Thank you, Madame L'Heureux-Dube.

I am extremely honoured to receive the Walter S. Tarnopolsky Human Rights Award and to address you today. I view my receipt of the award as recognition by the sponsoring organizations of the pressing human rights concerns affecting people in Bosnia and Herzegovina and in Sudan, of the issue of business and human rights, and of the important human rights work being done by Canadian lawyers "in the field" - internationally. The Award also provides encouragement to me and many others to continue working on pursuits and in areas where human suffering is often overwhelming, where results are difficult to achieve and where progress is often measured in the smallest of increments.

Today, I will speak about some of the work I've been involved in that may interest you as judges, lawyers, law professors and law students who, as members of International Commission of Jurists (ICJ), seek to promote the legal protection of human rights throughout the world, to ensure that developments in international law adhere to human rights principles and to see that international standards are implemented at the national level in all countries. These same goals motivated my work in Bosnia and Sudan. I would like to share with you a few experiences in the efforts of my colleagues and I to implement international human rights standards in national law and to promote the legal protection of human rights on the ground in the post conflict and peace building situation in Bosnia and in the war torn country of Sudan. Through this discussion, I hope to affirm how important it is for organizations like ICJ, concerned Canadians and the Canadian government to continue and indeed to increase their participation in such efforts. The international community can play a vital role in making the legal protection of human rights a reality for people affected by war.

But first, let me thank and acknowledge those who nominated me for the award and provided supporting testimonials, persons whom I've had the great pleasure of working with over the past years:

• Sam Hanson, Canada's Ambassador to Bosnia and Herzegovina
• Alex Neve, Secretary General of Amnesty International-English Canada Section
• Ambassador Robert Beecroft, Head of Mission for the Organization for Security and Cooperation in Europe or (OSCE) Mission to Bosnia
• Ruth Selwyn, Executive Director of the Canadian Human Rights Foundation
• Kathy Vandergrift - Chair of Sudan Inter-Agency Reference Group and senior policy analyst for World Vision Canada
• Gary Kenny - a long-time human rights advocate who works on behalf of the ecumenical church movement in Canada, and
• Audrey Macklin, Associate Law Professor at the University of Toronto

I have been very fortunate in my work to have had excellent collaborators, those I've just named and others, I also want to recognize today, that really share this award with me. Among them, John Ryle my co-researcher on two of my missions to Sudan and my wonderful colleagues in the human rights department of the OSCE Mission in Bosnia, the internationals and particularly the young Bosnian lawyers, human rights officers and assistants committed to staying in Bosnia, to rebuilding their country and who represent its future. Thanks also to my friends and family and my husband Dan Rath.

I would also like to gratefully acknowledge the Canadian International Development Agency or (CIDA) program that sent me to the OSCE Mission in Bosnia as director of human rights, the Balkans Civilian Deployment Project. Ably administered by the World University Service of Canada, this project provides the Canadian government with a mechanism to second Canadian civilian experts to participate in peace and reconstruction efforts in the Balkans. CIDA pays the salaries of Canadian experts and other civilians supporting the work of international missions in Bosnia, Kosovo, Macedonia and Serbia and Montenegro. The project, started in 1998 has sent 150 Canadians to the Balkans and is scheduled to end on March 31, 2004. I strongly urge the government of Canada to continue funding the project and to use it as a model to support peace-building efforts in other countries. I also urge our government to continue seconding Canadians to OSCE missions. This 55-member state multilateral organization, which is under rated and frankly not good at publicizing its excellent work, is the primary instrument for conflict prevention and post conflict rehabilitation in Europe. Canada and the US are the only non-European members. OSCE plays a major hands-on role, generally through a substantial field presence, in developing stable, peaceful democratic countries through programs in human rights, rule of law, democratization and security.

Let me now turn to our work in Bosnia.
You all know about the brutal war there from 1992 to 1995, in which 250,000 persons were killed and more than two million people were made refugees or displaced. The war in which the system of "ethnic cleansing" came to be that caused wholesale destruction of homes, farms, businesses, communities and lives. A key element of this system was the interference with the exercise of private property and occupancy rights by public authorities on a massive scale, who effectively confiscated, through forced evictions and other measures, several hundred thousand socially owned apartments and private properties and reallocated them to others. Discrimination was the central feature as persons displaced and dispossessed were ethnic minorities whose inability to return was guaranteed by local war-time legislation stripping them of their property in absentia and without access to effective remedies. As a result, the once ethnically diverse Bosnia became a country of three ethnic groups living in segregated areas.

