JUSTICE AND RIGHTS:
LOOKING BACK TO THE FUTURE
WALTER S. TARNOPOLSKY AWARD FOR HUMAN RIGHTS
Canadian Bar Association/International Commission of Jurists (Canada)
August 16, 2004
Winnipeg, Manitoba
Human rights are hard work. People have strong views about them, and tend to think their own views are the right ones. But if people are divided in what they think the right human rights are, they are united in believing in justice. To me, there is no justice without human rights. In that, Canada has every reason to be proud.
In fact, I consider this to be the Canadian justice system’s finest hour. It is difficult to imagine a better or more respected legal system than the one we are lucky enough to have in Canada. Our unique approaches to law, justice, and judging have become some of Canada’s newest and most sought after exports. How did that happen?
It happened because over the years, there were committed lawyers and advocates, one of whom this prize is named for, who spent their careers trying to narrow the gap between the ideals of justice and the reality. So we got, for example, a Charter of Rights and Freedoms; five women on the Supreme Court of Canada, one of whom became Chief Justice; a non-partisan, independent judiciary; and overwhelming numbers of women and increasing numbers of racial, religious and linguistic minorities, aboriginal people and persons with disabilities becoming lawyers and judges, converting the profession from its monolithic homogeneity a generation ago into something closer to the exquisite diversity that is the true Canada.
But while I think we have made enormous progress in the development of human rights since I graduated from law school in 1970, during the last decade of the last century, we seemed to be stalling a bit. Perhaps the hesitation was understandable in the wake of the trajectory of the muscular rights culture in Canada during the two previous decades – the loquacious 70s and the assertive 80s – but it did also make me curious about whether there might be a conceptual component to the rhetoric of resistance.
And, politics aside, I think there was one and it seemed to me to be this – we were tethering our rhetoric about human rights to the principles of civil liberties, creating an intellectual anchor for human rights that was making its progress difficult. While I believe fervently that civil liberties are bedrock rights in a healthy democracy, I also believe, no less fervently, that human rights, which protect against different injustices from those cured by civil liberties, are equally important for the maintenance of our justice balance. We need both.
Yet, as the century closed, human rights seemed to find itself having to defer to the primacy of civil libertarian rights principles, rather than sharing equal billing. And that is the first part of what I’d like to talk to you about this afternoon, focusing on human rights in a national context. The second part, also inspired by events in recent years, is human rights in an international context, and whether there too we ought to think about how we are focusing our intellectual energies.
Back to my first proposition – that there is a profound conceptual difference between human rights and civil liberties, and that if we do not appreciate that there is a difference, or what that difference is, we jeopardize a vibrant human rights culture.
So what is the difference?
Civil liberties is a concept of rights that requires the state not to interfere with our liberties; human rights, on the other hand, cannot be realized without the state’s intervention. Civil liberties is about treating everyone the same regardless of differences; human rights is about acknowledging and accommodating people’s differences so they can be treated as equals. Civil liberties is only about the individual; human rights is about how individuals are treated because they are part of a group. Civil liberties seeks to assimilate; human rights seeks to integrate.
But we have to start at the beginning of the story. The human rights story in North America, like many of our legal stories, started in England. The rampant religious, feudal and monarchial repression in 17th century England inspired new political philosophies like those of Hobbes, Locke, and eventually John Stuart Mill, philosophies protecting individuals from having their freedoms interfered with by governments. These were the theories of civil liberties which came to dominate the “rights” discussion for the next 300 years. They were also the theories which journeyed across the Atlantic Ocean and found themselves firmly planted in American soil, receiving confirmation in the Declaration of Independence guaranteeing that every “man” enjoyed the right to life, liberty and the pursuit of happiness, and that government existed only to bring about the best conditions for the preservation of those rights. Thus was born the essence of social justice for Americans – the belief that every American had the same right as every other American to be free from government intervention. To be equal was to have this same right. Everyone is treated the same. No differences.
The individualism at the core of the political philosophy of rights articulated in the American constitution ascribing equal civil, political, and legal rights to every individual regardless of differences, became the exclusive rights barometer for countries in the Western world.
