The IBA’s live webcast interview and Q&A, with renowned international jurist Judge Thomas Buergenthal, took place on Wednesday 28 July. His extraordinary life story, including incarceration as a child in Auschwitz, and his contributions to international law, made him a compelling choice for the interview. He also discussed issues such as Kosovo and the West Bank Barrier.
Judge Buergenthal is the author of more than a dozen books and numerous articles on international law, human rights law and comparative law. His recently published memoir, 'A Lucky Child', recounts his survival as a young boy at Auschwitz. His book has received critical acclaim and sheds light on the ethical compass that Judge Buergenthal brings to his work as an advocate for justice and human rights.
The interview was conducted by award-winning former CNN journalist Todd Benjamin.
TB Todd Benjamin
JB Judge Thomas Buergenthal
TB I’m Todd Benjamin. Welcome to this special web broadcast of the International Bar Association from here in London. I’m with Thomas Buergenthal, the eminent legal scholar and human rights advocate. He currently sits on the International Court of Justice where he’s going to retire from in September ; he’s been on the Court for ten-and-a-half years, and during that time he sat on a variety of cases involving conflicts in the Balkans, Africa, and Latin America. He’s also the author of A Lucky Child, a bestselling book about his experiences as a young boy during the Holocaust, including being in the concentration camps when he was only ten years of age.
And for those of you who are listening, we encourage you to submit your questions, and we will try and answer them during this hour-long that we have with Judge Buergenthal. First of all, thank you so much for being here, Tom.
JB It’s my pleasure.
TB I want to spend a lot of time talking about your book, because a lot of it really does deal with human rights, or the lack of human rights. But first I want to talk about a very recent decision by the International Court of Justice: it’s a ruling on Kosovo, and that it didn’t violate international law in 2008 when it declared its independence. Now, the Court was very careful to say that this is a very narrow decision focused on Kosovo, but others aren’t so sure. In fact, Mark Ellis, who is the director of the IBA, said that the Court decision opens the door for non-state actors to legally consider unilateral declarations of independence, and he said this will be a new and vexing challenge for the international community. Others have echoed similar sentiments. Do you share that concern?
JB No, I do not. Basically, what the Court said is that international law does not regulate unilateral declarations of independence; any state, any group of people can declare it. That may violate domestic law, it may lead to retribution by the national government, but international law simply doesn’t apply to that as a whole. There are some instances where the UN has stepped in, but as a general rule, the Court really hasn’t said anything that wasn’t already known before.
TB It may have already been known, but this can also reinforce a perception which people can use as an excuse.
JB That’s true, very much: I mean, people have suddenly become aware that they can do that. Now, what consequences there will be from the nation states from which they want to secede, that’s another matter; but the Court did not deal with that issue.
TB Now, this decision received a lot of international attention. Where do you see the ICJ in terms of its own evolution, and its status as a result of this decision?
JB Well, I’m not sure, necessarily, as a result of this decision. Since the end of the Cold War the Court has really grown in importance and significance, in a sense because states have come to realise that they can rely on the impartiality of the Court, and have gradually increased the number of cases that they’ve brought to the Court. And these are not the sort of earth-shaking cases, but these are cases, disputes between states that have festered for many, many years which are very difficult to settle politically by negotiations; so the states simply say, well, let’s take it to the International Court of Justice. It’s a wonderful way to deal with some of these issues, and that has happened increasingly.
TB It’s always difficult to pinpoint what was the highlight for you in your ten-and-a-half years on the ICJ, but one of the questions actually that’s been submitted from our audience is: which case before the ICJ would you remember as the most decisive and path-breaking in international law?
JB Well, one case that I will never forget is the case between two countries – I’m not necessarily mentioning the names – when, after we’d decided the case, this was about the second case on which I sat in the Court, both countries declared a national holiday, on the ground that they had won the case. So that’s the one that I think every judge on the Court will want to remember. We don’t always succeed, that, but that’s a most, a very significant case. But we’ve had some very important cases: for example, there’s the case between the Congo and a number of countries in the region. You know, millions of people have died in the Congo, and Uganda, where we had to deal with the use of forced violation, serious violations of human rights, exploitation – illegal exploitation of natural resources – it’s a very, very significant case.
