Canadian Jewish Political Affairs Committee
Pursuing Justice

Pursuing justice

Jul. 21, 2008

Probably the first reaction on meeting Prof. Irwin Cotler is the feeling that the Canadian MP is no hard-bitten politician. Educated at McGill University and Yale, much of Cotler’s professional life has been devoted to a three-decade career as a distinguished scholar and McGill professor of human rights and constitutional law.

The Montreal-born Cotler embarked on a political career in 1999, when he won a seat in the House of Commons representing the federal riding of Mount Royal near his birth city. A member of the left-of-center Liberal Party, he served as justice minister and attorney-general between 2003 and 2006. His Liberal record – as justice minister he appointed the first aboriginal judge to an appellate court, wrote Canada’s first legislation against trafficking in women and children and enacted legislation giving gays and lesbians equal access to civil marriage – comes alongside decades of Jewish and pro-Israel activism.

Relegated to the opposition since the Conservative electoral victory in January 2006, Cotler has been opposition critic for human rights since January 2007, bringing to the job the experience of one of his country’s most prolific scholars on human rights law.

Today, at 68, Cotler is as active as ever. By the end of the summer, he expects to have completed, together with a team of lawyers, a model indictment of Iranian President Mahmoud Ahmadinejad on charges of incitement to genocide. He serves as honorary co-chairman and active campaigner for Justice for Jews from Arab Countries and chairman of the Save Darfur Parliamentary Coalition in Canada. And he is co-founder with British MP John Mann of the Inter-Parliamentary Coalition for Combating Anti-Semitism, which will bring parliamentarians from around the world to London in February for the first anti-Semitism conference to be hosted by the British Foreign Office.

PERHAPS IT is not strange that after a lifetime of teaching and practicing law, Cotler places his trust in the capacity of law and the international institutions that uphold it as the backbone for all these initiatives.

Yet the mild-mannered scholar has also served as an active politician for almost a decade now, and must know the harsh realities of international politics. The first question The Jerusalem Post asked him in a recent interview was: Where does his seemingly quixotic trust in international law and institutions come from, considering that international law is more often subverted by the likes of Libya and Syria than wielded against real abuses?

"Clearly I’m critical of how international law is invoked and applied," Cotler agrees, "but I have a trust in the legal process itself. My sense is that you do need a framework between peoples and states. Without an international law system, we will have a Hobbesian world of all against all. The need for law is clear. The question is how to make it effective."

Before getting into the question of how to fix what is broken, how did it break in the first place? For Cotler, the current state of international law is "a paradox." "On the one hand," he notes, "there’s been an explosion of international legal standard-setting, including the internationalization of human rights and humanization of international law, particularly since the adoption of the UN Charter and right up to the present time. On the other hand, violations of human rights continue unabated. If you ask the hungry of Africa or the imprisoned in Asia or the downtrodden in the Middle East, they feel this human rights revolution has passed them by. With the ethnic cleansing in the Balkans, the genocide in Rwanda, the genocide-by-attrition in Darfur – the first genocide of the 21st century – and the incitement to genocide by Ahmadinejad, people don’t feel this human rights revolution."

These new principles of international law are ignored or abused, he believes, "not only because it is unduly politicized, but also because there is no enforcement system. There are no parallels in international law to a domestic legal system’s executive, legislative and judicial branches."

The lack of enforcement has led to a "culture of impunity even for nations engaged in genocide. There is no doubt about what is happening in Sudan, just as in Rwanda nobody can say we did not know. We knew but we did not act. In Darfur, we know but are not acting."

Faced with this inaction, what, practically, can be done?

"There are remedies," insists Cotler, which he divides into three lessons of the recent past.

"One of the most enduring lessons of the past 60 years is the danger of state-sanctioned incitement to hate. This demonizing of the other took us down the road to the Holocaust, Rwanda and Darfur, even though Article 3 of the Genocide Convention contains a clear prohibition against the direct and public incitement to genocide, which was inserted for the purpose of preventing genocide, not just punishing it."

The second lesson "is the crime of indifference and inaction, of silence in the face of international criminality. One only has to look back at Rwanda and see with horror that this genocide was preventable. The lesson here is the necessity of political will. There’s been a lot of rhetoric on Darfur, but 450,000 have died, 2.7 million have been displaced and 4 million are on a life support system in desperate need of humanitarian assistance, and the killing fields have not abated. Yet the political will has not been found."

The third lesson is the "culture of impunity" surrounding international crimes. Cotler’s clearest example is the chilling story of Ahmad Harun, the Sudanese security official implicated in the planning and implementation of an annihilation campaign against villages throughout Darfur, a role that led to the issuing of an international arrest warrant against him by the International Criminal Court. The same Harun is now Sudan’s state minister of humanitarian affairs. After the arrest warrant against him was issued, Sudan promoted him to be the official responsible for hearing the human rights complaints of those he persecuted.

