Louise Arbour Interview
Original document on www.cbc.ca

CBC News: Sunday's Carole Macneil talks with United Nations High Commissioner for Human Rights Louise Arbour at La Ciradelle, the Governor General's official residence in Quebec City. Arbour was in Canada to deliver the 6th annual LaFontaine-Baldwin Lecture. The lectures are an initiative of His Excellency John Raulston Saul and The Dominion Institute to honour Canada's great political reformers and stimulate debate about the historical antecedents and shape of Canada's democracy. The initiative's website is located at http://www.lafontaine-baldwin.com

Carole Macneil: Let's talk about the speech you gave urging the courts to protect the rights of the poor. Is that essentially what you're urging the courts to do in Canada?

Louise Arbour: Actually, I'm not trying to exclusively address the courts. I'm trying to address the entire Canadian legislative, political, social and judicial framework to be more attentive to social and economic rights after a long history of being extremely attentive and doing excellent work in protecting fundamental freedoms, civil liberties, and equality in particular. Now, I feel we're lagging behind in the protection. And, when I say social and economic rights, I mean the fundamental goods that are essential for human dignity:access to education, food, shelter, and so on.

Carole Macneil: How would that work in courts, though? Give me an example of how a more - I was going to say activist - court, would it require a more activist court?

Louise Arbour: No, I don't think so. Frankly, I'm never too sure what that means, ‘an activist court.’ It seems to be used, in the Canadian context, I think, in a pejorative way, meaning, this is not a good thing and from what I see in the past, it tends to be used by people who are not happy with a particular decision, and then they say the court was activist in reaching that result. You could be very activist in doing nothing, thereby promoting other interests, so I'm not sure that this label is all that helpful.

Carole Macneil: Let me ask the question in another way. Is there a law in place already that the judges can interpret such that they can protect the rights of the poor?

Louise Arbour: Well, in my view, there is the Canadian Constitution, including the Canadian Charter of Rights and Freedoms. But, when I say I’m not urging the courts to do that, I would first want to urge governments both at the federal and provincial level, to give life to the commitments they made, that Canada made, by ratifying the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. So, as I said, I'm not just saying to the courts to become more proactive, if that's the language that is used, but I'm saying Canadians should embrace a move from their traditional posture of charitable disposition into recognizing entitlements and rights.

Carole Macneil: After your speech, I'm assuming from reading it that you don't think our history, in terms of human rights in this country, is as romantic and lovely as we would like to believe in this country.

Louise Arbour: Well, actually, yes. I think that is true. We've always had a romantic idea of where we situate ourselves in the world and to a large extent that is entirely deserved. I think Canadians have done extremely well in the development of peacekeeping operations. I think the Pearson legacy, in that respect, I mean the only Canadian to get the Nobel Peace Prize, and, Canadians do identify as peacekeepers internationally. I think we've also done extremely well, and, in fact, we occupy a leadership position, on non-discrimination issues, substantive equality issues, and, in the protection of what we perceive as civil liberties, fundamental freedoms like freedom of speech, freedom of belief, freedom of religion, putting constraints and using extraordinary repressive powers. Courts have been extremely good, and legislatures too, in ensuring that we don't give extraordinary powers to the law enforcement authorities. There has been wiretap legislation, and so on.

Carole Macneil: Might there be an exception?

Louise Arbour: Yes, with the social and economic rights environment. I certainly noticed, working myself in the Canadian judicial system, in the Canadian legal profession, that it is just absent from our landscape of rights.

Carole Macneil: Why do you think that is?

Louise Arbour: Well, it's very puzzling, and I started looking into it and I found to my astonishment that Canada played a very important role in the articulation of the Universal Declaration of Human Rights.

Carole Macneil: Which is?

Louise Arbour: The fundamental, of course, the cradle of all the subsequent treaties on human rights and the role that Canada played, was expressed, and, that's the best known story, by John Humphrey, who had been a law teacher at McGill University, and then become a United Nations civil servant, and basically was a behind the scene drafter. So Canada had a centerpiece role in the drafting of the Universal Declaration. But, then on the political scene at the same time, very surprisingly, Lester B. Pearson, who was then Minister of Foreign Affairs, was taking a position that was very hostile to social and economic rights.

Carole Macneil: The same Lester B. Pearson who was responsible for peacekeeping, who got the Nobel Peace Prize, who was lauded through history for his recognition for human rights?

Louise Arbour: Absolutely and then, who as prime minister of Canada left a legacy of very progressive social legislation, a social safety net construction. And yet, on the international scene, Canada found itself with a handful of countries, none of whom you would associate with great progressive human rights positions, who then opposed human rights. Canada didn't first oppose but it abstained on a critical vote and in the end it rallied, and historians who have looked at that say the reasons Canada was putting forward at the time were very disingenuous. Canada was saying, ‘well we cannot really champion social and economic rights, because we are a federation and this is within provincial jurisdiction.’ Historians that have looked into this say this was not the truth.The truth was that there were very strong political forces within Canada, including the Canadian Bar Association, that were vehemently opposed to this conception of social and economic rights.