TB What’s interesting about the perspective that you can bring, and it’s a very unique perspective, is that, you know, you’re a Holocaust survivor; and how do you strike a balance between being a Holocaust survivor and your obligation in the role of a legal decision-maker?
JB That issue was probably much more difficult for me when I sat on the Inter-American Court of Human Rights, where we only dealt with human rights issues, and where I felt that, as a former victim of violation, it was very important for me to try to stay objective; when you hear testimony, for example. And so you almost leaned over backward to assure yourself that you’re truly objective in dealing with claims by victims. On the International Court of Justice, we really had fewer serious violations of human rights, so it was traditional international law issues which were much easier for me to deal with.
TB But nevertheless you mentioned, when you were on the Inter-American Court, you were also on the El Salvador Truth Commission; you’ve had a very illustrious career – you’ve also been on the Human Rights Committee, the Claims Resolution Tribunal for Dormant Accounts relating to Holocaust victims – what, for you, stood out as some of the highlights and some of the low points? Because I know in your book you speak about when you were on the El Salvador Truth Commission, and even what you went through in the Holocaust, as horrific as it was, didn’t totally prepare you for what you heard and witnessed.
JB Yes. For example, the thing that struck me, probably for the first time in El Salvador, when we interviewed the only survivor of a terrible massacre, the El Mozote Massacre. That person started to give us testimony, and within a minute or two, I could have finished it for her: it so reminded me of what happened when the Nazis began to liquidate the ghetto where I was – the shooting, the killing of children, women and sick people. Every so often it would come back; a number of times in El Salvador particularly, and also in the Inter-American Court with disappearances, tortures; cases would bring back these memories. And at that point it’s always very hard to be a judge, and you really have to force yourself to be objective and not necessarily to believe everything the witness says, but to verify, and not to politicise.
TB I suppose that’s always really the most challenging thing, when you have two sides, be it in Gaza, Israel, or in South America – unfortunately we could choose any number of points of conflict and friction – and each side is extremely emotive about what they believe to be the truth, how do you find yourself being able to arrive at what you believe is the objective truth, as a legal scholar?
JB Well, you just have to force yourself to really study the facts very, very carefully, and make sure that you have all of the facts. One of the problems, consistently, for judges, is to know that the facts being presented to you are really the facts in the case. And that’s not always easy, particularly not in international cases, because the parties appear before you, and you’re basically limited to the case, to the facts that are being presented to you.
TB In fact, one of the questions that has come in, was: in the Palestinian Wall case, you dissented, because you stated that a proportionality assessment required more detailed information about the threat to Israel by the crossed Green Line attacks than the Court had at its disposal; and the question from the person listening is, what was your opinion about the standard view in such a proportionality assessment? Would it be an objective, that is, a reasonable person’s, or subjective views actually held by Israel’s standard? Now, obviously this is a very loaded question, and not without a certain viewpoint, but there is a broader issue here, yes?
JB Well, first of all, in the Wall case, what I said was that I did not agree with my colleagues that it was possible to determine that the entire Wall being constructed was necessarily illegal under international law; that one should approach it from the point of segments of the Wall, because it may well be, and I didn’t say it was the case, but it may be that some parts of the Wall could be justified on the grounds of self defence, and others not. My colleagues felt that they could say that, just because it was built on Palestinian territory. That to me was not enough; the information that we had from the UN I thought was not necessarily complete.
I also thought that Israel, by not participating, also did not contribute to enable us to have all of the facts. So all in all, since the Court has discretion not to decide certain cases, I thought it was better for the Court to simply decline to rule on the case, and invoke its discretion. We know this, in the US context the political question doctrine, and I thought that should have been the approach. On the issue that is raised also as part of discretion, the burden of proof – that’s an issue I’d rather not get into: it’s much too complicated to deal with at this moment.
TB Simplify it for this journalist, because we have a lot of legal minds out there.
JB For example, on the Inter-American Court and the Salvador, we decided that when you deal, when you’re charging a country, for example, with disappearances, really serious violations of international law, of international human rights convention, that you should apply a very strict test that had to be met by those who claim that the tortures and disappearances actually took place. When you’re dealing with lesser things, for example, who owns a particular piece of land, or who has the right to navigate a river, the test can be basically the same test we apply in civil cases - just a preponderance of the evidence.
