From the Final Solution to the Stolen General:

An International Perspective

 

B’nai B’rith Anti-Defamation Commission Oration/

The Australian Institute of Jewish Affairs Sir Zelman Cowen Oration on International Affairs

 

Delivered by Professor Irwin Cotler*

Sunday 19^th July 1998

 

 

We meet at an historic moment of remembrance and reminder, of witness and warning.  For 1998 signifies the 50^th anniversary both of the Universal Declaration of Human Rights – regarded as the magna carta of humankind – and the Genocide Convention – the testament of man’s inhumanity of man – and its injunction of “never again”.

 

We are also meeting in remembrance and reminder of the Fiftieth Anniversary of the Nuremberg Trials and the Nuremberg Principles – of the Nuremberg Principles as symbol and substance – metaphor and message – of international humanitarian law, and as the source and inspiration of international human rights law, including the Genocide Convention and the Universal Declaration.  The Nuremberg principles determined that individuals – and not just abstract entities like states – are personally responsible for criminal violations of human rights including, in particular, the Nuremberg offences of “Crimes Against the Peace”, “War Crimes”, and “Crimes Against Humanity”; [i] nor could individuals plead “acts of state” or superior orders” as exculpatory grounds for their criminality.  For these Nuremberg offences were crimes against humankind itself; the individuals who committed them were hostis humani generis – the enemies of humankind; while the rights they violated included every protected right enshrined in the Universal Declaration of Human Rights.

 

It is also remembrance and reminder, witness and warning of another Nuremberg – the “double entendre” of Nuremberg – the Nuremberg of “Jackboots” rather than “Judgements”; in a word, the Nuremberg of racism rather than of law – or of racism institutionalised as law – the Nuremberg of Zieg Heil – of hate.  Indeed, my own remembrance as a child of the Nuremberg of “Jackboots” rather than Judgements of Zieg Heil – came full circle recently when my ten-year old son, knowing of my interest in “Nuremberg” – and reading from Carol Matas’ children’s book on the Holocaust titled, “Daniel’s Story” – pointed to the first reference in the book to Nuremberg: “Look Daddy”, he said, “It mentions Nuremberg.”

 

Yes, it mentioned Nuremberg – but it was the Nuremberg “Race Laws” – the Nuremberg of Zieg Heil – not of the Nuremberg Principles.

 

And, as it happens, this “double entendre” of Nuremberg – of jackboots and judgements – of Nuremberg Race laws and the Nuremberg Principles – finds parallel expression in the contemporary dialectics of the human rights revolution and counter –revolution; in the dialectics of international human rights law and the criminal violations of human rights.

 

Where, on the one hand, we are witnessing a literal explosion of human rights – where human rights has emerged as the organising idiom of our political culture – as the new “secular religion of our time” – as the “common language of humanity”, as the Vienna Declaration of Human Rights put it; and where things thought impossible at the beginning of the 1990’s – the withering away of the Soviet Union, the dismantling of apartheid, the march of democracy from Central Asia to Central America, the reunification of Germany – have not only happened, but have already been forgotten, or are in danger of being forgotten.

 

Moreover, this revolution of human rights has itself been anchored in, and inspired by, the Nuremberg Legacy – by the explosion of human rights law – by the internationalisation of human rights and the humanisation of international law, including:

 

·         the increasing reference to, and invocation of, the sources of international human rights law – custom, treaty, general principles of law recognised by the community of nations, judicial decisions, and opinio juris – not only as authoritative juridical principle and precedent, but as the discourse of diplomacy and democracy.

·         the dramatic increase in international human rights treaties combating torture, prohibiting racial discrimination, defining the rights of women, or protecting the rights of children, workers, prisoners, refugees, indigenous people, minorities – the vulnerable and the powerless.

·         the emergence of an International Bill of Rights – the U.N. Charter, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Optional Protocol – some of whose provisions have even secured the status of authoritative norms of customary international law binding on all nations.

·         the development of international humanitarian law – the direct embodiment of Nuremberg – involving the protection of human rights in armed conflict both international and internal; and which bespeak not just a right – un droit d’ingérence – but a duty to intervene in situations which exhibit “a consistent pattern of gross violations of human rights”.

·         the establishment of Ad Hoc International Criminal Tribunals respecting serious violations of International Humanitarian Law in Former Yugoslavia and Rwanda, and grounded in Nuremberg principle and precedent.

·         the affirmation in 1995 by the Appeal Chamber of these tribunals – 50 years after Nuremberg – of the distinguishable Nuremberg offence of “Crimes Against Humanity”.

·         the decision of the International Court of Justice in the matter of the illegality of the use of nuclear weapons.

·         the increasing invocation of international human rights law – of the Universal Declaration of Human Rights, the Genocide Convention, and the Nuremberg Principles – by international, domestic and regional courts as a “relevant and persuasive authority”, to use the words of the Supreme Court of Canada; and where, for example, in the 1990’s alone, the Supreme Court of Canada; and where, for example, in the 1990’ alone, the Supreme Court of Canada has invoked this Nuremberg legacy in upholding both the constitutionality of Canada’s anti-hate laws as well as its recently enacted War Crimes law - the “made in Canada ‘Nuremberg’ legislation”, as it has come to be called.

 

In summary, then, we bear witness today to the institutionalisation of the Nuremberg legacy through, inter alia, the constitutionalisation and universalisation of human rights; the internationalisation of human rights and humanisation of international law; the emergence of the individual as subject and not just object of international law; and the responsibility of state officials – and not just states – for criminal violations of human rights.  As Father Robert Drinan has put it, “The elevation of human rights into an international juridical norm is the most dramatic development in the history of contemporary jurisprudence”.

 

But, I suspect that as I have been developing this snapshot of the human rights revolution – of Nuremberg 50 years later – not a few amongst you – sensitive to the seismographs of law and history – may well have been thinking to yourselves: if things are so good, why do they appear to be so bad?

 

And, indeed, we are witnessing not only a human rights revolution – a revolution in human rights law in the invocation of the Nuremberg legacy – but we are witnessing also a counter-revolution – a betrayal of the Nuremberg principles, the Universal Declaration, and the Genocide Convention – where the criminal violations of human rights, the Nuremberg crimes, not only continue unabated, but have in fact intensified.

