Doing Peace the Rights Way brings together the work of twenty-one researchers, experts, and practitioners in various fields of international law and international relations to honour the work of Louise Arbour, as a judge, prosecutor, and international advocate.Footnote 1 By choosing eclectic and sometimes emerging themes, the authors of the nineteen contributions within this collection touch upon both ancient and contemporary challenges that hinder the effective enjoyment of human rights and the promotion of international peace. But what all nineteen contributions have in common, as the editors explain in the “Introduction,” is an interest in the “interaction between justice and peace, between human rights and conflict, and between law and politics in both the international and domestic spheres.”Footnote 2 The resulting work serves as a useful and up-to-date inventory upon which others may draw to develop new reflections.
Organized into three parts, Part 1 of the book is characterized by a desire to upset many preconceptions within the area “of freedom and equality.” It begins with a chapter by Andrew Clapham, who argues that we must stop asking ourselves whether non-state actors have human rights obligations and, instead, focus on the scope of these obligations and the means for their implementation.Footnote 3 Clapham draws extensively on the output of the bodies of the United Nations (UN), state practice, and the position papers of non-governmental organizations in support of his argument,Footnote 4 but he makes no mention of an instrument of binding value — with the draft of such an instrument to regulate the activities of transnational corporations presumably becoming available after the chapter was written.Footnote 5 For this reviewer, Clapham has overstated the value of the documents upon which he relies. These documents, at best, highlight the growing recognition that non-state actors represent a threat to the enjoyment of human rights.
In the chapter that follows, William Schabas writes about the temporal aspects of the right to truth, with his starting point being that the legal basis for such a right is clearly established.Footnote 6 Schabas is critical of the reluctance of international courts to exercise jurisdiction over violations committed prior to the adoption of the treaties that ground a victim’s right to truth,Footnote 7 despite their continuing nature and the prohibition on statutory limitations for atrocity crimes.Footnote 8 The explanation for this reluctance may reside in the uncertain legal foundations of the right to truth. Because it is not a free-standing right, its implementation is dependent on the enforcement of the rights from which it arises, notably the rights to justice and reparation.Footnote 9 It is regrettable for this reviewer, however, that Schabas did not mention the roleplayed by truth and reconciliation commissions. The importance of thecollective dimension of the right to truth would have justified consideration of the implementation role to be carried out by non-judicial mechanisms.
The justiciability of human rights is also a theme touched upon in Part 1. Alana Klein’s chapter comments on the lack of imagination shown by Canadian courts in securing the judicial protection of human rights of an economic, social, and cultural character.Footnote 10 For Klein, “the question is famously no longer about whether such rights can be protected, but rather how,”Footnote 11 as she draws attention to the creativity of courts elsewhere, most notably in Brazil, Colombia, and South Africa.Footnote 12 However, one should not underestimate the contribution of non-judicial strategies for enforcing rights, including awareness-raising activities and the use of human rights indicators, benchmarks for progress, and human rights impact assessments.Footnote 13 These are all ways of securing respect for economic, social, and cultural rights, although Louise Arbour herself has recognized that “the realization of social and economic rights is an inherently political undertaking.”Footnote 14
This statement also rings true for civil and political rights, as shown in the contribution by Hina Jilani.Footnote 15 Jilani claims that models of undemocratic governance provide fertile ground for violations of human rights,Footnote 16 with the authors of Chapter 3 providing a cogent case study focused on the causal connection between poor economic governance in Nigeria, the armed conflict against Boko Haram, and serious human rights violations.Footnote 17 Jilani rejects a procedural conception of democracy that, with the rule of law, is essential for the enjoyment of human rights.Footnote 18 Instead, she shows that human rights violations are caused by multiple factors.Footnote 19 She also believes that mass mobilization must remain constant, noting that judicial victories are never immune from the attacks of the political elite.Footnote 20
Part 1 then concludes with two chapters examining concrete cases where human rights are unduly restricted and violated in the name of state security. Michael Spratt argues that this is the case with the war on drugs in Canada,Footnote 21 while Pablo Espiniella makes a related case focused on the treatment of unaccompanied child migrants.Footnote 22 Spratt believes that criminal policies based on order and retribution cause far greater social havoc beyond the sole punishment of offenders.Footnote 23 He advocates for criminal policies based on scientific evidence, not ideology,Footnote 24 but, as Espiniella demonstrates, scientific evidence is not always conclusive. In the absence of documents attesting to their age, security issues lead states to treat children as migrants rather than as minors,Footnote 25 with the author suggesting that, where evidence is unavailable, a presumption of minority should prevail.Footnote 26 Such a presumption is also consistent with the recognition that medical evidence is not without its own margin of error.Footnote 27
Part 2 of the book focuses on the theme “of peace and justice.” Addressing the deterrent purpose of the International Criminal Court (ICC), James K Stewart uses his contribution to make the claim that the much discussed debate over peace versus justice within the context of the court is futile.Footnote 28 For him, the interests of justice take precedence,Footnote 29 with peace to be achieved through the provision of justice for the victims,Footnote 30 even though in many cases the peace agenda is dictated for the victims by the forces involved. With respect to the strategies of the ICC to prevent crimes, Stewart claims that much will depend “upon the success with which it does its work, and the focus here must be initially, and especially, upon the [Office of the Prosecutor].”Footnote 31 Here, he takes up research in the social sciences that claims that “the swiftness, and especially the likelihood, of punishment may more effectively deter crime than the severity of punishment.”Footnote 32 However, for this reviewer, this results-oriented vision should not overshadow the appearance of impartiality.