TB I want to take you back to a much earlier time – your time in the concentration camps as a ten-year old boy; you’ve written about it in your book A Lucky Child. First of all, a lot of people find it interesting that you waited until your 70s to write about an experience that happened more than six decades earlier – why did you wait, and how do you think the book would have been different, had you written about it when you were in your 20s or 30s?
JB I waited, really, because I had so many other things to do that I thought were more important: first going to law school, then raising a family, and then working in the human rights field. I always knew I was going to write that book, and then one moment I suddenly realised if I don’t write it now, I’ll never do it. One gets sort of a sense that one’s immortality is not really all there, so I sat down and just wrote it.
The book would have been very different if I had written it earlier; it would have been a book probably filled with hatred, focusing much more on the terrible things that happened, the details. When you’re 55 years removed from that terrible tragedy, your mode of describing it is much more reflective. And in my opinion, the book is a better book for waiting so long. It’s not as descriptive in terms of the horror, but it probably captures at least my memory, on reflection, after 60 years.
TB You said, had you written the book as a much younger man, it would have been a much more angry book. You actually wrote about the Holocaust when you were in college, for your college magazine, and the reaction of a lot of your fellow students was that they thought it was a piece of fiction!
JB I went back to read it, and it read so differently from the way I experienced it 60 years later. But, of course, it was written only 15 years after the experience, so I could still feel the cold, the hunger, the fear, which I no longer felt when I wrote the book, of course. I’m not sure it was good 'fiction', but it read like fiction because of the horrendous things that I described, the death transport…
TB Yes, it was a horrific time for humanity. But you mentioned it would have been a much more angry book, and I want to ask you about that, because you do address this idea of the anger you had in your book. After you’re out of the camps, you’re back in your hometown where your mother lived, in Germany. And when you were first back there, you would stand on the balcony where you lived and you would look down on the German families who were walking along the promenade on a Sunday, and you had these imaginations of actually shooting them, because you had so much anger. How did you get over that anger?
JB It didn’t just happen right away; it took a while. First of all, I went to school in Germany shortly after I was reunited with my mother, played with German children… and you begin to realise that not everyone is responsible for what happened to you or to your family; that was one thing. The other thing was that there was a man whom I met in the camp…
TB Odd Nansen?
JB Yes, Odd Nansen, who had been in the camp for three years himself. He was not Jewish, he was a Norwegian who opposed the Quisling regime, and basically, his life was devoted to reconciliation, and trying to find ways to end the vicious cycle that is created by hatred. And what impressed me so much about him was that he wrote a book, a diary; he published his diary in Germany, and then gave the proceeds from the German book, for German refugees. And I couldn’t understand: why would you do that to these people who did all of these terrible things to you and me? And his response made me think; and gradually I realised that the only way to really deal with the terrible past is to try to get over it, and try to contribute something to the human rights field, to prevent others from becoming victims.
TB In fact, in the book – because many people who survived the camps obviously did not choose the path that you’ve chosen, in terms of human rights – you said that you felt, and I’m using the word, an obligation…?
JB Yes, I would think that after that sort of experience every one of us asks 'why did I survive?' I never found the answer to that. I’m not a religious person, I didn’t attribute it to a deity, and I don’t know why I survived – it was sheer luck. But if it was sheer luck, then you have to give something back to the world for letting you live when so many others died.
And at that point I said to myself, well, what’s the one thing where I can be more useful? I was very bad in science, so I couldn’t become a physician; law was something that sort of ran in the family, but I wasn’t interested in law generally; but I was interested in the type of law I thought could prevent things from happening again that had happened to me, and that was basically international law, human rights. I also felt that I could be a better human rights lawyer than my colleagues in law school because I knew what it felt like to be a victim, and gradually I got into it.
TB Now, you do call it A Lucky Child, and obviously you were very lucky to survive. But it was more than luck: you had a lot of wit, you had a lot of determination, and you had a lot of courag. Can you relate some of that in those experiences?
JB Well, I attribute part of my luck to my parents. My father and mother had trained me, had given me survival techniques throughout the time when we were together, and that helped immensely.
TB Your mother, for instance: the Germans, the police came to your door when you were still in Czechoslovakia, when you were just beginning to be on the run; they knocked on the door and they wanted her to come to the police station because they were rounding up Jews; your father was away, and she was very clever about what she did.
