following is the full text of the speech delivered by Supreme
Court of Canada Justice Rosalie Silberman Abella to the Empire
Club of Toronto on Wednesday February 9th 2011.
The speech was entitled “THE WORLD IS NOT UNFOLDING
AS IT SHOULD: INTERNATIONAL JUSTICE IN CRISIS.”
I picked this topic weeks ago, before Tunisia and Egypt magnetized
our attention. Since then, I’ve spent countless hours devouring
TV and newspaper coverage, and I find that I’m transfixed,
I’m inspired, and I’m slightly terrified.
I am a lawyer. That means I believe in law and justice. And, like
most Canadians, I also care deeply about human rights. The events
of the past few weeks have been like a Polaroid picture of international
law, justice and human rights: with time, the picture comes into
clearer focus. And with clarity, my deepest fears are increasingly
confirmed. What do I mean? I mean that increasingly I have come
to see international human rights law as having a dysfunctional
relationship with justice. The rhetoric is beautiful, but it’s
all dressed up with no place to go.
It was not always so. After 1945, the global community demonstrated
an enormous capacity for constructing legal systems and institutions
to enhance and advance international human rights law.
Through the UN Charter, the “peoples of the United Nations”
determined to “reaffirm” faith in “fundamental
human rights, in the dignity and worth of the human person, in
the equal rights of men and women and of nations large and small.”
It was created for the purpose of achieving international cooperation
in promoting and encouraging respect for human rights and for
fundamental freedoms for all. But the human rights revolution
that started after — and because of — WWII, seems
to have too few disciples in the countries that need it most.
Compare this state of affairs with the revolution in international
trade law. Like international law generally, international economic
law has witnessed an institutional proliferation of organs, like
the OECD, the ILO, the United Nations Commission on International
Trade Law (“UNCITRAL”), and, of course, the IMF, the
World Bank and GATT.
Then in 1994, the Marrakesh Agreement established the WTO, which
came into being on January 1, 1995, dramatically extending the
reach of trade regulation and creating a comprehensive international
legal and institutional framework for international trade.
After only 15 years in operation, the WTO is, in essence, international
law’s child prodigy. Like the UN, the WTO struggles with
reconciling the interests of the most powerful states and the
least, as is obvious from the tumultuous (and ongoing) multi-year
saga of the Doha Development Round of negotiations. Yet despite
occasional criticism, the WTO, and its dispute settlement mechanism
in particular, are regarded as legitimate, effective and influential
in international relations.
So you can see that international trade law has, like international
human rights law, constructed a complex network of institutions
and norms to regulate state conduct. But unlike international
human rights law, states comply with international trade law and,
in the event of non- compliance, an effective dispute settlement
mechanism is available to resolve disputes. In other words,
what states have been unable to achieve in sixty-five years of
international human rights law, is up and running after only fifteen
years of international trade regulation.
I find this dissonance stark and unsettling.
If we examine international trade and international human rights
law in parallel, we can make a number of discouraging observations:
First, unlike the UN, the WTO is extremely difficult to join.
That means that the global community feels that obtaining membership
in a trade organization should be more onerous than obtaining
membership in an organization responsible for saving humanity
from inhumanity. Second, the global community agrees that the
products of one state should be treated the same as products from
every other state, but cannot agree that individuals have rights
as individuals, not as citizens of particular states. And third,
the global community agrees on the principles underlying international
trade law: non-discrimination and most favoured nation. In contrast,
the global community cannot agree on the principles underlying
international law generally, so sovereignty and human rights continue
There was so much cheering when we thought the global community
had finally resolved the rancorous, longstanding debate about
humanitarian intervention through the General Assembly’s
unanimous endorsement of the Canadian - sponsored doctrine of
the Responsibility to Protect (“R2P”) in 2005. It
seemed at last, that we had seen a triumph of human rights over
But just a year and a half ago, at the end of July 2009, the United
Nations General Assembly debated Responsibility to Protect for
the first time since unanimously endorsing the doctrine in 2005,
and the whole thing seemed to unravel before our eyes.
What’s wrong with this picture, and what does it
tell us about our global priorities?
Our generation has had the most sophisticated development of international
laws, treaties, and conventions the international community has
ever known, all stating that human rights abuses will not be tolerated.
