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Report from Workshop 3 on Education: "Facing denial in society and education" Presentation by Mr. Per Ahlmark Presentation by Mr. Stéphane Bruchfeld Presentation by Professor Irwin Cotler Presentation by Dr. Shimon Samuels Presentation by Professor Robert Jan van Pelt Presentation by Professor Irwin Cotler Cotler, Irwin The Holocaust, Genocide, and Human Rights:What Have We Learned? What Must We Do? May I preface my remarks with a personal statement or, perhaps I should say that my paper should be understood against the backdrop of my own sensibility on the issue - but which sensibility is not unrelated to the ethical and juridical subject-matter of the paper. In a word, speaking on a Holocaust-related topic is something I do sparingly, and with difficulty. For the subject matter evokes for me a sense of awe and reverence - indeed, humility - and I address it with a certain degree of hesitation, and not without a certain measure of pain. For I am reminded of what my parents taught me while still a young boy – an education that informs my scholarship and advocacy to this day - that there are things in Jewish history that are too terrible to be believed, but not too terrible to have happened; that Oswiencim, Midanik, Dachau... these are beyond vocabulary. For the Holocaust, as Professor Yehuda Bauer has stated, is "uniquely unique" - a war against the Jews in which, as Elie Wiesel put it, "not all victims were Jews, but all Jews were victims". But if the Holocaust is uniquely unique – if it is beyond vocabulary – it is, arguably – and here sensibility merges with substance – beyond law and the ordinary contours of ethical and human rights discourse. But, if it is beyond the law, it may also escape the law, so that the very profundity of the horror – be it the Holocaust or its denial – becomes the basis for its immunity from law. Conversely, if human rights law is to address it, it must somehow normalize the evil; yet the very "normalization" - while legally exigent – is somehow existentially unreal. And so the paradox: the very enormity – indeed transcendental – character of the evil may defy legal remedy; while the very use of legal remedy - the "banalization" of evil – is the banality also of the law. An evil, then, that is "uniquely unique" requires the imaginative use of human rights law and legal remedy that is unique, if not uniquely unique, a pedagogical approach that will underlie the ethical and juridical "lessons learned – action to be taken" that find expression in this paper. Indeed, we meet at a historic moment of remembrance and reminder, of witness and warning. For the Stockholm Conference takes place in the wake of – and on the occasion of – four historic moral/juridical initiatives that emerged from the ashes of the Holocaust: the Universal Declaration of Human Rights – regarded as the magna carta of humankind; the Genocide Convention – the testament of man's inhumanity to man - and its injunction of "never again"; the Geneva Conventions, the expression and example of international humanitarian law; and the fiftieth anniversary of the codification in 1950 of the "Nuremberg Principles" by the United Nations General Assembly. And so, on this fiftieth anniversary of the Nuremberg Principles – of the historic initiatives arising out of the horror of the Holocaust and the imperative of Holocaust remembrance – we must ask these questions: * What have we learned? * What must we do? May I now summarize the existential lessons of the Holocaust – of the agony and hope of the Genocide Convention and the Universal Declaration – the lessons to be learned and the action to be taken. For as Aldous Huxley put it, "life must be lived forwards, but it can only be understood backwards". Herewith some of the existential truths, the understandings of Holocaust remembrance, of Nuremberg, the Genocide Convention and Human Rights fifty years later. Lesson 1 The Teaching of Contempt and the Demonizing of the Other: The Road to Genocide. Nazism almost succeeded not only because of the technology of terror and the industry of death, but because of the ideology of hate, the teaching of contempt, the demonizing of the other; for the Holocaust was nothing if not a genocidal culture of hate that dehumanized its victims as prologue – if not justification – for their genocide. Fifty years later, the lessons not only remain unlearned, but the tragedy is being repeated. For we have been increasingly witness of late – from Central Asia to Central Africa and from Central Europe to Central America – to a growing trafficking in hate – to a murderous teaching of contempt - of the demonizing of "the other" – and which, in Bosnia and Kosovo, Rwanda and Burundi, included state-orchestrated incitement to ethnic cleansing and genocide. But, as the witness testimony and documentary evidence of the Nuremberg trials – of the trial of Nazi propagandist Julius Streicher – demonstrated, "this demonizing of the other" – this is where it all begins. Indeed, as the Supreme Court of Canada affirmed in upholding the constitutionality of anti-hate legislation, "The Holocaust did not