The 1995 Dayton Peace Agreement that ended the war split Bosnia into two ethnically divided entities but gave refugees and displaced persons the right to freely return to their homes of origin, to have restored to them property of which they were deprived during the war and to be compensated for lost property. These objectives were based on the belief that only through such returns could ethnic cleansing be reversed. A fair system to adjudicate property disputes arising from the war was urgently needed to ensure that such disputes would not become a new source of grievance and conflict. Thus, a priority of post-conflict peace-building efforts was to put in place a remedy for continuing unjustified interferences with pre-war property rights; property restitution would lay the foundation for return to pre war homes and communities and contribute to post-conflict stability and reconciliation. To this end, an administrative legal process was set up requiring local municipal authorities to decide on claims for property repossession and to deal with current residents (those who moved into other's property during the war). International organizations, including OSCE would monitor this process. Hundreds of thousands of claims were filed.

Bosnia's Constitution, an annex to the peace agreement, also obligated governments to secure to all persons in Bosnia the highest level of internationally recognized human rights and fundamental freedoms provided in the European Convention on Human Rights or ECHR and 15 other international agreements, and made the ECHR directly applicable in Bosnia and supreme. A Human Rights Chamber was established, composed of international and Bosnian judges, to consider alleged human rights violations. Post war local courts could not impartially or competently decide on such cases and did not enjoy the confidence of Bosnia's citizens.

In spite of these lofty commitments, after the war, local authorities passed property laws that, in practice, legalized ethnic cleansing by confirming the rights of current residents, refusing to evict them or find them other accommodation. For several years following the war, obstruction, political interference and lack of capacity and resources made returning home a distant dream for many refugees and displaced persons and ensured that ethnic minorities would not return, strengthening the position of ethnic majorities in many areas, and sanctioning the ethnic cleansing that went on during the war.

Yet today the most significant achievement so far in Bosnia, seven and half years after the war, is that over half of those two million persons who fled or were ethnically cleansed have returned home. The basic human right to return has now been realized for all persons who wished to return and almost all claims for property repossession have now been resolved.

In these achievements, we have set both a standard and a precedent.

How did we, the many Bosnians and internationals involved, do this? The key factor was our ability to rely on and use international standards to determine the meaning of the right to restitution in the peace agreement and to identify the groups of persons or rights holders who could claim that right, and then to put that into domestic law.

An essential first step was two decisions of the Human Rights Chamber that declared property laws passed during and soon after the war violated article 8 of the European Convention on Human Rights-the right to family life and home and the duty of government to respect the homes of returnees as well as article 1 protocol 1 of the ECHR which protects the right to peaceful enjoyment of possessions (that includes certain property) and article 14 concerning the duty of the government to prevent discrimination against a partially vulnerable group that left their homes due to discriminatory treatment.

A related issue arose around whether socially owned property was "property" subject to restitution to prewar "occupancy" rights holders. Were this not the case, thousands of Bosnians who lived in and lost socially owned apartments would have no redress. Again, application of article 8, and article 1, protocol 1 and the relevant case law of the European Court of Human Rights were key in obtaining consensus that an occupancy right was a property right subject to protection under the European Convention on Human Rights.

Once the laws were in shape, we concentrated our efforts on working side by side with local authorities to implement them. Again, obstruction reigned as local housing officials, mayors and others attempted, using a variety of means and methods, to prevent ethnic minorities from repossessing their pre war homes and ultimately returning. Success was ultimately achieved through a unified and interventionist approach by the international community including imposition of legislation and removal of officials, universal and systematic implementation meaning no special deals for special groups, pressure for and application of sufficient resources, and for OSCE a move beyond traditional human rights engagement of passive monitoring and reporting to a more creative, active monitoring using a "rule of law" approach in interactions with local authorities: no exceptions to, or postponements of lawful evictions, strict chronological order in processing claims (to limit exercise of discretion and arbitrary decision making by authorities), full transparency and accountability. As a result, the laws are now being fully enforced by local authorities and people are getting their property back-giving direct effect to the European Convention on Human Rights.

One area where neither the international community nor the governments of Bosnia has made much progress is on-rebuilding and reforming the legal system and establishing the rule of law. Fully implementing article 14 of the International Covenant on Civil and Political Rights, the equality of all persons before the courts and the entitlement to a fair and public hearing by a competent, independent and impartial tribunal established by law, and the UN Basic Principles on the Independence of the Judiciary and the Role of Lawyers, has not yet been accomplished in Bosnia.