We’ve had the European Convention for Human Rights, (1953),
The International Covenant on Civil and Political Rights (1966)
The International Covenant on Economic, Social and Cultural Rights
(1966), The Convention Against Torture, The International Convention
on the Elimination of All Forms of Racial Discrimination (1966),
The Convention on the Elimination of All Forms of Discrimination
Against Women (1979), the Convention on the Rights of the Child
(1955), and the Convention on the Rights of Persons with Disabilities
(2006), among many others.
But we’ve also had the genocide in Rwanda; the massacres
in Bosnia and the Congo; the violent expropriations, judicial
constructive dismissals and brazen immorality in Zimbabwe; the
assassination of law enforcers in Colombia and Indonesia; the
repression in Chechnya; the slavery and child soldiers in Sudan;
the cultural annihilation of women, Hindus and ancient Buddhist
temples by the Taliban; the attempted genocide of the Kurds in
Iraq; the rampant racism tolerated at the U.N. World Congress
Against Racism and Intolerance in Durban; China; Myanmar; Pakistan;
the world’s shocking lassitude in confronting AIDS in Africa;
the disgraceful chapter in global insensitivity as the world formulated
a strategy of astonishingly glacial and anemic proportions in
Darfur; the nuclear roguery of North Korea; and the sheer roguery
— and stoning — in Iran.
What’s going on, and what do we need to think about to fix
it? And fix it we must, because unless we pay attention to intolerance,
the world’s fastest growth industry, we risk losing the
civilizing sinews that flexed the world’s muscles after
World War II. We changed the world’s institutions and laws
then because they had lost their legitimacy and integrity. We
may be there again, not so much because our human rights laws
need changing, but because a good argument can be made that our
existing global institutions, and especially the UN’s deliberative
role, are playing fast and loose with their legitimacy and our
I make these observations not because I have any particular solutions
to propose, because I don’t, but because I want to hear
a serious conversation among people more expert than me, people
who care deeply about the moral choices we make as a global community,
about how to fix a status quo in which some of the worst criticisms
are directed at western democracies — what I would call
low -hanging fruit — while the worst abusers barely glance
over their shoulders, too busy doing now whatever they want to
their own citizens, to care about history’s judgment later.
So we have many laws to protect humanity from injustice, but not
enough enforcement to turn those laws into justice.
Let’s start with the term “Rule of Law”, the
Holy Grail of “rights discourse” today. I confess
that I’ve always been somewhat confused by why we use this
phrase as an organizing principle. I think most people don’t
really know what it means. Universal principles to which we are
expected to be loyal, shouldn’t be shackled with semantic
ambiguity. Moreover, this generation has seen the Rule of Law
impose apartheid, segregation and genocidal discrimination. And
in the last few weeks we heard the term endorsed, and without
irony, by the Presidents of Russia and Egypt. It frankly makes
me wonder why we cling so tenaciously to the moniker.
So what are we really talking about? We’re talking, I think,
about some universal goals — accountable government, protection
against rule by whim, and about our belief in law as an instrument
of procedural and substantive justice. If I’m right that
that’s what we’re really talking about when we talk
about a just Rule of Law, doesn’t that mean that what we’re
talking about is what we’ve come to see as the indispensable
instruments of democracy: due process; an independent bar and
judiciary; protection for women and minorities; a free press;
and rights of association, religion, dissent and expression? Those
are core democratic values, and when we trumpet those values,
we trumpet the instruments of justice. And justice is what laws
are supposed to promote.
Who can seriously argue that a society that has those values,
and protects its citizens accordingly, isn’t a healthier
society than a repressive one whose greatest tolerance is for
And I think we need to emphasize that when we talk about democracy,
we’re not just talking about elections. To say democracy
is only about elections is like saying you don’t need the
whole building if you have the door. Elections tell democracy
it’s welcome to come in, but elections are only the entrance.
Without a home, democracy can’t settle down. It needs an
edifice of rules and rights and respect to grow up healthy and
So why aren’t we out there promoting those democratic values
and instruments, instead of promoting a euphemism noone really
understands like the “Rule of Law”. Shouldn’t
we say what we mean? And I think what we mean is the Rule of Justice,
not just the Rule of Law.