Indeed, the challenges facing the ICC are inherent in international institutions. In her chapter, Mona Rishmawi examines the practice of human rights fact-finding missions, highlighting their credibility as their most important asset.Footnote 33 In Syria, Libya, Sri Lanka, Iraq, and Guinea, investigations by the Office of the UN High Commissioner for Human Rights were carried out without the consent of the states concerned but, nevertheless, had an impact. As Rishmawi’s contribution demonstrates, human rights and criminal investigations differ in their methods and principles, but the two modes of investigation are both dependent on the appearance of impartiality and independence to secure their effectiveness.
Next, the contribution of Luc Côté examines the question of whether the desired independence of an international prosecutor can be achieved.Footnote 34 The question is important since every international prosecution must rely on the cooperation of states in carrying out its activities, and decisions to prosecute must also take into account considerations that have political implications.Footnote 35 However, for this reviewer, Côté’s conclusion seems fatalistic. He writes that “to appear independent, he or she needs to act as such, showing impartiality and measure in his or her conduct, something that unfortunately no law can provide.”Footnote 36 But, as a legal concept, impartiality requires all litigants to be treated fairly in a transparent and consistent manner, and, thus, the prosecutorial strategies embraced at international courts, such as the ICC, must view this as a matter at the heart of both the rule by law and the rule of law.
Lisa Oldring’s chapter also deals with the principle of the rule of law, particularly in the post-9/11 context, where in the interests of national security, states have adopted measures seriously limiting the enjoyment of human rights.Footnote 37 The powers of intelligence services have also been strengthened in a way that affects the proper administration of criminal justice.Footnote 38 Oldring suggests that such powers need robust controls, both internally within the services and externally within the executive, the judiciary, and the legislature.Footnote 39 Oldring, however, does not say how the flexibility sought in the global fight against terrorism could be reconciled with the requirements of strict legal controls, particularly in circumstances where a pragmatic idealism is favoured by states.
In her chapter, Fannie Lafontaine provides an example from Canada, where immigration measures rather than prosecutions have been used to remove the perpetrators of international crimes from Canadian territory.Footnote 40 At issue appears to be the complexity engendered by the prosecution of international crimes by a third country as well as the astronomical costs associated with such prosecutions.Footnote 41 Removal under immigration laws is thus a compromise,Footnote 42 with limited political repercussions despite the fact that the few prosecutions that have taken place in Canada have not caused the feared political controversy abroad. Although a reality, budgetary considerations are a sibylline way of naming what is, in essence, the lack of political will, with Lafontaine arguing that there can be no justification for Canada acting in a way that is incompatible with its international obligations by reason of a lack of money.Footnote 43
François Larocque’s contribution raises a similar concern.Footnote 44 He argues that an inconsistency persists in international law between the prohibition of torture as a rule of jus cogens, coupled with the recognition of the right of victims to reparation, and procedural obstacles to the exercise of civil remedies by these victims in a transnational context.Footnote 45 Citing the respected works of Ian Brownlie and Philip Jessup, Larocque sees no reason to distinguish between rules of criminal jurisdiction and rules governing jurisdiction in civil matters.Footnote 46 Yet, for this reviewer, this is precisely the heart of the problem, with foreign state immunity continuing to hold ground because of the failure to codify the matter of civil jurisdiction for serious human rights abuse,Footnote 47 bolstered by the conservative approach of the International Court of Justice, which accepts no limitation to the rule of material immunity in the name of order and the good conduct of international relations.Footnote 48 The criticism made by Larocque and others is fair,Footnote 49 with this reviewer further noting that the positivist and voluntarist paradigm that still dominates international law also poses real difficulties in this context for the protection of human rights.