 

Indeed, the refugees of humanity, the hungry of Africa, the imprisoned of Asia and the Middle East, the women victims of a “gender apartheid” can be forgiven If they think that the human rights revolution has passed them by; while the silent tragedy of the Kurds, the horror of Sarajevo, the ethnic cleansing of the Balkans, the agony of Rwanda, are metaphor and message of the assault upon, and abandonment of, the Nuremberg Principles – the Nuremberg legacy – in our time; and where, as David Rieff has put it, the unspeakable – genocide – has emerged as the paradigmatic form of armed conflict in the 1990’s.

 

And if we focus the lens, and deepen the inquiry, the echoes of the other Nuremberg – the racist anti-semitic Nuremberg – become only too manifest, including where:

 

·         the dialectics of Glasnost and democracy in the former Soviet Union have unleashed the repressed demons of racism and ethnic hatred;

·         in unified Germany Neo-Nazis walk the street in search of l’etranger – the foreigner – and a new xenophobia stalks across Europe, for which the “Le Pennization” of France has become message and metaphor;

·         mass rape, in Bosnia Rwanda, and elsewhere, emerges not only as the consequence of war – which would be bad enough – but as an instrument for the waging of war itself;

·         opening the gates of emigration has been met by the closing of the gates of asylum;

·         democracy is on the march, but not the war on poverty;

·         enfranchisement of the citizen has not been met by the empowerment of the disadvantaged;

·         the emergence of new nations has not resulted in the recognition of First Nations;

·         a new generation of chemical, biological, and nuclear materials – emblems of the new terrorism – become the prospective handmaidens of the “super terrorist” and rogue state.

 

It is not surprising then that the rhetoric of the human rights revolution may yet invite the not uncynical rejoinder that, to paraphrase Benthan [ii] , human rights law is so much “nonsense on stilts”, that it is rights without writs, rhetoric without remedy, semantics without sanctions; that Nuremberg Justice has given way to Nuremberg Crimes; that, in the double entendre of Nuremberg, Nuremberg racism – and not the Nuremberg Principles – are the Nuremberg legacy.

 

And as if this were not enough, one can even be blindsided by one’ 16 year-old child, as reflected in my daughter’s comments upon hearing that I would be speaking on the human rights agenda.

 

“Face it daddy, you’re an anachronism.  Your human rights agenda is over.  Prisoners of conscience?  They have all been released (and no thanks to you anyway).  Captive nations – Soviet Jews – they are all free to emigrate.  Demonstrations against South Africa (you’ve been taking me to them since I was born) for the release of Nelson Mandela – well, he’s been released – and President of South Africa.  Apartheid?  It’s been dismantled.  Nazi war criminals – it’s too late.  Face it daddy, it’s all over.  You have nothing to do.”

 

But as I said to her, and which to share with you today, we ignore human rights revolution at our peril.  For it would be as wrong to assume that the human rights revolution has been won as it would be to assume that it can never be won.  Moreover, the human rights ideas that empowered a human rights revolution – that all people everywhere are entitled to fundamental rights, that states have an obligation to protect the rights of their people, and that other states, NGOs, and people have a right and responsibility to protest and intervene against such human rights violations – these ideas are themselves under attack.  Indeed, the problem today lies not only in the dichotomy or dissonance between human rights norms and human rights violations – which is disturbing enough – but it now extends even to the questioning of the human rights norms themselves.  For while the Universal Declaration of 1948, the Vienna Declaration of Human Rights of 1993, and human rights law is anchored in the universality of human rights – of human rights norms as “the common language of humanity” – that very universality is being challenged by a host of states seeking exemption or immunity from it on grounds of “cultural relativism”, on grounds of the particularity of faith, culture, or ideology.  A parallel and no less insidious challenge comes from the arrogance of Western powers who fail to uphold human rights in their dealings with economically or strategically important countries, and who refuse to subject their own conduct to international human rights standards.

 

And so, on this fiftieth anniversary of the Nuremberg Principles – of the Universal Declaration of Human Rights and the Genocide Convention – we must ask these questions:

 

·         What have we learned?

·         What must we do?

 

May I now, in the second part of my paper, summarise the existential lessons of Nuremberg – of the agony and hope of the Genocide Convention and the Universal Declaration – the lessons to be learned and the action to be taken.  For as Aldous Huxley put it, “life must be lived forwards, but it can only be understood backwards”.  Herewith some of the existential truths, the understandings of history, of Nuremberg, the Genocide Convention and Human Rights fifty years later.

 

Lesson 1

 

Nazism almost succeeded not only because of the technology of terror and the industry of death, but because of the ideology of hate, the teaching of contempt, the demonising of the other; indeed, a genocidal culture of hate that dehumanised its victims as prologue – if not justification – for their genocide.

 

Fifty years later, the lessons not only remain unlearned, but the tragedy is being repeated.  For we have been increasingly witness of late – from Central Asia to Central Africa and from Central Europe to Central America – to a growing trafficking in hate – to a murderous teaching of contempt – of the demonising of “the other” – and which in Bosnia, Rwanda, Burundi included state orchestrated incitement to genocide.  But, as the witness testimony and documentary evidence of the Nuremberg trials – of the trial of Julius Streicher – demonstrated, “this demonising of the other” – this is where it all begins.  Indeed, as the Supreme Court of Canada affirmed in upholding the constitutionality of anti-hate legislation, “The Holocaust did not begin in the gas chambers – it began with words”.

 

What is needed, therefore, is a culture of human rights as an antidote to a culture of hate – a government – NGO – civil society strategy of cross commitment involving education, elite group condemnation, public advocacy, and legal remedy – the whole anchored in, if not inspired by, fidelity to a number of fundamental principles including respect for the inherent dignity and worth of the human person; the equal dignity and worth of all persons; the right of minorities to protection against groups vilifying speech; the promotion and protection of the underlying values of a free and democratic society such as respect for group identity, social justice, cultural pluralism and adherence to our international law obligations which call upon us to enact domestic measures to combat racial incitement.