begin in the gas chambers – it began with words". What is needed, therefore – as a first lesson growing out of the horror of the Holocaust, and as an appropriate expression of Holocaust remembrance and education – is the development of a culture of human rights as an antidote to a culture of hate. This culture of human rights can be organized around the very principles inspired by Holocaust remembrance and sanctified in the Universal Declaration of Human Rights, including respect for the inherent dignity and worth of the human person and for the equal dignity and worth of all persons; of the right of minorities to protection against group vilifying speech; of the real harm resulting from assaultive speech; of respect for our international treaty obligations precluding racist hate speech from the ambit of protected speech; and for the promotion and protection of the underlying values of a free and democratic society. Indeed, this conference has a central role in the promotion of a culture of human rights through the prism of Holocaust remembrance, education and research – and for universities – particularly law schools – NGOs, and a partenariat between governments and civil society and the media to serve as centres for human rights education, research and advocacy. Lesson 2 Crimes of Indifference, Conspiracies of Silence Nazism almost succeeded not only because of the culture of hate and industry of death, but because of the crime of indifference, the conspiracy of silence. And, indeed, we are witnessing an appalling indifference in our day to the unthinkable - ethnic cleansing – to the unspeakable – genocide, and worst of all to what was a preventable genocide in Rwanda. It is our responsibility, then, to break down the walls of indifference, to shatter the conspiracies of silence wherever they may be. For neutrality, as Elie Wiesel put it, always means coming down on the side of the victimizer, never on the side of the victim. In a word – and we must adhere to this ourselves if we are to convey this to others: neutrality in the face of evil – whether of individuals or states – is acquiescence in, if not complicity with, evil itself. It is not only abandonment of the victim; it is encouraging the victimizer. As Albert Camus put it: "If you keep on excusing, you eventually give your blessing to the slave camp, to cowardly force, to organizing executions, to the cynicism of great political masters; you eventually hand over your brothers." Lesson 3 The Vulnerability of the Powerless The third lesson is that Nazism almost succeeded – and the genocide of European Jewry did succeed – not only because of the vulnerability of the powerless, but the powerlessness of the vulnerable. It is not surprising that the triage of Nazi racial hygiene – the Sterilization Laws, the Nuremberg Race Laws, the Euthanasia Program – targeted those "whose lives were not worth living"; and it is not unrevealing, as Professor Henry Friedlander points out in his work on "The Origins of Genocide", that the first group targeted for killing were the Jewish disabled – the whole anchored in the science of death, the medicalization of ethnic cleansing, the sanitizing even of the vocabulary of destruction. And so it is our responsibility as government representatives – and morally as citoyens du monde – to give voice the voiceless, as we seek to empower the powerless - be they the disabled, the poor, gay and lesbians, the refugee - whoever they may be. And if in confronting injustice you ask: Where are we to begin? Against what injustice? On behalf of what cause or victim? How does one rank human suffering? I want to suggest to you that the problem is not which cause of human rights we are serving, but whether we are serving the cause of human rights at all; not which victim we are defending, but whether we are indifferent to the plight of the victim, whoever he or she may be; not whether a claim is being asserted by a particular minority, but why that minority must always stand alone. Why must it always be "their" concern, and not "our" responsibility. For if I have learned anything from my work with Holocaust survivors – with human rights monitors and political prisoners – it is this: We are each wherever we are, the guarantors of each other's destiny; and it made no difference whether I was with Holocaust survivors in any part of the world or acting as counsel to political prisoners in Moscow, or dissidents in Syria, or Ethiopian Jews in Ethiopia, or blacks in South Africa or aboriginal peoples in Canada. Everywhere the code words were the same. Lesson 4: The "Trahison des clercs" Nazism almost succeeded not only because of the "bureaucratization of genocide", as Robert Lifton put it, but because of the trahison des clercs as Elie Wiesel has described it – the complicity of the elites – physicians, church leaders, judges, lawyers, engineers, architects, educators, and the like. Indeed, one only has to read Gerhard Muller's book on "Hitler's Justice" to appreciate the complicity and criminality of judges and lawyers; or to read James Van Pelt's book on the architecture of Auschwitz, to be appalled by the minute involvement of