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Event
June 30, 2010

The UN Charter and the Genocide Convention 65 Years Later

with
The Hon. Prof. Irwin Cotler MP

By kind invitation of Andy Love MP, The Henry Jackson Society was pleased to host a discussion with the Hon. Prof. Irwin Cotler MP, former Canadian Minister of Justice and Attorney General, International Human Rights lawyer and Member of the Canadian Parliament. Prof. Cotler focused on the experiences of genocide and genocide prevention over the past 65 years. He highlighted the actions that must be taken to ensure that the responsibility to protect is accompanied by an acknowledgement of the responsibility to prevent. His lecture focused specifically on the convergence of past experiences around the current Iranian clerical regime, raising the question of the best way forward for the international human rights community to put its principles into practice to oppose repression, oppression and possible genocide in the future.

Transcript

Thank you very much. As I said in the previous meeting, where I released this international report on the Responsibility to Prevent Coalition, I just want to clarify. It is not, as some have said, the responsibility to prevent “what ?” coalition. Rather, it is a coalition of some one hundred scholars, jurists, parliamentarians, Iranian intellectuals and the like who have come together to put together endorsements for it.

We meet as it happens at what I would call an important moment of remembrance and reminder – an important historical moment of bearing witness and public warning. We meet on the occasion of the sixty-fifth anniversary of the UN Charter which was intended to save succeeding generations from the scourge of war. We meet on the sixty-fifth anniversary of the adoption by the UN General Assembly of the Genocide Convention; a convention respecting a crime whose name we should even shudder to mention, namely genocide, but which has been violated again and again. We meet on the sixty-fifth anniversary of the Nuremburg Principles which was the forum of the development of international humanitarian and criminal law. And we meet at this tragically forgotten sixteenth anniversary of the unspeakable genocide in Rwanda. I say unspeakable because this genocide was preventable. Nobody could say that we did not know. We knew but we did not act. And so on this anniversary of anniversaries, we should ask ourselves, what have learnt and what must we do? I am reminded of a statement that was made by the then UN Secretary General Kofi Annan on the occasion of the tenth anniversary of the Rwandan Genocide when he said, “Such crimes cannot be reversed, such failures cannot be repaired. The dead cannot be brought back to life. So what must we do?” The answer is that the international community will only prevent the killing fields and the tragedies of today if in fact we heed the lessons of past tragedies. And so what are these lessons? And to paraphrase Kofi Annan, what must we do?

The first enduring lesson of the Holocaust and the genocides that followed in Srebrenica, in Rwanda and the genocide by attrition in Darfur, was that these genocides occurred not simply because of the machinery of death but because of state-sanctioned incitement to genocide, because of state sanctioned cultures of hate. As the supreme court of Canada put it in words, that were in fact affirmed by the international criminal tribunals for the Former Yugoslavia and Rwanda [that looked into the cases of incitement to genocide in the Balkans and in Rwanda],  “The Holocaust did not begin in the gas chambers, it began with words. These are the chilling facts of history. These are the catastrophic effects of racism.” And we are witnessing yet again, as we meet, state sanctioned incitement to genocide whose epicentre is Ahmadinejad’s Iran. And as I said in the earlier meeting, I use that term to distinguish it from the people and publics in Iran who are otherwise the targets of massive domestic repression. This is what we are seeing, and the people themselves are repudiating this incitement by their leaders. President Ahmadinejad and those associated with him, deny the Nazi Holocaust while at the same time inciting an assault on truth, an assault on justice, an assault on Jewish memory. Let there be no mistake about it, and I’ll conclude on this first lesson. Iran has already committed the crime of incitement to genocide prohibited under the Genocide Convention. We can do nothing, regrettably, and tragically about the genocides of the past, which were the expression of that incitement to genocide. There still is, with regards to Iran, a responsibility to prevent and to combat this incitement. Not one state party to the Genocide Convention – not the UK, not my country Canada, not the United States, not one country in the European Union has taken the mandated legal undertaking of preventing and combating this incitement to genocide.

We set forth in our report some eight remedies that can be taken that would target the leaders, with no harm to the people, but would in fact combat this culture of hate. The second lesson – and that is the danger of indifference and inaction in the face of incitement and mass atrocity. In other words, if one looks at the situation with regards to Rwanda or Darfur, what makes these genocides so unspeakable, as I said, is that these genocides were preventable. The horror of the Rwandan genocide is not only that of the genocide itself, which is horrific enough, but that the international community could have prevented it. Similarly, with regards to Darfur, it is where we betrayed the Responsibility to Protect Doctrine, where we ignored the lessons of history, and most importantly where we betrayed the Darfurian people. As Ellie Crisell has reminded us, “indifference and inaction always means coming down on the sides of the victimizers not on the side of the victims. And there should be no mistake about this; that indifference in the face of incitement and mass atrocity is acquiescence in, if not complicity with the victimizer.