JB She tried not to go to the police station, but when that didn’t work, she went, and as soon as we arrived at the station she said 'I want to see the Chief of Police, and I want to see the German consul. We are being mistreated; we are Germans, we are supposed to be your allies, and here’s my passport.' And fortunately, the Chief of Police couldn’t read what was in the passport. He apologised to her, and they took us back; and her passport turned out to be her driver’s licence! She had this tremendous creativity, under pressure.
TB I do want to read one passage from the book, because you said that had you written the book much earlier, it might have been more horrific, in terms of what you covered. But you had mentioned that when they were rounding up the Jews in Kielce, in the ghetto that you were living, to take them to the concentration camps – it’s a rather long passage, but it’s a very vivid passage – and you said:
'One morning in August 1942, while it was still very dark, we were awakened by loud honking, repeated bursts of gunfire, and announcements over loudspeakers – you know, all out! All out! Anyone who does not come will be shot!
The ghetto was being liquidated, and the words bellowing out of the loudspeakers: Evacuation! People were screaming and crying all around us. My mother immediately began to pack some of her belongings, while pleading with my father to hurry up. He was standing over our kitchen sink shaving very deliberately, and telling my mother to be quiet. Let me think, I heard him repeat, over and over again. It was all very eerie, and the noise outside was getting louder and louder.
When my father finished shaving, he put away his straight razor, helped my mother pack a few more things, and told us to follow him. There was shooting all around us, with one or two gunshots at a time coming from some of the houses the Germans had begun to search. When they encountered sick or old people who could not leave, they would simply shoot them on the spot, and move on.
We were the last family to come out of our building, just ahead of the marauding German death squads. Our courtyard was crowded with our neighbours who were trying to get away from the soldiers with their incessantly barking dogs that seemed to be trained to attack, with their handlers yelling: Jüde! My father pushed through the crowd, trying to lead us out of the courtyard, with his Werkstadt pass in hand. Whenever he recognised one of his workers, because he was a supervisor at the plant, he would urge them and their families to follow him. Gradually, some 20 to 30 people joined our group. Along the way we searched for my grandparents, but they were nowhere to be found; I never saw them again. To this day I can still picture them, their smiles when I entered their little apartment, the feeling of peace and happiness their embraces and kisses brought me.
As my father led us towards the ghetto wall and the entrance to the Werkstadt, we were stopped again and again by heavily-armed soldiers, who would yell and point their guns at us in a most threatening manner. That was very scary; there was still a lot of shooting all around us, bodies were lying in the streets; we could not be sure that the German patrols we encountered would not shoot us as well. As soon as we were stopped, my father would inform the soldiers in roughly the same tone of voice as they used when addressing us that he was under strict orders by the commandant of the city to protect the Werkstadt; we would then be allowed to continue. Never show them you are afraid of them, I remember my father telling me, time and again.'
I can see tears almost coming to your eyes; it’s challenging.
JB It’s difficult, of course. I’m glad you read it; I wouldn’t have been able to read it. It’s strange – when I wrote some parts of the book I had to stop. Most of the time it sort of flowed, but here were moments when it was very difficult.
TB Well, I think this is a very powerful passage, and it’s powerful not only because of the picture you paint of the horror of what was happening in that moment, but also the courage that your father showed. And he showed that courage time and time again. Once you were in the camps, you were together initially, and he saved you on many occasions by making sure that you stayed out of the lines that would have taken you to the gas chambers.
JB And he sort of imbued in me the notion that you had to survive, and that survival was really part of defeating those who were trying to kill you.
TB And for you, it almost became like a game…
JB It became a game, yes.
TB … that you would defeat the Germans by surviving?
JB A game which helped me immensely. And the sense of not being afraid of them was sort of a call to arms in many ways.
TB Yes. In your book, you almost despair at one point because of the internecine fighting that goes on from generation to generation to generation, and the senselessness of it all – you say, 'it frightens me terribly that the individuals responsible for the cruel and brutal crimes are for the most part not sadists, but ordinary people who go home in the evening to their families, washing their hands before sitting down to dinner, as if what they had been doing all day was a job like any other. If we humans can so easily wash the blood of our fellow humans from our hands, then what hope is there that future generations will be spared a repeat of the mass killings of the past? Was the Holocaust merely a practice run for the next set of genocides of other groups of human beings? Of course, I’m very troubled by these questions, especially when I hear of new atrocities being committed in one part of the world or another.'