 

Indeed, organisations such as the B’nai B’rith Anti-Defamation Commission and the Australian Institute of Jewish Affairs – together with such bodies as the Aboriginal and Torres Strait Islanders Commission, The Australian Red Cross, The Australian Council for Overseas Aid, International Society for Human Rights – Australia, Liberty – The Victorian Council for Civil Liberties, The International Religious Liberty Association, The Law Council of Australia, The Federation of Ethnic Communities Council of Australia – all associations in common cause with tonight’s Oration – have a central role in the promotion of a culture of human rights through the prism of human rights education, research, training and advocacy including:

·         human rights education at the core of legal education and not at the margin;

·         the teaching of legal ethics as a core part of legal training and not marginalised or muted;

·         the inculcating of an ethic of “conscienticisation” – as human rights activists put it – of developing a constituency of conscience on behalf of human rights that affirms the universality and indivisibility of human rights;

·         the engendering of justice;

·         encouraging a discourse of civility organised around an ethnic and ethos of tolerance and respect for the vision and voice of “the other’;

·         inspiring a human rights sensibility anchored in a cross-cultural respect for diversity and difference.

 

Lesson 2

Nazism almost succeeded not only because of the culture of hate and industry of death, but because of the crime of indifference the conspiracy of silence.  And, indeed, we are witnessing an appalling indifference in our day to the unthinkable – ethic cleansing – the unspeakable – genocide, and worst of all, to the preventable genocide in Rwanda.

 

It is our responsibility, then, to break down the walls of indifference, to shatter the conspiracies of silence wherever they may be.  For neutrality always means coming down on the side of the victimiser, never on the side of the victim.

 

In a word – and we must adhere to this ourselves if ware are to convey this to others: neutrality in the face of evil – whether of individuals or states – is acquiescence in, if not complicity with, evil itself.  It is not only abandonment of the victim; it is encouraging the victimiser.  As Albert Camus put it:

 

“If you keep on excusing, you eventually give your blessing to the slave camp, to cowardly force, to organising executions, to the cynicisms of great political masters; you eventually hand over your brothers.”

 

Lesson 3

The third lesson is that Nazism almost succeed – and in the genocide of European Jewry it did succeed – not only because of the vulnerability of the powerless, but the powerlessness of the vulnerable.

 

It is not surprising that the triage of Nazi racial hygiene – the Sterilisation Laws, the Nuremberg Race Laws, the Euthanasia Program – targeted those “whose lives were not worth living”; and it is not unrevealing, as Professor Henry Friedlander points out in his recent work on “The Origins of Genocide”, that the first group targeted for killing were the Jewish disabled – the whole system anchored in the science of death, the medicalisation of ethnic cleansing, the sanitising even of the vocabulary of destruction.

 

So it is our responsibility, institutionally as NGOs, professionally as human rights activists, morally as citoyens du monde to give voice to the voiceless, as we seek to empower the powerless – be they the disabled, the poor, gay and lesbians, the refugee – whoever they may be.

 

And if in confronting injustice you ask: Where are we to begin?  Against what injustice?  On behalf of what cause or victim?  How does one rank human suffering?  I want to suggest to you that the problem is not which cause of human rights we are serving, but whether we are serving the cause of human rights at all; not which victim we are defending, but whether we are indifferent to the plight of the victim, whoever he or she may be; not whether a claim is being asserted by a particular minority, but why that minority must always stand alone.

 

For if I have learned anything from my work with human rights monitors and political prisoners, it is this: We are each wherever we are, the guarantors of each other’s destiny; and it made no difference whether I was with political prisoners in Moscow, or dissidents in Syria, or Ethiopian Jews in Ethopia, or blacks in South Africa or aboriginal peoples in Canada.  Everywhere the code words were the same.

 

Lesson 4:       The “Trahison des Clercs”

Nazism almost succeeded not only because of the “bureacratisation of genocide”, as Robert Lifton put it, but because of the trahison des clercs as Eli Wiesel has described it – the complicity of the elites – physicians, church leaders, judges, lawyers, engineers, architects, educators and the like.  Indeed, one only has to read Gerhard Muller’s book on “Hitler’s Justice” to appreciate the complicity and criminality of judges and lawyers; or to read James Van Pelt’s book on the architecture of Auschwitz, to be appalled by the minute involvement of engineers and architects in the design of death camps, and so on.  Nuremberg crimes, then, were also the crimes of the Nuremberg elites.  As Elie Wiesel put it,

 

“Cold-blooded murder and culture did not exclude each other.  If the Holocaust proved anything, it is that a person can both love poems and kill children”.

 

So it is our responsibility to speak truth to power, and to hold power accountable to truth.  Those of us to who have been entrusted with the education and training of the future elites -–of the “sensibilation” of prospective decision makers and opinion makers – should ensure that Elie Wiesel is studied in schools of law and not just in classes of literature; that the double entendre of Nuremberg is part of our learning as it is part of our legacy; that Muller’s “Hitler’s Justice” underpins our perspective as it informs our principles – on justice and injustice.

 

Lesson 5:       The Integrity of Words: The Misappropriation of the Holocaust

One must guard against the appropriation – or misappropriation – of Holocaust metaphors as, for example, in their application to contemporary issues in human rights and public ethics.  As Arthur Caplan put it, “It cheapens the horror of the Holocaust not to understand that care and caution are obligatory where the invocation of this most powerful of analogies is concerned.”  In a word, blanket invocations such as “abortion is today’s Holocaust” or “legalised euthanasia is the Nazification of medicine”, of the characterisation of feminists as “femi-Nazis” or a lost rugby game as a holocaust, not only bespeak a callous ignorance of the Nazi Holocaust, but a misrepresentation of issues in human rights and ethical conduct today.  As Caplan put it, “To use the Nazi analogy with abandon is to abandon history”.