The third lesson is the danger of a culture of impunity. If the twentieth century can be regarded as the age of atrocity, it was also the age of impunity. Few of the perpetrators were brought to justice. And therefore just as there cannot be a sanctuary for hate, or a refuge for bigotry, so there should not be any base or sanctuary for these enemies of human kind, these genocidaires. In this context, the establishment of the International Criminal Court which I supported then as a part of the civil society movement, which was seeking to have a supporter, must be seen as the most dramatic development in international criminal law since Nuremberg- to deter mass atrocity, to protect the victims and to prosecute its perpetrators. Indeed the International Criminal Court’s indictment of Sudanese president al-Bashir, the first time that an ICC arrest warrant has ever been issued against a head of state, was in legal terms a historic judgement in the struggle against impunity. Never before had the court so boldly expressed the principle and precedent that nobody stands above the law. Yet as we meet, this judgement still remains to be enforced. You have a situation where President al-Bashir, a Sudan national, is not surrendered by Sudan as obliged by the International Criminal Court. Rather the Sudanese government continues with respect to the same violations under the leadership of President al-Bashir that resulted in the court’s indictment at the beginning. This includes the mass expulsion of humanitarian aid workers and the like, which has only worsened the situation in Sudan.

Similarly in Argentina, after the Argentinean judiciary named specific individuals in Iran for being responsible for the greatest terrorist atrocity in Argentina since the end of the Second World War, there was one specifically named by the Argentinean judiciary for perpetrating that atrocity –Ahmad Vahidi. With respect to him, there is an Interpol arrest warrant, and he has now been appointed to minister of Defense in Iran, overseeing the nuclear programme. Another person, Ahmed Haroun, also named by the International Criminal Court for being responsible for war crimes and crimes against humanity against the Darfurian people was not surrendered by the Sudanese government; rather he was promoted to be the minister responsible for humanitarian affairs in Sudan – appointed to hear complaints, given by the very victims against whom he had perpetrated his atrocities.

So we are a culture of impunity. And while those of us who supported the establishment of the International Criminal Tribunals for Srebrenica and Rwanda and the International Criminal Court, nonetheless appreciate regrettably that a culture of impunity still remains and it is our responsibility to hold these genocidaires to account. Which brings me now to the fourth lesson; and that is the vulnerability of the powerless and the powerlessness of the vulnerable. Initially expressed in the triage of Nazi sterilization laws, the Euthanasia laws, and the racial laws – this happens to be the 70th anniversary of the Nuremberg race laws. Regrettably sometimes, the Nuremberg principles and the Nuremberg enforcement of international criminal law brushes up against the Nuremberg of jackboots and the Nuremberg of hate. It is revealing, as Professor Henry Creenlaw pointed out in his work on the origins of hate, that the first group targeted for killing by the Nazis were the Jewish disabled – the whole anchor in a science of death and a medicalization of ethnic cleansing, of the sanitizing, even of the vocabulary of the structure. So it is our responsibility, ending up on this fourth lesson, to give voice to the voiceless and power to the powerless whoever they may be in our society – violated women, brutalized children, the immigrants and refugees, and I could go on. The test of a just society, whether it is in the UK or in Canada or elsewhere, is how it treats its vulnerable minorities. That is the test of a just society. And my daughter put it to me very dramatically when she was fifteen years of age [she’s now a young lawyer of thirty]. But when she was 15 years of age, she came to me and said, “ Daddy, if you want to know what the real test of human rights is then always ask yourself, in any time, in any situation, in any part of the world, “Is it good for children? Is what is happening good for children?” That’s the real test of human rights work. And that’s why I say that the real test amongst us is how we treat the vulnerable among us, with children being the most vulnerable of the vulnerable.

Let me go quickly to the next lesson – the fifth lesson, an enduring lesson of the Holocaust and the genocide that followed, is that it is made possible by that ‘trahison des clercs’ as Benda put it in the thirties. And if you look at what happened then in terms of the Nazi Holocaust, it was not just the bureaucratization of genocide as Robert Lifton put it, but that ‘trahison des clercs’– the involvement at the highest level of judges and lawyers and physicians and teachers and architects and engineers and the like. Here too the admonition and the importance of speaking truth to power, and holding elites to account. The sixth lesson is the cruelty of genocide denial. We see it and know about it in terms of Holocaust denial where not only is the Holocaust denied, but its victims themselves are also accused of having falsely fabricated the myth of the Holocaust. This is now and not as well known, happening with regards to Rwanda. And there are now the beginnings of those engagements in the denial of the genocide in Rwanda. It’s important in this regard that the remembrance of these genocides – speaking the truth with respect to them is a means of repudiating such denial, which becomes more important increasingly with the passage of time.