It was formal equality, it was Diceyan, it ignored group identities and realities, and indeed regarded collective interests as subversive of true rights. It was a theory that saw no distinction between yelling ‘fire’ in a crowded theatre and yelling ‘theatre’ in a crowded fire hall.
Concern for the rights of the individual monopolized the remedial endeavours of the pursuers of justice all over the world. It was not until 1945 that we came to the realization that having chained ourselves to the pedestal of the individual, we had been ignoring rights abuses of a fundamentally different, and at least equally intolerable kind, namely, the rights of individuals in different groups to retain their different identifies – without fear of the loss of life, liberty or the pursuit of happiness.
It was the Second World War which jolted us permanently from our complacent belief that the only way to protect rights was to keep government at a distance and protect each individual individually. What jolted us was the horrifying spectacle of group destruction, a spectacle so far removed from what we thought were the limits of rights violations in civilized societies, that we found our entire vocabulary and remedial arsenal inadequate. We were left with no moral alternative but to acknowledge that individuals could be denied rights not in spite of, but because of their differences, and started to formulate ways to protect the rights of the group.
We had, in short, come to see the brutal role of discrimination, a word we had never and could never use with a concept like civil liberties that permitted no differences. So we invented the term “human rights” to confront the abuses discrimination generated and developed remedies for arbitrary exclusion based on difference. We clothed governments with the authority to devise remedies to prevent arbitrary harm based on race, religion, colour, gender, or ethnicity, and we respected government’s new right to treat us differently to redress the abuses our differences attracted.
We saw how the neutral purpose of civil libertarian individual rights that treated everyone the same had an unequal impact on the opportunities of many individuals, and eventually we saw that all the goodwill in the world could not protect us from our own prejudices and stereotypes, or from restrictively designing systems and institutions accordingly.
So we blasted away at the conceptual wall that had kept us from understanding the inhibiting role group differences played, and eventually extended the promise of full socio-economic participation to women, non-whites, aboriginal people, people with disabilities, and those with different sexual preferences. And, most significantly, we offered this full participation based on – and notwithstanding – group differences. Human rights was the ramp that provided access to a diverse and accommodating mainstream.
Civil liberties had given us the universal right to be equal free from an intrusive state, regardless of group identity; human rights gave us the universal right to be equally free from discrimination based on group identity.
It was as if we had awoken from a 300 year sleep, looked around us, realized how limited our rights vision had become, and, with stunning energy and enthusiasm, acknowledged more rights and remedies in one generation than we had in all the centuries since the Glorious Revolution in England in 1688-9, starting with the remarkable consensus found in the Universal Declaration of Human Rights.
Having decided halfway through this century to endorse a commitment to diversity as integral to our understanding of rights and justice and community, why did we appear to abandon the commitment as the century closed?
What we appear to have done, having watched the dazzling success of so many individuals in so many of the groups we had previously excluded, is conclude that the battle with discrimination had been won and that we could, as victors, remove our human rights weapons from the social battlefield. Having seen women elected, appointed, promoted and educated in droves; having seen the winds of progress blow away segregation and apartheid; having permitted parades to demonstrate gay and lesbian pride; having acknowledged the legitimacy of the grievances of aboriginal people; and having retrofitted hundreds of buildings for persons with disabilities, many were no longer persuaded that the diversity theory of rights was any longer relevant, and sought to return to the simpler rights theory in which everyone was treated the same. We became nostalgic for the conformity of the civil liberties approach, and frightened by the way human rights had dramatically changed every institution in society – from the family to the legislature.
And this, I think, is at the heart of why we seemed to be threatened by human rights, because unlike civil liberties, human rights is a direct assault on the status quo. It is inherently about change – in how we treat each other, not just in how government treats each of us. And so, in North America we tended to yearn for the rights that were less expensive, less confusing, and less frightening. The intellectual baskets into which we placed information once again took the shape of civil liberties, and we ended by dismissively calling a differences-based approach reverse discrimination, or political correctness, or an insult to the goodwill of the majority and to the talents of minorities, or a violation of the merit principle. Personal aspirations, we became convinced, would be realized by those who deserved them, and no one qualified would be turned away. Civil liberties trumped not only human rights, it trumped many people’s ongoing reality, in particular, the reality that there were still built-in headwinds for those who were different, and who were thwarted in their conscious choices by stereotypes unconsciously assigned.