 

This is not to say that Nazism cannot be used as a frame of reference – that, for example, Nazi abuse of medical experimentation on human beings cannot be a point of reference in medical ethics; or the lessons of the Doctor’s Trial at Nuremberg cannot be source and substance of contemporary international human rights law regarding medical experimentation on human beings.  On the contrary; the Nuremberg Code coming out of the Doctor’s Trial is, in effect, the Nuremberg Principles in matters of medical ethics.  As Professor Jay Katz put it – himself a survivor and psychiatrist – the Nuremberg Code serves as an international covenant for the inviolability of the human person, for the inherent worth of every human being.  Accordingly, one should learn, but not analogise easily – lest the wrong analogy distort the learning.

 

Lesson 6:       Nuremberg, Racism and the Holocaust

The enduring question – the “why” of Nuremberg Crimes – of the Holocaust – of Nazi genocide – of the trahison des clerc and the physicians’ central role – still remains.  I don’t purport to have an answer, but offer the following thought grounded in the work of Daniel Goldhagen and Christopher Browning: that Nazism almost succeeded not only because of the ideology of hate, and the industry of death, not only because of the crime of indifference- of neutrality – and the complicity of the elites, but because of the internalised legacy of racism – because of an ingrained culture of racism and anti-semitism.  Indeed, it is this culture of racism, this eliminationist anti-semitism anchored in the theory and practice of racial hygiene – the use of medical metaphors in the sanitising of racism – that transferred “ordinary Germans”, in Daniel Goldhagen’s phrase, into “Hitler’s willing executioners”.  And if the critique be made – as it is – that if this be true of Germans, is it not true of others – why single out the Germans?  The answer must be that racism and anti-semitism were not only German but European – that ordinary men became willing executioners in the Baltics and Balkans, in Vichy France and Quislings Norway – that even Norway enacted Nuremberg Race Laws and deported its Jewish population to Auschwitz.

 

So what must be realised – and as history has taught us only too well – that while it may begin with Jews, it doesn’t end with Jews; indeed, that while it may begin with Blacks, or Asians, or Moslems, Ukranians, or Armenians, as victims of the violations of human rights, it doesn’t end with them.  The struggle against racism of any kind must, therefore, not be seen simply as a Jewish issue, or an Asian issue, or a Black or Moslem issue, or ethnic issue, but as a profound Justice issue of the first import.  The familiar words of the German Protestant theologian, Martin Niemöller, bear not only recall today, but acting upon them beyond today.

 

“They first came for the Catholics, but I wasn’t a Catholic so I did nothing.  Then they came for the Communists, but I wasn’t a Communist so I did nothing.  Then they came for the trade unionists, but I wasn’t a trade unionist so I did nothing.  Then they came for the Jews, but I wasn’t a Jew so I did nothing.  Then they came for me, and there was nobody left.”

 

For the words of Martin Niemöller should be amended to also read:

 

“They came for the Aboriginal people, but I wasn’t an Aboriginal so I did nothing.  Then they came for me, and there was nobody left.”

Lesson 7:       Bringing Nazi War Criminals to Justice – Impunity, Accountability, the Nuremberg Lessons

 

The presence of Nazi war criminals amongst us – fifty years after the Nuremberg Judgements – is a moral, juridical obscenity, an affront to conscience, a betrayal of everything that people fought for and died for.  Indeed, the word “war criminal” is itself somewhat of a misnomer.  For we are not only talking about the killing of combatants in the course of the prosecution of a war, but the murder of innocents in the course of the persecution of a race.

 

Indeed, an inquiry into the failure to bring Nazi war criminals to justice these past fifty years reveals that it resulted not from the absence of legal remedy, but from the failure of political will; that, not surprisingly, hundreds of modern war criminals from the killing fields of Bosnia, Rwanda, Haiti, and Somalia have found base and sanctuary in Canada; that major war criminals continue to allude the Ad Hoc Tribunals in former Yugoslavia and Rwanda; and that the proposal for an International Criminal Court may yet fall victim to the exigencies of politics rather than imperatives of justice.  And if you ask – why now – why after fifty years should Nazi war criminals be brought to justice – in Australia as in Canada – the answer is clear: That the combination of the passage of time on the one hand, and government in-action on the other, cannot, and should not, immunise the greater mass murderers in history from justice.  For what is involved here are moral/juridical principles of a fundamental character:

 

·         fidelity to Holocaust remembrance – to the victims and survivors – let alone the repudiation of the Holocaust Denial movement.  For if we do not bring Nazi War Criminals to justice there will be those who will say – as Holocaust Denier Ernst Zundel said in Canada – “You see, there are no criminals, therefore there could not have been any crimes”.

·         fidelity to the rule of law – for there can be no statute of limitations for the greatest crimes in  history.

·         fidelity to our citizenship – for those criminals who secured entry – and subsequent citizenship – by making and misrepresenting their crimes, should not now be able to enjoy that citizenship when – had we known of the criminality – we would not have granted them entry, let alone citizenship to begin with.

·         fidelity to international humanitarian law – for both international treaty law – and the general principles of law recognised by the community of nations – have called upon member states and the international community to investigate, apprehend, arrest and bring to justice, Nazi War Criminals.

·         fidelity to our children.

 

Lesson 8:       The Plight of Indigenous Peoples

 

If the Genocide Convention is a reminder and warning of “Never Again” – and Universal Declaration is expression and example of the human rights revolution – then the plight of indigenous peoples is a historic and continuing assault on our human rights sensibilities – a case that has yet to be significantly touched by the human rights revolution.  Indeed, year and year for example, the Canadian Human Rights Commission, in its annual report, has singled out the plight of the Aboriginal Peoples as the single most important human rights issue confronting Canada today; [iii] and year after year it has had to report that the condition of Aboriginal Peoples is a “national disgrace”.

 

Yet year after year the Canadian government – through them the Canadian people – failed to acknowledge, let alone apologise for,

 

·         attitudes and policies of racial and cultural superiority that led to a suppression of Aboriginal culture and values, a suppression of Aboriginal languages and identity, and the outlawing and prohibiting of Aboriginal spiritual practices and beliefs.

·         the disruption, dispossession, and even destruction of the once self-sustaining Aboriginal nations who had served as custodians of the lands, waters and resources of their ancestral homelands for thousands of years.

·         the removal of Aboriginal peoples from their traditional territory, their coercive relocation, and the undermining of their political, social and economic system of Aboriginal people and nations.