engineers and architects in the design of death camps, and so on. Holocaust crimes, then, were also the crimes of the Nuremberg elites. As Elie Wiesel put it, "Cold-blooded murder and culture did not exclude each other. If the Holocaust proved anything, it is that a person can both love poems and kill children". And so it is our responsibility to speak truth to power, and to hold power accountable to truth. And those of us to who have been entrusted with the education and training of the elites should ensure that Elie Wiesel is studied in schools of law and not just in classes of literature; that the double entendre of Nuremberg – of Nuremberg racism as well as the Nuremberg Principles – is part of our learning as it is part of our legacy; that Muller's "Hitler's Justice" underpins our perspective as it informs our principles – on justice and injustice. Lesson 5: The Integrity of Words: The Misappropriation of the Holocaust One must guard against the appropriation – or misappropriation – of Holocaust metaphors as, for example, in their application to contemporary issues in human rights and public ethics. As Arthur Caplan put it, "it cheapens the horror of the Holocaust not to understand that care and caution are obligatory where the invocation of this most powerful of analogies is concerned." In a word, blanket invocations such as "abortion is today's Holocaust" or "legalized euthanasia is the Nazification of medicine", or the characterization of feminists as "femi-Nazis" not only bespeak a callous ignorance of the Nazi Holocaust, but a misrepresentation of issues in human rights and ethical conduct today. As Caplan put it, "to use the Nazi analogy with abandon is to abandon history". This is not to say that Nazism cannot be used as a frame of reference - that, for example, Nazi abuse of medical experimentation on human beings cannot be a point of reference in medical ethics; or the lessons of the Doctor's Trial is not source and substance of contemporary international human rights law regarding medical experimentation on human beings. On the contrary; the Nuremberg Code coming out of the Doctor's Trial is, in effect, the Nuremberg Principles in matters of medical ethics. As Professor Jay Katz put it - himself a survivor and psychiatrist - the Nuremberg Code serves as an international covenant for the inviolability of the human person, for the inherent worth of every human being. Accordingly, one should learn – not analogize easily - lest the wrong analogy distort the learning. Lesson 6: Racism and the Holocaust Every international conference on the Holocaust has as its unarticulated – if not articulated – major question and inquiry, "WHY?" Why the Holocaust? Why the genocide? I don't purport to have an answer, but offer the following thought grounded in the work of Daniel Goldhagen and Christopher Browning and others: that Nazism almost succeeded not only because, as set forth above - the ideology of hate, and the industry of death, the crime of indifference, and the complicity of the elites – but because of the internalized legacy of racism, because of an ingrained culture of racism and anti-semitism. Indeed, it is this culture of racism, this eliminationist anti-semitism anchored also in the theory and practice of racial hygiene - in the use of medical metaphors in the sanitizing of racism - that transferred "ordinary Germans", in Daniel Goldhagen's phrase, into "Hitler's willing executioners". And if the critique be made - as it is - that if this be true of Germans, is it not true of others - why single out the Germans? The answer must be that racism and anti-semitism was not only German but European and beyond - that ordinary men became willing executioners in the Baltics and Balkans, in Vichy France and Quisling’s Norway - that even Norway enacted Nuremberg Race Laws and deported its Jewish population to Auschwitz. And so what must be realized – and as history has taught us only too well – that while it may begin with Jews, it doesn't end with Jews; indeed, that while it may begin with Blacks, or Asians, or Moslems, or Ukranians, or Armenians, as victims of the violations of human rights, it doesn't end with them. The struggle against racism of any kind must, therefore, not be seen simply as a Jewish issue, or an Asian issue, or a Black or Moslem issue, or ethnic issue, but as a profound Justice issue of the first import. The familiar words of the German Protestant theologian, Martin Niemöller, bear not only recall today, but acting upon them beyond today. "They first came for the Catholics, but I wasn't a Catholic so I did nothing. Then they came for the Communists, but I wasn't a Communist so I did nothing. Then they came for the trade unionists, but I wasn't a trade unionist so I did nothing. Then they came for the Jews, but I wasn't a Jew so I did nothing. Then they came for me, and there was nobody left." Lesson 7: The Holocaust, Thefticide and Restitution. The question of restitution for Jewish property confiscated or stolen in anticipation, during, and in consequence of the Holocaust, includes not only State and individual responsibility for Holocaust crimes, but the right of victims to