Louise Arbour on the ICC, Peace and Justice

Louise Arbour, the former UN High Commissioner for Human Rights and Supreme Court of Canada justice, recently sat down with UBC President Stephen Toope at the Frederic Wood Theatre in UBC. The subject of their conversation: speaking truth to power.

Stephen Toope: I read a biography of you that made the claim that having grown up in Quebec, being taught primarily by nuns, you had “no significant contact with people who did not share your religion, language, culture, and gender.” So how does one go from that experience to being a world figure thinking about issues that transcend gender, culture and language?

Louise Arbour: I knew you were going to ask me questions that would require a lot of introspection, which I’m not very good at. Actually, not only was I raised in that kind of now pretty ancient type of educational environment – in a girls convent Catholic school, essentially until I went to law school – but, as I’ve told the story many times since then, I wore a uniform until I went to law school in that convent. As a result of which, I swore that I would never wear a uniform ever again, which ruled out joining the army, amongst other things. But then of course, I joined the judiciary, and then I wore a uniform again for another 15 years. So, in some ways, you don’t escape your past. In other ways, I think in a very profound way, I have moved on from again, an education that was very homogenous.

But why? I don’t know, I went to law school. I’ve told also an anecdote for law students, you’ll probably find quite interesting. On the first day of law school, usually the dean comes and makes a speech that’s supposed to intimidate you, or make you feel very special that you’ve now joined this great elite profession. Our dean made this very traditional speech. The one thing he didn’t say, of course which would never have occurred to him, is that in that room as he spoke to us, three of us would end up in the Supreme Court of Canada, and one of them was him. That was Jean Beetz, who is a very marvelous man and I don’t think it would have occurred to him at that point that he eventually might end up on the Court.

But what was even more unimaginable, is that there were two students entering this first-year class, who would not only end up in the Supreme Court of Canada but none of us would be representing Quebec. This was so unimaginable. The other one was Michel Bastarache, who was appointed to the Supreme Court of Canada from the Maritime provinces, and in my case from Ontario.

I think, not to answer your question because it was too introspective – it requires enormous imagination to be able to contemplate – well I don’t even think there’s enough imagination to contemplate some of the things you can actually do. Sometimes they just come to you by circumstances.

Toope: It’s all luck.

Arbour: Well, some of it is luck.

Toope: You’ve said in the past that the moment in 1970 with the passage of the War Measures Act was a moment when your political consciousness was really exercised perhaps for the first time. Tell us a little bit about that and the impact it had on you.

Arbour: It had a very profound impact. At that point, I was an articling student preparing for the Bar admission course, and I was articling with the legal department of the city of Montreal. This is where it was all happening, this very traumatic phase of our history.

Traumatic as it was, I think to see the potential lethal force of, what now would definitely be called a terrorist movement, we didn’t even talk very much in those terms in those days, but a very radical movement which was using violence to advance a political agenda. As frightening and disturbing as that was, in my opinion, the response of the authorities was even more startling and frightening.

As you know, the War Measures Act was enacted over a night. So basically, you live in one city one night, and the next morning every police station, every federal building had soldiers in camouflage outfits standing outside the door. This was, again, unimaginable until it happened. To me this was maybe – it’s the route that I can trace to my sense that grave threats come from potential abuse of power.

Toope: I must admit I remember that period so well as I lived on the west island of Montreal, but I went downtown two days after all that happened and I remember seeing snipers from the top of Mary, Queen of the World Cathedral and thinking this is not the country I think I live in. It was a very powerful moment.

You’ve played many different roles over the years, and the theme that we’re pursuing is speaking truth to power. You’ve been a lawyer, an advocate, a very distinguished judge, a world civil servant, a prosecutor at the world level. You are now heading a major international non-governmental organization. Do you think there’s a division of labour in speaking truth to power? In the different roles you’ve had, do you feel you’ve had to adopt different approaches in speaking truth to power, or is there some consistent theme?

