THE RULE OF LAW IN AN AGE OF FEAR.

Author:Edney, Dennis
Position:Forum: Rights in Times of Challenge
 
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I mentioned to my spouse, Patricia, that I was giving a lecture at the University of New Brunswick and she said, "say something happy for a change." I said, "I'm Scottish. We don't do that."

The title of my lecture is the Rule of Law in an Age of Fear.

Rule of Law

In discussing the importance of the Rule of Law, I will touch upon a number of themes and hopefully by the end of my lecture I will have challenged you to question whether the concept and practice of justice are being carried out in your name.

There are those who "see the rule of law in negative terms: as a constraint upon freedom and creativity; as a series of traps for the unwary; as a set of rules designed to stifle initiative and enterprise." (1) Consequently, they might view the Charter "as a means of enabling courts to frustrate the will of elected bodies. To some, the rule of law is thought to require the police to investigate, and bring to prosecution" (2) every aspect of the rule book, no matter how harmless or incidental it might be; but, "[t]his is not what law is about." (3) The Rule of Law restrains and civilizes excessive power.

The two pillars of promoting justice and restraining power are crucial to defending Canadian values and to the survival of democracy.

I am reminded of the play A Man for All Seasons where Thomas More states that he would grant the Devil protection of the law, for without law, we are all defenseless. (4)

Humanist Approach

I wish to approach my lecture reflecting on how we have arrived in this post 9/11 world as members of the larger global family where distrust, bigotry, and violence appear to dominate our everyday life.

In doing so, I acknowledge it is difficult to maintain perspective when it seems everyday the world is turning itself upside down and appears to have lost all vestiges of humanity.

One could be forgiven for believing the world has simply gone crazy and for deciding not to participate, for sitting this one out, and for letting the world pass by.

Dangerous Moment in History

Many of us have grown up feeling that international stability is as natural as the air we breathe. There is a tendency to think that our stable society will always be that way.

For many, their lives "have coincided with the rise of democracy, the spread of market economics and signs that the world has finally subscribed to the United Nations Universal Declaration of Human Rights ... even if much of it is paid only in lip service". (5)

There is a tendency to think that our stable society will always be that way and that Western liberal democracy will be "the final form of human government" (6)--that the march of human freedom is unstoppable.

We forget our history where the Rule of Law crumbled; where democratic institutions broke down by extraordinary changes in peoples' thoughts; and, where systems of power that once seemed invincible quickly collapsed.

What leaps out from the history of the past hundred years is its utter unpredictability. After all, "[h]istory does not end. It is a timeless repetition of human folly and correction." (7)

Nothing is inevitable, least of all liberal democracy; "[w]e should be particularly wary of the siren song of history ... [that] 'Those who cannot remember the past are condemned to repeat it'." (8)

It has been 28 years since the fall of the Berlin Wall, with all its accompanied optimism of freedom, but today "[b]elief in an authoritarian version of national destiny is staging a powerful comeback." (9) America, for instance, has elected a man who likes big walls and is an avid admirer of autocrats such as Vladimir Putin.

In every political generation, there are decisions that history later reveals to be defining of an era. There are watersheds for individuals, as there are watersheds for governments.

Today, established and accepted legal principles and institutions put in place after the Second World War, reflecting the wishes of people at the time to never see such a horror again, are under threat.

Criminal Court of Justice

The International Criminal Court of Justice, set up to prosecute individuals for international crimes against humanity, is under attack with countries threatening to withdraw from the court. (10)

European Union

The European Union, with its Western Liberal governments, is under threat from ultra nationalists and populists who wish to withdraw from the once same shared vision of a global collective.

Brexit

The British exit from Europe was the moment when, as Roger Cohen explained, "it became irrefutable that some of the very foundations of the postwar world and the spread of liberal democracy--free trade, more open borders, fact-based debate, and greater integration--had collapsed." (11)

United Nations

Of course, then there is the United Nations ("UN").

Seventeen years ago, Koffi Anann stood before the UN General Assembly and apologized for the failure of the international community to prevent the massacre of 100,000 Bosnians at Sebrenica. He called it "a horror without parallel in the history of Europe since the Second World War." (12) He pledged to ensure that the UN would never again fail to protect a civilian population from mass slaughter.

We have seen this inaction before: in Rwanda, in Cambodia, in South Sudan, and now in the Syrian conflict and the tragedy of the ancient city of Aleppo and its peoples.

The obligation to act against evil in Aleppo was no different from the obligation to act against the evil in Sarajevo and Srebrenica.

One reporter indicated that "[f]or months, the bodies have been piling up in eastern Aleppo as buildings have come down, pulverised by [bombs], burying residents who could not flee in avalanches of bricks and mortar." (13)

We witnessed the pleas for help as Syrians took to videos, Twitter, Facebook and Instagram beseeching us for help to escape the nightmare that was Aleppo. The desperate faces of children and parents staring directly into the camera, helplessly dying, confused at our indifference to the slaughter taking place, pleading for our help, refusing to disappear silently into the abyss.

It is hard to watch and hear these desperate cries without being overwhelmed by horror and by shame.

Describing the war-ravaged Syrian town of Aleppo as a "synonym for hell" UN Secretary General Ban Ki-moon decried the international community as collectively failing the people of Syria and that the carnage there remains a "gaping hole" in the global conscience. (14)

Now, the ancient city of Aleppo--7,000 years old, and imbued with history --is in ruin. As one observer described, "[b]uried under the rubble, Aleppo weeps." (15)

Aleppo was a microcosm, in a sense, for the entire war in Syria. No peace treaty was negotiated; that didn't happen because Russia and the United States were unable to agree to a temporary ceasefire to allow humanitarian aid to the injured, the starving, and the dying.

Aleppo is no more because the core obligation of international law was pushed aside. (16) But, "[i]nstead of taking steps to end unlawful attacks on civilians, hold perpetrators to account, and stop the flow of arms that was fueling the conflict, the [UN Security Council] sat back" (17), choosing indifference over the injustice and suffering of the Syrian people.

Syrian Women

I was on the Syrian/ Turkish border twice last year.

I recall hearing stories of Syrian women who were refugees from their country and raising their children alone. Mothers and children were living in tents, shacks, garages, and camps. The women were alone because their husbands had been killed in the fighting, were still fighting in Syria, or had simply disappeared in the carnage that was Syria.

Many of these women were frequently denied...

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