·         in a word, a legacy of “stolen generations” including, the most recent – and tragic revolutions – of the separation – and forced removal – of Aboriginal children to a Residential School system, whose suppression of Aboriginal language and culture and pattern of physical and sexual abuse – have left legacies of pain and suffering that reverberate in Aboriginal communities to this day.

 

Indeed, having regard to the legal of “stolen generations” – to what the Canadian government acknowledged included “destruction of Aboriginal nations” – and what the Australian Commission of Inquiry acknowledged here in Australia as being “act of genocide” – it is a remarkable tribute to the strength and endurance of the Aboriginal people that they have maintained their historic diversity and identity.

 

Finally, on January 7 1998 the Canadian Government, in what it called its solemn offer of reconciliation, formally apologised to the Aboriginal Peoples of Canada for this legacy – and tragedy – of dispossession and destruction of First Nations; and, in unveiling its aboriginal action plan for the future committed $C350 million for community based healing as a first step to deal with the legacy of physical and sexual abuse at Residential Schools.

 

And may I because now it has been done, commend the action of the Canadian Government, however belated it has been, to the Australian Government.  Because I must tell you I have found incredible parallels in the treatment of Aboriginal peoples in both Canada and Australia.  Perhaps it should not be surprising, because that has been the experience of victimisation of Aboriginal peoples wherever they may be.  And it would be behove the Australian Government to publicly say, as the Canadian Government has said, “we are deeply sorry” and to make a concrete and not just symbolic, but a concrete offer of compensation, where no compensation in its monetary character can ever indemnify the Aboriginals for the pain and suffering inflicted upon them. 

 

Accordingly, what is now needed – as the Canadian government has itself recognised – is a new cultural sensibility, a respect for difference, a politics and policy and inclusion.  What is required is a recognition of the Aboriginal peoples’ right to self-government and self-determination; a recognition of the unique status by reason of their historic presence as First Nations; a generous rather than a grudging or recriminatory respect for their Aboriginal Treaty Rights and Land Rights; a commitment to negotiate responsibly rather than litigate endlessly; a radical improvement of economic and social conditions on reserves; and reform of the justice system to accommodate the distinctiveness and sensibility of Aboriginal cultures; and the adoption of the Draft U.N. Declaration on the Rights of Indigenous People together with the implementation of the Program for the Permanent Indigenous Forums. 

 

I was advised just before I came this evening that Pauline Hanson is here speaking in Melbourne this evening and I was asked if I had anything to say to Ms Hanson by the media.  I began by making a disclaimer that anyone that comes from the outside into another society has to be very careful about even appearing to intrude on that society.

 

 

 

I allow myself possibility of making a riposte here, because the struggle for aboriginal peoples and for human rights is, as I said in my opening remarks, ultimately the struggle for ourselves.  What we will say and what we will do in Canada, Australia or elsewhere we will be making a statement about ourselves as a people, we will be making a statement as people. 

 

What disturbs me about Pauline Hanson, is her tapping into legitimate senses of frustration, alienation and grievance that many Australians have, caught up as they are in the vortex of globalisation, unemployment and fears of big business, big media, big banks and the like, it is true in Canada, it’s true here.  But her agenda it seems to me is not so much to help the weaker and vulnerable people of society in whose names she reports to speak or to help Australia generally as it is as much to manipulate. 

 

My daughter Gila mentioned the real test for human rights is to ask yourself the question anywhere is it good for children.  I want to say to Pauline Hanson your scapegoating of Aboriginal people, your stereotyping of the real victims, your manipulation of the good will of Australians and their desire for a fair go is not good for Aboriginal children, is not good for Australian children, is not good for Australia.  What you Pauline Hanson are doing is tragically manipulating the fears and the legitimate grievances of men and women here in Australia beset and burdened by unemployment.  But when you say that the special benefits given to Aboriginal peoples are responsible for unemployment, those who are suffering 24% unemployment and not just the national average of 8% unemployment then the only thing that I can infer from your remarks that this is the scapegoating of Aboriginals, this is the stereotyping of the victim.  This is the classic example of blaming the victim and it is time for Australians, men and women of good will to stand up and be counted to begin to unmask ‘Hansonism’.  To expose it for what it is, a right-wing extremist ideology that not only blames the victim, but seeks to manipulate the rest of Australia in the name of ‘Hansonism’ that as I said to the detriment of the children of Aboriginals, the children of Australians, the children and the people of Australia itself.

 

More specifically, it must include – as the federal government has said it will include:

 

·         a First Nations and Inuit language program to preserve and enhance the uses of aboriginal languages and culture;

·         a public education campaign to increase the understanding of all Canadians about Aboriginal culture and history;

·         a capacity building program to help Aboriginal communities design, develop and deliver services affecting Aborigine people.

 

As Dr. Ted Moses, Ambassador of the Cree to the United Nations, put it in his 1993 Address to the World Conference in Human Rights in Vienna,

 

“Mr. President, the indigenous peoples of North America have asked me to convey to this World Conference a most fair, modest and reasonable request: The indigenous peoples to ask to be accorded the same rights which the United Nations accords to the other peoples of the world.  We ask for no more and no less that this.

 

We ask simply that the United Nations respect its own instruments, its own standards, and its own principles.  We ask that it apply these standards universally and indivisibly, that it accord all peoples the same universally recognised rights, that it act without prejudice, and without discrimination based on race, religion, or colour.”

 

“All rights belong to all peoples” he concluded, presaging the celebrated indigenous protest against the failure of the World Conference – Canada included – to refer to the World’s indigenous peoples as peoples with as “s”.

 

Admittedly, some progress was made in Vienna.  The request for the establishment of a Permanent Forum in the United Nations for Indigenous Peoples was reflected in the Vienna Declaration.  The request to support approval of the draft U.N. Declaration on the Rights of Indigenous Peoples was adopted; and the request for a U.N. decade was accepted and eventually proclaimed by the General Assembly.

