Global Policy Forum

By Olivia Ward

The American-led war on terrorism is a threat to international justice and a challenge to the rule of law in the 21st century, says one of the world's most eminent jurists. "Sept. 11 led to a major overreaction by politicians in many countries," said Richard Goldstone, the first chief prosecutor at the war crimes tribunals for former Yugoslavia and Rwanda. "In dictatorships their actions don't matter, because we don't expect any respect for human rights. But in a democracy we are handing victory to terrorists if we change our way of life and abandon human rights."

Goldstone will be one of 30 leading international law experts speaking at Osgoode Hall Law School's Raoul Wallenberg Day International Human Rights Symposium, held today and tomorrow. The symposium will be opened by Justice Minister Irwin Cotler, who has investigated the fate of Wallenberg, a Swedish diplomat who saved more than 100,000 Hungarian Jews from the Nazi death camps during World War II. Wallenberg disappeared when the Soviet army entered Hungary.

Other speakers include Yale Law School's Dean Harold Koh; South African Constitutional Court Justice Albie Sachs, a former political prisoner; former Ontario premier Bob Rae; Canada's U.N. Ambassador Allan Rock and York University chancellor Peter Cory, former Supreme Court justice.

Goldstone, who chaired an International Bar Association task force on terrorism, is a member of South Africa's Constitutional Court. He will speak on the legacy of the Nuremberg trials that brought Nazi war criminals to justice after World War II. "International criminal justice didn't exist before World War II, but now it's a huge industry," he said. "The use of national and international courts, and the creation of the International Criminal Court are tremendous forward steps. Canada should get much credit for leading the movement to create the court."

But, said Goldstone, since September, 2001, the international justice system and the rule of law have been weakened by the actions of governments joining a "war on terror." The U.S. in particular has declared suspects "unlawful combatants" and detained them without trial, as well as deporting them to Guantánamo Bay, Cuba, and Middle Eastern countries where torture is routinely used.

"Terrorism must be fought for what it is, that is, criminality. To use the analogy of a real war is to elevate the status of the terrorists, and hand them the advantage," says Goldstone. In a time of crisis, he added, "the role of the judiciary is always weakened, and that is exactly when you need it. Politicians feel that they must do something, and that becomes the basis for unnecessary restrictions. In time of peace, human rights aren't threatened in the same way."

However, he said "we must be realistic about terrorism, and not naí¯ve. Enforcement officials need to be given tools that might have been unthinkable not too long ago. Because of modern technology, when criminals make use of the Internet, electronic banking and access to travel, law enforcement must be able to deal with them."

The key to maintaining legality, Goldstone said, is "oversight, preferably judicial. The main thing is that people who are using tools like wiretapping know somebody is watching. If not, you can be absolutely certain there will be abuse." The most obvious examples, he said, are Iraq's Abu Ghraib prison, where prisoners have been subjected to humiliation and abuse by U.S. forces, and Guantánamo Bay, where complaints of human rights violations surfaced in spite of attempts to close it to outside scrutiny.

The war on Iraq - fought without U.N. authorization - has also damaged the United Nations system as well as the rule of law, Goldstone said. "I don't think anyone wants to go back to pre-World War II days when the powerful did exactly as they wished. It's not in the interest of the democracies, including the United States."

The best way of protecting the rule of law, he said, was strengthening the U.N. Security Council, which has the power to authorize the use of force. "The council must be enlarged to reflect the world community in 2005. It's very important to add voices. But a mechanism should also be found for avoiding a situation where one veto can stop a resolution that is supported by the other nations."