Carole Macneil: Essentially, why?

Louise Arbour: Well, I don't, know why and what is puzzling is that it doesn't reflect Canadian culture. Throughout the 20th century, I think we have manifested through all kinds of collective voices and through politics and through legislation our commitment of looking after each other.

Carole Macneil: Healthcare being...

Louise Arbour: Absolutely, that's the prime example and again we identify so much with that, not only with all wanting to have free access to healthcare, but I really believe that Canadians identify with what is behind it, which is a fundamental fairness issue that when you're sick that it shouldn't matter whether you have money to pay. And again, deeper underneath that it's a commitment that we do make to each other that we will look after each other. But I suspect we have always been content to do that as a matter of charitable disposition, rather than as a matter of recognizing entitlements. Maybe that's all there is to it.

Carole Macneil: Why do you think that is?

Louise Arbour: Well, you know there's an old saying, that charity is, I don't know how you say it...

Carole Macneil:... begins at home?

Louise Arbour: No, but that it feels better to give than to receive, so this charitable disposition in a sense, rewards the giver, all the emphasis is on the one who gives, you get more pleasure from giving. That's what charity does. Entitlement puts the emphasis on the recipient and, I think, affirms his or her dignity. It's suggesting that he is not just at the mercy of others, but, as a human being, he is entitled to look to his fellow human beings to provide the kind of bare minimum we would expect from others if we were in the same predicament, through illness, through old age, through all kinds of circumstances that may or may not be entirely of our own control.

Carole Macneil: Tell me now, does it exist? Does the law exist? I mean, you say it is in the Charter, but where in the Constitution of Canada does it exist that people are entitled to that just because they exist as human beings in Canada?

Louise Arbour: There is language in the Charter that is history. It's language that is borrowed, in a sense, from these great thoughts and instruments of the 20th century, including the Universal Declaration of Human Rights and it seems to me that when our Constitution affirms that everybody in this country has the right to life, liberty and security of the person, that in itself has ground the foundation of an entitlement to look to others for fulfillment of that right. There's a lot of Charter rights that are not much more explicit than that. We don't have an express provision for food and shelter, but I would suggest that the right to person includes the right not to be abandoned, not to freeze in the cold, or die of starvation.

Carole Macneil: So, are those, let's say, for example, we are talking about somebody in the dead of winter in Toronto, or on the streets of Winnipeg who is at risk, are you suggesting they could take their case to court and force the state to look after them in a way to make sure they are not going to die in the cold? Is that fundamentally what we are talking about?

Louise Arbour: I think they shouldn't be left to die in the cold. Now, whether they should be made to take their case to court is already, I think, an acknowledgement of a lot of failures of the infrastructure. They should be protected without having to take their case to court, so to speak. So I think what I'm saying to you is I don't think the emphasis on courts is particularly significant. When we talk about rights, we don't necessarily talk about judicial remedies, although at the end of the spectrum you'd want to make sure there are judicial remedies, but when we talk of rights, we talk of states as duty bearers, having the responsibility to provide. So, first I'd say it's not a question of taking your case to court. It's a question of ensuring that governments understand that there is an ultimate responsibility to develop a legislative infrastructure that ensures that those who have the “lesser voice,” those who are marginalized, those who are the most vulnerable, those are the first that we should protect and not always leave them out or forget about them, that in a sense is the essence of human rights more than any individual rights; it is basically the right of participation and the right of inclusion.

Carole Macneil: Who is left out in Canada?

Louise Arbour: Well, I think it's pretty obvious that those who have historically and to this day continue to be left out belong overwhelmingly to the aboriginal communities,single parent families ledby women, people suffering from, in particular, mental illness and other handicap and the chronically poor who have sometimes suffered from a chronic condition of depravation of all forms including access to education. There is public education, but then there is capacity to have cultural support in a community to progress through education, so I think there is a whole landscape of people who we recognize very easily as those who tend to be left out.

Carole Macneil: It's interesting. Don't we have unemployment insurance? We have welfare. We have the healthcare system we talked about. Why isn't that enough?

Louise Arbour: It's pretty good. I certainly don't want to suggest that's not enough, but to the extent that this is legislation the premise is that underlying all of that is that the next government can remove it. Legislation is grounded in a political consensus. I say why don't we recognize, since in any event we have had it for a long time, we could not imagine this country functioning without that infrastructure? Why don't we just bite the bullet and recognize that this is a matter of right, of entitlement, not a matter of political consensus which, by definition, will always promote the interest of the majority? Those who are left out are never in the majority. So, yes, we do have all this infrastructure but, again, when I say it's a matter of charitable disposition, it's another way of saying it's a matter of choice where we tend to serve ourselves - we, the members of the majority - in preference to serving the needs of those who have less capacity to express their needs and interests.