Problems in Bosnia's legal and judicial system are well known to Bosnian legal experts and international officials. These include corrupt and incompetent courts subject to political manipulation, too many laws, judges and courts, bad laws, inefficiency and lack of case management, inconsistent and often discriminatory application of the law and the near impossibility of getting court orders enforced.

To compound these problems, there have been a number of ill-conceived and half implemented reforms and too many quick fixes. Since 1996 over 200 so-called foreign legal experts have passed through Bosnia and millions of dollars spent with few results. For their part, Bosnia's governments and politicians continually criticize their country's politicized and ineffectual judiciary, blaming it for society's ills. But they have not taken real steps to free judges and prosecutors from political manipulation and be truly independent-the political parties have sought to appoint "their" judges, investigations and prosecutions for corruption particularly of political officials proceed at a snail's pace, if at all.

The main reason for this situation is that judicial reform and a serious anti-corruption effort were not a priority in post conflict reconstruction nor was a comprehensive, coordinated, coherent program of judicial and legal reform drafted to which both international and domestic actors signed up. Another key cause was a judicial reappointment process brought in late, six years after the war, that was a random peer review process based on public complaints (there were few) with minimal international involvement that permitted continued political appointments and entrenchment in the system of often unqualified judges after the war.

The good news is that in the last year a set of rule of law targets has been drawn up and entered into by authorities in Bosnia and the international community, in particular a new judicial appointment procedure in which all judges and prosecutors must reapply for their positions in a transparent and internationally supervised process. Restructuring and rationalization of the courts and prosecutors offices is under way. A state-level court has been created, staffed by international and domestic judges and prosecutors to deal with major organized crime cases. Bosnian and international lawyers have drafted new, modern harmonized criminal and civil codes that incorporate international human rights standards.

The challenge now is again to ensure adequate implementation country-wide. The Ministry of Justice has established with the support of OSCE and other international organizations, criminal codes implementation assessment teams comprised of OSCE's local and international legal advisors working on implementation with groups of local justice officials in the main judicial districts. The US Department of Justice is funding and doing the training on the new criminal codes for all judges and prosecutors.

Another huge challenge facing the international community and local authorities in Bosnia is the domestic prosecution of war crimes. There are about 150 domestic war crimes cases proceeding in various courts in Bosnia (although there are thousands of potential war crimes cases spawned from four years of war). International involvement is random case and trial monitoring. The key problem OSCE is observing is witness intimidation-accused persons are generally not in custody. There is an urgent need for witnesses, judges and prosecutors to be protected from intimidation and retaliation and for resources to be directed to this effort. In addition, the International Criminal Tribunal for the former Yugoslavia, as part of its plan to wind down, will transfer about 100 war crimes cases to Bosnia's courts to prosecute in the next few years. There are real concerns about security, the potential for civil unrest and the capacity of the judiciary in Bosnia to try such cases. The plan is to set up within the new State Court, a War Crimes Chamber with a mix of international and local judges and prosecutors to deal with these cases and also to take over certain war crimes cases proceeding in Bosnia's courts.

In all these efforts, it has been exceedingly difficult to attract and retain even for six months or a year, appropriate international legal experts-experienced, well-qualified judges and prosecutors and they are absolutely needed. The Bosnian authorities have argued against the involvement of foreign judges in Bosnia's courts. But it is not yet the time for Bosnia to go it alone here. The integrity and credibility of domestic war crimes trials and major corruption cases will only be assured by the participation of foreign judges.

Rule of law and judicial reform is where the international effort is now at in Bosnia-and it's only really starting. The many organizations and people involved in this effort, I know, would welcome and encourage the ICJ to expand its regional project to support independence and impartiality of judges to Bosnia, particularly in view of the impending completion of the judicial reappointment process and the opportunity to work with appropriately appointed and qualified judges who are in it for the long haul. There remain many opportunities, from working in the Bosnia state court to building the capacity of the new judicial training centers to reforming and modernizing Bosnia's law faculties, for the Canadian legal community to work in Bosnia promoting judicial and legal independence and impartiality, and the rule of law.

It is imperative for the international community, for Canada, to stay the course, and continue to provide the support and funds required to finish the job in Bosnia. This will be difficult given competing priorities in Afghanistan, Iraq, Liberia, Sierra Leone and the Democratic Republic of Congo. The Canadian government is considering reducing foreign assistance to the Balkans. This would be a great pity. Progress has been made, results achieved and human rights realized. International support has been crucial. Coupled with the courage, hard work and commitment of many Bosnians, Bosnia is on its way to stability, normalcy and ultimately integration into the European Union. But it will get there only with the continuing support of the international community.