Arbour: The first thing I’m going to say you may find very surprising. As much as it is celebrated as an act of intellectual or moral courage to, quote, “speak truth to power,” in my personal view that’s not the hardest. Because you are very rarely alone when you speak truth to power. You have a community of like-minded friends and colleagues, and that is enormously comforting. So it’s not a very lonely exercise.

The hardest part is to disagree with your friends. That is very hard because then you feel very alone. So if as a feminist, for instance, on a particular issue you feel you have to take a slightly different position from where the majority is leading. Years ago, in fact I think I was here in Vancouver at a conference where one of the big tensions in the feminist movement was censorship- the anti-pornography movement. So women were very divided between those who believed that women should support the censorship of pornography and women who believed that as a progressive movement, feminism should be supportive of freedom of expression.

On these divisive issues, sometimes it’s a lot harder to part from your friends, particularly if you care about maintaining the friendship or relationship. So in that sense it’s not speaking truth to power, it’s having that kind of courage to depart from your friends. It’s lonelier and it’s harder.

So I haven’t answered your question at all, this is becoming a habit in this dialogue.

Toope: But the answers are so interesting it doesn’t really matter.

I’m curious – you’ve had to think a lot about the evolution of human rights and we were talking earlier about the extent to which social economic and cultural rights. We still have enormous trouble, even within large parts of the human rights movement, if you can call it that, really giving full validation to those rights. I’m wondering in all of the experiences you’ve had trying to articulate the case of human rights internationally and domestically. What do you see now as perhaps the greatest challenge or challenges that we face in furthering the cause of human rights? What are the presenting issues right now?

Arbour: It’s hard to pick one, as you know there are a lot of challenges. One I think is to reconcile the human rights community itself with the full scope of the agenda. I remember again, many years ago before I worked internationally on these issues, even here in Canada. It was probably because of my exposure to the War Measures Act, I think, the only organization I’ve ever joined is the Canadian Civil Liberties Association.

Subsequently, and I won’t share the details of the context in how that took place, but one of my judicial colleagues said to me one day quite dismissively, “Oh you’re civil liberties, we’re human rights.” I said, “Oh, where does that come from?” Meaning, we are interested in and by human rights. That particular colleague meant equality, but, “You’re only interested in the rights of the accused. You’re a kind of civil liberty person.”

So I think there is a fracture within the human rights community. So the first thing we should do is try to unite those who are proponents of equality, those who are proponents of fundamental rights and freedoms, and those who are championing as we all should, economic and social rights as fundamental human rights. That’s one challenge.

The second one of course, at the international level, is something that I tried when I was the high commissioner. I thought I was being very subtle, but obviously not subtle enough because the opposition was massive and I failed. To create adequate institutions. We don’t have an international human rights court, and as long as the protection of human rights is in the hands of duty-bearers, the states – not surprisingly, we’re not going to get very far. And as you may recall, this is highly specialized but I tried to promote the unification of the treaty bodies towards eventually having an international human rights court. So I think we have enormous institutional challenges, so that rights are not only declared, and celebrated and so on, but they start being enforced.

Toope: One of the things I think has been a constant throughout your entire career, whether you’ve been an advocate, a judge, or an international civil servant, is an interest in incarceration and an interest in the whole area of rights of prisoners. It goes back to 1996; I think you led a very important inquiry related to the prison in Kingston.

I remember talking with you when you were High Commissioner for Human Rights around questions related to secret detention arising from the war on terror, and the group I was chairing then, the Working Group on Enforced or Involuntary Disappearances. Part of your mandate was really focused on that issue, and of course more recently you’ve been part of a high-level panel that is looking at anti-drug policy, the so-called war on drugs. There’s a lot of wars going on – terror, drugs etc. [Laughs]

The question I want to ask is – we see in Canada now an omnibus bill bringing forward increased sentences, mandatory minimum sentences… It’s speculated that this will result in significant increases in the numbers of prisoners, we’re talking about building more prisons, etc. Is that something in your experience that we as Canadians should be concerned about? What are the issues we should be asking the government about to hold them to account?