 

But five years later that Forum has yet to be implemented; the Draft Declaration – though approved by the Working Group on Indigenous Population and by the Sub-Commission on Prevention of Discrimination and Protection of Minorities – was not adopted at the recent meeting of the U.N. Commission on Human Rights; and the U.N. Decade countries to limp along.

 

In Canada, as Ted Moses put it, the Delgamuukw judgment was a step forward “but not nearly as large as people think”.  It still preserves the concept of “native title”, which Dr. Erica Dees, the U.N. Special Rapporteur on indigenous land rights, characterised as a “defective, vulnerable, and inferior legal status for indigenous lands and resource ownership”.  In summary, in Canada we have extinguished land rights, extinguished treaty rights, and notwithstanding Sparrow and Delgamuukw – have maintained an adversarial relationship between the aboriginal people and the government.  We must now look to - and work for - the implementation of this "solemn pledge of reconciliation".

 

Lesson 9:       The Rights of Children

 

If there is an atrocity that belies understanding - it is the wilful exploitation, maiming, and killing of a child - the most vulnerable of the vulnerable.

 

What, then, is one to say about the genocide - the mass murder - of children - the destruction of millions of universes, of generations yet unborn and never to be born.  As Bialik put it - writing after the Kishinev pogroms in 1905 which killed hundreds of children - "there is no revenge that can be invented for the murder of a child".

 

Indeed, the Nazi genocide was the genocide of millions of children, and 1.5 million children perished in the Holocaust of European Jewry.  But we have yet to learn from this most horrific of horrors, let alone act upon it.  Indeed, nowhere is the Dickensian character of the explosion of human rights, and the violations of rights, more demonstrated - and more dissonant - than in children's rights.

 

On the one hand, more countries have ratified the International Convention on Childrens' Rights more quickly than any other treaty; indeed, more have ratified it than any other treaty.  Yet many of the 190 states that have ratified the treaty continue to violate the rights of children in a massive way.  As a result, millions of children - the statistics are simply numbing - find themselves in alarming situations where they are as much hostages as they are victims.  Witness the following:

 

·         14 million children under the age of five die every year as victims of hunger, sickness, war or the inhuman treatment of adults;

·         five million children have been injured or disabled by war;

·         children make up more than half of the world's 19 million refugees;

·         200 million children under the age of 13 are forced to work with untold millions sold into slavery;

·         100 million children roam the street, one-fifth of that number in so-called "developed" countries;

·         800,000 child prostitutes alone "work" in Thailand, 500,000 in Brazil, 400,000 in India;

·         millions of children the world over are subjected to arbitrary detention, torture, cruel, inhuman and degrading treatment and execution;

·         "child soldiers" as young as seven are being trained and incited to rob, terrorise, and sometimes even kill civilians;

·         20,000 children die of preventable diseases every day.

 

But statistics not only numb the pain; they also obscure the tragedy.  And while no revenge has been created to avenge the murder of a child, there are things that can be done, such as the following:

 

1.                  the enforcement of recently amended Canadian legislation authorising prosecution of Canadians who traffic in sex abroad.

2.                  The drafting of a new set of international standards and enforcement mechanisms to protect against child prostitution, child pornography, and the sale of children.

3.                  The drafting of new ILO Convention prohibiting child labour.

4.                  The development - in concert with the private sector - of codes of conduct and programs to combat exploitative child labour.

5.                  The development of partnerships between governments, NGOs, trade unions, and the private sector for the co-ordination of a comprehensive policy for the protection of children's rights.  As for us - we must ensure that children's rights are at the core of whatever we do - and therefore, of who we are.

 

Lesson 10:     International Women's Rights

 

The Genocide Convention of World War II - and the genocides since - have included horrific crimes against women.  Moreover, these crimes have not only attended the genocide or been in consequence of it, but have in fact been in pursuit of it.  Yet they remain the still unarticulated horror of the Holocaust, and the genocide of European Jewry.

 

Fifty years later, that lesson remains to be learned - and acted upon.  The struggle for international women's rights, then, must be a priority on the justice agenda.  The notion that women's rights are human rights - that there are no human rights without women's rights - must be not only a statement of principle, but an instrument of polity.  As UNICEF recently reported, "discrimination against women is an injustice greater than South Africa's Apartheid." [iv]   Charlotte Bunch dramatically summed up this particular priority and principle in one pithy statement as follows: "significant numbers of the world's population are routinely subject to torture, starvation, terrorism, humiliation, mutilation and even murder simply because they are female." [v]

 

What follows below is a six -point expose of some of the more urgent instances of systemic discrimination and violence against women that must be addressed, and redressed [vi] , including:

 

1.       Political Participation and Enfranchisement of Women: Women are excluded from, or severely under-represented in, political, social and economic decision-making processes.  For example:

 

·         Women make up fewer than 5 percent of the world's heads of state, heads of major corporations and top positions in international organisations such as the United Nations.

·         Only 11 percent of the world's parliamentarians are women.

·         More than 80 percent of government middle-management positions are occupied by men even though there are large numbers of women at the lower administrative levels.

 

2.       Promotion and Protection of Social and Economic Rights of Women:  In developing countries, women have limited access to land, employment, credit, food and family resources, particularly concerning health and education; while the work of women internationally is undervalued and underpaid compared with that of men.  For example:

 

·         Women in many developing countries work an average of 69 to 90 hours a week.  In Africa, Asia and the Pacific, women work an average of 12 to 13 hours a week more than men and are often unpaid or paid considerably less for it.

·         Women worldwide get 30 to 40 percent less pay than men for the same work.

·         It is estimated that if women's unpaid work was counted as productive in national accounts, measures of global output would increase 20 to 30 percent.

·         In virtually all countries, most illiterate people are female.  One hundred and eighty million women are illiterate in India alone.

·         Or, as the Report of the World Health Organisation put it, "in many countries girls are fed less, breast fed for shorter periods of time, taken to doctors less frequently, and die or are physically and mentally maimed by malnutrition at higher rates than boys."

