Thank you very much Yasmin, Thank you Dean Yeazell. Thank you all for the honor of being with you today, on a day of great importance for each of you, your families, your teachers, and for the well-being of those un-numbered and yet unknown persons for whom you will be able to use your learning, your skills, and your judgment, for their aid and protection.
When I became a lawyer, I had no idea that my career would take the turn that it has. Your careers will take similar turns.
When I was a freshmen in college, Robert Kennedy spoke of “taming the savageness of man, and making gentle the life of the world.” I wondered then whether the right system of laws could make that possible. Much later, in my current career, I have seen up close the worst consequences of the savageness of man, and have begun to hope again that the law offered an answer.
Today, with the award of these degrees, you have gained the power, and would say responsibility, to find the legal answers to the challenges of the 21st century, to help develop the law, to strengthen its ability to protect the lives and rights of all.
As you have learned the law is not static. It is certainly founded on custom and constitution, but capable of constant adaption through the agency of committed individuals to serve the interests of humankind.
I was privileged to be involved with others in a project, which is still ongoing, of trying a build a workable system of international criminal justice. I know from many in this class share my passion for that project, from questions put to me when I spoke here in the fall of 2007, as this class was beginning its studies, and from the participation of your International Justice Clinic in The Hague at the Assembly of State Parties of the ICC last November.
I would for a few minutes like to share the reasons for my hope that the law and policy can be developed to deter, if not to tame, the worst consequences of the savageness of man. It grew from trying to understand why the men in the dock, for the genocide in Rwanda, for the atrocities in Sierra Leone, could have committed the horrific crimes for which they were accused.
At the International Tribunal for Rwanda in Arusha, I heard from their defenders that the leaders on trial were reasonable human beings, who had simply lost control. The popular forces of ethnic hatred had been too strong, that once a beloved president was shot out of the sky, there was an uncontrollable rampage of violence—that continued for 100 days and resulted in the deaths of 800,000 men, women and children.
This did not square with real life experience. Mobs do run amok, but their energy dissipates without leaders to provoke and provision them, to direct them to their victims and provide them with the means to break through the walls and stiff resolve by which groups and individuals protect themselves from painful injury and death.
The facts in Butare put the lie to spontaneous anger theory, on April 19—thirteen days after the plane crash, more than 100,000 were already dead across Rwanda, but not one person had been killed in that university community or the surrounding province. It was necessary for government leaders of arrive, to replace local officials, and for the interim President of the nation to demand that the citizens of Butare begin their “work,” or to “step out of the way,” so that “others could work for their country.” By evening, they were killing students in the dormitories and patients in the university hospital, and within two weeks tens of thousands were dead.
There was another view that we were dealing with evil unleashed on the world. As it was said there were no demons left in hell, they were all at work in Rwanda. But the accused were reasonable and dignified in appearance and a large majority of those charged had studied in North America and Europe. As I took on the task of seeking testimony of insiders, the kind of testimony without which it is difficult to convict those at the high level who keep their distance from the carnage, I spent long hours, days, even weeks, with several individuals who had served at a senior level during the Rwandan genocide. One cannot ask a trier-of-fact, to give credit to a witness, who may have committed discreditable acts, unless you understand what motivated that individual. I came to understand that men did evil, and for time they created a world where what had been very wrong was then considered very right, and where some then did such great evil that even the most contrite would not admit of it. But the path they took was taken by rational choice.
Back was when I was a US attorney, when I was discussing in public why a particular crime had become more common, in this case a kind of financial fraud, I quoted Willie Sutton who had explained why he robbed banks, “That is where the money is.”
Atrocities are committed because it accomplishes an end. It is a strategy that works. It is effective in gaining or retaining total dominance over a human population and the total control of wealth that goes with it.
The effectiveness of a campaign of atrocities was had been demonstrated in Rwanda in the 35 years leading up to the genocide of 1994. As Rwanda moved toward independence from Belgium in 1959, the Parmehutu party led by Gregoire Kayibanda sought to reverse the domination by the 15% of the population of the who was Tutsi over the 85% that was Hutu—a domination that had been the rule during the pre-colonial and colonial periods. The shift was accomplished in part by democratic means--by votes that swept away the Tutsi monarchy, but the total control of power and wealth by Kayibanda and his inner circle was achieved through violence, by inciting a campaign of ethnic cleansing—the murder of thousands of Tutsis and the pillage and destruction of the property of the Tutsi population. The result was the driving into exile of almost a half million Tutsis.
