. After examining the theoretical underpinnings of
these views, and reviewing their legal and philosophical
pitfalls–particularly in their extreme forms–the author
ultimately favours the correlationist approach
to hate
speech regulation. Civil society and a democratic tradition
will prevent this type of regulation from leading down a
slippery slope to state censorship. To avoid undue limita-
tions to freedom of expression, however, only extreme hate
expression should be regulated, that is, abusive expression.
which is distinct from offensive expression in that it targets
persons rather than ideas. There is no optimal way to bal-
ance equality and freedom of expression, nor to address the
challenges that the enforcement of hate speech regulation
entail. Analogizing with the myth of Sisyphus, the author
refers to these challenges as the dilemma of the “Sisyphus
state”, concluding that this dilemma becomes a duty to
regulate against abusive forms of expression, because a
constitutional democracy cannot tolerate radical denials of
the humanity of some of its citizens.
Lauteur examine les principales quostio
l pars et
philosophiques soulevdes par la r~gleminztaion do la pro-
paganda haineuse, en particulier != da entre lsW.timans
d’une approche qui requiert tn lien causal direct entre
l’expression et le dommage, et ceux d’un: approch: qui se
contente d’une condlauion rationnelle entre l’expresion
haineuse et le dommage. Cette demire apprcha cdop:e
une logique prdventive qui chercha h str.cturer lets atiwds
dominantes par l’application da norms positives Ap-Is
examen des fondements rationnels ct dos dangem qui
guettent chacuna de ces da positions. sutout lersqu’llWs
prernent des formes extrmes, l’aute=r pr’d parti en fa-
veur de la seconde approcha, bas
sur la corra.tion m-
tionnelle. La socidta civile et In tradition dmcrmutiquz suf-
fint a prdvenir la df&n&crse=.nce do cette poition en
censure itatique. Toutefois, afi d’diter d’impo cr d&s li-
mitations excessives bL la
libR d d’expression. seua
l’expression haineuse abusive –
qui se distinguz d-
l’expression simplement offensanta en ce quelle cib!a des
personnes plutat que des id5s
dvrait &m r~glcm:na&e.
I1 ne semble pas y avoir d manire id.Uea do conilier
I’dgalit6 et la libart6 d’exprsson, ou d. r&otdr Il pro-
blbmes soulevd par I’application des lois porant sur la
propagande haineuse. L’ x fait f=
un dilemma entre
son dcv air do rc*glementer l’expression abus.ive e Is diffi-
cultds inlirentes a un tel exercice. Tel Sisypla, H fait aloes
face L tine tache potentiellement infinia –
car une dhuo,-
cratie ne peut tolfter tine negation rdicala de ilahumanitS!
mme de certains & ses citoyens.
“Assistant Professor, Faculty of Law and Institute of Comparative Law, McGill University. I would
like to thank my research assistant, Danielle Miller, Ph.D., for her thoughtful comments as well as for
having patiently perfected my written English. This paper was written for a panel on “Hate Speech,
Hate Crimes, Genocide” at the international conference Hate, Genocide and Himlan Rights Fifty
Years Later: What Have We Learned? What Must e Do? (Faculty of Law, McGill University, 28
January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill L.J. 121
Mode de ldf&ence: (2000) 46 R.D. McGill 121
122
McGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
The gods had condemned Sisyphus to ceaselessly rolling a rock to the top
of a mountain, whence the stone would fall back of its own weight. They
had thought with some reason that there is no more dreadful punishment
than futile and hopeless labor’
Hate speech raises fundamental issues from legal, philosophical, and epistemo-
logical standpoints. It prompts us to think about individual and collective incarnations
of hatred, how we apprehend this social phenomenon, and most important, how we
characterize its dissemination. This article meditates on both the limits and the prom-
ises of regulations of hate propaganda, and more generally, of law itself. But why a
“meditation”? Essentially because meditating implies a certain openness to unfore-
seen questions that arise, p~le-mle, in the course of the meditation itself. This ex-
plains why this written “meditation” is structurally and formally different from a more
traditional essay, where one reaches c by way of a and b, and where one generally
wishes to convince someone of something. As such, the essay may be seen as an at-
tempt to tame doubt and to provide certitude, whereas a meditation raises questions
more than it does anything else.
While “hate speech” may aptly describe any word or utterance intended to injure,
degrade, denigrate, or ridicule people on the basis of a distinguishing feature, this ex-
pression fails to capture what often leads to hate crimes and to genocide: the system-
atic, rather than individual, use of hateful discourse and the systemic nature of hatred
that sometimes ensures its social acceptability. In such cases, hate speech, or hate
propaganda as I prefer to call it, is ingrained in a system where the social degradation
of the Other plays a central role in political discourse. In fact, hate propaganda con-
tributes in and of itself to the creation of an imaginary Other. Dehumanized and de-
personalized, depicted as threatening and as a potential enemy, this Other is indeed
likely to become the enemy for those influenced by such propaganda. Huge conse-
quences may follow. Depending on the circumstances, hate propaganda may create an
environment where hate crimes are considered no different from other crimes. In such
a case, what inspires them, that is, hatred, becomes obscured, thereby trivializing their
qualitatively different nature. Worse than their being trivialized, however, hate crimes
may sometimes become socially acceptable, and ultimately, desirable. From individ-
ual and isolated hate crimes committed in the private sphere, we move to more wide-
spread incitement to hate, and finally we reach the realm of publicly-supported mass
hate crimes-or genocide as public policy, to put it bluntly. This explains the nexus
between hate propaganda, hate crimes, and genocide, a nexus that has too often sur-
faced during the twentieth century, especially, but not exclusively, in countries where
democratic traditions were young and civil society weak. This nexus may be ac-
knowledged by the socio-political realm, but not always by the legal one.
‘ A. Camus, The Myth of Sisyphus and Other Essays, trans. J. O’Brien (New York: Alfred A.
Knopf, 1969) at 119.
2000]
J.-F GAUDREAULT-DESBIENS – REGULATING HATE PROPAGANDA
123
The juridical apprehension of the nexus between hate propaganda, hate crimes,
and genocide stirs controversy in intellectual circles, especially in North America2 In
particular, the question of the relative performativity’ of some forms of expression, in-
cluding racist speech, remains at the centre of philosophical and epistemological de-
bates about the appropriateness of regulating these forms of expression. Can speech
alone be characterized as assaultive, causing harm in and of itself? If yes, should we
regulate it? Assuming that we should, how do we do so?
Although these questions are important, because acknowledging the possibility
that speech alone may cause harm may ultimately induce us to rethink the classic di-
chotomy between speech and conduct, the legal apprehension of the nexus between
hate propaganda, hate crime, and genocide requires no specific reference to the theory
of performative speech.’ Indeed, we need not ask ourselves: Should we consider this
form of speech as an act or conduct because of the harm it causes in its own right?
Understanding this nexus requires, instead, a reflection on the degree of causation
constitutionally required to legitimize restrictions to freedom of expression regulating
hate propaganda. Should the law necessitate a close and direct link between the ex-
pression it purports to regulate and the harm that this expression allegedly causes? A
direct link imposes upon the regulator the burden of demonstrating the existence of “a
clear and present danger” or an “imminent lawless action”, to borrow from American
legal terminology, as a consequence of the expression it purports to regulate (the
“causationist’ approach). In other words, the message conveyed must immediately
induce one to act on it. The contrasting view holds that, for a law to be constitution-
ally permissible, it is enough that it acknowledge a strong rational correlation between
the expression and the harm that it presumably causes, and that it act upon this ac-
knowledgement (the “correlationist’ approach).
While the causationist approach is based on a curative logic of imputation, the
correlationist approach is inspired by a preventive logic of risk management. In a way,
the heuristic process implied by the causationist approach requires a quasi-
photographic capturing of the transition between a primary expressive state, concep-
tualized as essentially intangible, and a secondary behavioural state, conceptualized as
essentially tangible. As Bollinger puts it, “Mhe tests of the ‘clear and present danger’
‘I am referring more specifically to the debate that rages in the United States between some liberal
and libertarian jurists, on the one hand, and critical race theorists as well as some feminist legal schol-
ars, on the other, about the constitutionality of hate speech regulation and the interplay between free-
dom of speech and equality rights.
‘ On performativity, see J.L. Austin, How to Do Things with Wbrds (Cambridge, Mass.: Harvard
University Press, 1962); . Searle, “What Is a Speech Act?” in M. Black, ed., Pidlosophy in America
(Ithaca: Comell University Press, 1965) 221.
‘ Indeed, it has been argued, quite convincingly I must say, that the “pformative speech” theory
alone offers a rather shaky foundation for hate propaganda regulations. See W. Sadursky, “On ‘Seeing
Speech through an Equality Lens’: A Critique of Egalitarian Arguments for Suppression of Hate
Speech and Pornography” (1996) 16 Oxford L Legal Stud. 713.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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genre appear to focus on a very narrow range of potential social harm from speech-
that is, on the risk that the audience will be persuaded to turn from talk to action of a
kind deemed especially harmful to the society.”‘ As such, the causationist approach
implies a microscopic examination of a segment of social reality that excludes from
its consideration any form of harm that is not immediate and entirely tangible.’ Be-
cause it emphasizes the demonstration of a direct and almost unmediated causal link,
this approach can surely be characterized as profoundly juridical in the classical
sense, in a way akin to the approach in the law of torts.
It could be argued, however, that this profoundly juridical approach has been un-
duly influenced by a rather dated theory concerning the logic of scientific discovery,
which postulates that the pursuit of a certain scientific method may actually lead to
the discovery of absolute scientific certitudes or truths. In keeping with this view, sci-
entific knowledge comprises what has been definitely proven. For example, if a hy-
pothesis, say that mixing element a with element b causes reaction c, has been duly,
that is, scientifically, verified, it should be considered as proven and therefore abso-
lutely true. That said, most scientists would now treat the notion of absolute scientific
certitude as an oxymoron. Indeed, in line with Karl Popper’s theory of knowledge, the
scientific method is now described negatively rather than positively; instead of being
depicted as implying the (positive) verification of a hypothesis, thereby giving birth to
a scientific certitude, it is now presented as involving constant attempts to falsify the
dominant hypothesis that will remain the dominant theory only insofar as it can resist
these falsification attempts. Superficially, the difference between these two views may
seem tenuous, but it is not. Quite the contrary, focussed as it is on refutation instead of
verification, Popper’s theory renders doubt unavoidable, thereby making its manage-
ment one of the most important issues to address, if not the most important. To use
anthropomorphic language, scientific theories now live with the knowledge of their
own internal frailty. As a result, even in the “hard” sciences, the imperium of strict
and linear images of causation has faded away, leaving more room for other models of
causation.
If this is acknowledged in the scientific realm, it should also be acknowledged in
the social sciences, where the part played by “givens”, assuming that such “givens”
exist, is much smaller than that played by “constructs”. This is a fortiori the case with
law, at least positive law, which can certainly not be characterized as a science.’ Thus,
when examining issues pertaining to causation, we should never forget that legal
L. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (New
York: Oxford University Press, 1986) at 179.
6Hence the non-consideration of most non-physical forms of harm. Hence, also, its intrinsic inabil-
ity even to acknowledge the possible performativity of some forms of speech.
‘Law can be characterized in many ways, but certainly not as a science when “law” describes posi-
tive law. This is not to say, however, that law cannot be scientifically studied, viz. from an external
perspective.
2000]
J.-F GAUDREAULT-DESBIENS – REGULA7NG HATE PROPAGANDA
125
knowledge is fundamentally different from scientific knowledge. While the idea of an
entirely “pure” fact is hardly possible, in that it would exclude any human mediation
in the construction of the problematic surrounding factuality itself, the level of factu-
ality of phenomena dealt with in the legal field is quite different from that of the pure
or applied sciences. As Feldman points out
The phenomena identified by legal concepts such as negligence fraud, and
rape are not like the phenomena identified by such natural scientific concepts
like proton or gravity. Negligence, fraud, and rape are not human-independent
phenomena; they are constituted by our practices, goals, values, and beliefs!
As such, we should never forget that from a legal standpoint there is no entirely natu-
ral or objective way to look at causation. This is why it is worthless to invoke the
law’s neutrality to hide that any decision taken in the legal field as to the degree of
causation required in a particular case necessarily implies a policy choice. This choice
is made either by the legislator or by the judiciary, both of whom reflect the normative
values of the society in which the choice is made.
While causation is more than politics, in that it sometimes deals with material
facts the existence of which cannot be doubted, its political dimension should not be
obscured. Far from being a pure given, causation is first and foremost a construct.
This is why legal reflection should never abdicate outright to “scientific” evidence,
whether it comes from the hard or social sciences. The law must remain master of the
processes through which it apprehends issues pertaining to evidence. It should not
systematically and naively yield to other forms of “authority”, even scientific, ac-
cepting these constructions as “givens” for legal purposes. This should be borne in
mind when we reflect on competing logics such as the curative logic of imputation
and the preventive logic of risk management.
A number of theoretical and practical consequences flow from the initial ac-
knowledgement of the perils associated with blind adherence to “scientific data” or
“scientific causation” and their use as a possible justification for the elaboration of a
given norm. For example, it becomes clear that the strict causal link that the curative
logic of imputation requires between the expression to be regulated and the harm al-
legedly caused by that expression forces the potential victims of hate propaganda to
bear or absorb all risks. This may be justified sometimes in the more individualistic
context of tort law, but is it justified in the more societal context of constitutional law?
This causationist approach stands in contrast to the correlationist approach. By
considering social reality from a macroscopic angle, the correlationist approach ac-
knowledges less tangible forms of harm, and more important, considers as sufficient
the demonstration of a strong rational correlation between a given expression and the
harm it allegedly causes. The correlationist approach allows for a higher level of def-
erence towards regulatory attempts to manage the risks of harm that presumably flow
8 ILL. Feldman, “Objectivity in Legal Judgment’ (1994) 92 Mich. L Rev. 1187 at 1188-89.
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from certain forms of expression because it is based on a theory that acknowledges
links that are rational and plausible from a global societal angle rather than only di-
rect, legal-causationist links. As such, the correlative approach is inspired by a pre-
ventive logic that can only be implemented if the traditional legal concept of causation
is expanded, or more accurately, imploded. Pushed to its extreme, however, the cor-
relationist approach sometimes refuses unduly to acknowledge the risks associated
with censorship, thereby potentially threatening all speakers who try to convey un-
popular messages. This is a risk that the slippery slope argument captures. But when
used to condemn any attempt at regulating hate propaganda, the same argument fails
to acknowledge that the correlationist approach may simultaneously acknowledge the
risk associated with censorship while acknowledging the risk associated with the ab-
sence of any legal constraints on some forms of speech. When both forms of risks are
considered, the correlationist approach may well involve a much more complex
analysis than its causationist counterpart. It may also inform a different approach to
the interplay between freedom of expression and equality, the two rights at stake in
the regulation of hate propaganda.
The curative logic of imputation, as well as the preventive logic of risk manage-
ment, are illustrated respectively by the American and Canadian positions on the con-
stitutionality of laws prohibiting hate propaganda
While these two logics may explain differences in how countries regulate hate
propaganda from a domestic constitutional standpoint, the distinction between these
logics can also prove a useful tool with which to assess potential or actual obstacles to
the enforcement of international norms prohibiting hate propaganda. For example,
aside from the fact that a direct prohibition of hate propaganda would contradict a ba-
sic tenet of the First Amendment creed, that is, viewpoint neutrality, the causationist
approach adopted by American law in its analyis of speech-related harms precludes
the United States from fully subscribing to these international norms, and as a result,
from participating in their enforcement. Indeed, how can the United States subscribe
to international norms that purport to outlaw hate propaganda if its own domestic law
prevents its government from doing so? How can the American government accept
that legal consequences be drawn from the fact that a systematic campaign of hate
propaganda often, but not always, serves as a precursor to genocide, or in other words,
that such a campaign only may serve this purpose? How can the United States then
participate in the enforcement of international norms that are based on a prior ac-
knowledgement by the international community of a rational correlation between a
given form of expression and some of its consequences-the “mildest” including dis-
9 In fact, it is to be noted that the American position on the unconstitutionality of hate propaganda
regulation is exceptional; Canada’s position, for its part, is in line with the rest of the world. See e.g.
I. Cotder, “Hate Speech, Equality, and Harm under the Charter. Towards a Jurisprudence of Human
Dignity for a ‘Free and Democratic Society’
in G.-A. Beaudoin & E. Mendes, eds., The Canadian
Charter of Rights and Freedoms, 3d ed. (Scarborough: Carswell, 1996) 20-1.
20001
J.-F GAUDREAULT-DESBIENS – REGULA7NG HATE PROPAGANDA
127
crimination, hostility, and ostracism directed at the stigmatized group and the worst
being genocide? In short, the United States is extremely reluctant to do so.”2 This re-
luctance is troublesome because the United States is the only military superpower in
the post-cold war era and so it often finds itself in a position to influence the outcome
of events. This reluctance is especially troublesome in light of the ethmic cleansing
and genocide a few years ago in Bosnia and Rwanda, and the ethnic cleansing taking
place in Kosovo at the time of writing. It is even more troublesome considering the
well-documented role that hate propaganda played in the first two cases.”
At an even deeper level, any inquiry into the nexus between hate speech, hate
crimes, and genocide forces us to reflect on the realization of basic human rights fifty
years after they were solemnly entrenched in the Universal Declaration of Human
Rights.'” More specifically, it raises the following question: To what extent can the
regulation of hate propaganda be linked to the realization of human rights? In the next
few pages, I will modestly propose some intellectual parameters within which to ap-
proach this question. Addressing it will inevitably demonstrate how the two funda-
mental rights at stake in the regulation of hate propaganda, freedom of expression and
equality, interact. I will use two well-known cultural icons as springboards for my ob-
servations: first, the mythical story of Sisyphus, and second, the motto of the French
Revolution and now of France, “Liberty, Equality, Fraternity”.
First, let me deal briefly with Sisyphus, to whom I will return at my conclusion.
In Greek mythology, Sisyphus has been condemned by the gods to endlessly push a
stone up a mountain, only to see it fall down again and again upon reaching the top.
Sisyphus’s role in Greek mythology strangely evokes the state’s position when faced
with regulating phenomena such as hate propaganda in the techno-scientific era. If
Western governments choose to regulate and enforce laws against hate propaganda,
they face an endless struggle uphill, which is exacerbated by recent technological de-
velopments, such as the Internet, that allow for easier and faster dissemination of in-
formation-any information-to all parts of the world. As a matter of fact, today’s
dynamic of “de-territorialization ”” destabilizes the state’s power and ability to regu-
late the flood of available information. Undoubtably, this must induce profound
See e-g. U.S. formal reservations on the application of arts. 4 and 7 of the International Conven-
lion on the Elimination of All Forms of Discrinnation, GA Res. 2106(XX), UN GAOR, 21 Dacem-
ber 1965,660 U.N.T.S. 195, and of art. 20 of the International Coenanton Civil and Political Rights,
19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23
March 1976, accession by Canada 19 May 1976).
” See K. Mahoney, “Hate Speech–Ethnic Cleansing-in the Balkans” (International Conference
Hate, Genocide and Human Rigls Fifty Years Later: IWat Have e Learned? What Must I* Do?,
Faculty of Law, McGill University, 28 January 1999) [unpublished]; WA. Schabas, ‘Hate Spaech in
Rwanda: The Road to Genocide” (2000) 46 McGiU LJ. 141.
12 GA Res. 217(m), UN GAOR, 3d Sess., Supp. No. 13, UN Doe. A/810 (1948) 71.
131 borrow this expression from R.-J. Dupuy, ‘e d~doublement du monde” (1996) 100 Rev. DI.P.
313 at 317.
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changes in the way norms emerge and are enforced. Whether we like it or not, states
are ill-equipped to come to terms with this phenomenon of de-territorialization. In
fact, numerous information providers are literally shielded from state normativity as a
result of the intrinsic limitations to the latter’s extraterritorial jurisdiction. Moreover,
new information techn6logies preclude the state from effectively imposing any water-
tight control over anti-egalitarian expression such as hate propaganda, the regulation
of which was already hard to enforce prior to the emergence of these technologies.
Without a doubt, insofar as the control of information is concerned, today’s regulatory
state looks more and more like Sisyphus with his stone. Hence the Sisyphus state’s
first dilemma is “to regulate or not to regulate”. Assuming a positive answer, the di-
lemma then becomes whether to enforce the regulation.
While the challenges mentioned above must certainly be considered when re-
flecting on the utility of state regulation as a means of preventing the harm caused by
hate propaganda, they cannot be invoked alone either to dismiss any further use of
such regulation or to abandon the very idea of enforcing the already existing norms
against that form of speech. That a legal norm appears ineffective does not mean that
it is actually ineffective. Legal norms do not operate in a social vacuum; thus, their ef-
fectivity may be assessed from microscopic as well as macroscopic standpoints. As
noted by legal feminists and critical race theorists, acknowledging this multiplicity of
perspectives has important consequences. For example, reflection on a legal norm’s
layers of effectivity may push some to rethink their adherence to a causationist ap-
proach for assessing the constitutionality of that norm. More important, it may induce
them to recognize that some forms of expression have harmful effects on certain
groups and that there is no watertight distinction between expression and conduct.” In
any event, simple acknowledgement of the relevance of such questioning could
change the way we frame debates about the regulation of these forms of expression.
At the very least, it surely affects the way in which we conduct any serious discussion
about the interplay between freedom of expression and equality.
Some epistemological obstacles, however, must be removed before such discus-
sion can occur.” For example, a purely ideological portrayal of the interplay between
“1I think it is intellectually absurd to say without any nuance, however, that “speech is act”, and this
even if one accepts the possible relative performativity of some forms of expression.
” Gaston Bachelard defines the concept of “epistemological obstacle” as a generic concept that
designates all causes of inertia, stagnation, or setback in knowledge. See G. Bachelard, Lafomiation
de l’esprit scientifique: Contribution ii une psychanalyse de la connaissance objective, 12th ed. (Paris:
Vrin, 1960) at 14. Frangois Ost and Michel van de Kerchove are more specific, describing it as follows:
L'”obstacle 6pist~mologique” est une catdgorie qui, plac6e au fondement d’une th~orie,
tente de la garantir contre les mises en question et infirmations dont elle pourrait faire
l’objet: tantt simple concept indfment 61argi, … tantrt veritable “Weltanschauung”,
‘obstacle survalorise la thdorie, refoule les questions irrdsolues qu’elle suscite par de-
vers elle et la dote d’un pouvoir explicatif exag6rment 6tendu (Jalonspour une thdorie
critique du droit (Brussels: Facultds universitaires Saint-Louis, 1987) at 121-22).
2000]
J.-F GAUDREAULT-DESBIENS – REGULATING HATE PROPAGANDA
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freedom of expression and equality may impinge on a complex understanding of this
relationship, thereby systematically allowing freedom of expression to prevail over
equality, or vice versa. As a result, depicting this interplay as an unsolvable conflict
where one value always trumps the other is of no use whatsoever. Indeed, from a le-
gal-philosophical perspective, there is no clearly obvious or “given” solution to the
appropriate balance between freedom of expression and equality, since neither of
these two rights can be realized in the abstract, despite their status as normative ideals.
Bearing this in mind, any answer to the problem must go beyond the realm of pure
abstraction, which often obscures strictly ideological motives anyhow, to a kind of
“idealistic pragmatism” that considers not only the immediate legal constraints appli-
cable but also the whole socio-legal context in which this balance must be struck. In
any event, two things are certain. First, no solution can ever pretend to be optimal, in
the sense of pleasing everyone, nor can it pretend to be self-evident, in the sense, in
and of itself, of “naturally” convincing all. Second, any solution is likely to be condi-
tioned by the internal and external legal cultures at play,6 and by the audiences that
the interpreter seeks to address.” This is true for the interplay between freedom of ex-
pression and equality, as it is for the specific question posed by the constitutional un-
derstanding of juridical attempts to regulate hate propaganda or other forms of anti-
egalitarian expression.
One could legitimately ask, however, why there is no obvious solution to the
problem posed by the regulation of hate propaganda. The answer lies first in the
Manichaean and abusive use of the two previously identified logics–the curative
logic of imputation and the preventive logic of risk management-in the debate sur-
rounding regulation. Pushed to its extreme, the curative logic of imputation prevents
almost any juridical acknowledgement of the harm caused by hate propaganda. This
is, in essence, the position adopted by libertarian jurists who will systematically op-
pose the regulation of hate propaganda unless presented with direct and irrefutable
evidence of its deleterious effects. Their fear of losing the smallest part of liberty
pushes them to deny any legitimacy to state regulation of such propaganda, thus ob-
scuring considerations pertaining to equality. On the other side, when pushed to its
extreme, the preventive logic of risk management overstates the systemic nature of the
harm caused by hate propaganda or any other form of anti-egalitarian expression,
thereby rendering its own philosophy the only determining variable for the solution to
the problem. From this vantage point, hate propaganda’s systemic nature will be in-
voked to legitimize a quasi-total control of anti-egalitarian forms of expression, at the
6’Etenal legal culture” refers to the lay people’s legal culture, whereas “internal legal culture” re-
fers to the legal culture of the members of the legal community. See L.M. Friedman, The Legal Sys-
tem: A Social Science Perspective (New York- Russell Sage Foundation, 1975) at 223.
17 Following Chaim Perelman, legal interpretation can be depicted as an attempt to answer the ex-
pectations of a certain number of audiences. For a work that applies Perelman’s theories to Canadian
constitutional adjudication and then refines it, see A. Lajole, Jugentents de raleurs (Paris: Presses
Universitaires de Frances, 1997).
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risk of obliterating all considerations pertaining to freedom of expression. Both sides,
however, are wrong; social reality is too complex to be imprisoned by any “pure”
logic designed to be universally applied. Indeed, the way these two logics are applied
owes much to another logic, binary logic.
Given the latter’s imperium, negotiating the competing claims of the debate is no
easy task. Some share a blind faith in the so-called free market of ideas’ self-
regulating powers, while others entertain idealistic expectations about the effectivity
of state law, or more generally, of institutional law, in correcting social inequalities.
Each party to the debate demonstrates an exaggerated skepticism about the other’s ar-
guments. In the end, neither the idealist arguments nor the skeptical ones are very
convincing. For example, if it is true that regulating hate propaganda may contribute
to the goal of substantive equality, it is not accurate to state that such regulation will
solve the problem of inequality. Conversely, if it is true to say that some state regula-
tion of a given form of expression may in some circumstances lead to totalitarian-
ism-the slippery slope argument-it is erroneous to state that it necessarily leads to
it, especially where a civil society and democratic tradition exist. This kind of intel-
lectual process works by inflating a specific example, either positive or pathological,
so as to transform it into a rule that is universally applicable. In the end, none of the
arguments and counter-arguments invoked in the debate about anti-egalitarian expres-
sion are compelling in themselves. In fact, the argument which most effectively re-
futes objections in principle to any form of state control of hate propaganda is funda-
mentally an ethical one. It posits that hate propaganda conveys an unambiguous mes-
sage of contempt and degradation that denies the humanity of those it targets.” Put
otherwise, this form of expression denies its victims the right to participate as equals
in social life. At a societal level, the question then becomes whether a democratic so-
ciety is bound to tolerate some of its members actively inciting their fellow citizens to
disrespect and demean other members of the very same society, and ultimately, to in-
flict harm on them. Conversely, is a democratic society ethically obliged to help, even
in the symbolic realm, those people whose very humanity is radically denied? Ac-
cording to David Kretzmer,
mhis argument stresses the symbolic importance of restrictions on racist
speech. … it does not necessarily assume that the prevention of racist speech
will result in fewer people subscribing to racist ideas. … it does not emphasize
the indignity caused by the exposure of target populations to racist speech,
rather it stresses the indignity of living in a society in which such speech is
protected. The thrust of this argument is that a society committed to the ideals
of social and political equality cannot remain passive: it must issue unequivocal
expressions of solidarity with vulnerable minority groups and make positive
statements affirming its commitment to those ideals. Laws prohibiting racist
” C.R. Lawrence II, “If He Hollers Let Him Go: Regulating Racist Speech on Campus” [1990]
Duke LJ. 431 at 461.
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J.-F GAUDREAULT-DESBIENS – REGULAT7NG HATE PROPAGANDA
131
speech must be regarded as important components of such expressions and
statements. 9
More than any other, this argument convinces me that a limited regulation of hate
propaganda, and of other forms of anti-egalitarian speech in general, is not inherently
problematic. This is not to say, however, that such regulation is entirely unproblematic.
While regulation of hate propaganda may have a considerable symbolic impact, it
can also entail long-term social consequences. As Delgado points out, “The estab-
lishment of a legal norm creates a public conscience and a standard for expected be-
havior that check overt signs of prejudice.” Legislation aims first at controlling only
the acts that express undesired attitudes. But “when expression changes, thoughts too
in the long run are likely to fall into line.” ” Some object to such arguments on the
grounds that they legitimize the idea of governmental thought control, since the pur-
pose of hate propaganda regulation would not be the prevention of harm, but rather
the elimination of any anti-egalitarian thought. In other words, those who support the
regulation of hate propaganda are reproached for desiring a prior control of attitudes
or beliefs, rather than simply a downstream control of the expression of hateful atti-
tudes or beliefs.” This line of argument is far from convincing. Without elaborating
more than necessary on a question pertaining to legal ontology, is not the ultimate
objective of most legal norms to influence not only immediate behaviours but also at-
titudes and beliefs, or put otherwise, intellectual presuppositions that condition be-
haviour and, as a result, effect respect for the norm? Consider the classic example of
the obligation to stop at a red light. What explains that most people stop? Is it the con-
stant fear of being caught? If so, the strict effectivity of a norm depends on the state’s
coercive mechanisms. Or rather is it a mix of the fear of triggering these coercive
mechanisms and the internalization of the content of this norm because of its intrinsic
value? In the same vein, most people respect legal prohibitions against fraud not only
for fear of being caught, but also because they have internalized these prohibitions. In
fact, the objection expressed above seems to rely on a rather reductionist vision of the
law’s effectivity; not only does it deny any legitimacy to positive norms purporting,
even minimally, to structure attitudes; it also denies that even the most innocuous
norms may have that effect or purpose. This position is premised on the belief that
positive norms are intrinsically neutral, an ideal that may be legitimate but is almost
never realized in fact Indeed, since all positive norms embody public policy objec-
tives to various degrees, the law, more than being simply procedural, necessarily pro-
duces meaning for the purpose of moulding attitudes and thoughts in one way or an-
9 D. Kretzmer, “Freedom of Speech and Racism” (1987) 8 Cardozo L Rev. 445 at 456.
20 R. Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling”‘
(1982) 17 Harv. C.R.-C.L. L. Rev. 133 at 149 [footnotes omitted].
21 See ag. L. Alexander, “Banning Hate Speech and the Sticks and Stones Defense” (1996) 13
Const. Commentary 71 at 79.
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other. The result-the attitudes and thoughts so moulded-may certainly be subject to
criticism, but it is hard to see why the process itself would be fundamentally flawed.
Furthermore, simply equating the impact the law may have on people’s con-
science with some Orwellian form of thought control seems even more dubious con-
sidering the social context from which this argument stems. Without denying the need
for vigilance, the notion that a real “thought control” system could be implemented in
a society with a long-standing democratic tradition and civil society seems far-
fetched, since any civil society would oppose such a system. The counter-argument is
that, while anti-hate legislation is a mild form of thought control, it constitutes a dan-
gerous first step in the direction of a stronger one. This is a variation on the slippery
slope argument. I need not repeat that such an argument is not conclusive in itself,
since it fails to take into account the specific socio-legal fabric of the society in which
such anti-hate laws are enacted. Once again, the existence of a democratic tradition
and strong civil society would probably prevent slippage towards totalitarianism or
authoritarianism. This is not to say that democratic societies are not vulnerable to fas-
cist impulses. It is only to point out that, although valuable for reminding us of that
vulnerability, metaphors such as the slippery slope should be used with caution, since
they tend to drain complexity from any analysis. As such, they act as epistemological
obstacles, and more specifically, as “verbal” ones, to use Gaston Bachelard’s classifi-
cation.
Bachelard characterizes “verbal” obstacles as encompassing all metaphors that
pretend to explain complex phenomena while actually obscuring their complexity.
These metaphors therefore act as intellectual “sponges”, sucking complexity from the
analysis and pre-packaging the phenomena they are supposed to describe in such a
way as to give the impression that they describe them accurately and completely.’ The
intellectual process that leads to the transformation of useful metaphors into episte-
mological obstacles is often triggered by a search for analytical certainty. The process
implies a shift from the relatively weak status of metaphor-that is, simply a figure of
speech-to the stronger one of “ideal reality”,’ a concept that roughly describes the
factualization of some representations in the realm of social relations. Not only do
these representations reflect social relations; they also constitute them: once believed,
they cease to be representations, strictly speaking, and enter the content of social rela-
tions. What may have been a normative representation of how things could or should
be will ultimately be transformed into a material fact. For example, the free market of
ideas, which is a legitimate ideal but certainly not an empirical reality, becomes in the
minds of its believers an empirical reality that serves as the incorrigible ‘ intellectual
‘ See Bachelard, supra note 15 at 78-79.
M. Godelier, L’idjel et le matdriel: Pensie, 6conomies, soci6t6s (Paris: Fayard, 1984) at 172.
2 I use the word “incorrigible” in its epistemological sense, meaning “immune from refutation”.
See W.P. Alston, Epistemic Justification: Essays in the Theory of Knowledge (Ithaca: Comeli Univer-
sity Press, 1989) at 286.
2000] J.-F GAUDREAULT-DESBIENS – REGULATING HATE PROPAGANDA
133
foundation upon which they base their concept of freedom of expression. Similarly,
the slippery slope metaphor, which is meant to warn against a possible danger, often
leads its believers to see actual danger in contexts that do not empirically warrant such
fear. Without factual indication to that effect, and notwithstanding the socio-political
culture of the country, they imagine that regulating hate propaganda could actually
lead to totalitarianism. In other words, actual danger will be assumed whatever the
circumstances,’ preventing interpreters from pursing any thorough inquiry on the ac-
tual circumstances in which regulation may take place. In conclusion, there may be a
slippery slope to the reckless use of the “slippery slope” metaphor!
That being said, it should be clear to my readers that I do not subscribe to these
“all or nothing” approaches that play such a huge role in debates about hate propa-
ganda, and more generally, anti-egalitarian expression. Nevertheless, once we have
concluded that the regulation of hate propaganda is not inherently problematic, at
least in principle, the potential scope of such regulation remains to be determined.
Leaving aside the indirect effect positive norms may have through their symbolic and
mind-structuring impact, we must decide which forms of anti-egalitarian expression
should be subject to a norm intended to be directly effective. Some parameters may
lead us to a relatively satisfying answer.
First, we should not forget the limits of state, or institutional, law in preventing
social phenomena that are systemic in nature such as racism, or in eradicating related
epiphenomena such as racist expression. Although we must remember the role that
anti-egalitarian expression plays in the reproduction of discriminatory social systems,
we should not forget that it would be inappropriate-and unrealistic–to view the
problem from the standpoint of an absolutist logic purporting to prevent or eliminate
all risk of harm.
Second, while it is not only legitimate, but also necessary, to look at the harm
anti-egalitarian expression causes from the victims’ perspective, we should not fall
prey to complacency or intellectual abdication. The multiple forms of anti-egalitarian
expression that exist are neither equally harmful nor performative; we must not, there-
fore, lose sight of the link between the norm that the state is drafting and the broader
public policies involved when identifing the specific forms of anti-egalitarian expres-
sions to discourage. As much as the victims’ perspective must be actively listened to
rather than passively heard, this listening process should enhance, not trump, the val-
ues underlying a free and democratic society, including freedom of expression.
Third, one must bear in mind that legal control of anti-egalitarian forms of ex-
pression may entail unwanted consequences, both at the enactment stage and during
implementation. The worst of these is probably the elevation of those who convey
It is ironic to note that the “slippery slope!’ metaphor being founded on an assumed danger, that of
totalitarianism, denies another potential danger, i.Le that hate propaganda may indeed cause harm to
some groups and individuals. Would the causationist approach operate selectively?
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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anti-egalitarian views to martyr status. As Richard Abel correctly points out, ‘The
greatest perversion … is that law, far from silencing harmful speech, rather encour-
ages, valorises, and publicises it, transforming offender into victim and offense into
romantic defiance “‘2 Rhetorically, this is illustrated by what I call the “Galileo syn-
drome”, which is the propensity to systematically invoke the example of Galileo be-
fore the Inquisition, or some equivalent, in order to delegitimize any attempt at regu-
lating anti-egalitarian expression and, a fortiori; enforcing such regulation.” Aside
from being paradoxical,,if not absurd,’ the problem with this kind of comparison is
that it trivializes freedom of expression itself. Indeed, by relying on quantitative rather
than qualitative logic, it basically considers any non-violent eructation an “expres-
sion”, even if it is entirely irrational. Indeed, irrationality is a hallmark of anti-
egalitarian expression.” While the rationality of an expression should not be in and of
itself a determining factor in deciding whether it deserves constitutional protection,
and while it may be pragmatically defensible to reject any a priori distinction between
less performative forms of expression at the stage of circumscribing the scope of free-
dom of expression for constitutional purposes,” it is nonetheless important to ac-
knowledge this trivializing effect.
Last, it should never be forgotten that there is no entirely optimal way to reconcile
equality and freedom of expression; only a complex apprehension of the problems
raised by anti-egalitarian expression may lead to a relatively satisfying compromise
where one right will not trump the other. The preceding comments thus induce me to
say that any regulation of anti-egalitarian expression, even the most abhorrent, can
only pursue limited and well-defined ends. It follows that a legal norm purporting to
be directly, as opposed to symbolically, effective, could and should only target ex-
treme forms of anti-egalitarian expression. The confinement of positive law to the
realm of extremes seems, in any case, inevitable considering the limited effectivity of
state regulation of expression, the possible unwanted consequences of such regula-
26R. Abel, Speech and Respect (London: Stevens & Sons, 1994) at 107.
See J.-E Gaudreault-DesBiens, La libert6 d’expression entre l’art et le droit (Quebec: Presses de
l’Universit6 Laval, 1996) at 258.
2 Indeed, it is quite strange to hear hate-mongers tried for the dissemination of hate comparing their
“plight” to that of Galileo before the Inquisition when their own views of what a society should be
have much more in common with the Inquisition’s than with Galileo’s.
2 Jean-Paul Sartre argued, rightly as far as I am concerned, that anti-Semitism implies a devaluation
of both words and rationality. See J.-P. Sartre, Reflerions sur la question juive (Paris: Gallimard,
1954) at 22. Obviously, this is not to say that anti-Semitic expression, however irrational, is not ra-
tionalized by its proponents. Evidence of this can be found in their use of pseudo-scientific theories,
i.e. of superficially rational discourse, to legitimize their views.
” This is precisely what the Supreme Court of Canada did in its jurisprudence on s. 2(b) of the Ca-
nadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter], when it refused to accept arguments that
purported to exclude hate propaganda from the ambit of this subsection. See R. v. Keegstra, [1990] 3
S.C.R. 697, 117 N.R. 1.
2000]
J.-F GAUDREAULT-DESBIENS – REGULATING HATE PROPAGANDA
135
tion, and more important, the difficulty of drawing a clear line between the forms of
anti-egalitarian expression that should be proscribed and those that should not.
We inevitably come back to the problems raised by state regulation of forms of
expression that may bear multiple, and even contradictory, meanings. How can the
border between what should and should not be proscribed be established? The ethical
argument that I found to be compelling enough earlier to justify, at least in principle,
regulation of some anti-egalitarian expression leads us down an interesting path. I ar-
gued that it is not conceivable for a democratic society to remain mute when con-
fronted with discourse that denies the very humanity of entire groups based on some
defining feature of their identity, or incites their exclusion or, worse, their elimination.
Not only is such discourse offensive; in many respects it is abusive as well. Indeed, in
addition to advocating abusive behaviour towards the targeted individuals or groups, it
abuses democratic societies’ tolerance by denying the intrinsic value of the social and
cultural pluralism that these societies cherish. Paradoxically, such discourse demands
the right to deny the plurality of individuals and groups within society in the name of
the pluralism of ideas. It is this abusive expression, conceptually distinct from offen-
sive expression, that the state may legitimately try to regulate. The distinction between
one form of expression and the other is admittedly not always clear, but absence of
intrinsic clarity is the lot of many other distinctions in the legal field. Nothing there-
fore justifies treating this distinction differently from other ones of the same nature.
When manipulating this distinction, however, one must tune out the sirens of
dominant discourses which, for ideological reasons, obscure the complexity of the
problems raised by state regulation of anti-egalitarian expression. Opponents of regu-
lating hate propaganda, for example, systematically depict those supporting such
regulation as asking for the censorship of merely offensive expression, thus trivializ-
ing the harm that abusive anti-egalitarian expression may cause.’ Conversely, propo-
nents of such regulations often confuse offence and abuse in their desire to dismantle
the tools that (re)produce inequality. Hence the importance, as noted earlier, of re-
fraining from an uncritical acceptance of the victims’ perspective.’ ” In fact, if I had to
find a formula to capture the essence of the distinction between offensive expression
and abusive expression, I would propose this one: offensive expression targets ideas,
while abusive expression targets human beings. In this light, an offence implies, at
worst, that the values of a group are confronted. For example, the depiction of Jesus
Christ in Martin Scorcese’s Last Temptation of Christ or that of Mahomet in Salman
Rushdie’s Satanic Verses certainly clash with some Christians’ or Muslims’ beliefs.
31E Schauer, ‘The Sociology of the Hate Speech Debate!’ (1992) 37 Vil. L Rev. 805 at 814.
For example, in its interpretation of the equality right guaranteed by s. 15 of the Charter, supra
note 30, the Supreme Court of Canada relativizes, without in any way obscuring it, this perspective by
assessing the harm allegedly suffered from the subjective-objective perspective of the “reasonable
victim”. See most recently Lav v. Canada (Minister of Employment and Inmigration), [1999 1
S.C.R. 497 at paras. 59-61, 170 D.L.R (4th) 1.
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But these works, as offensive as they may be for some, do not advocate that Christians
or Muslims are inferior beings who not only can, but must, be excluded and degraded
as individuals and as a group. Racist hate propaganda, on the other hand, advocates
the need and the right to perform such exclusion and degradation, as do some forms
of hard-core pornography.3
Some would fault the distinction between offensive expression and abusive ex-
pression for being unduly Eurocentric in that it relies on a rationalist philosophy. Per-
sons whose beliefs are offended, it could be argued, may be said to be victimized in
their humanity, since these beliefs are partly constitutive of who they are. This may be
so, but it does not change my answer: it would be antithetical to the idea of democ-
racy to uphold the right not to be offended. Indeed, the emphasis that democracy
places on freedom, in both its liberal and republican forms, fosters an ethical relativ-
ism which, in addition to inducing tolerance, encourages the questioning of ortho-
doxies and the raising of doubt. In this light, as was pointed out by Homi Bhabha,
Salman Rushdie’s greatest sin is having proposed an alternative reading of the Koran
that went against Iranian mullahs’ orthodox interpretation.’
That said, the reference I make to democracy clearly indicates the intellectual
framework in which my reflection takes place-that of a democratic society em-
bodying the Enlightment’s ideals, with their defects but also with their positive quali-
ties. Such philosophical “ethnocentrism” is inevitable, and it may well be that some
values are irreconcilable. Without any imperialist vocation, this ethnocentrism denies
neither diversity nor Otherness; it simply acknowledges that it is only from our own
standpoint that we can participate in a true and authentic dialogue with the Other. It
also acknowledges that in any interpretive community, the act of judging is, for his-
torical reasons, constrained within a certain intellectual framework that is futile to
hide. This philosophical ethnocentrism, which in a way relates to Richard Rorty’s
epistemological relativism, ‘
is therefore entirely opposed to radically relativist
schools of thought which, to use Claude Lefort’s words, would see in democracy a
“simple preference”.’
” If I use here the word “some” in relation to hard-core pornography, it is because pornography
raises more complex issues than racist hate propaganda. Indeed, since it participates in the polysemic
phenomenon of sexual representation, the meaning of pornography, hard-core or not, is not always as
clear or obvious as racist hate propaganda. For sure, it may be exclusion or degradation, but it may
also be something else.
-u See H. Bhabha, The Location of Culture (London: Routledge, 1994) at 226.
” R. Rorty, Objectivity, Relativism, and Truth: Philosophical Papers, vol, 1 (Cambridge: Cambridge
University Press, 1991) at 30.
C. Lefort, “La libert6
l’heure du relativisme” in Les usages de la libert: Textes des conferences
et entretiens organisis par les trente-deuxi~mes Rencontres Internationales de Genave 1989
(Neuchfitel: editions de la Baconni~re, 1999) 237 at 241.
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J.-E GAUDREAULT-DESBIENS – REGULATING HATE PROPAGANDA
137
Ultimately, socio-legal reflection on the appropriateness of regulating hate propa-
ganda, and on the potential scope of that regulation, leads me to conclude that regula-
tion must be confined to anti-egalitarian expression that is both extreme and harmful.
In other words, the scope of such regulation must be restricted to expression, which,
to borrow the language of the Quebec Charter of Human Rights and Freedoms, has
“the effect of nullifying or impairing [the right to full and equal recognition and exer-
cise of [one’s] human rights and freedoms],”‘ or worse, which may be characterized
as direct attempts at inducing people to act so as to nullify or impair those rights.’
Although this solution is unsatisfactory in many respects, it is the only one that per-
mits a certain reconciliation of equality and freedom of expression, rather than al-
lowing one to trump the other. One could argue that proscribing only the worst epi-
phenomena of a systemic problem of hate propaganda risks lulling us into the belief
that the entire problem has been definitively solved. In the same vein, one could also
argue that, under the proposed solution, more pervasive and discrete anti-egalitarian
expression remain untouched-for example, the “mild” stereotypes that permeate
mass culture. Even worse, to target only the most obvious and extreme anti-egalitarian
expression could lead some to believe that everything not expressly condemned by the
law is socially acceptable and thus legitimate.
While not unfounded, these observations do not take into account potentially
negative effects of a confinement of the regulation of anti-egalitarian expression to its
most extreme and harmful forms. First, other rules participate in the fight against “or-
dinary” anti-egalitarian expression, such as the anti-discrimination norms proscribing
sexual or racial harassment, or the norms acknowledging the right to dignity. Second,
the symbolic-normative impact of the regulation of anti-egalitarian expression, even if
restricted to the most extreme cases, may largely exceed the cases so targeted. Last,
debates on the regulation of anti-egalitarian expression may themselves shape the le-
gal-normative consciousness of individuals and groups, to the point of triggering the
emergence of new “social”‘ or informal norms, or of modifying older ones.f Viewed
this way, the enactment of positive norms purporting to regulate anti-egalitarian ex-
pression could simply amount to an institutionalization of already effective informal
ones.
This proposition is inspired by the wording of the Charter of Human Rights and Freedoms,
R.S.Q. c. C-12, s. 10.
35 C. de D. 583 at 611-13.
See P Bosset, “Les mouvements racistes et ]a Charte des droits et liberts de la personne” (1994)
” On the low heuristic value of the idea of “social” norms, as opposed to “legal” norms, see V. 01-
giati, “Le plumlisme juridique comme lutte pour le droit La folie thtorique et m~thodologique d’une
r~cente proposition” (1997) 12 Can. J. L. & Soc. 47 at 53, n. 16.
‘ This is precisely the hypothesis advanced by Professor Schauer in light of the actual success of
Catharine MacKinnon’s anti-pornography campaign, in spite of the striking down of the ordinance
she had inspired. See Schauer, supra note 31 at 818-19.
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If we accept that hate propaganda is likely to nullify or impair the right to full and
equal exercise of human rights and freedoms, any inquiry into the nexus between hate
propaganda, hate crimes, and genocide ultimately forces us to reflect on the realiza-
tion of human rights. Indeed, how can we truly exercise our rights and freedoms if we
live in a society that tolerates expression that denies certain individuals’ equal dignity
as human beings? In the end, we will probably feel alienated in our own society, no
longer comfortable exercising our supposedly inalienable rights and freedoms.’
While such situations undermine the legitimacy of these rights as useful tools to fight
discrimination and exclusion, they also demonstrate, albeit negatively, that human
rights find their real strength in their concrete and practical nature.
How can we contribute to the realization of both freedom of expression and
equality without systematically trumping one or the other, bearing in mind the limits
of law and legal discourse? The answer to this is far from obvious, as illustrated by
this discussion. At both domestic and international levels, however, inspiration can be
drawn from the ideals underlying the first three generations of human rights. These
are embodied in the French Revolution’s normative ideals, that is, “liberty” for first
generation rights, “equality” for second generation rights, and “fraternity” for third
generation rights. Notwithstanding questions associated with the justifiability of sec-
ond and third generation rights, the fact that a whole normative structure centred
around “basic rights” was built after World War II shows a concern for the realization
of such rights. It was not enough to entrench “core” civil and political rights; some-
thing more was needed to make these rights effective. Acknowledgement of this gap
eventually led to the recognition of social, economic, and cultural rights-the second
generation rights-and later, of third generation collective rights such as the right to
development, identity, and environment. Third generation rights, by emphasizing the
idea of “fraternity”, serve together with second generation rights as a reminder that
solidarity is not foreign to human rights discourse. Not only is it not foreign, but it
could be argued that the interpretation of any human right, as well as the resolution of
any conflict between various human rights, should be inspired not only by the ideal of
liberty and equality, but also by this too-often-forgotten ideal of solidarity.
With respect to the case of hate propaganda, the reconciliation of freedom of ex-
pression and equality may, perhaps, be made through reference to this normative
ideal, thereby forcing us to recognize the relational dimension of even the most indi-
vidualistic rights such as freedom of expression. As noted, acknowledging the con-
crete importance of that ideal may lead us to recognize, both in the domestic and in-
ternational realm, the legitimacy of some forms of hate propaganda regulation, and of
the enforcement of such regulation when needed. Particularly in the international
realm, acknowledging the legitimacy of such enforcement may also result in the es-
tablishment of a nexus between what is perceived to belong to traditional human
, G. Haarsher, Philosophie des droits de l’homme, 4th ed. (Brussels: Universit de Bruxelles, 1993)
at 42.
20001
J.-F GAUDREAULT-DESBIENS – REGULATING HATE PROPAGANDA
139
rights law and what is now characterized as humanitarian law. From it may ultimately
flow a much-needed reconsideration of the imperium of state sovereignty, as well as a
relaunching of the debate around the duty and the right of the international commu-
nity to interfere in a state’s internal affairs under certain circumstances.
I will conclude these remarks by returning to the notion of the Sisyphus state.
Emphasizing the importance of solidarity as a normative ideal leads us to assess the
regulation of hate propaganda from a different angle. Indeed, the decision whether to
regulate hate propaganda places the Sisyphus state in a dilemma because of the diffi-
culties it is likely to experience in enforcing such regulation and of the perverse ef-
fects that are associated with it. The state that accepts solidarity as a legitimate inspi-
ration for such regulation, however, conveys the message that, notwithstanding these
problems, it is ready to make a commitment to a certain kind of society, one in which,
for ethical reasons, the idea of constitutional democracy cannot be reconciled with the
radical denials of the humanity of some of its citizens. This entails that indifference to
these citizens’ victimization is itself intolerable. Hence the need to convey this mes-
sage through formal legal means, the effect of which is significant, despite being
largely symbolic. As Camus once wrote, “The struggle itself toward the heights is
enough to fill a man’s heart. One must imagine Sisyphus happy:’ Viewed under the
light of solidarity, the Sisyphus state’s-or the international community’s-initial di-
lemma may very well become its duty.
42 Camus, supra note 1 at 123.
Hate Speech in Rwanda:
The Road to Genocide
William A. Schabas”
The author outlines the steps leading to the
Rwandan genocide, tracing the importance of hate
speech, disseminated in print and by radio, in preparing
Rwanda’s “willing executioners”. Action ought to have
been taken much sooner than it was to prevent incite-
ment to genocide, a crime under the Com’entionfor the
Prevention and Punishment of the Crime of Genocide.
The author traces the drafting history of the convention,
including opposition by the United States to the crimi-
nalization of direct and public incitement to genocide,
motivated by concerns to protect freedom of the press.
The author notes that other international instruments
also contemplate prosecution for incitement. He dis-
cusses the judicial interpretation of the Genocide Con-
vention and the meaning of “direct” and “public”.
While the Genocide Com’ention criminalizes incite-
ment to commit genocide, its blind spot is that it fiils to
address hate propaganda, a prior and important step in
the genocidal food chain. Other instruments of interna-
tional human rights law, however, have since filled the
gap in the Genocide Convention. While the Genocide
Convention was clearly intended to have two prongs,
prevention and punishment, it says little about the for-
mer This is regrettable, as the early stages of genocide
consist of propaganda against the targeted group.