And let me move now to the last lesson in this regard. That is the importance of remembering the rescuers, people like Raoul Wallenberg, who was often referred to as the St. Just of the nations and who is credited with having saved more Jews in Hungary in 1944 than in almost any other country. Staggering data if that happened to be the case. But it shows the possibility of that cliché that one person can make a difference, that one person could stand up against the whole of the Nazi killing machine and yet prevail and thereby transform history. And certainly the many that are alive today because of that provide the importance and recognition of rescue. So let me close by saying that meeting as we do on this anniversary of anniversaries, I would hope that this gathering would not only be an appropriate act of remembrance which it is in terms of remembering these lessons of the past 65 years, but it would be no less importantly a remembrance to act, and a remembrance for each one of us to undertake our responsibilities. As the French say in this regard, and the phrase I think is very appropriate, whoever remains indifferent indicts himself or herself. The time has come for engagement – for involvement and for commitment. And I believe that if we do so we can help to transform history. Thank you.

With regards to the issue of holding officials who themselves have admitted that they have engaged in tortures and violations of the Geneva Convention, first let me make a full disclosure. I represented two Canadians and still do, who are themselves coming before the American courts with the accusations of torture. I’ll mention one of the cases because regrettably the Supreme Court did not allow the case to go forward. The New York Times in fact wrote an editorial about it. This is the case of Maher Arar. Maher Arar is a serial Canadian who having lived 17 years in Canada, in 2001 was returning from overseas to Canada via the United States. When he was in the United States airport he was in fact stopped, interrogated, and in what was to come to be known as extraordinary rendition, he was sent to Jordan via Syria whereby he was tortured. I was representing him at the time although I was also an MP. And when I became Minister of Justice, one of the first acts that I engaged in was to set up a commission of enquiry into Maher Arar and into what happened. The Commission reported two and a half years later and found that Maher Arar was not only an innocent person, but the innocent victim of three governments – of the American government in the manner in which they had originally engaged in interrogation, and the extraordinary rendition to the Syrian government where he was tortured, and the Canadian government was complicit with the American government in what went on.

The Canadian government apologized and also indemnified him with ten million dollars for his victimization. However the American government refused to acknowledge their responsibility at any level with that regard; not at the political level, where we tried and not at the judicial level. Very recently, the Supreme Court in the Unites States, in a judgement which was very much criticized by people involved in the human rights movement effectively immunized their leaders for any accountability in this regard. So when it is asked of me, “how do we hold them accountable?” I think that it is up to the Unites States at this point. But as you know, there have been decisions taken, even by the Obama administration, contrary to what I thought was going to be their initial disposition which appeared to be a direction of immunizing those who were involved at the time.

I know that if they [American officials who have alleged Geneva Convention Violations] showed up in Canada, and they have showed up in Canada, there has not been a disposition, maybe because of reasons of comity as between states; Canada-America relations or maybe because it was felt that it would be politicizing the system to do that. There are a lot of other people that we should be arresting, and we don’t. So I think that American responsibility is important at this point. But I don’t want to disclaim international responsibility. There are many of us who felt that responsibility is there and that people should be held accountable, have gone to the American courts and have not succeeded there for over seven years now. And we are looking around and exploring other things to do.

On the issue of Iran, and why it retains its membership in the United Nations – Iran not only retains its membership, but the person that is involved at the epicentre of this critical massive threat, namely President Ahmadinejad, is given a podium at the United Nations General Assembly and appears before the United Nations Human Rights Council. So you would think that at the very least, he would be declared an inadmissible person. I just mentioned Maher Arar. Maher Arar to this day, as we meet is an inadmissible person; he’s on a US watch list. But Ahmadinejad is not on a hard-list; he can come in and address the United Nations General Assembly. When we ask the United States not to admit him for that purpose, so that he cannot abuse the podium of the UN General Assembly for the kinds of incitement that he engages in from that podium, the answer was that there is a headquarters agreement between the United States and the United Nations. We are obliged to admit him. We said, and I’ve written about it, we don’t believe that you are obliged to admit him – the Genocide Convention is overriding. Anybody that engages in incitement to genocide is thereby an inadmissible person. And we said that there is precedent for that. Kurt Waldheim when he was President of Austria was not admitted to the United States to participate in UN deliberations. So I think that we have to begin at this point of partly excluding Iran from the UN. We should at least hold their leader accountable. And on top of a situation as well where the country that is persecuting and prosecuting its women in a systematic way at this point gets elected recently to the United Nations Commission on the Status of Women. I have no words for that.