 

3.       War Crimes Against Women in Conflict Situations - indicating massive systematic rape, sexual torture and forced impregnation:  Crimes of violence against women are under-reported in peace time and even more so during war and other situations of conflict.  Indeed, atrocities against women by government security forces or other armed groups often occur on a massive scale and include single or gang rapes, sexual torture and forced impregnation, both inside zones of conflict and in detention.  In spite of the fact that the international humanitarian law offered women special protection against rape, enforced prostitution and indecent assault, no such crimes were ever prosecuted in the Nuremberg or Tokyo prosecutions; while the data from contemporary conflicts is chilling:

·         80 percent of the world's 20 million refugees are women and children.

·         In Bosnia-Herzegovina, Bosnian Serbs - and not only them - have been charged with "massive systematic rape … as an extension of 'ethnic cleansing' to terrify the population."  Estimates of the incidence of rape range from 20,000 to 60,000 cases.

 

4.       Domestic Abuse Against Women in the Family:  Violence against women is common inside the family, but has tended to be hidden, denied or condoned by legal systems and traditions which give women no protection or recourse.  The most serious cases involved: wife-burning, dowry deaths, the killing of female foetuses or infants (because the males are considered more desirable), death from aggravated beatings and murder.  Other examples include:

·         One-third to one-half of women in developing countries report being beaten by their partners.

·         In Cochabamba, Bolivia, 7 percent of child prostitutes questioned said that they had run away from violent homes where male relatives had beaten and raped them.

·         In Europe and North America, wife abuse is reported to be the leading cause of injury among women ages 15 to 40.

·         In parts of Canada, eight out of ten native women reported being beaten by their spouses.

 

5.       Denial of Women's Bodily Integrity and Respective Rights: where women lack the authority and autonomy to control their own bodies.  Violations of women's bodily integrity vary from one region to another but include botched abortions, female genital mutilations, forced pregnancies or forced sterilisations, sexually-transmitted diseases such as AIDS, compulsory dress codes and discrimination in the allocation of food.  For example:

·         Female genital mutilation continues to be performed in approximately 40 countries, mostly in East and West Africa and parts of the Arabian Peninsula, and in some countries in Europe and North America because of migration.  Between 80 and 100 million women alive today have been subjected to the practice.

·         25 percent of the world's women have access to abortion only if their lives are endangered.

·         The U.N. report says 200,000 women die every year in botched abortions where safe, sanitary procedures are illegal.  This is the leading cause of death for Latin American women ages 15 to 35.

 

6.       The Global Phenomenon of Violence Against Women:  Where, in addition to the violations of human rights that equally affect men and women, women face specific violent abuses that have often been ignored by the human rights community: forced childbirth and forced sterilisation, sexual slavery, rape, genital mutilation, female infanticide, domestic violence, sexual harassment.  For example:

·         Each year more than one million female children die in Bangladesh, India, and Pakistan "simply because they are born female."

·         A recent study indicates that based on expected sex ratios, the world population is short by about 60 million women, apparently because of the selective abortion of female foetuses, female infanticide, the withholding of medical care and food from girls and women and from beatings and wife murder.

 

Indeed, a review of the random international statistics of violence against women reveals that such international violence against women is as shocking as it is staggering.  Nor should one assume that discrimination against women in general, or violence against women in particular, or the violations of rights of children, can be regarded, smugly or condescendingly, as a "Third World Phenomenon", as if, assuming that the claim were true, it would be grounds enough to ignore or be indifferent to the problem.  For here in the "First World", in the U.S. and Canada, the facts are horrifying enough:

 

·         In the U.S., battery is the leading cause of injury to adult women, and a rape is committed every six minutes;

·         In Canada, one of every four women will be sexually assaulted during her life, three sex assaults are reported every hour in Canada, 56 percent of women are afraid to walk in their own neighbourhoods after dark (as compared to 18 percent of men);

 

Therefore, advocates for women's human rights must call upon governments and intergovernmental bodies to do the following:

 

1.                  Implement the Beijing Declaration and Platform for Action including the recommendation to fully integrate the human rights of women throughout all policies and programs.

 

2.                  Work toward ratification of the Declaration on the Rights of Human Rights Defenders (officially called the Draft Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms).

 

3.                  Outlaw all forms of discrimination against women by ensuring ratification and implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (the Women's Convention) immediately.  This should also include the removal of reservations to the Women's Convention; the bringing of national laws and policies into compliance with the Convention; and the adoption of a strong optional protocol to the Women's Convention establishing a right to petition.

 

4.                  Ensure women's right to live free from violence by:

·         Taking concerted and systematic action to end violence against women in the home and family through all necessary means.

·         Recognising that gender-based violence and discrimination, and the reprisals women experience when they resist such oppression, can constitute persecution; and that such persecution should therefore be considered as grounds for a "well-founded fear of persecution" in refugee and asylum claims.

·         Eliminating gender-based persecution in situations of war and armed conflict, while providing justice and reparations to victims of such persecution.

·         Working toward establishing an effective and independent International Criminal Court involved a gender perspective throughout its statute, including authorising sexual violence and rape as crimes against humanity and war crimes.

 

5.                  Take steps to realise women's health, including their reproductive and sexual rights by:

·         Ensure the realisation of women's right to the highest attainable standard by physical and mental health.

·         Secure women's access to reproductive and sexual health and rights.

 

6.                  Secure women's economic, social and cultural rights.  This should include, inter aliaI

·         Guaranteeing women's right to development, by providing women with equal access to economic resources, and protecting their rights in law, policy, and practice to own property, to equal inheritance, and to land tenure, credit and training.

·         Securing literacy for every woman and girl by ensuring equal access to education, including human rights education and legal literacy.

·         Enforcing women workers' rights on the basis of equality, non-discrimination and due process, including the right to organise, to bargain collectively, to health and safety protection and to a living wage.

 

Lesson 11:     Workers’ Rights

 

The ILO has 176 Conventions and 183 Recommendations covering a wide range of issues in the world of work.  Seven of these Conventions are now considered by the international community to be fundamental human rights, and should be promoted and protected as such.

 

1.                  (No. 29): Forced Labour Convention (1930): Requires the suppression of forced or compulsory labour in all its forms.  Certain exceptions are permitted, such as military service, convict labour properly supervised, emergencies such as wars, fires, earthquakes …

2.                  (No. 87): Freedom of Association and Protection of the Right to Organise Convention (`1948): Establishes the right of all workers and employers to form and join organisations of their own choosing without prior authorisation, and lays down a series of guarantees for the free functioning of organisations without interference by the public authorities.