Uauteur pr&ente un rsumd des drapes ayant m-
nd au gnocide rwandais. En ce faisant, il porte un at-
tention partiui e au rOle de la propaganda hainwesa.
dissdmin e par l’entremise de ha radio et de diverses
publications, dans la preparation des 4beun-eaux vo-
lontairesD qui Pont men6 4 bien. I1 conclut qua des ac-
tions visant a prdvenir l g6nocide, qui constitue un
crime au sns de la Comention pour la privention et la
r~pression du crime de gnocide, auraiant da C tre prises
bien plus tft. Les travaux pr6paratoires d. la Cornen-
tion r&’alent que, par cxemple, ha prnoccupation par les
ftats-Unis de protdger la liberta de presse a mztan ce
pays at s’opposer at la criminalisation cia l’incitation pu-
blique et directe au gdnocide, alors qua d’autres ins-
truments juridiques internationaux prdvo!cnt la possi-
bilitd de poursuites pour incitation. Vauteur trne dga-
lement les grandes lignes da l’interpr~dation judiciaire
de la Convention, en particulier ea c qui concerne la
signification des termes ,directem ct ,apubliquzt. Bien
que la Convention criminalise l’incitation au g6nocide,
l’absence de mesures contre la propaganda hainause.
une .tap prdalable et importante dans la chalra des
,vdnements menant au g~nocide, constitue son point
faible. Cette lacuna a dtd combldc par d’autres instru-
ments internationaux relatifs aix droits i l’homrma I1
reste toutefois quo ia Convention, qui dvait a l’origin
assurer t la fois la prvention et la rpression du gdno-
ca ce pre-
cide, n’assure pas ad~quatement
mier objectif. C’est lt una conclusion regrettable. car ia
prermire Etape i franchir sur lc cheanin du g~nocide
consiste an une propaganda efficace ht l’encontre du
groupe visd-
‘atteinte
SMA. (Toronto), LUD. (Montreal), Professor of Human Rights, National University of Ireland,
Galway, and Director, Irish Centre for Human Rights. This paper was prepared for a panel on ‘ate
Speech, Hate Crimes, Genocide” at the international conference Hate, Genocide and Human Rights
Fiy Years Later: What Have We Learned? What Must We Do? (Faculty of Law, McGill University,
28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 141
Mode de rff&ence: (2000) 46 RD. McGill 141
142
MCGLL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
Introduction
I. Preparing Rwanda’s “Willing Executioners”
II. Application of the Genocide Convention
Incitement in Other Instruments
A. Drafting History
B.
C. Judicial Interpretation
D. Meaning of ‘Direct”and “Public”
E. The Genocide Convention’s Blind Spot: Hate Propaganda
Conclusion
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
Introduction
In January 1993 1 participated in an international human rights fact-finding mis-
sion to Rwanda, organized by four prominent international non-governmental organi-
zations (“NGO’s”). We arrived in the midst of a civil war that had been going on spo-
radically since Tutsi refugees from Uganda invaded the country in October 1990. Our
mission focussed on verifying widespread reports from national NGOs about atroci-
ties perpetrated by the regime, crimes carried out mainly by the racist Interahannve
militia, which was directed by the ruling party. We arrived to find a country in a state
of turmoil and agitation provoked by a speech suggesting that ethnic hatred had taken
a new and genocidal turn. The orator was a confidante of the president named Leon
Mugesera. One of our first stops in Kigali should have been a visit with the minister
of justice. But he resigned out of fi-ustration days before our arrival when he learned
that his attempts to prosecute Mugesera for incitement to racial hatred were thwarted
by the man’s powerful friends.
Three weeks later, with the fact-finding part of our mission concluded, we issued
a preliminary statement citing acts of “genocide” in Rwanda and warning of the abyss
into which the country was headed.’ Our report prompted a mission, in April of the
same year, by United Nations special rapporteur Bacre Waly Ndiaye. Ndiaye con-
firmed the conclusions of our NGO fact-finding mission:
The cases of intercommunal violence brought to the Special Rapporteur’s at-
tention indicate very clearly that the victims of the attacks, Tutsis in the over-
whelming majority of cases, have been targeted solely because of their mem-
bership of a certain ethnic group, and for no other objective reason. Article H,
paragraphs (a) and (b) [of the Comentionfor the Prevention and Pumishment of
the Crime of Genocide], might therefore be considered to apply to these cases.”
Our findings, couched in hesitant equivocation, like those of Ndiaye, were controver-
sial and disturbing. Some of the sponsoring organizations of the mission had balked at
the “g-word”.
‘F&hiration Intemationale des Droits de l’Homme, Union Interafricaine des Droits dz l’Homme et
des Peuples, Africa Watch & Centre international des droits da la personne et du dvelopper-ment
democratique, Rapport de la comnission intemationale d’enqu&e sur les violations des droits de
I’homme au Rwanda depuis le ler octobre 1990 (1993).
2 9 December 1948, 78 U.N.T.S. 277, Can. T.S. 1949 No. 27 (entered into force 12 January 1951)
[hereinafter Genocide Convention].
3 B.W. Ndiaye, Report by Mr B.W NdiayVe Special Rapporteur, on his mission to Rwanda from 8 to
17April 1993, UN ESCOR, 50th Sess., Provisional Agenda Item 12, UN Doc. ECN.411994/Add.1
(1993) at para. 79. See also Extrajudicial, sunnhary or arbitrary executions: Note by lhe Secretary-
General, UN GAOR, 51st Sess., Agenda Item 110(b), UN Doe. A/511457 (1996) at praa. 70.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Fifteen months later, history proved that our melancholy intuition about genocide
had been well founded.’ What was it about Rwanda in January 1993 that indicated to
human rights experts, including the special rapporteur, that “genocide” was the ap-
propriate characterization? We had seen convincing evidence of ethnic massacres,
sometimes involving several hundred Tutsi victims, but alone this was hardly suffi-
cient to constitute genocide. It is true that genocide, as defined in article I1 of the
Genocide Convention, involves the destruction of a national, racial, ethnic, or relig-
ious group in whole or in part. There is no magic threshold past which ethnically
motivated killing becomes genocide. The real test lies in the intent of the perpetrator.
Mugesera’s speech had brought us face to face with a genocidal intent. His call for
destruction of Rwanda’s Tutsi population was the decisive new element. Our January
1993 perception was hardly astute or clairvoyant. That genocide was in the air in
Rwanda was plain for any objective observer to see.
Mugesera himself did not commit genocide, although his speech sparked a series
of atrocities directed against Tutsi in the Gisenyi region of the country. He left
Rwanda more than a year before the killings of hundreds of thousands began.
Mugesera’s crime involved words alone. According to a decision of the Immigration
and Refugee Board of Canada, his remarks constituted direct and public incitement to
commit genocide.’ Mugesera’s speech has also been cited in Prosecutor v. Akayesu,’ a
judgment of the International Criminal Tribunal for Rwanda, as one of the defining
moments in the buildup to genocide.’ The road to genocide in Rwanda was paved
with hate speech.
‘ On the Rwandan genocide, see e.g. P. Gourevitch, We Wish to Inform You That Tomorrow We Will
Be Killed with Our Families: Stories from Rwanda (New York: Farrar Strauss and Giroux, 1998); G.
Prunier, The Rwanda Crisis: History of a Genocide (New York: Columbia University Press, 1995); C.
Braeckman, Rwanda: histoire d’un ginocide (Paris: Fayard, 1994); African Rights, Rwanda: Death,
Despair and Defiance, 2d ed. (London: African Rights, 1995); J.-P. Chrtien et al., Rwanda: Les
niddias du ginocide (Pads: Karthala, 1995); F-X. Verschave, Complicitl de gdnocide?: la politique
de la France au Rwanda (Paris: La D6couverte, 1994); F. Reyntjens, L’Afrique des grands lacs en
crise: Rwanda Burundi: 1988-1994 (Paris: Karthala, 1994); J.-D. Mouton, “La crise rwandaise de
1994 et les Nations Unies” (1994) 40 A.F.D.I. 214.
‘ Re Mugesera and Minister of Citizenship and Immigration (11 July 1996), QML-95-00171 at 42,
55-56 (I.R.B.) [hereinafter Mugesera (I.R.B.)], aff’d (6 November 1998), M96-10465, M96-10466
(I.R.B. (App. Div.)). See W.A. Schabas, “L’affaire Mugesera” (1996) 8 R.U.D.H. 193.
6 (1998), Case No. ICTR-96-4-T (International Criminal Tribunal for Rwanda), online: International
Criminal Tribunal for Rwanda
(summary only) [hereinafter Akayesu cited to ICTR online].
7 Ibid. at para. 100.
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
I. Preparing Rwanda’s “Willing Executioners”
From the time of independence in 1960 until the late 1980s, the Rwandan media
were essentially run by the government, a single-party oligarchy since the late 1970s!
The media consisted of a national radio, Radio Rwanda, and two weekly newspapers,
Imvaho and La Relve, all mediocre mouthpieces for the regime. In addition, organs
of the powerful Catholic Church published two newspapers, Kinyanateka and Dia-
logue. In 1987 a more provocative and iconoclastic journalism emerged in the form of
Kanguka (“Awake”), published by an individual close to President Juvenal Habyari-
mana and his family. Kanguka’s success led more extremist elements to create a new
publication. They took a similar name, Kangura, and assigned the direction of the
newspaper to the Gisenyi correspondent of Kanguka, Hassan Ngeze. The forces be-
hind Kangura were the akazu, a mafia from the northwest part of the country domi-
nated by the brothers-in-law of the president.
Kangura’s first issues came out early in 1990, and consisted principally of attacks
upon the rival Kanguka. Appearing more or less monthly, Kangura was to publish
fifty-nine issues by March 1994. Although the quality of the publication, from a
purely journalistic standpoint, was lamentable, it enjoyed enormous influence within
the country. Professor Jean-Pierre Chr6tien et al. have described Kangura as “le chef
de file de l’id6ologie de l’int6grisme hutu.”‘ From the outbreak of the civil war, in
October 1990, Kangura attacked the “the dominating spirit of extremist Tutsis’ pub-
lishing lists of Tutsis in prominent positions within Parliament, public administration,
and business to support its claims. In December 1990 Kangura issued the ‘Ten
Commandments of the Hutu”, Great Lakes Africa’s answer to the notorious “Proto-
cols of the Elders of Zion”. The ‘Ten Commandments” described the Tutsi as “thirsty
for blood and power, seeking to impose their hegemony over Rwanda by rifle and
cannon.” Tutsi were accused of using their two favourite weapons, “money and Tutsi
women”. Kangura warned that “every Hutu must know that Tutsi women, wherever
they are, work for their own ethnic group. Consequently, a Hutu who marries or lives
with a Tutsi woman, or who hires her as his secretary or assistant, was a traitor, every
Hutu should know that Tutsis are dishonest in business, and seek only the supremacy
of their ethnic group.” Kangura’s call for racial hatred was denounced, in February
1991, by the International Commission of Jurists. But when President Habyarimana
was confronted on the subject, in April 1991, he defended Kangura’s “freedom of ex-
pression”.
The Kangura model was emulated by other periodicals that began appearing in
1991. A new magazine, Umurava, was published under the direction of Janvier Af-
rika, with the complicity of the Habyarimana clique. Others include Ijisho rya
‘Much of this account in the following paragraphs is dravn from the seminal study of hate media in
Chrtien et aL, supra note 4 at 19-82.
9bi& at 32.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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rubanda, Ijambo, Umurwanashyaka, and L’Echo des mille collines. A bimonthly that
began publication in July 1991, Midaille Nyitamacibiri, denounced the Kigali hospi-
tal for employing too many Tutsi nurses. Intera magazine was another to publish the
“Ten Commandments of the Hutu”. In the first years of the 1990s, Rwanda’s print
media were awash with hateful invective and racist caricatures. But in a country
where the majority is illiterate, something more was needed.
The official radio station, Radio Rwanda, had always been a loyal organ of the re-
gime, faithfully disseminating propaganda glorifying the president and his entourage.
In December 1990 it underwent an important change when its director, Christophe
Mfizi, who had lost the confidence of the regime, was replaced by an extremist intel-
lectual, Ferdinand Nahimana. Nahimana used the radio to shamelessly manipulate
public opinion, experimenting with techniques that were to become part of the Intera-
hamwe arsenal during the 1994 genocide. For example, in March 1992 Radio Rwanda
broadcast a “scoop”, really a fraudulent document allegedly coming from the rebel
Rwandese Patriotic Front, containing a list of prominent Rwandan persons marked for
execution. The same month, Nahimana’s radio station played a significant role in in-
citing ethnic violence in the Bugesera region. Hundreds of Tutsis lost their lives in the
massacres.
When Ndiaye visited Rwanda in early 1993, the dangerous role of Radio Rwanda
and other extremist media was already apparent. He wrote:
The involvement of the media in spreading unfounded rumours and in exacer-
bating ethnic problems has been noted on repeated occasions. Radio Rwanda,
which is the only source of information for the majority of a poorly educated
population, and which is still under the direct control of the President, has
played a pernicious role in instigating several massacres. This is particularly
true of certain broadcasts in Kinyarwanda which differ markedly in content
from news programmes broadcast in French, which is understood only by a
small part of the population.”
April 1993 marked the creation of Radio-tdldvision libre des mille collines
(“RTLM”), destined to play a leading role in the genocide a year later.” The station’s
guiding spirit was Nahimana. It began broadcasting in July and operated as a kind of
electronic equivalent of Kangura, with which it had close ties. The tone began moder-
ately, but took a nakedly extremist bent in the aftermath of the putsch in Burundi in
October 1993. Following the airplane crash that killed President Habyarimana on 6
April 1994, signalling the beginning of the genocide, RTLM virtually coordinated the
actions of the Interahamwe militia. On 7 April, the day after the crash, RTLM incited
,0Ndiaye, supra note 3 at para. 56.
,J.F Metzl, “Rwandan Genocide and the International Law of Radio Jamming” (1997) 91 A.J..L.
628 at 630-33.
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
people to eliminate the “Tutsi cockroach”,” blaming the crash on the Rwandese Patri-
otic Front as well as the United Nations peacekeeping mission. During the genocide,
its message was unmistakable:
Nous les combattrons et nous les vaincrons, cela est plus qu’une certitude,
tout doute est impossible et s’ils ne font pas attention, ils seront exterminds,
parce que moi je l’ai vu. Une famille menaeo de disparition… nonnalement,
dans la culture rwandaise… mais que faire puisque les inkotanyi ne compren-
nent pas le kinyarwanda et que ceux qui devraient les rappeler ar la sagesse
s’avhent de mauvais conseillers ! Its ne comprernent done rich, Us ne se d-
partissent pas de leur ent&emenL.. mais dans la culture rwandalse, une famille
en voje d’extinction tire habituellement ses flMches en profitant de la protection
d’un talus… afin qu’en cas d’extrEme n~cessit6 cie s’y abrite… Je crois bien
que ce proverbe est facile 4t comprendre…
La famille en vole d’extinction au Rwanda, c’est done laquelle ? Ce sont
les inkotani. Parce que c’est une clique qui est issue d’un petit groupe do la
population… qu’on nomme les Tutsi. Les Tutsi sont tr~s pu nombreux.
D’ailleurs, mame si, en termes de pourcentage, nous les consid~rons comme
representant 10 %, cette guerre a probablement, peut-afe 2 %… cie a enlevd 2
%… alors ils ne reprsentent plus que 8 %… Mais done ! Ces gens vont-ils con-
tinuer a se suicider, Ar engager une bataille suicidaire contre un group nom-
breux, ne vont-ils pas vraiment &re extermin~s ?V
As the genocide continued, RTLM broadcast the following early in July:
Mais done ! Et ces inkotanyi qui me tlphonaient, oii sont-ils alms ?
Hein? Ah ! ils doivent sirement avoir &6 oxtermins… ils doivent avoir W
extermins… chantons done …
Rjouissons-nous, amis ! Los inkotanyi ont W, extermin~s ! Rjouissons-
nous, amis ! Dieu ne peut jamais 8tre injuste !”… ces criminels… sans aucun
doute, is seront extermins… moi j’ai bien vu les cadavres diendus lM-bas ar
Nyamirambo… Quand l’on observe cela attentivement, on se demande : “ces
gens, Us sont de queUe race T’
Mais tant pis, continuons. Serrons les ceinturos et extenminons-les (… et
quo nos enfants, nos petits-enfants et les enfants de nos petits-enfants
n’entendent plus jamais ce qu’on appelle inkotanyi !”
RTLM also played a key role in provoking the refugee flows that characterized
the final stages of the crisis, in July 1994. Its inflammatory broadcasts set off panic
among the Hutu population, who fled to neighbouring Zaire, where they remained for
more than two years. Even after the fall of the regime, on 17 July 1994, RT.LM con-
2 B. Boutros-Ghali, “Introduction” in The United Nations and Rwanda, 1993-1996 (New YorL- UN
Department of Public Information, 1996) 1 at para. 104.
‘3 Chr6ien et aL, supra note 4 at 80.
14/bid atS1.
‘ Boutros-Ghali, supra note 12 at para. 162.
148
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
tinued to broadcast, using mobile communications equipment. It told Hutus who had
left Rwanda that they would be massacred by the new government if they remained in
the country.’6
While the genocide was taking place, United States-based NGOs called upon
their government to jam the airwaves and prevent RTLM from broadcasting. At a
hearing of the Subcommittee on Africa of the House Committee on Foreign Affairs,
George Moose, assistant secretary of state for African affairs, said:
One of the things we were looking at very seriously over the weekend was
whether we could and should deploy assets of our own to try to shut down or
block out the transmissions of that radio station [RTLM]. The latest informa-
tion that we have from our intelligence people is that over the last week, those
broadcasts, those virulent broadcasts have ceased.’7
The intelligence sources were in error, of course, and RTLM continued to operate for
more than two months. There was considerable hesitation in Washington about the
idea of jamming RTLM. State Department lawyers believed such action would be
contrary to international law.” From a policy standpoint, they were concerned about
the survival of Florida-based radio stations broadcasting into Cuba and were fearful of
setting a precedent. General Romdo Dallaire, commander of the United Nations
peacekeeping contingent in Rwanda, said later that had RTLM been stopped, “[M]any
lives might have been spared.”‘
In Prosecutor v. Kambanda, the International Criminal Tribunal for Rwanda fo-
cussed on the accused’s role in RTLM:
… Jean Kambanda acknowledges the use of the media as part of the plan to
mobilize and incite the population to commit massacres of the civilian Tutsi
population …
(vii) Jean Kambanda acknowledges that, on or about 21 June 1994, in his
capacity as Prime Minister, he gave clear support to Radio Television Libre
des Mille Collines (RTLM), with the knowledge that it was a radio station
whose broadcasts incited killing, the commission of serious bodily or
mental harm to, and persecution of Tutsi and moderate Hutu. On this occa-
sion, speaking on this radio station, Jean Kambanda, as Prime Minister, cn-
couraged the RTLM to continue to incite the massacres of the Tutsi civilian
“1Ibid at para. 226.
‘” The Crisis in Rwanda: Hearings before the Subconin on Aft of the House Comm. on Foreign
Affairs, 103d Cong. (4 May 1994) at 15 (statement of George Moose, Assistant Secretary of State for
Afr. Affairs).
“Metzl, supra note 11 at 636.
“E. Broadbent, “Media, Even in the West, Partly to Blame for Rwanda Massacres” The [Montreal]
Gazette (3 May 1995) B3.
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
population, specifically stating that this radio station vs [“]Aan [sic] in-
dispensable weapon in the fight against the enemy.””
In the months prior to the Rwandan genocide, General Romeo Dallaire detected
secret preparations and informed the United Nations Secretariat, but to no avail. Dal-
laire was aware of arms shipments and of the preparation of lists of Tutsi who were to
be murdered. The indifference of United Nations headquarters to his warnings is a
story for another paper.-” But well before Dallaire learned of the logistics of the geno-
cide, its preparation had been well advanced for all who cared to read the signals from
Kangura and RTLM. Dallaire had called for action to block the physical preparations
of the genocide. Action ought to have been taken much earlier, to prevent incitement
to genocide, declared an international crime by the Genocide Convention.”
II. Application of the Genocide Convention
Article I(c) of the Genocide Convention prohibits “direct and public incitement”
to commit genocide. It is one of four “other acts” (conspiracy, attempt, complicity)
declared to be punishable. In specifying a distinct act of “direct and public incite-
menf’, the drafters of the Genocide Convention sought to create an autonomous in-
fraction, one that, like conspiracy, is an inchoate crime, in that the prosecution need
not make proof of any result. It is sufficient to establish that the act of direct and pub-
lic incitement took place, that the direct and public incitement was intentional, and
that it was carried out with the intent to destroy in whole or in part a protected group
as such. The crime of incitement butts against the right to freedom of expression, and
the conflict between these two concepts has informed the entire debate on the subject.
A. Drafting History
The original Draft Convention on the Crime of Genocide prepared by the secre-
tary-general of the United Nations stated:
The following shall likewise be punishable…
2. direct public incitement to any act of genocide, whether the incitement
be successful or not.’
(1998), Case no. ICTR-97-23-S (International Criminal Tribunal for Rwanda), 37 LL.M. 1411 at
para. 39, online: International Criminal Tribunal for Rwanda
July 2000) [hereinafter Kanbanda].
21 On the behaviour of the Security Council in the first weeks of the Rindan genocide, see L Mel-
vera, “Genocide behind the Thin Blue Line” (1997) 28 Security Dialogue 333.
22Supra note 2, art. 11(c).
UN ESCOR, UN Doc. E/447 (1947), art. II(II)
[hereinafter Draft Genocide Com’ention].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
This text was located in a more general section dealing with criminal participation.
The commentary prepared by the Secretariat to accompany the draft provided some
insight into the meaning that was intended by “direct public incitement”:
This does not mean orders or instructions by officials to their subordinates, or
by the heads of an organization to its members, which are covered by the “pre-
paratory acts” referred to above.
It refers to direct appeals to the public by means of speeches, radio or press,
inciting it to genocide.
Such appeals may be part of an agreed plan but they may simply reflect a
purely personal initiative on the part of the speaker. Even in the latter case,
public incitement should be punished. It may well happen that the lightly or
imprudently spoken word of a journalist or speaker himself incapable of doing
what he advises will be taken seriously by some of his audience who will re-
gard it as their duty to act on his recommendation. Judges will have to weigh
the circumstances and show greater or lesser severity according to the position
of the criminal and his authority, according to whether his incitement is pre-
meditated or merely represents thoughtless words.!
Predictably, the United States, with its strong judicial and political commitment to
freedom of expression, was opposed to such a provision: “Under Anglo-American
rules of law the right of free speech is not to be interfered with unless there is a clear
and present danger that the utterance might interfere with a right of others.”‘ The
United States proposed that the provision on “incitement” be qualified to this effect.26
Subsequently the United States put forward an alternative text: “Direct and public in-
citement of any person or persons to any act of genocide, whether the incitement be
successful or not, when such incitement takes place under circumstances which may
‘ The Soviet Union, which
reasonably result in the commission of acts of genocide:’
enthusiastically supported the concept of prosecution for incitement, insisted on this
point in its Basic Principles of a Convention on Genocide,2′ prepared to orient debate
in the Ad Hoc Committee on Genocide, a body created in early 1948 to review the
Draft Genocide Convention in light of comments from member states.
2,Ibid. at 30-31.
23 Prevention and Punishment of Genocide: Comments by Governments on the Draft Convention
Prepared by the Secretariat, UN ESCOR, UN Doc. E/623 (1948) at 14.
26 ibid.
21Ibid. at 36.
2 UN ESCOR, UN Doc. E/AC.257 (1948) [hereinafter Basic Principles]. The U.S.S.R.’s document
stated the following:
V. The convention should establish the penal character, on equal terms with genocide,
of:…
2. Direct public incitement to commit genocide, regardless of whether such in-
citement had criminal consequences (ibid.).
2000]
WA. SCHABAS – THE ROAD TO GENOCIDE
Initially the Ad Hoc Committee adopted the Soviet principle dealing with crimi-
nalization of incitement, whether successful or not, without difficulty. It noted the un-
ease of the United States with any measures that might restrict freedom of expres-
sion.’ Then the committee turned to draft articles prepared by China, which it had
agreed would form the basis of the debate. The Chinese texts were ambiguous, as they
only implied that incitement was an inchoate crime. In effect, incitement was listed in
the same sentence with two other similar types of infractions, conspiracy and at-
tempt. -‘ It was agreed that such acts of genocide be enumerated in a distinct article of
the convention,” proposed by China as follows: “Conspiring, attempting, or inciting
people to commit genocide shall be punishable ” ‘ France suggested adding the word
“direct before “incitement’, but the vote was an indecisive three to three, with one
abstention.” The committee voted again on the question-this time the word was “di-
rectly”-and it was so agreed, by three to two.’ Then Venezuela wanted to add “pub-
licly or privately” after the word “directly”, and this was accepted.” Venezuela had
pointed out that the addition of “publicly or privately” would obviate the need for
further particulars such as “press, radio, etc.”‘ At no point was there any discussion or
suggestion about what “direct’ or “public” might mean. Finally, Venezuela proposed
adding “whether the incitement be successful or not”, stressing that the convention
aimed not only at punishing but also at preventing genocide.” France and Lebanon
said this was unnecessary, and the United States agreed. But the Venezuelan proposal
was adopted.’ The final text agreed to by the Ad Hoc Committee read:
The following acts shall be punishable…
(4) direct public or private incitement to commit the crime of genocide
whether such incitement be successful or not.
Ad Hoc Committee on Genocide, 6th Mtg., UN ESCOR, UN Doe. EJAC.25/SR.6 (1948) at 2
[hereinafter Ad Hoc Committee 6th Mtg.].
” Draft Articles for the Inclusion in the Convention on Genocide Proposed by tie Delegation of
China on 16April 1948, UN ESCOR, UN Doe. E/AC.25/9: “It shall be illegal to conspire, attempt, or
incite persons, to commit acts enumerated in 1, 2, and 3” (art 1).
“Ad Hoc Committee on Genocide, 15th Mtg., UN ESCOR, UN Doe. EIAC.25/SR.15 (1948) at 1.
’21bid at 2.
33Ibid at 3. There were similar suggestions from Venezuela (“direct private and public incitement”)
and the Soviet Union (“direct” and “indirect” before “incite”) (ibid.).
“‘Ad Hoc Committee on Genocide, 16th Mtg., UN ESCOR, UN Doe. EIAC.25/SR.16 (1948) at I
[hereinafterAd Hoc Committee 16th Mtg.].
35″bid at 2 (five in favour, two abstentions).
-I Ibid (M Perez-Perozo, Venezuela).
“Ibid at3.
“Ibid. (four in favour, three abstentions).
Ibid at 12 (six in favour, one against); Ad Hoc Committee on Genocide, 17th Mtg., UN ESCOR,
UN Doe. E/AC.251SR.17 (1948) at 9.
152
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The Sixth Committee of the General Assembly spent most of October and No-
vember 1948 revising the Ad Hoc Committee’s draft of the convention. There the
United States took a more aggressive position, contesting entirely any reference to in-
citement as an inchoate offence in the convention. Amendments proposed by the
United States” and Iran4′ called for the deletion of this provision. The United States
argued that incitement was “too remote” from the real crime of genocide. “Even with
regard to preventive measures, it should be borne in mind that direct incitement, such
as would result in the immediate commission of the crime, was in general merely one
aspect of an attempt or overt act of conspiracy,” said the United States. As in the
meetings of the Ad Hoc Committee, the heart of the United States’ objection was that
criminalization of incitement might endanger freedom of the press:
If it were admitted that incitement was an act of genocide, any newspaper arti-
cle criticizing a political group, for example, or suggesting certain measures
with regard to such group for the general welfare, might make it possible for
certain States to claim that a Government which allowed the publication of
such an article was committing an act of genocide; and yet that article might be
nothing more than the mere exercise of the right of freedom of the Press.42
The United States was supported by the United Kingdom. Gerald Fitzmaurice ar-
gued that it was unlikely that incitement would not lead to conspiracy, attempt, or
complicity, and that these were already covered by the draft convention. It was there-
fore unnecessary to criminalize incitement, and preferable to delete the provision, “so
as to avoid giving anyone the slightest pretext to interfere with freedom of opinion
… … The United States was also backed by some Latin American states, specifically
Chile,” the Dominican Republic,” and Brazil. Brazil noted that propaganda which en-
couraged political and racial hatred, and incitement to war, was condemned in its con-
stitution, but it was nervous that such a phrase in a treaty would lead to unjust accusa-
tions in respect of political propaganda.” Belgium, which was to propose a compro-
mise formulation, indicated that it also preferred the provision to be deleted and
would vote in favour of the American amendment.47
‘0 United States of America: amendments to the draft convention on genocide (E1794), UN GAOR,
41 Iran: amendments to the draft convention on genocide (E1794) and draft resolution, UN GAOR,
Sixth Committee, 3d Sess., UN Doc. A/C.6/214 (1948) at 16.
Sixth Committee, 3d Sess., UN Doc. A/C.6/218 (1948) at 20.
41 UN GAOR, Sixth Committee, 3d Sess., 84th Mtg., UN Doc. A/C.6/SR.84 (1948) at 213 (Mr.
Maktos, United States) [hereinafter 84th Mtg.].
‘3Ibid. at 218 (Mr. Fitzmaurice, United Kingdom).
“Ibid. at 217 (Mr. Arancibia Lazo, Chile).
“UN GAOR, Sixth Committee, 3d Sess., 85th Mtg., UN Doc. A/C.6/SR.85 (1948) at 226-27 (Mr.
Messina, Dominican Republic) [hereinafter 85th Mtg.].
84th Mtg., supra note 42 at 217-18 (Mr. Guerreiro, Brazil).
“Ibid. at 215-16 (Mr. Kaeckenbeeck, Belgium).
2000]
WA. ScHABAS – THE ROAD TO GENOCIDE
153
Arguing for the contested provision, Manfred Lachs of Poland insisted that pre-
vention was also the goal of the convention, and that freedom of the press “must not
be so great as to permit the Press to engage in incitement to genocide:” Venezuela,
too, insisted that the purpose of the convention was to prevent and not only to punish
genocide.’ The Philippines too favoured the provision and challenged the United
States on the issue of freedom of the press with an innovative and somewhat provoca-
tive argument. The representative explained that in the Philippines, criminalization of
incitement had been judged compatible with freedom of expression:
The Philippine law on sedition and rebellion dated back to the period of United
States rule and United States legislators had in large measure been responsible
for it. The Supreme Court of the Philippines, speaking through United States
judges and later through national judges, had always declared that the outlaw-
ing of incitement to those crimes did not endanger freedom of speech or of the
Press, and had cited decisions of the Federal Supreme Court or other supreme
courts of the United States as well as the political writings of Filipino statesmen
prior to the United States regime, in which a distinction had been drawn be-
tween liberty and licence.’
Other delegations upholding retention of the provision included France, Haiti, Aus-
tralia, Yugoslavia, Sweden, Cuba, Denmark, the Soviet Union, Uruguay (subject to
clarification of the words “in private”), and Egypt!’
Several delegations, however, while supporting the incitement provision, had ex-
pressed concerns about the scope of the text proposed by the Ad Hoc Committee.
Belgium urged a “happy compromise”, deleting the phrase “or in private”.” Arguing
in support of striking incitement, Iran stated that “incitement in private could have no
influence on the perpetration of the crime of genocide; it therefore presented no dan-
ger … ,3 But Venezuela had argued that “[i]ncitement could be carried out in public,
but it could also take place in private, through individual consultation, by letter or
even by telephone. It was necessary to punish both forms of incitement “‘ The com-
mittee voted to delete the words “or in private”‘5
Thi d at 215 (Mr. Lachs, Poland). See also ibid at 219-20 (Mr. Morozov, Soviet Union); 85th
Mtg., supra note 45 at 221 (M Zourek, Czechoslovakia).
84th Mtg., supra note 42 at 208 (Mr. Pdrez Perozo, Venezuela).
85th Mtg., supra note 45 at 223 (Mr. Ingles, Philippines).
5’ 84th Mtg., supra note 42; 85th Mtg., ibid.
Belgium: amendments to the draft convention on genocide (E/794), UN GAOR, Sixth Committee,
3d Sess., UN Doc. AIC.6/217 (1948) [hereinafter Belgian Amendmeni. See also 84th Mtg, supra
note 42 at 215-16 (Mr. Kaeckenbeeck, Belgium).
5
-1 84th Mtg., ibid at 214 (Mr Abdoh, Iran).
Ibid at 208 (Mr. Prez Perozo, Venezuela).
55 85th Mtg., supra note 45 at 230 (twenty-six in favour, six against, ten abstentions).
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Belgium also proposed deletion of the phrase “whether such incitement be suc-
cessful or not”‘ Belgium said this “would allow the legislature of each country to de-
cide, in accordance with its own laws on incitement, whether incitement to commit
genocide had to be successful in order to be punishable:”‘ But, as other delegations
quite correctly argued, if this were the case, the provision would be superfluous; in-
citement, if successful, becomes a form of complicity, already covered by paragraph
(e) of the same article. 8 On a roll call vote, deletion of the words “whether such in-
citement be successful or not” was approved by nineteen votes to twelve, with four-
teen abstentions.” After the separate votes to delete “in private” and “whether such in-
citement be successful or not”, the Belgian amendment was adopted.’ The American
amendment, aimed at simply deleting the provision dealing with incitement, was de-
feated on a roll call vote.” This loss of the debate about “incitement” was a major de-
feat for the United States,’ and the United States declared that it reserved its position
on the subject of incitement to commit genocide.’ A few days later, when the entire
56 Belgian Amendment, supra note 52. See also 85th Mtg., ibid. at 220 (Mr. Kaeckenbeeck, Bel-
85th Mtg., ibid at 220 (fr. Kaeckenbeeck, Belgium).
58 84th Mtg., supra note 42 at 214 (Mr. Abdoh, Iran); 85th Mtg., ibid. at 220 (Mr. Manini y Rfos,
gium).
Uruguay).
” 85th Mtg., ibid. at 231-32 (in favour. Argentina, Australia, Belgium, Brazil, Canada, Chile, China,
Cuba, Ecuador, Greece, India, Iran, Luxembourg, Mexico, Panama, Siam, Turkey, Union of South
Africa, Uruguay; against: Byelorussian Soviet Socialist Republic, Czechoslovakia, France, Haiti,
Norway, Peru, Philippines, Poland, Ukrainian Soviet Socialist Republic, Soviet Union, Venezuela,
Yugoslavia; abstaining: Afghanistan, Bolivia, Burma, Denmark, Dominican Republic, Egypt, Ethio-
pia, Nicaragua, Saudi Arabia, Sweden, Syria, United Kingdom, United States, Yemen).
60 IN& at 233 (twenty-four in favour, twelve against, eight abstentions).
61 Ibid. at 229 (sixteen in favour, twenty-seven against, five abstentions; in favour. Belgium, Bolivia,
Brazil, Canada, Chile, Dominican Republic, Iran, Luxembourg, Netherlands, New Zealand, Nicam-
gua, Panama, Turkey, Union of South Africa, United States; against: Argentina, Australia, Byelorus-
sian Soviet Socialist Republic, China, Columbia, Cuba, Czechoslovakia, Denmark, Ecuador, Egypt,
Ethiopia, France, Haiti, India, Liberia, Mexico, Norway, Peru, Philippines, Poland, Sweden, Ukrain-
ian Soviet Socialist Republic, Soviet Union, Uruguay, Venezuela, Yemen, Yugoslavia; abstaining: Af-
ghanistan, Greece, Saudi Arabia, Siam, Syria).
The Canadian delegate to the Sixth Committee observed, in a dispatch sent to Ottawa:
The battle lines are the usual ones-the Soviet bloc arrayed against the rest of the
world, although on occasion the United States delegate, who is leading the debate for
“the West”, has failed to convince the Latin Americans, Arabs et al of the cogency of
his arguments. He did succeed in having “political” added to the “national”, “mcial”
and “religious” groups protected against genocide. However, he failed in his insistence
that freedom of the press would be threatened by describing “incitement” to genocide
as a crime (“Progress Report on Committee 111, November 1, 1948, despatch by R.G.
Riddell to Escott Reid” National Archives of Canada, RG 25, Vol. 3699, File 5475-
DG-2-40).
685th Mtg., supra note 45 at 229 (Mr. Maktos, United States).
2000]
W.A. ScHABAs – THE ROAD TO GNOciDE
article was being voted, the United States explained that it abstained “because incite-
ment appeared in the list of punishable acts: ‘
B. Incitement in Other Instruments
Although the Genocide Convention is the principal source of law on the subject,
four other international instruments also contemplate prosecution for the crime, as
well as for “direct and public incitement”. There are, however, some subtle but sig-
nificant differences in the incitement provisions of these other instruments, the Inter-
national Law Commission’s Draft Code of Crimes Against the Peace and Security of
Mankind,” the Statute of the International Criminal Court,’ and the statutes of the ad
hoe tribunals for the former Yugoslavia and RwandaY
In the latter stages of its work on the Code of Crimes, the International Law
Commission debated whether to recognize a distinct offence of incitement to geno-
cide, one that would not require that the predicate crime of genocide itself be com-
mitted. Contemporary events in Rwanda and Burundi undoubtedly coloured its as-
sessment, and underlined the importance of addressing the crime of incitement.C One
of the members of the commission, Salifou Fomba of Mali, had been a member of the
commission appointed by the Security Council in 1994 to investigate the Rwandan
genocide, and he regularly reminded delegates of the significance of repressing in-
citement. During the debates, Yamada of Japan made the rather bizarre observation
that his country had not acceded to the Genocide Convention because in Japan, “[iln
order not to encroach on freedom of expression, ‘incitement’ was rarely cited … and
only in the most serious cases,” as if genocide was not a serious case.” In the end, the
International Law Commission only provided for a general offence of direct and pub-
lic incitement, applicable to all crimes in the Code of Crimes, including genocide,
specifying that this applied to inciting a crime that “in fact occurs”. ‘ The report of the
commission revealed a serious misunderstanding, because the commission cited arti-
cle I(c) of the Genocide Convention as the raison d’atre of the provision. Yet by
6, UN GAOR, Sixth Committee, 3d Sess., 91st Mtg., UN Doc. A/C.6ISR.91 (1948) at 301 (r.
Maktos, United States).
‘”Report of the International Law Commission on the Work of Its Forty-Eighth Session (6 May-26
July 1996)” in Yearbook.. 1996, vol. H (Part Tvo) 15, UN Doec. A/5110 [hereinafter Code of
Crines].
6July 1998, UN Doe. AICONF.183/9, 37 I.L.M,. 999 (not entered into force) [hereinafter Rome
Statute].
“Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, 3217th
Mtg., UN Doc. S/RES/827 (1993); Statute of the International Criminal Tribunal for Rivanda, SC
Res. 955, 3453d Mtg., UN Doe. SIRES1955 (1994) [hereinafter ICTR Statute].
6 “Report of the International Law Commission on the Work of its Forty-Seventh Session (2 May-
21 July 1995)” in Yearbook.. 1995, voL I (Part Tlvo) 1 at para. 80, UN Doe. A/50110.
“Yearbook.. 1995, voL L 2383d Mtg. (11 May 1995) at 29.
Code of Crimes, supra note 65, art 2(3)(1. See also Commentary in ibid. at 22.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
making incitement dependent on the occurrence of the crime, the commission obvi-
ously departed from the spirit of article 11(c). In any case, the commission’s special
provision for direct and public incitement is totally redundant, because in article
2(3)(d) of the Code of Crimes, the same code, it creates an offence of “abetting”,
which is the same thing as incitement when the underlying crime occurs. The com-
mission did not seem to understand the meaning of the term “abetting”, describing it
as “provid[ing] assistance”.” In fact, it also connotes encouragement or incitement to
commit a crime.’ Like much common law terminology, it is derived from old French,
b beter, meaning to bait or to excite.
The Rome Statute specifically provides for the inchoate crime of direct and public
incitement to commit genocide, faithfully reflecting the Genocide Convention on this
point. There were unsuccessful efforts during the drafting of the statute to enlarge the
inchoate offence of incitement so as to cover the other core crimes, but the same ar-
guments that had been made in 1948, essentially based on the sanctity of freedom of
expression, resurfaced.” The Working Group on General Principles at the Rome Con-
ference rejected suggestions that incitement to commit genocide be included in the
definition of the offence, and instead incorporated it within a general provision appli-
cable to all crimes within the subject matter jurisdiction of the statute, but with the
proviso that direct and public incitement concerned only genocide and thus could not
be extended to war crimes, crimes against humanity, and aggression.”
Within the statutes of the ad hoc tribunals, direct and public incitement is also in-
corporated by virtue of the inclusion of the text of article m1 of the Genocide Conven-
tion within the definition of genocide. The complex drafting of the statutes means that
“instigating” and “abetting”, which are equivalent to incitement, are also criminalized
“‘ Ibid. at 21.
72Black’s Law Dictionary, 7th ed., s.v. “abet”.
7″Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21 Febneary 1997,
UN Doc. A/AC.249/1997/L.5 (1997), Annex I at 22; Report of the Inter-Sessional Meeting From 19
to 30 January 1998 held in Zutphen, The Netherlands, UN Doc. A/AC.249/1998/L.13 (1998) at 54,
reprinted in M. Cherif Bassiouni, ed., The Statute of the International Criminal Court: A Docutmen-
tary History (Ardsley, NY: Transnational Publishers, 1998) 221; Report of the Preparatory Committee
on the Establishment of an International Criminal Court, Draft Statute & Draft Final Act, UN Doc.
A/CONF.183/2/ADD.1 (1998) at 50, reprinted in Bassiouni, ibid., 119.
“‘Report of the Working Group on General Principles of Criminal Law, UN Doe.
A/CONF183/C.1IWGGP/L.4 (18 June 1998) at 3, adopted unchanged in the final version, Draft Stat-
ute for the International Criminal Court, UN Doc. A/CONF.183/C.1/L.76/Add.3 at 2 (16 July 1998).
Yet misunderstanding and confusion about the nature of the provision persists. The proposed “Ele-
ments of Crimes” submitted by the delegation of the United States to the first session of the court’s
Preparatory Commission presents direct and public incitement to genocide as requiring a result, even
though the title of the document refers to inchoate crimes. The document requires “[t]hat the accused
committed a public act that had the direct effect of causing one or more persons to commit the crime
of genocide in question” (Proposal Submitted by the United States: Draft Elements of Crimes, UN
Doc. PCNICC/1999/DP.4/Add.3 at 3 (4 February 1999)).
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W.A. SCHABAS – THE RoAD TO GENOCIDE
in the general provision dealing with individual responsibility. There have been no in-
dictments by the prosecutor of the International Criminal Tribunal for the Former
Yugoslavia for direct and public incitement to commit genocide. In the case of the
Rwanda tribunal, there have been not only several indictments charging direct and
public incitement, but also two convictions on this charge, those of Jean Paul Akayesu
and Jean Kambanda.
C. Judicial Interpretation
In the Akayesu judgment of 2 September 1998, the Trial Chamber of the Rwanda
tribunal observed that the drafters of the Genocide Convention had emphasized the
importance of addressing incitement to genocide because of its critical role in the
planning of genocide. The Trial Chamber embarked upon a lengthy and somewhat
confused discussion of the question of incitement, in which the distinction between
inchoate incitement, where the crime is incomplete or unsuccessful, and complicity
incitement, where genocide actually takes place, often seemed blurred. The Trial
Chamber expressed concern that the drafters of the Genocide Convention omitted an
explicit statement that direct and public incitement would be punishable whether or
not the incitement was successful. The tribunal agreed that direct and public incite-
ment is an inchoate offence. ‘ Like many aspects of genocide law considered in the
judgment, the tribunal’s discussion of the question of unsuccessful incitement was
really obiter dictum because Akayesu’s exhortation to the local population was in fact
shown to be successful. With respect to incitement to genocide, this consisted princi-
pally of an inflammatory speech delivered during the night of 18-19 April 1994 be-
fore a considerable crowd that included members of the racist militia known as In-
terahamwe. Because the speech was followed by killings and other acts of violence, it
can also be qualified as complicity, set out in article 2(3)(e) of the ICTR Statute (cor-
responding to article 11(e) of the Genocide Comention), as well as abetting, which is
listed in article 6(1) of the statute. Similarly, the tribunal also convicted Jean Kam-
banda of direct and public incitement to commit genocide, but for the same reasons he
could have been charged and convicted, instead, of complicity or abetting.”
The only other judicial finding of direct and public incitement was made by the
Canadian Immigration and Refugee Board in the case of Leon Mugesera, the Rwan-
dan-extremist whose- public speech on 22 November 1992 called upon supporters to
massacre Tutsis. Mugesera fled Rwanda in 1993 and obtained refugee and permanent
resident status within Canada. He could not be tried by the Rwanda tribunal because
the alleged crime took place well prior to 1 January 1994, the starting date of the ra-
TAkayesu, supra note 6 at paras. 560-62.
76Kambanda, supra note 20. Other indictments alleging direct and public incitement to genocide
are pending. See L.S. Sunga, “rhe Fst Indictments of the International Criminal Tribunal for
Rwanda” (1997) 18 H.R.LJ. 329.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
tionae temporis jurisdiction of the tribunal.” Under Canadian law, however, he could
be stripped of his right to remain in Canada if it could be established that he had
committed crimes against humanity or war crimes. In a decision of 11 July 1996, Pi-
erre Turmel, adjudicator of the Immigration and Refugee Board, wrote:
In my analysis of the testimony and the documentary evidence, I found that
in my opinion Mr Mugesera made a speech which incited people to drive out
and to murder the Tutsi. It is also established that murders of Tutsis were in fact
committed, and, on the basis of probabilities, resulted from the call for murder
thrown out by Mr. Mugesera in his speech. The Tutsi, beyond a shadow of a
doubt, form an identifiable group of persons. They constituted an identified
group and they were a systematic and widespread target of the crime of murder.
The counselling or invitation thus issued to his audience establishes personal
participation in the offence. In addition, I find that this participation was con-
scious, having regard to Mr. Mugesem’s social standing and privileged position.
Mr. Mugesera’s writings and statements clearly attest to the conscious nature of
this participation. I would add that this counselling was consistent with the pol-
icy advocated by the MRND [political party of former president Habyarimana,
of which Mugesem was a member], as established by the evidence.
Having regard to the socio-political context which prevailed at the time in
question, the assassination of members of this identifiable group constituted in
my opinion a crime against humanity within the meaning of subsection 7(3.76)
of the Criminal Code, all of the physical and mental elements of which are pre-
sent. Did this crime constitute a contravention of customary international law or
conventional international law in Rwanda at the time it was committed? …
In my opinion, the speech made by Mr. Mugesera constitutes a contraven-
tion of these provisions of the Convention, in that it is a direct and public in-
citement to commit genocide.78
Here too there is some confusion about the ambit of article 111(c) of the Genocide
Convention. Because Adjudicator Turmel concluded that killings had indeed resulted
from the Mugesera speech, he might have found him responsible for complicity in
genocide. Perhaps, however, he considered that the killings, which occurred in De-
cember 1992 and January 1993 and concerned relatively small numbers of victims,
did not constitute full-blown genocide, in which case article IIm(c) is indeed the appli-
cable provision. The resulting massacres were relevant, nevertheless, in proving that
the speech constituted genuine incitement and that it was not, as Mugesera claimed, a
harmless political diatribe.
In Akayesu, the Rwanda tribunal drew upon comparative law sources to interpret
the term “incitement”. Under the common law, it involves “encouraging or persuading
” Tribunal prosecutors examined whether Mugesera could be charged because his speech could be
deemed to have had effects during 1994, but wisely decided that this argument would be difficult to
sustain.
7
1 Mugesera (I.R.B.), supra note 5.
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
another to commit an offence.”‘ Both Romano-Germanic law and the common law
consider that incitement may consist of threats or other forms of pressure. The tribu-
nal associated the notion of “direct and public incitement’ with the crime of provoca-
tion in Romano-Germanic penal codes. The tribunal noted that the French penal code
defines provocation as follows:
Anyone, who whether through speeches, shouting or threats uttered
in public places or at public gatherings or through the sale or dis-
semination, offer for sale or display of written material, printed
natter drawings, sketches, paintings, emblems, images or any other
written or spoken medium or image in public places or at public
gatherings, or through the public display of placards or posters, or
through any other means of audiovisual communication
shall have directly provoked the perpetrator(s) to commit a crime or misdemean-
our, shall be punished as an accomplice to such a crime or misdemeanour.”
The incitement must of course be intentional. As the Rwanda tribunal noted,
The nzens rea required for the crime of direct and public incitement to commit
genocide lies in the intent to directly prompt or provoke another to commit
genocide. It implies a desire on the part of the perpetrator to create by his ac-
tions a particular state of mind necessary to commit such a crime in the minds
of the person(s) he is so engaging!’
Here the tribunal confirmed that the mens rea of one of the “other acts” of genocide
defined in article III necessarily involves the specific intent of the crime of genocide
as set out in article H of the Genocide Comention.
The crime of direct and public incitement to commit genocide is recognized in
many domestic legal systems that have incorporated the crime of genocide within
their criminal law. Canada, for example, decided that it did not need to amend its
criminal law to punish genocide as such, but was aware that the “other act” of direct
and public incitement would not fall under its ordinary criminal law provision dealing
with incitement. As a result, a specific offence of inciting genocide was enacted.f- Ja-
maica reached a similar conclusion, and amended its legislation accordingly’
Akayesu, supra note 6 at para. 555. The tribunal cited Professor Andrew Ashworth: “[Slomeone
who instigates or encourages another person to commit an offence should be liable to conviction for
those acts of incitement, both because he is culpable for trying to cause a crime and because such li-
ability is a step towards crime prevention” (A. Ashworth, Principles of Criminal Law, 2d ed. (Oxford:
Clarendon Press, 1995) at 462).
8’Akayesu, ibit, n. 124; the tribunal provided an unofficial translation.
“!bid at par. 560.
Crindnal Code, R1S.C. 1985, c. C-46, s. 318(1):
318. (1) Every one who advocates or promotes genocide is guilty of an indictable of-
fence and liable to imprisonment for a term not exceeding five years.
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D. Meaning of “Direct”and “Public”
The travauxpriparatoires give little guidance as to the scope of the words “direct
and public”, although clearly these terms were the technique by which the drafters
meant to limit the scope of any offence of inchoate incitement. The word “public” is
the less difficult of the two terms to interpret.” Public incitement, according to the In-
ternational Law Commission, “requires communicating the call for criminal action to
a number of individuals in a public place or to members of the general public at
large:”‘ Referring to the use of means of mass communication to incite genocide in
Rwanda, the commission considered that the incitement could occur in a public place
or by technological means of mass communication, such as by radio or television:
‘This public appeal for criminal action increases the likelihood that at least one indi-
vidual will respond to the appeal and, moreover, encourages the kind of ‘mob vio-
lence’ in which a number of individuals engage in criminal conduct:”‘ It added that
private incitement to commit a crime would be covered by the principle of individual
criminal responsibility relating to individuals jointly planning or conspiring to commit
a crime, but in that case, proof that the incitement had succeeded and that there was a
causal link with the crime of genocide itself would be required.” The Rwanda tribu-
nal, citing French case law, said that words are public where they are spoken aloud in
a place that is public by definition.”
The problem with the requirement that incitement be “direct” is that history
shows that those who attempt to incite genocide speak in euphemisms. It would surely
be contrary to the intent of the drafters to view such coded language as being insuffi-
ciently direct. According to the International Law Commission, “The element of di-
rect incitement requires specifically urging another individual to take immediate
criminal action rather than merely making a vague or indirect suggestion “‘ United
States legislators took a somewhat different approach, declaring that it means urging
another “to engage imminently in conduct in circumstances under which there is a
See also Canada, Report to the Minister of Justice of the Special Connittee on Hate Propaganda in
Canada (Ottawa: Queen’s Printer, 1966) at 62-63.
Offences Against the Person (Anendment) Act, 1968 (Jamaica), s. 33.
“The drafters of the Draft Code of Offences Against the Peace and Security of Mankind, Report
of the International Law Commission Covering the Work of Its Sixth Session (3 June-28 July 1954)”
in Yearbook … 1954, vol. II, 151, art. 2(13)(ii), UN Doe. A/2693, deleted the words “and public”. The
International Law Commission had decided upon this omission after a short debate in which members
failed to see why private incitement should not also be punishable (Yearbook.. 1950, vol. 1, 60th Mtg.
(4 July 1950) at para. 88; Yearbook.. 1951, vol. I, 91st Mtg. (29 May 1951) at paras. 87-92).
“Code of Crimes, supra note 65, Commentary at 22.
6Ibid
“Ibiad
“Akayesu, supra note 6 at para. 556.
“Code of Crimes, supra note 65, Commentary at 22.
2000]
W.A. ScHABAS – THE ROAo TO GENOciDE
substantial likelihood of imminently causing such conduct:’ In Akavesu, the Rwanda
tribunal said incitement must “assume a direct form and specifically provoke another
to engage in a criminal act … ” It must be more than “mere vague or indirect sugges-
tion”‘
-2 The tribunal referred to the crime of provocation in civil law systems, which is
regarded as being direct when the prosecution can prove a causal link with the crime
committedY The requirement is puzzling. Because direct and public incitement is by
its nature inchoate or incomplete, it is impossible to prove such a causal link.