Democratic values, while no guarantee, are still the best aspirational
goals in my view, because without democracy there are no rights,
without rights there is no tolerance, without tolerance there
is no justice, and without justice, there is no hope.
What kind of rights are we talking about? Two kinds —
human rights and civil liberties, both crucial mainstays of our
The human rights story in North America, like many of our legal
stories, started in England, with the madness of King George and
the philosophies of Hobbes, Locke, and eventually John Stuart
Mill, philosophies protecting individuals from having their freedoms
interfered with by governments. These were the theories which
journeyed across the Atlantic Ocean and found themselves firmly
planted in American soil and in the Declaration of Independence.
Thus was born the essence of social justice for Americans —
the belief that every American had the same right as every other
American to be free from government interference. To be equal
was to have this same right. No differences.
Unlike the United States, we in Canada were never concerned only
with the rights of individuals. Our historical roots involved
as well a constitutional appreciation that the two linguistic
groups at the constitutional bargaining table, the French and
the English, could remain distinct and unassimilated, and yet
theoretically of equal worth and entitlement. That is, unlike
the United States, whose individualism promoted assimilation,
we in Canada always conceded that the right to integrate, based
on differences, has as much legal and political integrity as the
right to assimilate. Assimilation if necessary, but not necessarily
assimilation. . .
In any event, the individualism at the core of the civil libertarian
political philosophy of rights articulated in the American constitution,
became America’s most significant international export and
the exclusive rights barometer for countries in the Western world.
Until 1945. That was when we came to the realization that having
chained ourselves to the pedestal of the individual, we had been
ignoring rights abuses of a fundamentally different kind, namely,
the rights of individuals in different groups to retain their
different identities. . . without fear of the loss of life, liberty
or the pursuit of happiness.
It was the horrifying spectacle of group destruction in the Second
World War which jolted us, a spectacle so far removed from what
we thought were the limits of rights violations in civilized societies,
that we found our entire vocabulary and remedial arsenal inadequate.
We were left with no moral alternative but to acknowledge that
individuals could be denied rights not in spite of, but because
of their differences, and started to formulate ways to protect
the rights of the group in addition to those of the individual.
We had, in short, come to see the brutal role of discrimination,
and invented the term “human rights” to confront it.
Civil liberties had given us the universal right to be equally
free from an intrusive state, regardless of group identity; human
rights had given us the universal right to be equally free from
discrimination based on group identity. We needed both.
Then, in North America, we seemed to stall as the last century
was winding down. What we appeared to do, having watched the dazzling
success of so many individuals in so many of the groups we had
previously excluded, is conclude that the battle with discrimination
had been won and that we could, as victors, remove our human rights
weapons from the social battlefield. Having seen women elected,
appointed, promoted and educated in droves; having seen the winds
of progress blow away segregation and apartheid; having permitted
parades to demonstrate gay and lesbian pride; and having constructed
hundreds of ramps for persons with disabilities, many were no
longer persuaded that the diversity theory of rights was any longer
relevant, and sought to return to the simpler rights theory in
which everyone was treated the same, and we started to dismissively
call a differences-based approach reverse discrimination, or political
correctness, or an insult to the goodwill of the majority and
to the talents of minorities, or a violation of the merit principle.
We heard many of those who had enough, say “enough is enough”,
trying to set the agenda while they accused everyone else of having
an “agenda”, and leaving millions wondering where
the human rights they were promised were, and why the evolutionary
knowledge we came to call human rights appeared to be suffering
such swift Orwellian obliteration.
I would argue that we were in a kind of rights distress by the
last decade of the last century, the Nineties, the decade of deficit
reduction, Beavis and Butthead, globalization, and Microsoft;
the decade when Americans didn’t ask and didn’t tell;
and the decade they stood by their man the President but spent
over $60,000,000 trying to find out if he’d had an extra-marital
affair (something a good matrimonial lawyer could have done for
half the money . . .). Everyone appeared to be taking at face
value Yogi Berri’s suggestion that when you come to a fork
in the road, take it.
The crash of four planes changed everything.
We realized to our horror that while we were riveted on hanging
chads and butterfly ballots, terrorists were next door learning
how to fly commercial airplanes into buildings. In less than two
hours on the morning of September 11, 2001, we went from being
a Western world luxuriating in conceptual moral conflicts, to
being a Western world terrorized into grappling with fatal ones.