This was selective killing that respected religious sanctuaries, and often spared women and children and those who headed to the border. But the prospect that the killing could could become more comprehensive was foreshadowed. In the early sixties, armed bands of Tutsi refugees made quixotic efforts to fight their way back to their homes. In December 1963, a group of a few hundred made it within 12 miles of Kigali before they were wiped out. The government response was delivered a hundred kilometres away in Gikongoro, where between 24 and 29 December 1963 local officials organized the Hutu population in a killing campaign of 14,000 Tutsis, the hacking to death with machetes and hoes, of their neighbors, of women as well as men, of children as well as adults. At the time Lord Bertrand Russell said that it was “the most horrible and systematic massacre” since the Holocaust.
Kayibanda blamed the tutsi invaders for provoking the unrest, which he saw as warning to those “who resist the wisdom of democracy.” and explicitly predicted genocide if there were further efforts of Tutsis to return to their former place in Rwanda.
Even long after Kayibanda was replaced in 1973 by another Hutu leader, Juvenal Habyarimana, with his own inner circle totally controling power and wealth, the lesson was not forgotten. In the Media trial in the Rwanda Tribunal we saw it in the dramatic cover of the Kangura, issue no. 26 in December 1991, a newspaper that styled itself as a voice to awaken the majority people. On its cover it asked what arms were needed to triumph over the inyenzi-ntutsi, once and for all. It simply pictured Kayibanda and a machete.
This was a message in a campaign that was to lead to the genocide that Kayibanda had threatened—that was unleashed in 1994, when the Hutu-controlled government was facing a formidable rebel army of returning Tutsi refugees, those who did not want to share power saw the destruction of the Tutsi civilian population of Rwanda, as a means to stop the invaders, or destroy their base of support, and knew from experience that mass murder could be committed with impunity.
In Sierra Leone, the atrocities were committed without ethnic or religious motivation, but also as means to end—as a way to intimidate and terrorize the civilian population into submission, so that the rebel leaders could control the country's resources. Thousands had limbs amputated, tens of thousands were murdered, hundreds of thousands were sexually violated in campaigns with names like “no living thing” or “operation spare no soul.” In 1999, an exhausted and devastated country chose peace without justice, in an agreement signed at Lome, Togo, that gave full amnesty for all of the perpetrators, and gave control of the diamond mines to those who had been trying to steal them. But the rebels did not disarm, they killed and kidnapped peacekeepers, they shot into crowds of civilians, they continued the sexual violence. It was necessary to defeat the rebels with international assistance, and then to create a court to try to those bearing the greatest responsibility for the atrocities.
But until then the actions of the rebel leaders could be viewed as rational. They calculated that they could gain wealth and power by committing atrocities. They calculated that even if they failed they would not be punished.
With more ordinary crimes, societies pass laws and enforce them. They commit investigative and prosecution resources. For the banks, where the money is, FBI and federal prosecutors probably give disproportionate attention, robberies happen, given thousands of bank branches, are relatively rare indeed. When individuals take hostages, and threaten death or injury to others unless their demands are met, professional officers attempt to make contact, to talk and talk and talk, to say what is true--that it will be better for everyone, including the hostage taker, if he drops his weapon and surrenders. They do not promise to share power in the community, nor to do anything that would put even more persons at risk, like springing the hostage taker's cohorts from jail, or giving him or plane or car to get away. They do not even promise immunity if he will just let his victims live.
But some will say that this can work the national level in well-developed states, where there are strong systems of justice to catch violent criminals and bring them to trial, and protect us from becoming victims.
At international level killers protected by armies and paramilitaries, and are safe in impenetrable jungles are safe behind fortress-like walls compounds or presidential mansions. If we want to stop them and their crimes, we have to deal.
But should not the answer be the same, to talk, and talk, and talk--to state all of the reasons why giving up power over their victims is good, and carrying on as before is bad. But not to promise an escape that would put other victims at risk, whether in that land or in another where a potential future perpetrator of atrocities is certainly watching.
There is an emerging system of accountability for international crimes, built in The Hague, and Arusha, and Freetown, and Sarajevo, and even Phnom Penh, and it has led to prosecutions at the national level as well. There is a rising expectation among victims of a day when they will see justice. And for perpetrators, or those who would be perpetrators, there is a new calculation.
It is a work in progress. It is not yet strong, but fragile. It is strengthened when any country or group of countries condition aid or economic integration on cooperation with international justice or genuine investigations of abuses at home. It is weakened by any perception that accountability for serious violations is negotiable.
It may it more difficult to negotiate peace agreements with those who commit atrocities. But it offers the best hope that there will be fewer who see the commission of such acts as the path to power. And it offers the only real hope of world free from the fear of mass crimes, of the conscious targeting of the innocent for murder, rape, and mutilation.
But the challenge of protecting civilians in zones of armed conflict, is but one challenge of the world of the 21st century. There the threats of environmental destruction, there is predatory and discriminatory conduct in the economy and society, there are dangers of new technologies being used to destroy or oppress.
But the law can be the protector, so that individuals, families, communities, and nations can live freely, and build and prosper. It will take your skill, your creativity, your commitment.
Make it so.