Confronted with this paradigm, Tim McCormack uses his chapter to argue that there is a need for a “long term view of incremental progress” when it comes to assessing the effectiveness of international law.Footnote 50 Slow progress comes at significant historic moments, with McCormack connecting the fall of the Berlin Wall with the subsequent creation of international criminal courts as an example.Footnote 51 Even when major states like the United States, China, India, or Russia do not take part in these developments, McCormack believes that their influence and impact provide lessons “for the progressive development of international law.”Footnote 52 He is, however, less optimistic when he assesses the progress made in respecting the rules in armed conflicts, with prosecution recognized as “an ex post facto response.”Footnote 53 The failure “to prevent even some armed conflicts from occurring” is also a valid criticism to be lodged against our current system of global governance.Footnote 54
This theme of global governance animates Part 3 of the book, subtitled “Of Women and Leadership,” with leadership and governance being intrinsically linked. Beyond the proliferation of institutions and rules of international law, it is fundamental to know by whom and how we ensure their effective functioning. In his chapter, Fabrizio Hochschild writes that a “bold, enlightened leadership with a global, long-term vision is critical.”Footnote 55 Through a comparison of the efforts of UN Secretary-General Dag Hammarskjöld with those of Louise Arbour, Hochschild reveals that compliance with international norms often depends on the integrity, courage, and loyalty to the goals and principles of the UN exhibited by those tasked with their observance.Footnote 56 His work shows that, when the vision for which one exercises leadership is sufficiently shared and clarified, courage is easily assumed. However, Hochschild recognizes that, in the presence of conflicting values, courage may be slower to emerge, or to be discerned, although it remains absolutely essential for effective governance.Footnote 57
A case study on poor leadership is then provided by Philip Alston who writes about the lack of recognition of a meaningful role for human rights at the World Bank.Footnote 58 Under the pretext that the bank’s texts prohibit interference with the political affairs of states and focus solely on economic considerations when granting loans, the international financial institution fiercely resists adopting an approach that takes human rights considerations into account. At the same time, the World Bank has developed policies “on issues as diverse as corruption, money laundering, terrorist financing, governance and rule of law,” which are just as political as human rights considerations for many governments.Footnote 59 For Alston, this inconsistency is based on an artificial construction of the bank’s mandate and a vision that is both anachronistic and counterproductive.Footnote 60 Taking human rights into account would allow the World Bank to better understand the socio-political contexts in which it invests, which in turn would make its aid more effective. Its resistance to human rights raises the question of whether the World Bank really has an interest in fighting extreme poverty and promoting shared growth, being the goals that it displays everywhere as slogans.
Slogans can be hollow formulas aimed at instigating the imagination, while they hide the situations of ineffective governance that give them a semblance of vitality. For Antonia Potter Prentice and Camille Marquis Bissonnette, this is the case with UN Security Council Resolution 1325, which was adopted in 2000 in order to foster a strong “women, peace and security” agenda. The authors claim that the resolution has produced some concrete and tangible results because “it has pushed changes in the perception of women within peace processes and institutional architecture in particular.”Footnote 61 But if all we have achieved is a change of perception, given the UN Charter’s long-standing guarantees of gender equality and the equal participation of men and women in the UN organs,Footnote 62 it is time to question the value of such declarative resolutions.Footnote 63 Potter Prentice and Marquis Bissonnette identify the resolution’s numerous failures,Footnote 64 demonstrating the need to focus on leadership and enforcement rather than on more rules and institutions. Indeed, they recommend moving away from a feminist logic favouring the promotion of women’s rights, preferring to embrace the problem in terms of gender equality and human rights.Footnote 65
The last two chapters of Part 3 draw the same conclusion. Dealing with women incarcerated in Canadian prisonsFootnote 66 and women prohibited from wearing the niqab,Footnote 67 these contributions serve to show that substantive gender equality cannot be achieved without the leadership of those concerned — namely, women. Kim Pate’s chapter shows that, since Louise Arbour’s 1996 report into events at the Kingston prison,Footnote 68 the situation of incarcerated women has deteriorated due to a focus on the excessive criminalization of marginality and the marginalization of criminalized women, particularly women and girls from Indigenous communities.Footnote 69 For her part, Natasha Bakht shows that despite openly anti-niqab policies being adopted in Canada and France, women are at the forefront of challenging those policies in the courts.Footnote 70 Thus, they refuse to be told what is better for them by paternalistic, patriarchal, and misogynist systems.
To conclude, this book pays a well-deserved tribute to the career of Louise Arbour through contributions that are impactful in their analysis and constructive in their proposals. While the book may have, within certain chapters and through the profile of some of its authors, an activist content, the fact remains that the various subjects are treated seriously. It is not a groundbreaking book on the theory of law and international relations and thankfully so. Instead, the book serves as an indispensable bridge between the theory and practice of law and international relations, providing a useful guide for understanding the complex relationships between law, politics, and power in the implementation of human rights on both the international and national legal planes. As Louise Arbour herself has explained, unless there are gaps, the law is not often the most difficult issue;Footnote 71 it is at the political level, when rights have to be given concrete meaning, that things get tough.Footnote 72 Her words of advice animate this book: “[T]rust your instinct. Don’t be scared. You have to be able to take risks, not to fit the mold and not to let anybody squeeze you into their expectations.”Footnote 73