We were, I would argue, in a kind of rights distress on this continent by the end of the last decade of the last century, the decade of deficit reductions, Beavis and Butthead, globalization, and Microsoft, the decade when Americans didn’t ask and didn’t tell, and the decade when they stood by their man the President but spent over $60,000,000 trying to find out if he’d had an extra-marital affair (something a good matrimonial lawyer could have done for half the money…). As the new century dawned, we appeared to take at face value Yogi Berri’s suggestion that when you come to a fork in the road, take it.
The crash of four planes changed everything.
We realized to our horror that while we were riveted on hanging chads and butterfly ballots, terrorists were next door learning how to fly commercial airplanes into buildings. In less than two hours on the morning of September 11, 2001, we went from being a Western world luxuriating in conceptual moral conflicts, to being a Western world terrorized into grappling with fatal ones.
I think that what irrevocably shocked us about the horror of September 11, was how massively it violated our assumptions that our expectations about the rule of law were universally shared, at least to the extent that they would be respected in North America. Whether these expectations were reasonable is not the issue. They were genuine. We felt safe. We no longer do.
Which brings me to the second part of my talk, the international justice scene, a topic the shame of Darfur compels us to consider – again.
As the last few years have dramatically shown, just like our globalizing geopolitical and economic links, the global state of rights – civil and human – has an indisputable impact on the welfare of the world. As a corollary, I would argue that we have been far too timid as an international community about insisting on the centrality of human rights enforcement as a civilizing, global requirement. It is not just about having the right laws, it is about having and enforcing them. It is not just what you stand for, it is what you stand up for.
This generation of international human rights had its genesis in the 1940s with the triangular triumph of the Universal Declaration of Human Rights, the Genocide Convention, and the Nuremberg trials. These were the responsive forms of justice which reared their heads from the atrocities of World War II and roared their outrage.
But consider what events have unfolded internationally since then, events the world was largely inclined to neglect notwithstanding the most sophisticated development of international laws, treaties, and conventions the world has ever known, all stating that rights abuses will not be tolerated. We had the genocide in Rwanda; the massacres in Bosnia and the Congo; the violent expropriations and judicial constructive dismissals in Zimbabwe; the assassinations of law enforcers in Columbia and Indonesia; the slavery and child soldiers in Sudan; the repression in Chechnya; the cultural annihilation of women, Hindus and ancient Buddhist temples by the Taliban; the attempted genocide of the Kurds in Iraq; the rampant racism tolerated at the U.N. World Congress Against Racism and Intolerance in Durban, South Africa; and the world’s shocking lassitude in confronting AIDS in Africa, a lassitude interrupted only when Stephen Lewis donated his iconic passion and indefatigable compassion to the issue.
How come with all our international laws to protect rights, we ignored this evidence? Notwithstanding what should have been the indelible lesson of the Holocaust, namely, that indifference is injustice’s incubator, we felt entitled somehow to defer consideration of our international moral obligations, and hide behind contraceptive terminology like ‘domestic sovereignty’ or ‘cultural relativism’.
And now we add a disgraceful new chapter in global insensitivity, as the world formulates a strategy of astonishingly anaemic proportions in Darfur, a strategy one could characterize as “Let’s keep our fingers crossed”, while tens of thousands are raped, mutilated and murdered.
As lawyers, I think we may have a tendency to take some comfort, properly, in the possibility of subsequent judicial reckoning in a war crimes tribunal, like Nuremberg or The Hague. But courtrooms offer a last resort, and are no excuse for avoiding the requisite strategic intervention. In short, they come too late in the human rights piece.
I am the child of survivors. My parents spent four years in concentration camps. Their 2-1/2 year old son, my brother, and my father’s parents and three younger brothers, were all killed at Treblinka.