The Trial Chamber of the Rwanda tribunal stated in Akayesit that “the direct ele-
ment of incitement should be viewed in the light of its cultural and linguistic content.
a particular speech may be perceived as ‘direct’ in one country, and not so in an-
other, depending on the audience'” During the Rwandan genocide, for example, the
president of the interim government exhorted a crowd to “get to work”. In the Rwan-
dan sense of the term, this meant using machetes and axes, and according to the spe-
cial rapporteur, Ren6 Degni-Segui, would hardly be misunderstood by a Rwandan
public as an invitation to kill Tutsis.’ In Kambanda, the tribunal cited the accused’s
use of an incendiary phrase, “you refuse to give your blood to your country and the
dogs drink it for nothing “‘ Interpreting ambiguous language was also the problem
confronted by the Canadian tribunal in Mugesera (R.B.). Mugesera’s speech was in
fact a series of double entendres and implied references, clearly understandable to his
audience but sufficiently ambiguous to provide Mugesera vith arguments in his de-
fence, especially in remote Canada. He said, for example, “Well, let me tell you, your
home is in Ethiopia, we’ll send all of you by the Nyabarongo so that you get there
fast.:’ Only with the assistance of expert testimony was the immigration tribunal able
to determine the real meaning of this sentence, which implied murder of Tutsis by
drowning in the Nyabarongo RiverY3 The Rwanda tribunal expressed the same view,
noting that “implicit” incitement could nonetheless be direct, within the meaning of
the Genocide Convention:
The Chamber will therefore consider on a case-by-case basis whether, in light
of the culture of Rwanda and the specific circumstances of the instant case, acts
of incitement can be viewed as direct or not, by focusing mainly on the issue of
whether the persons for whom the message was intended immediately grasped
Genocide Comention Implementation Act of 1987 (the Proxmire Act), IS U.S.C. 1091 (1988)
S. 1851, s. 1093(3).
9Akayesu, supra note 6 at para. 557.
‘!bid
93 lbid
94 bid
Report of the Special Rapporteur of the Conmmission on Humian Rights on the situation of human
rights in Rwanda, UN Doc. A1501709-S119951915 (1995), EICN.411995/71 (1995) at para. 24.
Kambanda, supra note 20 at para. 39(x).
Mugesera (I.R.B.), supra note 5.
9’IbiL
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the implication thereof. In light of the foregoing, it can be noted in the final
analysis that whatever the legal system, direct and public incitement must be
defined for the purposes of interpreting Article 2(3)(c), as directly provoking
the perpetrator(s) to commit genocide, whether through speeches, shouting or
threats uttered in public places or at public gatherings, or through the sale or
dissemination, offer for sale or display of written material or printed matter in
public places or at public gatherings, or through the public display of placards
or posters, or through any other means of audiovisual communication. 99
Although not charged with “direct incitement”, Hans Fritzsche was accused be-
fore the International Military Tribunal at Nuremberg of inciting and encouraging the
commission of war crimes “by deliberately falsifying news to arouse in the German
people those passions which led them to the commission of atrocities:’ The tribunal
held that there was definite evidence of anti-Semitism in his broadcasts, and that he
had blamed the war on the Jews. But, said the tribunal, “these speeches did not urge
persecution or extermination of Jews:’ Consequently, it was “not prepared to hold that
they were intended to incite the German people to commit atrocities on conquered
peoples.’ In effect, Fritzsche’s anti-Semitic propaganda was not “direct” enough to
consist of incitement to commit genocide.'” Julius Streicher, on the other hand, was
found guilty at Nuremberg for such direct incitement as the following: ‘A punitive
expedition must come against the Jews in Russia. A punitive expedition which will
provide the same fate for them that every murderer and criminal must expect. Death
sentence and execution. The Jews in Russia must be killed. They must be extermi-
nated root and branch:””
E. The Genocide Convention’s Blind Spot: Hate Propaganda
Although it declared direct and public incitement to commit genocide to be a
punishable act, the Genocide Convention goes no further back up the genocidal food
chain. The drafters rejected efforts to include the prohibition of hate propaganda
within the scope of the convention. The convention’s blind spot has, to an extent, been
99 Akayesu, supra note 6 at para. 557.
‘0’ France v. Goering (1946), 23 I.M.T. 411 at 584-85, [1946] I.L.R. 203 [hereinafter Goering cited
to I.M.T.]. But Fritszche was subsequently prosecuted by the German courts under the dc-
Nazification laws, found guilty, and sentenced to nine years at hard labour and loss of his civic rights.
Fritszche waved the Nuremberg judgment before the German judges, but to no avail. It provides a
marvellous example of national justice stepping in when international justice fails, although the ap-
proach to the non bis in idem rule is flexible, to say the least. Fritzsche was pardoned in 1950 and died
of cancer in 1953 (E. Davidson, The Trial of the Germans: An Account of the 7wenty-7vo Defendants
before the International Military Tribunal at Nuremberg (New York: Macmillan Company, 1966) at
549-51; T. Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Alfred A.
Knopf, 1992) at 612).
“o Goering, ibid. at 548. See also the findings of the United States Military Tribunal in the case of
another Nazi propagandist, Dietrich (United States v. Von Weizsaecker (“The Ministries Case”)
(1948), 14 T.W.C. 314 at 565-76 (U.S. Mil. Trib.)).
2000]
WA. ScHABAS – THE ROAD TO GENOCIDE
corrected by subsequent international human rights instruments dealing with racial
discrimination.
The Draft Genocide Convention contained a specific provision dealing with hate
propaganda:
Article II. All forms of public propaganda tending by their systematic and
hateful character to promote genocide, or tending to make it ap-
pear as a necessary, legitimate or excusable act shall be pun-
ished.0′
It was clear that the Secretariat viewed this as a particularly important aspect of the
convention. In the accompanying commentary, the Secretariat noted that this was not
the same as direct and public incitement to commit genocide, which had been pro-
vided for as an act of genocide in article II of the draft. In cases provided for by article
i1, “the author of the propaganda would not recommend the commission of genocide,
but would carry on such general propaganda as would, if successful, persuade those
impressed by it to contemplate the commission of genocide in a favourable light.’:
According to the Secretariat’s commentary, “Such propaganda is even more danger-
ous than direct incitement to commit genocide. Genocide cannot take place unless a
certain state of mind has previously been created.”‘
The United States proposed the deletion of article m of the Draft Genocide Con-
vention, the first of its many initiatives to ensure that measures dealing with hate
propaganda not be included in the Genocide Convention.'” According to the United
States, the requirement of “clear and present danger” making interference with free-
dom of speech permissible would be met only in the case of incitement, something
that was already covered as an act of genocide in article IL’ The Soviet Union had a
diametrically opposed position on this question. It took this view:
VI. The convention should make it a punishable offence to engage in any
form of propaganda for genocide (the press, radio, cinema, etc.) aimed at
inciting racial, national or religious enmity or hatred… ”
The Ad Hoc Committee decided to include a provision requiring measures against
genocide to be introduced into signatories’ national legislation.”” There were two pro-
posals, one from the Soviet Union spelling out in detail an obligation to adopt crimi-
nal legislation aimed at preventing and suppressing genocide as well as racial, na-
’02 Supra note 23, art. II.
‘0 !bid. at 32.
I04 !bid.
‘”See text accompanying note 25.
‘”UN Doe. A1401.
‘”Basic Principles, supra note 28.
‘”Ad Hoc Committee on Genocide, 18th Mtg., UN ESCOR, UN Doe. EIAC.25/SR.18 (1948) at 12
(four in favour, three against).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
tional and religious hatred,”‘3 the other from the United States setting out an obligation
to give effect to the convention by legislation, but only in the most general terms.’0
John Maktos explained that the United States required the vaguer wording because of
its federal system and the role of state laws.”‘ A reworked text was adopted: “The High
Contracting Parties undertake to enact the necessary legislation, in accordance with their
constitutional procedures, to give effect to the provisions of the present convention:””
John Maktos had earlier indicated that the United States could agree to limitation
of the press and information only in “well-defined and exceptional cases”, and
“[s]ubject to this explicit reservation he agreed to the principle of suppressing propa-
ganda for genocide.””‘ The United States “agreed that action should be taken against
the Press and other media of information when they were guilty of direct incitement
to commit acts of genocide”” But Maktos said “he would be obliged to withdraw the
agreement in principle which he had just given, if the terms of the Convention proved
to be in contradiction with the Constitution of his country insofar as the freedom of
the Press was concerned'””‘ The United States was not alone in its reluctance to deal
with hate propaganda that fell short of direct and public incitement to genocide. Leba-
non noted that campaigns undertaken during wartime to arouse hatred for the enemy
should not be mistaken for genocide: “It was clear that such campaigns which helped to
raise the morale of its citizens should not be considered as propaganda for the incitement
of genocide:”” The Soviet amendment dealing with hate speech was eventually re-
jected.”‘ Along the same lines, the Soviet Union was equally unsuccessful in arguing
that the convention contain a provision requiring states to disband racist organizations.”‘
In the Sixth Committee of the General Assembly, the Soviet Union proposed the
addition of a paragraph to the provision dealing with acts of genocide covering hate
‘ Ibid. at 12 (Mr. Morozov, Soviet Union):
The High Contracting Parties pledge themselves to make provision in their criminal
legislation for measures aimed at prevention and suppression of genocide and also at
prevention and suppression of incitement to racial, national and religious hatred, as de-
fined in articles I, II, IH and IV of the present Convention and to provide measures of
criminal penalties for the commission of those crimes, if such penalties are not pro-
vided for in the active codes of that State.
“0 Ad Hoc Committee on Genocide, 19th Mtg., UN ESCOR, UN Doc. E/AC.25/SR.19 (1948) at 4
(M Maktos, United States).
“‘ Ibid. at 3-4.
Ibid. at 8 (four in favour, three against).
Ad Hoc Committee on Genocide, 5th Mtg., UN ESCOR, UN Doc. EIAC.25/SR.5 (1948) at 9
(Mr. Maktos, United States) [hereinafter Ad Hoc Committee 5th Mtg.].
1” Ibid.
“‘ Ibid. at 10. See also Ad Hoc Committee 6th Mtg., supra note 29 at 3.
“6Ad Hoc Committee 5th Mtg., supra note 113 at 10 (Mr. Azkoul, Lebanon).
” Ad Hoc Committee 16th Mtg., supra note 34 (two in favour, five against).
” Basic Principles, supra note 28, art. VIII.
2000]
W.A. ScHABAS – THE ROAD TO GENOCIDE
propaganda. The text defined, as an act of genocide, ‘All forms of public propaganda
(Press, radio, cinema, etc.) aimed at inciting racial, national or religious enmities or
hatreds or at provoking the commission of acts of genocide:”” This obviously went
much further than “direct incitement”, which had already been accepted.'” A similar
proposal had been rejected by the Ad Hoc Committee, but the Soviet delegate, Platon
Morozov, said that this was because the Ad Hoc Committee felt the matter was cov-
ered by the incitement provision. The Soviets wanted to deal with all hate propa-
ganda, which they said was “the cause of acts of genocide”. Morozov cited Hitler’s in-
famous book Mein Kampf as an example of the type of work that would be prohibited
by the additional provision.”2 ‘ In support, Manfred Lachs of Poland said that “preach-
ing hate could not be considered as information … Since laws protected the individual
against libel and slander, the group was also entitled to the same protection: 2 France
was also quite favourable to the proposal, and offered a reworded provision: ‘All
forms of public propaganda which inflame racial, national or religious enmities or
hatreds, with the object of provoking the commission of crimes of genocide:” Haiti,
too, supported the amendment.”‘
The United States was opposed, on the grounds that this would infringe upon
freedom of the press.” The Greek representative said the Soviet proposal was out of
place in the convention. He noted that if the purpose was to suppress propaganda
“aimed at inciting racial, national or religious enmities or hatreds,” this was not geno-
cide, because there was no intent to destroy a group.'” Venezuela reminded the meet-
ing that when the Ad Hoc Committee had decided that incitement had to be direct and
public, Venezuela had noted that “those two qualifying words avoided the necessity of
listing the various forms which incitement could assume, particularly in the case of
written and spoken propaganda … .”‘ The Soviet amendment went contrary to this,
and Venezuela would vote against it.’ Gerald Fitzmaurice of the United Kingdom
said that he would have supported the amendment “if the world situation were differ-
“9 Union of Soviet Socialist Republics: amendments to the draft convention on genocide (E794),
UN GAOR, Sixth Committee, 3d Sess., UN Doe. A/C.61215IRev.1 (1948) at 17 [hereinafer Soviet
Amendment].
” For a discussion of the debate, see N. Ruhashyanldko, Study prepared by Ar Nicodbme
Ruhashyankiko, Special Rapporteur, UN ESCOR, 31st Sess., UN Doe. EICN.4/Sub2/416 (1978) at
paras. 117-19.
.UN GAOR, Sixth Committee, 3d Sess., 86th Mtg., UN Doc. A/C.6ISR.86 (1948) at 244-45 (Mr.
Morozov, Soviet Union) [hereinafter 86th Mtg.].
“‘UN GAOR, Sixth Committee, 3d Sess., 87th Mtg., UN Doec. A/C.61SR.87 (1948) at 251 (ir.
Lachs, Poland) [hereinafter 87th Mtg.).
” 86th Mtg., supra note 121 at 246 (MN. Chaumont, France).
“4 !bid. at 247 (Mr. Demesmin, Haiti).
2 ibid at 246-47 (M Maktos, United States).
“‘Ibid at 245 (MN Spiropoulos, Greece).
87th Mtg., supra note 122 at 250 (M. P&ez Perozo, Venezuela).
‘ !bid. at 251.
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ent”‘ ‘” Given the current situation, however, the provision “might become a pretext for
serious abuses” by governments which “disliked criticism, particularly newspaper criti-
cism”. 3
0 Cuba,'”‘ Uruguay,’32 Syria,”‘ and Egypt'” also spoke against the amendment.
It should be borne in mind that as the debate was taking place, the delegates be-
lieved that genocide of political groups was to be included in the convention. The
Sixth Commission had already so decided, and it was only later in the session that this
would be reversed and political groups excluded from the ambit of the convention.
This clearly influenced the attitudes of some delegations towards hate propaganda.
For example, Iran invoked the spectre of “punishment of propaganda aimed at stirring
up political hatred. The result might be that political strife between parties could be
interpreted as propaganda … “”‘ Sweden said it was nervous about the prohibition of
hate propaganda being extended to political groups and thought it best to abstain.”‘
The first part of the Soviet amendment, dealing with propaganda aimed at inciting
enmities or hatred, was rejected by twenty-eight to eleven, with four abstentions. The
second, concerning propaganda aimed at provoking genocide, was rejected by thirty
to eight, with six abstentions. ‘
The Soviet Union attempted subsequently to revive the issue, proposing an
amendment to article VI, concerning obligations to enact legislation to prevent and
punish genocide. The amendment required that necessary legislative measures be
“aimed at the prevention and suppression of genocide and also at the prevention and
suppression of incitement to racial, national and religious hatred … “”‘ The chair ob-
jected to the first element of the Soviet resolution, that is, incitement to racial hatred,
on the grounds that it had already been ruled out by the committee and there was to
2 Ibi& (Mr. Fitzmaurice, United Kingdom).
13 Ibid.
3 86th Mtg., supra note 121 at 247-48 (Mr. Dihigo, Cuba).
1 87th Mtg., supra note 122 at 249 (Mr. Manini y Rfos, Uruguay).
3 Ibid. at 249-50 (M. Tarazi, Syria).
4 Ibid. at 249 (Mr. Raafat, Egypt).
“‘ Ibid. at 248 (Mr. Abdoh, Iran).
3 86th Mtg., supra note 121 at 245 (Mr. Petren, Sweden).
.3. 87th Mtg., supra note 122 at 253. For academic criticism of the rejection of the Soviet proposal,
‘
see A. Planzer, Le crime de ginocide (St. Gallen, Switzerland: F. Schwald, 1956) at 113-14.
‘ Soviet Amendment, supra note 119 at 17-18; UN GAOR, Sixth Committee, 3d Sess., 93d Mtg.,
UN Doc. A/C.6/SR.93 (1948) at 322 (Mr. Morozov, Soviet Union) [hereinafter 93d Mtg.]. The entire
article would then read:
The High Contracting Parties undertake to enact the necessary legislative measures, in
accordance with their constitutional procedures, aimed at the prevention and suppres-
sion of genocide and also at the prevention and suppression of incitement to racial, na-
tional and religious hatred, to give effect to the provisions of this Convention, and to
provide criminal penalties for the authors of such crimes (Soviet Amendment, ibid.).
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
need to return to it.”‘ The chair’s decision was contested by Morozov, but on a show
of hands it was upheld.”
The lacuna in the Genocide Convention with respect to hate propaganda has been
filled by other instruments of international human rights law. The Universal Declara-
tion of Human Rights”‘ was adopted the day after the adoption of the Genocide Con-
vention. The Universal Declaration states:
Article 7. All are equal before the law and are entitled without any discrimi-
nation to equal protection of the law. All are entitled to equal pro-
tection against any discrimination in violation of this Declaration
and against any incitement to such discrimination.
Moreover, the right to freedom of expression, enshrined in article 19 of the Universal
Declaration, is deemed subject “to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order and the general
welfare in a democratic society'”
The International Convention on the Elimination of All Fomis of Racial Dis-
crimination,”3 adopted in 1965, contains quite extensive obligations with respect to
the prevention of hate propaganda. Article 4 of the CERD declares:
States Parties condemn all propaganda and all organizations which are based
on ideas or theories of superiority of one race or group of persons of one colour
or ethnic origin, or which attempt to justify or promote racial hatred and dis-
crimination in any form, and undertake to adopt immediate and positive meas-
ures designed to eradicate all incitement to, or acts of, such discrimination and,
to this end, with due regard to the principles embodied in the Universal Decla-
ration of Human Rights and the rights expressly set forth in article 5 of this
Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas
based on racial superiority or hatred, incitement to racial discrimination,
as well as all acts of violence or incitement to such acts against any race
or group of persons of another colour or ethnic origin, and also the provi-
sion of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all
other propaganda activities, which promote and incite racial discrimina-
tion, and shall recognize participation in such organizations or activities as
an offence punishable by law;
9 93d Mtg., ibd at 322 (Mr. Alfaro, Chairman, Panama).
‘4’ !bid at 323.
14! GA Res. 217(m), UN GAOR, 3d Sess., Supp. No. 13, UN Doec. A/810 (1948) 71 [hereinafter
Universal Declaration].
12 Ibid, art. 29(2).
“3 GA Res. 2106(XX), UN GAOR, 21 December 1965,660 U.N.T.S. 195 [hereinafter CERD].
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(c) Shall not permit public authorities or public institutions, national or local,
to promote or incite racial discrimination.
The CERD has been ratified by nearly 160 states, and thus enjoys a broader reach
than the Genocide Convention. Moreover, states that are parties to the CERD are sub-
ject to a supervisory mechanism, requiring them to submit periodic reports to the
Committee on the Elimination of Racial Discrimination with respect to their compli-
ance. Individuals may also file complaints with the committee alleging violation of
the CERD, for those states that have accepted the petition mechanism. In some of
these contentious cases, the committee has found that states have failed to honour
their obligations. According to the committee, “When threats of racial violence are
made, and especially when they are made in public and by a group, it is incumbent
upon the State to investigate with due diligence and expedition'””
Essentially similar obligations, at least with respect to hate propaganda, are set
out in the International Covenant on Civil and Political Rights.”‘ The ICCPR recog-
nizes the right to freedom of expression, but subjects its exercise to special duties and
responsibilities. According to the convention,
Article 19 …
3. … It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
Legislation prohibiting hate propaganda in its various forms, including denial of
genocide, is thus sheltered from attack as an infringement upon freedom of expres-
sion. But the ICCPR takes this a step further, imposing an obligation upon parties to
prohibit by law “[any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence … .'”. As in the case of the CERD,
there is a periodic reporting obligation to the Human Rights Committee to supervise
compliance with these obligations.
France’s Loi Gayssot amends the Freedom of the Press Act of 1881 by making it
an offence to contest the existence of crimes against humanity as defined in the char-
ter of the International Military Tribunal of 8 August 1945, on the basis of which Nazi
‘ LK v. Netherlands (No. 4/1991), UN Doc. CERD/C/42D/411991 at para. 6.6, printed in Report
of the Committee on the Elimination of Racial Discrimination, UN GAOR, 48th Sess., Supp. No. 18,
UN Doec. A/48/18, Annex IV (1994) 130.
“4 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 l.L.M. 368 (entered into force
146 Ibid., art. 20(2). See J.R.T and WG.R v. Canada (No. 104/1981), printed in Report of the Hutman
Rights Committee, UN GAOR, 38th Sess., Supp. No. 40, UN Doec. A/38/40, Annex XXIV (1983)
231,4 H.R.LJ. 193.
23 March 1976, accession by Canada 19 May 1976) [hereinafter ICCPR].
WA. SCHABAS – THE ROAD TO GENOClDE
2000]
leaders were tried and convicted at Nuremberg in 1945 and 1946. The French legisla-
tion was challenged in an individual communication before the Human Rights Com-
mittee filed by Robert Faurisson, who had been convicted of breach of the law in
1992. Faurisson based his complaint on article 19 of the ICCPR. In unanimous views
issued in December 1996, the committee dismissed the communication, although it
stopped short of fully endorsing the French legislation. This leaves open the hypothe-
sis that it might, under certain circumstances, run foul of the ICCPR.”
Although the Convention for the Protection of Hunan Rights and Fundamental
Freedoms”‘ does not include an obligation to prevent hate propaganda, many states
have taken such initiatives and the applicable legislation has been contested on a
number of occasions before the Strasbourg organs. The European Commission of
Human Rights has ruled that hate propaganda is not protected by article 10 of the
European Convention, which enshrines freedom of expression.”‘ In 1995 it dismissed
an application from an Austrian who had been successfully prosecuted for denying
the Holocaust, saying “the applicant is essentially seeking to use the freedom of in-
formation enshrined in Article 10 of the Convention as a basis for activities which are
contrary to the text and spirit of the Convention and which, if admitted, would con-
tribute to the destruction of the rights and freedoms set forth in the Convention … “U.
In Jersild v. Denmark, a Danish journalist was prosecuted under the hate propa-
ganda provision not for his own words, but because he had provided a platform for
racist extremists during a television interview. The European Court of Human Rights
agreed that the freedom of expression provisions of the European Convention should
be interpreted, “to the extent possible, so as to be reconcilable with its obligations”
under the CERD. Denmark had argued that its legislation had been enacted to give ef-
fect to its commitments under the latter instrument.'” The court noted that the remarks
made by the extremists during the interview were not themselves protected by the
European Convention. Nevertheless, it was the journalist who had been prosecuted.
“7Faurisson v. France (No. 55011993), UN Doe. CCPR/C581D/550/1993 (1996), printed in Report
ofthe Hwnan Rights Conmittee, vol. IL UN GAOR, 52d Sess., Supp. No. 40, UN Doc. A/52/40, Ap-
pendix (1999) 84. See SJ. Roth, “Denial of the Holocaust as an Issue of Law” (1993) 23 Israel Y.B.
Hum. Rts. 215.
‘ 4 November 1950,213 U.N.T.S. 221, Eur. T.S. 5 [hereinafter European Com’ention].
’49X v. Federal Republic of Gemany (1982), 29 Eur. Comm. HR. D.R. 194; Glimmerveen and
Hagenbeek v. Netherlands (1979), 18 Eur. Comm. MR. D.R. 187, 4 E.H.R.R. 260; Remer v. Ger-
many (1995), 82-A Eur. Comm. H.R. D.R. 117.
ISO Honsik v. Auwsra (1995), 83-A Eur Comm. ILIL D.R. 77 at 84. See also Walendy v. Gennany
(1994), 80-A Eur Comm. HR. D.R. 94,38 YB. Eum Cony. H.R. 51. See F. Stein, “History against
Free Speech. The New German Law against the ‘Auschitz’–and Other-Lies” (1986) 85 Mich. L
Rev. 277.
‘ (1994), 298 Eur. Ct. HR. (Ser. A.), 19 E.H.RR. 1.
“2 bid at para. 30.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Concluding that there was a violation of article 10, the Strasbourg court laid consider-
able emphasis on the fact that the purpose of the journalist was not racist.'”
The freedom of expression provision in the American Convention on Human
Rights is broader than the other international models.” The Inter-American Court has
compared article 13 of the American Convention with the equivalent provisions in the
other instruments, noting that
[a] comparison of Article 13 with the relevant provisions of the European Con-
vention (article 10) and the Covenant (article 19) indicates clearly that the
guarantees contained in the American Convention regarding freedom of ex-
pression were designed to be more generous and to reduce to a bare minimum
restrictions impeding the free circulation of ideas.’
Despite its large vision of freedom of expression, however, the provision also con-
templates the case of racist propaganda. Article 13(5) of the American Convention is
more or less identical to article 20 of the ICCPR, and requires that where propaganda
for war or advocacy of racial hatred constitute incitements to violence, they are to be
considered as offences punishable by law. This provision was added to the American
Convention upon the recommendation of the rapporteur of the Inter-American Com-
mission on Human Rights to bring the text into accordance with the ICCPR.”6
Conclusion
There are two prongs to the Genocide Convention, prevention and punishment.
But while the instrument has much to say about punishment, there is precious little in
the way of obligations aimed at preventing genocide. One of them is the duty to
prosecute “direct and public incitement” to commit genocide. This is an inchoate
crime, punishable even before genocide itself is committed. Indeed, the purpose of the
exercise is to stop genocide before it takes place. The provision in the Genocide Con-
vention is carefully worded, reflecting concerns that it might encroach upon the fun-
damental norm of freedom of expression. The drafters of the convention refused to go
‘ Ibid. at paras. 36, 37. For another nuanced approach to the question by the European Court of
Human Rights, see Lehideux and Isorni v. France (1998), 38 I.L.M. 30 at paras. 53-55, 41 Y.B. Eur.
Cony. H.R. 440 (summary only) (Eur. Ct. H.R.).
‘5422 November 1969, 1144 U.N.T.S. 123, art. 13, 9 I.L.M. 99 [hereinafter American Convention].
“‘ Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
(Arts. 13 and 29ACHR) (13 November 1985), OC-5/85 (Ser. A) No. 5 at para. 50. For recent case law
on the provision from the Inter-American Commission on Human Rights, see Case 10,325 (Grenada)
(1996), [1996] 1 Inter-Am. YB. H.R. 932; Case 11,230 (Chile) (1996), [1996] 1 Inter-Am. Y.B. H.R.
538.
“6 Comparative Study of the United Nations Covenants on Civil and Political Rights and on Eco-
nomic, Social and Cultural Rights and of the Draft Inter-American Conventions on Human Rights,
O.A.S. Doc. OEAIL/V/II.19 Doc. 18 at para. 67.
2000]
W.A. SCHABAS – THE ROAD TO GENOCIDE
further and to criminalize hate speech, although the shortcomings in this respect have
been largely corrected by subsequent human rights treaties.
A well-read and well-informed genocidaire will know that at the early stages of
planning of the “crime of crimes”, his or her money is best spent not in purchasing
machetes, or Kalatchnikovs, or Zyklon B gas, but rather investing in radio transmitters
and photocopy machines. Genocide is prepared with propaganda, a bombardment of
lies and hatred directed against the targeted group, and aimed at preparing the “willing
executioners” for the atrocious tasks they will be asked to perform. Here, then, lies the
key to preventing genocide. The good news is that Leon Mugesera has lost his perma-
nent resident status in Canada, although it seems unlikely that he vill ever be brought
to trial for his crimes. Ferdinand Nahimana and Hassan Ngeze are in detention in
Arusha, awaiting trial before the International Criminal Tribunal for Rwanda.’ The
bad news is that Ernst Zundel remains at large, continuing to spew his hateful propa-
ganda to his followers, with their nostalgia for Auschwitz and Treblinka.'”
Nahimana’s indictment charges that “[b]etween 1 January 1994 and approximately 31 July 1994,
RTLM vas used to broadcast messages designed to achieve inter-ethnic hatred and encourage the
population to kill, commit acts of violence and persecutions against the Tutsi population and others on
political grounds” (quoted in Sunga, supra note 76 at 338).
“- SeeR. v. Zundel, [199212 S.C.R 731, 95 D.L.R. (4th) 202.
Are Good Intentions Enough? The Limits of
the New World of International Justice
David S. Rieff”
Drawing on his background as ajournalist in such
troubled areas as Bosnia and Rwanda, the speaker be-
gins with a strong statement-only the use of force, or
the credible threat of force, will deter genocides. In
contrast, legal arrangements, no matter how well-
meaning, will serve only to punish people after the fact.
Taking a pragmatic approach, the speaker explores the
disturbing implications of this conclusion. In particular,
he stresses the disinclination of the great powers to en-
gage in international policing, as well as their reluc-
tance to delegate the job to the United Nations. The
speaker maintains that this unwillingness is under-
standable because of what humanitarian war-making
would entail. In addition to vast difficulties surrounding
budgetary and procurement questions, he suggests
there are moral questions relating to the casualties an
international police force would eventually suffer Thus
radical legal and moral steps have engendered a sense
of false expectation, because practically speaking, there
is neither the ability nor the willingness to enforce
them. The speaker concludes by restating his belief that
good intentions and good laws must be backed up with
force if they are to make a difference.
En so basant sur son expdrienc en rant qua jour-
naliste dans des rigions aux priss avec des troubles ci-
vils, tels la Bosnia et le Rwanda, l’autcur aflirnm qua
seule l’utilisation do la force, ou la men-aco crdib!e do
son utilisation, peuvent avoir tn cffct dissuasif a l’gard
du gdnocide. Les dispositions Idgales. aussi bonrio
puissent Etre les intentions qui les sous-tendant. no
peuvent servir qu’I punir les coupables apr~s le faiL
Une approcho pragmalique penne do tirer les inquid-
tantes consdquences do cette conclusion, en particulier
le peu d’inclination des grandes puissances a prendre
en charge I maintien do l’ordre au nivcau international
ou ht confier cotte tfcho atx Nations Unies. Cc manqua
de volontd est comprhensible lorsque l’on prend ea
considdration le fardeau important qu’impos.nt do tel-
les opdrations, autant aux points do vue logistiqua et
budg&aire quo moral. alors quo beaucoup s’interrogent
sur la justification des poises hurainos dventulecs
qu’uno force do police internationalo s=rair ainondo t
les mesures lgals ct morales
subir. En consdquenc
radicales qui ont dWd priss oant donnd lieu 5 des espd-
macos ddmesures alors qu’en pratiqu,
la capacitd ot
la volont6 do les mettre ea application sont absentes.
Lauteur conclut quo les bonnes intentions et la drit.
pour Ctre salutaires et faire tine diffirence sur lo terrain.
doivent Ctre supportds par la force.
. David S. Rieffis ajournalist and author who writes frequently oa peacekeeping and humanitarian
issues. These remarks were prepared for a panel on “Early Warning- The Obligation to Warn-The
Duty to Act’ at the international conference Hate Genocide and Hunman Rights Fifty Years Later:.
What Have We Learned? What Must We Do? (Faculty of Lav, McGill University, 28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGiU L.J. 173
Mode de rf6rence: (2000)46 RD. McGill 173
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
As most of you know, I am not a lawyer. The experience of the world that has
marked me most has been as a writer in Bosnia during the siege of Sarajevo, in
Rwanda and Eastern Zaire in the killing time, in Tajikistan, in south Sudan, and in
some other, similar places. What this means is that I have lived far too long among
people for whom the only law they believed in was the law of the Kalashnikov rifle.
And what I have to admit is that, in an important sense, they have convinced me that
they’re right. What I mean by this is that I have come to believe that without the use of
force-or at least the threat of the credible use of force-the moral stances and legal
arrangements devised by decent and well-meaning people in Geneva, New York, Ot-
tawa, or Washington will save very few lives. We may eventually succeed in punish-
ing genocide after the fact, and that is an advance. But I don’t believe we have the
right to believe we will deter genocides through such legal arrangements. Candidly, I
no longer really believe in the power of unarmed truths.
And in any case, truth and justice are unhappily not the same thing. In legal terms,
while it’s difficult to prove that a genocide exists, it’s not impossible. Obviously, you
have to have competent investigators. And you have to have reporters who are well in-
formed and who, in their turn, can inform the public. The question is what the public
and the political leadership will do with this information. Again, stopping a genocide
is not a legal process; it’s a political one.
Let’s say you could demonstrate to the satisfaction of the international lawyers at
the Canadian Ministry of External Affairs, the U.S. State Department, or the United
Nations Secretariat that a genocide was taking place in country X. Would it make a
difference? The experience of the last period-above all the experiences of Bosnia
and Rwanda-is that it wouldn’t. I’m sorry if I conform to your stereotype of the
cynical journalist, but I repeat: would it make a difference? The law tells us how to
punish those who have committed genocide; it does little to show us the way toward
how to prevent it.
If we have learned one thing in the post-cold war period, it is that great powers do
not want to become international policemen, and they do not want to delegate the job
to the UN. I want to be clear. I am not claiming the law doesn’t matter. To the con-
trary, we have seen how the representatives of powerful states do everything they can
to avoid the use of the word “genocide”. At the time of the Rwandan genocide,
Madeleine Albright, the current American secretary of state-the then-ambassador to
the United Nations-did everything in her power to make sure the word was not used
in Security Council deliberations.
But while human rights activists and international lawyers were convinced that
that was the battle-that had the U.S. not acted as it did, it would have intervened, or
allowed others to intervene-I am less sure. I am well aware of the enormous chal-
lenges involved in trying to establish these new international norms. Nonetheless, I
remain unpersuaded that simply by establishing them we have accomplished all that
much for the victims of genocide. What have we actually deterred? At the very least, I
would submit that the answer is that fine Scottish legal verdict, “not proven”.
All of this is to say that we all need to question our own expectations. This is a
good time for international law, but it is also a time when mass murder and ethnic
2000]
D.S. RIEFF- ARE GOOD INTENTIONS ENOUGH?
175
cleansing are on the rise all over the poor world. Again, I don’t think it’s wrong to be
optimistic about what can be done in the aftermath of a genocide. We are well on the
way to transforming-certainly for the better, though perhaps in some ways for the
worse–the norms of justice after the fact.
Whether it’s the ad hoc tribunals for Rwanda and for the former Yugoslavia, the
International Criminal Court, or more generally, the culture in which exists the idea of
judging people for crimes that there previously would have been no context for judg-
ing, the process is probably unstoppable.
But again, I would suggest there is less here than meets the eye. Because this has
been the easy part. You don’t need soldiers to enforce norms that only apply after a
genocide has taken place. You need a legal framework, you need political pressure,
and you might need a few policemen. But you do not need armies. But you do need
an army to prevent a genocide. And I don’t see any evidence in any of the major
countries of a willingness to deploy that kind of force, make those ldnds of sacrifices,
accept those kinds of responsibilities.
And in fairness, asking political leaders to undertake military interventions on
humanitarian grounds is asking a great deal. I think a lot of the people who call for
interventions to stop genocides-or preventive deployments in anticipation of a geno-
cide to stave it off-have not thought through what they are asking for. UN Secretary
General Kofi Annan has demanded that we-he meant, though he was loathe to admit
it. the great powers, or the great powers acting through the UN–do the same thing for
Angola and Sierra Leone that we did for Kosovo and East Timor. To call for this is to
call for a new age of crusades-a new age of humanitarian war. Should Canadian sol-
diers be obliged to spend the next thirty years making the world safe from genocide?
Because that is what Annan’s call would demand.
There are so many people in the human rights community-people whose hearts
are in the right place-who have not thought through the implications of what they
are asking for any more than Annan has thought them through. In any case, this is not
thought at all; this is wishful thinking. It also avoids the essential question of who is
going to wage these humanitarian wars. And the answer to that I would suggest,
might discomfit many people here in Canada, and in other countries where there is
widespread public support for military interventions on human rights grounds, or to
prevent genocide.
Let me give a very concrete example. At the moment, if you had another crisis in
the Great Lakes region of Africa, and you wanted to reply with overwhelming force,
the only thing to do would be to airlift soldiers to the region in a great hurry. In mili-
tary terms, that would mean setting up a whole logistical chain going back to some
rear base somewhere. But there are only two countries in the world that have that lo-
gistical capability. One is the United States of America, and the other is the Russian
Federation.
In the case of preventive deployments to stave off genocides-an idea that has
been championed by the Canadian government-you are probably talking about half
a dozen deployments at a minimum. Who is going to undertake such a mission? Is
Canada prepared to vastly increase its military budget. and provide the Canadian air-
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
force with the necessary transport planes and refuelling planes to share in such ef-
forts? Is it prepared to buy the Canadian army the attack helicopters and the new ar-
moured personnel carriers it would need? It hardly seems likely. Canada is steadily
decreasing its military capabilities.
Anyway, that’s how the issue looks from the ground. It’s not an international legal
question, or even a diplomatic question. You could work out all kinds of political ar-
rangements. You could put this force at the service of the United Nations, you could
arrange all kinds of political cover, but the bottom line is you will have to increase the
military budget of Canada very substantially if you want to prevent genocide rather
than punish it after the fact. And I see no evidence in Canada, or Holland, or the Nor-
dic countries, of any such willingness.
And beyond all these budgetary and procurement questions, the reality is that,
were we to match our moral ambitions with deeds, sooner or later we would take a lot
of casualties. The idea that soldiers are going to go into genocidal situations and al-
ways win handily at little cost to themselves is dangerously fantastical. Some opera-
tions may go well. General Rom6o Dallaire has said that, had he been authorized by
Kofi Annan to close down the training camps in Rwanda before the genocide in Janu-
ary of 1994, he could have done so without incurring great risks. But what if he was
wrong? What if the peacekeepers had gotten their heads handed to them on a plate
and a lot of people had been killed? Then what? And sooner or later, one of these
missions is going to go wrong-as things went wrong in Somalia.
Again, the whole structure of the response to genocide is being talked about in a
totally different political, and I would argue, legal, environment from the environment
in which these conventions were passed. The people who conceived the Genocide
Convention,’ for example, imagined that the United Nations would be an effective in-
strument of world peace and security, at a time when people had not given up on the
Military Council of the United Nations. Now the UN is little more than a vast allevia-
tion machine. If there are humanitarian wars to fight, it is the bellicose powers-
above all the U.S.-that will probably have to fight them; unless, that is, powers like
Canada, for whom war is largely unthinkable, are prepared to rearm.
We are in very deep waters here. The radical steps in international law that have
already been taken are more than matched by still more radical leaps of our collective
moral imagination. But it is one thing to shout “down with the culture of impunity”,
and another thing to know how to end it. But while it is remarkable that we have an
international norm that allows a Spanish prosecutor to demand, on various interna-
tional legal bases, the arrest of a former president of Chile, the problem is what I be-
lieve are the false expectations that such developments have engendered.
‘ Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78
U.N.T.S. 277, Can. T.S. 1949 No. 27 (entered into force 12 January 1951).
2000]
D.S. RIEFF – ARE GOOD INTENTIONS ENOUGH?
My question to the lawyers in the room is, ‘Are we, in reality, creating the inter-
national legal structure of an international political structure that does not exist, and
shows no likelihood of existing?” I am well aware that it has been the presumption of
international lawyers, and probably of human rights activists and NGO people as
well, that once you establish a new norm-a new standard-people migrate to it,
maybe not immediately, but eventually. One model for this in U.S. domestic law
would be the Civil Rights movement. People did not support the pioneering decisions
of civil rights law like Brown v. Board of Educatioie at the time they were issued-
certainly very few white southerners did-but eventually, people changed their minds.
But on the basis of what authority-and what consensus-are these new norms
and the obligations that accompany them–that are now being codified in interma-
tional law-going to win mass acceptance outside the narrow strata of lawyers, hu-
man rights activists, and the like? Even those Americans who did not welcome the
revolution in law that accompanied the Civil Rights movement accepted the legitmacy
of the law. Can you say the same thing with international standards against genocide?
I doubt it.
But let’s say I’m wrong. In the final analysis, the question that all of us who have
watched these wars and genocides unfold need to ask ourselves is this: Are people
who live very far away from the killing fields-people here in Montreal, people in
Antwerp, or in South San Francisco-really going to kill and die to stop these terrible
things from taking place? And is it so clear that those of us who want something done
in Rwanda, in Congo, or in Indonesia have the moral right to demand such sacrifices?
After all my activism over Bosnia and Kosovo, after all my time in Africa, I’m not
sure. What I am certain about is that you can have all the good intentions in the world,
and all the good laws on the international statute books, but unless you are actually
willing to back up those good intentions and those good laws with force, it’s not going
to happen.
– 347 U.S. 483 (1954).
Rwanda : Chronique d’un g6nocide pre visible
Frangois Bugingo”
L’auteur, s’interrogeant sur les causes du gdno-
cide twandais, met I’accent sur la conjonction d’actions
nationales et d’omissions internationales qui ont pennis
au drame de se produire. D’unc part, A Ia fois I’histoire
du Rwanda depuis Ia fin des annCes 1950, le condition-
nement de la population par l’entremise des m&lias de
communication de masse, I’abus de l’oMissance com-
mand&e par les autoritds locales traditionnelles, la pau-
vret6 et la surcharge demographique ont contribu au
denouement final D’autre part, l’inaction, pour des rai-
sons diverses relevant autant de leur politique int-ieure
que de la simple indiffdrence, des ttats qui auraient tt
en mesure de prvenir ce denouement, m&ite d&re
d6nonce.
Le gdnocide rwandais, avec les nouveaux massa-
cres auxquels il a indirectement donn6 lieu depuis,
permet de conclure que seule l’intervention de la jus-
tice intemationale pent mettre fin a l’escalade de la
violence une fois qu’elle a commenc6 – se manifester.
Tant que les planificateurs de gdnocides pourront
compter stir la ldchet6 et l’indiffdrence de la commu-
naut6 intemationale, dues en parie .& Ia vision tronqude
des 6v~nements prdent& par les m&lias, le monde ne
sera pas a l’abri de nouveaux massacres.
In questioning the causes of the Rwandan geno-
cide, the author stresses that a combination of national
actions and international omissions allowvd the tragedy
to occur. Factors that have contributed to the final out-
come are, on the one hand, Rwandas history sirne the
end of the 1950″, the indoctrination of the population
via the mass media, the abuse of obedience com-
manded by local traditional authorities. poverty and
overpopulation. On the other hand. the inaction of a
number of states due to various reasons, mainly internal
political reasons as well as simple indifferenze, d&-
serves reproach, as they could have prevented this out-
come to some eXtent.
The Rwandan genocide, and the nev massacres
that it indirectly triggered, suggest that only the inter-
vention of international justice can end the escalation of
violence once it has manifested itself. As long as per-
petrators of genocide can count on the cow. ardic and
indifference of the international community due in part
to the skewed version of events presented by the m.dia.
the world will not be safe from nev massacre
“Joumaliste, Socid,6 Radio-Canada et auteur de Africa Afea, Montrdal, Liber 1997 et de La Ails-
sion au Rwanda, Montrdal, Liber, 1997. Cette allocution a 6t6 prononce dans le cadre de la tribune
devoir d’agir de la confdrence dIaine, genocide ct droits de
<
doit pas faire illusion. En fait, malgr6 tous les propos que je vais tenir, il y a cette bar-
ribre de compr6hension que mon esprit ne parvient pas h franchir pour expliquer ce
qui a dfi vraiment se passer. Malgr6 toute ma bonne volont6 de scientifique, de jour-
naliste et d’humaniste, il m’est encore impossible d’appr6hender ce qui peut pousser
un 8tre humain A faire preuve de cette barbaric dont nous fflmes tous t6moins au
Rwanda, certains directement, d’autres par l’interm6diaire des m6dias. Quand on
aborde le g6nocide du Rwanda par son autre bout, c’est hi dire son terrifiant r6sultat,
on nourrit secr~tement le douloureux espoir que ce soit lh l’ceuvre de quelques betes
innommables ou de bizarres envahisseurs intergalactiques. Mais bien vite, la triste
rdalit6 nous pr6sente des salauds au visage d’humains. On frissonne Ai penser qu’ils se
soient pr6valus, un jour comme aujourd’hui, de cette d6nomination d’homme.
Parmi les innombrables interrogations qu’a suscitres le drame rwandais, je vais
tenter de r6pondre A deux d’entre elles: d’abord, comment cette calamit6 a-t-elle pu
se produire dans ce vingti~me si~cle finissant qui se pretend si 6volu6 ; ensuite, qu’en
devrions-nous apprendre pour empecher l’horrible histoire de se r6p6ter ?
Mesdames, Messieurs, nul doute ne subsiste dans ma tte que c’est une conjonc-
tion d’actions nationales et d’omissions intemationales qui a rendu possible la trag6-
die du Rwanda.
Pour commencer par le peuple rwandais lui-meme, puisqu’il est le responsable
supreme de son malheur, il faut remonter des d6cennies plus trt pour retrouver les as-
sises du genocide du printemps 1994. En 1959, le pays v6cut ce que l’on appela alors
une ordvolution sociale >, mais qui fut avant tout un pr6texte pris par quelques Hutus
pour perp~trer ce qu’il serait juste de qualifier de premier genocide contre les Tutsis.
Pendant que l’autorit6 coloniale s’empressait de cautionner les massacres au nom
2000]
F BUGINGO – RWANDA: CHRONIQUED’UN GENOCIDE PR VSIBLE
181
d’une curieuse perversion de la notion de d6mocratie, le Rwanda, et avec lui toute la
sous-r~gion des Grands Lacs africains, venait de lancer un terrible prdc&dent qui ferait
r6fdrence.
Mais le pire survint quelques ann~es plus tard. En 1963, le 20 mai pour Etre plus
pr6cis, le nouveau parlement rwandais vota une aberrante loi d’amnistie. Ecoutez bien
ceci: une amnistie sans conditions fut accord~e aux coupables des actes criminels de
1959, que ron qualifia alors d’infractions politiques. Les criminels relaxds se virent
offrir des postes juteux dans
‘administration. Par contre, la mEme loi refusait
l’absolution i ceux qui avaient commis des crimes en se defendant ou en prot~geant
les victimes, parce que, selon ces parlementaires, cela 6quivalait a une opposition ai la
lib6ration du peuple. Voilk sans nul doute, le point de d6part d’une culture d’impunit6
qui raffermit le dressage d’un peuple pour en faire de dociles machines prates Ai tuer
sans remords a tout moment. Par la suite, toute rhistoire du pays sera ddform6e, lue a
travers un grossier prisme qui s’emploiera a 6largir le foss6 entre les composantes de
la nation rwandaise. Le meme incident sera dor6navant lu de deux mani~res diff~ren-
tes : sous l’ceil tutsi et l’autre hutu.
La politique de quotas institutionnalis~e par le pr6sident Habyarimana n’a pas
seulement port6 atteinte h la notion de competence et de m6rite, mais a aussi port6 au
pinacle la valorisation ou la fiert6 d’une ethnic, c’est-i-dire une qualit6 innde. Ce qui
est dr6le, c’est que le Rwanda se plagait aux premiers rangs des d6tracteurs de
i’apartheid sud-africain. II rdclamait A cor et a ci la lib6ration de Mandela, alors que
dans ses ge6les, dans ses rues et hors de ses frontires, des milliers de mini-Mandelas
criaientjustice, libert6 et 6galit6.
Ce qui me pousse aujourd’hui a affirmer que le g6nocide twandais est l’un des
plus r6ussis de tous les temps n’est pas tant le bilan math~matique, mais surtout ce la-
vage de cerveau qui fit que, d’un c6t6, plusieurs Hutus consid6errent naturellement
que le voisin tutsi 6tait, en tout temps et A tout fige, un ennemi potentiel, et que de
1’exterminer 6tait, plus que tout, un bon accomplissement du devoir de salubrit6 pu-
blique ; que, de i’autre c6t6, les Tutsis du Rwanda apprirent ii appr&ier leur vie au ra-
bais. Les innombrables t6moignages queje pus recueillir sur le terrain m’apprirent DL ma
stupefaction que les Thtsis avaient 6t6 amends a s’inqui~ter davantage de la mort d’un
Hum que de celle d’un autre Ttsi, qu’ils estimaient finalement naturelle, voire lgitime.
La marque la plus distinctive du g~nocide rwandais, par rapport a tout ce que
I’humait6 aitjamais connu, c’est que le crime n’a pas 6t6 perp~trd par un corps tech-
niquement sp~cialis6 dans i’enl~vement des vies humaines comme une arm e, une
milice, etc.
Pour comprendre, si tant se peut, la participation de la population civile dans les
massacres du printemps 1994 sous les tropiques africains, il faut aller chercher du
c~t6 du culte du chef a qui les traditions reconnaissent des pouvoirs quasi divins, aux-
quels on doit consentir une ob6issance aveugle. Lorsqu’ils y furent appels par leur
autorit6, nombre de paysans rwandais jadis paisibles se mu~rent en sadiques bour-
reaux. La d6mission, quand ce n’6tait pas simplement la compromission de la soci6t6
civile, des scientifiques, des intellectuels et de I’tglise affaiblit s6rieusement le camp
de ceux qui esp6raient encore arrter le pire. Ces demiers, bien qu’ils n’aient point 6t6
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
firent preuve d’un
nombreux,
immense courage et d’un profond sens de
l’engagement. Ils se retrouvaient aussi bien dans une ethnie que dans l’autre. Permet-
tez-moi de leur rendre aujourd’hui un hommage plus qu’appuy6. Si nous pouvons en-
core aujourd’hui supporter notre visage d’humains en nous regardant dans la glace,
c’est en pensant qu’ils ont 6t6 IA. Un petit mot suffira pour leur exprimer la profon-
deur de ma reconnaissance: merci.
Toujours dans le domaine local, deux 616ments ach~veront la malade-nation
rwandaise: d’abord, la pauvret6 et la surcharge drmographique. Ce petit pays au
cceur de l’Afrique ne pouvait plus contenir la totalit6 de ceux qui revendiquaient le
droit de l’habiter. E fut d~s lors ais6 de faire accroire A la population, majoritairement
analphab~te, que le retour des anciens r6fugi6s allait signifier l’apocalypse 6conomi-
que et d6mographique pour la nation.
Enfin, et non des moindres, le rrle des m~dias. Quand l’on pense que la popula-
tion rwandaise prend les propos des journalistes pour parole d’6vangile, on ne peut
que se reprdsenter A quelles extrrmitrs elle a 6t6 conduite par ce que l’on a appel6 les
mrdias du genocide quand ils distillaient leur venin de la haine.
leur conscience s’en chargera
Ceci dit, Mesdames et Messieurs, si l’on tient A qualifier le crime de g6nocide de
crime contre l’humanit6, il est de bon ton de d6noncer les absences de cette humanit6,
justement. Au lendemain du gdnocide, nombre de sp6cialistes, d’agences humanitai-
res, d’artistes et autres du monde entier se sont empress6s de rcup6rer le drame pour
vendre leur image ou leurs projets. Des centaines de conf6rences comme celle-ci ont
6t6 organis6es dans des cercles oti l’on n’avait m~me pas la noblesse de convier le
moindre reprdsentant du peuple rwandais lui-m~me. Des dizaines de conf~rences et
de levees de fonds ont 6t6 organisres sans que le moindre centime ne parvienne aux
pauvres survivants de cette horreur innommable. Une hallucinante quantit6 d’images
tournes, d’articles rdigds, de photos prises ont 6t6 distribu6s sans que la moindre
plus-value ne s’oriente vers le Rwanda. Je ne suis pas ici pour faire le r6quisitoire de
ces charognards des d6tresses humaines –
ileux que
moi –
je veux juste dsplorer l’indiffrrence coupable des millions d’acteurs socio-
politiques importants de partout au monde quand ils ont 6t6 avertis de l’imminence du
drame. Aujourd’hui, on surmrdiatise les carences onusiennes, les ordres de non-
engagement donnrs au g~nral Dallaire lorsqu’il demandait l’autorisation de d6man-
teler un plan grnocidaire dont il venait d’Etre avis6, les criminels commandements de
retrait donn~s au contingent belge des Casques bleus, pr6lude au retrait de la
MINUAR, et j’en passe. Mais combien sont au courant des fins de non-recevoir remi-
ses A des personnes comme Madame Rose Ndayahoze, accompagnre de ses avocats
les professeurs Irwin Cotler, ici pr6sent, et J&rme Choquette, quand ils annongaient
un drame imminent si on ne firait pas les legons qu’imposait la survenue du g6nocide
des Hutus du Burundi en 1994 ? Combien connaissent un rapport, r6dig6 en 1986 d6jh
par le docteur Ben Whitaker, qui d6montrait que le monde n’6tait pas suffisamment
outill, que ce soit politiquement, institutionnellement, juridiquement ou technique-
ment, pour faire face h un g6nocide, un rapport qui prend poussi6re dans les caves des
Nations Unies ? Je pourrais encore allonger la liste avec les hurlements d6sesp6rrs des
d6fenseurs des droits de l’homme, de certains humanitaires ou autres journalistes. Plus
2000]
F BUGINGO – RWANDA: CHRONIQUED’UN G#NOCIDE PR#VISIBLE
183
d6sesp~rante est la competition que se sont livr.e ces memes anciens aveugles at monter
sur tous les podiums possibles pour se m6riter la palme de la larme la plus touchante.