Carole Macneil: It's at risk? Those things are at risk?

Louise Arbour: Well, in fact, I would argue that they're not at risk. I can't believe that there would be a serious suggestion that we would completely dismantle the entire machinery of social justice protection that we have. So, if I'm right it is not that we are at risk, it is that we already recognize that it is a matter of entitlement, or a matter of expectation, grounded in rights and we should just articulate it that way. And, as I said, we weren't prepared to do that in 1948 and eventually we joined in and Canada ratified the International Covenant on Economic Social and Cultural Rights, but then when it comes to explicitly and progressively acknowledging that these rights are just like the other fundamental freedoms, like freedom of expression and so on which we cherish so much, then you see a reluctance to treat all rights as equal.

Carole Macneil: Because it costs money?

Louise Arbour: All rights cost money. The right to a speedy trial costs a lot of money because in order to provide for that you have to have adequate courtrooms, the right number of judges and prosecutors and so on and yet we don't blink for a minute. We say, ‘oh, that's a civil and political right, this is in this realm of right, where the citizen has to be equipped to face the repressive arm of the state.’ So, that's the very traditional way of thinking of human rights. If the state becomes the adversary against you, you are entitled to be shielded from this repressive initiative. So, in the criminal you have access to bail, etc.

Carole Macneil: There is also the feeling that people need to pull themselves up by their own bootstraps, that somehow people in that position contributed to being in that position.

Louise Arbour: Yeah, that's the classic. It's, first of all, so extremely convenient in exactly the same way that Western countries feel about Africa: ‘well first they have to do it to themselves and first of all they should elect good governments and when they've done all that, yes that's right.’ And, as I said, it's very convenient because it's a recipe for not doing anything, but I think it flies in the face of the genuine social pressures that keep people in the predicament they're in. It's just not realistic. It's not to say that in any community people are absolutely homogeneous, but to a large extent, I think the most marginalized, the disenfranchised and so on are there not necessarily through a great fault of their own.

Carole Macneil: Let me go back to something you said before you started talking about criminal law. We'll move on from this topic but you talked about all of the freedoms that are enshrined and cost a great deal of money, but, all of the rights we have once we're subject to arrest to make sure that the state has not repressive against us, what impact do you think counter terrorism measures have had on our human rights in that regard since 9/11?

Louise Arbour: It depends if you're speaking worldwide or specifically in this country.

Carole Macneil: Let's talk about Canada first and then go worldwide.

Louise Arbour: I've been away now for some time and I'm not sure where the landscape is. Certainly when I was in Canada we had before the Supreme Court, for the first time, where the court was asked to scrutinize some provisions of the anti-terrorism legislation, the counter-terrorism legislation, and the court concluded that these provisions were constitutional as long as they were interpreted, given two or three different interpretations, they were interpreted appropriately, that they would be in compliance with the Charter. These were some discreet provisions of this legislation, but, I think we have to look more globally and I think that includes Canada. I think we have to be extremely vigilant to make sure that in our enthusiasm to protect our security we don't overexpose ourselves to useless, totally useless surrender of some of our liberties.

Carole Macneil: Give me an example.

Louise Arbour: Detention, prolonged periods of detention without charges.

Carole Macneil: Guantanamo Bay?

Louise Arbour: Well, Guantanamo has some features that are, that were particularly alarming, some of which have been corrected. The most alarming feature of Guantanamo Bay was that it represented an explicit attempt by the US government to shelter the actions of the executive from the scrutiny of its own courts. That was the whole plan. It was to put people in a place where they would have no access, I don't mean geographically but legally, no access to American courts. Now, this was troubling in the extreme because that is the essence of the checks and balances on the acts of the executive, particularly when using extraordinary powers, including against their own citizens. These were not all foreigners. When I say that this has been corrected, I mean that the American courts have asserted their jurisdiction so that the so-called legal black hole that Guantanamo initially constituted has now been filled by the presence of American courts. Now, one can agree or disagree about the outcome of any particular case, but that's not the point. The point is that the courts are now in the picture and, to that extent, I think we can stand back and let them play the role that they've played in America, historically, as the guardians of civil liberties. I may agree or disagree, as I said, with any case but essentially the most troubling part of that process has been fixed. But there are a lot of initiatives such as how to use their recourse to torture, how these so called extraordinary renditions…

Carole Macneil: Maher Arar, a Canadian citizen, fell into that category.

Louise Arbour: Yes, yes. I think that's exactly what we have to be very vigilant about. Now, as I say, I think, when it comes to law enforcement, whether it's in counter terrorism initiatives or to respond to perceived serious, even sometimes extraordinary threats from gangs, from criminal gangs, from all kinds of, from child molesters, from…

Carole Macneil: Drug dealers...