redress and reparation for these Nuremberg crimes. Indeed, in the absence of the historiography of "Nuremberg" or Holocaust law, the notion of "restitution of property" might well be misleading, if not also a misnomer. The term restitution, standing alone, ordinarily reflects domestic principles underlying civil and property law, or international law principles with respect to State responsibility in matters of expropriation of property or aliens. But restitution for Holocaust crimes – for genocide, war crimes, and crimes against humanity – is something dramatically different in precedent and principle. Thus, even the term "war crimes" is a misnomer; for we are not talking about crimes committed against combatants in the course of the prosecution of a war; rather, we are talking about crimes committed against civilians in the course of the persecution of a race. We are talking about crimes committed in anticipation of the Holocaust, attending the Holocaust, or in consequence of it. In a word, we are talking about "thefticide"–the greatest mass theft on the occasion of the greatest mass murder in history. As the Norwegian Minister of Justice, Grad Liv Vaala, recently explained, "[t]he loss of the Jews cannot be limited to economic calculations only. The organized deportation and liquidation was mass murder, murder of a people. We cannot change what happened, but we can set a moral standard to remind everyone of this dark chapter in the history of Europe." It is this "thefticide" which accounts for the cri de coeur of Holocaust survivors whose angst I witness at every conference or seminar on "The Restitution of Confiscated and Other Jewish Property in World War II." What they are trying to tell us is that behind every dormant Swiss account, behind every plundered property, behind every gold dental bridge, behind every unrecovered insurance policy, is the narrative/horror of the Holocaust. The problem, of course, in this convergence of the existential and the juridical is that the transcendental horror of the Holocaust, the liquidation of a people as well as property, the plunder of property attendant upon the liquidation of people, appears to belie any legal remedy; while the civil and international law principles of restitution could not have imagined the Holocaust. In essence, the existential character of the evil appears to overtake the law’s capacity to address it, while the law’s capacity to address it seems to require us to banalize the evil. All of this was dramatically revealed to me in the course of discussions on the issue of restitution in which I have participated over the past three years. I was exposed to a series of myths, anchored both in revisionist law and revisionist history, that sought to deny, escape, insulate, or immunize states and their government agents for responsibility for restitution. It appeared almost as if each of the European countries against whom a claim could be made had its own national myth (which myths were often overlapping), while all countries asserted a shared generic myth of non-responsibility in juridical terms arising from their respective national myths in historical terms. I have written elsewhere ("The Holocaust, Thefticide, and Restitution: A Legal Perspective", Cardozo Law Review, Vol. 20, No. 2, December 1998) of, first, the inventory or set of case studies of these national myths; and second, a corresponding rebuttal to the myths anchored in a restatement, or contextualization, of the principles of the law of restitution in the context of the Holocaust and Holocaust law. Lesson 8: Holocaust Denial: From Assaultive Speech to Criminal Conspiracy The Holocaust denial movement – the cutting edge of anti-semitism old and new - is not just an assault on Jewish memory and human dignity in its accusation that the Holocaust is a hoax; rather, it constitutes an international criminal conspiracy to cover up the worst crimes in history. Here is the historiography of the Holocaust in its most tragic, bitter irony – in its ultimate Orwellian inversion. First, we move from the genocide of the Jewish people, to a denial that the genocide ever took place; then in a classic Orwellian cover up of an international conspiracy, the Holocaust denial movement whitewashes the crimes of the Nazis, as it excoriates the crimes of the Jews. It not only holds that the Holocaust was a hoax, but maligns the Jews for fabricating the hoax. And it is our responsibility to intervene to unmask the bearers of false witness – to expose the criminality of the deniers as we protect the dignity of their victims. Lesson 9: Bringing Nazi War Criminals to Justice – Impunity, Accountability, Lessons of the Holocaust If there is one enduring lesson from the Holocaust to Cambodia, from Bosnia to Rwanda, it is, tragically enough, the cycle of impunity – the betrayal of Nuremberg. The presence of Nazi war criminals amongst us – fifty years after the Nuremberg Judgements – is a moral, juridical obscenity, an affront to conscience, a betrayal of everything that people fought for and died for. Again, the word "war criminal" is itself somewhat of a misnomer. For we are not only talking about the