Inutile de vous rappeler aussi la complicit6 active et passive de ces personnalit~s
morales appel~es ttats quand le drame avait d6jai cours. De la France, qui armait les
criminels, aux Etats-Unis, qui refusaient d’employer le mot g6nocide pour retarder le
devoir d’intervention, en passant par le Canada, qui a abandonn6 un de ses gdnraux
sans arm6e en territoire dangereux, et les autres, aucun pays ne devrait s’enorgueillir
d’avoir port6 secours au peuple rwandais. Des millions de dollars ont 6t6 d6pens~s
pour reconstruire le pays et juguler ‘h6morragie qui affectait les ttats voisins. Com-
bien aurait-on pu 6conomiser si, dans un moindre 61an de sagesse, on avait prdvenu
plut6t que couru gu6rir ? Alors que nous c6lbrons en grande pompe le cinquan-
ti~me anniversaire de la Ddclaration universelle des droits de l’homme’, comment
pouvons-nous tant d’Etres se faire exterminer sans d6fense ? Pendant que nous ddnon-
gons avec fracas l’int6grisme de certains musulmans, le racisme des partis d’extrame-
droite, et autres d6rives sociales, on est pli6 de tristesse A penser que le Rwanda n’a
6t6 abandonn6 que parce qu’il 6tait trop pauvre, trop lointain et surtout, comme disait
l’activiste Allison des Forges, <
Maintenant, Mesdames, Messieurs, qu’avons-nous appris du g6nocide du Rwan-
da ? Winston Churchill disait avec justesse : < Oublier le pass6, c'est lui permettre de
revenir b> Et si nous avions trop vite oubli6 les milliers de morts du printemps 1994 ?
En tout cas, la multitude de disparitions non 6lucid es des camps de rifugids hutus du
Zaire, d6mantel6s lors de l’avancde de la rbellion congolaise qui fit tomber le dicta-
teur Mobutu en 1997, prouve que ‘histoire s’est peut-Etre rejou6e. A tout le moins, il
est prouv6 que le potentiel de destruction est bien existant. La fragilit6 socio-politique
des pays limitrophes comme le Burundi, le Congo ou 1’ex-Zire en fait des champs
favorisant la culture du germe g6nocidaire. Je suis toujours pein6 d’entendre des ex-
tr6mistes d’un camp justifier le massacre de r6fugi~s hutus du ZaYre par le g6nocide
de 1994, et ceux de l’autre camp vouloir excuser leur forfait par ce qu’ils appellent la
vengeance tutsie de 1997. I1 n’y a que de minables math6maticiens qui puissent pen-
ser qu’un g6nocide contre un autre font un match nul. A ma connaissance, cette addi-
tion nous donne deux g6nocides. Deux g6nocides de trop, parce qu’un g6nocide est
toujours de trop. Alors, la premiere legon du gdnocide rwandais vaut bien aussi pour
l’ex-Yougoslavie, pour le Kosovo, pour
‘Algdrie, comme pour toutes les sc nes
d’horreur: un g6nocide n’arr&ejamais tant que lajustice n’a pas puni le d6lit. Et c’est
l le premier 6chec des diffdrents tribunaux qui ont 6t6 institu~s pour rprimer les cii-
mes contre l’humanit6 perp6tr6s h travers le monde: nous n’avons fait que juger les
coupables de ces atrocits, mais jamais les crimes eux-memes.
Les 6lucubrations enragges des dirigeants du monde contre les ambulances Pino-
chet, les corbillards Mobutu, Habyarimana ou les amputds Milosevic ou Mladic ne
‘Rgs. AG 217(m, Doc. off. AG NU, T sess., supp. n 13, Doc. NU AIS1O (1948) 71.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
peuvent dissimuler les images insultantes de la juge Louise Arbour refoul6e h la fron-
ti~re yougoslave, ni la d6vastatrice guerre qui a cours au Congo, ni les autres plateaux
de d6mission du regard international. Le g6nocide, Mesdames, Messieurs, n’est pas
un crime du pass6, c’est une trag6die d’actualit6, qui peut survenir partout si l’on ne
batit pas des socit s qui r6prouvent fermement ce forfait. Nous sommes en train de
faillir ce devoir majestueux et s~culaire qui consiste h l6guer aux g6n6rations futures
un monde meilleur. Notre monde actuel, malgr6 ses avanc6es techniques et scientifi-
ques, n’a jamais 6t6 aussi fragile face A des vis6es totalitaires, racistes et radicales.
Nous sommes en danger de disparition, nous autres les humains.
Les planificateurs des solutions finales ont le talent de percevoir rapidement la 1,l-
chet6 plan6taire. Si Hitler a r6ussi sa Nuit de cristal, Habyarimana au Rwanda a test6
la disponibilit6 internationale en planifiant des mini-pogroms avant de passer A la vi-
tesse sup6rieure. C’est quand il s’est rendu compte que personne ne lui reprochait les
massacres de 1993 et autres qu’il s’est plac6 dans l’optique du plus t6m6raire. De
m~me, laisser impunis les crimes de Rashak au Kosovo est le meilleur sauf-conduit
que l’on puisse fournir aux g6nocidaires de l’ex-Yougoslavie. D6trompez-vous, un
g6nocide ne survient pas accidentellement au coin d’une rue ou au d6tour de
l’histoire ; c’est une banale addition de d6missions et d’oublis plan6taires qui conduit
toujours A ces hypocrites jurons de
cette justification de la surprise r6ussit-elle toujours A s’imposer quand le drame a
cours ? Plusieurs acteurs doivent en etre bl m6s…
D’abord, les victimes et les rescap6s eux-m~mes A travers le monde. Une absence
de solidarit6 plan6taire 6chappe l’opportunit6 de s’instruire mutuellement des signes
avant-coureurs, des techniques d’arrestation et de jugement des criminels, des possi-
bilit6s d’obtention de d6dommagements pour les survivants et des proc6dures de r6-
pression du n6gationnisme. Le g6nocide contre les Juifs par Hitler est l’un des plus
document6s, des plus fouill6s et des plus expliqu6s. II est d~s lors d6plorable de se
rendre compte que les fruits de ces recherches ne sont pas suffisamment diffus6s pour
pr6venir les drames futurs. II en va de m~me pour la rdaction des m6moires du g6no-
cide. Un proverbe africain dit justement,
vu, connu et surv6cu devraient un jour se faire historiens de ceux qui viennent de voir
et qui sont encore trop 6prouves pour t6moigner d’eux-m~mes.
Aussi, si l’encre a souvent coul6 pour d~crire l’horreur ou 6riger des professions
de foi, peu de temps a 6t6 consacr6 A la question des sympt6mes annongant le g6no-
cide. Jusqu’au dernier jour, Habyarimana 6tait accueili dans tous les cercles du
monde, alors que la machine de la mort 6tait d6jA en marche. On ne peut pr6venir un
g6nocide si on ne le voit pas venir; et on ne peut le voir venir si l’on ne d6passe pas
les convenances politiques et diplomatiques qui font des diables de la mort des anges
des relations intemationales.
A ce niveau, il faut d6noncer la d6rive m6diatique vers la promotion des raccour-
cis de compr6hension. Les m6dias forgent des regards instantan6s qui ne replacent
que rarement ‘6v6nement dans son contexte global pour l’ancrer A des racines. C’est
ainsi que, tragiquement, du g6nocide rwandais, le monde n’aura surtout connu que les
2000]
F BUGINGO – RWANDA : CHRONIQUED’UN GENOCIDEPREVISIBLE
185
camps de la mort de cholera a Goma. IU commence alors l’ceuvre de ngationnisme
qui est la continuation du g6nocide. De la r~cupration de l’histoire par les scientifi-
ques et les politiques a l’invitation aux d6bats contradictoires de prsum6s coupables,
en passant par les multiples rafistolages du bilan final du g6nocide, le n6gationnisme
sous ses multiples masques est la forme la plus mesquine, la plus feutrne d’entretien
de la graine g6nocidaire, parce qu’il nie ce qui a 6t6 et fait 1’61oge de ce qui ne fit
point. Au Rwanda, le n6gationnisme a conduit a la globalisation des responsabilits, a
l’accroissement des ranceeurs, a la radicalisation des penses et
’61oignement de
l’horizon de r6conciliation.
Le g6nocide du Rwanda a aussi r6v6l6 les lacunes des m canismes internationaux
de pr6vention on d’arrt des tragedies. La politique dans sa forme la plus m6prisable a
laiss6 des milliers de victimes p~rir en retirant des gardiens de paix qui auraient pu
6viter le comble. Une solution s’impose: la s6paration des fonctions techniques des
administrations politiques. Aux juges l’application du droit, aux experts la d6finition
des signes annonciateurs, aux soldats l’intervention de force, etc. II faut ds lors ac-
c~l&er la mise en place de corps techniquement sp~cialis6s comme la Cour p~nale
intemationale et les diff&entes forces continentales de maintien de la paix.
De tout temps, les g6nocides se dissimulent sous les masques de la guerre et de la
logique de d6sengorgement 6conomique. Alors, ne nous leurrons pas: tant qu’il’y au-
ra des guerres et des pauvres, notre monde aura toujours le pied sur les rebords des
pr6cipices g6nocidaires. Et quand on n’a pas su s’indigner des injustices et autres af-
fronts dits mineurs aux droits de l’homme, on ne sait alors plus comment empecher le
cercle de se vicier davantage, et on se retrouve atjurer ne pas avoir vu le drame arriver.
Mesdames, Messieurs, les g6nocides prenant naissance dans l’esprit de l’homme,
c’est a partir de la qu’il faut d6jk dlever les d6fenses de la paix. Et la est le devoir de
tout un chacun, citoyen du monde. Je souhaite de tout ccur que cette rencontre ne se
contente pas seulement d’6tre un forum d’expression du talent rh6torique, mais qu’un
plan d’action concret puisse atre propos6 pour mener a la meme table de rflexion
tons les partenaires de pr6vention et de rpression : c’est-i-dire ceux qui ont la charge
de poser des r6flexions en face de ceux qui ont le devoir d’agir; ceux qui jugent et
ceux qui alertent; ceux qui d6noncent et ceux qui informent. Cette rencontre, que
j’appelle de tout mon souffle, aurait alors comme but, dans un esprit de rdalisme et de
r6solution, de d6gager sans complaisance les &checs du pass6 et de confronter soi-
gneusement les projets d’aveir.
Agissons ite pour que notre rencontre avec le prochain mill6naire soit celle de ]a
renaissance. Je crois que le succ s peut se trouver Ai notre port6e, tant que nous le
voudrons.
Les victimes et les survivants du Rwanda nous le rclament. Apr~s avoir faii a
les protger, faisons que nous n’&houions pas 6galement ai garantir la sdrnit de leur
repos.
Je vous remercie.
Does Intemational Law Impose a Duty upon
the United Nations to Prevent Genocide?
Stephen J.Toope”
The speaker begins from the premise that interna-
tional law must prevent human rights abuses, and not
just punish them after the fact With this in mind, he
considers the jurisdiction of the United Nations to ad-
dress cases of human rights violations within the bor-
ders of a sovereign state, including both what the
United Nations is mandated to do in its charter in re-
sponse to genocide, and whether it is legally bound to
act on this mandate. Contemporary UN practice shows
that the United Nations has seized a mandate to inter-
vene to uphold human tights when they are violated
within a sovereign state. Further, provisions of the Con-
vention on the Prevention and Punishment of the Crime
of Genocide oblige the United Nations to act to prevent
genocide. Beyond this, however, there is an erga onines
obligation owed by the United Nations to the interna-
tional community to prevent gross violations of human
rights. The existence of this obligation, and the recipro-
cat rights it creates, has been acknowledged by the In-
ternational Court of Justice as existing between states
and the international community. It extends to the
United Nations as a collection of states, all subject to
this obligation to prevent crimes against humanity. The
result of this is that the United Nations is legally and
morally obliged to address genocide.
Lauteur, se basant sur la prdmisse sclon liquelle
le droit international doit prvenir les violations des
droits de l’homme, plut~t que de simplement les punir
apres qu’ells se sont produites. passe en revuo la com-
pltence des Nations Unies en cc qui concern les vio-
lations de ces droits i l’inticur ds frontires d’un
1tat souveain. Cela inclut, ai La fois, la port&-
du man-
dat des Nations Unies dans les cas de gdnocida. et leur
obligation dventuelle d’agir pour mettre cc mandat en
application. La pratique contemporaine de I’ONU rd-
vale l’mergence d’un mandat d’intervention pour re-
m&ier aux violations des droits de l’homma dans un
.tat souverain ; de plus, la Com’ention stir le genocide
oblige l’Organisation a agir dans de tels cas. Da ma-
ridre plus fondamentale, les Nations Unis sont dbi-
trices d’une obligation erga ornes enems la commu-
nautd intemationale, qui consiste a prdvenir les viola-
tions massives des droits do l’homme. L’existence d
cette obligation entre les ltats et la communautd inter-
nationale, et des droits rkciproques qui en sont issus. a
dt
justice.
LONU constituant un groupcment d’ltts tos sujets i
cette obligation de prrvcnir les crimcs
contre
l’humanitd, il en r sulte quo l’Organisation elte-m2me a
l’obligation Idgale et morale de faire faze aux cas do
genocide.
reconnue par la Cour internationale d
“Professor of Law, McGill University. A former Dean of McGill’s Faculty of Law, Professor Toope
recently won the Francis Deak Prize of the American Society of International Law. This paper was
prepared for a panel on “Early Warning The Obligation to Warn-The Duty to Act” at the interma-
tional conference Hate, Genocide and Human Rights Fifty ears Later: What Hme We Learned?
What Must We Do? (Faculty of Law, McGill University, 28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 187
Mode de r6f~rence: (2000) 46 RD. McGill 187
188
MCGILL LAW JOURNAL/REVUEDEDROITDEMCG1LL
[Vol. 46
I. What Can the United Nations Do?
II. Must the United Nations Act?
2000]
S.J. TooPE- A DUTYTO PREVENT GENOCIDE?
Look you, if nmen clearly sin against the lavs of nature and of manuun I
believe that anyone whalsoever nmay check such men by force of arms!
The fact nmust also be recognized that kings, and those who possess rights
equal to those kings, have the right of denmnding punishments not only
on account of injuries conmitted against themselves or their subjects, but
also on account of injuries whict do not directly affect them but exces-
sively violate the law of nature or of nations in regard to any persons
whatsoever … Truly it is more honorable to avenge the wrongs of others
than ones own… 2
Gentili and Grotius were among the most influential figures in the founding of
international law. For both, being rooted in the natural law tradition where all people
owe obligations to God and to their fellow humans, there could be no question that
gross abuses of human rights perpetrated by a sovereign power could be stopped by
other sovereigns through a just war.
A similar idea finds modem expression in article 1 of the Convention on the Pre-
vention and Punishment of the Crime of Genocide, where the contracting parties
“confirm that genocide, whether committed in time of peace or in time of war, is a
crime under international law which they undertake to prevent and punish:’ Similarly,
in 1949 the United Nations War Crimes Commission stated categorically that “the
right to punish war crimes … is possessed by any independent state whatsoever, just as
is the right to punish the offence of piracy.”
Of course, there is a fundamental difference between the type of “punishment”
postulated by Gentili and Grotius, and the punishment anticipated within the context
of the Genocide Convention and meted out in Nuremberg and today in The Hague
and Arusha. Whereas Gentili and Grotius assumed punishment through the use of
force in war, more modem punishments presume individual responsibility and the
sanctioning of specific, named perpetrators of massive human rights violations.
At first blush, the modem version of punishment seems more attractive, being
tailored to individual moral responsibility and therefore avoiding the excesses of
military conflagration. But I want to suggest that we modems may have lost some-
thing in the translation of Gentili’s and Grotius’s ideas into contemporary intema-
‘A. Gentili, De jure belli libri tres, vol. 2, ed. by Carnegie, trans. J.C. Rolf, quoted in T. Meron,
“Common Rights of Mankind in Gentili, Grotius and Sudred” (1991) 85 AJ.I.L 110 at 114. The brief
editorial comment by Meron is an excellent introduction to the historical origins of the concept of
erga omnes obligations, that is, obligations owed to humankind rather than to a particular state.
2 IL Grotius, Dejure belli acpacis libri tres, Bk I1, ed. by Carnegie, trans. E Kelsey, Chap. XX, pt.
XL(1), quoted in Meron, ibkL at 112.
3 9 December 1948,78 U.N.T.S. 277, Can. T.S. 1949 No. 27 (entered into force 12 January 1951)
[hereinafter Genocide Convention].
4 (1949), 15 T.W.C. 26.
190
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
tional law. That “something” is an ability to act to prevent, or to “check” in Gentili’s
words, grotesque abuses of human rights such as those catalogued by my two prede-
cessors on this panel in relation to Rwanda and the former Yugoslavia. I would only
add that those examples are by no means exhaustive of modem barbarity. The Soviet
Union under Stalin and contemporary Sudan are other examples of regimes that have
perpetrated nothing short of genocide against targeted groups amongst their own
populations. I cannot imagine any sane ethical framework in which the punishment of
perpetrators of extreme human cruelty is preferable to prevention of their crimes. As
Justice Abella argued so powerfully last night, trials are “too late”!
The writers of the Talmud, the Koran, and the Christian Bible grappled with the
question whether or not a human being bears a responsibility to intercede to help an-
other human being in danger. Both the common law and the civil law traditions have
struggled with this “duty to rescue”. International lawyers cannot avoid moral respon-
sibility in addressing the related question of whether the law imposes a collective duty
to prevent massive violations of human rights within the borders of a sovereign state.
To keep the case as circumscribed as possible, I will limit my observations to the
specific situation of credibly reported impending genocide within a state. I will further
narrow the argument by pointing my question specifically at the United Nations.
Casting one’s juristic gaze upon the UN is fair in this context, for the United Nations
is the only collective expression of universal humanity. Moreover, as I will argue in a
moment, the United Nations has specifically been granted-and has seized-a man-
date to promote internationally recognized human rights. As genocide is among the
clearest violations of fundamental human rights, the United Nations cannot ignore any
credible threat of genocide. Two questions remain. What can the United Nations do?
And what must the United Nations do when a threat of genocide is authoritatively
drawn to the attention of the Organization?
First, a caveat. We must recognize that in asking what the UN can and should do,
we are implicitly asking what member states will let it do. To act, the UN still relies
on the consent of its members, especially the permanent members of the Security
Council. Any “failures” of the UN are largely-though not entirely-imputable to a
failure of political will on the part of member states.
I. What Can the United Nations Do?
Perhaps surprisingly, I would suggest that the question “What can the United Na-
tions do?” when confronting possible genocide is not particularly controversial. Un-
der article 1, paragraph 3 of the Charter of the United Nations.’ the Organization is
5 See R.S. Abella, “The Instructive Power of Outrage: Remembering Nuremberg” (2000) 46 McGill
L.J. 113 at 118.
‘ 26 June 1945, Can. T.S. 1945 No. 7 [hereinafter UN Charter].
2000]
S.J. TOOPE- A DuTYTo PREvENT GENocIDE?
mandated “to achieve international cooperation in … promoting and encouraging re-
spect for human rights and for fundamental freedoms … ” Similarly, as required by
article 55 “the United Nations shall promote: … (c) universal respect for, and obser-
“Preventing genocide
vance of human rights and fundamental freedoms for all
would seem to fall squarely within the goals of the UN.
Of course, it is also true that for generations state leaders have argued with great
success that human rights violations which are internal to a given country fall outside
the scope of the United Nations’ attention. Fundamental principles of the UN Charter
such as “sovereign equality”,” the non-use of force,” and non-intervention in “domestic
jurisdiction'” have been invoked to preclude any United Nations scrutiny, much less
action, in cases of internal human rights violations. Yet this traditionalist and state-
centric view of the United Nations, and by extension of international law, has been
challenged by UN practice over the last twenty-five years. In his thoughtful book, Inter-
State Accountability for Volations of Human Rights, Menno Kamminga concluded that
contemporary practice within the United Nations clearly supports the proposition that a
violation of a United Nations human rights standard is not essentially within the domes-
tic jurisdiction of a state, and is therefore subject to international scrutiny.
It is well known that the justification for United Nations actions on questions of
human rights is almost always that massive violations of human rights within a given
state have amounted to a threat or breach of “international peace and security”. Hu-
man rights concerns have, therefore, been brought within the jurisdiction of the Secu-
rity Council under article 24, paragraph 1 of the UN Charter. The Security Council
has authorized measures to protect the Kurdish minority populations in Northern Iraq,
massive military intervention in Somalia, and the establishment of international
criminal tribunals for the former Yugoslavia and Rwanda, to name but a few examples
of activity in the area of human rights. It is interesting to note that in a case of poten-
tial genocide, another principal organ of the United Nations, the International Court of
Justice, also seized jurisdiction. In a case involving Bosnia and the rump of Yugosla-
via (Serbia and Montenegro), the International Court held that it possessed jurisdic-
tion to order provisional measures requiring the Federal Republic of Yugoslavia to
“take all measures within its power to prevent commission of the crime of genocide”
even before the court had determined that the Genocide Com’ention actually applied
to the case at hand.” So the proposition is firmly established that the United Nations
7/bid, art. 2(1).
art. 2(4).
S!bid.,
9/bid, art. 2(7).
‘0 M.T. Kamminga, Inter-State Accountability for Violations of Human Rights (Philadelphia: Uni-
versity of Pennsylvania Press, 1992).
” Case Concerning the Application of the Com’ention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Request for
the indication ofprovisional measures), [1993] LCJ. Rep. 3 at 52, para. 46.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
can take collective action to punish genocide. The more interesting and provocative
question is whether it must take action to prevent genocide.
II. Must the United Nations Act?
Before analyzing the duties of the United Nations, it would be wise to investigate
the legal situation vis-A-vis individual states. As concerns war crimes, distinct from
genocide, the 1949 Geneva Red Cross Conventions contain provisions requiring states
to pass legislation to provide penal sanctions for grave breaches of the conventions.”
This includes an obligation to seek out offenders and to bring them to justice. Al-
though these conventions clearly impose obligations on the part of individual states,
the obligations remain ex post facto. A modest improvement was contained in the first
protocol of 1977 to the 1949 Geneva Conventions,” which instituted a fact-finding
mission to which allegations of war crimes could be referred. In principle, this might
allow contemporaneous exploration of war crimes accusations as they are made, not
simply relying upon subsequent prosecution to address the problem of impunity.
In the case of genocide, however, I believe that a stronger argument can be made
for the existence of a duty to prevent, not simply to punish, this international crime.
As I noted previously, article 1 of the Genocide Convention requires that the con-
tracting parties prevent and punish the international crime of genocide. It was this
duty to prevent the crime that no doubt underlay the seizure of jurisdiction by the In-
ternational Court of Justice in the case between Bosnia and Serbia and Montenegro.
The court could not have asserted a right to issue what amounted to an injunction
were the international obligation merely to punish genocide after the fact.
It should also be noted that article 8 of the Genocide Convention provides specifi-
cally that “any contracting party may call upon the competent organs of the United
Nations to take such action under the Charter of the United Nations as they consider
appropriate for the prevention and suppression of acts of genocide:’ Although article
8 does not grant any enhancement to the jurisdiction of any UN organ, the article cer-
tainly serves as a challenge to the UN to take its responsibilities seriously. Needless to
say, this also implies a challenge to the contracting parties to the Genocide Conven-
tion to push the United Nations to act.
Aside from the specific duty to act contained in the Genocide Conveniion, I want
to trace out a final and more controversial argument. In maldng this argument, I am
building upon the research of one of my graduate students, Mr. Shirvan Majlessi.”
‘2 Geneva Red Cross Conventions of 1949,75 U.N.T.S. 31ff. (1949).
3Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Wctinis of International Armed Conflicts (Protocol I) (with Annexes), 6 August 1977, 1125
U.N.T.S. 3, Can. T.S. 1991 No. 2.1 (entered into force 12 July 1978).
” S. Majilessi, “Use of Economic Sanctions under International Law: A Contemporary Assessment”
(LL.M. Thesis, McGill University, Faculty of Law, 2000) [unpublished].
2000]
S.J. TOOPE- A DuTY TO PREVENT GENOCIDE?
Genocide is one of the most grave international wrongs imaginable. As such, the pre-
vention of genocide must fall within the definition of an erga aones obligation-that
is, an obligation of such importance to the international community that all states have
a care towards its fulfillment. Erga ones obligations were discussed by the Interna-
tional Court of Justice in the Barcelona Traction case.” The court distinguished be-
tween common, reciprocal obligations owed between states, and those owed by a state
“towards the international community as a whole”‘ All states were said to have a “le-
gal interest in [the] protection” of such “rights”.” It is interesting that the court
equated the terms “obligations” and “rights”. I see this confluence of concepts as in-
tentional and important. The obligation owed erga ones does not necessarily give
rise to a corresponding duty to insist upon the enforcement of the obligation. How-
ever, if there is a right to expect the performance of erga onmes obligations, a right
vested collectively in “the international community as a whole” (to quote the World
Court), then an argument can be traced out that individual states are burdened with a
duty under customary law to enforce the obligation, just as they have agreed to within
the treaty regime of the Genocide Convention.
Admittedly such an argument depends in part on recasting the traditional notion
of “the international community”. This phrase has been employed historically to refer
to the grouping of sovereign states. But at least since Nuremberg and Tokyo, and the
acceptance of the legal rubric of crimes against humanity, it is increasingly obvious
that human rights norms have evolved to challenge the old notion of international le-
gal personality, so that for limited purposes individual-,and groups can now properly
be treated as subjects of international law. This implies, I suggest, that erga omnes
obligations, particularly in the field of human rights-obligations which are owed to
“the international community”-cannot simply be waived by states through inaction.
Hence, there has now emerged in human rights norms of the late twentieth century a
duty to prevent genocide, an erga omnes obligation par excellence.
In my reading of the law, this would give rise to an individual duty upon states to
act in cases of apprehended genocide. But what of the United Nations? The UN
Charter framework vests all effective power in the UN Security Council. It has long
been assumed that the Security Council has jurisdiction to impose sanctions or to take
measures amounting to the use of force only when international peace and security
are threatened. At times this limitation has proven porous, for the Council has served
as its own final arbiter in the interpretation of this condition for action. Intervention
has been authorized, for example, in essentially internal matters; witness Somalia.
More often, the jurisdictional limitation has been invoked either collectively, or by a
vetoing power, to preclude action. This is despite the fact that article 24(1) refers not
Case Concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain), Second
Phase, [1970] LCJ. Rep. 3 at 32, paras. 33, 34.
16/bia at pam. 33.
17lbi
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
only to the “responsibility” of the Council, but also to its “duties” in the maintenance
of international peace and security. These duties have been more honoured in the
breach than the observance.
But I want to suggest that the Security Council may be vested with another basis
for action in the case of apprehended genocide; that is, its right and duty, acting on
behalf of all states and of humanity, to prevent genocide. This is the epitome of erga
omnes obligations. In many cases of genocide, the scope of the crime will effectively
preclude the action of all but the most powerful of states. A collective response is then
morally and legally mandated. It is true that, given limitations in the UN Charter, the
Security Council might not be able to issue binding decisions simply on the basis of
its duty to implement an erga omnes obligation in the area of human rights. But this in
no way precludes the Council from adopting an active coordinating and recommen-
datory role that carries strong legitimacy.
Shortly after the ouster of President-for-Life General Idi Amin in Uganda, the
new Ugandan leader, President Binaisa, spoke to the UN General Assembly, frankly
castigating the inaction of the UN during Amin’s reign of terror. He asked the right
question: “For how long will the United Nations remain silent while Governments
represented within this Organization continue to perpetrate atrocities against their own
people?”‘” The United Nations was largely silent in Cambodia, silent in Uganda, and
silent in Rwanda. It is silent today in Iran as the Baha’i population is wiped out. It is
silent today in the former Yugoslavia, where attempts at genocide continue. There is
clearly no moral justification for such silence. I have argued that there is no legal justi-
fication for silence. As Canada takes up a privileged seat in the Security Council, why
should we not challenge ourselves to break the silence, and to help the United Nations
to act to prevent genocide. The mantra “never again” is oft repeated, but it has become
meaningless in the face of continuing failures to confront contemporary acts of geno-
cide. It need not be so. It should not be so. Thank you.
” President Godfrey Lukongwa Binaisa (Speech before the UN General Assembly, NewYork,
28 September 1979), quoted in Kamminga, supra note 10 at 63.
The International Tribunals for Serious
Violations of International Humanitarian Law
in the Former Yugoslavia and Rwanda
Louise Arbour”
The speaker undeflines how the ideal of international
criminal law enforcement is solidly established for the grossest
violations of human rights. There are two aspects of the current
difficulties in Kosovo: (1) non-compliance by states, and (2) the
challenge of operating an international criminal justice system
in “real time”. We do not need a police force; rather, we need
an international military presence. A state of total lawlessness is
beyond police capability and the social consensus on which that
capability depends.
NATO is increasingly playing a new role as a peace bro-
ker in post-conflict societies. It makes sense to have a partner-
ship between military peacekeeping operations and criminal
law enforcement in a fundamentally non-compliant state. The
military could enter a post-conflct simation on the condition
that it take out war criminals, while vie%ing everything else
neutrally. The speaker looks forward to the day when this is the
military position.
In a peacekeeping environment, the military has impor-
tant roles as enforcers and as witnesses. For a successful par-
nership between the enforcement of the law of war and
peacekeeping, we must overcome certain defensive reservations
of the international military culttre. The greatest challenge in
Kosovo is not so much an agreement between the two
anring
factions as the fostering of a peacekeeping environment in
which international criminal justice will have a part to play.
–
Apr s avoirs ulignE L quel point It co,ept d ba mi= en
application do drit pfna itmr tivaa fc-e =n
Is
plus graves du droit humanitaire ent largercant czcxrp. I*itur
souave dcux prob!dmztiques relztives Zt la situatien au Kvo-
vo:0 le manque da coop!r=induatiqu: et rla difficu-t
dz
mettre en place un s stme de justice p1na: isr,:emziaaa cd-
.tmps rleb. Plutft qu’tes force poliziir. ceae ur
rant en
prsencre militaire internaia qui s’impas e per attair.ke L3
objectifs fi;xs par i’idal de justice irnrm.t-dr,. car I’ebszr e
d’un, stnseure Igale
l’itdriur d’un 91ra = inzcarab ! e
fourir Is consensus social r-4cessaire ai rerdre effirce l’cctioa
d’un: force de police.
LOTAN joue un nouveau ra!, en taru qua coirti:r d la
pabc dana des socifts ravjgs par des conflits. Le partenria
enute i’opfadoa militaire d. malien d la paix et i’cppV=
a
du droit phal est crucial dars Is cat d’tun L dfai lant a
obligations intemionaale; la force militaire PCrmrat. par
exemple. sarqluitter deats for-at-ens &i nanlure
neutre, en ciblant d fapen exclusive lI cims d u=re.
Dana It cadre d’utr mission ca mairi da- la p-i
force militaireest ‘ppel&s D jo.er d- Wel %-=i.s. ir Cxm
tminols Un pmtw–.n-a rdu&i ecare
comme policiers c comman
Is maintien &- la paix ct I’cpplicatio du dmot d.- la g=re
re-
quiert la modification de certauns ap et da culture milltaim
interationale. Le d4li It plus important au Ko.za ne pmea
tant ‘obtentioa d’un accord entre lea parties bliglrn=, mals
surtaout la crdation d’un eniro.nm n
d: mainsien de la irix
tn rC!. llajnr.
dans lequel lajusticepfale in=mtieona as
rc ac
la
– At the time of this speech, Chief Prosecutor, ICTY/ICTR, now Justice of the Supreme Court of
Canada. This speech was given as the Seventh Ren6 Cassin Lectureship in Human Rights (Faculty of
Law, McGill University, 3 March 1999). The speaker’s work as prosecutor prevented her from deliv-
ering this speech as originally planned as part of the international conference Hate, Genocide and
Hwnan Rights Ffiy Years Later: Wat Have We Learned? What Must We Do? (Faculty of Law,
McGill University, 28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 195
Mode de r6rfence: (2000) 46 RD. McGill 195
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Merci beaucoup, mon cher Michel et chers amis.
Professor Coler invited me to indulge, in a sense, by telling me that I didn’t have
to read a prepared speech; he said I could indulge in being more reminiscent of my
law school days and engaging in something less formal. I don’t often have the oppor-
tunity of the presence of an interested and challenging audience to reflect on the is-
sues that I think are the hard ones. It’s always a bit scary to put on the table for discus-
sion the most difficult issues, but if I could do it anywhere, I think I can do it in an en-
vironment that I feel is supportive and is prepared to engage in this kind of discussion.
It is still scary enough that I will start by setting the background before I tackle what I
consider to be the real challenges for international criminal justice. And I will use, in
fact, the recent events in Kosovo, as I think they are probably the best illustration of
what I want to talk about tonight.
But before I do that, and certainly in light of several questions that were put to me
today, I think it’s important to underline how solidly established, some five years
down the road, the whole ideal of international criminal law enforcement for the
grossest violations of human rights is. We are talking here about the right to life, the
right to security of the person, and the right not to be tortured, raped, and persecuted
on ethnic, racial, religious, or political grounds-very, very fundamental human
rights! And I believe that the use of criminal sanctions as a form of enforcement in
this area is now very well entrenched. For those who may not have followed the work
of the two ad hoc tribunals closely, let me just point to one particular event that I think
captures the strength of this exercise: the guilty plea in the Rwanda tribunal last fall of
the former prime minister [Jean Kambanda] of the interim government of Rwanda,
the government that was in place at the time of the genocide. There has now been a
former prime minister of a country apprehended and brought before an international
jurisdiction, where he had all the rights that we take for granted in international stan-
dards of criminal law enforcement; who pleaded guilty to six counts: five counts of
genocide, including public incitement and conspiracy to commit genocide, and one
count of crimes against humanity; who acknowledged and expressed his remorse for
his involvement in the slaughter of more than half a million of his own people. I will
refer only to that, I think, to show that.after fifty years of inertia, international criminal
justice after Nuremberg and Tokyo is now well entrenched and has made considerable
progress. The size of these institutions and the political support they receive are ex-
pressed, in part, through very solid financial backing from the United Nations. This
makes it clear that we can now start talking and tackling-without the fear of jeop-
ardizing the whole institution-some of the more difficult issues.
These issues are very dramatically illustrated by the current set of difficulties in
Kosovo. There are two aspects. The first is the question of non-compliance by states,
and the second is the question of trying to operate an international criminal justice
system in what I call a “real time” environment. This is more like operating in a do-
mestic criminal law time frame that is relevant, as opposed to going back two, three,
four, or five years and triggering mechanisms of accountability. So I think what has
happened in Kosovo, certainly under my watch in the tribunal, is that we were finally
given an opportunity to work in real time. Others would say we were challenged to try
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L. ARBOUR – THE YUGOSLAVIA AND RWANDA TRIBUNALS
to transform ourselves into this real time institution. [The] Srebrenica [massacre] took
place after the tribunal was created, but we are now, I think, a mature, established in-
stitution. We have resources that realistically are as good as they are ever going to be.
We have reached a point beyond which the United Nations is not going to be able to
generate the capacity to give us more human resources, more technology, or more
money. The question is: Can it be done with more or less what we have? This is a
critical question for the permanent court.
I believe we will have a permanent court, so we have to start asking seriously,
what is it going to look like? These days, you often hear in the context of international
criminal justice the idea that we need a police force, and that it is the lack of this po-
lice force that is crippling the tribunals. I don’t think we need a police force. In fact, I
think we have a police force. What we need is a military force. When I say that we
have a police force, I mean to say that we have the police forces of all states. All states
are required to comply with the orders issued by the tribunal. So we have their entire
machinery of criminal justice at our disposal if the states comply. Domestic policing
operates on the basis of it being fundamentally consensual; but when there is a state of
total lawlessness, the police cannot do their work. At that point, another level of coer-
cion is required. You need military intervention. I think it is very clear that policing is
a function based on a social consensus; in other words, on a form of compliance.
When you enter an environment where there is no compliance of any kind, then hav-
ing a so-called police force is insufficient, and as I said, we have police forces when
we operate in compliant states. It is when we operate, or try to operate, in an envi-
ronment in which there is no compliance whatsoever, no willingness to work with the
tribunal, that something else is required. And in fact, the successes of the tribunals for
the former Yugoslavia are, I believe, attributable to a very large extent to the willing-
ness of SFOR [the Stabilization Force] or NATO to play their role in international
criminal law enforcement. It took them a long time to turn that comer. We have to be
grateful for those in positions of political and military leadership in NATO who have
allowed SFOR to take that step.
When I arrived at the tribunal in The Hague in the fall of 1996, we had seven
people in custody, and by most accounts, we had very little hope of ever getting any-
body else. Most of the indictees were in the Federal Republic of Yugoslavia, Serbia in
particular, or in the Bosnian Serb Republic, Republika Srpska, or in Bosnia and Her-
zegovina. Those governments made it absolutely clear that they would not execute ar-
rest warrants. We now have twenty-six people in custody, and we have had more who
have been released-so we have had up to maybe thirty people in custody-and this
is all attributable to the willingness of SFOR to perform some arrests, which were al-
most invariably followed-not surprisingly in my opinion-by voluntary surrenders.
So the critical role that SFOR played there, I think, makes the point of the need to be
able to rely, when we are in an otherwise lawless or non-compliant environment, on
an international military presence.
What I would like to talk to you about today, maybe in a little more detail, is the
question of partnership between the international enforcement of human rights
through an international criminal sanction, and peacekeeping, or peacemaking. NATO
is more and more playing a new role as the broker of peace in societies that find
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themselves in a post-conflict situation whereby a state of lawlessness has either pro-
voked, or been the result of the conflict.
Negotiations that took place recently in Rambouillet did not actually yield an
agreement to bring peace in Kosovo. These negotiations, we are told, will resume
shortly in Havrereux. I believe that the whole question of the role of peacekeepers-if
they are peacekeepers-is a deal brokered between the warring factions in Kosovo. If
the parties agree to an international military presence to monitor that deal, I certainly
have very high expectations that this peacemaking/peacekeeping operation will be an
even more proactive partner with international criminal justice than SFOR has been in
Bosnia and Herzegovina. I think we are entitled to be even more ambitious this time
around.
Let me just say roughly why I think it makes sense to have this partnership be-
tween military peacekeeping operations and criminal law enforcement in a state
where there is no other alternative, because the state is fundamentally non-compliant.
Many of the violent conflicts that occur today exist as a result of either ancient, recent,
or even ongoing conflicts that were suspended but were never resolved, at least not in
a demonstrably just way. And lack of accountability from powerful criminals is, I
think, very much part of the unresolved nature of many of these conflicts. The need
for third party intervention such as a peacekeeping operation is even more acute
when, in this state of unresolved conflict, the atrocities were committed either at the
hand of a state, or through its collusion or impotence. But the most important reason I
think it makes sense to engage NATO-or any other form of military alliance-in
supporting the enforcement of the law of war (which is the old-fashioned way of re-
ferring to international humanitarian law) is because it is their law. The law that we
are enforcing is the only body of law that distinguishes a soldier in action from a
common murderer. And I would have thought that those who work in this environ-
ment-the military-should be the champions of the enforcement of the law of war.
In fact, I would have thought that when they accept a mandate to come into a situation
of conflict in a peacemaking exercise-obviously they have to come in a neutral
fashion-but I would have thought that it would be perfectly acceptable if the military
said, ‘The price of doing business, our brokerage fee, is that we take out war crimi-
nals. Everything else we are neutral about. We will do what is required. We will dis-
arm, we will assist in monitoring elections; we will do whatever is required, but one
thing is not negotiable: we enforce the law of war. We enforce the Geneva Conven-
tion; we enforce the Genocide Convention; we enforce the Torture Convention, par-
ticularly when these crimes were committed in armed conflict, because it is our law. It
is the law that gives us the legitimacy to kill, and we do not tolerate deviation from
that important body of law in others. That is the price of doing business:’ I’m very
much looking forward to the day where I hear this kind of discourse from military
circles. I don’t think we are quite there yet.
Now, what is required of the military when they are in a peacekeeping environ-
ment? Well, I think there are three things that might be required, and I will address
particularly the first two. One is peacekeepers as enforcers, and I have already alluded
to the arrest initiatives in Bosnia. The second one, which I believe is also very chal-
lenging in many military circles, is peacekeepers as witnesses. The last one, which is
2000]
L. ARBOUR – THE YUGOSLAVIA AND RWANDA TRIBUNALS
the one that the United States in particular uses as a stumbling block to what could
otherwise be its endorsement of the idea of a permanent International Criminal Court,
is peacekeepers as subjects of the law of war–of international humanitarian law.
As for peacekeepers as enforcers: When I arrived at the [Yugoslavia] tribunal,
SFOR had not arrested anyone and was showing very little enthusiasm for embarking
on these kinds of exercises. SFOR had a political mandate. Obviously the military get
their mandate from their political masters, and the mandate never changed throughout
the entire exercise. It was essentially that they could “detain”; the word “arrest” is
never mentioned. SFOR does not arrest. SFOR detains and transfers to The Hague.
SFOR would detain persons indicted for war crimes, if they encountered them in the
normal course of their activities, and if, of course, there was no severe risk of what is
called “collateral damage”, which usually means possible casualties to third parties.
So the whole mandate was to apprehend, detain, and transfer the suspects or indictees
they encountered. The kind of interpretation that one can put to the word “encounter”
is quite interesting to jurists. Is seeing somebody across the street an encounter that
would trigger this kind of activity? In the context of this political mandate, journalists
were encountering indicted persons all the time, but there was absolutely no activity
on the part of SFOR for a very long time. And there were things said, such as, “We
cannot arrest a person indicted in The Hague, because it would compromise our neu-
trality.’ I would challenge that assumption by saying, ‘Tell me what you mean by
that.” I was told, “If we arrest a Serb, we would be seen as anti-Serb:’ This is, of
course, absurd. It’s not a Serb that’s indicted, it’s an alleged criminal, and if arresting
an alleged criminal appears to be a non-neutral position, and if it appears to be taking
sides, I would have thought that it is taking the side of justice, which is exactly where
you would like your military troops to be. There was a doomsday scenario–the Third
World War was going to start, hostages were going to be taken, there were going to be
all kinds of disasters, and in fact, exactly the opposite happened. After SFOR troops
began to act as, in a sense, enforcers of the law of war, people started surrendering
voluntarily to the jurisdiction of the tribunal. Its work managed to progress more rap-
idly, and from my point of view, only good things happened. So I believe that if we
did not have a partnership with the military-with this criminal law enforcement
body-we would have had to seriously contemplate what I was trying to resist at all
costs, moving to trials in absentia. That, I think, would have very dramatically altered
the nature of the enterprise.
The second very critical issue is the idea of peacekeepers as witnesses. It may not
seem to you to be very challenging, but it is a very threatening prospect, I think, for
states who send their military troops to face the prospect that they may have to come
to The Hague and account for what they have observed in the course of their activi-
ties. This is the untold story of non-cooperation–or of slow and reluctant co-
operation–on the part of many states: the fear of exposure. We know that in a na-
tional court, government officials, including military officers, can, under certain cir-
cumstances, be compelled to give evidence, and we have safeguards such as national
security privileges and so on, that can be advanced to bar the disclosure of sensitive
information. But we live domestically in an environment where the criminal justice
system expects that the pursuit of the truth has to be done in all quarters, and that
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[Vol. 46
there are no segments that are completely isolated from participating in the enterprise.
Now, of course, domestically, very few institutions have been immune from the legal
process, but in the international environment, one of the institutions that has been tra-
ditionally immune from virtually all legal processes is the United Nations. The Con-
vention on Privileges and Immunities’ provides that the United Nations is not required
to participate in any domestic law enforcement, or even civil action. So under that
convention, the United Nations has been sheltered for a very long time from the
trauma of even being a mere witness in a courtroom in a way that large corporations,
for instance, have had to accept. Now the Yugoslavia and Rwanda tribunals, and the
International Criminal Court, are not national courts, and in my view, the Convention
on Privileges and Immunities is not applicable to them. Therefore, I believe that we
can subpoena peacekeepers and that we can require that they provide us with docu-
ments which are relevant to our cases. In fact, in the past we have had the contribution
of military officers, including Canadian General Romeo Dallaire, and of others who
testified in both tribunals. Just to dispel any uncertainty on this question, let me read
to you a passage from the Appeals Chamber of the International Criminal Tribunal for
the Former Yugoslavia in the Blaskic case, in which the court said:
international peace-keeping or peace-enforcement
The situation differs for a State official (e.g., a general) who acts as a member
of an
force such as
UNPROFOR [the United Nations Protection Force], IFOR [the Implementation
Force] or SFOR. Even if he witnesses the commission or the planning of a
crime in a monitoring capacity, while performing his official functions, he
should be treated by the International Tribunal qua an individual. Such an offi-
cer is present in the former Yugoslavia as a member of an international umed
force responsible for maintaining or enforcing peace and not qua a member of
the military structure of his own country. His mandate stems from the same
source as that of the International Tribunal, i.e., a resolution of the Security
Council, and therefore he must testify, subject to the appropriate requirements
set out in the Rules.2
Now you may find-again looking at domestic law-that this is pretty pedestrian.
Everybody must testify, of course, subject to advancing a valid evidentiary privilege.
This is extremely challenging to the international military culture, and to the interna-
tional military community, and I believe that this is a threshold that has to be over-
come if there is to be a partnership of the enforcement of the law of war and peace-
making. I chose this topic because I believe that you are very familiar with all reason-
‘ Convention on the Privileges and Inununities of the United Nations, 13 February 1948, 1 U.N.T.S.
15, Can. T.S. 1948 No. 2 (accession by Canada 22 January 1948) [hereinafter Convention on Privi-
leges and Inmmnities].
2 Prosecutor v. Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Deci-
sion of Trial Chamber 11 of 18 July 1997, ICTY Appeals Chamber (29 October 1997), Case No. IT-
95-14 at para. 50 (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber),
Cassese J., online: United Nations
2000).
2000]
L. ARBOUR – THE YUGOSLAwA AND RWANDA TRIBUNALS
201
able efforts that our tribunal has made to seek co-operation and compliance from the
Federal Republic of Yugoslavia in our efforts to investigate offences within our juris-
diction in Kosovo, and to bring to account those responsible for the atrocities com-
mitted there. We are now at this crossroads. We are in an environment in which there
is absolute non-compliance, and we are on the eve, I believe, of the possibility of a
peace agreement that will have a peacekeeping component. The idea that we have to
engage our peacekeepers as partners in the enforcement of the law of war has an air of
reality that I think will be tested in the Kosovo chapter of the peace talks very soon.
I believe that the most challenging part of these peace talks is not so much to get
an agreement between the two warring factions, but to fashion a peacekeeping envi-
ronment in which international criminal justice wiU have a part to play, and where the
momentum that we have built in the last few years will not be lost to political expedi-
ency. To me, this is probably the most critical issue we face now in bringing our work
into real time enforcement.
The Universal Declaration of
Human Rights: Fifty Years Later
David Matas”
The speaker evaluates the effectiveness of the Uni-
versal Declaration of Hunan Rights fifty years after its in-
ception. On the positive side, he notes the pervasiveness of
the right to democracy at the end of the twentieth century.
He also highlights some of the international covenants and
conventions that have been enacted since the inception of
the Universal Declaration to enforce the rights it lays out,
as well as examples of national legislation it has inspired,
such as the Canadian Calrter of Rights and Freedoms.
Yet, although some of the Universal Declaration’s provi-
sions have flourished, others have withered. In some cases,
this is due to the lack of any international enforcement
mechanism. The creation of the Universal Declaration co-
incided with the end of the Nazi war criminal prosecutions
at Nuremberg, and no permanent international criminal
court has been created to carry on Nuremberg’s work. Lack
of will has compromised the application of the Universal
Declaration in two key areas of human rights: the right to
be free from the incitement to discrimination, and the right
to seek asylum. He notes, in particular, that Canada has
been deficient in upholding these rights. While disagreeing
on principle with ranking the rights protected by the Uni-
versal Declaration, he emphasizes how critical the right to
be free from the incitement to discrimination and the right
to seek asylum are for preserving the most fundamental
right of all, the right to life. In conclusion, the promise of
the Universal Declaration will only be fulfilled if all its
provisions are respected and upheld.
Lanuteur fait l’6valuation de i’efficaii
de la DIca-
ration universelle des droits de VI’wmte, cinquante ans
aprZs son adoption. H remarqu: d’abord la for e influanco
exerob: par le principe des droits d&nocratiqu:s en cette
fin de vingti0me sicle, en particulier a tram s l’doption
de conventions et d’ac.ords internationaux mzttat en ap-
plication les droits d’abord formuls dans Ia Dclaraton
univerelle, ainsi que de lois nationales A’en irpiran.L no-
tanment Ia Chatre canadienne des draits a libertis. Pour-
tant, pendant qua certahs dispoitioas do la Dclaratian
universelle rencontraient un indtIi !e suzcs. d’autres oant
fait face t des &hebs, dns danas plusica r cash 1’a rize de
mcanisme international de misc n crue. 6Ains. alors quo
l’adoption de la Diclaralon universelle co-mcidait avec in
conclusion du procs des criminals de gume nazi; 5 Nu-
remberg, aucune cour criminale intemalionale n’a jtrqu5
maintenant dt ablie pour poursuivre I travail qui y avait
&6 cntrepris.
Ce manque de volont! a particuliisemant comprnmis
l’application de la DIclaration universelle dan d-m- da-
maines cids des droits do I’homma: Ia droit don: pas Cre
in cible d’incitation a ia discrimination, et celti do charhc.r
!aL Solon l’autaur, to Canzia a man-
asile dans un utre
qu6 -A protiter ces droits. Bien qu’il no saurait Etre question
de mettre de ‘avant ture hifarchia des droits prou%-‘s par
la DIclaration universelle, il faut nor qu h libentl contue
l’incitation ZL la discrimination et Ia droit dasila juant tm
rnle da premier ordre dam la protection du droit Ia plus
fondamental – clui a a %ie. Lea espIan s- soulavds par
a Dclaration universelle na scront remplics quo lorquz
chacune de ses dispositions sar
respT & et appliq4a.
. David Matas is a Winnipeg lawyen He is a vice-president of the Canadian section of the Interna-
tional Commission of Jurists. This paper was presented while Mr, Matas was moderator for a panel on
“War Crimes, Crimes against Humanity, Genocide” at the international conference Hate, Genocide
and H=an Rights Fifty Years Later: Wrat Have e Learned? Wiat Must We Do? (Faculty of Law,
McGill University, 28 January 1999). A substantially similar version of these comments was pub-
lished as D. Matas, “The Universal Declaration of Human Rights: Fifty Years Later” in Bhatia et al,
infra note 24, 83.
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 203
Mode de rf6rence: (2000) 46 R.D. McGill 203
McGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Fifty years after the Universal Declaration of Human Rights,’ what should we
think of it? For a person to reach fifty years is an achievement. For a document to
reach fifty years is an inevitability. The mere longevity of the Universal Declaration
does not justify recognizing its anniversary.
Like any fifty-year-old, some parts have fared better than others. Some of the arti-
cles in the Universal Declaration have flourished. Others have withered.
The right to democracy, the right of everyone to take part in the government of his
or her country directly or through freely chosen representatives,’ has become the ide-
ology of the end of the twentieth century. A myriad of states that once touted the non-
democratic ideologies of communism, apartheid, or the national security state have
become democracy adherents. The Internet has given the right to freedom of expres-
sion a scope and breadth unimaginable in 1948.
The Universal Declaration has grown internationally and nationally. The interna-
tional system has developed standards detailing specific parts of the Universal Decla-
ration and mechanisms to implement those standards.
Take, for instance, the right to be free from torture.” There is now a Torture Con-
vention,’ a UN committee against torture, and an individual complaints mechanism.
Many states have legislation criminalizing torture.
A myriad of political and civil rights in the Universal Declaration of Human
Rights, such as the right to life, liberty, and security of the person,6 can be found in the
International Covenant on Civil and Political Rights.’ A UN human rights committee
oversees the implementation of this covenant. An optional individual petition mecha-
nism provides a remedy for violations.
The economic, social, and cultural rights in the Universal Declaration, for exam-
ple, the right to education,’ have been strengthened and amplified by the International
‘ GA Res. 217(m), UN GAOR, 3d Sess., Supp. No. 13, UN Doe. A/810 (1948) 71 [hereinafter
Universal Declaration].
2/biL, art. 21(1).
3/bid, art. 19.
4bid, art. 5.
‘ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, 1465 U.N.T.S. 85, Can. T.S. 1987 No. 36, 23 I.L.M. 1027 (entered into force 26
June 1987).
6 Supra note 1, art. 3.
‘ 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23
March 1976, accession by Canada 19 May 1976).
‘ Supra note 1, art. 26.