Louise Arbour: … drug dealers, the odd serial killer that has not been caught, every time there is an increase in our sense of vulnerability we are tempted to surrender part of our liberties to fill that need. Now, someone remarked to me, that I thought was fairly astute, that it's a lot easier to respond to your security needs when you're asked to surrender the liberty of somebody else. And, I think, that post-September 11th that is exactly the mode we collectively, in the West anyway, fell into, which is that we were invited to be more attentive to protecting our own security at the cost of surrendering not really our own liberties. What was our own liberty? Longer queues at the airport being searched? It seemed pretty modest, but we didn't feel a real surrendering of our own personal liberties such as the liberty from arbitrary arrest, prolonged periods of detention incommunicado, there were others that were targeted by that, Racial profiling…

Carole Macneil: Muslims?

Louise Arbour: Yes, Muslims, foreigners generally, not us. That becomes very dangerous because, I think, in a democratic environment what you want to put in is the proposition to find always the proper balance between our interests in our liberty and our interest in our own security is how much of our own liberties would you be willing to forgo to increase your security? But, this proposition was perverted, in a sense, because, as I said, the liberties we were being asked to surrender didn't seem to belong to us. Now, that’s where I think the human rights agenda has to be very forcefully advocated to make sure that we treat others as we would want to be ourselves treated, by the state and law enforcement.

Carole Macneil: To put ourselves in the position of that other human being.

Louise Arbour: Yeah, that, I think, in a sense is the genius of human rights. That's what it makes you do, is even when people are litigating say, for their own interest, the women's movement is a very good example of that, even when you're litigating for yourself, for the vindication of your own right, inevitably you're also advancing the rights of others and so, by definition, it puts you in the position of being attentive to the rights of others.

Carole Macneil: In terms of counter terrorism and liberties, a good deal of focus has been placed directly on the United States. It has come under great criticism for abusing human rights and so on. You've heard the criticism. Do you think it's fair criticism when there are so many more horrific examples around the world of abuses of human rights?

Louise Arbour: Everywhere I travel in my current mandate I'm confronted with human rights violations of a wide range of varieties, trafficking of women. The thing I hear most of the time I raise human rights concerns, I'm told I'm using double standards. By that, what I think is meant is there is always somebody who's worse than we are. Well, it seems to me that that is hardly the point. That is not a useful exercise to compare Canada to the United States or Norway in terms of its compliance to human rights norms, by saying Zimbabwe or Libya or Sudan or a whole range of countries are worse. It seems to me you have to measure compliance and performance in one country compared to it's own record where it should be, look at it's commitments by ratifying international instruments compared to its resources, and capacity. So, the question, to me, you always have to ask is: Is this country in a state of regression or progression, and if it’s progression, is it progressing appropriately? Now, the fact that it is miles ahead of another country is neither here nor there, otherwise we would always live under the common denominator of mediocrity. So,I think it's important to take a country on its own merits and when I'm talking to you and when I talk to someone else, I'll have to carry a different discourse; same standards, same expectations, but measured against the current capacity and environment. I think it's really the only way we can engage.

Carole Macneil: But how do you do that when you're talking to a country that doesn't take the instrument seriously, says the UN has picked on us, picked on Israel? The United States and Israel walked out of the International Race Conference in 2001 feeling they were unfairly targeted. How do you overcome that?

Louise Arbour: This is very difficult because you're in the realm of interstate politics and, invariably, it's the same with the upcoming sittings of the Commission of Human Rights, which has a very long history of posturing and politicking, and so on where at the end of the day sometimes you wonder who's the champion of human rights here when it's all aquestion about scoring and protecting some from scrutiny? Now, this is the realm of international politics, of interstate behavior. My own role is, first of all, to rise myself above it and to encourage an elevation of the discourse to another level, a level of compliance and performance and certainly at this point in my mandate I'm trying to do that by engaging with states on a one to one basis, as I said, asking the question, ‘are you where you should be, considering your current capacity?’ And, the games you're going to play with somebody else, frankly, are not of great interest to me and not of great assistance to anybody as far as I can tell.

Carole Macneil: How would you measure your success at the end of the day? What do you want to achieve in this job?

Louise Arbour: Well, it's hard to at the outset. You just try to figure it all out and what the real opportunities are. And, what I see now, at the outset of my four year term of appointment, I would like to very forcefully try to move the human rights machinery from its traditional mode of kind of a normative mode, since the Universal Declaration of Human Rights the international community has been engaged now for decades in, to what I would say standard-setting in, so in acting on the Convention of the Elimination of Discrimination, discrimination against women, the rights of the child, racial discrimination and the convention against torture. It's taken time, and it’s not insignificant, but I think we got stuck in that normative framework of declaring, standard setting, developing guidelines and tools, and so on. I'd like to move from that framework to one of implementation. Now, we've fleshed out all these rights now let's get out there and make sure they're not violated, that they're respected and promoted.

Carole Macneil: Well, here's the million-dollar question. How do you do that?