killing of combatants in the course of the prosecution of a war, but the murder of innocents in the course of the persecution of a race. Indeed, the question of bringing Nazi war criminals to justice is inextricably bound up with the struggle against Holocaust denial. As Holocaust denier Ernst Zundel put it, "As we all know, the so-called Holocaust is nothing else but a hoax, a gigantic fraud…and if there were no crimes, that must mean that there are no criminals – there are no so-called Nazi war criminals to be brought to justice." Accordingly, if we do not bring Nazi war criminals to justice there may be those who will say, ten or twenty years from now, "You see, there were no criminals – therefore it must be that there were no crimes." Let there be no mistake about it – every time we bring a Nazi war criminal to justice, we strike a blow against the Holocaust denier movement. Moreover, an inquiry into the failure to bring Nazi war criminals to justice in each of our respective countries these past fifty years reveals that it resulted not from the absence of legal remedy, but from the failure of political will; and so, it is not surprising also that hundreds of modern war criminals from the killing fields of Bosnia, Rwanda, Cambodia, Haiti, Somalia, Chile and the like, have found base and sanctuary in Canada; and that major war criminals continue to elude the International Criminal Tribunals in former Yugoslavia and Rwanda. Accordingly, the struggle against impunity – as an expression in Holocaust remembrance and the implementation of the Nuremberg legacy – requires that: * we recognize that states have an obligation to bring the perpetrators of Nuremberg crimes to justice – to prosecute or extradite; * we invoke the full panoply of remedies at our disposal to bring war criminals to justice; * we lead a campaign for the necessary ratifications to bring the International Criminal Court into being; * we support the principle of non-immunity for former or existing heads of state who have committed international crimes; * we protect the right to asylum, and at the same time, ensure that refugee law is not abused to provide base and sanctuary to international criminals; * we develop enforcement mechanisms – as Canadian Foreign Minister Lloyd Axworthy has proposed under the rubric of "human security" – for the protection of civilians in armed conflict, particularly as regards war crimes and crimes against humanity; * we take the lead in "engendering justice", both at the International Criminal Tribunals for Former Yugoslavia and Rwanda, as well as with respect to the International Criminal Court; * we need to institutionalize – domestically and internationally – the revolutionary jurisprudential developments in the struggle against impunity, particularly those which have emerged from the Akayesu, Tadic, and Pinochet cases; * we enact model criminal law legislation organized around the principle of universal jurisdiction to bring war criminals to justice. Lesson 10: The Right of Memory One of the more compelling lessons of Nuremberg – of the Holocaust – and which is not enshrined yet as a human right – is the right to remember. Indeed, if Elie Wiesel can be said to have "patented" a human rights, it is the right of remembrance, of memory. Once again, it is best to let Elie speak, for any paraphrase loses in translation. One more thing: we have learned that human rights naturally include the right to be free, the right to be together, the right to live, but also the right to remember. Memory is one of the human rights to which we are all entitled. For the enemy was also against memory. Not only the enemy in Nazi Germany, but even – and I don’t compare, again, please, remember I never compare any regime to the Nazi regime, any criminal leader to Hitler or Eichmann – the Soviet totalitarian policy has tried to manipulate memory. One year, Stalin occupied fifty pages; the next year, only one page; the year after, not even a word of praise – he was no longer a leader, but a criminal, or the other way around. A dictatorship feels that it has the right to adapt, to adjust, to mutilate memory. And we believe that every person has the human right to be remembered as he or she was. Lesson 11: The Rights of Children If there is an atrocity that belies understanding – it is the wilful exploitation, maiming, and killing of a child – the most vulnerable of the vulnerable. What, then, is one to say about the genocide – the mass murder – of children – the destruction of millions of universes, of generations yet unborn and never to be born. As Bialik put it – writing after the Kishinev pogroms in 1905, which killed hundreds of children - "there is no revenge that can be invented for the murder of a child". Indeed, the Nazi genocide was the genocide of millions of children, and 1.5 million children perished in the Holocaust of European Jewry. But we have yet to learn from this most horrific of horrors, let alone act upon it. Indeed, nowhere is the Dickensian character of the explosion of human rights, and the violations of rights, more demonstrated – and more dissonant – than in children's rights. On the one hand, more