Arbour: First, let me say something about mandatory sentences. I really feel, in terms of criminal law policy, minimum sentences generally are adequate to respond to the wide range of varieties of circumstances through offenders present to the courts. The fundamental principle in sentencing is that the sentence should fit the crime and the criminal. Mandatory minimum sentences invariably, at the edges, will produce injustices. It’s very difficult to even hope to rehabilitate somebody who cannot be persuaded for good reasons that he or she is fairly treated. I think the fundamental step towards rehabilitation and towards sending a proper example, including through deterrence, is having a system in which people accept the fairness of the way they’ve been treated.

Just as a footnote on that, when I was a trial judge I was asked one day to come to my son’s school. It was parents day, professional day – it was very funny. So some of us were there representing different professions. I was on a panel like this. Students would come in, one class after another and my son was I think in grade four or five. Then, his class came in, and they asked questions. So I explained that I’m a judge. One kid said, “Do you send people to prison?” And I said, “Yes.” One child said, “Are you scared?” I said, “Why do you think I could be scared?” “Are you scared that the bad guys are going to come back and hurt you?” I said, “No, actually. There is no reason to be scared.”

I just had to explain to him what I had never really reflected upon. People accept the sentences because they’re fair. They understood. They were caught. If they’re treated with at least a minimum of respect and given an opportunity to present their case, they will accept the consequences.

The other question was, “How much money do you make?” [Laughs] Just to finish this anecdote, I said, “Actually, honey, usually it’s not a very appropriate question. People don’t really like to talk about these things. But actually, in my case, I will tell you how much money I make because first of all my salary is fixed by law, and secondly it’s your parents’ together as taxpayers that contribute to my salary.” So after this long, rambling answer, I said whatever it was in those days – something like $125,000 a year. I came home that night, my son said, “You’re so cheap.” [Laughs] “You make all this money and you give me what, five bucks?” [Laughs]

Minimum sentences – extremely bad I think for all the objectives of the criminal justice system. Prisons – when I did the inquiry into the prison for women, I discovered – and I taught criminal law – I discovered a provision in what was then called a correctional services act, I forget what it’s actually called today. It said, essentially, that judges had a right to enter any prison, any federal penitentiary, any time with reasonable notice. Nobody had ever told me that. When I was appointed a judge, I was given a whole set of manuals and instructions about all kinds of things, but nobody ever said to me you could go and knock on the door and go and visit penitentiaries.

So in my report I recommended that newly appointed judges should be made aware of this provision and should consider it a personal duty. If they were ever to do criminal law and sentence anybody to jail, they should just go and see what it looks like. Just as a minimum awareness of the circumstances.

And you said in your questions that the government may have to build new prisons in light of that. I saw in the news this morning that actually the federal government is closing two penitentiaries – Kingston Pen, the maximum security male prison, and Le Claire Institute in Montreal, which I think is a medium security prison. I have a lot of faith in the administrators of the correctional service – they must have all kinds of statistical models upon which they can anticipate an actual reduction in the number of inmates they’ll have to deal with, even though they’re increasing mandatory jail sentence.

But what was very striking to me, maybe because I’ve worked in this field, is I listened to the minister who made the announcement, and he had a lot to say about how this would or would not affect correctional service employees, how they would have other jobs, and so on. There was not a single word about how this would affect, for better or worse, the inmates that are under the care of the authorities.

For some of them, it may be better. They are housed in a dungeon, basically. Kingston Pen was built in the 19th century. So maybe it’s better, maybe for some of them it will be worse because they may be moved to a region that will be farther away from home, they’ll have fewer family visits. I don’t know, and frankly it’s not so important what would have to be said, but I think when the authorities have the responsibility of housing people who have been deprived of their liberty, perfectly adequately so, it’s incumbent on them to at least show that they have some awareness that they have a responsibility towards them as well.