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D. MATAS – UNIVERSAL DECLARATION OF HUMAN RIGHTS
205
Covenant on Econwmic, Social and Cultural Rights Again, there is a committee es-
tablished to oversee the implementation of this covenant.
The Universal Declaration of Human Rights has been an inspiration for national
legislation and national constitutions. Many provisions in the Canadian Bill of
Rights,” the Canadian Charter of Rights and Freedoms,” the Canadian Human Rights
Act,” and provincial human rights legislation are drawn directly from the Universal
Declaration of Human Rights. The Universal Declaration of Human Rights has be-
come a key tool when interpreting the Charter. Chief Justice Dickson wrote, in a
1987 case, “The content of international human rights obligations is, in my view, an
important indication of the meaning of ‘the full benefit of the Charter’s protection!.”‘
The Universal Declaration of Human Rights has spoken to individuals as much as
to governments. Human rights organizations use the Universal Declaration to hold
governments to account, to rally support for human rights. The Universal Declaration
has given hope, has held out a promise to the people of the world. It has penetrated
and sensitized the consciousness of humanity throughout the globe.
All the same, the Universal Declaration of Human Rights, I would suggest from
fifty years’ hindsight, was partner to a great mistake. This year [1998] is the fiftieth
anniversary not only of the Universal Declaration, but also of the end of the prosecu-
tion of Nazi war criminals.
On 13 July 1948, the British government issued a secret cable to the seven do-
minions of the Commonwealth directing that “as many as possible of (Nazi war
criminal) cases which are still awaiting trial should be disposed of by 31st August,
1948″” Also, “no fresh trials should be started after 31st August, 1948″;” “In our
view, punishment of war criminals is more a matter of discouraging future generations
than of meting out retribution to every guilty individual.””6
One might well ask, how was it possible to discourage future generations without
punishing the guilty? The answer the global community gave at the time was the Uni-
versal Declaration of Human Rights. The Preamble to the Universal Declaration
states, “Whereas disregard and contempt for human rights have resulted in barbarous
9 16 December 1966,993 U.N.T.S. 3,6 IL.M. 360 (entered into force 3 January 1976).
‘0 S.C. 1960, c. 44, reprinted in RS.C. 1985, App. IIL
” Part I of the Constitution Ac, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
‘2-RS.C. 1985, c. H-6.
13 Reference Re Public Service Employees Relations Act (Alberia), [1987] 1 S.CR. 313 at 349, 38
D.R. (4th) 161.
” See D. Matas with S. Charendoff, Justice Delayed: Nazi War Crinnals in Canada (Toronto:
Summefill Press, 1987) at 68.
5 lbid
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acts which have outraged the conscience of mankind … ” The global community
proposed to prevent human rights violations by proclaiming, in the Universal Decla-
ration of Human Rights, human rights standards.
Although the Universal Declaration has thirty articles and asserts a myriad of
rights, it can be summed up in two words: “Never again”. The Universal Declaration
was an outgrowth from the Holocaust, and a direct reaction to it. In the words of Chief
Justice Dickson in Keegstra: “Following the Second World War and revelation of the
Holocaust, in Canada and throughout the world a desire grew to protect human rights,
and especially to guard against discrimination. Internationally, this desire led to the
landmark Universal Declaration of Human Rights in 1948 … ‘”.
Of course, it would have made no sense, after terminating the Nuremberg prose-
cutions, to create an international criminal court that could resume those very prose-
cutions. The United Kingdom, which led the charge to dismantle the Nuremberg
prosecutions prematurely, also, in the early fifties, led the opposition to the creation of
an international criminal court.
The United Kingdom’s argument was that there was no point in setting up a per-
manent tribunal for war crimes since war itself is not permanent. Ad hoc methods of
adjudication used in the past were reasonably adequate. A permanent court might not
be set up by victors in a war, but it would be activated by them. The charge of one-
sidedness, if there were a permanent court, would remain.
For crimes against humanity, the United Kingdom argued that no government that
was complicit in crimes against humanity would surrender its nationals for trial before
an international criminal court. The only time, outside of war and defeat, where
crimes against humanity would be tried is after a revolutionary change of government.
But, as the United Kingdom acknowledged, that rarely happened. Few people out of
power are international criminals.
It is hard to take these arguments at face value. In light of what we know now
about the United Kingdom’s efforts to stop all war crimes prosecutions after 1948,
their interventions in the early days of the international criminal court debate have a
decidedly disingenuous air about them.
If a permanent court of international criminal justice had been established after
the war, it could have and probably would have taken up the unfinished business of
prosecuting Nazi war criminals that the British had themselves abandoned and encou-
raged others to abandon. The United Kingdom arguments against such a court now
read like camouflage, attempting to forestall the Nazi war crimes prosecutions
through this court, if established, that they had succeeded in blocking off in other
ways.
‘7Supra note 1.
R v. Keegstra, [1990] 3 S.C.R. 697 at 724, 117 N.R. I [hereinafter Keegstra cited to S.C.R.].
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D. MATAS – UNIVERSAL DECLARATION OF HUMAN RIGHTS
With the benefit of hindsight, we can see what a tragic mistake it was to disband
the Nuremberg prosecutions before they were complete, to thwart the establishment
of an international criminal court, and to rely only on the Universal Declaration of
Human Rights to prevent future wrongs.
Though the spirit of the Universal Declaration of Human Rights can be captured
in the words “never again”, in fact, since 1948, genocide has happened again and
again-in Uganda, in Cambodia, in Rwanda, in Somalia, in Bosnia, and I could go
on. In the last fifty years, the global community has lived in a regime of international
lawlessness where the worst perpetrators went free.
It was eminently predictable, when the perpetrators of the worst crimes go free,
that the crimes would continue to be perpetrated. The deaths of millions can be laid at
the feet of those who decided to dismantle Nuremberg and thwart the establishment of
an international criminal court.
It is going too far to say that the international human rights system had no en-
forcement mechanism without an international criminal court. Non-governmental or-
ganizations sprang up to fill the void, to provide an enforcement mechanism that gov-
ernments did not, to report on violations and to publicize them, to mobilize public
support for human rights respect, to shame and to blame. The non-governmental pub-
licity about violations and mass mobilization around them prompted governments to
set matters right.
The trouble with this sort of remedy was that it was helpless against the worst
violators, those who killed shamelessly. Against the likes of Idi Amin, Pol Pot, or Ra-
dovan Karadzic, the Universal Declaration of Human Rights was defenceless.
This is the year when the global community has finally admitted the mistake
made fifty years ago, that relying on the Universal Declaration of Human Rights is
not enough. On 17 July of this year in Rome, the global community agreed to the es-
tablishment of an international criminal court that it should have established fifty
years ago. A gaping hole in the institutional structure of the international system is in
the process of being filled. But it is not yet filled. The court will not come into being
until sixty states have ratified it. So far sixty-one states have signed the treaty, indi-
cating an intention to ratify. Canada has yet to sign, but I expect it will sign shortly.
Before ratification, each state has to ensure that its legislation complies with the
Rome Treaty.’ Canada will have to amend both its Extradition Act’ and its Criminal
Code!’ It is regrettable that the government of Canada is not taking advantage of
9 Statute of the International Criminal Court, 17 July 1998, UN Doec. AICONF.18319, 37 I.L2.
999 (not entered into force).
0 R.S.C. 1985, c. E-23.
21 pS.C. 1985, c. C-46.
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amendments to the ExtraditionAct going through Parliament in Bill C-4(Y’ to bring its
legislation up to the mark, and that the Extradition Act will have to be amended once
again before Canada can ratify the treaty establishing the international criminal court.
Ratification of the statute by every state in the global community has to be a priority
for anyone concerned with realization of the rights set out in the Universal Declara-
tion of Human Rights.
For the Universal Declaration of Human Rights promise of “never again” to be
kept, the planet must not only establish an international criminal court. We must also
remember and respect those rights that are essential to the prevention of the tragedies
of the past.
The rights in the Universal Declaration of Human Rights may not be universally
respected, but at least they are widely accepted. There are some who argue against the
universality of rights, who argue that the Universal Declaration is a Western cultural
imposition on the rest of the world. There are others who argue that economic and so-
cial rights are not really rights, but just aspirations. However, these points of view are
not widely shared, and are uniformly rejected by those sensitized to the meaning of
human rights.
Nonetheless, there are two rights in the Universal Declaration of Human Rights
whose very existence is contested, not only outside, but inside the rights-seeking
community. For other rights, the battle to assert their value has been won, though the
battle to ensure compliance remains to be fought. For these two rights, the battle is
more basic, more fundamental. Even fifty years after the Universal Declaration of
Human Rights, we still have to convince the human rights community of the impor-
tance of these two rights.
I am referring to the right to be free from incitement to discrimination, and the
right to seek asylum. Both these rights are in the Universal Declaration of Human
Rights.’ Yet both today are hotly contested.
The Universal Declaration of Human Rights does not rank rights, and quite prop-
erly so. In a sense, the Universal Declaration does not assert many rights, but just one
right with many facets, the right to dignity, self-realization, and self-worth of the indi-
vidual. The Universal Declaration, in its Preamble, refers to the inherent dignity of all
members of the human family. For the inherent dignity of the individual to be re-
spected, all rights must be respected.
Nonetheless, ranking of rights occurs. At the conference in Edmonton commemo-
rating the fiftieth anniversary of the Universal Declaration of Human Rights, William
An Act respecting extradition, to amend the Canada Evidence Act, the Criminal Code, the Inni-
gration Act and the Mutual Legal Assistance in Criminal Matters Act and to anend and repeal other
Acts in consequence, 1st Sess., 36th Pan., 1998 (assented to 17 June 1999, S.C. 1999, c. 18).
” Supra note 1, arts. 7, 14.
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D. MATAS – UNIVERSAL DECLARAT1ON OF HUMAN RIGHTS
209
Thorsell, the editor of The Globe and Mail, spoke on the importance of the right to
freedom of expression. He said: ‘I hold that freedom of expression is not equal in
weight with other fundamental human rights. Freedom of expression is the superior or
core human right among the many others that are listed in its presence … Freedom of
expression is a seminal, germinal, essential, necessary, prior right in the pantheon of
rights.”-
Now, it may seem churlish to argue with anyone about their favourite right. In
some ways it is like arguing with people about their favourite food or favourite colour.
One can expect a newspaper editor to have a special liking for freedom of expression;
I assume teachers are inclined towards the right to education; doctors probably favour
the right to medical care’ As a lawyer, I have a weakness for the right to counsel.’
If a mere indication of favouritism were all that was at stake, I would be happy to
pass over without comment anyone’s choice of a favourite right. However, those who
puff up freedom of expression go on to deny another right in the Universal Declara-
tion of Human Rights, the right to be free from incitement to discrimination. William
Thorsell in Edmonton stated, in elaboration of his penchant for freedom of expres-
sion, “I do not support all the legal limits on free speech that exist in Canada-our
criminal hate laws, for example.”‘
Objectively, if we have to rank rights, which I am loathe to do, I would suggest
that the right that stands head and shoulders above all others is the right to life. If you
are dead, the right to freedom of expression is meaningless. The greatest crimes of
this century are not crimes of censorship. They are genocide: the Holocaust, the Ar-
menian massacre, the Bosnian ethnic cleansing, the Cambodian killing fields, and
other mass killings.
If we go beyond the right to life and ask which human rights violations led to
these mass killings, surely the answer must be the violations of the right to be free
from incitement to discrimination. In the words of Chief Justice Dickson in Keegstra,
“The experience of Germany represents an awful nadir in the history of racism, and
demonstrates the extent to which flawed and brutal ideas can capture the acceptance
of a significant number of people.”‘
The Holocaust did not begin with censorship. It began with hate speech. What
strange logic could possibly lead any human rights advocate to deny the very right-
the right to be free from hate speech-whose violation led first to the Shoah and then
2 W. Thorsell, “Rights, Limits and Dangers of Freedom of Expression” in G.S. Bhatia et al., eds.,
Peace Justice and Freedom Hunan Rights Challenges for the New Millennhmin (Edmonton: Univer-
sity of Alberta Press, 2000) 357 at 357-58.
2 UniversalDeclaration, supa note 1, art. 25.
6Ibid., art. 11(1).
2
‘- Supra note 24 at 359.
2’ Supra note 18 at 770-71.
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he right to be free from hate speech-whose violation led first to the Shoah and then
to the Universal Declaration of Human Rights?
The argumentation Thorsell used to arrive at his quixotic position was that “al-
most every other human right is dependent for its achievement and defence on free-
dom of expression “‘ He said: “[lt should be obvious that the very life blood of
democratic politics is the right to free expression.””
Because human rights are an interconnected whole, it is easy to link one right to
another. Free expression is important to other rights, as other rights are important to
respect for freedom of expression. Take any thread out of the quilt of rights and the
quilt unravels. To choose only one thread and proclaim ‘This is the thread that
counts!” is arbitrary.
It can just as easily be said that tolerance is the lifeblood of democracy. Without
tolerance, neither democracy nor freedom of expression can survive. Incitement to
hate speech is an assault on that very tolerance which is essential to the respect for so
many other rights.
We do not have to go abroad to find a direct link between incitement to hatred and
the worst violations of human rights. While the ranking of human rights violations,
like the ranking of human rights, is invidious, the internment and deportation of Japa-
nese Canadians and the steadfast Canadian refusal to grant asylum to Jews fleeing the
Holocaust are amongst the most shameful episodes of recent Canadian history. Nei-
ther of these events can be traced to censorship. Both are the direct consequences of
the then-untrammelled incitement to hatred against ethnic Japanese and Jews.
The second right in the Universal Declaration of Human Rights that I mentioned
remains contested today is the right to seek asylum. The right to enjoy asylum, also in
the Universal Declaration, is reflected in the United Nations Protocol to Convention
on Status of Refugees?’ The Office of the United Nations High Commissioner for
Refugees works actively to promote this right to enjoy asylum. The realization of this
right is far from perfect. Many refugees get asylum without enjoying asylum because
of the enforced misery which accompanies the grant of asylum. Nonetheless, there is
at least a partial realization of the promise of the Universal Declaration of the right to
enjoy asylum in UN institutions and state behaviour.
The same cannot be said of the right to seek asylum. Everywhere around the
world, the principle seems to be that an asylum-seeker has a right not to be returned to
danger once the person arrives at a safe destination, but there is no right to get there.
Supra note 24 at 357.
” Ibid at 358.
3′ 31 January 1967, Can. T.S. 1969 No. 29,6 I.L.M. 78 (entered into force 4 October 1967).
2000]
D. MATAS – UNIVERSAL DECLARATION OF HUmN RIGHTS
The Universal Declaration of Human Rights asserts the right of everyone to leave
any country, including his own.’ The right to leave is meaningless without the right to
enter another country. Yet, for refugees, the right to enter is everywhere denied.
Again, here we see a total disconnect between the Holocaust, which led to the
Universal Declaration of Human Rights, and the implementation of the Universal
Declaration. The need to respect the right to seek asylum was a lesson learned from
the gas chambers of World War I.
Jews attempted to flee pre-war Nazi Germany but had nowhere to go. In March
1938 the Jewish refugee problem was compounded when Hitler invaded Austria, and
Austrian Jews attempted to flee. At a conference in Evian, France, in 1938, govern-
ments of thirty-two nations got together to decide what to do about Jewish refugees
fleeing Nazi Germany and Austria, and decided to do nothing. The Evian conference,
by showing that the world was not prepared to provide a haven to Jewish refugees,
justified Nazi Germany’s policy against Jews, and sealed their fate for the Holocaust
to come.
Today, for the right to seek asylum, it is as if the failure at Evian never happened.
Canada is as good an example as any of the universal denial of the right to seek asy-
lum. Canada recognizes the right to enjoy asylum, perhaps more consistently than
most states. Yet Canadian policy is to deny the right to seek asylum not in some cases,
but in every case.
Every effort is made to prevent refugees from arriving in Canada. The Canadian
house of asylum has a door with many bolts. The first bolt is the Immigration Act uni-
versal visa requirement.” Everyone, from every country, according to the act, needs a
visa issued from a Canadian visa post abroad to come to Canada. The Immigration
Act allows the cabinet to designate countries that are exceptions to the general rule.
If we look at the list of exceptions and the history of the granting and removal of
exceptions, we see that refugee-producing countries are invariably visa requirement
countries. A person fleeing a country where there is generalized persecution will need
a visa issued at a Canadian visa post abroad to come to Canada.
The second bolt on the door locked against those seeking asylum is the criterion
for granting visas. A person will be granted a visitor’s visa only if the person is com-
ing to Canada for a temporary purpose. Claiming refugee status in Canada is not con-
sidered a temporary purpose. Refugee claimants are considered to be people who
want to stay, rather than people who want to visit. The result is that no person who
goes to a Canadian visa post abroad and says that he or she wants to come to Canada
to claim refugee status will be given a visitor’s visa.
“Supra note 1, art. 13(2).
R.S.C. 1985, c. 1-2, s. 9.
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Canada has an immigration program at visa posts abroad that allots permanent
resident visas to a set number of those at risk whom visa officers consider likely to
establish successfully in Canada. However, a person who wants to come to Canada to
claim refugee status either has to obtain a visitor’s visa by concealing their true inten-
tions in wanting to come, or has to try to come to Canada with no visa at all.
The third bolt on the door against refugees is carrier sanctions. It used to be, be-
fore 1 February 1993, that carriers-ships, trains, planes, buses-would be penalized
for bringing undocumented passengers to Canada. A person from a visa requirement
country without a visa is considered undocumented. Carriers who brought undocu-
mented passengers to Canada were prosecuted in criminal court.
Since 1 February 1993, this criminal system has turned into a civil system. Now
carriers are assessed a fee for any passenger who arrives in Canada and is subject to
an immigration inquiry.’ A person from a visa requirement country without a visa is
subject to inquiry. The question whether the fee should be imposed never goes to
court. The system is entirely administrative.
Before 1 February 1993, carriers could plead a number of defences. They could
argue due diligence-that they had tried their best to prevent the person coming to
Canada, but failed. They could ask for the same immunity that refugee claimants and
refugees get. Neither refugees, nor refugee claimants whose cases have yet to be de-
termined, can be convicted for entry to Canada with improper documents.” If the car-
rier could establish due diligence, if it could establish that the passenger was a refugee
claimant or was recognized as a refugee, the carrier would not be penalized. Since I
February 1993, those defences have disappeared, with the disappearance of criminal
proceedings. Now liability of the carriers is absolute.
The Department of Citizenship and Immigration employs immigration control of-
ficers abroad in an interdiction program, to assist airlines in preventing undocumented
persons coming to Canada. The government has spent millions of dollars on this in-
terdiction program.
On a couple of occasions, immigration control officers have engaged in “Opera-
tion Shortstop”. They have stationed themselves at airports abroad to prevent arrival
of the undocumented to Canada. Mostly, what these officers do is train airline staff at
airports or private security agents the airlines have hired. They are trained to do Cana-
dian immigration control work.
Much of this control work consists of denying transportation to those persons
who are from visa requirement countries but who do not have visas. Airlines willingly
co-operate with Canadian officials in order to avoid the carrier sanctions or adminis-
3’/bid, s. 91.1(1)(a).
3 3bid, s. 95.1.
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D. MATAS – UNIVERSAL DECLARATION OF HumAN RIGHTS
213
trative assessments that are imposed on them for bringing the undocumented to Can-
ada.
The interconnected system of bolts is working. Arrivals of claimants in Canada
went down between 1992 and 1993, when the new law came into effect. With its en-
hanced carrier sanctions and the increase in the immigration control program over-
seas, arrivals have dropped from thirty thousand to twenty-one thousand.
The system, right now, does not prevent every claimant from coming to Canada.
But that is the scheme of the Immigration Act, and its intended effect. Those that do
arrive are failures of the system now in place.
The denial of the right to seek asylum is global, not just Canadian. Canada is far
from being alone in frustrating attempts of those fleeing persecution to leave their
countries. Many countries generating refugees are faced with global visa require-
ments. For the unfortunate people attempting to escape from these countries, there is
no destination to which they might flee without first seeking and obtaining a visa
from the government of the destination country.
The inevitable consequence of these global visa requirements and the denial of
the right to seek asylum is that those internally displaced far exceed those who have
managed to escape. For 1995, for instance, there were fifteen million refugees in the
world, and twenty-seven million internally displaced persons.’
Well, what is Canada’s proper role in all this? What are its responsibilities? I sug-
gest that Canada should be a leader in the promotion of the Universal Declaration of
Human Rights. We have the wealth, the population, and the institutions to do it. Can-
ada is a humane, tolerant, diverse nation, with a stable democracy, an entrenched con-
stitutional Charter, human rights commissions, an independent judiciary, and om-
budsman institutions. If any country can set an example of respect for the Universal
Declaration of Human Rights, Canada can.
Canada has the human and material resources to make human rights work In
Canada, we should be able to show that it can be done-that respect for human rights
can be an everyday practical reality.
By this standard-for prosecution of international fugitive mass murderers, for
prohibition of hate speech, for respect of the right to seek asylum-Canada falls short.
Today, in Canada, international fugitive mass murderers are unlikely to be prosecuted;
hate promoters are unlikely to be deterred from their incitement; refugees have diffi-
culty getting access to Canada’s protection.
Parliament legislated war crimes and crimes against humanity as Criminal Code
offences, but only in 1987, over forty years after the Holocaust. The Supreme Court
United Nations High Commissioner for Refugees, The State of the Ibrld’s Refugees 1995. In
Search of Solutions (Oxford: Oxford University Press, 1995) at 247.
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MCGLL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
of Canada in 1994 made that legislation unworkable by its decision in the case of
Imre Finta, a man against whom there was overwhelming evidence of his complicity
in shipping the Jews of Szeged, Hungary, to Auschwitz. 7 The government of Canada
promised amending legislation to overcome that Supreme Court decision. But that
legislation has yet to see the light of day, four years later.
The judgment about incitement to hatred is as grim. The Supreme Court of Can-
ada, in Keegstra and John Ross Taylor,’ did the legal work for us, showing how free-
dom of expression and the prohibition of hate speech can live together conceptually,
respecting both. However, the practical work of legislation and enforcement has yet to
be done.
The government of Canada attempted to prosecute Ernst Zundel for Holocaust
denial. The prosecutors succeeded in getting a conviction, and Zundel was sentenced
to jail, but the Supreme Court of Canada in 1992 threw out the conviction on the
ground that the legislative provision under which he was convicted was drafted too
broadly.9 The Court suggested that a more narrowly drafted provision might well sur-
vive constitutional challenge, but the government of Canada has yet to accept that
suggestion and propose a specific ban on Holocaust denial in the Criminal Code.
Zundel, in the meantime, carries on with his Holocaust denial activities.
For refugees too, Canada has fallen short of the mark set by the Universal Decla-
ration. The refugee determination procedure in Canada is, by and large, fair for those
who can access it. But getting access to the system is difficult indeed.
Government officials, though they have set up a system that is motivated by the
principle of no access, are realistic enough to acknowledge that denying everyone ac-
cess is impossible. No system works perfectly, including immigration control sys-
tems. Rather, officials are content if the barriers to access create resisters so that
claimants arrive at a number that Canada can afford to process.
Since the government’s strategy is resisting to manageable levels, resistance
should have a target in mind. The target should be based not only on internal admin-
istrative concerns. It should also be based on what is Canada’s fair share of responsi-
bility for the world’s displaced population. Canadian resisters are resisting all too
much. There is no conscious match, no policy to ensure that there is some relation
between the world’s displaced population and control-resisters.
Canadian resisters are unsophisticated. They are sophisticated in detecting
fraudulent documents, but they are unrefined in distinguishing between real refugees
and abusers. The resister mechanisms resist true refugees and abusive refugee claim-
1 v. Finta, [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513.
. Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892,75 D.L.R. (4th) 577.
R R. v. Zundel, [1992] 2 S.C.R. 731,95 D.L.R. (4th) 202.
2000]
D. MATAS – UNIVERSAL DECLARATION OF HUMAN RIGHTS
215
ants alike. The system of controls is indiscriminate, weeding out the needy and the
frivolous, the desperate and the indifferent alike.
If Canadian resisters have a bias at all, it is against real refugees rather than for
them. Many refugees do not have the time to plan their departures. They often leave
precipitously, without money or with little money. Organized crime, on the other
hand, has the time and the money to make every effort to circumvent Canadian con-
trols.
The whole notion of resisters is suspect. But as long as Canada is going to have a
system of resisters, then the resisters should be refined. The system should generate a
number of refugees that is commensurate with Canada’s fair share of the world’s dis-
placed population. Beyond that, it should distinguish-before arrival-between those
truly in need of protection and those who are not.
For the Universal Declaration of Human Rights to work, we must remember that
it goes hand in glove with effective prosecution of the worst violators of human rights
standards. We must not only appeal to the good in humanity. We must also guard
against evil.
Fifty years after the Universal Declaration of Human Rights, its promise has yet
to be kept. For at least two of its provisions, the right to be free from incitement to
discrimination, and the right to seek asylum, the promise has yet to be wholeheartedly
made. If we are to fulfill the promise of the Universal Declaration of Human Rights,
we must respect not just some of its provisions, but all its provisions, including the
right to be free from incitement to discrimination, including the right to seek asylum.
Gender Crimes as War Crimes:
Integrating Crimes against Women into
International Criminal Law
Rhonda Copelon”
the
(“NGO’s”). Until
The author identifies
the major goals and
achievements in the area of recognizing women as full
subjects of human rights and eliminating impunity for
role of non-
gender crimes, highlighting
the
governmental organizations
1990s sexual violence in war was largely invisible, a
point illustrated by examples of the “comfort women”
in Japan during the 1930s and 1940s and the initial
failure to prosecute rape and sexual violence in the ad
hoc international criminal tribunals for the former
Yugoslavia and Rwanda. Due in a significant measure
to the interventions by NGOs, the ad hoc international
criminal tribunals have brought gender into mainstream
international jurisprudence. For example, the Yugosla-
via tribunal has devoted substantial resources to the
prosecution of rape and explicitly recognized rape as
torture, while the Rwanda tribunal has recognized rape
as an act of genocide. Elsewhere, the Statute of the In-
tenzational Criminal Court is a landmark in codifying
not only crimes of sexual and gender violence as part
of the ICC’s jurisdiction, but also in establishing proce-
dures to ensure that these crimes and their victims are
the
properly
Women’s Caucus for Gender Justice met with signifi-
cant opposition. It persisted because of the imperative
that sexual violence be seen as part of already recog-
nized forms of violence, such as torture and genocide.
treated. Working
towards
this end
L’auteur fait dtat des principaux objectifs et ac-
complissements dans le domaine de la reconnaissance
des femmes comme titulaires ?r part enti-e des drois
intemationatx de la personae et de l’dlimination d
l’impunita pour les crimes h caract.re sexiste (gender
crimes), cn accordant une importance particulihre au
role des organisations non-gouvcemntales (ONG).
Jusqu’aux annds 1990, la violence sexulle lots des
conflits armds restait largement invisib’e, par xcemple
impose par les
dans le cns de la prostitution forcd
forces japonaises dans les annes 1930 ct 1940 et dans
celui des viols et de la violence sexuelle initialeanmt
ignoas par les tribunaux internationax adi he pour le
Rwnda et l’ex-Yougoslavie. Grace, en grand partie,
aux efforts des ONG, ces tribunaux ont toutefos intro-
duit ces questions dans la jurisprudenc intenationale.
Par exemple, le Tribunal plhnal pour l’ex-Yougoslavie a
reconnu le viol comme une forme de torture et consa-
cr des ressources signifieatives At intenter des poursui-
tes pour cc crime. Le Statut de la Cour ptnale interna-
tionale (CPI) constitue par ailleurs un point toumant.
en cc qu’il codifie non seulement les crimes d nature
sexuelle et les intbgre I la compdtence do la Cour, mais
dtablit dgalement des proclures visant Zt aindliorer le
traitement de ces crimes et de leurs victimes. I. caucus
des femmes de la CPI a toutefois rencontrd une forte
opposition At la ralisation de ces fins; il p
fois dans ses demandes en raison de la nkcssitd d voir
la violence sexuelle Etrc reconnue comm= panie intd-
grante des formes de violence ddj criminalisds, tels la
torture et Ic gdnocide.
tsistoute-
” Professor of Law and Director, International Women’s Human Rights Law Clinic (IWHR), City
University of New York (CUNY) School of Law. This paper arose from a panel on “War Crimes,
Crimes against Humanity, Genocide” at the international conference Hate, Genocide and Human
Rights 17fty Years Later: What Have We Learned? What Must We Do? (Faculty of Law, McGill Uni-
versity, 28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGiU LJ. 217
Mode de rdf6rence: (2000) 46 R.D. McGill 217
218
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Introduction
I. The Traditional Approach: Past and Present
I1. Sexual Slavery: The “Comfort” Women
Ill. Rape and Genocide in Rwanda: Invisibility and Inclusion
IV. Engendering International Jurisprudence: The ICTY
V. The International Criminal Court: Codifying Gender Justice
Conclusion: Towards a Holistic Gender-Inclusive Approach
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
Introduction
Let me begin by saying that I am moved and honoured to participate in this con-
ference along with so many committed scholars and agents of change-non-
governmental and intergovernmental. It is also important that there are so many stu-
dents here, as you are the ultimate repositories of memory, as well as the change
agents of the next fifty years. Likewise, I feel very privileged to be engaged in the
process of ending impunity for gender crimes along with students and attorneys-in-
residence from other countries at the International Women’s Human Rights Law
Clinic (“1WHR”), which is part of CUNY’s [City University of New York] clinical
programs. IWHR has also been serving as the Legal Secretariat to the Women’s Cau-
cus for Gender Justice in the International Criminal Court,’ which has, for the past
two and a half years, convened an ever-broadening international delegation of femi-
nist attorneys and advocates to bring a gender perspective into the United Nations ne-
gotiations of the ICC. The task of the Legal Secretariat has involved researching, vet-
ting with our participants and supporters, and preparing the caucus’s positions for
each negotiating session. This has been an opportunity to work intensely and consis-
tently with, and learn from, an extraordinary group of creative, committed, and feisty
women from around the world, as well as to codify a gender-inclusive approach to
international justice.
The Women’s Caucus for Gender Justice is also heir to a process of women’s
caucuses, each one created in relation to the recent series of UN conferences to intro-
duce the issue of women and gender. The first task was to write women into human
rights at the 1993 Vienna Conference on Human Rights, and then to incorporate a
women’s human rights framework in, and thereby transform, the consensus docu-
ments that emerged from the 1994 International Conference on Population and Devel-
opment in Cairo, the 1995 World Summit on Social Development, and the 1995
Fourth World Conference on Women in Beijing. For example, the Vienna document
condemned “systematic rape”, and called for the elimination of violence and dis-
crimination against women in public and private life as a priority matter, as well as the
mainstreaming of gender in the human rights system.’ The BeUing Declaration and
Platform for Action elaborated on the principle that “women’s rights are human
rights”; named, among others, “rape, including systematic rape, sexual slavery and
forced pregancy” as particularly egregious humanitarian law violations; and called for
‘ The Women’s Caucus is now known as the Women’s Caucus for Gender Justice in recognition of
the fact that the International Criminal Court [hereinafter ICC] is only one mechanism of genderjus-
tice. The caucus can be contacted through its Web site:
‘ Wrld Conference on Hunan Rights: Vienna Declaration and Progranne ofAction, 12 July 1993,
UN Doe. A(CONF.157t23 at paras. 18, 28-30.
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[Vol. 46
gender balance among judges and other personnel in judicial institutions, including
the ad hoc tribunals.’
The gains of which I will speak today are the product of all these initiatives,
which were successful because they emanated from a global mobilization of women,
asserting that women’s rights are human rights, that human rights (Le. political, civil,
social, and economic rights and the right to women- and human-centred sustainable
development) are indivisible, and that impunity for gender crimes and acceptance of
discrimination must end. Through mobilization, women’s movements have become a
force to be reckoned with internationally, despite the desperate and concerted efforts
of right wing religious forces to block our progress and the reluctance of others to ac-
cept or recognize the need to make gender-inclusiveness a priority. The interrelation-
ship between mobilization at every level and international legal change exemplifies
the basic principle that human rights, like law itself, are not autonomous, but rise and
fall based on the course and strength of peoples’ movements and the popular and po-
litical pressure and cultural change they generate.
This last decade has indeed been historic in that there has been significant prog-
ress in transforming the discourse on a policy level. In the arena of international
criminal law, there has been significant progress in eliminating the privatization of,
and impunity for, gender crimes. For the first time, there have been steps to recognize
women as full subjects of human rights and international criminal justice. Irwin Coder
told me that he was torn between placing me on this panel or the next one on the
revolution in international criminal law, and suggested that I should declare myself
part of both. I am happy to be the bridge, as I believe that gender justice-which is
among the most vehemently resisted aspects of international criminal law-is both
profoundly revolutionary and one of the ultimate tests of universal justice. In my brief
remarks today, I will identify the major goals and achievements in this area at the
same time as I highlight the role of NGOs in the process of legal change-making, a
subject too often neglected in academic settings.
I. The Traditional Approach: Past and Present
Before the 1990s, sexual violence in war was, with rare exception, largely invisi-
ble. If not invisible, it was trivialized; if not trivialized, it was considered a private
matter or justified as an inevitable by-product of war, the necessary reward for the
fighting men. The Leiber Code, drafted to regulate the Union army during the Ameri-
can Civil War, identified rape as a capital offence. Otherwise, if condemned, as rape
Fourth World Conference on Women: Beijing Declaration and Platform for Action, 17 October
1995, UN Doe. A/CONF.177/20; see e.g. paras. 132, 224, 142(b), respectively. See also Women’s
Caucus for Gender Justice, The International Criminal Court: The Beijing Platform IN Action-Put-
ting the ICC on the Beijing +5 Agenda (1999), online: Women’s Caucus for Gender Justice
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
was in the Hague Convention of 1907 and the Geneva Conventions, it was implicitly
so, categorzed as an offence against “family honour and rights” or as “outrages
against personal dignity” or “humiliating and degrading treatment”.’ The Fourth Ge-
neva Convention called for “protect[ion] against [rape as an] … attack on their hon-
our” but rape was not treated as violence, and was therefore not named in the list of
“grave breaches” subject to the universal obligation to prosecute.’ In 1977 the Proto-
cols to the Geneva Conventions mentioned “rape, forced prostitution and any other
form of indecent assault;’ but only as ‘humiliating and degrading treatment”,’ a char-
acterization that reinforced the secondary importance as well as the shame and stigma
of the victimized women. The offence was against male dignity and honour, or na-
tional or ethnic honour. In this scenario, women were the object of a shaming attack, the
property or objects of others, needing protection perhaps, but not the subjects of rights.
Two examples illustrate this point, one from over fifty years ago, one from today.
II. Sexual Slavery: The “Comfort” Women
As my first example, both the post-World War II International Military Tribunals
failed to adequately prosecute rape and sexual violence. Rape was not named in either
charter or charged as a separate offence. Though listed as a crime against humanity in
the Allied Local Council Law No. 10, under which intermediate-ranking Nazi wt”
criminals were prosecuted, rape was never actually charged. In the Far East Tribunal,
evidence of rape was part of the evidence of Japan’s crimes against humanity. But the
tribunal ignored the abduction and deception of over two hundred thousand girls and
young women of non-Japanese origin from Japanese occupied territories and their
transport to “comfort stations”, now understood as rape camps. Euphemized as “com-
fort women”, they were made to folow the troops on the battlefield and were subject
‘Convention (IV) respecting the Lawvs and Customs of Mr on Land and its annex: Regulation con-
cerning the Laws and Customs of Wr on Land, 18 October 1907, 3 hartens Nouveau Racueil (Sen
3) 461, art. 46, 187 ConsoL T.S. 227 (entered into force 26 January 1910).
‘Convention for the Amelioration of dze Condition of the 1Ibunded and Sick in Armed Forces in the
Field, 12 August 1949,75 U.N.T.S. 31, art. 3, Can. T.S. 1965 No. 20.2 (Geneva Convention 1); Con-
vention for the Amelioration of de Condition of the Wbunded, Sick and Shipwrecked Afembers of the
Armed Forces at Sea, 12 August 1949,75 U.N.T.S 85, art. 3, Can. T.S. 1965 No. 20.3 (Geneva Con-
vention 11); Convention Relative to dze Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S.
135, art. 3, 6 U.S.T. 3316 (entered into force 21 October 1950) (Geneva Com’ention 111); Convention
Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287, art. 3,
6 U.S.T. 3516 (entered into force 21 October 1950) [hereinafter Genera Convention IV].
‘Geneva Convention IV, ibid., art. 27.
Ibid, art. 147.
” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
ictims of International Armed Conflicts (Protocol I), CTS199112.1; CTS1991/2; UNTSl1253,
of
art. 76 (entered into force 7 December 1978); Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating To The Protection of Victims ofNon-International Armed Conflicts (Proto-
colEH), CTSr1991/2.2; UNTS1125/609, art. 4 (entered into force 7 December 1978).
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to repeated rape, sometimes as often as forty times per day, as well as the domestic
servicing of the Japanese troops. This “comfort”/slave system only came to public at-
tention in the nineties, when aging and courageous survivors began to tell their stories,
revealing the details and lifelong devastating effects of their enslavement, as well as of
their exclusion from the halls of justice.
Why this official silence on sexual violence and on the unprecedented industriali-
zation of sexual slavery, at least comparable in atrocity and systematization to the
forced labour camps of Nazi Germany? There is still much to learn about the deci-
sion-making of that time and important work for historians. It is likely that rape was
not explicitly prosecuted at Nuremberg, though it was a small part of the evidence,’
because some of the Allied troops were equally guilty of raping women-an example
of the banality of evil in militarized patriarchal culture.
With regard to the “comfort women” system, I confess that I originally assumed
that it was effectively kept secret or invisible. But that is absurd. A conversation with a
cousin, who was with the Allied forces when they took over Saipan, made the open-
ness of this “secret” painfully clear. Upon arrival, he said, they learned that women
were hiding in the island’s caves. They found them-desperate, some driven mad,
many pregnant, terrified of the new invader. In other words, the nature, scope, and
consequences of the system were no secret. Recent research in the military archives in
Australia, notably that of Ustina Dolgopol,” makes clear that the Allies were fully
aware of this system, aware that women were taken and kept against their will, and
aware that they were subjected to extreme sexual violence. They documented it
through questioning both Japanese prisoners, U.S. soldiers, and the victimized
women. Recent research by Japanese historians into Japan’s archives has also re-
vealed that the comfort women system, which began in 1932 and was expanded sig-
nificantly in the Second World War, was authorized at the highest levels and minutely
regulated.”
The comfort women slave system was designed to meet at least four articulated
military needs: the need of their soldiers to “have sex”/rape to keep them fighting; the
need to avoid antagonizing the local populations by preventing rape of women in the
communities being occupied; the need to minimize sexually transmitted disease
among the troops; and the need to keep rape from international scrutiny and outrage
such as had occurred during the rape and killing spree that attended the conquest of
‘ See P.M Sellers, “The Context of Sexual Violence: Sexual Violence as Violations of International
Humanitarian Law” in G.K. McDonald & 0. Smaak-Goldman, eds., Substantive and Procedural As-
pects of International Criminal Law, vol. 1 (The Hague: Kluwer Law International, 2000) 263.
” U. Dolgopol, “Rape as a War Crime-Mythology and History” in I.L. Sajor, ed., Common
Grounds: Violence against Women in War and Armed Conflict Situations (Asian Center for Women’s
Human Rights, 1998) 122.
” See generally Y Yoshiaki, Comfort Woman: Sexual Slavery in the Japanese Military during
World War I, trans. S. O’Brien (New York: Columbia University Press, 1995).
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
223
Nanking.” In other words, the notion of women as the “booty” of war and the entitle-
ment of fighting men was never in question.
Perhaps this explains why responsibility for the outrages against comfort women
was never prosecuted in the International Tribunal for the Far East in Tokyo.” Calling
the “comfort stations” brothels, not rape camps, and referring to the women as pros-
titutes and not sexual slaves, obfuscated the horrors of the system through a sugges-
tion of immorality and voluntariness. And perhaps the fact that the U.S. military also
organized and directed men to STD-safe brothels was too close to the comfort station
idea. To my knowledge, the manuscripts or recollections that would fill in this gap of
explanation have not yet been made public or studied. It is a timely and pressing in-
quiry that suggests an after-the-fact complicity and, at least, reflects a lack of respon-
sibility of the Allied nations to hold the perpetrators accountable and insist upon repa-
rations, including compensation.
The failure, seemingly deliberate, to prosecute the sexual enslavement of the com-
fort women is also closely connected to the privatization of sexual violence in patriar-
chal culture. Not until the use of rape as a tool of ethnic cleansing in the former Yugo-
slavia did media and policy-makers begin to speak of rape as a “weapon of war”. This
formulation operated to transform rape from private, off-duty, collateral, and inevita-
ble excess to something that is public or “political” in the traditional sense. Rape drew
broad attention, at the outset, however, more because it was a genocidal or ethnic at-
tack than because it was an attack on women. Undoubtedly this politicization of
rape-and its characterization as a “weapon of war”—contributed to the force of the
condemnation of rape and to changing public attitudes toward it. But, like all argu-
ments that deflect attention from the essential need to recognize women as subjects, it
had a potentially regressive aspect in suggesting that this use of rape was qualitatively
different from the traditional use of women as booty.
By contrast, women’s human rights activists have insisted, in many contexts, that
rape is an atrocity whatever the purpose and whether or not widespread or systemic.
The comfort women system illustrates, however, in a highly systematized and brutal
way, that the rape of women, as booty or as the reward for the penultimate expression
of the norm of masculinity, is also an integral part of the arsenal of war.
Ill. Rape and Genocide in Rwanda: Invisibility and Inclusion
The failure to prosecute sexual violence against women is not, however, a thing of
the past. My second example concerns the initial failure to recognize and prosecute
“2 See eg. Y. Tanaka, “Rape and War The Japanese Experience” in Sajor, stpra note 10, 148 at
165-66; Yoshiald, ibkL at 49.
‘3 The crimes of the Japanese military with regard to the sexual slavery of the comfort women will
be the subject of an historic independent Women’s International War Crimes Tribunal to take place in
Tokyo, 8-12 December 2000.
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rape and sexual violence in Rwanda. Recall that genocide and other atrocities in
Rwanda occurred after the widespread commission of rape and sexual violence in the
former Yugoslavia had broken through media disinterest and captured world attention,
and after rape had been listed as a crime against humanity in the statute of the ad hoc
International Criminal Tribunal for the Former Yugoslavia.” Nonetheless, the media
and other observers of the genocide in Rwanda did not report the massive and notori-
ous rape of women during the Rwandan genocide. Rape was essentially invisible until
nine months later, when a Belgian doctor publicized that women were presenting
themselves in unusual numbers to bear the children of rape. Nor was it, thereafter, of-
ficially documented. That was left to the initiatives of two NGOs, African Rights and
the Women’s Project of Human Rights Watch.”
Though included as a crime against humanity in the Statute of the International
Criminal Tribunal for Rwanda and also mentioned therein as an example of the war
crime of humiliating and degrading treatment,” rape formed no part of the first series
of ICTR indictments. This was notwithstanding that the Human Rights Watch/FIDH
report focussed on rape and sexual violence in the Taba Commune, led by Jean Paul
Akayesu, the first accused to go to trial. That report also documented the failure of the
prosecutorial staff to take rape seriously, as well as the utter inappropriateness and
lack of training of the investigative staff to undertake such an inquiry.”
It was common, at that time, to hear the assertion that genocide is killing, not
rape, and that the women who were raped and survived were lucky they were not
dead. Indeed, Shattered Lives reported that “[t]here is a widespread perception among
the Tribunal investigators that rape is somehow a ‘lesser’ or ‘incidental’ crime not
worth investigating:” So, notwithstanding the legal definition of genocide which
clearly encompasses sexual violence, as discussed below, and documentation of the
terrible personal and societal impact of rape, including women’s view that rape left
them wishing for death, the Prosecutor v. Jean Paul Akayesu case’9 went to trial with
” Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, 3217th
Mtg., UN Doe. S/RES/827 (1993) [hereinafter ICTYStatute].
” Human Rights Watch/Africa, Human Rights Watch Women’s Rights Project & Fdration Inter-
nationale des Ligues des Droits de L’Homme, Shattered Lives: Sexual Violence during the Rwandan
Genocide and its Aftermath (New York: Human Rights Watch, 1996) [hereinafter Shattered Lives];
African Rights, Rwanda: Death, Despair and Defiance, 2d ed. (London: African Rights, 1995).
6 SC Res. 955, 3453d Mtg., UN Doe. S/RES/955 (1994), arts. 3,4 [hereinafter ICTR Statute].
“7 ShatteredLives, supra note 15 at 91-97.
“Ibid. at94.
Judgment, ICTR Trial Chamber (2 September 1998), Case No. ICTR-96-4-T (International
Criminal Tribunal for Rwanda, Trial Chamber), online: International Criminal Tribunal for Rwanda
R. COPELON – GENDER CRIMES AS WAR CRIMES
2000]
no charges or evidence of rape, and with the prosecutor claiming that it was impossi-
ble to document rape because women wouldn’t talk about it.
225
All that changed when Judge Navanethem Pillay, the only woman judge on the
ICTR Trial Chamber hearing the case, pursued the inquiry with two of the women-
who were called by the prosecutor to testify to other crimes-whether rape had oc-
curred in the Taba Commune. Witness J stated that three Interahamwe raped her six-
year-old daughter when they came to kill her father, and also that she had heard that
young girls had been raped at the bureau communal, which was under the authority of
the accused. Witness H revealed that she had been raped in a sorghum field and that
she had seen other Tutsi women being raped. She also testified that she kmew of other
women raped either in the nearby fields or on the site of the bureau counnal, and that
the accused and other commune officers were present and should have prevented it?
Despite this, it appeared from confidential inside information that the Akayesu
prosecutors were not planning to amend the indictment to charge rape or sexual vio-
lence. This despite the fact that a coalition, first pulled together by Human Rights
Watch and later consolidated by the International Centre for Human Rights and
Democratic Development (“ICHRDD”) in Montreal” as the Monitoring Project on
Gender-Related Crimes at the International Criminal Tribunal for Rwanda, had sent
numerous critical letters to Judge Louise Arbour, the chief prosecutor with responsi-
bility for both the ICTY and ICTR, calling for institutional changes that would facili-
tate the effective investigation of gender crimes. Thus there seemed little choice but to
file an amicus curiae brief, bringing this discriminatory situation out into the open and
appealing to the court to call upon the prosecutor, or step in itself, to ensure the inclu-
sion of rape in charges of genocide, as well as war crimes and crimes against human-
ity. Thus IWHR, the Working Group on Engendering the Rwanda Tribunal, organized
by a dedicated group of recent grads from the University of Toronto Faculty of Law,
and the Center for Constitutional Rights in New York City, prepared and submitted an
amicus curiae brief. The ICHRDD project circulated the brief for signature to
women’s groups in Rwanda, elsewhere in Africa, and throughout the world. Later that
year, Rwandese women’s organizations organized the first women’s march for justice.
Approximately two weeks after the filing of the amicus brief, the prosecutor re-
turned to court and indicated his intention to amend the indictment to include charges
of rape. It was motivated, he argued, by Witness H’s testimony linking Akayesu to the
rapes, and not by the amicus brief. A reliable participant in the process later informed
me that the testimonies had, in fact, triggered further investigation. This does not ne-
Shattered Lives, supra note 15 at 95. The report is also cntical of the methods of investigation
which were insensitive to the nzeds, desires, and security of the women from whom they purportedly
sought such testimony (ibiL).
2 Akayesu, supra note 19 at paras. 416-17.
-2Now known as Rights & Democracy.
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gate the fact that, without the intervention of the only woman judge and the seren-
dipitous disclosures at trial, this issue would not have been pursued by the prosecutor.
Whatever the full truth of the matter, the amicus served the purpose of making
visible the invisibility of the survivor community, emphasizing to both the court and
the public the unacceptability of excluding sex-specific crimes against women from
the justice process. Curiously, although the chamber originally acknowledged in a fax
receipt of the amicus brief, other ICTR personnel later claimed not to have received it,
and you will not find it listed in the docket of the case. The judgment refers to it im-
plicitly.’ I tell this story because it is important that we understand the critical and,
like gender, often “invisibilized” role of NGOs in the process of making change, as
well as the indispensability of mechanisms like the amicus curiae brief that make the
courts permeable to the concems of the larger community. It is likewise important that
official documents recognize the contributions of NGOs.
The amended Akayesu indictment included general allegations of sexual violence
and that Akayesu knew that such acts were taking place and encouraged them by his
presence and words.’ As a legal matter, this was part of the factual basis for the
charges of genocide, crimes against humanity (rape and other inhumane acts), and
war crimes (still charged only as outrages upon personal dignity, in particular rape,
degrading and humiliating treatment, and indecent assault).’ Five more women testi-
fied pseudonymously to rape and forced nudity.26 The judgment finds that Akayesu
knew that sexual violence was being committed by Interahamwe, among others, on or
near the premises of the commune office and that women were being taken away, that
he did nothing to prevent it, and that in some instances he was present and/or had or-
dered, instigated, or encouraged it.”
” InAkayesu, supra note 19, the chamber states at pam. 417:
The Chamber notes that the Defence in its closing statement questioned whether the
Indictment was amended in response to public pressure concerning the prosecution of
sexual violence. The Chamber understands that the amendment of the Indictment re-
sulted from the spontaneous testimony of sexual violence by Witness J and Witness H
during the course of this trial and the subsequent investigation of the Prosecution,
rather than from public pressure. Nevertheless, the Chamber takes note of the interest
shown in this issue by non-governmental organizations, which it considers as indicative
of public concern over the historical exclusion of rape and other forms of sexual vio-
lence from the investigation and prosecution of war crimes. The investigation and pres-
entation of evidence relating to sexual violence is in the interest of justice.
2,See ibid. at pam. 6; paras. 12A, 12B of the Indictment, reproduced therein.
Prosecutor v. Jean Paul Akayesu, Amended Indictment, ICTR Trial Chamber (June 1997), Case
No. ICTR-96-4-I, Indictment Counts 1, 2, 13-15 (International Criminal Tribunal for Rwanda, Trial
Chamber), online: International Criminal Tribunal for Rwanda
13 September 2000).
26Akayesu, supra note 19 at paras. 418-38.
Ibid at paras. 449-52.
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
227
Akayesu was a landmark: the first international conviction for genocide, the first
judgment to recognize rape and sexual violence as constitutive acts of genocide, and
the first to advance a broad definition of rape as a physical invasion of a sexual nature,
freeing it from mechanical descriptions and required penetration of the vagina by the
penis. The judgment also held that forced nudity is a form of inhumane treatmnent,’
and it recognized that rape is a form of torture and noted the failure to charge it as
such under the rubric of war crimes.’
With respect to the issue of rape and sexual violence as genocide, the Akayesu
judgment is important because it explains why rape and sexual violence “constitute
genocide in the same way as any other act as long as they were committed with the
specific intent to destroy, in whole or in part, a particular group, targeted as such.”‘
The judgment emphasizes the ethnic targeting produced by the sexualized representa-
tion of ethnic identity, such as Akayesu’s statement “let us now see what the vagina of
a Tutsi woman tastes like”, and parenthetically notes here the notion of women as
booty as itself an instrument of genocide. The judgment characterizes these crimes as
infliction upon women of serious bodily and mental harm, as they were charged,’ and
also as an “integral part of the process of destruction, specifically targeting Tutsi
women and specifically contributing to their destruction and to the destruction of the
Tutsi group as a whole…- destruction of the spirit, of the will to live, and of life it-
self.”‘ It notes the close connection with killing–that death or the threat of death of-
ten accompanied the rape of women.”
Ironically, the evidence associated with rape and sexual violence provided some
of the strongest evidence of genocide. By emphasizing the suffering imposed on the
women as well as its role as a tool of their destruction and the destruction of the
group, the Trial Chamber took a significant step in recognizing women both as sub-
jects in themselves and as part of their ethnicity.
The reproductive motives and consequences of sexual violence may also satisfy
other constituent acts of genocide, as provided by the Genocide Convention. Akayesu
bid at para. 697.
/bi at paras. 687, 690.
“Ibid at para. 731.
31Ibid at para. 732.
Ibid at para. 731; this indicates that rape and sexual violence violates art. 1I(b) of the Convention
on the Prevention and Punislunent of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277,
Can. T.S. 1949 No. 27 (entered into force 12 January 1951) [hereinafter Genocide Convention], and
art. 2(2)(b) of the ICTR Statute, supra note 16, by causing serious bodily or mental harm to members
of the group.
“3Akayesu, ibid at paras. 731-32; this indicates that rape and sexual violence may also qualify un-
der art. 11(c) of the Genocide Comention, ibid, and art. 2(2)(c) of the ITCR Statute, ibid, as “deliber-
ately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part.’
” Akayeu, ibid at para. 733.
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recognizes that the constituent act of preventing births within the group” includes
measures such as forced sterilization, abortion, or birth control, as well as forced
pregnancy where, in patriarchal societies, that represents an effort to affect ethnic
composition by imposing the enemy’s ethnicity on the children of rape.” Rape, with
its potential to cause infertility or make sexual intercourse impossible, as well as its
potential to render a woman psychologically or culturally unable to reproduce, may
also qualify, as a measure intended to prevent births within the group.