And yet, on the very next page, and this is what I find interesting, you say you tend to believe that had today’s international human rights mechanisms and norms existed in the 1930s, many of the lives lost in the Holocaust might have well been saved. That sounds almost like a contradiction to me. Can you square the circle for us?
JB Well, today we have institutions that make it possible to prevent some terrible massacres and genocides from happening; on the other hand, they’re still not strong enough to prevent all of them. I’ve always thought that the Holocaust could have been prevented, or at least people could have been saved – not all of them – if there had existed international organisations that could have forced Hitler to account, because the Holocaust didn’t start like, for example, the Rwanda genocide, which sort of went from one moment to the next. But there was a long period of time when Hitler was not sure what would happen, how the world would react. If there had been international organisations, if countries could have been made to react, many people could have been saved.
And, of course, even today we only hear about the genocides that have been committed and that are being committed, but we don’t hear of those that have been prevented. And we don’t know which ones have been prevented by the intervention of international human rights organisations, by the existence of NGOs, human rights NGOs, by the UN, by Inter-American, European, and other human rights organisations. So we are building a system to prevent these things from happening in the future. That they are not perfect doesn’t surprise me, it’s to be expected; but I think they’re getting better every year.
TB But this is very much an evolutionary process that’s going on – the international Criminal Court is a very young court. What else do you feel needs to be done in this area?
JB Well, first of all, I think all countries should ratify the Statute of the International Criminal Court – that’s one thing.
TB Which the United States has not done.
JB Which the United States has not done. Other countries, major countries, have not done it either: Russia hasn’t, China hasn’t. All countries need to ratify it if we really want it to play a significant role. It will, over time. Gradually it will play a very important role. I’ve also felt for a long time now that we need to establish regional international criminal courts. We have regional human rights courts, but there are a lot of things that don’t come within the jurisdiction of the International Criminal Court that could come within the jurisdiction of regional courts like terrorism, drugs, crimes that small countries simply cannot deal with, that could be dealt with by regional courts, with proper support.
TB It’s interesting that you mention that, because in 2008 you gave a speech at Brandeis University called 'Justice 2018: Charting the Course', over the following ten years of justice, and in it you say that the proliferation of international regional courts has prompted some international legal scholars to contend that this development might lead to the fragmentation of international law, impairing its universal character, and that the creation of more such courts should be opposed. But obviously it’s a view you don’t share, for some of the reasons you’ve just said. Can you expand on that, then?
JB No, I don’t share that view. For one thing I come from a legal tradition that unites the Common Law American tradition where we have 50-odd courts, and it contributes to a creative interchange between courts. To me, with more international courts, the cooperation creates a much more vibrant international legal system than we’ve had up to now, and I think it’s wonderful that that is happening. There may be instances of conflicts in the decisions of one or the other, but that’s natural. But what is so critical is that it’s become a vibrant system today, and it’s become a very important law-making process. We finally are at the stage of international law today where international courts, like Common Law Courts, make law – this is not something a judge should be saying, but the reality is that every time a court decides a case it contributes to law, and that didn’t exist before.
TB But you also say that in the human rights area we have a vast body of international law, but still an insufficient number of judicial and quasi-judicial bodies to interpret, apply, and enforce that law.
JB That’s true, because we only have at this point three regional international human rights courts, and we really should have them in each major region of the world - even sub-regions.
TB Do you see more of that happening? Or what will it take for it to happen?
JB I see it happening. It’s slow in certain regions. For example, we need it in Asia, probably sub-regional courts. Asia is so large; and comprises very different countries with different cultural traditions. It takes time. And also countries, states, need to be socialised to the notion of international courts. The European Court of Human Rights dates back to the '50s; it took a long time before the European Court of Human Rights was accepted as part of the European legal framework. It’s been slower in the Inter-American system but it’s happening; it’s even slower in the African system, so it’ll take time. Unfortunately everything takes time in the international system, and I always say this explains my white hair!
TB White hair happens in other professions as well!
JB I know.
TB You also said in that same speech that, paradoxically, while we have witnessed proliferation of international and regional courts, not all the courts in existence today are working at their full, or even partial, capacity. Why do you think that is? Is it a funding issue, or is it the way that they address the various issues that they’re facing?