3.                  (No. 98): Right to Organise and Collective Bargaining Convention (1949): Provides for protection against anti-union discrimination, for protection of workers' and employers' organisations against acts of interference by each other, and for measures to promote collective bargaining.

4.                  (No. 100): Equal Remuneration Convention (1951): Calls for equal pay and benefits for men and women for work of equal value.

5.                  (No. 105): Abolition of Forced Labour Convention (1957): Prohibits the use of any form of forced or compulsory labour as a means of political coercion or education, punishment for the expression of political or ideological views, workforce mobilisation, labour discipline, punishment for participation in strikes, or discrimination.

6.                  (No. 111): Discrimination (Employment and Occupation) Convention (1958): Calls for a national policy to eliminate discrimination in access to employment, training and working conditions, on grounds of race, colour, sex, religion, political opinion, national extraction or social origin, and to promote equality of opportunity and treatment.

7.                  (No. 138): Minimum Age Convention (1973): Aims at the abolition of child labour, stipulating that the minimum age for admission to employment shall not be less than the age of completion of compulsory schooling.

 

Lesson 12:     The Right to Food

 

It is another case study of the Dickensian character of the human rights universe that we have over 100 international instruments that purport to promote and protect the right to food.  Yet this internationally guaranteed rights has meant little to the hungry.  It shields neither the famine victim, nor the victim of armed conflict, nor the welfare mother from the calamity of food shortages.  In continues to lie dormant in unimplemented treaties and unread or unused legal doctrine.  It thus becomes our legal responsibility to make the elimination of hunger and the right to food the focal point for both our domestic and international justice agendas, the message and the metaphor of the human rights revolution of the twenty first century.  In the words of the 1980 US Commissioner on Hunger: "Whether one speaks of human rights or basic human needs, the right to food is the most basic of all.  Unless that right is first fulfilled, the protection of all other human rights becomes a mockery for those who must spend all their energy merely to maintain life itself.  The correct moral and ethical position on hunger is beyond debate.  The world's major religious and philosophical systems share two universal values: respect for human dignity and a sense of social justice.  Hunger is the ultimate affront to both.”

 

Lesson 13:      Raoul Wallenberg and the Courage to Resist

 

Finally, as Raoul Wallenberg demonstrated, it was possible to resist, to confront evil and to prevail.  The problem was that there were too few Wallenbergs; indeed, as Elie Wiesel has reminded us, the world hid the story of the true Wallenberg - lest it embarrass us all - lest it demonstrate that one can confront evil and prevail.

 

And so each one of us here has an indispensable role to play in the indivisible struggle for human rights and human dignity.  Each person can and does make a difference.  And if we ever get tired or fatigued - burnt out to use the popular metaphor - then let us remember that this one Swedish non-Jew named Raoul Wallenberg saved more Jews in the Second World War than any government; that one Andrei Sakhorov, stood up against the whole Soviet system and prevailed; that one individual, Nelson Mandela, 28 years in a South African prison, nurtured the dream and emerged to bring about the dismantling of apartheid; that one woman Rigoberta Mench, galvanised the global plight of indigenous peoples; that one movement - the women's rights movement - energised, mobilised, ignited the whole of the human rights movement.

 

This, then, must be our task: to speak on behalf of those who cannot be heard; to bear witness on behalf of those who cannot testify; to act on behalf of those who put not only their livelihood - but their lives - on the line.  And so may the Nuremberg legacy - and the 50^th anniversary of the Universal Declaration of Human Rights and the Genocide Convention - be not only an important act of remembrance, which it is, but may it also be a remembrance to act - which it must be.

Unedited Section of Professor Cotler’s speech relating to Pauline Hanson at B’nai B’rith Anti-Defamation Commission and The Australian Institute of Jewish Affairs Sir Zelman Cowan Annual Oration.

 

I was advised just before I came this evening that Pauline Hanson is here speaking in Melbourne this evening and I was asked by the media, if I had anything to say to Ms Hanson.  I began by making a disclaimer that anyone who comes from the outside into another society has to be very careful about even appearing to intrude on that society.

 

I allow myself the possibility of making a riposte here, because the struggle for aboriginal peoples and for human rights is, as I said in my opening remarks, ultimately the struggle for ourselves.  What we will say and what we will do in Canada, Australia or elsewhere, we will be making a statement about ourselves as a people, we will be making a statement as people. 

 

What disturbs me about Pauline Hanson, is her tapping into legitimate senses of frustration, alienation and grievance that many Australians have, caught up as they are in the vortex of globalisation, unemployment and fears of big business, big media, big banks and the like.  It is true in Canada, it’s true here.  But her agenda it seems to me is not so much to help the weaker and vulnerable people of society in whose names she reports to speak or to help Australia generally, as it is as much to manipulate. 

 

My daughter Gila mentioned the real test for human rights is to ask yourself the question anywhere.  Is it good for children?  I want to say to Pauline Hanson that your scapegoating of Aboriginal people, your stereotyping of the real victims, your manipulation of the good will of Australians and their desire for a fair go is not good for Aboriginal children, is not good for Australian children, is not good for Australia.  What you Pauline Hanson are doing is tragically manipulating the fears and the legitimate grievances of men and women here in Australia beset and burdened by unemployment.  But when you say that the special benefits given to Aboriginal peoples are responsible for unemployment, those who are suffering 24% unemployment and not just the national average of 8% unemployment then the only thing that I can infer from your remarks that this is the scapegoating of Aboriginals.  This is the stereotyping of the victim.  This is the classic example of blaming the victim and it is time for Australians, men and women of good will to stand up and be counted to begin to unmask ‘Hansonism’.   To expose it for what it is, a right-wing extremist ideology that not only blames the victim, but seeks to manipulate the rest of Australia in the name of ‘Hansonism’ that as I said is to the detriment of the children of Aboriginals, the children of Australians, the children and the people of Australia itself.