Louise Arbour: Well, yeah it's a pretty tall order. I think you have to recognize all the forces that will keep you where you are, including the political process, because I think for member states, for instance, this normative frame of mind is much more comfortable. You can engage for years in sub-committees trying to develop the contours of the right to health and then take years and years to develop a consensus.

Carole Macneil: That's not unique to one country. We all do it. Canada's shelves are filled with studies that have been done and have gone nowhere.

Louise Arbour: Absolutely. So, there's one, a political incentive, because it makes you look like you're doing something and, it's not all that costly and there's not a lot of consequences. Then there's internal pressures,which is that after years of doing only that that's all you're good at, that's where your skills are so you fill your offices with lawyers who love theory and so on. So, in a sense, we have to reinvent ourselves and persuade our political masters, and I think of them as political partners, but those who give the political guidance, we have to persuade them that that's enough talking. I mean, we still have something to do. I don't want to exaggerate; there are still environments where we haven't finished...

Carole Macneil: Give me an example of where you think they're done talking.

Louise Arbour: Well, in virtually all the large instruments, I mean the entire civil and political - ok, let's take something dead easy: the convention against torture. The normative framework is crystal clear as to what constitutestorture. Some again disagree how much force is to be applied, but let's just take pretty clear cut cases, and that it is a so-called non-derogable right, which means there are no circumstances, none, in which it's ever permitted, not states of emergency, states of war, other rights, like the right to a speedy trial, or the right not to be detained for a length of time, that's derogable; in a state of emergency for a limited period of time a state can declare that it is now in an exceptional mode and that it will bypass these rights. Torture…

Carole Macneil: The War Measures Act, 1970, Canada (for example)?

Louise Arbour: Absolutely. You say publicly this is a state of emergency for a definitive period of time, six months, three months, two years, whatever, and there will be a review afterwards and some fundamental rights and freedoms are suspended. That's fine. The international human rights instruments provide for that. Torture, no. Right to life and the protection against torture, there are no circumstances where that is permitted. Let's go and enforce it. What more is there? How many guidelines do we need? How many manuals to train police officers do we need to write to enforce that? Now, the question is: what do we need to do then to implement it?

Carole Macneil: Yeah, how do you enforce it?

Louise Arbour: Well, first of all, we need access to places of detention. We need to turn on the light. Turn on the light.

Carole Macneil: You're not going to get that in Syria. You're not going to get that in the Congo, where women are subjected to torture. Is that ideal?

Louise Arbour: Well, you got to start where you should be able to do that, in Western countries, in countries where there is not the kind of assumption about good faith, which I think is behind your suggestion, that in some cases even if people sign all kinds of international instruments at the end of the day they'll cheat, they won't let you. That's true. But it doesn't mean, again it's my argument, are we all going to behave to the lowest common denominator of mediocrity? Well, because there's a lot of torture in the Congo you're not going to come and visit our prisons? Well, where's the logic of having such low expectations? First of all, we have to equip ourselves with access. Currently, the biggest access to places of detention is given to the Red Cross, the ICRC, which operates, as you know, under a framework of confidentiality. Now, that’s good, if you're going to have access and you're going to engage governments and the ICRC does excellent work, but maybe we're going to have to increase the level of access. We have to put the burden on government, one, to acknowledge and put on the public record where they are detaining people and who is being detained. I mean, what can be the argument against the maximum amount of transparency in the exercise of these kinds of repressive powers? And all these would assist in preventing the occurrence of torture.

Carole Macneil: Do you think that it's more difficult to encourage countries to engage in human rights when, in fact, governments tend to overlook it in the interests of economics? Take Canada's own record with China, for example, and the United States with China. There's been a real reaching out because of the large markets there and almost a kind of ‘well, we brought it up with them in a private meeting,’ but really, nobody takes it seriously. Do you think it's problematic?

Louise Arbour: Well, first of all, I think it's important to engage. I don't think exclusion is likely to yield a will to join the club. I think you have to reach out through and, frankly, I don't see anything wrong with using commerce as a point of entry for engagement. In bilateral relations certainly one would hope there would be human rights advocacy. You want to tell your trading partners that in order to trade with them your own constituency, your citizens, have concerns about who you deal with, so I think it's important discourse. It may be a little unrealistic to assume that unless there's a complete cutoff of the relationship because it grows very severe incidents of human rights violation that all international trade would grind to a halt because one trading partner doesn't meet the standards of another. I think that, frankly, that is a tad unrealistic. But, it's very much for people like me to go on the coat tail, for instance, in China of this amazing economic success, explosion, and try to persuade the Chinese authorities that human rights protection at home is entirely compatible, in fact, is very much in the interest of their economic growth. So, I think the argument has to be advanced, but I'm not sure that it is realistic that it has to be done in true bilateral trade initiatives.

Carole Macneil: I would assume that you're a realist, because you've seen the lowest common denominator in action. What's the worst thing you've ever seen? What stays with you? What's had the most impact on your life? I've made a pretty hard turn there.