I think that what irrevocably shocked us about the horror of September
11 was how massively it violated our assumptions that our expectations
about justice were universally shared, at least to the extent
that they would be respected in North America. Whether these expectations
were reasonable isn’t the issue. They were genuine. We felt
safe. We no longer do.
And we’re right not to.
The human rights abuses occurring in some parts of the world are
putting the rest of the world in danger because intolerance, in
its hegemonic insularity, seeks to impose its intolerant truth
on others. Yet for some reason we’re incredibly reluctant
to call to account the intolerant countries who abuse their citizens,
and instead hide behind silencing concepts like cultural relativism,
domestic sovereignty, or root causes.
These are concepts that excuse intolerance. Silence in the face
of intolerance means that intolerance wins.
What has happened to the miraculous regeneration and luminous
moral vision that brought us the Universal Declaration of Human
Rights, the Genocide Convention and the Nuremberg Trials, those
phoenixes that rose from the ashes of Auschwitz and roared their
The world was supposed to have learned three indelible lessons
from the concentration camps of Europe:
1.Indifference is injustice’s incubator;
2.It’s not just what you stand for, it’s what you
stand up for; and
3.We must never forget how the world looks to those who are vulnerable.
All this because, as Robert Jackson said in his opening address
at the Nuremberg trials, “The wrongs which we seek to condemn
and punish have been so calculated, so malignant and so devastating,
that civilization cannot tolerate their being ignored because
it cannot survive their being repeated. To me, this is not just
I am the child of survivors. My parents spent four years in concentration
camps. Their 2-1/2 year old son, my brother, and my father’s
parents and three younger brothers, were all killed at Treblinka.
My father was the only person in his family to survive the war.
He was 35 when the war ended; my mother was 28. As I reached each
of those ages, I tried to imagine how they felt when they faced
an unknown future as survivors of an unimaginable past. And as
each of our two sons reached the age my brother had been when
he was killed, I tried to imagine my parents’ pain in losing
a two and a half year old child. I couldn’t.
After the war my parents went to Germany where my father, a lawyer,
taught himself English. The Americans hired him as a defence counsel
for Displaced Persons in the Allied Zone in Southwest Germany.
In an act that seems to me to be almost incomprehensible in its
breathtaking optimism, my parents transcended the inhumanity they
had experienced and decided to have more children. I was born
in Stuttgart in 1946 a few months after the Nuremberg Trials started,
and came to Canada with my family in 1950, a few months after
the trials ended.
I never asked my parents if they took any comfort from the Nuremberg
trials which were going on for four of the five years we were
in Germany until we got permission to come to Canada in 1950.
I have no idea if they got any consolation from the conviction
of dozens of the worst offenders. But of this I’m sure —
they would have preferred by far, that the sense of outrage that
inspired the Allies to establish the Military Tribunal of Nuremberg
had been aroused many years earlier, before the events that led
to the Nuremberg Tribunal ever took place. They would have preferred,
I’m sure, that world reaction to the 1933 Reichstag Fire
Decree suspending whole portions of the Weimar Constitution; to
the expulsion of Jewish lawyers and judges from their professions
that same year; to the 1935 Nuremberg laws prohibiting social
contact with Jews; or to the brutal rampage of Kristallnacht in
1938 — they would have preferred that world reaction to
any one of these events, let alone all of them, would have been,
at the very least, public censure.
But there was no such world reaction. By the time World War II
started on September 3, 1939, the day my parents got married,
it was too late.
And so, the vitriolic language and venal rights abuses, unrestrained
by anyone, turned into the ultimate rights abuse: genocide. And
Lawyers like me, I think, have a tendency to take some comfort,
properly so, in the possibility of subsequent judicial reckoning
such as occurred at Nuremberg. But is subsequent justice really
an adequate substitute for justice?
I don’t for one moment want to suggest that the Nuremberg
trials weren’t important. Of course they were. They were
a crucial and heroic attempt to hold the unimaginably guilty to
judicial account and they showed the world the banality of evil
and the evil of indifference.