I'll now turn to the situation in Sudan -a country in the 20th year of a civil war. Unlike Bosnia, however, not much international attention or support has been paid to ending it as evidenced by the faltering peace process, or to addressing the serious and sustained human rights abuses the people of Sudan are subjected to such as extreme political repression with no independent judiciary. In the context of the war violations include intentional attacks and indiscriminate bombing of civilians by military forces, systematic rape, forced displacement and slavery: one of the most egregious human rights violations and within Sudan, an instrument of the government's counter insurgency war strategy making its perpetration a war crime and an offence subject to universal jurisdiction. Slavery is also one of the key obstacles to peace and putting in place measures to prevent slavery is critical to achieving a durable peace. The International Eminent Persons Group set up by the US Secretary of State in which I was involved last year both documented the practice and recommended measures to end it. To date, however, there has been almost no progress on this or other serious human rights concerns. In Sudan, the legal protection of human rights does not exist nor are international human rights standards implemented at the national level. I can only urge concerned Canadians and the Canadian government to speak out forcefully and act vigorously against slavery and other human rights violations. I and others raised these issues last June before the parliamentary sub-committee on human rights and international development that Professor Irwin Cotler now chairs. I ask the committee to follow up and actively work to address the plight of Sudan's people.

Oil development in Sudan in which foreign companies are involved, including until recently a Canadian company, Talisman Energy, has also exacerbated the conflict and assisted the war aims of the government, facilitating violations of human rights by government forces and militias. These companies are implicated, and many argue, complicit in the commission of war crimes and human rights violations. After five years in Sudan and under pressure from human rights groups, this Canadian company sold its share making a handsome profit and got out of Sudan-its been sued in the US under the Alien Tort Claims Act but faces no other consequences for its role in fueling war and human suffering.

This situation is but one example of the "governance gap" in the accountability of transnational businesses for violations of international human rights and humanitarian law associated with their operations in conflict zones. In countries of weak, 'failed' or corrupt governments, there is little prospect of meaningful host state regulation of the activities of transnational companies that violates human rights. International and regional regulatory efforts, current state-level criminal and civil laws, and self-regulation by companies through voluntary codes of conduct is underdeveloped and, to date, ineffectual. The resulting legal vacuum permits transnational enterprises operating beyond the reach of effective mechanisms of accountability to commit, aid, abet, or be complicit in human rights violations. In the research I am currently involved in with Audrey Macklin and Penelope Simons, we propose a legal regime capable of addressing the governance gap that combines the strengths of home state-based regulation with the advantages of participation from a range of sectors (industry, civil society, government) and jurisdictions (national, supra-national). In our view, home state regulation is the best mechanism to ensure the legal protection of human rights globally in this area. We call on Canada to formulate and implement a policy to ensure that Canadian companies operating in war zones address and are accountable for any human rights consequences of their operations. Canada must do this to responsibly carry out its obligations to protect human rights and vulnerable populations.

I'm pleased to note two recent examples in the business and human rights area where developments in international law are adhering to human rights principles. The first is the recent decision of the chief prosecutor of the International Criminal Court to investigate allegations of war crimes and other crimes in the Democratic Republic of Congo including the role and alleged complicity of foreign companies in these crimes. The second is the adoption this week by the UN Sub-Commission on Human Rights of the UN Norms on the Responsibilities of Transnational Corporations and Business Entities with Regard to Human Rights. The ICJ in Geneva supported these norms that clarify the legal obligations of companies under international human rights law. The norms now need to be actively promoted to facilitate their official adoption by the UN Commission on Human Rights later this year.and there will be fight.. The norms do not enjoy the support of international business groups that say the framework is too legalistic and binding.

In closing, I refer to Amnesty International's recently launched "agenda for justice". It states that preventing future attacks on civilians and upholding human rights depends on ensuring justice today, and calls on all states able to do so, to provide financial assistance and other support to rebuilding effective and impartial legal systems in countries affected by war. ICJ's project in Croatia and Serbia and the appointment and activities of the Correspondent for ICJ Canada to speak out about attacks on judicial independence and the rule of law are needed initiatives that contribute to this "agenda for justice". Of course, much more needs to be done and we must do more as members of ICJ, as judges, lawyers, law professors and also as Canadians. As part of the international community and in an effort to promote the legal protection of human rights around the world, we must continue to work with failed states to build governing and legal structures that assist in preventing future conflict and to ensure that victims of human rights violations have the right to justice, and see justice done. The award I am honoured with today is a recognition that our efforts together can and do make a difference. Thank you.