Louise Arbour: The obvious would be the work I did with the international tribunals in Yugoslavia and Rwanda. I've actually seen, not just handled in a distant level, literally mass slaughter. And there's no question, how could I say that this is not the worst objectively by any measure? It's a stain on our collective conscience. I've seen it closer than others but, frankly, we've all seen the Rwandan genocide.

Carole Macneil: Were you able to make a difference?

Louise Arbour: We all do. I think the only question is: Have I made the kind of difference the opportunities have given me? That's what you have to measure yourself against. Have I lived up to the opportunities that were presented to me? I think we all, collectively, starting with the governments we elect to represent our values and views, we all make a difference. The question is: have you seized the moment sufficiently? I hope I have. I try. I always try. But, in retrospect, you can't tell.

Carole Macneil: You can't tell?

Louise Arbour: I don't think you can. I'm not sure. I think it takes a lot of distance. It sounds like such a platitude to say, in any event. You can only be measured against your best effort, as long as you're acting in good faith in your best shot. Saying somebody else more clever could have done a bit more is, frankly, sotheoretical.

Carole Macneil: I guess I'm not asking that. Do you have regrets?

Louise Arbour: I don't have regrets, but I'm always puzzled by what else, what are all these other things out there I could have done and would have loved to have done? I think it's part of the frenzy of all of us who are very engaged and are interested in a lot of things. So, they're not really regrets, there's just so much out there.

Carole Macneil: What would you have wanted to accomplish that you didn't accomplish? What would've been the thing you'd have wanted to do?

Louise Arbour: How much time do you have? I would have loved to play the piano. I'm just kidding. I can't think of anything in particular and, frankly, realistically, I can't think that I could have done much more, considering how many hours there are in a day. I've been at it now, in my work, pretty well maximum to my capacity. No, I can’t think of a specific thing, although there are a million things.

Carole Macneil: I talked with Desmond Tutu of South Africa about six months ago and he talked about Rwanda, Bosnia. He wept during the Truth and Reconciliation meetings. And, I asked him if he still believed in people and he said that fundamentally people are good. What do you think?

Louise Arbour: Absolutely. I am absolutely, before going to goodness, amazed at the resilience of the human spirit. I've been to Darfur, a few months ago. I mean, talk about human misery at the level that, frankly, is very hard to imagine until you're there on the ground. You're talking about a couple of million people, but I saw them in clusters of 50,000 or 60,000 people living in camps. Even the word "camp" doesn't give resonance to what is actually out there, barely shelters made of nothing, people who have virtually nothing to eat, just enough for bare survival and then you arrive there and you are immediately surrounded by hoards of children who laugh and giggle and want to touch your hair and think everything is really funny. And, then I sat down with women who, particularly those who hadn't been in these camps for very long so felt somewhat protected and felt they were safer, those who had been there for nine or ten months were considerably more aggressive, but you sit with these women who are, one is pregnant, one is nursing a child, small children running around, and in the end you think they care for their children, they have hope for their future. You see the strength of hope and, you know, the will to live, to live a better life, if not for themselves, for their children. And, as for goodness, it's a little harder to see it everywhere, but, yeah, I believe that…

Carole Macneil: What do you mean it's a little harder?

Louise Arbour: Well, because some have a way of hiding what's left of the goodness of their heart behind actions that are so unconscionable that it is hard to maintain the faith that there is a fundamental element of goodness in all. But, I believe that given the opportunity to behave decently, this is going to sound utterly naive, but, yeah, given the opportunity to behave decently, I think most people would make that choice.

Carole Macneil: Really?

Louise Arbour: Yes.

Carole Macneil: Even (former Yugoslav president) Slobodan Milosevic? Even the commanders in those death camps?

Louise Arbour: It gets harder when you try to universalize it to the last person. I think we were discussing it in general terms. ‘Do you believe in the goodness of mankind,’ I think yes. Now, if ask tell me on a one to one basis, there are some for whom I think it's difficult to express the belief that they had it in them to make the better choice, I don't know that.

Carole Macneil: What do you think the toll - you've witnessed so many atrocities - what do you think the toll has been on you? Everybody pays a price for bearing witness.

Louise Arbour: I am utterly not introspective, so I can't, it would be very hard for me to tell you.

Carole Macneil: You’re a lawyer at heart?

Louise Arbour: Oh absolutely, I am a rational person, but there have been a couple of incidents where I found myself very surprised that there was something left of a human reaction in me. And, it usually comes utterly unexpectedly, so it's not when you step out of a helicopter to see an open mass grave and so on. Certainly, in my case, this is not where the expected bursting into tears will occur because the professional drive takes over. The first question that comes in to your mind is have we got the evidence? Is this what we think it was? So, it just blurs completely, what would otherwise be a perfectly healthy human reaction. But, then it tends to hit you in very subtle ways and very unexpectedly when you think you've put it all behind you, then a small thing may trigger a reaction or, as in my case, you transpose it all, all this kind of emotional burden into the world of fiction. So, I will be in sobs in a Walt Disney cartoon right from the beginning, so, I think there are outlets that help you express this overload of emotions.