At the same time, it is significant that Akayesu did not, as some had contended,
emphasize the reproductive consequences as the hallmark of rape as a genocidal
measure. Rather, rape and sexual violence are understood as instruments of genocide
based primarily on the physical and psychological harm to the woman, and secondar-
ily on the potential impact of this on the targeted community. To emphasize the repro-
ductive impact on the community would threaten once again to reduce women to be-
ing simply the vehicles of the continuity of the targeted population. It would also tend
toward a biological as opposed to socially constructed view of identity as the value
intended to be protected by the concept of genocide.
IV. Engendering International Jurisprudence: The ICTY
The Akayesu judgment is part of an historic process of mainstreaming gender in
international jurisprudence in which the ad hoc International Criminal Tribunal for the
Former Yugoslavia took the first, landmark steps. The women’s human rights move-
ment mobilized to support the election of women judges, and their presence has been
critical on the ICTY, just as Judge Pillay has played a critical role in the ICTR. In the
start-up period, the ICTY judges, under the tutelage of the two women judges, Judge
Gabrielle Kirk McDonald and Judge Elisabeth Odio-Benito, adopted, as part of the
initial rules of evidence and procedure, evidentiary rules, such as Rule 96, to prevent
harassment of and discrimination against victims and witnesses through admitting
evidence of prior sexual conduct or permitting unexamined consent defences in sexual
violence cases. The ICTY rules also authorize other protections of victims and wit-
nesses, including protective measures at trial and the creation of a victims and wit-
nesses unit. The open process of rule-making, in which NGOs and states were invited
to make suggestions, enabled feminist groups to focus attention on these problems.”
Then a long overdue revolution in the jurisprudence of sexual violence was begun
by the Office of the Prosecutor (“OP”), here as a result of the acknowledged value of
interchange between women’s human rights advocates and scholars and officials
3 Genocide Convention, supra note 32, art. 11(d); ICTR Statute, supra note 16, art. 2(2)(d).
“Akayesu, supra note 19 at par. 507.
J. Green et aL, ‘Affecting the Rules for the Prosecution of Rape and Other Gender-Based Vio-
lence before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and
Critique” (1994) 5 Hastings Women’s LJ. 171.
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
within the ICTY. In that regard I want to recognize here the openness and commit-
ment of Justice Richard Goldstone, the first chief prosecutor, who will speak to us
later. First, he heeded the demand of the movement to incorporate an expert on gender
at the highest level, and he appointed the brilliant and dedicated Patricia Viseur Sellers
as the gender legal adviser to the OP While over the years her impact on the approach
of the prosecutor, particularly in The Hague where she is based, has been formidable,
the effect was nonetheless not immediate.
In the first papers filed by the ICTY prosecutor–the motion for deferral of the
Tadid prosecution from the German court to the ICTY-t4he prosecutors responsible
filed an affidavit that treated rape of women in Omarska prison as a background mat-
ter, while emphasizing the beatings of male prisoners.” We discovered this on the Sat-
urday before the Monday hearing. There was no time to bring this informally to the
attention of the prosecutor. So together with Jennie Green of the Harvard Human
Rights Program (now of the Center for Constitutional Rights) and Felice Gaer, direc-
tor of the Jacob Blaustein Institute, who has played a considerable role in strengthen-
ing the tribunals, including their gender perspective, and is also a participant here, we
filed our first amicus brief.” The brief emphasized the failure to treat rape as an in-
dictable offence. To tie it to the issue of deferral, the brief questioned whether the tri-
bunal should accept the case from Germany since it wasn’t clear that the prosecutor
would follow the precepts of universal justice. Judge Odio-Benito questioned the lack
of sexual violence charges from the bench. The deferral was, of course, granted, but
the issue of sexual violence was also on the table. Somewhat to my surprise, I was not
disinvited to participate in training the OP several months later in rape and humani-
tarian law. And the first prosecutor to speak during that session started out by saying,
1 am the idiot who filed that affidavit.”
As a background matter, it must be noted that the ICTY Statute, while listing rape
as a crime against humanity, did not name rape in article 2, which defines grave
breaches of the laws of war.” Thus, to include charges of rape as a war crime, it was
necessary for the OP to treat it as a form of other accepted crimes. Though the statu-
tory omission of rape as a war crime was disappointing at the time, in retrospect I be-
lieve that it was fortuitous as it made it easier to argue for the mainstreamning of sexual
violence crimes, else they would be excluded altogether.
“‘ An Application for Deferral by the Federal Republic of Germany in the Matter of Du;o Tadid
Also Known by the Names Dusan “Dule” Tadi4 Application, ICTY Trial Chamber (11 October
1994), Case No. lT-94-1 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber).
” R. Copelon, E Gaer & J. Green, Amicus Memorandum Re: Application for Deferral by the Re-
public of Germany in the Matter of Dulv Tadid also lnown by the Nantes Dusan “Dule”
Tadid[unpublished].
4 Supra note 14; Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council
Resolution 808, UN SCOR, 48th Sess., UN Doc. S/25704 (1993) 10 at para. 40.
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The Tadidindictment did include charges of rape. But the feminist concern is not
satisfied simply by including rape and sexual violence. The question of how it is
charged is equally significant. We were concerned that sexual violence be reconceptu-
alized as a form of torture, and not as humiliating and degrading treatment, or even as
the grave breach of wilful infliction of great suffering. This did not happen right away.
The original Tadid indictment used torture very sparingly in general and charged as
torture only the forced sexual mutilation of a male prisoner. This example of sexual
violence against a man became the signature of the case in the press, while the rape of
women did not carry the same weight. Although rape was charged as the grave breach
of “willful infliction of great suffering”, there was resistance among some members of
the OP staff to applying the word “torture” to rape.” Ultimately the rape charges were
dropped because the witness was unwilling to testify without full protection.
Justice Goldstone used his authority, however, to make clear in a number of ways
and over time that the integration of gender was a priority matter. He participated in
the training sessions that addressed these questions; he attended-not just for the few
moments of his own presentations but to learn-international women’s conferences
addressed to gender issues; and he made clear his respect for the gender legal adviser.
On the eve of the Beijing Conference, he committed the OP to the position that “sex-
ual assaults … provide the basis for justiciable charges of torture” and to reviewing the
characterization of rape in the previous indictments.”2 Later, the FOCA indictment was
the first to charge rape as torture and enslavement and other forms of sexual violence,
such as forced nudity and sexual entertainment, as inhumane treatment.”
4’ For fuller discussion of the history and significance of characterizing rape as torture, see R.
Copelon, “Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law” (1994) 5
Hastings Women’s L.J. 243 at 249-57; D.Q. Thomas & R.E. Regan, “Rape in War. Challenging tie
Tradition of Impunity” (1994) 14 SAIS Rev. 81; T. Meron, “Rape as a Crime under International
Humanitarian Law” (1993) 87 AJ.I.L. 424; D. Blatt, “Recognizing Rape as a Method of Torture”
(1992) 19 N.YU. Rev. L. & Soc. Change 821.
2 Letter from Justice R. Goldstone, Prosecutor, IN International Criminal Tribunals for the Former
Yugoslavia and Rwanda, to Prof. R. Copelon, Professor of Law and Director, International Women’s
Human Rights Law Clinic, City University of New York (8 September 1995) [on file with author],
cited in Shattered Lives, supra note 15 at 32.
“‘ See Prosecutor v. Gagovic et aL, Indictment, ICTY Trial Chamber (26 June 1996), Case No. IT-
96-23/2 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), online: United
Nations
(date accessed: 27 Septem-
ber 2000); see Counts 1, 3, 4, incorporating the facts alleged in paras. 5.3-5.7, for reference to rape as
torture in the context of interrogation (ibid.); see also Counts 13, 15, 16, incorporating the facts al-
leged in paras. 6.6-6.11, for reference to rape as torture, in the context of interrogation. See also
Prosecutor v. Gojko Jankovic et aL, Amended Indictment, ICTY Trial Chamber (7 October 1999),
Case No. IT-96-23-PT (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber),
online: United Nations
(date ac-
cessed: 4 October 2000); see Counts 45-48, incorporating the facts alleged in paras 8.1-8.7, for refer-
ence to enslavement. This followed upon the landmark decision of the Inter-American Commission
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
The ICTY has to date devoted substantial resources to the prosecution of rape and
to its explicit recognition, in the jurisprudence, as torture. The case against Anton Fu-
rundzija focussed on the rape/torture of one woman prisoner occurring during the
process of interrogation. The Furundzija judgment recognizes rape in interrogation as
a “means of punishing, intimidating, coercing or humiliating the victim, or obtaining
information, or confession, from the victim or a third person:”‘ In addition, the Dela-
lic or “Celibici” case, named after the prison where the atrocities occurred, convicted
certain defendants on charges of torture for having committed rape of women prison-
ers not only in the context of interrogation. The judgment reviews many of the prece-
dents and recognizes that rape inflicts severe physical and psychological suffering,
and that in situations of armed conflict, when it occurs with the consent or acquies-
cence of an official, rape “inherently” meets the purpose element of torture-that it
involves punishment, coercion, discrimination, or intimidation.”
As a result, the ICTY has built a very significant body of jurisprudence that rec-
ognizes rape and sexual violence as forms of egregious violence. The ICTR’s Akayesu
judgment contributed most significantly to this process in recognizing rape as an act
of genocide where the requisite intent is proven, and in identifying rape as a form of
torture and subtly chiding the ICTR prosecutors who had declined to charge it as
such. The ad hoc tribunals’ jurisprudence proved to be a most important foundation
for the codification of sexual violence as part of the substantive jurisdiction of the In-
ternational Criminal Court
The practice before the tribunals also illuminated a number of issues of imple-
mentation arising out of advertent and inadvertent discriminatory treatment of women
in the process, as well as the need for gender-sensitive protective measures for women
victims and witnesses and reliable support to minimize the risks and potential retrau-
matization of testifying. Thus, for example, Tadidproduced a landmark decision out-
lining the criteria for keeping the identities of witnesses confidential from the public
and, under special circumstances, anonymous even to the defence. On these issues,
several feminist amicus briefs were filed, largely supporting the OP’s motion for pro-
on Human Rights in its Report on the Situation of Htnan Rights in Haiti to recognize rape in non-
prison or interrogation contexts as a form of torture (OR OEA/Ser.LIV/I1.88!Doc. 10, rev (.1995) at
paras. 133, 134); see also Aydin v. Turkey, App. No. 23178194 (1997), 25 Eur. H.R. Rep. 251 at 295-
96.
“Prosecutor v. Anto Furudzija, Judgment, ICTY Trial Chamber I (10 December 1998), Case.
No. IT-95-17/1 at paras. 163, 266 (International Criminal Tribunal for the Former Yugoslavia, Trial
Chamber 11), online: United Nations
,5 See Prosecutor v. Zeinil Delalic, Judgment, ICTY Trial Chamber 1 (16 November 1998), Case No.
IT-96-21 at paras. 480-96 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber
II), online: United Nations
(date ac-
cessed: 24 September 2000).
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tective measures.’ In Furundzija, the defence questioned the credibility of the raped
woman on the ground that she suffered post-traumatic stress disorder (“PTSD”). After
hearing experts and, I believe, unnecessarily permitting the defence to recall the wit-
ness, the chamber rejected the defence contention that PTSD renders a victim unreli-
able.” Again, the tribunal had the benefit of two feminist amicus briefs.’ In Celebici,
the defence was inadvertently allowed to circumvent Rule 96 (prohibiting the intro-
duction of prior sexual conduct evidence) in questioning the witness about a prior
abortion. The chamber reaffirmed the rule upon a motion to expunge the testimony
from the record. 9
At the same time as the progressive gender jurisprudence of the ad hoc tribunals
has been very significant, their defalcations in the realm of gender crimes, witness
protection, and participation of the survivor communities have also illuminated some
of the prerequisites of a fully gender-integrated process. For example, notwithstanding
the landmark Akayesu judgment, the ICTR prosecutor has been slow to incorporate
charges of sexual violence consistently and in accordance with their deserved gravity.
There is an apparent absence of both a clear policy that gender is a priority concern
and of a gender expert, with oversight authority, on-site. Issues of witness protection,
the gender-sensitivity of investigations, and community relations have been equally
for
‘ Prosecutor v. Dusco Tadi4 Decision of the Prosecutor’s Motion Requesting Protective Measures
for Victims and Witnesses, ICTY Trial Chamber (10 August 1995), Case No. IT-94-1 (International
Criminal Tribunal
the Former Yugoslavia, Trial Chamber), online: United Nations
This opinion references the two amicus briefs at the outset: one amicus brief was filed by Prof. Chris-
tine Chinkin, Dean and Professor of International Law, University of Southampton, United Kingdom,
and a joint brief was filed by Rhonda Copelon, Felice Gaer, Jennifer M. Green, and Sara Hossain on
behalf of the Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish
Committee, the Center for Constitutional Rights, the International Women’s Human Rights Clinic, the
Women Refugees Project of the Harvard Immigration and Refugee Program, and Cambridge and
Somerville Legal Services (ibid.).
“Supra note 44 at paras. 108, 109.
s Ibid. at para. 107; see Amicus Curiae Brief on Protective Measures for Victims or Witnesses of
Sexual Violence and Other Traumatic Events, Submitted by the Center for Civil and Human Rights,
Notre Dame Law School [unpublished]; Amicus Curiae Brief Respecting the Decision and Order of
the Tribunal of 16 July 1998 Requesting That the Tribunal Reconsider Its Decision Having Regard to
the Rights of Witness A to the Equality, Privacy, and Security of Person and to Representation by
Counsel, Submitted by Joanna Birenbaum et al [unpublished].
“‘ Prosecutor v. Zejnil Delalic, Decision on the Prosecution’s Motion for the Redaction of the Public
Record, ICTY Trial Chamber (5 June 1997), Case No. IT-96-21 (International Criminal Tribunal for
the Former Yugoslavia, Trial Chamber), online: United Nations
of the tribunals’ jurisprudence affecting the prosecution of gender crimes, see K.D. Askin, “Sexual
Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status”
(1999) 93 AJ.I.L. 97.
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R. COPELON – GENDER CRIMES AS WAR CRIMES
significant.O Perhaps someday the integration of and respect for gender expertise will
become routine, dispensing with the need for continued monitoring by feminist attor-
neys and activists. That day is still far off.
V. The International Criminal Court: Codifying Gender Justice
The existence of the ad hoc tribunals, the proliferation of wars, and the unseating
of many brutal dictatorships in these last decades reignited the effort to create a per-
manent international criminal court. Feminists in different parts of the world recog-
nized the existence of the ICC negotiations as an opportunity to codify the integration
of gender in international criminal law, as well as work to ensure a court independent
of the powerful nations, particularly the United States and the P5. This was the task
assumed by the Women’s Caucus for Gender Justice, created in 1997. Women brought
to the caucus many different experiences and perspectives. These were informed by
regional diversity and a broad range of experience of advocacy in domestic courts and
legislatures, meeting at international conferences, monitoring the ad hoc tribunals, and
working with survivors of sexual violence.
Like the Women’s Caucuses at the World Conferences, the ICC Women’s Caucus
met with two kinds of opposition. On the one hand, we faced increasingly fierce mi-
sogynist opposition from the Vatican, the islamist-oriented” Arab League countries,
and North American right wing groups such as the U.S.-based International Human
Life Committee, the David M. Kennedy Center, and Canada’s JMJ (Jesus, Mary and
Joseph) Children’s Fund and R.E.A.L. Women. On the other hand, we also had to
start from scratch with many delegates who did not see a need for a specific gender
perspective and rued the time that introduction of our issues would take. Thanks to the
expertise and commitment of a small group of delegates-both women and men–and
the openness, albeit sometimes reluctant, of the overwhelming majority of delegates, the
Statute of the International Criminal Court”P is a landmark. It has codified not only
crimes of sexual and gender violence as part of the jurisdiction of the Court, but also a
range of structures and procedures necessary to ensure that these crimes and those vic-
timized by them will remain on the agenda and be properly treated in the process ofjus-
tice. I am not going to canvass all the gender aspects of the Rome Statute, but rather will
point out a few of the caucus’s major goals and accomplishments.
C. Walsh, “Witness Protection, Gender and the ICTR”, online: International Centre for Human
Rights and Democratic Development
“‘ I use the word “islamist” instead of “Islamic” advisedly because the positions taken do not reflect
the religion Islam, but rather its politicization and tmnsmogrificaton, albeit inconsistent, into anti-
woman policies.
” 17 July 1998, UN Doec. No. A/CONF.183/9, 37 LL.M. 999 (not entered into force) [hereinafter
Rome Statute].
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As to the ICC’s substantive jurisdiction over crimes, the Women’s Caucus had
two goals. One was to codify explicitly a range of serious sexual violence crimes in
order to ensure that they are always on the checklist and always understood as crimes
in themselves. The second was to incorporate, as a principle, what had developed in
the customary law and jurisprudence of the tribunals, that sexual violence must be
seen as part of, and encompassed by, other recognized egregious forms of violence,
such as torture, enslavement, genocide, and inhumane treatment.
But, many asked, why both? If the sexual violence crimes are listed, and therefore
squarely on the prosecutor’s checklist, why does gender integration matter? The an-
swer is that despite all the public hand-wringing about rape, history teaches that there
is an almost inevitable tendency for crimes that are seen simply or primarily as crimes
against women to be treated as of secondary importance. It makes a difference, to the
elements that must be proved, to the penalty imposed, and to the larger cultural under-
standing of violence against women, to treat rape as torture rather than humiliation.
So we needed to insist, as a matter of the principle of non-discrimination, that sexual
violence be treated as constituting any of the recognized crimes so long as it met their
elements, at the same time as it was necessary to name the sexual violence crimes
specifically. And the Rome Statute represents a significant step in this direction.
Article 8 of the Rome Statute, which delineates the jurisdiction of the Court over
war crimes in international and internal war, explicitly lists “rape, sexual slavery, en-
forced prostitution, forced pregnancy … enforced sterilization or any other form of
sexual violence also constituting” either “grave breaches” or violations of Common
Article 3 of the Geneva Conventions.” This expanded significantly on, as well as re-
moved, the moralistic element from the range of previously recognized war crimes-
i.e. rape, enforced prostitution, and other indecent assault. The “also constituting” lan-
guage was primarily intended to codify the principle of gender integration and to
make clear that sexual violence is a grave breach, equivalent in gravity to other crimes
subject to universal jurisdiction.” Indeed, in an historic debate at the December Prep-
Com, the delegates assembled rejected, with one opposition and two abstentions,
placing rape and sexual violence under the rubric of humiliating and degrading treat-
ment rather than that of grave breaches and serious violations. In this list of crimes,
the definition of forced pregnancy was the last to be resolved, as the Vatican, sup-
ported by the Islamic countries, sought unsuccessfully to eliminate any suggestion
that obstructing a woman’s access to abortion could be a crime.”
“Ibid., arts. 8(2)(b)(xxii), 8(2)(e)(vi).
” A minority of delegations thought it also provided a threshold of severity. The dominant purpose
of that language is illustrated, however, by the fact that, at the insistence of the Women’s Caucus,
“also constituting” replace “also amounting to” in an earlier proposal.
” For the purposes of the Rome Statute, supra note 52, forced pregnacy is defined in art. 7(2)(f) as
“the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other grave violations of international law.” It is ir-
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
235
Article 7, delineating crimes against humanity, adopts the same list of sexual and
reproductive violence crimes, qualifying them, at the last minute, by the phrase “of
comparable gravity”, which logically calls for comparison with all crimes against
humanity. The crime against humanity of enslavement explicitly includes trafficking,
with particular but not exclusive attention to women and girls.
Among the most contentious issues was the expansion of the crime of persecution
beyond the previously accepted grounds of race, ethnicity, nationality, religion, and
politics to include persecution based on “gender” as well as against other social
groups. The statute incorporates a definition of “gender”, and defines other grounds as
those “that are universally recognized as impermissible under international law.’ I’ll
return to this in a minute. In a futile effort by the United States to exclude institution-
alized discrimination, the crime of persecution also requires proof of an act of vio-
lence, such as killing, torture, or inhumane treatment, or a war crime or genocide.
As an overarching matter, the chapeau to crimes against humanity recognizes that
crimes of this dimension can be perpetrated against any civilian population, in time of
peace as well as war, and by private as well as state actors. This is particularly impor-
tant for women, as we are most often the victims of non-state as opposed to state vio-
lence in civil society as well as war. The statute does not adopt the full range of crimes
against humanity under international law, however, insofar as it compromises the
customary threshold requirement that the crimes be “widespread or systematic”. In a
definitional section, the Rome Statute explains that a policy to commit a widespread
or systematic attack must involve relation to a state or organizational policy and mul-
tiple acts.” This should not be too troublesome in the future, so long as, consistent
with international law, the failure to prevent qualifies as policy.
The one exception to the explicit codification of gender crimes is article 6, which
defines genocide exactly as does the Genocide Convention. When the Women’s Cau-
cus entered the process, the genocide definition was considered settled. The subse-
quent Akayesu judgment had a tremendous effect. Prior to Akayesu, there were dele-
gates who contended that rape was not the same as genocide, whereas afterwards, the
role of sexual violence was accepted even though the text of the statute did not
change. This is then a matter for the negotiations of Elements of Crimes.”‘
portant that this definition is limited because its purpose is to define a crime under international cus-
tomary law, which does not yet criminalize the withholding of abortion. This definition, however, is
not an appropriate definition for purposes of reproductive health care policy or of respecting and en-
suring the human rights of women.
Ibid, art. 7(2)(a).
‘ Aftemote: The Women’s Caucus raised the issue during the PrepCorn on Elements of Crimes and
it was originally accepted as part of the commentary to genocide that sexual violence could constitute
acts of genocide where the prerequisites were met. At a later stage, the commentaries were omitted
and the final text of the Elements of Crimes notes in regard to “genocide by causing serious bodily
injury or mental harm” that the conduct may include “cts of torture, rape, sexual violence or inhuman
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Let me now return to the eleventh hour battle at the Rome Diplomatic Conference
over the inclusion and definition of the term “gender”, which was one of the most in-
tense and one of the last to be resolved. The Vatican and a group of Arab League
countries, which together we call the “Unholy Alliance”, contested the term “gender”
in regard to the crime of persecution, and in response, the United States initially sug-
gested limiting its meaning to males and females. The Unholy Alliance also sought,
sometimes successfully, to remove the word gender from the structural and procedural
parts of the draft statute-e.g. where it referred to gender violence or gender exper-
tise. And toward the end of the Rome Conference, it attacked, initially with the U.K.
in the lead, the inclusion in article 21(3) of the phrase that precludes gender and other
forms of discrimination in the interpretation and application of the statute. The attack
on the non-discrimination principle, which the Women’s Caucus had nursed to ac-
ceptance through several PrepComs, soon revealed itself as an attack on the inclusion
of discrimination based on “gender”, and helped to galvanize broad support for the
position of the Women’s Caucus. Unquestionably, the codification of this overarching
principle, modelled on the standard non-discrimination clause in humanitarian and
human rights treaties, but substituting the word “gender” for “sex”, is one of the most
important protections of gender justice.
The Unholy Alliance had several goals in seeking to eliminate the word gender
from the Rome Statute. It wanted to eliminate recognition of the social construction of
gender roles and hierarchy, since such recognition is inconsistent with the view that
males and females are essentially different and have, therefore, different roles, status,
and rights. It also sought to preclude consideration of persecution or discrimination
based on sexual orientation or gender identity. By contrast, the delegations in favour
of including gender, reflecting the overwhelming majority, were concerned not to pre-
clude the progressive development of international law and thus sought to embrace
the social construction of gender in an open and flexible definition.”
In the end, the body adopted a rather peculiar and circular definition of gender
applicable to every use of the term in the statute. It reads:
or degrading treatmenf’ (Report of the Preparatory Commission for the International Criminal Court.
Addendunv Finalized draft text of the Elements of Crimes (6 July 2000), UN Doc.
PCNICCt2000/NF/3/Add.2 at 6, n. 3; the draft indicates that the final version will be UN Doc.
PCNICC/2000/1). The general introduction incorporates the broader concept of gender integration-
that sexual violence conduct may constitute any of the crimes within the jurisdiction so long as it
meets the elements of those crimes-by noting that art. 21 applies to all the Elements and that a par-
ticular conduct may constitute one or more crimes (ibid. at 5, para. 1).
See ag. C. Steains, “Gender Issues” in R.S. Lee, ed., The International Criminal Court: The
Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International,
1999) 357 [hereinafter “Gender Issues”].
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
237
For the purpose of this Statute, it is understood that the term “gender” refers to
the two sexes, male and female, vithin the context of society. The term “gen-
der” does not indicate any meaning different from the above! ‘
The reference to two sexes reflected the Vatican and the islamists’ position. But the
phrase “in the context of society” was explicitly intended to incorporate the sociologi-
cal or social construction of gender. The last sentence, which was sought by the small
group of anti-gender delegations in the hopes of excluding sexual orientation, was
seen by the majority of delegations as superfluous.
As an effort to legitimate sexual orientation and gender identity discrimination
under the statute or to eliminate persecution on these grounds as a crime, the defini-
tion of “gender” will, I believe, prove itself a failure. First, because the words do not
support such an exclusion: even the accepted definition of “gender” necessarily em-
braces discrimination based upon a decision not to behave according to a prescribed
gender role, whether it be in the realm of housekeeping, work, or sexuality. Second, it
is highly dubious to argue that any ambiguity should be resolved in favor of discrimi-
nation, especially in a statute establishing the highest international institution of uni-
versal justice. And finally, as Judge Rosalie Abella commented last night, “Hatred
which expresses itself in persecution must draw condemnation and punishment as a
crime against humanity, otherwise hatred wins the day.”‘
Thus the Rome Statute contains an impressive list of sexual and gender crimes
and represents an important breakthrough. At the same time, this codification has not
silenced those who continue to favour extending impunity to perpetrators of crimes
against women. The upcoming negotiations on the Elements of Crimes, which, ac-
cording to article 9 of the Rome Statute, are intended only to guide but not bind the
Court and must be consistent with the statute, will undoubtedly be used as a second
Rome Statute, supra note 52, art. 7(3).
6’ It is necessary to note here a very significant correction in “Gender Issues” by Steains, an Austra-
lian delegate in the negotiations, supra note 58. The published article concludes at 374: “Although
many delegates felt that the second sentence was superfluous, it was ultimately included to forestall
any implication that the issue of sexual orientation could be raised in connection %,Ath Article 2[l](3).
The published version is completely inconsistent with the draft submitted by the author, which states
in the pertinent part: “The second sentence was included upon the insistence of the ‘anti-gender’ dale-
gations, despite arguments by the ‘pro-gender’ delegations that it was superfluous” (C. Steains, “Gen-
der and the ICC” (July 1999) [unpublished draft, on file with author at CUNY, footnote omitted];
Memorandum from C. Steains to P. Lee (2 July 1999)). Footnote 53, which follows the sentence
quoted above in the published text, provides further evidence against the anti-sexual orientation posi-
tion. The anti-gender delegations had proposed the sentence as: “The term ‘gender’ does not indicate
any meaning different from accepted prior usage.” This was rejected as obsolete (see “Gender Issues”,
ibid. at 374).
6″ For Justice Abella’s written remarl,
see R.S. Abella, “The Instructive Power of Outrag: Re-
membering Nuremberg” (2000) 46 McGill L.J. 113.
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bite at the apple.’ Ultimately, the knowledge and sensitivity of the judges and the
oversight of NGOs will be dispositive.
In addition to ensuring the proper recognition of gender crimes within the sub-
stantive jurisdiction of the ICC, the Women’s Caucus identified a number of other
process-oriented concerns that are fundamental to enabling women to participate in
the justice process and to whether justice is universal. Experience with the interna-
tional criminal tribunals and in other advocacy situations suggested the need for the stat-
ute to establish certain basic structures and processes. Here I will give examples only.,’
First, as to the composition and administration of the Court, the Women’s Caucus
looked at who are going to be the decision-makers. We insisted upon a dual standard,
one based on gender expertise and one on biology. The judges and other personnel
should include gender experts at the same time as they should, following the principle
of non-discrimination and, following the Beijing Platform, represent a balance of
women and men. As indicated above, the presence of women judges who also had
expertise in gender and of the gender legal adviser in the OP was crucial to the gender
advances in the two ad hoc tribunals. At the same time, men can and should become
gender experts. As against significant opposition from the Unholy Alliance, the Dip-
lomatic Conference adopted provisions calling upon state parties to “take into account
the need … for a fair representation of female and male judges” as well as the “need to
include judges with legal expertise on specific issues, including … violence against
women or children.” The same standards apply to staff of the prosecutor and regis-
try. While the requirement is not as strong as the caucus would have liked, political
action will be necessary in any case to ensure that “fair representation” is a balance of
women and men and to secure the proper representation of gender experts.
There are also provisions that seek to incorporate, improve upon, or avoid certain
practices in the ad hoc tribunals. For example, the prosecutor has an obligation prop-
erly and respectfully to investigate crimes of sexual and gender violence.’ The Court
has broad authority to protect victims and witnesses, with particular attention to vic-
tims of sexual violence, and the statute codifies the need for a victims and witnesses
unit, placed in the registry so as to maximize independence from the prosecutor and
62 Preparatory Commission for the International Criminal Court, Report of the Preparatory Com-
mission for the International Criminal Court, PCNICC, 2000, UN Doc. PCNICC/2000/
INF/3/Add.1.
63 While many provisions of the Rome Statute, supra note 52, were influenced by the Women’s
Caucus and have significant impact on the prosecution of gender crimes, the provisions that arc spe-
cific to gender issues are the following: arts. 7(1)(g), 7(1)(h), 7(2)(c), 7(2)(f, 7(2)(g), 7(3),
8(2)(b)(xxii), 8(2)(e)(vi), 21(3), 36(8)(a)(iii), 36(8)(b), 42(9), 43(6), 54(l)(b), 54(2), 57(3)(c), 68,
69(4).
64 See ibid, arts. 36(8)(a)(iii), 36(8)(b).
Ibid, art. 44(2).
Ibid, art. 54(I)(b).
2000]
R. COPELON – GENDER CRIMES AS WAR CRIMES
staffed with experts in trauma, including trauma resulting from sexual violence. The
concept of a fair trial includes both the rights of the accused and the interests of vic-
tims.’ And, borrowing an important page from the civil law system, victims have a
right to participate in the proceedings directly or through a legal representative insofar
as their interests are affected and to have the Court declare or award reparations, in-
cluding restitution, compensation, and rehabilitation.
Conclusion: Towards a Holistic Gender-Inclusive Approach
The ICC statute is thus revolutionary in its thoroughgoing approach to the issues
of gender in international law. The Court is not only a potentially important concrete
mechanism of accountability; it also establishes basic norms of gender justice that op-
erate as an inspiration and model for political advocacy and domestic systems. The
broad incorporation of the gender norms codified in the Rome Statute will not auto-
matically change misogynist or sexist laws. Under the statute’s principle of comple-
mentarity, states are encouraged, though not required, to incorporate the key provi-
sions in their domestic laws. Moreover, even the Rome Statute’s codification will not
avert the danger of exclusion and impunity in the ICC or in the accountability proc-
esses-national and international–to which it should give rise. But it provides a criti-
cal new tool.
At root, the process of changing patriarchal culture and the inequality of women
is a multi-faceted and urgent responsibility of both women and men. The ICC can
make a contribution to this process, but we must remember Rosalie Abella’s comment
last night that courts and legal norms come “too late”‘.” With regard to crimes against
women, there is unfortunately not so sharp a difference between war and everyday
life. Torture and rape in conflict situations have too much in common with rape in the
marital bedroom, battering in the home, and gang rape in bars and streets. Indeed,
domestic or intimate violence is, in most societies, the greatest killer of women.
Marital rape is widely permitted as a result of laws or practices that preclude prosecu-
tion. These are examples of egregious gender violence that is committed on a wide-
spread or systematic scale and involves policies of legitimation, whether policies of
active encouragement or policies of knowing omission, invisibilization, and toleration.
We must, of course, anticipate significant opposition to applying crimes against
humanity to the gender crimes of everyday life, but it is important to press that point.
We must continually make the connection between gender violence and persecution
in war and conflict and, as Eleanor Roosevelt said of human rights, “in the small
67Ibid, arts. 43(6), 68.
6Ibi.,
arts. 64(2), 68(1).
kbiL, art. 68(3).
70/bidL, art. 75.
7’ See AbeUa, supra note 61 at 118.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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places close to home” if we are to counter the culture of male entitlement to use
women as property. In other words, if the ICC is successful, it will function not only
to prevent atrocities in identified conflict situations, but also to sharpen the popular
understanding of the atrociousness of sexual and gender violence and persecution and
the relation between torture in intimate relationships and atrocities in the context of
war.”‘ Also, with regard to the problem that judicial institutions are called into action af-
ter the fact, it is important to bear in mind the essential relationship between political,
economic, social inequality, including gender inequality, and violence in all contexts.
In concluding, I want to take advantage of the podium to comment briefly on this
morning’s panel addressed to the identification of warning signals.” In addition to
looking at historical and immediate signs of violence, it is necessary to look at basic
economic and political conditions that generate or provide the ground for manipula-
tion of insecurity, desperation, and rage into hatred and violence. These include issues
of gender inequality as well as economic issues, and particularly the impact of eco-
nomic and media globalization on those it colonizes. It was not irrelevant to the geno-
cide in Rwanda that Hutus were stirred up to attack Tutsis because there had been a
huge inflation and they were told that the Tutsi would take their cows. It was not ir-
relevant that Tutsi women were propagandized as treacherous and sexually enticing
targets. We cannot prepare the ground for peace and security and exclude from con-
sideration either globalization policies that breed economic insecurity and insecurity
about identity, or the role of patriarchal and misogynist culture in everyday life.’
72 See R. Copelon, “Recognizing the Egregious in the Everyday: Domestic Violence as Torture”
(1994) 25 Col. Hum. Rts. L. Rev. 291.
” See D.S. Rieff, “Are Good Intentions Enough? The Limits of the New World of International Jus-
tice” (2000) 46 McGiU LJ. 173; E Bugingo, “Rwanda: Chronique d’un g6nocide pr6visible” (2000)
46 McGill LJ. 179; SJ. Toope, “Does International Law Impose a Duty upon the United Nations to
Prevent Genocide?” (2000) 46 McGill LJ. 187.
t The ideas expressed herein are the product of an ongoing exchange among feminist scholars and
activists, many of whom are noted in the course of this piece. In addition, I want to thank Pam Specs
for her work with IWHR and for the research and publications she has prepared as the outreach coor-
dinator of the Women’s Caucus for Gender Justice, Emily Roscia, CUNY 2001, whose research
brought this article to fruition, Ariane Brunet, at the International Center for Human Rights and
Democratic Development, who convened the monitoring project on gender-related crimes at the In-
ternational Criminal Tribunal for Rwanda; Alda Facio, Eleanor Conda, and Vahida Nainar, whose di-
rection has made the Women’s Caucus for Gender Justice a reality and a force and who together with
Caucus participants through Rome, Barbara Bedont, Widney Brown, Ustina Dolgopol, Lorena Fries,
Marieme Helie-Lucas, Ann Jordan, Sara Maguire, Katherine Martinez, Yayori Matsui, Betty Mu-
rungi, Ana Elena Obando, Valerie Oosterveld, and Indai Sajor, Tulika Srivastava, and Zieba Shorish-
Shamley, contributed in particular ways to the ideas expressed herein. Finally, I want to thank BVHR
co-founder Celina Romany and former IWHR interns and CUNY research assistants who have as-
sisted, challenged, and enriched my thinking and participated in different stages of IWHR’s and/or the
caucus’s work on these issues: Jenny Anderson, Donna Axel, Mary Elizabeth Bartholomew, Kather-
ine Gallagher, Kimberly Jones, Mary Marrow, Ethan Taubes, Connie Walsh, and Marti Weithman.
Augusto Pinochet and International Law
Ruth Wedgwood*
This article explores the interplay between his-
toricized law and normative standards of human rights
law by considering how the House of Lords dealt with
the question of General Pinochet’s immunity. By se-
lecting a normative account of state power, the law
lords aligned themselves with evolving standards of
humanitarian law, articulated in, for example, the Con-
vention against Torture and Other Cruel, Inhunman or
Degrading Treament or Punislunent, the law of %var,
and the Geneva Conventions, and the recent interven-
tion in Kosovo. Although appealing, the normative po-
sition is far from unassailable, from both principled and
pragmatic angles. The author questions, for example,
whether a foreign court can support universal jurisdic-
tion and limitations of official acts of immunity based
on normative customary international law, or whether
this requires ex ante treaty assent by the state where the
offence took place and by the state of the offendes
nationality. How to avoid destabilizing new democratic
regimes is another problem that attends the use of na-
tional courts to try extraterritorial crimes under univer-
sal jurisdiction. Legal and diplomatic questions such as
this may be responsible for the hedged position the
British government finally adopted in the case against
Pinochet. Such questions also lend uncertainty to more
recent cases, where governments have tried to enforce
normative international law to apprehend a foreign
state official for crimes against humanity. Despite the
dangers of universal jurisdiction, however, the author
concludes that the ambiguity of the Pinodiet decision
permits a nuanced application of its principles.
Uauteur, examinant ta dcisison de [a Chanbr des
Lords sur la question de ‘immunitd du gdnr-al Pinochat.
attire l’attention sur l’interaction entre I droit dans son
contexte historique et les standards nomnaifs da droit
international humanitaire En adoptant une approeh-
normative du pouvoir dtatique. les lords se sent inscrits
dans la mouvance des nouveaux standards du droit hu-
manitaire international, tels qu’aticulds dans la Conven-
tion sur la torture, le droit gdn&al de la guerre at les
conventions de Gcnve, et tels qu’ils sc sent anifestos,
par exemple, par ‘intervention r.cente at Kosovo. Cette
position normative, blen quattirante, est toutefois loin
d’Etre incontestable, autant sur le plan des prin-ipes qua
d’un point de vue pragmatiquc. Par exempie, on peut sa
demander si une cour dtrang&e peUt exer= unz com-
p tnce universelle et limiter les immunits statutaires
en se basant uniquement sur le droit couturnier interna-
tional, ou si cela requiert i’assentiment prt&lab!e da
Itat o la violation a eu lieu at da l’ttat & nationalitd
du responsable. La nkcssiti d’dviter &- d2stabiliser das
rigimes damocratiques dmergents par l’utilis.tion &- la
competence univcrselle pour amenar d2s crimes extra-
territoriatix devant lajustice constitue dgalemant un pro-
blame important. Des questions ldgales at dip!omatiquas
de cette nature sont peut-re h I’originaz da la position
ambivalente finalement adopt6c par le gouvemrnznt
britannique dans ‘affaire Pinachet. Elles soul’vent dga-
lement de ‘incertitude dans des cas plus r&ents, ot d:s
gouverements ont tent d’appliquer le droit internatio-
nal en apprahendant des responsables dtatiques Ctrangers
ahlgr ls dangers da la
pour crimes contre l’humanit&
comptence universella, l’autcur con-Jut toutefois, da
manih-e optimiste, que cette ambig&fi ngnea 4t unz ap-
plication nuancde des principesde lad&ision Piwdchrt.
“Professor of Law, Yale Law School, and Senior Fellow for International Organizations and Laz
Council on Foreign Relations. This paper is based upon a panel discussion on “War Crimes, Crimes
against Humanity, Genocide” at the international conference Hate, Genocide and Human Rights Fift,
Years Later: Wiat Have W Learned? Wat Must e Do? (Faculty of Law, McGill University, 28
January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 241
Mode de rfdrence: (2000) 46 R.D. McGill 241
242
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Reading history through a legal lens has its dangers. The lawyer is trained to sift
the past with a set of principles that often are hard to apply in situations of politics and
strife. The lawyer reads from present to past perfect, arguing that even in war or civil
collapse, some core of accountability and integrity of conduct must constrain the ac-
tors-even when the triumph or survival of a preferred regime or polity is at stake. To
gain confidence in the act of judging, the lawyer may suppose that the principle of ra-
tionality, seeking “economy of force” in military conflict, assures that humane con-
duct will never jeopardize victory. But at heart, the law’s claim is more radical. It pur-
ports that the stakes of a war or civil conflict can never be worth winning badly. The
jurist, applying law to armed conflict, supposes that even a desperate competition to
claim state power or preserve national independence cannot justify disregard for the
peremptory demands of decency. Jus in bello-limits on how a conflict is fought, in-
cluding due regard for the lives of civilians-retains its force no matter the purpose or
fault of the war. The law makes a chiliastic demand, to observe human values even in
the abyss of doubted survival.
Many combatants have rejected this claim. In contests of left and right, and wars
between nation states, engagement has often meant a willingness to indulge in in-
strumental lapses. Some have counted on victory as absolution; stooping to conquer,
they gamble that winners can rewrite history and mask scabrous behaviour.
The forty-year contest between East and West, a Manichaean combat of right and
left with the hazard of nuclear engagement, often seemed to dwarf ordinary judg-
ments of morality and law. Surely we will not see the world in this light again, at least
in our lifetimes. And yet alongside the new consensus of cyber-citizens in a free trade
economy, conflict continues in autarkic communities, with violence deployed by na-
tional groups that hope to gain historical standing or international personality. Men’s
homage to necessity continues.
It is this quandary that marks the Pinochet case in the frame of historicized law. In
the course of the military regime that ruled Chile from 1973 to 1990, General Augu-
sto Pinochet’s supporters defiantly claimed that what happened was necessary to de-
feat communism and save the state. Military review, like judicial review, was a proc-
ess to defend a larger constitutionalism. Defeating a hostile mode of political thought
required, in Pinochet’s world view, a ruthless war upon the morale and survival of its
proponents. Doubt about this argument, even among his supporters, is reflected in
their alternative polite conceit that the general was unaware of the military violence
against civilians in Chile.
Perhaps it is only with the anxieties of the cold war laid to rest that both sides can
now treat this claim soberly. We know how the cold war ended, with the victory of
democracy and free market economies, and the relationship of Pinochet’s terror to this
triumph seems spurious indeed. With a greater clarity that the violence was superflu-
ous, perhaps even its participants are willing to entertain the harder thought that in-
strumental goals should never justify the torturous treatment of individuals.
The renewed Pinochet controversy presented itself in an almost casual manner. A
quarter century had passed since the 1973 Santiago coup d’dtat against socialist Sal-
vador Allende that brought Pinochet to power. Pinochet’s self-confident agreement in
2000]
R. WEDGWOOD – PINOCHETAND INTERATIONAL LAW
243
1988 to hold a nationwide plebiscite on his rule was followed by unexpected defeat at
the polls, and he stepped down from the presidency in 1990. Like Daniel Ortega in
Nicaragua, Pinochet was still to be reckoned with in Chilean politics, since he contin-
ued as commander in chief of the armed forces. Only in March 1998 did he also leave
his military post, and became a senator-for-life with claimed immunity from arrest.
The Chilean general visited London several times, confident in his standing as a
close ally of the United Kingdom in the Malvinas/Falkland Islands war with Argen-
tina. He embarked for London again in September 1998, spurning the advice of a
former member of the military junta who warned him that the environment was dif-
ferent, and that Spanish magistrate Baltazar Garzon was headlong into an investiga-
tion of the Chilean coup and the disappearances of Spanish civilians. It may be, in-
deed, that Pinochet’s personal sense of historical justification was enough to blind him
to a different calculus. Pinochet reveals himself as a man of an archaic period, unable
to fathom the development of a Europeanjus commune and international standards of
human rights that might frame a different view of his rule.
Pinochet was arrested by English police from a hospital bed in London after
treatment for a bad back, and placed under house arrest. The warrant was based upon
a Spanish extradition request, charging him with murder and genocide (the latter ac-
cording to Spanish law’s particular account). The warrant was then amended to sub-
stitute the offences of hostage-taking and torture–crimes defined by international
conventions’ that embrace universal jurisdiction among treaty parties,’ permitting any
joining state to take jurisdiction of the case.
From the start, Pinochet’s defence against extradition was based on a claim of
procedural fairness and historical exception. He was Chile’s head of state at the time
of the commission of the acts, Pinochet’s lawyers noted, and international practice has
traditionally respected an absolute immunity in sitting heads of state, barring any ex-
ercise of the criminal legal process of foreign states. The black and white guarantee of
treaty law is not available in this argument, of course; negotiations to codify the ab-
solute immunity of ambassadors were completed in 1961,’ but it is customary prac-
tice, not treaty law, that presidents and monarchs are given the same absolute immu-
nity against arrest and criminal charges.
Pinochet tripped over the lesser immunity of figures in retirement. Under Eng-
land’s national law on immunities,’ a former head of state was only to be accorded a
‘ International Convention Against te Taking of Hostages, 4 December 1979, 1315 U.N.T.S. 205,
18 LL.M. 1456 [hereinafter Hostage Convention]; Convention against Torture and Other Cruel, In-
huan or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, Can. T.S.
1987 No. 36,23 IL.M. 1027 (entered into force 26 June 1987) [hereinafter Torture Comention].
‘Hostage Convention, ibid, art. 5; Torture Comvention, ibid, art. 8.
3 Venna Convention on Diplonmatic Relations, 18 April 1961, 500 U.N.T.S. 95, 23 U.S.T. 3227
(entered into force 26 June 1987) [hereinafter Vienna Convention].
4State
Inmunity Act 1978 (U.K.), 1978, c. 33, s. 20, reprinted in 17 LL.M. 1123.
244
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(Vol. 46
limited immunity-patterned after the legal shield of a former ambassador who has
finished his posting. This restrictive theory of immunity is based on the type of action
rather than the person-an immunity ratione materiae rather than ratione personae,
Pinochet was to be protected only for “official acts” undertaken on behalf of Chile,
and so the question arose: What was an official act?
His lawyers claimed, of course, that any act committed in the discharge of his du-
ties must be considered official, and that a president must determine the domain of his
own duties. What was not, hypothetically, done for private gain must be, by definition,
public. The defence against criminal process was initially sustained by the English
High Court of Justice But on the Crown’s appeal to the House of Lords, determined
by a bare majority of three law lords, a dramatically new account was given of the
nature of public office.’ The fact that an official believed he was advancing state inter-
ests would no longer suffice, as such, to prove that allegedly criminal conduct was an
official act. In particular, heinous acts of torture, systematically committed, could not
be counted as official duty, even if the abuse was committed in uniform, or through an
official chain of command, or authorized by a recognized head of state. This was a
normative theory of state power-uncertain in its reach, but radical in its result.
The initial House of Lords decision was vacated after an unnecessary controversy
over the conflict of interest of one of the judges.! But on rehearing, a second panel
came to the same result, rejecting Pinochet’s immunity.’ The shared position of the
two panels was partially masked, because the second group of judges narrowed the
charges arrayed against Pinochet through the additional requirement of “mirror juris-
diction”. Only after the United Kingdom changed its criminal code to endow its
courts with jurisdiction over extraterritorial murder (under the theory of universal ju-
risdiction) could such charges be brought, and a majority of the second panel sup-
posed this jurisdictional change could not fairly be used to prosecute prior criminal
conduct. The incorporation took effect on 29 September 1988, when section 134 of
K’R v. Bow Street Magistrates’ Court, Exparte Ugarte (28 October 1998), [1998] All E.R. (D) 509
(Q.B.D. Div. CL) (Lord Bingham of Cornhill CJ., Collins & Richards JJ.), online: Butterworths (All
England Direct)
6p, v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte, [1998] 4 All E.R.
897, [1998] 3 W.L.R. 1456 (H.L.) (Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of
Birkenhead, Lord Steyn & Lord Hoffmann) [hereinafter Pinochet (No. 1)].
7 See P, v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2),
[1999] 1 All E.R. 577, [1999] 2 W.L.R. 272 (H.L.) (Lord Browne-Wilkinson, Lord Goff of Chievelcy,
Lord Nolan, Lord Hope of Craighead & Lord Hutton), vacating Pinochet (No. 1) on grounds of po-
tential conflict of interest.
8 X v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2
All E.R. 97, [1999] 2 W.L.R. 827 (H.L.). The majority consisted of Lord Browne-Wilkinson, Lord
Hope of Craighead, Lord Hutton, Lord Saville of Newdigate & Lord Phillips of Worth Matravers,
Lord Millett dissenting in part, Lord Goff of Chieveley dissenting, affirming and reversing in part Pi-
nochet (No. 1).
2000]
R. WEDGWOOD – PINOCHETAND INTERNA7ONAL LAW
245
the Criminal Justice Act 1988 came into force? Nearly coincidentally, Chile (surpris-
ingly enough) deposited its ratification of the Torture Convention as a full state party.
The difference a date makes, apart from the number of charges, was the important
question of source of law. The rehearing panel did not need to ground its immunity
decision on the more controversial bases of customary law orjus cogens. Instead, the
lords could argue that the limitation of official immunity was based on Chile’s own
agreement to the Torture Convention. To be sure, the text of the convention does not
explicitly reject head of state immunity. But the panel relied on a principle of con-
struction that laments futile legal acts. The court noted that if all conduct in office is
immune, ratione materiae, there would be no effective bite to the treaty at all, for the
treaty only reaches acts of torture committed under colour of law. The act has to be
“inflicted by or at the instigation of or with the consent or acquiescence of a public of-
ficial or other person acting in an official capacity” to qualify as an international
crime. 0
Still, the interweaving of morals and law, and perhaps an implicit reliance on non-
treaty sources of law, can be seen in the court’s balance at the edge. A distinction
could have been offered, had the second panel wished, between low-level officials and
heads of state. In an older political tradition, heads of state were considered sovereign,
and still are assumed to have responsibility for the most difficult judgments. The idea
of greater deference to the judgment of a senior official on what lies within the com-
pass of his office would be possible to entertain. Indeed, the law lords did not suppose
that they could judge the outer limit of official duties against the rules of a domestic
constitution; domestic illegality is not itself enough to exclude an act from official du-
ties. So, too, even a single act of torture, though forbidden by the international con-
vention, was not necessarily enough to abate the immunity of a former head of state.
But a systematic practice of abuse and torture-in Pinochet’s case, allegedly directed
against three thousand citizens of varied politics, vocation, and prominence-was be-
yond the pale of modem government, according to the law lords, even for a head of
state.” A claim of wholesale immunity for a former head of state was inconsistent
with the obligations of the Torture Convention itself.
This normative assessment of the limits of official power is a comfortable cousin
to the regime of international human rights law, which protects core individual enti-
tlements regardless of the political circumstances of a particular regime. International
human rights law has allowed substantial latitude to meet state emergencies, even
9 See Statement of Hone Secretary Jack Straw, Answer to Parliamentary Question, Written No. 8, 2
March 2000, at paras. 40, 48, 54, online: LEXIS (News, Hermes Database) [hereinafter Statement of
Jack Straw] reprinted in Hermes Database, Home Office, in .Pxis-Nxis News Library.
“Torture Convention, supra note 1, art. 1(1).
“The case would be considered one of systematic torture, for purposes of determining immunity,
even though most of the charged acts occurred before the date when Britain incorporated the Tortue
Convention. This may be considered the law lords’ other quiet concession to the moral impetus of the
case.
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permitting suspension of the observance of some of its guarantees. But the core pro-
tection of integrity of the person, including freedom from physical abuse, has been
held sacrosanct and non-derogable by all international legal regimes of human rights.”
So, too, the lords’ account of the limits of state power finds traditional roots in the
laws of war, which make clear that acts in government service can be criminal. The
laws of war protect a soldier from personal liability for killing an armed adversary in
military conflict. It is the state acting, not the soldier, and so the act of homicide is not
considered a crime. But under the law of war, gratuitous attacks upon civilians and
military prisoners are considered criminal-even if the soldier is prosecuting the war,
even if he is acting under orders, for such an order would be manifestly unlawful. The
laws of war-and their cognate standards in international humanitarian law, devel-
oped in the Geneva Conventions of 1949′ 3-anticipate
individual criminal liability for
serious violations, giving no immunity by virtue of public office to a soldier or to a
commander in chief. The absence of private motive is not enough to shield a heinous
act.
In proffering a normative account of state power, the law lords could also claim
alliance with the evolving standards for humanitarian intervention. The modem defi-
nition of sovereignty, as the secretary-general of the United Nations has suggested,
does not include the right of a state to abuse its own citizens.” NATO’s intervention in
Kosovo in March 1999 bore the same premise as the Pinochet case-that there are
limits to state power, guarded by an international right of concern and action. Though
criminal sanction is a rigorous area of the law, demanding clarity, jurisdiction, and due
process, its application to public acts through an international jurisdictional scheme
may be likened to the emergent right of intervention in the case of gross and system-
atic violations of human rights and human life.
There is, of course, a coherent view that the criminal intervention by Spain and
England was at odds with this century’s lesson of history. Past transitions to democ-
racy-in Spain, Portugal, South Africa, Namibia, El Salvador, Guatemala, Haiti, and
elsewhere-seem to suggest that a compromise on justice is necessary. Reaching a
political and military modus vivendi, and seeking to stabilize a new democratic re-
2 See International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171,
art. 4, 6 I.L.M. 368 (entered into force 23 March 1976); European Convention for the Protection of
Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, art. 15, Eur. T.S.