After the war, my parents went to Germany, where the Americans hired my father, a lawyer, as a defence counsel for Displaced Persons in the Allied Zone in southwest Germany. In an act that seems to me to be almost incomprehensible in its breathtaking optimism, my parents transcended the inhumanity they had experienced and decided to have more children. I was born in Stuttgart in 1946, and my sister two years later.
I never asked my parents if they took any comfort from the Nuremberg trials which were going on for four of the five years we were in Germany until we got permission to come to Canada in 1950. 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 the Nuremberg Tribunal ever took place. They would have preferred, I’m sure, that world reaction to the 1933 Reichstag Fire Decree suspending whole portions of the Weimar Constitution; to the expulsion of Jewish lawyers and judges from their professions that same year; to the 1935 Nuremberg laws prohibiting social contact with Jews; or to the brutal rampage of Kristallnacht in 1938 – they would have preferred that world reaction to any one of these events, let alone all of them, would have been, at the very least, public censure.
But there was no such world reaction. By the time World War II started on September 3, 1939, the day my parents got married, it was too late.
Millions of lives were lost because no one was sufficient offended by the systematic destruction of every conceivable right for Jews in Germany, that they felt 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 important. They were crucial, if for no more than to provide juridical catharsis. But more than that, they were an heroic attempt to hold the unimaginably guilty to judicial 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.
And there is no doubt that 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. We have made remarkable progress and are immeasurably ahead of where we were 50 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, national interest, economic exigency, or sheer arrogance, men, women and children are being murdered, 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 informs the international community and helps develop a consensus for when responsive multilateral military action is required to protect rights and freedoms. We have, in fact, no consensus on what our international moral responsibilities are period, and that is why we are so desperately lacking in enforcement mechanisms, legal and otherwise.
Almost 60 years after the Nuremberg trials, we still have not developed an international moral culture which will not tolerate intolerance. Nations debate, people die. Nations dissemble; people die. Nations defy; people die.
The gap between the values the international 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 already been done. In a New York Times magazine story a month ago about why the trial of Saddam Hussein is being conducted by Iraqis, an Iraqi exile said, pointedly: “Iraqis don’t want to be imposed upon by a huge U.N. tribunal bureaucracy … The U.N. had 15 years to call for a tribunal. If the international community had done its job, we wouldn’t need a tribunal now.”
Where injustice is preventable, it should be prevented when first identified, not permitted first to create its human devastation before being held to account.
And so some concluding thoughts on history and human rights.
Over 80 years ago, Roscoe Pound pointed out: “All thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still”. Justice, in other words, moves with the times.
And it is time that will judge how just we have been.
This spring marked the 50th anniversary of Brown v. Board of Education, the six page American Supreme Court unanimous decision that ended school segregation. When the decision was released, President Eisenhower was furious. He told a speechwriter at the time:
I am convinced that the Supreme Court decision set back progress in the South at least fifteen years…Feelings are deep on this, especially where children are involved…We can’t demand perfection in these moral things.
In context, Eisenhower wasn’t wrong to worry about the ensuing public controversy and criticism. Almost 50 years later, the decision is still an open sore.
But how has time judged the judgment? The answer may well be in these poignant words a few months ago in the New York Times from a 14 year old African-American boy, who said:
In Arkansas, when I was little, my dad would ask for directions and they would just look at him like he was crazy. I said, ‘Maybe they didn’t hear you.’ I didn’t really understand. But now I do. It still goes on, throughout your whole life.
That is how injustice sounds and that is how injustice feels. There is no justice without human rights and no hope without justice. Sometimes you can’t get there without controversy or criticism, but surely that’s better than not getting there at all. And to get there, we must never forget how the world looks to those who are vulnerable.
Walter Tarnopolsky gave his life to human rights because he cared about justice, and he cared about justice because he cared about the future. In the preface to his 1982 landmark book ‘Discrimination and the Law’, he wrote these words:
I have dedicated this book to my children…in the hope that the world they live in will realize the optimum level of liberty and equality.
Is there a more majestic goal for human rights than this, a world where all children can wear their identities freely, with pride and in peace?
I am honoured more than I can say to get an award that bears Walter Tarnopolsky’s name. Thank you for this great privilege.