Carole Macneil: Give me an example of when it happened to you, when you saw that bit of humanity inside yourself that you thought you had written away.

Louise Arbour: There is one incident that is very puzzling. It's not a bursting into tears incident, but when I very first went to Rwanda, in the fall of 1996, I had only been in the country for one day and I was taken to one of these horrible sites, where bodies had still been left laying on the ground, this is literally two years after these people had been killed, and the bodies were left, essentially as a monument to what happened to a school house, in a school house, in various school rooms. They were just cadavers and the most horrible sight and I came back from that visit, and I came back to my hotel, and I had an appointment with the president, it was then President Bizimungu of Rwanda. And I was waiting to be received by him and someone brought me a book to sign your name and write something. She came back and said, ‘you forgot to write the date.’ This was September 17,1996 or something and I wrote ‘April 6, 1994,’ which is the date of the beginning of the genocide. And, I gave it to her and she looked at it and she said, ‘I think you made a mistake.’ And, I looked at it and said, ‘oh yeah,’ September. I scratched it out and I thought, ‘this is not the sixth.’ I had to decode it, word by word, to realize that I had, in a sense, been completely overtaken by the memories of what I had seen and just put it on the page. It was as though I was at the outset of the genocide, in my mind, and it just expressed itself. For someone like me, who thinks of herself as a rational person, it's pretty scary to see the impact that a day like that day obviously had on me.

Carole Macneil: Understandable. You've had a remarkable career.

Louise Arbour: Yes. I’ve been very lucky.

Carole Macneil: What's the drive? What drives you to do all of these things, to bear witness to all these things that you have?

Louise Arbour: I don't think of it as bearing witness. What I do is pursue the law where it takes me. Now, you might say, ‘well, funny it has not taken you to the corporate world, or tax law…’

Carole Macneil: Mercifully?

Louise Arbour: …mercifully for people in that environment, because I don't think I would've been very gifted. I'm not searching for that. Obviously I seem to be attracted to an environment that there's a capacity to reach out to the most desperate circumstances. But, I don't think of myself as...

Carole Macneil: And the most desperate people? I mean, I watched that CBC Life and Times on you and people were literally touching you, the women of former Yugoslavia, touching and hanging on to you. That must be an incredible responsibility and an incredible burden.

Louise Arbour: Yeah ...

Carole Macneil: I'm putting words in your mouth and I shouldn't but…

Louise Arbour: No, it is true, but at the same time first of all, I'm very comfortable there. Again, in my recent visit to Darfur the images would have been the same. The security people are around me and at some point it gets very crowded and very tight. And, at first, they would say, ‘if you feel uncomfortable give us a signal.’ Well, first they were keeping people away and then I said, ‘no, no, I am very at ease.’ I am very at ease and I think people sense that too. I feel extremely comfortable and I don't feel awkward afraid, not afraid in the slightest. There are always people around me who are supposed to make sure nothing happens to me and I assume they know what they're doing. So, I feel safe and, in that sense, I don't look behind that. That day that is all I have to offer. In a sense, it’s sort of like maybe I represent, for them, the manifestation of human solidarity. I represent more than just me. They don't know me, but I come as a representative of the international community that cares about them. And, I think, they sense that and that's all I have to offer at that moment and I'm very at ease with that. So, I'm not crushed by the burden of expectations that are being raised because I think they understand that I will just do what I can, which is not all that much except maybe I bring television cameras with me and that helps in bringing their plight into the homes who may be able to do something about it. It's all part of a bigger picture.

Carole Macneil: What do you think is more important: bringing someone to justice before a criminal court or getting the story told to the world?

Louise Arbour: Well, frankly, I think you could not bring the case to an international court if you didn't get the story told to the press. It took me a long time to figure that out, but I think it's absolutely critical. You could not mobilize the political, the financial type of commitments that you need to set up an international criminal justice machine without the capacity to mobilize public opinion through the media, to expose the magnitude of what has happened, of the moral and legal obligation to do something about it. So, I'm not sure that one comes before the other. And, this is an environment that I was very naïve in before I came to the tribunals. I was a judge. I didn't talk to the media. I thought this was just sort of an added burden to my already very long day until it dawned on me that a criminal trial is supposed to take place in public. When you work internationally on a trial of this magnitude, you're working on crimes against humanity. Your audience is all of humanity. You have to work in the public domain. As I said, it took me a while to realize that but now I am absolutely persuaded of the obligation of the media to aggressively keep looking at these hidden conflicts, these forgotten stories: Northern Uganda, the Democratic Republic of the Congo, the whole Great Lakes Region. There's huge amounts of stuff going on in Africa that is not getting the kind of attention the Tsunami relief effort has gotten and, Darfur is probably the only one that has and even at that, we are not mobilizing to the same extent that we are to help the victims of an act of God. It's easier to deal with the consequences of an act of God than the consequences of an act of men, I think.