Toope: Back to the international arena, it’s been a tension or at least a potential tension in people’s minds for quite awhile that international justice has to find balancing between what is sometimes referred to as justice versus peace. You were at the heart of some of these discussions during the prosecution of Milosovic. Some NATO allies took the approach that it was unhelpful and inappropriate to prosecute Milosovic because it was going to make it harder to settle in the longer term the tensions in Serbia and the region in the former Yugoslavia.

Has your thinking on that changed at all? You chose obviously to move forward with that prosecution thinking it was the right thing to do. Do you ever have doubts that maybe international prosecutions do make peace-seeking harder?

Arbour: Absolutely. In my current position, I see it all the time. So let me go back. When I indicted Milosovic, I had a job to do. I was not a peacemaker, I was not a politician – I was a prosecutor. I had a mandate from the United Nations Security Council to investigate and prosecute those most responsible for the most serious crime. He was a head of state, and I indicted him for about 250 counts of murder, persecution, deportation of his own population – very serious crimes.

The timing from my point of view was dictated exclusively by prosecutorial considerations. I was very concerned that a peace deal might be made through which he could be made to leave the region and be given shelter somewhere where he would be out of reach. So I felt it was incumbent on us as soon as we had enough evidence to bring an indictment for serious charges to protect the integrity of the justice initiative.

What it did to the peace process was none of my concern. This was not my brief. And then of course, I know that NATO was still bombing Yugoslavia and they were extremely, I’m told subsequently, agitated after we brought this indictment at the prospect that he would never then come to peace talks. While as it turned out, eight days later, he surrendered.

But to me, there’s no lessons learned from that exercise. Because there’s no critical mass – that’s one case. It does not follow from that if you indict a head of state while in office, eight days later he’s going to sign a peace deal. In fact, I think the indictment of Gadhafi, which was very precipitous; I think it’s fair to say. The Security Council referred the case to the ICC and within three weeks or a month he was indicted. It’s not an unfair assumption to think that it might have contributed to closing some doors to a negotiated settlement. I can’t say it did, but it’s not unreasonable to assume it made it more difficult, which frankly may have something to do with the fact that surprisingly in a sense, the same actors in the Security Council who referred the Libya case to the ICC have not moved on Syria.

In Libya, when the case was referred to the Security Council there were fewer than 300 people killed in Libya. Where over 9,000 in Syria, and nobody is talking about indictments or referrals. I think the tensions between peace and justice are still very present. In my view, they will remain so unless and until we segregate the justice agenda from the political one.

Toope: Well this gets into another interesting area – the International Criminal Court, a lot of the action there is focused on situations involving Africa. As you well know, there are many African leaders and indeed political thinkers in Africa who make the argument that somehow international justice is at least colour-interested, let’s put it that way. It seems more willing to engage with atrocities in Africa than in other parts of the world.

Is that in your view, you can challenge the analysis, but if there’s any hint of truth in that, is it because Africa doesn’t matter politically? Or is there something else going on?

Arbour: I think this would have been eminently predictable that the docket of the ICC would be heavily African. First of all, apart from these cases that I’ve mentioned, where the cases were referred to the court by the Security Council, that is in Darfur and in Libya – two instances, all the other cases come from countries that have ratified their own treaty. So that is the fundamental premise for the International Criminal Court to have jurisdiction: the country has to have ratified. As it turned out, African countries ratified in very large numbers, to their credit.

So yes, that’s true, the ICC was not engaged when, in my opinion and according to all the evidence, the massive slaughter of civilians on the beaches of Sri Lanka. Well, Sri Lanka has not ratified their own treaty. So many African countries have ratified.

Secondly, the ICC can only be activated as a sort of complimentary, secondary jurisdiction. It only gets activated if national authorities are either unwilling or unable to take the case themselves. Well, again, not surprisingly, the judicial capacity in many developing countries is very weak.

Thirdly, there are still lots of armed conflict raging on the continent – much more so than in Latin America, for instance. So it was not all that surprising. But what follows from that is the ICC might have been better advised, rather than try to downplay that to really embrace it and engage with African governments. Open offices. Be there, be very present. As opposed to staying in the Hague and feeling very defensive against an accusation that it’s only interested in African issues.