No. 5 (entered into force 3 September 1953); American Convention on Human Rights, 22 November
1969, 1144 U.N.T.S. 123, art. 27, 9 I.L.M. 673 (entered into force 18 July 1978).
‘3 See e.g. Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S.
135 at 236, 238, arts. 129, 130, 6 U.S.T. 3316 at 3418, 3420 (entered into force 21 October 1950)
(Geneva Convention 111); Convention Relative to the Protection of Civilian Persons in Tne of War, 12
August 1949, 75 U.N.T.S. 287 at 386, 388, arts. 146, 147, 6 U.S.T. 3516 at 3616, 3618 (entered into
force 21 October 1950) (Geneva Convention IV).
” Address of Secretary-General Kofi Annan to the General Assembly (20 September 1999), UN
Press Release SG/SM7136, GA/9596.
2000]
R. WEDGWOOD – PINOCHETAND INTERNAIOAL LAW
247
gime, may require suspending the standards of justice, forgoing the punishment of
actors who have violated human rights. Why should another country have the right to
disregard the considered view of a new democratic regime about the necessary com-
promises of justice?
This is a hard question, in principle and in practice. In principle, we do not ordi-
narily think that even democratic judgment can invade a certain core of rights. One
would have to ask whether punishment of a violation-the vindication of the victim’s
harm-is not itself part of the entitlement of the rights-holder: whether one can sepa-
rate right and remedy. The new voice of victims in domestic criminal justice systems
might suggest that even in international justice, the views of those directly affected
must be given special weight.
In addition, the domestic amnesties in Chile were imposed within severe con-
straints. The 1978 amnesty was imposed by a non-democratic regime. Even after his
departure from the office of president, Pinochet continued his tenure as commander in
chief of the armed forces until 1998, and this meant that the latitude of the new demo-
cratic government was limited. De facto protection was gained by the asserted exclu-
sive jurisdiction of military courts over members of the Chilean military, and the re-
fusal of Chile’s military to surrender any of its members to the jurisdiction of civilian
courts. The atmosphere was sufficiently delicate that in 1990, the Christian Demo-
cratic president Patricio Aylwin was unable to establish a truth commission with leg-
islative support; he acted alone, by executive authority.
Nonetheless, it would have been serious beyond words if transnational judicial
intervention had caused an interruption of Chile’s democracy. Foreign judges may be
willing to entertain cases under universal jurisdiction, but the limited resource of in-
temational military power and the daunting costs of conflict mean that a new demo-
cratic government will be on its own. There is no international security guarantee for a
democratic regime against military overthrow.’ The Security Council’s intervention in
Haiti is the exception that proves the rule.
‘ The Organization of American States and the Organization of African Unity [hereinafter OAU]
have pledged to use their diplomatic machinery to discourage illegal interruptions of democratic re-
gimes. But neither regional organization has been willing to directly authorize military intervention
for the restoration of democratic regimes. See OAS, General Assembly, 3d Sess., Santiago Commit-
ment to Denocracy and the Renewal of the Inter-American System, OR OEA/Ser.P/XXI.O2 (1991)
at 1; OAS, General Assembly, 5th Sess., Representative Democracy (Resolution 1030) OR
OEAISenP/XXI.O.2. (1991). See also “OAU Summit Closes with Calls for Democracy, Dignity”,
Agence France Presse (14 July 1999), online: LEXIS (News) (OAU Secretary General Salim A. Sa-
lir states that future coup leaders “shouldn’t expect to be invited” to the next summit); compare
chairman of OAU Abdelaziz Bouteflika’s statement that “[hle did not deny the right of the public
opinion of the northern hemisphere to denounce the breaches of human rights where they existed …
However, the countries of the OAU remained extremely sensitive to any undermining of their sover-
248
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[Vol. 46
A sense of the delicacy of this balance may account in part for the hedged posi-
tion of the British government in the denouement of the Pinochet case. The principle
of accountability was established as a matter of law for the future; the excuse of Pino-
chet’s human decrepitude permitted an exit that avoided any chance of disaster. In any
future exercise of universal jurisdiction within national courts, however, the question
of democratic stability must weigh profoundly. It is justification for the participation
of responsible political branches, as well as the judiciary, in the practical application
of international requests for surrender.
The British chapter of the Pinochet case ended in the obscurity of a medical ex-
amination, rather than in the clarity of factual judgment. After Pinochet was held po-
tentially liable to extradition, and the Bow Street magistrates approved the factual suf-
ficiency of the Spanish presentation,’6 the Home Secretary nonetheless chose to refuse
extradition on grounds of mental incompetence. An eighty-four-year-old defendant
might seem frail in the best of circumstances, and Pinochet’s mental acuity was said
to have deteriorated with a series of strokes in September and October 1999. Interest-
ingly for dualists (especially in light of Britain’s outspoken position on the Interna-
tional Criminal Court), Home Secretary Jack Straw declared that he would give prior-
ity to English law on mental competence even if medical debility did not qualify as a
ground for refusing extradition under the European Convention on Extradition.”
As with other intriguing precedents, it will remain to the future to untangle which
of the circumstances in the Pinochet case were truly necessary to the radical puncture
of criminal immunity. The dismissal of immunity does not depend on the internal the-
ory of politics of the affected country, whether democratic or authoritarian-but the
final Pinochet opinion may silently turn not only on Britain’s incorporation of the
Torture Convention but as well upon Chile’s coincident ratification of the convention.
It seems improbable that many authoritarian regimes will ratify such a convention and
the domain of the Pinochet precedent could be limited by this.
eignty” (Implications of International Response to Events in Rwanda, Kosovo Examined by Secre-
tary-General, in Address to GeneralAssembly, Press Release GA/9595, 20 September 1999).
6 Spain v. Augusto Pinochet Ugarte (8 October 1999), 39 I.L.M. 135 (Mag. Ct.), online: The Mag-
(date accessed: 2 Novem-
6
istrates’ Courts Service
ber 2000).
,” Home Secretary Jack Straw stated that “the Secretary of State attaches great importance to the
international obligations of the United Kingdom … However, … given the breadth of his discretion
under section 12 of the [Extradition] Act there may be some occasions on which the requirements of
the Convention are outweighed by other compelling considerations peculiar to particular cases”
(Statement of Jack Straw, supra note 9 at para. 30); compare “Spanish and Belgian Experts Claim Pi-
nochet Fit to Undergo Trial” The Irish Tmes (23 February 2000) 11 (“spokesman for the Swiss Fed-
eral Office of Police, said that under the terms of the European convention, extradition could not be
refused on health grounds”). One British counsel later noted his dismay that Pinochet leapt out of his
wheelchair upon his return to Santiago airport.
2000
R. WEDGWOOD – PINOCHETAND INTERNATIONAL LAW
249
Other factual patterns may arise that press the question of which source of law is
necessary in defeating official immunity and establishing universal jurisdiction. On 4
February 2000, shortly after Pinochet’s return to Chile, an investigating judge in
Senegal indicted the former president of Chad, Hissene Habre, as an accomplice to
torture in connection with the deaths of members of the Sara, Hadjerai, and Zaghawa
ethnic groups.’8 After his overthrow in December 1990, former Chad president Habre
fled to Senegal and lived there for a decade, accused of taking 11.6 million dollars in
his flight. The Senegalese case was supported by investigations conducted by a Chad
truth commission and non-governmental organizations such as New York-based Hu-
man Rights Watch, Dakar-based African Assembly for the Defense of Human Rights
(RADDHO), and Paris-based International Federation of Human Rights.
The willingness of Senegal to undertake the case may have had something to do
with Senegal’s public stance favoring the permanent International Criminal Court.
Senegal was the first country to ratify the Statute of the International Criminal
Court.”‘ It ratified the Torture Conention in 1986, passing implementing legislation in
1996. The central legal obstacle, however, which distinguishes this case from the de-
cision in Pinochet (No. 3), was that Chad did not ratify the Torture Convention until 9
June 1995, five years after Habre left power.: The case thus renewed the questions
sidestepped by the law lords in Pinochet (No. 3): Can a foreign court support univer-
sal jurisdiction and limitation of official-acts immunity based upon customary inter-
national law andjus cogens? Or does it require ex ante treaty assent by the state where
the offence took place and the state of the offender’s nationality? Can treaty law be
applied retrospectively on these two issues (since jurisdictional questions are often
considered distinct from expostfacto bars)?
It is hard to tell what part of the denouement of the Senegalese case was politics
or law. A new Senegalese president was elected in March 2000, and soon a new as-
sistant state prosecutor called for dismissal of the charges. The president acting as
presiding officer of the Conseil superieur de la magistrature removed the investigating
“s See “Ex-Chad Ruler Is Charged by Senegal with Torture” The Ner York imes (4 February 2000)
A3.
Statute].
‘9 17 July 1998, UN Doc. A/CONF.183/9, 37 LL.M. 999 (not entered into force) [hereinafter Rome
A second problem might consist in Senegal’s late incorporation of the Torture Com’ention into
domestic law. The application of 1996 implementing legislation to reach Habre’s prior bzhaviour
would require the view that jurisdiction falls outside er post facto guarantees, or that the treaty or
customary law automatically created jurisdiction within domestic law. Compare Ndyarinuna v.
Thompson, [1999] F.C.A. 1192, 39 LL.M. 20: in a criminal case alleging genocide, Australian courts
must “declin[e], in the absence of [implementing] legislation, to enforce the international nor. ….
although torture is an internatio-ml crime, nobody [among counsel in the Pinochet case] suggested Pi-
nochet would have been triable in the United Kingdom before [1988] by reason of the incorporation
into United Kingdom law of the international customary law about torture” (though note acknow-
ledgement of Lord Mlllett’s contrary view) (ibiL at paras. 26, 29, 30).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
judge Demba Kandji from his post. On 30 June 2000 the head of the Senegalese In-
dicting Chamber announced that Senegal had no jurisdiction over Habre, and three
days later, the chamber head was promoted to the Conseil d’ttat. Habre’s lawyer was
also hired as a legal consultant to the government. These acts prompted foreign con-
cern that there was the appearance of political interference in judicial proceedings,
although the case also faced legal obstacles.’
The legal and diplomatic delicacies of the Pinochet case will recur in other cases.
In March 2000 a Belgian investigating magistrate announced his intention to investi-
gate a complaint of torture and unlawful detention against former Iranian president
All Akbar Hashemi Rafsanjani, based on the alleged abuse of a Teheran-bom Belgian
citizen imprisoned for six years.’ Belgian jurisdiction was based on a 1993 law estab-
lishing universal jurisdiction in Belgian courts for genocide and crimes against hu-
manity, as well as grave breaches of international humanitarian law. No extradition
request has been made in the case, and Rafsanjani continues to sit in the Iranian par-
liament. Iran has condemned the magistrate’s action, and the parliament has suggested
that diplomatic relations be frozen.
21 “Justice Denied in Senegal” The New York Times (21 July 2000) A18; “Senegal Ends Case
against Chad’s Former Ruler” International Herald Tribune (6 July 2000) 4 (Washington Post service
reports that Habre was “abruptly freed in a flurry of unusual moves”).
n See T. Scheirs, “Belgium Opens Investigation into Alleged Human Rights Violations by Former
Iranian President” (2000) 16 I.E.L.R. 6, online: LEXIS (News); “Rafsanjani is the latest in a series of
world figures to be investigated under Belgian law. They include the President of the Democratic Re-
public of Congo, Laurent Kabila, three former leaders of Cambodia’s Khmer Rouge, the former Mo-
roccan interior minister Driss Basri and several Rwandan genocide suspects” (“Belgian Judge Uses
Pinochet Case to Probe Former Iranian Chief’ Agence France Presse (5 March 2000), online: LEXIS
(News)).
2′ See Act of 16 June 1993 concerning the punishment of grave breaches of the Geneva Conventions
of 12 August 1949 and their Additional Protocols I and I of 18 June 1977, 5 August 1993, amended
by the Act concerning the punishment of grave breaches of international humanitarian law, 10 Feb-
ruary 1999, printed in 38 I.L.M. 918.
2 The Iranian parliament issued a statement that “[w]e condemn this suspicious plot and ask the
Belgian government to take a clear stance on this matter … [or] … we will take reciprocal action in
asking the parliament’s foreign affairs committee to put the continuation of diplomatic relations with
Belgium on its agenda”; Italian foreign minister visiting Iran states that Belgium has “taken some
steps which we do not understand … They certainly do not speak for the whole of Europe:’ See K.
Dorranie, “Diplomatic Row Breaks between Iran and Belgium over Court Case” Agence France
Presse (5 March 2000), online: LEXIS (News); “Iranian Official Expects Freeze in Economic Ties
with Belgium” BBC (7 March 2000), (broadcasting report of Iranian news agency that foreign minis-
try “has called on the Iranian economic organizations to reconsider their trade relations with Bel-
gium”; between March 1995 and March 1998, Belgium was “one of the five major countries export-
ing goods to Iran”); I. Black, “Rafsanjani Inquiry Puts Belgium in Fear of Fatwa” The Guardian (7
March 2000) 17 (Ayatollah Hassan Saneii, head of the semi-official Khordad Foundation, stated
“[o]ur reactions will not only be verbal”).
2000]
R. WEDGWOOD – PINOCHETAND INTERNATIONAL LAW
A second Belgian case presents the equally delicate question of how the law
should address a currently serving foreign official. In April 2000 Abdoulaye Yerodia,
the acting foreign minister of the Democratic Republic of the Congo (“DRC”), was
charged by the same active Belgian magistrate with “grave violations of international
humanitarian law” for encouraging wanton violence in Kinshasa against Tutsi civil-
ians. In August 1998, Yerodia had allegedly called in a radio speech for the “eradica-
tion and the crushing of the Rwandan and Ugandan invaders” who were described as
“microbes”, “vermin”, and “cockroaches”–language reminiscent of the broadcasts of
Radio-t6ldvision libre des mille collines in Rwanda during the 1994 genocide. The
broadcast was followed by violence against Tutsi civilians from Uganda and Rwanda.
The Belgian judge charged Yerodia with crimes against humanity and violations
of the Geneva Conventions of 1949, as well as the 1977 Additional Protocols I and IL
Belgium sent international arrest warrants to other states, including the DRC, in July
2000. Three months later, in October 2000, the DRC counterattacked in the Interna-
tional Court of Justice in The Hague, seeking a provisional measure for withdrawal of
the Belgian warrant because it “prevents the Minister from departing … for any other
State where his duties may call him and, accordingly, from accomplishing his du-
ties.'” This action by Brussels was said to violate the sovereign equality of states as
declared in the UN Charter,’ the principle that one state “may not exercise its author-
ity on the territory of another State” and the immunity guarantees of the Vienna Con-
vention. It is doubtful that an acting foreign minister is directly covered, without
more, by the Vienna Convention, and the DRC’s sudden accession to ICJ compulsory
jurisdiction is shaky (except insofar as issuance of a warrant may be considered a
continuing event). But the substance of the application gives new visibility to the
problematics of an at-large global magistracy.
The amendment of Canadian law on universal jurisdiction may present some of
the same difficulties. The previous limit placed on Canadian competence by the
Finta7 case is well known. After the report of the 1986 Commission of Inquiry on
War Criminals (the “Deschenes Commission”), Canadian law was amended to permit
the national trial of war crimes and crimes against humanity occurring abroad, even
by foreign nationals against foreign victims, so long as, at the time of the culpable act
or omission, Canada “could, in conformity with international law, exercise jurisdiction
over that person” The 1987 innovation was effectively disabled, though, in the 1994
decision in Finta, concerning a former Hungarian policeman resident in Canada who
‘ International Court of Justice, News Release 2000/32 (17 October 2000), online: International
Court of Justice
‘ Charter of the UnitedNations, 26 June 1945, Can. T.S. 1945 No. 7.
-R. v. F’mta, [1994], 1 S.C.R 701, 112 D.L.R (4th) 513 [hereinafter Fnta cited to S.C.R].
2 An Act to anzend the Crinnal Cod
the Inmigration Act and the Citizenship Act, R.S.C. 1985
(3d Supp.), c. 30, s. 1(1).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
had helped to deport Hungarian Jews from Budapest to Auschwitz?’ In that opinion,
the Supreme Court of Canada ruled that the defendant should be allowed to argue to
the jury that he believed Hungarian Jews to be “subversive and disloyal to the war ef-
forts of Hungary.””
In June 2000, in accord with Canada’s vocal support of the International Criminal
Court, the Canadian Parliament acted to expand national court jurisdiction to over-
come the Finta problem. The new statute recognizes jurisdiction in Canadian courts
over genocide, crimes against humanity, and war crimes, even if the offence occurs
outside Canada, so long as “after the time the offence is alleged to have been com-
mitted, the person is present in Canada'”‘ The new Canadian statute goes beyond the
Pinochet decision (other than Lord Millett’s opinion) in rejecting the need for statu-
tory incorporation of international law at the time of the criminal conduct. These most
serious of international crimes occurring outside Canada can be prosecuted even
where they took place “before … the coming into force” of the new statute.’2
The statute also rules out an “obedience to superior orders” defence in Canadian
courts where the order was manifestly unlawful and the defendant’s claimed belief in
its lawfulness was based on hate propaganda? Orders to commit genocide or crimes
against humanity are deemed manifestly unlawful per se.’ But most crucially for our
purposes, the new statute may permit prosecution of sitting heads of state”-an ambi-
tious reach that presents all of the diplomatic and security problems seen in the earlier
Belgian cases. For sitting heads of state, there is a powerful argument from prudence
See Finta, supra note 27.
See ibid. at 847; see also J. Hippler Bello, “Case Report on Regina v. Finta” (1996) 90 A.J.I.L.
460 at 467,473.
3′ CrimesAgainst Humanity and War CrimesAct, S.C. 2000, c. 24, ss. 6, 8 [formerly Bill C-19].
32 See ibid., s. 6(1).
3 Ibid., s. 14(3) (“An accused cannot base their [obeying orders] defence … on a belief that an order
was lawful if the belief was based on information about a civilian population or an identifiable group
of persons that encouraged, was likely to encourage or attempted to justify the commission of inhu-
mane acts or omissions against the population or group”).
T4hid, s. 14(2).
” See N. Ayed, “Bill Shuts Loopholes for War Crimes Suspects” The Toronto Star (11 December
1999) A31 (Foreign Minister Axworthy “said the legislation would also change current laws to allow
the prosecution of sitting heads of state”). See also, on the third reading of Bill C-19, House of Com-
mons Debates (13 June 2000) at 7916 (1. Cotfer) (“basic principles underlying Bill C-19” include the
“principle of non-immunity, the Pinochet principle and beyond…. a person who is the subject of a
domestic prosecution, including a head of state or senior official, will not be able to claim immunity
from prosecution under common law or statute … “). It is doubtful, however, that the Crimes Against
Humanity and War Crimes Act means to go beyond the Rome Statute in regard to head of state immu-
nity. Application of the International Criminal Court standards may require a distinction between
immunity ratione materiae (precluded by the Rome Statute, supra note 19, art. 27(1)), and immunity
ratione personae (protected by ibid., art. 98, when a requested state has entered into an international
obligation, but disregarded in the Court’s “exercising its jurisdiction” under art. 27(2)).
R. WEDGWOOD – PINOCHETAND INTERNATIONAL LAW
2000]
that criminal justice processes should be deployed, if at all, then only by a multilateral
institution that can claim a broad consensus of view.
Nonetheless, perhaps the most interesting effect of the House of Lords’ decision
on immunity may be seen in Chile’s own renewed national inquiry into the events of
the Pinochet era. On 22 May 2000 the Court of Appeals for Chile voted thirteen to
nine to remove the immunity of General Pinochet in connection with seventy-four
charged deaths.-‘ The Supreme Court of Chile affirmed the result in a vote of fourteen
to six?” On 13 June 2000, the Chilean military agreed to search for the remains of
twelve hundred persons who disappeared under Pinochet’s regime, albeit with protec-
tion for the identities of informants.” The mixed motives of this co-operation-in part
seeking to qualify within earlier amnesty provisions–does not alter the fact that the
Chilean military has changed its stance significantly from the recent past.
The ambiguity of precedent and decision often yields law’s greatest creativity.
While the dangers of universal criminal jurisdiction are amply shown by recent
events,
its impetus to a different politics–restoring the ability of democratically
elected governments to act on their own-is equally in evidence.
1 The Chilean Supreme Court stripped Pinochet of his parliamentary immunity on 8 August 2000.
See J. Langman, “Chilean Court Strips Pinochet of Immunity” The [Toronto] Globe and Aail (9
August 2000) Al; C. Krauss, ‘Pinochet Ruled No Longer Immune from Prosecution” The New York
Times (8 August 2000) A3 [hereinafter “No Longer Immune”].
‘ C. Krauss, “Chile Military to Search for Victims of Its Rule” The New York Times (14 June 2000)
A7 (“the dialogue made rapid progress after a decision by the Appeals Court that stripped General Pi-
nochet of his senatorial immunity and opened the way to a trial in Chile”).
R. Urbina, ‘Tinochet Loses Immunity, Opponents Seek Justice” Agence France Presse (5 June
2000), online: LEXIS (News); Chilean Appeals Court Strips Pinociet of lnummity (2000) 16 LEILR.
7, online: LEXIS (News).
” Investigating magistrate Juan Guzman has argued that an unresolved disappearance amounts to a
continuing kidnapping that would not fall within the Pinochet regime’s 1978 amnesty. The amnesty
has also been challenged as inapplicable to crimes against humanity. See “No Longer Immune”,
supra note 37.
The International Criminal Court
Philippe Kirsch, Q.C.”
The speaker reviews the major provisions of the Stat-
zae of the International Criminal Court. He recognizes the
limitations of the statute. Given the concerns raised by a
number of states, the goals of a strong statute and strong
support from the international community could not be
fully reconciled. Nevertheless, the Rome Statute contains
sufficient safeguards to satisfy most legitimate concerns.
Only time will tell whether the drafters struck an appropri-
ate balance. For supporters of the International Criminal
Court, it is important that the Court become a living insti-
tution as soon as possible. Widespread signature and ratifi-
cation are critical to this end. Broad ratification is particu-
lady significant because of the statute’s legal implications
at the domestic level The creation of the Court responds to
objectives to punish criminals responsible for the most se-
rious crimes in international law, to deter such crimes, to
create greater international stability by restoring the rule of
law in countries affected by conflicts and crimes, and to do
so through a permanent institution. It is valuable to view
the Court and other instruments such as ad hoc tribunals in
a broad international landscape.
Lauteur passe n revue ls di-positions Irs plus im-
portantes du Statut de la Courpirnale ineiratinale. en re-
connaissant ls limites inhfrentes h cet insrmuent. Les in-
quifudes mises &- I’avat par de nombrt t=6 oant rendu
impossible d’atteindre h la fois un large supMrt d. la part
de Ia communautd internationale c un texte .ntzum fara
que ce qu’on atrait pu souhaiter. Le Stanut de Rome con-
tient toutefois des dispositions sufli’tiates a satisfaire la
plupart des aspirations l6gitims : It temp5 nous apprer ni
si las rdacteurs ont It cet igard atteint un quilibre v iab!e.
I1 est important pour ceux qui appuient I’iL.e d’unt Cour
p&ale internationale da faire n sorte qu’elle s conamftise
en tant qu’institution ,iivante, le plus rap.dmrwt possible.
L’objectif d’obtenir un maximum d signatures.
t surtout
de ratifications (diant donrd las consuqttnces significatives
du Statut sur le plan du doit inteme), revt un- importanze
particuli e Zt ce gard. La cr&dtion de la Cour rpond I
plusieurs objectifs: la punition de ceux qui e rautant re-
ponsables des crimes ls plus sirieux contre It droit inter-
national, Ia dissuasion de ces crimea, It renforcement de la
stabilitS internationale Zi travers La restau.ation de l’&at d
droit dans las pays affectds par des conflits. ct. finalem nt.
la nialisation de ces objectifs par I’entremis d’unr
institu-
tion permranente. La Cour et ls instruments auxiliaires, tels
ls tribunaux ad hoc, dovent done Eire considrfrs comrr
parties intgrantes d’un large dvcntail d’institutions inter-
nationales.
“Ambassador of Canada to the Kingdom of Sweden, concurrently Ambassador and Agent for Can-
ada in the Legality of Use of Force Case (Yugoslavia v. Canada) before the International Court of
Justice (ICJ) and Chairman of the Preparatory Commission for the establishment of the International
Criminal Court. In July 1998 he chaired the Committee of the Whole of the Rome Conference, which
adopted the statute of the Court. These remarks were prepared for a panel on “The International
Criminal Court and the Human Rights Revolution” at the international conference Hate, Genocide
and Human Rights Fifty Years Later: What Hane We Learned? What Must We Do? (Faculty of Law
McGill University, 28 January 1999). Along with Benjamin Ferencz, Ambassador Kirsch was co-
recipient at the conference of the McGill/lnterAmicus Robert S. Litvack Human Rights Memorial
Award.
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 255
Mode de rif6rence: (2000) 46 R.D. McGill 255
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I. Overview of the Rome Statute
II. Reflections on the Rome Statute
Ill. Prospects for the Future
IV The Court and the International Environment
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R KIRSCH – THE INTERNATIONAL CRIMINAL COURT
257
I very much welcome the opportunity the organizers of this important conference
have given me today to offer some thoughts on the future of the ICC [International
Criminal Court; “CourC’]. Before doing so, however, it may be of interest to quickly
review the major provisions of the Rome Statute,’ how it was shaped, and how it is
intended to function.
I. Overview of the Rome Statute
1. First, there must be a crime of international concern, namely genocide, a
crime against humanity, or a war crime. The crime of aggression is also included, but
has yet to be defined. The definitions of crimes are based on customary international
law. The definition of war crimes includes war crimes committed in internal armed
conflicts, which are the most prevalent and brutal armed conflicts in the modem
world.
2. Second, the Court is “complementary” to national judicial systems, meaning
that it takes jurisdiction when states are unwilling or unable to bring transgressors to
justice. Some delegations had argued that the Court should be precluded from taking
up a case once any state had assumed jurisdiction, but such a proposal would have
given a licence to states to shield perpetrators through sham investigations and trials.
The Rome Statute produced a delicate balance allowing the Court to assume jurisdic-
tion where national proceedings are not genuine, in order to ensure that justice is
served.
3. Proceedings may be initiated by any state party, by the Security Council, or
by the prosecutor. This ability of the prosecutor to initiate proceedings is essential, as
state parties and the Security Council may be reluctant to refer serious situations for
political reasons. In order to prevent frivolous prosecutions, the prosecutor is subject
to checks and balances, such as the need for prior judicial approval from a “pretrial
chamber”.
4. Before the Court can exercise jurisdiction-which is a sovereign act–either
the state of nationality of the accused or the state in whose territory the crime was
committed must accept the Court’s jurisdiction. This was a compromise between
those who sought “universal jurisdiction”-meaning no acceptance from any states
should be required-and those who supported a conjunctive list of states, including
the state of nationality and others, which must give their acceptance to the Court’s ju-
risdiction. These two alternative jurisdictional bases-territory and nationality-were
selected because they are the most fim-ly established in international law. Parentheti-
‘Statute ofthe Intenational Crimnal Court, 17 July 1998, UN Doc. No. AICONF.18319,37 1JM.
999 (not entered into force) [hereinafter Rome Statute].
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cally, where the Security Council refers a case to the Court, no acceptance is needed,
because all states are obliged under the UN Charter to co-operate.
5. Acceptance of the Court’s jurisdiction is automatic: state parties automati-
cally accept the Court’s jurisdiction, without any need for case-by-case consent. There
is one caveat: a transitional provision allows state parties to withhold automatic con-
sent to jurisdiction over war crimes for a period of seven years. This provision allows
state parties to grow accustomed to the operation of the ICC before accepting all obli-
gations.
6. The Court is not subordinated to the Security Council but has a constructive
relationship with it. The draft of the Rome Statute originally prepared by the Interna-
tional Law Commission provided that the Court could take no action whenever the
Security Council “was dealing” with a particular matter. In comparison, the Rome
Statute narrowly circumscribes the scope for a Security Council intervention. The Se-
curity Council can only delay proceedings by an affirmative action (so that any veto to
such a proposal means that the case proceeds), and only in the form of a resolution
adopted under Chapter VII of the UN Charter dealing with breaches of international
peace and security. Some states sought no role at all for the Security Council, others
insisted on some role. This is a compromise.
7. The Rome Statute deals with important humanitarian aspects that have often
tended to be overlooked in the past. It recognizes rape, sexual slavery, and other forms
of sexual violence as war crimes and crimes against humanity. It also recognizes en-
listing or using children under fifteen in international or internal armed conflict as a
war crime. More generally, it includes a number of provisions on fair representation
of men and women within the tribunal, as advisers on sexual and gender violence and
advisers on violence against children.
I. Reflections on the Rome Statute
There has been considerable opportunity since the Rome Conference to reflect
about its outcome. On the one hand, some wished the Rome Statute of the Interna-
tional Criminal Court had been stronger. On the other hand, there was regret it was
not adopted by general agreement.
The Rome Statute is a human construction, reflecting the need to reconcile very
different positions. It is not perfect from anyone’s perspective. The Rome Statute pre-
sented by the Bureau of the Committee of the Whole for adoption-and indeed
adopted by Plenary with a strong majority-reflected a balanced effort to create a
strong court, deriving its strength both from the provisions of its statute and from the
support of states for the new institution.
2 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7 [hereinafter UN Charter].
2000]
R KRSCH – THE INTERNATIONAL CRIMINAL COURT
Given the concern raised about the ICC by a number of states, there can be no
question that the two goals-a strong statute and strong support from the international
community- could not be fully reconciled in this case.
Uncompromising insistence on the strongest possible provisions could only be
made at the expense of the support of a significant number of states that were con-
cerned about an institution which was unknown-about the fairness of its proceed-
ings, political influences, and undue infringement upon national jurisdiction.
However, putting exclusive emphasis on those concerns would have meant a court
that could be paralyzed. The Rome Statute contains sufficient safeguards to satisfy
most legitimate concerns. A major preoccupation of many states at the conference
was that acceding to more restrictions on the exercise of the Court’s jurisdiction could
have led to the establishment of a court so weak that, whatever support it theoretically
enjoyed, it would be irrelevant. A court not worth having.
Whether the balance was right can only be known with time. The strong vote on
the Rome Statute was a first sign. In any event, the Rome Statute is now the text on
which future work will be based.
III. Prospects for the Future
For those who support the ICC that has been created, an important objective is to
ensure that the achievement of the Rome Conference is not lost, that the Court be-
comes as soon as possible a living, vibrant institution, which functions, performs
those functions effectively, and is seen to function in a fair manner.
One avenue to achieve this is widespread signature and ratification. The number
of signatures that have been obtained so far (about ninety-eight in August 2000) is en-
couraging, especially when seen in comparison with other treaties that also required
for most states significant legislative, if not constitutional, changes. The number of
signatures reflects a genuine commitment of states to pursue this process to comple-
tion. It is to be hoped that many more signatures will be achieved by the time of clos-
ing in December 2000.
This is particularly important because the Rome Statute, as just mentioned, has
important legal implications at the domestic level that must be met before states are in
a position to comply with their international obligations. The momentum created by
many signatures will be important to encourage a speedy ratification process.
Ultimately, of course, ratifications themselves will bring the Rome Statute into
force. One state just ratified the Rome Statute. Again, those who attach importance to
the Court will presumably work to ensure early entry into force, and eventually, to
provide a court with support that is as universal as possible.
The other important part of our future work is the Preparatory Commission
(PrepCom), which began its work in February 1999, and has held five sessions so far.
The mandate of the PrepCom has been defined by the Rome Conference: to develop
rules of procedure, financial regulations and rules, define in various ways the relation-
ship between the Court and the host country, elaborate elements of crimes, define ag-
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gression. The General Assembly has also asked the PrepCom, in connection with that
mandate, to discuss ways to enhance the effectiveness and acceptance of the Court.
Beyond technical work, the PrepCom should also reassure states that are still
hesitant about the Court that it will indeed operate fairly and not exercise its jurisdic-
tion in an uncontrolled, capricious, political manner. Among the tools that are at our
disposal is the development of Rules of Procedures and Evidence and Elements of
Crimes, which were adopted by general agreement in June 2000.
Overall, the objective of the PrepCom will be a fair and effective implementation
of the Rome Statute. Its mandate is not a revision of the Rome Statute. That could only
be done by a review conference. In other words, the PrepCom must respect the bal-
ance achieved at the Rome Conference, but build on it to enhance support for the ICC.
IV. The Court and the International Environment
The creation of the Court responds to a number of different objectives: to punish
criminals responsible for the most serious crimes in international law, to deter the
commission of such crimes, to create greater international stability by restoring the
rule of law in countries affected by conflicts and crimes, and to do so through a per-
manent institution that avoids start-up costs and selective justice.
It will be important to keep these objectives in mind in the coming years, and not
to give up if difficulties are encountered. It is easy to get bogged down in technicali-
ties, but we cannot let that happen. The importance of the Court should be seen in
perspective.
We sometimes hear that ad hoc tribunals have not deterred the commission of
crimes as much as was hoped for, and that the ICC will do no better.
The tribunals, and the creation of the ICC, should be seen as part as the interna-
tional landscape. Other international bodies, including the Security Council, have ex-
isted for more than fifty years now, and have had a limited deterrent or stabilizing ef-
fect for most of their history. They have achieved some successes, but have not neces-
sarily been able to fulfill all expectations. Yet they are recognized as useful instru-
ments, despite questions about the modalities of their operations-and their politics.
In comparison, the ad hoc tribunals-a fortiori the ICC-are in their infancy. An-
nouncements by prophets of doom and gloom of the demise or ineffectiveness of the
ICC before it is even born strike me as a little premature. I think we can all agree that
an ICC success is in the interest of humankind-all people, big states, and small
states. It is our collective responsibility to ensure this happens, and not to give up at
the first difficulties.
The ICC has to be given time to be seen as a natural part of the international
scene, on the same footing as the Security Council or the ICJ [International Court of
Justice], with a role that imposes itself as equally evident and necessary, a role that is
played in co-operation with existing institutions.
20001
R KIRSCH – THE INTERNATIONAL CRIMINAL COURT
261
There is another, simpler way of saying this. Soon after World War H, the Secu-
rity Council became paralyzed by the cold war, and the notion that war (and other)
criminals must be punished gradually faded. So a culture of impunity gradually set-
tied. As a result of its own paralysis, the Security Council watched absolutely revolt-
ing events take place without intervening. This only changed in the course of the last
decade. We have gone through a long period, and have not completely emerged from
it, when the interests of various powers and blind protection of national sovereignty
have consistently prevailed over human considerations.
This is unacceptable and this is why it was necessary to create a court that is not
controlled by such factors. But it is also why it may take longer to re-establish the pre-
eminence of the international rule of law, in the sense that certainty exists that the per-
petrators of most serious crimes will be punished. This will happen, but it will require
from all of us a great deal of determination and tenacity in the years to come.
The International Criminal Court
and the Human Rights Revolution
Honourable Warren Alimand, P.C., O.C., Q.C.’
The speaker gives the NGO and civil society per-
spective on the International Criminal Court. While a
strong, effective court is essential, the International
Coalition of NGOs present during the negotiations at
Rome maintained that a weak court would be worse
than no court at all. Thus, the importance of independ-
ence is underlined; the speaker rejects the proposition
that an International Criminal Court should answer to
the Security Council or any other state party. Although
the statute eventually agreed on at Rome does not con-
tain all the provisions proposed by the International
Coalition, the speaker welcomes it as a tremendous
step forward in the struggle for international human
rights. The major objections to the Court, however,
particularly those of the U.S. government, would ren-
der the Court impotent and make it subject to the will
of the major powers of the Security Council In par-
ticular, the speaker emphasizes that the U.S. does not
want an International Criminal Court that would apply
to it. Yet the notion of state sovereignty has evolved,
and the position of the U.S. must evolve along with it to
forward the goal of the International Criminal Court,
that is, to subject arbitrary political and military power
to the rule of law within global society.
L’auteur fait dtat du point de vue des ONG et de
la socidtd civile au sujet de la Cour lnnale interaoti-
nale. Si, d’une part, une Cour forte ct cffia.c est cs-
sentielle, la coalition des ONG a fait remarqur lots de
la Confdrence de Rome, qu’une Cour imp faible pour-
rait Care pire quo I’absence pure ct simple do cctte ins-
titution. Ccci est particuli4rcment vrtai n cc qui con-
cerne la question de l’indapendanrc; ainsi, la proposi-
tion selon laquelle la Cour devrait rdondrc de ses az-
tions devant Ic Conseil de s&curitd ou tout Iat partic
doit Eire rejetdc. Bien que le texte adoptd a Ron, no
soit pas entirerment conforme ax reconmandations
de la coalition, il constitue tout de mrme un pas en
avant trxs important pour la lutte internationale pour les
droits de l’homme. Les objections majeurcs ai la Cour,
telles celles du gouvernement amruicain, rendraient
celle-ci impuissante en l’assujettissant a la volont, des
grandes puissances qui forment le Conscil de sdcuritd.
M~me si les titats-Unis ne veulent pas de Cour pdnale
internationale qui s’appliquerait a ct,
it leur faut n-ali-
ser que l’dvolution de la notion de souverainetd natio-
nae doit les mener a une dvolution similaire leur r-
mettant de contribuer mener 4 bien les objectifs pour-
suivis, t savoir la sujdtion du pouvoir politique ct mili-
taire arbitraire aux rgles de l’tmat de droit au niveau
international.
. President, Rights & Democracy, formerly International Centre for Human Rights and Democratic
Development; served as Solicitor General and Cabinet Minister. These remarks were prepared for a
panel on “‘he International Criminal Court and the Human Rights Revolution” at the international
conference Hate, Genocide and Hunman Rights Ffty Years Later: What Have MI Learned? Mhat Must
We Do? (Faculty of Law, McGill University, 28 January 1999).
McGill Law Joumal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 263
Mode de rdf&ence: (2000) 46 R.D. McGill 263
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Chair, ladies and gentlemen. Since Mr. Scheffer and Mr. Kirsch are both govern-
ment representatives, I will try to give the NGO and civil society point of view on this
important subject. Messrs. Scheffer and Kirsch are diplomats-I am not.
Rights & Democracy [International Centre for Human Rights and Democratic
Development], which I represent, has been involved in the campaign against impunity
for several years. This is part of our mandate to defend and promote those rights set
out in the International Bill of Human Rights,’ including the Universal Declaration of
Human Rights’ and the two covenants.! We have carried on this campaign under our
justice program and have actively promoted the special tribunals and the International
Criminal Court [“ICC”; “Court”]. We could never accept that those in high places
could torture and murder and then protect themselves from justice.
In carrying out this work, the ICHRDD is part of the Canadian Coalition for an
International Criminal Court-and is on the steering committee for the International
Coalition for an International Criminal Court (known as the CICC). The International
Coalition is made up of approximately seven hundred national, regional, and interna-
tional NGOs and social groups from all continents, including Amnesty International,
Human Rights Watch, the Lawyers Committee for Human Rights, No Peace without
Justice, Parliamentarians for Global Action, World Association of World Federalists,
the F6d6ration international des droits de l’homme, the International Commission of
Jurists, and others.
In the period leading up to the Rome Conference, the International Coalition took
the position that a strong, effective court was essential-and that a weak court would
be worse than none at all. The coalition rejected the proposal that the Court’s jurisdic-
tion be subject to the veto of the Security Council or to any state party-and insisted
that the Court and the prosecutor have total independence to investigate, prosecute,
and condemn perpetrators of genocide, war crimes, and crimes against humanity. As
you know, the Rome Statute’ was adopted on 17 July 1998, after five weeks of discus-
sion, and after six Preparatory Commission sessions between 1996 and 1998.
The vote on 17 July [1998] was 120 in favour, 7 against, and 21 abstentions. I
must say that the size of this majority came as a surprise. When the draft statute ar-
rived in Rome from the Preparatory Commission on 15 June, it contained 116 articles
with thirteen hundred bracketed clauses. These indicated articles not agreed to (but for
which several options were put in brackets) to be decided during the Rome meeting.
‘GA Res. 217A=1I), UN Doc. A/810 (1948).
2 GA Res. 217(m), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
3 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can.
T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19 May
1976); International Covenant on Econonmic, Social and Cultural Rights, 16 December 1966, 993
U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 3 January 1976).
‘Statute of the International Criminal Court, 17 July 1998, UN Doc. No. A/CONF.183/9,37 I.L.M.
999 (not entered into force) [hereinafter Rome Statute].
2000]
W ALLMAND – THE HUmAN RIGHTS REVOLUTION
265
Right up until the last day of the last week, approval was uncertain. Finally, with the
vote late on 17 July, France and Russia came onside, meaning three of the five perma-
nent members of the Security Council supported the statute, and all thirteen countries
of the European Union.
In general, the Rome Statute provides for an independent court with jurisdiction
over genocide, war crimes, and crimes against humanity in both international and in-
ternal conflicts. It also includes the principle of complementarity, according to which
the Court would only take jurisdiction if the national court were unwilling or unable
to proceed.
The Court’s jurisdiction could be triggered by a reference by a state party, a refer-
ence by the Security Council, or by an independent initiative of the prosecutor. A ref-
erence by the Security Council would provide the widest range of jurisdiction.
Furthermore, a majority vote of the Security Council could defer investigations
and prosecutions for a twelve-month period. This does not give the Permanent Five
the right to veto a case, but requires an affirmative resolution to defer. The purpose of
this provision is to allow the Security Council time and space to pursue other avenues
of peacemaking and peacekeeping in a crisis situation. There is also a provision that
the prosecutor must initially convince a pretrial panel of judges that the charge is rea-
sonable before proceeding to further investigation and prosecution.
While this statute did not contain all the provisions proposed by the International
Coalition-it still has certain weaknesses-it was nevertheless welcomed as a tre-
mendous step forward in the struggle for international human rights and the campaign
against impunity.
The coalition is, consequently, now engaged in the second phase of its campaign,
that is, the campaign for ratification, and the drafting of the rules of procedure and
evidence. The Rome Statute requires sixty ratifications to bring the Court into opera-
tion, and this week Senegal became the first state to ratify. As of 26 January [1999],
seventy-four states, including Canada, have signed the Rome Statute, and we are con-
fident we can obtain sixty ratifications within two years.’
The meetings of the new Preparatory Commission, of which Philippe Kirsch will
be chair, will start on 15 February [1999] and wil have three sessions in 1999. The
task will be to draft the rules of procedure and evidence, to define the elements of
crimes, to draft the relationship agreement between the ICC and the UN, and to pro-
vide for financial regulations and a budget.
At this point, I would like to deal with some of the major objections to the Court,
and in particular with the objections of the U.S. government. In this respect, I am
S As of 28 August 2000, ninety-eight states had signed the Rome Statute, and fifteen, including
Canada, had ratified.
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pleased that Ambassador Scheffer is with us, since this will give us an opportunity to
explore these objections.
I will not deal with the extreme objections of Jesse Helms, chair of the U.S. Sen-
ate Foreign Relations Committee, whose approval is necessary for U.S. ratification,
and who, during the final Preparatory Commission last year, sent a message that our
work was more or less useless, and that the statute would be DOA (dead on arrival) if
sent to the Senate in Washington. Nor will I deal with China’s objections, which are
also excessively extreme and would leave the Court a hollow shell.
The American government’s position, which accepts and approves many articles
in the Rome Statute, is more reasonable, but still impossible to accept. It would, in our
view, render the Court impotent and make it hostage to the major powers of the Secu-
rity Council. Let us look at some of these objections.
To begin with, in the American Society of International Law newsletter of Octo-
ber 1998, Ambassador Scheffer states that “a small group of countries, behind closed
doors, in the final days of the Rome Conference produced a seriously flawed ‘take it
or leave it’ text’
I think that statement is unfair and a red herring. The statute was the
product of five weeks of open negotiations in Rome and was preceded by two years of
Preparatory Commissions. There were several “bureau papers” on key issues, distrib-
uted and discussed in open plenaries. Yes, there were some backroom negotiations,
but these are not unknown to the U.S. However, the final vote was 120 in favour-not
a small group-and the fact that we do not know exactly who voted where was due to
the U.S. request that the vote not be registered.
With respect to the objections made by Ambassador Scheffer at the Sixth Com-
mittee of the General Assembly on 21 October 1998, it seems to me and to many oth-
ers that they are extremely flimsy. Speculating on a possible scenario, Ambassador
Scheffer suggested that the U.S. would be worse off in ratifying the treaty than a
country which did not, and that a tyrant (not a state party) could murder thousands of
his own countrymen and escape the jurisdiction of the Court, while American soldiers
intervening with an international rescue mission could be charged with war crimes
under the ICC. Well, it seems to me that Ambassador Scheffer and the U.S. have
grossly exaggerated the situation, and have presented an extreme argument. There are
plenty of safeguards in the Rome Statute to deal with the concerns raised by the U.S.
To begin with, tyrants who murder a thousand of their own people can be charged un-
der the ICC by a reference of the Security Council-even though the tyrant’s country
is not a state party.
Second, who is going to charge the U.S. troops in such a situation? Certainly not
the tyrant-he is not a state party. On the other hand, if American soldiers have com-
‘ D. Scheffer, “America’s Stake in Peace, Security and Justice” ASIL Newsletter (September to Oc-
tober 1998), online: American Society of International Law
2000]
W ALLMAND – THE HUMAN RIGHTS REVOLUTION
mitted some serious offence, they could be tried in an American court in accordance
with the provisions on complementarity. It is difficult to believe that the ICC would
seriously question the genuineness of the American process. As I said, there are
plenty of safeguards in the Rome Statute to meet the American concerns, including a
system of appeals with the ICC. Consequently, the American objections are just not
convincing. The unfortunate reality is that the U.S. wiU not agree to submit its citizens
and soldiers to any possibility of trial by an international tribunal, although they sup-
port the principles for others, such as Rwanda and Yugoslavia.
The U.S. proposal that the Court would have jurisdiction only if the state of na-
tionality of the accused consents would make a mockery out of justice. Offending
states would simply refuse any attempt to try their citizens. Talk about a double stan-
dard of justice! Fortunately, these proposals were rejected by the great majority of
states, many of them close allies of the U.S. The other American arguments are
equally flimsy. They have criticized the seven-year opt-out clause for war crimes and
the consequences vis-t-vis non-state parties, but the U.S. had proposed a ten-year opt-
out provision. The U.S. has said that the Rome Statute as written will deter collective
political efforts to promote justice, but as I pointed out, the Security Council can defer
ICC investigations and prosecutions for twelve-month periods, and three of the five
permanent members voted for the statute.
The U.S. also opposed the Rome Statute because aggression is included as a pos-
sible crime, and they say aggression is too difficult to define. But the statute states that
aggression will not be included until it is defined by the Assembly of State Parties.
The bottom line is that the U.S. will just not accept an International Criminal Court
that might apply to them-and that is very sad, because we expect the U.S., as a ma-
jor Western power, to show leadership in international affairs, especially in building
institutions which will deter war crimes and genocide, institutions which Uill bring to
justice tyrants who arbitrarily detain, rape, torture, and murder innocent people.
The U.S., China, and some other states have to recognize that the once-sacrosanct
doctrine of state sovereignty has evolved. What once was in vogue has radically
changed. Between the Korean War in 1953 and the Gulf War in 1991-for a period of
almost forty years–the Security Council did not take any action under Chapter VII of
the UN Charter to restore peace, but since that time there have been several such ac-
tions. Between 1991 and 1993, the Security Council launched fifteen new peace op-
erations (compared to seventeen in the previous half century), and many of them in
internal conflicts (civil wars)-this was unheard of previously. The interpretation of
what constitutes a “threat to international peace and security”-the litmus test for Se-
curity Council action-now includes intra-state (internal) issues such as human rights
violations to citizens, minorities, and dissidents. New and updated international hu-
manitarian and human rights instruments such as the ICC will help to guarantee pro-
‘Charter ofthe United Nations, 26 June 1945, Can. T.S. 1945 No. 7.
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[Vol. 46
tection for individuals in all countries. They serve to expand the reach and scope of
humanitarian norms. They set a higher standard of global behaviour to which we are
all bound.
In the Commission on Global Governance’s 1995 report Our Global Neighbour-
hood, the authors state that for globalization to be a positive process, it needs an ef-
fective system of global governance. They said that
[elffective global decision-making … needs to build upon … institutions at
many levels. The creation of adequate governance mechanisms … must be
more inclusive and participatory-that is, more democratic-than in the past.
[Global governance] will foster global citizenship and work to include poorer,
marginalized, and alienated segments of national and international society….
Finally, it will strive to subject the rule of arbitrary power-economic, political,
or military-to the rule of law within global society.’
That is the goal of the ICC, to subject arbitrary political and military power to the rule
of law within global society-and we want the U.S. of George Washington, Abraham
Lincoln, Woodrow Wilson, and Franklin and Eleanor Roosevelt with us. We want you
with us to fight against war crimes and genocide. We ask you to ratify the treaty-you
have much to gain, and little, if nothing, to lose. Surely third millennium Americans
will not commit war crimes.
Thank you.
‘ Commission on Global Governance, Our Global Neighbourhood: Report of the Commission on
Global Governance (Oxford: Oxford University Press, 1995) at 4-5.
The U.S. Perspective on the
International Criminal Court
David Scheffer
The speaker begins with the Clinton administra-
tion’s decision that it will not sign the present text of
the Statute of the Intentationat Crindnal Court. Yet he
believes that the problems with the treaty are solvable
ones. The United States takes the treaty seriously.
There is political will for the establishment of an Inter-
national Criminal Court. The speaker recognizes the
important role of non-governmental organizations, par-
ticularly respecting the issue of crimes against women.
Two themes that resulted in the U.S.’s problems were
the need to ensure that the treaty did not impede (1) the
ability to enforce international peace and security, and
(2) the ability of capable nations to enforce human
rights. In assessing whether to send military forces into
a human rights catastrophe, the matrix of risk must not
include a legal risk of prosecution. The Clinton admini-
stration has never said that its only focus is the concern
that no American ever appear before the Court. The
speaker concludes with the announcement that the U.S.
would be at the Preparatory Commission meetings.
la question du
L’auteur, abordant
efus; do
l’administrntion Clinton de signer Ic wxte a-tul du
Statut de la Cour ptsnale internationae, d= rc con-
vaincu que les problhmes soulev!s par cc texte pourmnt
Etre rdsolus. Les _atats-Unis prennant le taitS an
,A-
rieux, la vontd politique pour I’-tablisscmant dun
Cour p~nale intemationale y cst prdsente ct les organi-
sations non-gouvemementales jouent un ni!e impor-
tant, particuli rement en cc qui con-ema Ia vio!cace
contre les femmes. Los objections des ttis-Unis sort
essentiellement relides au besoin d’assurr qua It traitS
ne compromette pas, d’un part, Icur capzitd & protd-
ger la paix et la sdcuritd internationales et. d’autre pat
la capacitO des nations qui y sont aptes ar metre en ap-
plication les droits de l’hommc sur I plan internatio-
nal. La deision d’intervcni militairement lots duu= ca-
tastrophe humanitaire ne dolt pas Etre soumise 4 tm isqu
de pousuites Idgales. L’edministion Clinton na ainsi
pas pour seul objectif de sassures qu’autcun Arnhicain
ne soit amend a companratre de.ant la Coun
‘ .ue r
conclut en annon;ant la prdsetnc des tta.s-Unis aux tra-
vaux de Ia Commission prxd pa=oim
. United States Ambassador at Large for War Crimes Issues. These comments were presented as
part of a panel on ‘The International Criminal Court and the Human Rights Revolution” at the inter-
national conference Hate Genocide and Human Rights Fifty Years Later: Wtat Hane 1% Learaed?
What Must 1% Do? (Faculty of Law, McGill University, 28 January 1999).
McGilLaw Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 269
Mode de r6fdrence : (2000) 46 R.D. McGill 269
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Thank you very much, Professor, for that kind introduction. Well, I’m glad I
didn’t prepare my remarks. First, I just want to recognize that there are people in this
audience and on this podium who have known me for many years-and I have known
them-and I know what kind of commitment they have had to this project. Let me
just say that I have found it quite surprising since Rome that there are academic insti-
tutions and think-tanks and what not that are constantly trying their best to pit “Phi-
lippe Kirsch versus David Scheffer”. I’ve gotten things in the mail that have this ex-
plosive, dramatic debate topic suggestion of evil versus good, and if only they knew
that Philippe and I worked extremely closely together in Rome-there was a tremen-
dous amount of consultation. Obviously there were some disagreements, but the idea
that there is some kind of pitted combat or war between us is absurd. And in fact, I
continue to have a very good working relationship with Philippe. His leadership in
Rome was stellar. He had a hard act to follow-he had Adriaan Boss of the Nether-
lands to follow-and he knew it and he did a superb job. I think Adriaan himself rec-
ognizes that. It was interesting when Adriaan fell ill and the suggestion came down
from Ottawa to Washington that Philippe Kirsch actually take up the leadership role.