But 65 years later, we still haven’t learned the most important
justice lesson of all — to try to prevent the abuses in
the first place. All over the world, in the name of religion,
national interest, economic exigency, or sheer arrogance, men,
women and children are being murdered, abused, imprisoned, tortured,
and exploited. With impunity.
So, Lesson #1 not yet learned, Indifference is Injustice’s
The gap between the values the international community articulates
and the values it enforces is so wide, that almost any country
that wants to, can push its abuses through it. No national abuser
seems to worry whether there will be a “Nuremberg”
trial later, because usually there isn’t, and in any event,
by the time there is, all the damage that was sought to be done,
has already been done.
What has kept the global community from liberating the Universal
Declaration of Human Rights and the Genocide Convention from the
inhibiting politics and parochialism to which they are tethered,
so that they can be free to help create, once again, a civilized
world confident and willing to provide a future of tolerance and
Does this raise questions about the effectiveness of the UN as
a deliberative body? Frankly, it should.
We have to first acknowledge that many of the United Nations’
agencies have achieved great success in a number of areas: peacekeeping,
shelter and relief to refugees, UNICEF’s extraordinary efforts
on behalf of children, and the WHO’s fights against polio,
malaria and small pox, among others. The agencies have raised
awareness about violence against women, the environment, and the
plight of children, and the fact that much of international law
works at all is often due to UN-based agencies.
But the UN was the institution the world set up to implement “Never
Again”. Its historical tutor was the Holocaust, yet it seems
hardly to be an eager pupil. What was never supposed to happen
again, has. Again and again.
Over ninety years ago, we created the League of Nations to prevent
another world war. It failed and we replaced it with the United
Nations. The UN had 4 objectives: to protect future generations
from war, to protect human rights, to foster universal justice,
and to promote social progress. Its assigned responsibility was
to establish norms of international behavior. Since then, 40 million
people have died as a result of conflicts in the world. Shouldn’t
that make us wonder whether we’ve come to the point where
we need to discuss whether the UN is where the League of Nations
was when the UN took over? I waited in vain to hear what the UN
had to say about the protests in Iran, Tunisia and Egypt. Isn’t
that magisterial silence a thunderous answer to those who say
things would be a lot worse without the UN. Worse how? I know
it’s all we have, but does that mean it’s the best
we can do?
In a world so often seeming to be on the verge of spinning out
of control, can we afford to be complacent about the absence of
multi-lateral leadership making sure the compass stays pointed
in the most rights-oriented direction?
Nations debate; people die. Nations dissemble; people die. Nations
defy; people die.
Lesson #2, not yet learned: It’s not just what you stand
for, it’s what you stand up for.
A concluding story.
I’ve already told you that after the war my parents went
to Germany and that my father was hired as a lawyer by the Americans.
A few years ago my mother gave me some of his papers from Europe
when I was preparing a speech for the opening of Pier 21, where
we had landed in 1950.
The letters were from American lawyers, prosecutors and judges
he worked with in the U.S. Zone in Stuttgart. They were warm,
compassionate, and encouraging letters either recommending, appointing,
or qualifying my father for various legal roles in the system
the Americans had set up in Germany after the war. These people
not only restored him, they gave him back his belief that justice
One of the most powerful documents I found was written by my father
when he was head of the Displaced Persons Camp in Stuttgart where
we lived. It was his introduction of Eleanor Roosevelt when she
came to visit our D.P. Camp in 1948. He said: “We welcome
you, Mrs. Roosevelt, as the representative of a great nation,
whose victorious army liberated the remnants of European Jewry
from death and so highly contributed to their moral and physical
rehabilitation. We shall never forget that aid rendered by both
the American people and army. We are not in a position of showing
you many assets. The best we are able to produce are these few
children. They alone are our fortune and our sole hope for the
As one of those children, I am here to tell you that the gift
of justice is the gift that just keeps on giving.
Lesson #3. We must never forget how the world looks to
those who are vulnerable.
My life started in a country where there had been no democracy,
no rights, no justice. It created an unquenchable thirst in me
for all three. My father died a month before I finished law school,
but not before he had taught me that democracies and their laws
represent the best possibility of justice. And that those of us
lucky enough to be alive and free have a particular duty to our
children to do everything possible to make the world safer for
them than it was for their grandparents, so that all children,
regardless of race, religion or gender, can wear their identities
with pride, in dignity and in peace.