Having served as a Justice of the Supreme Court of Canada, as the UN’s Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda, and as the UN High Commissioner for Human Rights, the Honourable Louise Arbour is one of Canada’s most respected legal minds. On March 4, Arbour delivered the 2015 Bluma Lecture entitled “Are we too ambitious in changing the world?” at the Toronto Reference Library. Arbour spoke to The Varsity about her legal career, overcoming barriers to human rights progress, and the balance between liberty and security in Canada.
The Varsity: Between indicting the first sitting head of state; introducing sexual violence as an article of the crimes against humanity; and working extensively with the concept of human rights, which is still relatively new, much of your work has involved challenging existing norms. Have you often felt constrained in that kind of work?
Louise Arbour: I think the constraints are inevitable when you’re trying to do something new. In the last two decades, when I was working on these issues, there was a great mobilization toward an expansion of human rights protection and toward the concept of accountability, but now I think there’s a little fatigue in the system, or confusion about priorities.
TV: How did human rights become a key issue for you?
LA: In my own professional development, it came through my interest in criminal law, which is in fact the way it evolved for many people in Canada. For many people in my generation, going to law school before the [Canadian Charter of Rights and Freedoms], the root of our preoccupation with the protection of vulnerable people came through our understanding of the necessity to give protection to people charged with crimes, because they stand alone against the might of the state. When the Charter came into effect and these rights that were guaranteed just by common law to the accused in a criminal system became a much broader sets of rights guaranteed to everybody, constitutionalized and enforceable by courts, it was an expansion of something that, for me, started with an interest in the criminal justice system. For others it would have come differently, which is why going to work in international criminal justice was such an attractive step for me, because it was rooted in my own expertise.
TV: At the Bluma Lecture, you spoke about Canada’s judicial system as very highly respected internationally. [Yet] Canada’s record on corporate responsibility is justifiably viewed as less than admirable. How have perceptions of Canada changed in your experience internationally?
LA: Throughout the period of time that I did work internationally, there has been a decline in the capacity for Canada to play a leadership role. Canada was long viewed as a voice that mattered, a convenor, a moderate country whose opinions mattered, with a very progressive agenda that had a lot of appeal, and not just in Western countries. Canada was a generous country with foreign aid; it was at the forefront of a lot of initiatives regarding human security, and in a manner that was very inclusive and non-partisan. Over the years, this view was eroded considerably, and Canada [is now] being fingered as one of the examples of the so-called double standard which is at the heart of the human rights complaints by a lot of developing countries who claim that Western powers often preach but don’t comply — but within judicial circles, particularly in countries that have a similar judicial background, the work of the Supreme Court of Canada in particular continues to be viewed as of very high quality and very influential.
TV: How can we combat the systemic fatigue that you mentioned?
LA: You can’t fight every good fight. I think you pick a few in which you’re deeply engaged, and then you advance other causes in a sense by delegation. You vote for governments that will sustain the efforts in which you cannot be engaged on a day-to-day basis. You cannot be at the forefront of [every] agenda — you have to pick your battle. If everyone picks one good fight, we’re in pretty good shape.
To young people I also say, if you’re interested in making the world a better place and getting engaged, the most important thing is to get skills. It doesn’t matter what skills, but it’s not enough to have your heart in the right place. You have to have a real discrete capacity to contribute, whether it’s in a scientific environment, in law — it doesn’t really matter what your skills are, but they have to be very sharp, and then you can be out there with your good heart and actually make a difference.
TV: Do you think that Canadians understand what kind of trade-off they’re going to be making with liberty and security [in regards to Bill C-51]?
LA: If you put people in an example where they have to trade off their own liberty to enhance their security, they’re pretty sober about what they’re prepared to do. For instance, people who travel in airplanes are prepared to go to a lot of inconvenience and invasion of their privacy to enhance their security, but people accept that because they see in a very concrete way that it’s all about them. Their own invasion of privacy is balanced against their enhanced security, and they know how far they’re prepared to go. When it’s more abstract — when we talk about the fight against terrorism more broadly — people always assume that the restrictions on liberty will be a restriction on the liberty of somebody else to increase their own safety. It’s very invidious, and it makes the choice much easier to make. I’m afraid that a lot of proponents of these measures play on that: that it’s not about you, it’s about “the bad guys,” so [we] surrender a lot more than we should — all that within a culture of fear, which is at times vastly exaggerated.
TV: You’ve defended section 7 of the Canadian Charter of Rights and Freedoms [“the right to life, liberty and security of the person…”] as the foundation of all human rights, but it seems that in the debate about Bill C-51 there are threats to that liberty coming from both sides. How can we strike a balance and ensure that human rights are safeguarded?
LA: On that I would say it’s a good thing we have the courts to be the final arbiters. With the framework of reasoning that is not driven by ideology or political pressure but by jurisprudence, and with a line of reasoning that is transparent, public, and persuasive, [the court] is ultimately where it plays out.
TV: A lot of the discourse [on Bill C-51] seems to be oversimplified.
LA: Exactly. The one thing we need to ask of our legislators and our governments is that they take initiatives that are supported by the evidence. Unfortunately it’s much more tempting, and the electoral payoffs seem to be much greater, in proceeding by slogans and assertions, or with this kind of dichotomy: if you’re not with us, you’re against us. There’s no room for anything nuanced or more complex, which is unfortunately the way that even very mature democracies seem to function.
TV: How would a shift toward evidence-based policy impact the way that Canada responds to conflicts abroad?
LA: The same thing! We’re at war in a part of the world where I’m not hearing from our politicians and decision-makers anything that suggests a deep understanding of why this military intervention on our part is taking place and how it’s situated in a broader policy of engagement in the region generally. We never hear that there’s a master plan that shows a profound understanding of the situation at play and of the role and the contribution that Canada can make on that. It’s improvisation 101, which is bad enough on any initiative, but very severe when it’s on a decision to go to war.
TV: My final question arises from the Bluma Lecture: if we [in Canada] find ourselves in a situation in which our reach exceeds our grasp in the pursuit of justice, how should we proceed?
LA: The international environment works overwhelmingly by consensus, and that’s why you need the leadership of countries that have a tradition of being particularly good at reaching out. One can think of a concept of political empathy, trying to see what the world looks like from your opponent’s point of view. It’s not a sentimental idea, this empathy, it’s a clinical thing. If you’re negotiating anything, it’s fundamental, not only that you have clarity about your own best position and bottom line position, but that you have a sophisticated understanding of what your opponent’s best position is and where there’s room for compromise. That may be one of the things we need to develop. It’s a reaching out to diffuse the increasing polarization that we see between, quote, “us and them.”