We checked around within our government with everyone that had ever worked with
him and the resounding response was, of course, that he should be the chairman of the
Rome Conference because we have between our two governments an excellent rela-
tionship with him. I also want to recognize the people in this room: Judge Goldstone
of the Yugoslav tribunal, Rhonda Copelon, Ruth Wedgwood, Felice Gaer. We know
what contributions you have made and we recognize that.
Now let me start off with the blunt statement that has disturbed so many people,
because for us it is where we have been, and I would rather focus on where we can
go. But the blunt reality is that our government has made a decision that it will not
sign the present text of the Rome Treaty;’ it will not happen within the life of the
Clinton administration. Now what does that mean? Well, it means that we had prob-
lems with the very final text that emerged in Rome. In the United States government,
if there’s a serious problem with one, two, or three provisions of a treaty, we’ve got
problems and we have to address those problems. We can’t sign off on consensus in a
conference with a treaty that we still have certain problems with. In our system, it is
the norm that we register what our position is, and that we register it quite publicly.
This is what we did in Rome.
That being said-and I have said it many times-we believe that the problems we
see in the Rome Treaty are solvable problems. We aren’t standing here with some
huge strategy of opposition to this treaty; I would ask anyone to show me evidence of
that. But rather, we know what we have identified as difficulties in this treaty for the
United States, and we know that we’ve got to find a way to address these problems.
Because we take this treaty very, very seriously and we always have-we were one of
‘Statute of the International Criminal Court, 17 July 1998, UN Doc. No. A/CONF.183/9, 37 I.L.M.
199 (not entered into force) [hereinafter Rome Treaty].
2000]
D. SCHEFFER – U.S. PERSPECTIVE ON THE ICC
the leading supporters of bringing this treaty to conclusion in a treaty conference. The
Clinton administration would like to be able to apply the considerable support that the
United States can bring to an institution of this character. And we have demonstrated
this without any question with respect to the two war crimes tribunals, and with re-
spect to many other initiatives to enforce these very important principles of interma-
tional humanitarian law. Many of those efforts are known only between governments,
and not publicly. But we are on the front line constantly-every single day. It is one of
the purposes of my office. You should recognize that the president and Secretary of
State Madeleine Albright have actually exposed us even more to such criticism on
these issues by creating a position such as mine, and putting us out on the front line.
We are accountable for our position every single day on these issues. Every single day
I have to answer these questions, and there is no way it can be diffused somewhere
within our bureaucracy-it hits dead centre in my office.
So I think that it must first and foremost be recognized that there is a political will
in the United States government for the establishment of an International Criminal
Court. There is also, however, a deep sense of responsibility for the several roles that
we play on the world scene at this time, and they include our role with international
peace and security. Somehow we had to come to grips with this in Rome, and what I
think is encouraging from the Rome Treaty process, and the treaty itself, is that we are
very supportive of most of it. And that’s important. The media sometimes hypes this
as “the United States is opposed to the Rome Treaty”, when in fact, those of you who
have been so deeply involved with it know that, quite frankly, the United States was at
the forefront-not only helping to draft, but strongly supporting almost every single
one of the provisions of that treaty. And there is a rich story in how strongly we sup-
port most of the treaty. And I will point some of that out to you, but I want to just
stress that as strongly as I can.
Let me get into a few points that try to put some context to this. This is a confer-
ence on the International Criminal Court and the human rights revolution. Secretary
Albright has certainly been at the forefront of these areas since early 1993. We started
looking at the ICC, then-ambassador Albright and I, in February of 1993. We sat
down and talked about it. And it was due, in part, to her commitment to human rights
that she wanted a total focus on this institution. Of course, she led with other countries
in creating the two ad hoc tribunals as well. But her focus never shifted off of the im-
portance of a permanent institution. But our vision of such an institution was not to
create a human rights court per se, but rather a court that would deal with criminal law
and with the mega-crimes of our times: genocide; crimes against humanity; serious
war crimes; and, if we could arrive at a definition, aggression. That has never wa-
vered-we have always seen this as a mega-crime court-and what sometimes took
so much toil and effort in the negotiations for the Rome Treaty through many years
was that there were efforts to create a wider structure for this court, so that it would
effectively be a human rights court. Our focus was always to keep this at a high
enough magnitude so that it would attract a lot of support internationally and it would
have an obvious reason for being established; that is, to get a grip on accountability
for the very worst crimes.
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I am very satisfied, and our government is very satisfied, with meeting that test in
the Rome Treaty-it’s there, it’s done. So for us, one of the major issues in the treaty
was accomplished. If you look at how crimes against humanity are defined-and this
caused a lot of contentious debate in Rome-a lot of people were not happy with how
it came out. But there is a threshold for crimes against humanity for purposes of juris-
diction in this court-not necessarily in other courts, but in this court. There is a
threshold for the jurisdiction of war crimes in this court. Not in other courts necessar-
ily; in fact, presumably not in other courts because war crimes can take you straight
down to the lowest infractions of the Geneva Conventions’ by the single soldier. But
for this court, the threshold is a serious commission of war crimes, and we wanted to
make sure that it focusses on that kind of serious assault on the Geneva Conventions.
For genocide, of course, that was self-evident, and we completely supported the ap-
proach taken by the Genocide Convention’ itself, and sought to simply graph that into
the ICC treaty. This was the most acceptable way of doing so for many governments.
I want to recognize once again the absolutely critical role the NGO community
played in a truly historic exercise in Rome; that is, getting the issue of crimes against
women in this context right. And while there will always be some criticism, I think, of
the Rome Treaty for not precisely getting it right-there are those who would have
hoped that the listing of crimes against women or gender crimes would have been
more broadly stipulated in the treaty-I think that it came out in a fairly reasonable
format. I know that Rhonda Copelon, who is in the audience, was instrumental in that
and probably has said all sorts of things earlier this afternoon that qualify what I’m
saying now. But in any event, we certainly appreciated her advice, and the advice of
others, to try and address that issue.
And then, finally, there is the issue of aggression. Of course we have Ben Ferencz
somewhere in the audience here. He has been the leader on this issue in the NGO
community. I think the story needs to be well understood on aggression, that in the
spring session of the Preparatory Committee prior to Rome, the permanent members
of the Security Council worked very hard over a two-week period to arrive at a defi-
nition of aggression that we could live with, that we could support, and that we could
advance in Rome-and we did it. It was in the document that went to Rome. And we
2 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, 12 August 1949, 75 U.N.T.S. 31, Can. T.S. 1965 No. 20.2 (Geneva Convention 1); Convention
for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed
Forces at Sea, 12 August 1949, 75 U.N.T.S. 85, Can. T.S. 1965 No. 20.3 (Geneva Convention 11);
Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 at 236,
238, 6 U.S.T. 3316 at 3418, 3420 (entered into force 21 October 1950) (Geneva Convention 111);
Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75
U.N.T.S. 287 at 386, 388, 6 U.S.T. 3516 at 3616, 3618 (entered into force 21 October 1950) (Geneva
Convention IV) [hereinafter collectively Geneva Conventions].
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78
U.N.T.S., Can. T.S. 1949 No. 27 (entered into force 12 January 1951).
2000]
D. SCHEFFER- U.S. PERSPECTIVE ON THE ICC
273
sat through many meetings in the Rome Conference where, of course, other countries
had different views on where aggression should come out, but I think it’s significant
that the Perm Five actually did it. The problem at Rome was that it simply wasn’t ac-
ceptable to countries from other parts of the world, who wanted a much more expan-
sive definition of aggression in a way that would never be acceptable to the Penn
Five. So that was the difficulty-it wasn’t that we didn’t try-and I think that we
came up with a very reasonable formulation. Of course, now we are going to have to
see how this definition unfolds in the Preparatory Commission, and for the seven
years after entry into force of the treaty. We have some grave concerns about this. I
hope this is one of the problems we can fix, in terms of getting a procedure set forth
for defining the crime of aggression that allows us and other countries to feel quite
comfortable.
There were two major themes that I think resulted in some of the problems the
United States had. One was that we needed to make sure the treaty did not impede our
ability, and the ability of other leading actors in the world, to enforce international
peace and security. The other was to ensure that the treaty does not impede the ability
of capable nations to enforce human rights; in other words, to use military force if
necessary under humanitarian interventions, to stop genocide, to stop the commission
of crimes against humanity. I can tell you after working this issue for more than six
years in the U.S. government that this is not an easy proposition. I get a lot of letters
asking us to send U.S. troops into this country, send U.S. troops into that country, stop
them from doing that-I just got one yesterday on Kosovo yet again—“Send Ameri-
can troops in tomorrow, please!” And the problem is it’s not that easy. If you are go-
ing to send military forces into a human rights catastrophe, you better make sure that
the country that is sending those troops in is somewhat comfortable with the prospect
of doing so, because there are risks involved. And that doesn’t mean the United States
government has reached some pinnacle of political will to do so either, it’s a huge de-
bate every time that question is raised. What are our interests? What are the risks?
How many men might we lose? Will anyone else join us? And we have to be very,
very clear that the matrix of risk that the military is subjected to does not necessarily
include a necessary legal risk of prosecution for going in there-a lot of people may
try to charge you with aggression. If you happen to kill some civilians trying to get to
other civilians, they may charge you with a crime against humanity or a war crime.
So we have to be extremely careful about how that ends up at the end of the day
and what we’re subjected to. I think it’s a red herring–the common allegation that the
media and others, and you’ve heard it again today–that the United States government
looks at this treaty with only one focus-whether it is going to expose American sol-
diers to the jurisdiction of the Court. Therefore, it must be the position of the United
States that no American whatsoever could ever appear before this court. Now I chal-
lenge you to find one single formal statement by the executive branch of the U.S.
government that makes you reach that conclusion. Because I don’t know where it is.
We certainly haven’t said that. But what we have tried to say is that you need to be
certain that with a country like the United States-which has a globally deployed
military that’s being asked to do something every day on other people’s territory-
that you’ve got it right as to what risks are imposed upon the military when they try to
take action, whether it be by virtue of the Security Council, or even unilaterally for
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purposes of humanitarian intervention. I just spent all morning today in Washington
talking about Sierra Leone with my colleagues, and you’ve got the usual requests
from the outside to go in. You have to consider what all of that means.
So I think I will leave it at that, but I will say this: I am very pleased to announce
today that the United States will be at the Preparatory Commission meetings. We will
be there in February, we will be there this summer. We will be submitting a very de-
tailed “Elements of Crimes” paper very shortly-within a couple of days-for distri-
bution to all governments in preparation for that meeting. We have also been ex-
tremely focussed on a paper entitled “Rules of Procedure and Evidence'” that was
prepared by another government that we will be very active in examining along with
our colleagues at the Preparatory Commission in February. So we will be there, ad-
dressing those issues. I have publicly stated what our problems are with the treaty. It is
our hope that certainly by the summer session, having looked back at what may have
been achieved in the “Elements” and the “Rules of Procedure” exercises, we can then
take stock of where we are with the treaty. And we can enter into some discussions
with other governments at the summer session of the Preparatory Commission to see
how some of our concerns might be addressed. We don’t know everything-we don’t
have all the answers. We’d like to reach out and say: look at the benefit of having the
United States participate in this treaty, and support it-and have my office, as Mr.
Allmand said, be part of that process every day. I think that would be a very valuable
asset. We’d like to pursue that objective. But there may even be other ideas that other
governments have as to how to address some of the difficulties that we still have with
the treaty. So with that, I thank you for inviting me.
‘ Preparatory Commission for the International Criminal Court, Rules of Procedure and Evidence,
UN Doc. PCNICC/2000/INF/3/Add.1 (2000), online: United Nations
Response on Receiving an Award
Benjamin B. Ferencz”
Thank you very much, Irwin. After this wonderful address by Judge Goldstone,
there isn’t very much left to say, but let me explain how I got here. I received a call
from Israel where Irwin Cotler was at that time. I was down in Florida. I hadn’t seen
Professor Cotler for several years, and he began by asking, “Ben, how are you?”,
which I interpreted to mean, “Are you still alive?”
I’m quite sure that he had canvassed more important Nuremberg prosecutors, but
they were unfortunately dead so they couldn’t come, and-even in their present con-
dition-if they heard about the freezing weather in Montreal, they wouldn’t have
come anyway. I asked, “What am I supposed to do there?”–I heard he might be
planning to give me a “plaque” that I’d have trouble getting into a plane. He ex-
plained, “Well, I want you to make a speech. I want you to make a statement. You’ve
had fifty years of experience, so please tell us everything that you have learned, and
what we have to do. Take as much time as you want-up to three to five minutes!”
Since I don’t mess around with Irwin Coffer, I’m going to do just that. You’ve
heard something about my background, and how I got involved in combatting geno-
cide. It was pointed out by Silvia Litvack that I began by landing in France; “J’ai fait
le ddbarquement de Normandie” (since I am in Montreal, I’ll show off my French).
Other soldiers landed in water up to their waist; for me it got up to my chest. That was
the beginning of my education for peace. Since I don’t have an unlimited amount of
time, the jokes are on your time, Irwin. Let me just tell you briefly what happened in
the last fifty years to me, and see what lessons it leaves for you. I won’t pay attention
to your instructions to talk about “What have we learned? What are we going to doT’.
I can tell you what I have learned, and what you are going to do.
. Chief Prosecutor for the United Stales in the historic Nuremberg War Crimes trial (Einsatzgnip-
pen, izfra note 2) against SS extermination squads convicted of murdering over a million innocent
people; scholar and advocate. Along with Philippe Kirsch, Benjamin Fcrenez was the co-recipient of
the McGill/lnterAmicus Robert S. Litvack Human Rights Memorial Award, presented at tha interna-
tional conference Hate, Genocide and Human Rights Fifty Years Later: hat Have INe Learned?
What Must We Do? (Faculty of Lai, McGill University, 28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill L.J. 275
Mode de rf6rence : (2000) 46 R-D. McGill 275
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My wartime experiences led me into the concentration camps, which were so
vividly described by Judge Rosalie Abella.’ I was a liberator. I saw the crematoria
while they were still burning. I arrested criminals, I dug up bodies with my hands.
That led me to a career as a war crimes prosecutor at Nuremberg, where I got to know
the murderers-the remorseless killers-personally. The trial in which I was a chief
prosecutor was the Einzatsgruppen case,2 in which the twenty-two defendants were
convicted of murdering over a million people, mostly Jews and Gypsies, in cold
blood-men, women, and children. Thirteen of the defendants, including six SS gen-
erals, were sentenced to death. Since I was inexperienced and was only twenty-seven
years old, I rested the prosecution’s case after two days. That’s a record for some
young people to try to match. The trial itself lasted much longer, but it took that added
time to rebut the lies and the denials, which came from the defendants.
I learned about the mentality of intelligent German leaders-I only picked leaders
to stand trial and most of them had doctor degrees! I learned that there are all kinds of
people in the world, and the same mentality that made the Holocaust possible exists
today. It exists in all countries. You’ve heard it described by other speakers at this con-
ference. The perpetrators of the crimes in Rwanda and Yugoslavia reflect the same
cruel thinking. What I saw and experienced had quite a profound effect on me. The
trauma is still with me.
One young student here asked: “Tell us, how do you work against the system? Do
you do it on the inside or on the outside?” Well, you do it inside, and you do it out-
side, and you do it every way you can. I stayed on in Germany after the war and the
trials, and helped set up the restitution programs for all Nazi victims. That turned out
to be an enormous operation that cost the German government over 100 billion marks
so far, which is about 60 billion American dollars. There has been very little publicity
about that vast, and still inadequate, program to compensate survivors of persecution.
An important step forward was taken in Rome last July when, for the first time in hu-
man history, an international criminal statute prescribed that victims of crimes against
humanity are, as a matter of legal right, entitled to restitution, compensation, and re-
habilitation. That was a wonderful thing, because when I was working on that for very
many years, there were no precedents for it whatsoever. There were certain principles
of law and equity which seemed important to me. Those precedents were created qui-
etly, but nevertheless they were there to be built upon until they could be universally
recognized.
What is the conclusion? I only have a minute and a half left. What have I learned?
I’ll only mention things that have not already been covered. Creating a more humane
world is a long and difficult process. I’ve been working at it for over fifty years. I
‘ See R.S. Abella, “The Instructive Power of Outrage: Remembering Nuremberg” (2000) 46 McGill
W. 113.
2 (1948), 4 T.W.C. 470.
2000]
B. FERENCZ- RECEIVING AN AWARD
277
didn’t invent the idea of an international criminal court. I first read that in a book pub-
lished in French in 1920 by a man named Vespasian Pella, entitled La juridiction pe-
nale de la Ioi de l’avenir-or something like that. I vrote a two-volume book on an
international criminal court about twenty years ago, in which I listed all the people
from different lands who had been in favour of such a tribunal.’ But the vise thinkers
got nowhere because the political will was absent. I have seen that it takes a long time
to change the way people think-to change fundamental institutions. Judge Goldstone
and others have talked to you about sovereignty-an idea which is eroding. It’s ab-
surd as we enter the next millennium to be talking about medieval concepts like that,
which are based upon the divine right of kings to pass on all property and absolute
rights only to their first male heirs. And yet, this outmoded doctrine of state sover-
eignty still guides the world, and it is so difficult to change.
I’ve learned something else which is very important. If you keep at it, and you
never give up, you begin to see change. Judge Goldstone has listed key events, the en-
tire hierarchy, going back to the Hague Convention where parties agreed upon rules
for more humane ways to kill each other, and later, the international criminal courts at
Nuremberg and Tokyo and the ad hoc tribunals created by the Security Council of the
UN and the recent Statute of the International Criminal Court
These were all important steps forward, despite major defects, some of which are
ridiculous. For example, Judge Goldstone referred to the rules, after the First World
War, that outlawed the use of dumdum bullets which are made of soft lead and make a
big hole in the body as they kill you The use of such weapons-that are obsolete-is
still listed as a war crime, yet it’s not yet illegal to drop a nuclear bomb on a city. Is
that not ridiculous? Is that not the dumbest thing you can think of? The emperor is not
only naked, he’s stark raving mad!
Why aren’t you screaming? Why aren’t you screaming? This is the job for the
young people to do. I have pretty much run out of steam, at least rm running out of
years-I’m past seventy-nine. There are many things you can do. The best thing you
can do is just use your common sense. Never mind the traditions. Never mind the in-
stitutions. If you know in your gut that something is wrong, and it smells, start
screaming and try to change it. And you know what will happen? You’ll be marked as
a fool, and for a long time you’ll struggle, and people fill sit on you, and they vll
call you the “Man of La Mancha” and nobody will read your books. But the time aill
come when you’re old and grey that some people will present you with an impressive
citation-that you can’t carry-and it will say something about what a wonderful ef-
fort you’ve made. And you’ll begin to see change.
‘ B. Ferencz, An International Crinnal Court, A Step Toward World Peace: A Documentary His-
tory and Analysis (Dobbs Ferry, NY Oceana Publications, 1980).
417 July 1998, UN Doec. No. A/CONF183/9. 37 LL.M. 999 (not entered into force).
‘R. Goldstone, “Reflections on the Development of the Law of Var” (2000) 46 McGill U. 279.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
In conclusion, what lesson do I give you? What can you do? First of all, never
lose hope, never lose hope. Hope is the engine that sustains human endeavour, and it
gives you the energy that you need to carry on. And you can’t lose hope because what
are your options? Are you going to accept the world the way it is? If you are satisfied
with the killings and the misery and the hate, then go home and play ball-don’t
come to lectures like this. Just hope that you’re not the next victimn-and there is no
guarantee that you won’t be the next victim. On the contrary, you will surely be a vic-
tim. One day you will all be victims if the world continues this way. So you mustn’t
lose your hope. You mustn’t lose your energy and your drive. You must keep trying;
you must never give up. And then if you do that, fifty years from now, you will be
surprised, there will be a change. So I wish you all the best of luck and I thank you for
the opportunity of being here. [Applause]
I treat your applause as a request for an encore. Philippe Kirsch managed to get
away, unfortunately, before I could thank him. We had agreed beforehand that the best
thing that we could do, since this was Montreal, would be for him to simply say
“merci” for his award and I would simply say “thank you”. And that would be the end
of it. But he got away with saying nothing and I got stuck with three to five minutes,
As a sign of my personal esteem for the great job he did at Rome, I wanted to give
him a token of appreciation that might be a little easier to carry. It’s an interesting
historical document, and it will link what we were talking about. This is a xerox of the
covering page of the Statute of the International Criminal Court as it was adopted in
Rome, saying that, for the first time in history, “an International Criminal Court is
hereby created”. This was on 17 July 1998, and some of the key people who were
there signed this cover page. The signatures were collected by Bill Pace of the Coali-
tion for a Permanent International Criminal Court, and include UN Secretary General
Kofi Annan, Emma Bonino, European commissioner of human rights, who played a
very important role, the president of Italy-and many others. I thought this would be
a nice souvenir of a very historic event. The first name on the top-and it’s purely
coincidental, I’m sure-is Benjamin B. Ferencz. And the last name on the bottom is
Philippe Kirsch, who chaired the conference so brilliantly. I thought, here is a chance
for me to say to Philippe that I came in at the top, and that your name is at the bottom
signifies that you will now carry on. And I pass now the baton to you to continue the
race to a more humane world.
I now pass this small document to Professor Irwin Cotler with the obligation to
give it to Philippe Kirsch for his folder. Again, I thank you all.
Reflections on the Development
of the Law of War
The Honourable Justice Richard Goldstone*
The speaker evaluates the current status of inter-
national humanitarian law. The law is still predomi-
nantly reactive, occurring in the aftermath of calami-
tous events, rather than proactive. The speaker also
notes some of the difficulties with applying the law of
war, drawing on his experience as the former chief
prosecutor of the International Criminal Tribunal for
the Former Yugoslavia. On the positive side, the notion
of international jurisdiction has gained widespread ac-
ceptance; the practical result is that every nation that
ratifies an international treaty meant to uphold human
rights is obliged to punish those in violation of it. Un-
fortunately, most nations are unwilling to shoulder this
duty. The speaker also applauds the recognition by in-
ternational law of the human rights of individuals; most
recently, this recognition occurred through the Rwanda
tribunal, which applied international human rights law
to an internal armed conflict. The barrier of state sover-
eignty will continue to be chipped away through such
recognition. In summing up what has been learned over
the last fifty years of international law, the speaker re-
fers to the necessity of good leadership, the dangers of
stereotyping, and that no one people has a monopoly
over good or evil. The answer to the question “What
must we do?” is that laws must be enforced, and gov-
ernments must not be allowed to erect smokescreens
that obscure human rights abuses.
L’autenr, dvaluant rNtat actuel du droit intem~ao-
remarque quo cclui-ci d-mzure
nal humanitaire,
d’abord axd sur la rraction plutOt quo ta prevention, en
ce qu’il entre seulement onjeu lorsque des Mazeinets
catastrophiques sc sont ddja produits. Son epxie.ncc
en tant que procureur du Tribunal inal international
pour l’ex-Yougostavie le mna 5 faire 6tat d:s prind-
pales difficultds relides 4 I’application du droit da la
guerre. Alors qu=, d’un ct. le concept do juridiction
intemationale recucille maintenant un appui trZs large,
avec pour r&ultat qua chaque nation qui ratifia un traitd
international relatif aux droits de l’homma est dans
l’obligation d’en sanctionner las violations dventuells.
la plupart des ttats ne sont toutefois pas dispo-s a
s’acquitter do cc devoir. La reconnaissance croissante
des droits de la personna par le droit international a tra-
vers, par exemple, l’institution du tribunal international
sur le Rwanda, demeure tout d. majme louabIa. La bar-
ribre que constitue la souwarinat dtatiqu. continue -A
s’affaiblir sous ‘effet do telles politiques. L’expriance
des cinquante demi res andes en droit international
ruivile la ncessitd d’un leadership cffectif, les dangers
de se baser sur des st&Sot)pes, ct l’imp ssibilitd d’un
monopole sur la dtcrnnination du bien ct du mal. La
r~ponse Li la question cQue devons-nous faire ?, est
que les lois doivent Ctre appliquC-es, et qu’il faut rendre
impossible pour les gouvememeants d. dissimuler les
violations des droits da l’homme dmrrierc divers &6rans
de fum&-,.
. Currently a Justice of the Constitutional Court of South Africa. He was the first Chief Prosecutor
of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tri-
bunal for Rwanda. This speech was delivered as the Raoul Wallenberg Lecture in Human Rights at
the international conference Hate, Genocide and Human Rights Fifty Years Later: What Have W%
Learned? Wat Must We Do? (Faculty of Law, McGill University, 28 January 1999).
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 46 McGill LJ. 279
Mode de rf6rence: (2000) 46 R.D. McGill 279
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Madame Chancellor, honoured guests, ladies and gentlemen, it is indeed a great
privilege and honour, and also a delight, to have been invited to deliver this year’s
Raoul Wallenberg Lecture. I was not aware until recently that Raoul Wallenberg is the
only honorary citizen of Canada. That is much to the credit of Canada, as Raoul Wal-
lenberg is a most illustrious example of what one person can do in his or her lifetime
to save the lives of so many people. It is also a delight that this lecture was timed to
coincide with this extraordinary conference convened by Professor Irwin Cotler. A
high standard was set at the excellent opening session last night by Madam Justice
Rosalie Abella and Professor Harold Koh, and it has been a privilege to be with pan-
ellists of the calibre that we have had during the past two days. The attendance at this
conference of so many outstanding human rights leaders and activists is really a trib-
ute to Professor Cotler. I do not know of anyone else, in any other country, who
would, through his own reputation and by his own example, have attracted this distin-
guished group.
I will speak tonight mainly about the law. I make no apology for that, because this
is a conference about the law: human rights law, genocide law, laws relating to hate
speech, the laws relating to attempts by humankind to try and stop the slaughter of in-
nocent men, women, and children that has marked this terrible century that is soon to
end. I am not sure that it is correct, as it was suggested today, that people tend to re-
gard their own time as being worse than any other. If one looks at the statistics, I be-
lieve that we are entitled to take a very critical view about the second half of the
twentieth century. At the same time, however, we can and should recognize the im-
pressive steps that have been taken in this time to advance humanitarian law.
In speaking about the law, I will heed the caveat that was so eloquently given to
us today by David Rieff,’ that the political realities should not be left out of account.
On more than one occasion I have heard David bring an audience down to earth by
recognizing the practical difficulties that we too often ignore in exploring solutions to
difficult problems. We also need to take a step back in order to appreciate the route we
have already travelled in the area of international human rights, and particularly inter-
national humanitarian law. In doing so, we will see that significant advances have
been made, many of which have been the result of the efforts of individuals. Without
such individuals-without activists-those positive developments would not have oc-
curred. Finally, I must confess at the outset to be an optimist; I am confident that good
eventually prevails over evil and that it is imperative that we all continue to contribute
as best we can to that end.
The nature of the law is that it is invariably reactive and not proactive. Legal re-
forms more often come in the aftermath of calamitous events. For example, after
crime rates rise, bail laws become more stringent and the sentences meted out by the
‘D.S. Rieff, “Are Good Intentions Enough? The Limits of the New World of International Justice”
(2000) 46 McGiU LJ. 173.
2000]
R. GOLDSTONE – DEVELOPMENT OF THE LAW OF WAR
courts become harsher. When the crime rate goes down, the trend is in the opposite di-
rection. This reactive influence is well illustrated by the history of humanitarian law
over the past century. In its modem guise, its parent and protector has been the Inter-
national Committee of the Red Cross. That organization was founded in 1859 through
the efforts of Henri Denant, a wealthy Swiss entrepreneur who was horrified at the
bloody scenes he witnessed at the battlefield of Solferino in Italy in that year. In par-
ticular, he was appalled that the dying and injured were left unattended where they
had been felled. It was appropriate that Denant was the recipient of the very first No-
bel Peace Prize in 1901.
The first Geneva Convention on the subject of the wounded and the sick in battle
was drawn up in 1864.- It was superseded by subsequent Geneva Com’entions in
1906, 1929, and 1949. Each war of the twentieth century brought with it new horrors
and the laws of war had to be revised in its aftermath. Conferences were also called at
The Hague to consider the manner in which wars were actually fought. Prompted by
his concem at the disparity in arms between his own army and those of his enemies,
Czar Nicholas II of Russia called the first of these conferences in 1899. It was thus
self-interest, and not moral concern, that guided him.
There is a common misconception that the law of war (or humanitarian law as it
is now called) outlaws war itself. That, of course, is not so. It is appropriate to use the
analogy of the Queensberry Rules and the so-called sport of boxing. The rules, which
outlaw foul play, only apply after each of two men have entered the boxing ring and
begin to punch the other with the intent of knocking him senseless. By definition, the
Queensberry Rules do not forbid boxing, and only have application when the fight is
underway. So, too, humanitarian law does not outlaw war itself. Its operation does not
begin until a war has broken out and armies have begun to attack each other. It seeks
to regulate only the manner in which wars are fought.
‘”Geneva Conventionfor the Amelioration of the Conditions of the bunded in Armies in the Field,
22 August 1864, 18 Martens Nouveau Recueil (Ser 1) 607, 129 Consol. T.S. 361 (cntered into force
22 June 1865).
3 Convention for the Amelioration of the Condition of the lbunded and Sick in Armies in tile Field,
11 L.N.T.S. 440 (entered into force August 9, 1907, no longer in force); Com’entionfor the Ameliora-
tion of the Condition of the Wounded and Sick in Annies in the Field, 27 July 1929, 118 L.N.T.S. 303,
Can. T.S. 1933 No. 6 (entered into force 19 June 1931, no longer in force); Com’entionfor the Ame-
lioration of the Condition of the Wiunded and Sick in Anned Forces in the Field, 12 August 1949, 75
U.N.T.S. 31, Can. T.S. 1965 No. 20.2 (Genera Convention 1); Convention for the Amelioration of the
Condition of the ibunded4 Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August
1949, 75 U.N.T.S. 85, Can. T.S. 1965 No. 20.3 (Genera Convention 11); Convention Relative to the
Treatment of Prisoners of War, 12 August 1949,75 U.N.T.S. 135 at 236,238,6 U.S.T. 3316 at 3418,
3420 (entered into force 21 October 1950) (Geneva Convention 111); Convention Relative to the Pro-
tection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 at 386, 388, 6 U.S.T.
3516 at 3616, 3618 (entered into force 21 October 1950) (Geneva Con’ention IV) [hereinafter collec-
tively Geneva Conventions].
282
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Aggressive war is certainly outlawed by international law (as distinct from hu-
manitarian law). It was very controversial that the Nuremberg Charter allowed the
Nazi leaders to be charged with “crimes against peace”. The Security Council, in set-
ting up the International Criminal Tribunal for the Former Yugoslavia, did not confer
jurisdiction upon it to investigate or indict persons for “crimes against peace”. As its
first chief prosecutor, I was grateful that the tribunal had no such jurisdiction. To de-
termine who is the aggressor in recent Balkan history is more of a political than a le-
gal judgment. When does one start to judge the parties-at the Battle of Kosovo in the
fourteenth century, as many Serbs would wish, or at the massacre of hundreds of
thousands of Serbs during World War I? One could also begin with the breakup of
the former Yugoslavia in 1991. The long history of hate, revenge, and religious intol-
erance in the Balkans makes this a difficult-if not impossible-task.
This conference has been examining the terrible wars and the commission of
genocide since the Second World War. A number of panellists have referred to the
Holocaust and to its effects. What has not been discussed is the modern phenomenon
of universal jurisdiction that is, in fact, a product of the Holocaust.! Before World War
II there was no such thing as universal jurisdiction. If you had told an international
lawyer or a political leader in 1948 that the House of Lords in England could consider
an extradition of a former head of state of Chile, at the request of Spain, for crimes
committed in Latin America, they would have looked at you with amazement-if not
questioned your sanity! It would have been unthinkable. Lawyers of the time would
have explained that the only courts that could try people for criminal conduct were
those of the country where the offence was committed, and that there was no interna-
tional jurisdiction in the criminal field.
International jurisdiction arose directly out of a new kind of offence recognized in
the London Agreement of 1945,6 in terms of which the Nuremberg trials were set up.
The victorious Allied Powers created a brand new offence which they called “crimes
against humanity”. And why a crime against humanity? Because the crimes commit-
ted during the Holocaust were so egregious and shocking to all decent people that
they were recognized as crimes not only against the immediate victims, and not only
against the national laws of the countries in which they were committed. These crimes
were considered to have offended all of humankind. If they offended people anywhere
in the world it follows that people anywhere in the world had the right in law to bring
such people to justice, to try them, and if found guilty, to punish them.
That was, I believe, the start of the recognition of international jurisdiction, and
very soon important legal consequences followed. In the Geneva Conventions of
‘ Charter of the International Military Tribunal, 8 August 1945, 82 U.N.T.S. 280.
5 Although I believe, both normatively and descriptively, in universal jurisdiction, I must acknowl-
edge that it is still a contested notion among thinkers and practitioners.
6 Agreementfor the Prosecution and Punishment of Major War Criminals of the European Axis, 8
August 1945, 82 U.N.T.S. 279,59 StaL 1544, E.A.S. No. 472.
2000]
R. GOLDSTONE – DEVELOPMENT OF THE LAW OF WAR
283
1949, a new type of war crime was recognized. They were called “grave breaches” of
the Geneva Conventions. These were the most egregious of war crimes which became
the responsibility of all state parties to prosecute. Effectively, international jurisdiction
was conferred on every nation that ratified those conventions. They obliged them-
selves to bring to account, and to punish, any person who committed “grave
breaches”, no matter where these breaches took place. If a government does not fulfill
this duty, it is obliged to hand any suspect to a country that is willing to try to bring
such person to account. This kind of international obligation was not conceivable be-
fore the Holocaust.
The notion of universal jurisdiction features in several subsequent international
instruments. First, the United Nations’ Torture Convention7 of 1984 confers an inter-
national jurisdiction similar to that of the Geneva Conventions. The Torture Conven-
tion is relied upon by Spain in seeking the extradition of General Pinochet. The argu-
ment in the House of Lords is that the Torture Convention trumps any provisions re-
lating to sovereign immunity that British national extradition law may contain.
The United Nations’ Apartheid Convention of 1973′ declared apartheid to be a
crime against humanity. This is the only case since World War II where a crime
against humanity has been defined in an international instrument. Again, universal ju-
risdiction is conferred by that convention. Nations that have ratified the Apartheid
Convention are obliged to prosecute anybody suspected of having committed the
crime of apartheid. It is a matter for regret, in my view, that so few Western nations
ratified the Apartheid Convention. Had they done so, and had they taken their interna-
tional obligation seriously, I believe that apartheid would have come to an end many
years before it did. If South African diplomats and business leaders were effectively
prevented from travelling outside their own country, I have no doubt that what Presi-
dent de Klerk did in 1990, his predecessors would have done many years earlier. The
country could not have continued to maintain its comparatively high standard of liv-
ing in the face of that sort of international action.
Most recently the statutes of the two United Nations war crimes tribunals are
clearly founded on an international jurisdiction assumed by the Security Council. The
International Criminal Tribunal for the Former Yugoslavia has been empowered to try
offences committed in countries many miles away from its seat in The Hague. Simi-
larly, the United Nations International Criminal Tribunal for Rwanda is trying people
indicted for genocide and other serious crimes committed in Rwanda during 1994.
They are being tried in neighbouring Tanzania. As we heard earlier today, the Rome
‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, 1465 U.N.T.S. 85, Can. T.S. 1987 No. 36, 23 LLM 1027 (entered into force 26
June 1987) [hereinafter Torture Convention].
8 International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 No-
vember 1973,1015 U.N.T.S. 243, 13 L.M. 50 [hereinafterApartheid Convention].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Treaty9 on a permanent International Criminal Court is founded on the same kind of
universal jurisdiction.
The Holocaust also brought about a very sensible marriage between the law of
war and some of the constituents of international human rights law. The traditional
law of war-the Hague Conventions” and Geneva Conventions-were joined by the
Genocide Convention” and “crimes against humanity”, and became one body of in-
ternational humanitarian law.
Those developments have, however, not stopped the bloodshed. The murders,
rapes, and tortures continue. There have been in excess of a hundred wars since the
Second World War, most of them civil wars. Again, the development of the law was
reactive, and steps were taken to bring the law relating to civil wars (internal armed
conflicts) into line with those laws that are traditionally applicable to international
armed conflict. There was no logical or moral justification for allowing innocent ci-
vilians to be treated worse, or protected less, in situations of civil war than they would
9 Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9, 37 I.LM. 999
(not entered into force) [hereinafter Rome Treaty].
“0 Convention (III) relative to the Opening of Hostilities, 18 October 1907, 3 Martens Nouveau Re-
cueil (Ser. 3) 437, 205 Consol. T.S. 264 (entered into force 26 January 1910); Convention (IV) re-
specting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and
Customs of War on Land, 18 October 1907, 3 Martens Nouveau Recueil (Ser. 3) 461, 187 Consol.
T.S. 227 (entered into force 26 January 1910); Convention (V) respecting the Rights and Duties of
Neutral Powers and Persons in Case of War on Land, 18 October 1907, 3 Martens Nouveau Recueil
(Ser. 3) 504, 205 Consol. T.S. 299 (entered into force 26 January 1910); Convention (VI) relating to
the Status of Enemy Merchant Ships at the Outbreak of Hostilities, 18 October 1907, 3 Martens Nou-
veau Recueil (Ser. 3) 533, 205 Consol. T.S. 305 (entered into force 26 January 1910); Convention
(VII) relating to the Conversion of Merchant Ships into War-Ships, 18 October 1907, 3 Martens Nou-
veau Recueil (Ser. 3) 557, 205 Consol. T.S. 319 (entered into force 26 January 1910); Convention
(VIII) relative to the Laying of Automatic Submarine Contact Mines, 18 October 1907, 3 Martens
Nouveau Recueil (Ser. 3) 580, 205 Consol. T.S. 331 (entered into force 26 January 1910); Conven-
tion (IX) concerning Bombardment by Naval Forces in Time of War, 18 October 1907, 3 Martens
Nouveau Recueil (Ser. 3) 604,205 Consol. T.S. 345 (entered into force 26 January 1910); Convention
(X)for the Adaptation to Maritime Warfare of the Principles of the Geneva Conventions, 18 October
1907, 15 L.N.T.S. 340 (entered into force 26 January 1910); Convention (XI) relative to certain Re-
strictions with regard to the Exercise of the Right of Capture in Naval War, 18 October 1907, 3 Mar-
tens Nouveau Recueil (Set. 3) 663, 205 Consol. T.S. 367 (entered into force 26 January 1910); Con-
vention (XII) relative to the Creation of an International Prize Court, 18 October 1907, 3 Martens
Nouveau Recueil (Ser. 3) 688, 205 Consol. T.S. 381 (not in force); Convention (XII) concerning the
Rights and Duties of Neutral Powers in Naval War, 18 October 1907, 3 Martens Nouveau Recueil
(Ser. 3) 713, 205 Consol. T.S. 395 (entered into force 26 January 1910); Declaration (XIV) Prohibit-
ing the Discharge of Projectiles and Explosives from Balloons, 18 October 1907, The Hague, 3 Mar-
tens Nouveau Recueil (Ser. 3) 745, 205 Consol. T.S. 403 (entered into force 27 November 1909).
” Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78
U.N.T.S. 277, Can. T.S. 1949 No. 27 (entered into force 12 January 1951) [hereinafter Genocide
Convention].
20001
R. GOwSTONE- DEVELOPMENT OFTHE LAW OF WAR
be in cases of an international armed conflict. There can be no rational basis for
making such a distinction.
I would suggest that the only reason for having maintained the distinction be-
tween international and internal armed conflicts was the self-interest of governments.
These governments did not want to attract, or be subject to, any international obliga-
tions with regard to the means they adopted in dealing with their own internal insur-
rections. I grew up in a South Africa where sovereignty was one of the favourite
shields of the apartheid government. Whenever the international community criticized
the South African government for what it was doing to the black majority, the re-
sponse was that it was not the concern of the international community, or of any other
government. It was an internal affair. In the South West Afica (Namibia) case in the
1960s, ‘ 2 the International Court of Justice in effect adopted this “mind your own busi-
ness” approach because it was then the accepted position in international law. That
changed in the face of the abominable atrocities that were being committed in civil
wars.
The distinction between international armed conflict and internal armed conflict
was really dealt a death blow by the statute of the Rwanda tribunal.” Unlike the case
of the former Yugoslavia, the genocide committed in Rwanda was wholly an internal
affair. Yet the Security Council decided that it was nevertheless an international crime
and it conferred on its tribunal the authority to prosecute violations of Common Arti-
cle 3 to the Geneva Convention of 1949 and the Second Optional Protocol of 1977.”
That was taken further when the Appeals Chamber of the ICTY [International Crimi-
nal Tribunal for the Former Yugoslavia], in the Tadid appeal,” virtually obliterated the
distinction in humanitarian law between international armed conflict and internal
armed conflict.
There were also other changes as a consequence of the Holocaust. Indeed, one of
the most important was that individuals for the first time became the subject of inter-
national law. Before World War II, individual human beings just did not feature in in-
ternational law, which concerned itself only with nations and with governments. The
founding document of the League of Nations had, as the object of the international
body, the spread of democracy. It made no reference at all to the protection of human
‘2 Legal Consequences for States of the Continued Presence of South Africa in Nainibia (South-West
Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] 1 CJ. Rep. 16.
‘3 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, 3453d Mtg., UN Doc.
SIRES/955 (1994).
” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to tie Protection
of Wctins of Non-InternationalAnned Conflicts (Protocol 1I), 1125 U.N.T.S. 609, Can. T.S. 1991 No.
22 (entered into force 7 December 1978).
” Prosecutor v. Dusko Tadid (1995), Case No. IT-94-1-AR72 (International Criminal Tribunal for
the Former Yugoslavia, Appeals Chamber), 35 LLJti. 32.
McGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
rights. On the other hand, at the heart of the Charter of the United Nations’ and of the
Universal Declaration of Human Rights” is the protection of individuals.
This recognition by international law of the human rights of individuals was
really the beginning of the end of the doctrine of sovereignty in its strictest form. If
individuals become the object of international law, the argument of governments that
“it is not your business how we treat our people, how we violate their human rights”
begins to lose its force. But reliance on sovereignty has far from disappeared.
The attitude of many governments, and the United States in particular, is founded
on the old-fashioned concept that sovereignty remains inviolable. Yet that same gov-
ernment does not hesitate to interfere with the internal affairs of many other countries.
Indeed, today there are very few governments in the world that do not arrogate to
themselves the right to interfere in the sovereign internal affairs of other governments.
What better example than Kosovo? There is no question that in international law,
Kosovo is a province of the Federal Republic of Yugoslavia. Yet there is little hesita-
tion by the leading members of the international community about sending peace-
keepers into the former Yugoslavia in an endeavour to try and protect-as feeble per-
haps as the attempts have been-the human rights of the majority of the inhabitants of
the province of Kosovo.
When one reviews the advances in international humanitarian law, I would sug-
gest that there is room for pride as we come to the end of this century. To use Martin
Luther King’s example, if an international lawyer called Rip Van Winkle had been
sleeping during the last fifty years and were suddenly to awake today, he would not
recognize and would not begin to understand the advances that have been made dur-
ing the period of his slumber.
I now turn to address the specific questions which we were requested by Profes-
sor Cotler to address. What have we learned? And what must we do? The speakers
and panellists have already given us their answers and it is an impressive list that has
been compiled. Allow me to add some of my own thoughts. What have we learned? I
suggest the first thing that we should have learned is that any people anywhere are ca-
pable of the most terrible evil. And we should have learned, too, that any people any-
where are capable of doing good. No nation, no people, whether adherents of any re-
ligion or none, and whatever their skin colour happens to be, has a monopoly over
good or evil. After World War H, there was a belief to the effect that there was some-
thing peculiar about the German people-something peculiar in their psyche-that
could have allowed their leaders and their followers to have committed the Holocaust.
That belief has been shattered for the myth that it was. We have learned, I hope, that
humans have more in common than they have differences. And given the economic
6 26 June 1945, Can. T.S. 1945 No. 7.
17 GA Res. 217(I), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
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circumstances, the political circumstances, and the history, these evil things can happen
anywhere. We should have learned this, and it should be a warning to future generations.
We should have learned, too, the danger of stereotyping, of making assumptions
about people because of their religion, because of their race, or because of the conti-
nent or the region in which they live. It is bad enough to stereotype people; it is an
even greater error to make assumptions and draw conclusions from false stereotypes.
Stereotypes-about black people, or white people, or Asian people-have been re-
sponsible for so many of the horrendous events during this past century. In particular,
stereotyping women has given rise to gender discrimination, and adherence to such
stereotyped views has been the cause of the many irrational things that men do, think,
and say about women. And because we are all guilty of bias to a greater or lesser ex-
tent, we all need to continue the learning process with regard to this kind of stereo-
typing. Unfortunately, it is a natural human reaction, one that probably results from
oversimplification. It is easier to deal with people, to make assumptions about them if
you treat them as stereotypes, whether in the business arena, socially, or in a court-
room. “Oh, it’s one of them”–and assumptions are made about “thef’. A good il-
lustration is the rule of evidence that requires the testimony of a woman victim of a
sexual assault to be corroborated. This rule, which is based on the irrational percep-
tion of women’s testimony as particularly unreliable in sexual assault cases, is deeply
embedded in the English common law. The presumption is still considered good law
in some countries. It was only very recently that the South African Supreme Court of
Appeal held that the rule contravenes our Bill of Rights.” I can think of few worse ex-
amples of the irrationality that is bom of stereotyping.
We should also have learned that good laws are insufficient to combat criminal
behaviour. The best laws in the world are hardly worth the paper they are vaitten on if
they are not enforced. It is the enforcement of laws that makes them effective. It is
fear of apprehension that deters would-be criminals. It is not the fear of a death sen-
tence or life imprisonment, but the fear of getting caught and being punished. That is
the deterrent, and I feel certain that I do not need to convince this audience of that.
We should have learned, too, of the power of leadership. In this century, leaders
have shown what tremendous power they can wield, for good or for evil; consider the
power that Hitler wielded for evil, and the power that President Mandela and Presi-
dent de Klerk wielded for good. In South Africa, without good leadership, there was a
grave possibility of a most terrible bloodbath. Indeed, it appeared to be inevitable, and
until the beginning of 1990, we were looking into the abyss.
We should recognize also the power of nations to lead. In this context it gives me
much pleasure to refer to Canada, and to the lead Canada has taken in establishing the
group of “like-minded nations” to the credit of which we now have a Land Mines
” South African Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa, Act
106 of 1996. The rule was abolished in J. v. S. (1998), 2 S.A. 986 (S.C.-).
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Treaty’9 and a treaty on an International Criminal Court. I am delighted that my own
country counts itself as a member of that group of nations. I would refer also to the
leading role of Canada in the international anti-apartheid movement. I know as a
South African-and this is something I have discussed with President Mandela-the
regard that black South Africans have for countries like Canada, and the Scandinavian
countries, who for selfless reasons did so much for South Africa’s oppressed majority.
Their actions were driven not by personal interest, but because they regarded apart-
heid as standing for everything that was corrupt and evil in the area of racial discrimi-
nation.
We should also have learned, of the danger of inaction. The danger of what Jus-
tice Rosalie Abella talked about last night as “the bystanders”.” There are bystanders
in every country in which evil is committed, and there are unfortunately bystanders in
the international community when the most terrible crimes are committed. As in my
previous example of Czar Nicholas’s actions in 1899, it seems that it is primarily self-
interest that drives individuals and nations. Why a war crimes tribunal for the former
Yugoslavia? Why not for Cambodia? Why not for Iraq? Or for Sierra Leone? These
are political rather than moral questions. It is very difficult to explain to victims the
inaction of those bystanders. It is difficult also to explain to the victims why their in-
terests are so low on political agendas. Their interests are invariably trumped by con-
cerns about oil supplies, by injuries to even one peacekeeper, or the financial interests
of wealthy nations.
We should have learned, too, I would suggest, about the danger-particularly in
democracies-of weak leadership, and the dangers of political decisions being taken
by the military establishment. One can anticipate such decision-making happening in
military dictatorships. What one does not anticipate is its prevalence in democracies,
even in the most powerful democracy in the world. My own meetings in Washington,
during my time as chief prosecutor of the Yugoslavia tribunal, showed me how im-
portant political decisions were made in the Pentagon rather than in the White House.
I was surprised to find confirmation of that experience in Ambassador Richard Hol-
brooke’s fairly recent book To End A War.’ In it, he wrote very frankly and very can-
didly about his role in Dayton. He explains, for example, that the reason there is no
reference in the Dayton Accords” to the arrest of indicted war criminals was because
the military leaders of the United States did not want to expose their troops to the
supposed danger inherent in such a reference. He goes on to state that the military
“+ Convention on the Prohibition of the Use, Stock Piling, Production and Transfer ofAnti-Personnel
20 See R.S. Abella, ‘Ihe Instructive Power of Outrage: Remembering Nuremberg” (2000) 46
Mines and on their Destruction, 18 September 1997, Can. T.S. 1999 No. 4,36 I.L.M. 1507.
McGill LJ. 113.
2’ R. Holbrooke, To End a War (New York: Random House, 1998) at 220-21.
2 The peace agreements contained in the General Framnevork Agreement for Peace in Bosnia and
Herzegovina and its 12 Annexes (1-A, I-B, and 2 through 11), 14 December 1995.
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R. GOLDSTONE – DEVELOPMENT OF THE LAW OF WAR
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leaders made it clear that if they were to be expected to arrest war criminals in the
former Yugoslavia they wanted a written order from the president, as their com-
mander in chief. And-says Ambassador Holbrooke-who could expect an Ameri-
can president to give that instruction in writing during an election year? Imagine ex-
plaining to victims in the former Yugoslavia that, because it is an election year, the
people who have been indicted for the commission of genocide and crimes against
humanity are not going to be arrested because it might be politically unwise for the
leader of the most powerful nation in the world to give that order.
What can we do? Certainly we can begin to enforce our hard-von humanitarian
laws. The sooner we have an International Criminal Court that can do this, the better.
There is no question that the Rome Treaty is not the most perfect document. Even its
most enthusiastic supporters do not describe it in such terms. What could one expect
when about 160 nations get together for six weeks to draft a new international treaty?
It is nothing short of a miracle that they ended up with a treaty at all, let alone one that
was supported by 120 nations. We should rejoice in that accomplishment, and we
should not, I would suggest, start nitpicking. We should accept that we have a treaty
that can result in a workable International Criminal Court. We should all share the op-
timism that we heard this afternoon from Canadians who have been in the forefront of
that endeavour, while remaining sensitive to the plight of the unfortunate victims of
gross human rights violations who will suffer in the interregnum between the Rome
Treaty and an operative ICC.
We can encourage the media to play the sort of role talked about today by David
Rieff-preventing governments from hiding behind the sorts of smokescreens that
governments like to hide behind. It was in this context that David Rieff spoke about
the attitude, during 1994 and 1995, of the United States government in refusing to call
what was happening in Rwanda a genocide. This refusal stemmed from the recogni-
tion that such an acknowledgement would result in certain obligations arising under
the Genocide Convention, and it preferred not to have the burden of those obligations
at that time. I know the effect that policy had in my office in The Hague after the
Rwanda tribunal came online. Senior members on my staff took the view that if the
United States government was refusing to recognize the commission of a genocide in
Rwanda, then we too should avoid such recognition in any public statements we
made. It is the media, I suggest, that is in the best position to blow aside these kinds of
destructive smokescreens that are set up, even by democratic governments.
We should recognize more often the role of individuals who have made a differ-
ence-people like Raoul Wallenberg, whom we honour this evening, and the many
other people in this room who have also made a difference. Rhonda Copelon spoke
today about the attitude in the Prosecutor’s Office in The Hague with regard to gender
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offences, and she very generously made kind remarks about the role I played.” In fact,
if anybody should receive praise and tribute in this endeavour, it is the people like
Rhonda Copelon, Felice Gaer, Catharine MacKinnon, and many other activists. They
have been the conscience, and they have been the teachers. They have taught people
like me the importance of giving adequate attention to gender issues. Well-devised
campaigns from civil society can make a difference. Very soon after I arrived in The
Hague, I received huge postbags-and I am not exaggerating-containing letters
from women and men, but mainly women, in Europe, many in Canada, and many in
the United States, telling me to do something about rape as a war crime. And it
worked. Those letters, written in their own words-some in very broken English,
some in French, some in the languages of the former Yugoslavia-helped to galvanize
the Prosecutor’s Office into giving adequate attention to women and to gender crimes.
In conclusion, let me again congratulate the organizers of this conference. Raoul
Wallenberg’s memory should inspire us for the future. It should inspire those of us
who have been active, and those who have made a difference, to greater activity, to
greater activism. And it certainly should inspire students and young people in all coun-
tries to follow a similarly active path in order to make it a better, and a safer, world.
R. Copelon, “Gender Crimes as War Crimes: Integrating Crimes against Women into Intema-
tional Criminal Law” (2000) 46 McGill LJ. 217.