On the point of holding the Iranian leadership accountable in a way that does not target the people. Our report suggests a series of what we call ‘threat-specific’ sanctions, with regards to each of the four threats; nuclear, genocide incitement, terrorist supporting and human rights violating. Our remedies are to target the leadership and not to attract harm to the people. On the contrary, we have to support the people who are not being sufficiently supported and show solidarity with the people of Iran, as we hold the leadership accountable. The whole approach at this point, to holding Iran accountable, by focusing only on the nuclear issue which is obviously a clear and present danger, but not focusing as well on the other threats, ended up marginalizing, if not sanitizing the other threats. And so we say, you have to look at the critical mass of threat, and you have to propose a critical and comprehensive and consequential and targeted set of remedies that target the people. One last thing with regards to Afghanistan; I recently hosted with the Canadian government, a very courageous woman by the name of Dr. Masuda Jalal. She is the first woman who ran for president of Afghanistan. She was the minister of women’s affairs in Afghanistan for five years. And she came to Canada and she had one message. That was, that if you empower women, you will empower freedom and democracy in Afghanistan. And if you don’t protect women, then what is going to happen, and she put it like this, “an unholy coalition” – warlords, and the Taliban, and she even included people in the Karzai leadership, are going to end up not only oppressing women, but oppressing democracy and freedom. So the Responsibility to Protect Doctrine has to first and foremost protect women. We are at the point where a number of NATO countries including my own, Canada, have set 2011 as the date for which they will withdraw from Afghanistan. The Canadian parliament has voted, and the Canadian people have expressed their view that we should end our military role. But we should not end our role; in fact we should enhance our role with respect to the promotion and protection of the rights of women, with respect to the training and governance and promoting the rule of law, with respect to the whole use of soft power as it can be used in order to protect the people of Afghanistan.
With regard the points that I made earlier concerning the issue of incitement to genocide. We say in our report that the Baha’i community is the most vulnerable and persecuted minority in Iran, more than the Jewish community. In fact, the Jewish community in Iran, while discriminated against along with other minorities is not targeted in the same way as the Baha’i community. In our report, you will see some testimony here, where recently, General Dallaire who was involved from the UN side in the Rwanda genocide, got up in the Canadian senate, and referred to what is happening to the Baha’i as incitement to genocide. And we go through great detail in our report as to the manner in which the Baha’i have basically been dispossessed, segregated, and demonized. There’s a whole set of witness testimony, including some experts from the emergency debate in the Canadian House of Commons on the Baha’i issue.

With regards to incitement to genocide, we speak about it in terms of the manner in which it is directed against Israel and the Jewish people. We set forth the statements by Iranian leaders, again, as I emphasized in my opening remarks, I am speaking about the incitement, in their own words by Iranian leaders as we see it documented in the report. And the Iranian populace, who are otherwise the targets of mass oppression, are disempowering those statements of incitement made by their own leadership.

In terms of my personal affairs, and my connection to Israel, yes, my wife is Israeli, but making an even fuller disclosure, both of my daughters have joined the Israeli army, and I’ll tell you exactly why. When my daughter graduated High School, she went to go to Israel for a year where my wife’s family resides. She came back home after that year, and said to us, I have decided two things. The first, she said, is that I want to live in Israel, and the second is that, if I am going to live in Israel, I am going to do what my Israeli friends are obliged to do – and that is to join the army. She spent not two years, but she spent three years. And she spent that time working with newly arrived Russian and Ethiopian immigrants. That is what her work as in the army, and I’m very proud of the work that she did in helping new immigrants. She also happens to be a person who is part of the peace movement with respect to the whole Israeli-Palestinian conflict. I have been to Gaza far more than most people may appreciate, I meet regularly with the Palestinian leadership; I was a strong proponent of the two-state solution long before it became fashionable to do so. But I have to tell you that I think that to speak of Israel as having been engaged in genocide is a misappropriation of the term. I’m not saying that Israel should not be held accountable like any other state for any human rights violations or any other violations of international humanitarian law. Israel does not deserve any particular exemption because of the Holocaust or because of Jewish suffering. But that is my point – like any other state. When you have a situation where the UN council, in its first thirty three Resolutions of Condemnation, singles out one member state, call it X although it happens to be Israel, so 80% of the resolutions single out one member state. Yet the major human rights violators- Iran, Chin, Syria, Sudan, not one resolution is written against them and they’re basically given exculpatory immunity. I have to say that I don’t think that Israel is being favoured in the international community. I think that regrettably, it is being singled out. And as I say, it should be held accountable, but like any other state.