countries have ratified the International Convention on Childrens' Rights more quickly than any other treaty; indeed, more have ratified it than any other treaty. Yet many of the 190 states that have ratified the treaty continue to violate the rights of children in a massive way. As a result, millions of children – the statistics are simply numbing – find themselves in alarming situations where they are as much hostages as they are victims. Witness the following: * 14 million children under the age of five die every year as victims of hunger, sickness, war, or the inhuman treatment of adults; * five million children have been injured or disabled by war; * children make up more than half of the world's 19 million refugees; * 200 million children under the age of 13 are forced to work with untold millions sold into slavery; * 100 million children roam the street, one-fifth of that number in so-called "developed" countries; * 800,000 child prostitutes alone "work" in Thailand, 500,000 in Brazil, 400,000 in India; * millions of children the world over are subjected to arbitrary detention, torture, cruel, inhuman and degrading treatment, and execution; * "child soldiers" as young as seven are being trained and incited to rob, terrorize, and sometimes even kill civilians; * 20,000 children die of preventable diseases every day. But statistics not only numb the pain; they also obscure the tragedy. And while no revenge has been created to avenge the murder of a child, there are things that can be done, such as the following: 1. The enforcement of extraterritorial legislation authorizing prosecution of persons trafficking in sex abroad. 2. The drafting of a new set of international standards and enforcement mechanisms to protect against child prostitution, child pornography, and the sale of children. 3. The drafting of a new ILO Convention prohibiting child labour. 4. The development - in concert with the private sector - of codes of conduct and programs to combat exploitative child labour. 5. The development of partnerships between governments, NGOs, trade unions, and the private sector for the coordination of a comprehensive policy for the protection of children's rights. As for us - we must ensure that children's rights are at the core of whatever we do - and therefore, of who we are. Lesson 12: International Women's Rights The Holocaust – and the genocides since – have included horrific crimes against women. Moreover, these crimes have not only attended the genocide or been in consequence of it, but have in fact been in pursuit of it. Yet they remain the still unarticulated horror of the Holocaust, and the genocide of European Jewry. Fifty years later, that lesson remains to be learned - and acted upon. The struggle for international women's rights, then, must be a priority on the justice agenda. The notion that women's rights are human rights - that there are no human rights without women's rights - must not only be a statement of principle, but an instrument of policy. As UNICEF recently reported, "discrimination against women is an injustice greater than South Africa's Apartheid." Charlotte Bunch dramatically summed up this particular priority and principle in one pithy statement as follows: "significant numbers of the world's population are routinely subject to torture, starvation, terrorism, humiliation, mutilation and even murder simply because they are female." Lesson 13: Raoul Wallenberg and the Courage to Resist Finally, as Raoul Wallenberg demonstrated, it was possible to resist, to confront evil, and to prevail. The problem was that there were too few Wallenbergs; indeed, as Elie Wiesel has reminded us, the world hid the story of the true Wallenberg - lest it embarrass us all - lest it demonstrate that one can confront evil and prevail. And so each person one of us here has an indispensable role to play in the indivisible struggle for human rights and human dignity. Each one can and does make a difference. And if we ever get tired or fatigued - burnt out to use the popular metaphor - then let us remember that this one Swedish non-Jew named Raoul Wallenberg saved more Jews in the Second World War than any government; that one Andrei Sakhorov, stood up against the whole Soviet system and prevailed; that one individual, Nelson Mandela, 28 years in a South African prison, nurtured the dream and emerged to bring about the dismantling of apartheid; that one woman Rigoberta Menchie, galvanized the global plight of indigenous peoples; that one movement - the women's rights movement - energized, mobilized, ignited the whole of the human rights movement. This, then, must be our task: to speak on behalf of those who cannot be heard; to bear witness on behalf of those who cannot testify; to act on behalf of those who put not only their livelihood - but their lives - on the line. And so may the Nuremberg legacy - and the 50th anniversary of the Universal Declaration of Human Rights and the Genocide Convention - be not only an important act of remembrance, which it is, but may it be also be a remembrance to act - which it must be. >> Back to top |
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