Reflections on the development of the law of war.

• Position: Hate, Genocide and Human Rights Fifty Years Later: What Have We Learned? What Must We Do ? - Transcript

The speaker evaluates the current status of international humanitarian law. The law is still predominantly reactive, occurring in the aftermath of calamitous 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 acceptance; 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. Unfortunately, most nations are unwilling to shoulder this duty. The speaker also applauds the recognition by international 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 sovereignty 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 refers 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 governments must not be allowed to erect smokescreens that obscure human rights abuses.

L'auteur, evaluant l'etat actuel du droit international humanitaire, remarque que celui-ci demeure d'abord axe sur la reaction plutot que la prevention, en ce qu'il entre seulement en jeu lorsque des evenements catastrophiques se sont deja produits. Son experience en tant que procureur du Tribunal penal international pour l'ex-Yougoslavie le mene a faire etat des principales difficultes reliees a l'application du droit de la guerre. Alors que, d'un cote, le concept de juridiction internationale recueille maintenant un appui tres large, avec pour resultat que chaque nation qui ratifie un traite international relatif aux droits de l'homme est dans l'obligation d'en sanctionner les violations eventuelles, la plupart des Etats ne sont toutetois pas disposes a s'acquitter de ce devoir. La reconnaissance croissante des droits de la personne par le droit international a travers, par exemple, l'institution du tribunal international sur le Rwanda, demeure tout de meme louable. La barriere que constitue la souverainete etatique continue a s'affaiblir sous l'effet de telles politiques. L'experience des cinquante dernieres annees en droit international revele la necessite d'un leadership effectif, les dangers de se baser sur des stereotypes, et l'impossibilite d'un monopole sur la determination du bien et du mal. La reponse a la question > est que les lois doivent etre appliquees, et qu'il faut rendre impossible pour les gouvernements de dissimuler les violations des droits de l'homme derriere divers ecrans de fumee.

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 Wallenberg 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 panellists 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 tribute 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 distinguished 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 innocent 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 regard their own time as being worse than any other. If one looks at the statistics, I believe 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 impressive 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, (1) 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 fights, and particularly international 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 occurred. 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 reforms more often cone in the aftermath of calamitous events. For example, after crime rates rise, bail laws become more stringent and the sentences meted out by the courts become harsher. When the crime rate goes down, the trend is in the opposite direction. This reactive influence is well illustrated by the history of humanitarian law over the past century. In its modern guise, its parent and protector has been the International 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 particular, 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 Nobel Peace Prize in 1901.

The first Geneva Convention on the subject of the wounded and the sick in battle was drawn up in 1864. (2) It was superseded by subsequent Geneva Conventions in 1906, 1929, and 1949. (3) 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 concern 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 hOt 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...