JB Well, part of it is funding. For example, when I sat on the Human Rights Committee of the UN, which is the body that is supposed to supervise the implementation of the covenant on civil and political rights, we were always short of funds: we couldn’t even translate the petitions that we received; and the argument always was it’s budgetary, we don’t have the money. It’s a wonderful excuse for certain states that don’t want to have their behaviour examined, to claim that they want to restrict you… that they don’t want to restrict you, but they have to cut the budget. So that’s one issue. The other thing is that it takes a long time for courts to establish themselves effectively.
TB You also say here, it’s frequently not realised that we need international courts, not only to settle disputes, we also need them to help develop international law. Now, that would seem self-evident, but you seemingly needed to point that out in this speech to a very illustrious group – Brandeis.
JB Well, the problem that has often not been understood, even by lawyers, is that for centuries international law developed in a very archaic, cumbersome way. The practice of states determined what international law was, and so if you wanted to find out what international law was you went and examined how different states viewed certain rules of international law. Today, as you have more and more courts, you can find this answer almost by going on the internet and putting the name of a case or a rule, and suddenly it jumps out at you. That’s really how the Common Law developed, and also how various early stages of the Civil Law developed.
TB And one final point I want to talk about relating to this speech: you say a very important development that tends to be overlooked when we reflect on the contemporary international justice system is the interaction between national courts and international courts.
JB What is happening in those regions of the world, particularly in the European and in the Inter-American, is that when you have international courts rendering decisions on questions of international law, and then domestic courts having to decide similar issues, it becomes quite natural for domestic courts to look and see how the international courts have decided these issues, particularly when the countries where these courts sit are bound by the decisions of the International Court. And, of course, some countries refuse to be bound by these decisions because they’re afraid that their domestic courts are going to be deciding these issues. The US Supreme Court is an example of that problem.
TB What’s your view on universal jurisdiction?
JB Well, I think universal jurisdiction will gradually become less of an issue if the International Criminal Court becomes universal. But as long as the International Criminal Court is not a universal court, I’m torn: on the one hand I think it is important for some states to be able to exercise jurisdiction over criminals who will otherwise not be tried even though they committed genocide or other crimes, someplace else. On the other hand, it can be very much abused for political reasons, and it’s a very dangerous tool.
TB Now we have more questions coming in. One is from Bernardo Rodriguez from Columbia. He says: 'in the Wall Case, you mentioned in your separate opinion the possibility of self-defence against non-state actors, which the Court did not accept. Do you think this is still an available legal justification for states, after that decision?'
JB Well, what was interesting – and Mr Rodriguez probably read my opinion carefully – was that I cited the resolution of the Security Council on that question: that in fact it existed. So I think this was an advisory opinion, and it may well be that the law on this subject might come my way in the future. I’m not the only one outside the Court who believes that it is possible. And if you’re dealing with terrorism and non-state actors committing very serious violations of human rights, of international law, you need to have those defensive tools.
TB Zorken Millen of Allen & Overy asked, 'Why did the Court in the Kosovo case respond so strictly to the question of whether the declaration of independence violated international law? Even if the question was narrowly worded, didn’t the entire international community want to know whether Kosovo’s act of succession violated international law, or even further, whether Kosovo is a state under international law?'
JB We were asked a very straightforward question, and we answered that the way it was put. I think courts should answer questions the way they are put, within reason. We might have asked ourselves whether the UN General Assembly would have asked us this wider question.
TB What kind of very different response had they?
JB I don’t think I should comment on that subject.
TB And then, also, there are questions actually going back to the Palestinian issue. First of all, this is from someone who’s met you before, Justice Ali Naz Wahid Chauhan from Islamabad, Pakistan, a former international judge at the UN Committee.
JB Yes, I’ve met him, of course.
TB He says: 'Excellency, what a great life you’ve had, as well as a career built around understanding human suffering and working for human rights. How will you use this background in ameliorating the suffering of people of Gaza and Palestine, changing minds, and thus helping the world in its quest for peace in this region?'
JB Well, of course, unfortunately or fortunately, courts don’t just go out and create their own business and do things; we only react to the type of questions that are presented to us. I felt in the Wall case, and I think the Court agreed with it – that international humanitarian law applied to the occupied territories, that the people in the occupied territories were entitled to the protection of international human rights treaties. That’s about all a court can do in the context of a case that is presented to it specifically.