Finally on the matter with regard to Kurdistan, I have been noticing some of the dynamics that recently those who were executed and this goes back to a similar situation when the Iranian leadership ordered the execution of some five Kurdish detainees. On this point, as we meet now, there are twelve Kurdish detainees who are at the risk of themselves being executed. I think that there is some kind of connection that develops, even if it was not intended, by what goes on in Kurdistan and what goes on with the assault on Kurdish Iranians. I’ve spoken about this in Canadian parliament, and I’ve also spoken about what I think has been a lack of an appreciated right, namely the right of the Kurdish people to self-determination. I am in full support of the right of the Palestinian people to self-determination. I think that the right of the Kurdish people to self determination has been an underrepresented right. I’m not even speaking necessarily about an independent state of Kurdistan; I’m talking about the fundamental rights to live in peace and security. So I am concerned about what is happening now with regards to different parts – with regards to Iraq, with regards to Turkey. There is a dynamic developing which may not be entirely appreciated, but we should not ignore it because these things end up having connective links.

Concerning the issue of genocide prevention, and with specific reference to Saeed Mortazavi; he was appointed the head of the Iranian Human Rights Delegation in Geneva even though he had been the one named to be indirectly responsible for the torture and rape and death of Kazemi. But in terms of what can be done – Kofi Annan had made a recommendation at a Stockholm Conference on the prevention of genocide in 2004,that we should set up a treaty monitoring body with respect to genocide convention that would identify all of the early warning signals and dynamics. His idea was that it would serve a treaty monitoring body that could itself engage in not only monitoring, but through the monitoring and holing of accountability, the direct prevention of genocide. A second possibility which has not been sufficiently activated I think, is the UN Secretary General’s Special Advisory on Genocide in terms of again working out an early warning system. Gregory Stanton, a professor who is about to publish a book on the eight stages of genocide, appeared before our Parliamentary subcommittee on International Human rights where we held hearings with regards to Iran. He made the statement that with regards to the eight stages of genocide, hat Iran has actually moved through six stages of genocide. So he was saying that the state is not being held sufficiently to account.

There was also the report that was put out by the US Task Force and was co-chaired by Madeline Albright and William Cohen, former leaders in American government. This report set out a whole list of recommendations with regards to prevention of genocide. Iran is a case study; where you have clear and compelling evidence with respect to incitement, yet not one state party has taken the modest step of simply referring it to the UN Security Council for deliberation. One of the things that I’ve learned is that politicians tend to live in a bubble, and they are disconnected very often from what is happening. I’ll give one example. In April 2004, I participated in a then G8 meeting of Ministers of Justice in Washington. It was hosted then by John Ashcroft who was then the American Attorney General. I looked at the agenda, and this is in April 2004 – the genocide by attrition in Darfur was already underway at that point – I looked at the agenda and there was nothing about Darfur. So I said to John Ashcroft, “why is there noting on the agenda about Darfur?” And he responded, “Oh well you know that these things are put together by officials of G8. But we’re going to have an informal dinner tonight and I’ll let you speak about ten minutes on Darfur.” I’m only saying all of this, because at the end of that dinner meeting, four Ministers of Justice from the G8 came up to me and told me that this was the first time that they had heard about the crisis in Darfur. Now you may find this astonishing. It is astonishing for people working day in and day out in human rights work and in Civil Society. But sometimes when you enter into the political arena at the governmental level you end up being somehow insulated from the kinds of information and accountability that you should know.

But I also hope that you will now take note of a meeting that is taking place as we meet in Kazakhstan. It is dealing with an issue that has fallen off of the radar screen, yet the persecution and violations of the rights of the Roma continue. We have brushed up against this in Canada as well within our immigration system and the issue of refugee status. I think that the issue has to be highlighted much more on the human rights agenda.

With regards to the question of ecocide, I have not referred to it today, but I am part of a genocide prevention network that has highlighted ecocide as part of the things that we must address. Ecocide was not part of this particular report, but the issue of ecocide, which I believe deserves accountability and being addressed, is something which some of us are involved with in a general way. On the matter of Iraq, the report does not address directly the issues relating to Iraq. It does so indirectly by referencing for example the Iran Human Rights Documentation Centre at McGill University, of which I am a part of the leadership circle, and we recently released a report on that matter. Thank you.