So I think it may very well be that some correction will have to be addressed. But I think that is the kind of legal and factual reality, and it’s a question of prosecutorial strategy to deal with that in a positive fashion.

Toope: Of course in your own work, you’ve certainly not focused only on situations in Africa, nor does the International Crisis Group. You’ve spoken publicly on a number of occasions about your concern as to the effect of the so called war on terror, actions of western governments – the United States, but not only the United States – upon the international human rights framework. Are you concerned – now that some time has gone by after Sept. 11, 2001, and all of its implications – are you still concerned the war on terror is a fundamental undermining of human rights, law, policy and action today, or is there a rebalancing going on?

Arbour: I hope that we’re seeing a slight rebalancing. But maybe one of the most tangible perverse effects of the war on terror that I just mentioned is the treatment of the war in Sri Lanka. In 2009, the last few months of the 30-year-old war whereby the government of Sri Lanka finally eradicated the LTT, I think was achieved at an unconscionable cost to civilian lives, which generated virtually no adverse response because it was set under the agenda of the war of terror.

The LTT had been depicted, quite accurately I might add, as a terrorist organization which had preyed on its own population. There’s not much to be said very positively about its methodology. In fact, I think a lot of the casualties in the last few months of the war are attributable to the LTT itself. It’s not just government forces. But the way this was achieved I think would have been intolerable had it not been under the umbrella of one of the few so-called “success stories” of the  war on terror.

This is a very tangible perverse effect of that entire political philosophy. The erosion of norms, including direct attack on the absolute prohibition of torture set us back I think decades, and it’s going to take a long time to recover from the planting of a doubt whether there are circumstances when torture might be appropriate. After decades of battles to establish an absolute norm. Same thing with incommunicado detentions, as you know better than anyone. So I think there was an attack on norms, and that takes a very long time to redress. Because of the desirability of the objective, being the war on terror, all kinds of practices were swept under the rug. And I think it’s going to take a very long time before the veil of secrecy is lifted, and we start knowing how much was really done allegedly on our behalf and for our protection under this doctrine.

Toope: So my last question before asking some colleagues to come up and pose some different types of questions is really a follow-up from that. You’ve highlighted Sri Lanka as a place where we should be paying more attention. In your capacity as the head of the International Crisis Group, what other world situation might you pick out as an area where the world is really missing the boat? You mentioned Syria, there’s a certain amount of attention on Syria, if not action. But where are we not paying attention where we really should be?

Arbour: Well there are a lot of places. I think currently, we should be very concerned about deterioration of the situation in Sudan. There was a sense of relief, less than a year ago, with the very peaceful declaration of independence of South Sudan, which could have had much more violent circumstances. But now I think there’s a tremendous reversal in the possibility of a resumption of war between Sudan and South Sudan.

The whole horn of Africa is I think still very problematic. Somalia, the tensions between Ethiopia and Eritrea have not resolved – so that entire region is very problematic. The fallout from Libya… we’ve seen that Mali is not unconnected with the demise of the Gadhafi regime, which had to some extent encompassed some of the Tuareg in the Libyan army, thereby relieving the pressure for that secessionist movement in the north of Mali.

So there are a lot of dangers there, I think. There is, certainly in the opinion of our field colleagues who work in the region, a very disturbing authoritarian drift in central Africa – Burundi, Rwanda, Uganda, and the Democratic Republic of Congo, which underwent elections that were fraudulent on a very large scale. These are very troublesome regions.

There are other regions about which we hear nothing. Certainly, I think in this country where there is no connection. Central Asia: Kyrgyzstan, Tajikistan, and Turkmenistan – regions where there is a very severe decay in institutions, political institutions, infrastructure, and tremendous ethnic tensions. So it may not be around the corner, but this is a region that, compared to the Middle East or Africa, is getting currently no attention whatsoever.

We say it’s just a matter of time, unless there’s more engagement, before we see very severe deterioration.

Photo courtesy of Reuters