My own sense is that we as judges are also under an obligation to bring a humanistic approach to issues that are presented to us, and I think that in the Wall case the Court and I, even though I dissented, tried to do that. And I think one of the problems in some of the criticism against my opinion was that people didn’t read it. Even though I said the Court shouldn’t decide the case, I agreed with much of what the Court said, in the majority, for the reason that I thought it was very important to point out that the inhabitants of the occupied territories had very important rights that needed to be respected.
TB And of course, behind all these cases, even though they’re opinions based on law and fact, they’re also great stories of human drama and conflict.
JB Yes, and that’s something we as judges must remember, without politicising the issue. I think it’s a very important balancing point: on the one hand, the terrible human suffering that you have to deal with; on the other, you have to be very careful that you don’t fall into the trap of no longer acting as judges, but politicising. I’ve always thought that, to me, when I taught international human rights and international law, that the thing that I tried to instil in my students was not to politicise human rights issues: there’s nothing worse that can happen to human rights if you politicise those issues.
TB Can you expand on that, because I think that’s a very important point.
JB Well, for example, when I was on the Inter-American Court, there used to be a tendency among NGOs in the region when they had a case, to, instead of always sticking to the legal aspect, to bring in a lot of political issues, whether of the left or of the right. And as soon as that was done the case lost its value as a human rights case, as a legal case, and became a political football, which then could be attacked by those who were committing those acts.
TB Another question here, and it goes back to Israeli-Palestinian issue - this is from Herman Bouma of Buchanan Ingersoll: 'Would it be a good idea to submit the Israeli-Palestinian issue to the ICJ?'
JB Well, since I’m leaving the Court in September, I don’t know what I would say! What one has to remember is that the Israeli-Palestinian issue is largely a political issue: it’s not something that the Court, any court, can deal with effectively. It can deal with some of the issues that the countries that separate the two, but it cannot deal with the broader political issues: how do you deal with refugees? How do you deal with Jerusalem? All of those issues are difficult political issues, and courts simply cannot deal with them. And when you look around the world at the strong constitutional courts, supreme courts, you’ll find that they can only deal with narrow legal issues, and not with the big political questions.
TB Of course you’ve been studying the law for a very long time now, and this is actually a terrific question here: 'Which books would you recommend for someone interested in studying international law, and what, among those, would you think are some of the classics?'
JB In English there’s the famous Oppenheim Lauterpacht that has gone through various stages and different editions, because Oppenheim died a long time ago, and Lauterpacht, the British lawyer and law professor who also served on the International Court of Justice, died in the '60s; a truly great book which he edited through many editions, and developed into an exceptional book. There are smaller books: for example, my colleague at GW, Sean Murphy, has written a much smaller book, it’s a wonderful introduction to international law, and there’re classics: for example, Brierly’s book.
But in other countries there are other books, and unfortunately I don’t have all the languages from those countries, but there are some very good international books in different parts of the world. Also, what is probably more important today than anything else, is for people who are interested in international law to also familiarise themselves with the various journals of international law that exist – with the American Journal of International Law, the European Journal, the Chinese Yearbook, the British Yearbook of International Law… The articles that appear in those journals that deal with current issues are probably more interesting in many ways than the traditional heavy international law book. I have a little book, with Sean Murphy, not the one I mentioned, called International Law in a Nutshell, which is 300 pages of international law; which is not a classic in any sense of the word, but it’s something written, really, for students in our courses.
TB One of the questions that you’ve been wrestling with all your life, of course, is why people do what they do, in these heinous crimes, and I want to get to that in a moment. But one of the questions that’s been submitted from our audience here is: 'How effective is a jail sentence in the case of murder or genocide, in the battle against crimes?'
JB Well, I think it’s very important to ensure that the leaders of countries that have left, led the countries into commission of genocide, be tried and convicted, for the world to see that you don’t just get away with these crimes. So I think the International Tribunal for the former Yugoslavia is a very important institution; the permanent International Criminal Court is important.
Now, whether that is something you want to do to everyone who is involved in the commission of these crimes is another matter; it depends on the time when it happens. Very often, and this is part of the problem, very often after genocide has been committed, like in the Holocaust, it takes 30 or 40 or 50 years before somebody is brought to justice; they just convicted somebody in Cambodia, for example. The effectiveness of these convictions in terms of sort of having an impact on the world is probably not as great as it would have been if these people had been convicted 20 years ago, for example.