"None of these lessons have been learned," Cotler laments. But, he insists, this is not "a testament to the failure of international law, but of those entrusted with the responsibility of its enforcement."

THE FIRST step toward changing this situation is direct international intervention in cases of active genocide, as authorized by the Genocide Convention. "In particular, the international community two years ago adopted the Responsibility to Protect doctrine, which says that when a state is unable or unwilling to do something about the killing in its midst, or when a state is the author of those crimes, then the international community has a right and, importantly, an obligation to intervene. This important principle was adopted by the UN Security Council, which gives it the status of an international norm."

While direct intervention may be needed for an active genocide, preventive measures are also provided by international law to stop the earlier stage of incitement. Here Cotler suggests specific "international remedies" against the aggressive – "manifestly genocidal," as he puts it – intentions of Iranian President Mahmoud Ahmadinejad.

The world’s response to Ahmadinejad is "a dramatic case study of everything we’ve been talking about in terms of inaction," he says. "There is no shortage of international legal remedies, and most can be found in the Genocide Convention."

In Ahmadinejad’s regime, "we have an ongoing state-sanctioned incitement to genocide, including the use of epidemiological metaphors reminiscent of Nazism. I don’t like to compare anything to Nazism, but calling Israel a cancerous tumor, a stinking corpse, a filthy microbe, is clear and compelling evidence regarding violations of Article 3 of the convention. All state parties to the convention have a responsibility to enforce the remedies in that convention."

The remedies include, "at the most modest level, referring this incitement to the Security Council for account, as Iran is a state party to the Genocide Convention. The Security Council can also refer Ahmadinejad’s genocidal criminality to the International Criminal Court, as the ICC treaty also expressly prohibits incitement to genocide. It’s astonishing that, as we speak, not one state has taken this modest initiative."

Another remedy is to place Ahmadinejad on a travel watch list. "People inciting to genocide should at the very least face a travel ban. Ahmadinejad has announced he will attend the UN General Assembly in September. I want him to be declared an inadmissible person."

Under Article 99 of the UN Charter, Secretary-General Ban Ki-moon also has the authority to refer any threat to international peace and security to the Security Council. "What greater threat has there been in the past six years to peace and security than Ahmadinejad? Yet Ban has not done this, nor has any state even made a request that he do it."

These options, Cotler adds, are preferable to the military strikes that Israel and the US are reportedly discussing.

"Why should Israel and the international community not try to exhaust other remedies before a military strike in order to hold Ahmadinejad accountable," he asks, "or even just to expose the hypocrisy of the international community in not doing so?"

BUT IT IS not Israel that has failed to make serious use of international legal tools, but rather the entire international community, Cotler believes. If the world is serious about creating international legal tools to prevent history’s most horrific crime, he says, it must begin to take seriously – and implement – these remedies.

What of Israelis, who tend to view the international arena as a hostile place where Israel is obsessively singled out while Libya and like-minded states often head important human rights bodies?

Though a former Jewish activist, Cotler’s reaction to the vilification of Israel is that of an international jurist. The defamation itself is not the worst problem with the "obsessive demonization of the Jewish state," he says, but rather it is "the whole international legal order [that] is at stake. Most people don’t appreciate that the obsessive preoccupation with Israel has undermined respect for and effective implementation of international law. The UN General Assembly, effectively the parliament of the international community, passes annually more resolutions against Israel than against all other countries combined. This preoccupation is undermining the integrity of the UN, diminishing the authority of international law and undercutting the impact of human rights."

It isn’t just that "the repository of international human rights, the [UN] Human Rights Council, directed all 10 of its resolutions of condemnation in its first year of operation against Israel, but that Sudan, Iran and China enjoyed immunity from condemnation. Not one resolution was directed against them during this time."

But all is not dark, Cotler insists repeatedly. Calling himself an "optimist," he is encouraged by young people throughout the West who come in large numbers to demonstrations against the violence in Darfur and elsewhere.

"The younger generation seems to get it, and to be demanding that we get it. In demonstration after demonstration, you hardly see a person over 30, and they all have a kind of common theme in the words, ‘If not us, who? If not now, when?’"

In the end, his optimism comes "because I don’t look at history as a snapshot at a certain point in time." The Jewish people "are a prototypical aboriginal people that still inhabits the same land, practices the same religion, studies the same Torah, speaks the same aboriginal Hebrew and bears the same name that it did 3,500 years ago." It will not be erased from history by the immediate threats it now faces, he believes.

As for the world, "I’m encouraged by young people in different parts of the world who are engaging law and justice, and not just as a kind of abstract notion, but are doing something about it. You see more young people going to places in Africa and Asia and beginning to invoke law to protect human rights. If I take the longer view, I think those who struggle for justice will ultimately prevail over those who seek to repress it."

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