TB There have been debates about whether justice should be blind, from the International Bar Association, the International Legal Consortium and so on. Do you think there should be times when someone who’s committed crimes against humanity should be given immunity if it resolves or stops the killing in a conflict?
JB Well, the answer is no, and let me explain that. As soon as somebody is charged with an international crime who is the president of a country or a leader of a country, we get this argument; and if you accept this argument, nobody’s going to be tried. We have to take the position on the international plane that if you’ve committed these acts, the argument that you’re interfering with negotiations in these countries are just political arguments that would totally destroy the effectiveness of international systems against those crimes. So I don’t believe in it. As a matter of fact, I find that these are excuses that as soon as we reject them and really look closely at the situation we will find that these crimes, or the negotiations, would have been successful beforehand. But suddenly, when somebody’s indicted, you hear, well, you’re now going to interfere with ongoing negotiations that would bring about peace. I don’t buy it, and I don’t think we should.
TB This is a broad question, but what are the challenge judges at The Hague face in contemporary times? Another question that’s been submitted.
JB Well, one of the challenges is that we are dealing with a legal system that in many ways is still not as well developed as domestic legal systems are. And we’re confronting issues that are novel issues that treaties don’t deal with yet, and their law-finding and lawmaking process, as a result, is quite difficult. The other issue is that many states are very suspicious of international tribunals. They think international tribunals are political institutions rather than legal institutions; and for international courts it’s very important to establish their impartiality.
TB It is very important for them to establish impartiality, but you can understand how decisions are interpreted as political decisions, so, Kosovo being one of them, or the idea that the ICJ, for instance, you have 15 judges who are appointed and it could be viewed as being political.
JB But of course, we have the same thing in domestic courts. Whenever an important national court renders a decision on an important issue that has political implications, immediately the argument is: oh, that’s the leftist judges on this court, or the rightist judges on this court who influenced the outcome. And on an international court, it’s even easier to criticise it that way, because it sits so far away.
TB One of the great questions that I think people are wrestling with right now in the area of human rights versus the state, is on the war on terrorism and how to get that balance right between states which have to protect their citizens, and the rights of the individual?
JB It’s very difficult to answer that question in the abstract, as you put it; it depends on the context. I wouldn’t even try to answer it. Obviously, to my mind, the argument that you have to disregard the rights of the individual because you’re dealing with terrorism, to me, is not an answer. It’s quite clear to me that the right of the individual is paramount, and needs to be protected. That means that you have to structure your fight against terrorism, keeping in mind the obligations that you have to protect individual rights, even the rights of the terrorists.
TB You’ve had a long career: you’ve seen a lot, heard a lot, experienced a lot. What still bothers you greatly?
JB Of course, what bothers me is that you still hear of terrible crimes being committed against people around the world – that’s one thing that bothers me. It bothers me that the international community is still not able to prevent all of these things from happening, and the realisation that it’s going to take a long time before we’re able to deal with them effectively. But I’ve no doubt that we will, one of these days.
TB Why are you so optimistic?
JB Because if I'm not optimistic, I’m not sure who should be optimistic. In other words, you cannot work in the field in which I have worked, and the same for so many of my colleagues, if you aren't optimistic about the future, because then you might just as well become a good corporate lawyer.
TB We were talking earlier about this question of why we continue this cycle of hatred. And you try and answer this question, of why seemingly ordinary people can do horrible things. And then you go on, after you address that question in the book, and you say, 'I’m very troubled by these questions, especially when I hear of new atrocities being committed in one part of the world or another. Such reflections could well have made me a cynic or caused me to abandon my human rights work, but they have not, for while I do not believe that I survived the Holocaust only in order to devote my life to the protection of human rights, I do believe that having survived I have an obligation to try to do all I can to spare others, wherever they might be, from suffering a similar or worse fate. The terrible crimes and cruelties inflicted in many parts of the world since the Holocaust have not weakened my commitment to human rights one jot. Instead, they have reinforced my belief in the need to work ever harder to promote human rights education on all levels, and to build an international and national legal and political framework that will make governmental violation of human rights increasingly difficult.' Thomas Buergenthal, thank you so much for your time today.
JB Thank you very much.