Carole Macneil: Why do you think?

Louise Arbour: I think we see that in our own communities as well, even though it's not rational. I think that, deep down, we think victims of crime are somewhat tainted even though we wouldn't go as far as to say, ‘well they asked for it, or they put themselves in that position.’ And, maybe it's just because we try to distance ourselves from them, but in the case of earthquakes or major national disasters, I think, it sort of appeals to our, in a very pure way, to reach out and help others, not because it's not threatening to us, in fact, it's quite frightening to think, that could've been me, but, there's not that taint. I can't explain it. I don't know what it is, but I am absolutely persuaded it’s there and that's why in countries like Canada, we've had to create these victims of crime compensation funds to provide for people who are otherwise very conveniently ignored because they've been victimized by a criminal. I think it's irrational, but I think the evidence is there to be seen. Our reaction is very different.

Carole Macneil: I'm going to move on to a couple of things I hope we can get through. Let's take South Africa, the Truth and Reconciliation Commission, first of all, where there was an agreement in place, where they would not pursue punishment. Instead, everybody had to express what happened to them and perpetrators had to listen to it in an effort to get society to live together. How do you think that compares to bringing somebody before an international court?

Louise Arbour: Well, I think the environments, there are lots of mechanisms of transitional justice assisting a society that has been extremely traumatized by terrible crimes, particularly crimes that are rooted in ethnic hatred and so on assisting these societies to move on. There are lots of techniques and Truth and Reconciliation with or without amnesty is one model, international criminal tribunals, domestic courts, there are lots of options. The South African model, I've always been very wary of those who are trying to export it. South Africa was, in many many ways, in absolutely exceptional circumstances, one of them was the quality of its leadership at a crucial moment in its history.

Carole Macneil: Nelson Mandela...

Louise Arbour: Yes. Bring me a Nelson Mandela in Bosnia and maybe we would not have needed the international tribunal. We were looking then, certainly at the cases I've been involved in, and many others I have seen, with countries that were totally devastated by either conflict or oppressive regimes including that had never been able to produce a decent leadership to bring them into the transitional stage, or had a leadership that was problematic. So, the quality of leadership in South Africa in and of itself is an element you never see almost anywhere else. I think it's also a country where the commitment to live together, it's a country that took ownership of its future together. This was not the case in the Balkans, where given the choice everybody would have left, I think. So, there were circumstances there, I think, that made that formula possibly the best suitable one, but, maybe truly exceptional. And, I'm not sure you'll see a lot of environments where you can replicate a genuine true reconciliation with no criminal accountability. Nelson Mandela was incarcerated and then when he rose he spoke and he spoke of exactly that, reconciliation. When you're standing in Cape Town there's a lot of water and then Antarctica. Figuratively there aren't a lot of places to go. So, you got to make it work.

Carole Macneil: Do you believe in God?

Louise Arbour: Um, I'm not so sure.

Carole Macneil: Even with your Catholic upbringing? Or maybe because of it?

Louise Arbour: These are very big questions. I, as on all big questions, have a very open mind.

Carole Macneil: And the possibilities range from?

Louise Arbour: They range from all extremes. First of all, I have a lot of respect for people of faith, for people who take comfort in their fate. I don't aggressively embrace one view or the other. It's an environment. On my best days, I have a very open mind.

Carole Macneil: Where do you find your comfort then?

Louise Arbour: I think more from a humanist drive. I believe in the destiny of human beings which include their, not so much obligation, but their nature of looking after each other, kind of constructing, living in society. It's a very secular faith, if I could put it this way.

Carole Macneil: You said you'd never be a judge again.

Louise Arbour: No.

Carole Macneil: Why?

Louise Arbour: I've done it all in a sense. I've done that. I adored it, loved the work I did as a trial judge in the Ontario Court of Appeal, it might have been the very best working environment I've seen in my entire professional life. The work at the Supreme Court of Canada, I would have happily stayed, had the phone not rang at the particular moment I would have happily stayed the rest of my professional career at the bench, but there is no going back. It's very hard. In the same way I'd never be a law teacher again, although I adored that part of my career. You only live once. You got to look ahead. I was a judge for, what 16 years, in one sense I've made my contribution and at the same time I think I got so much out of it, I would want to do something very different.

Carole Macneil: Living your destiny?

Louise Arbour: Or, gardening, you know, you never know!

Carole Macneil: A glass of wine in one hand, a trowel in the other?

Louise Arbour: Yeah, that looks very good!

Carole Macneil: What had the most impact on your life, now going forward?

Louise Arbour: If we're talking about in my public life, things that happened in the environment, people of my generation, in Quebec, in the late 60's, early 70's, there were many events, the cultural revolution, but a single event? The War Measures Act was, for me, I was finishing law school, was an extremely, I think it's not exaggeration to say almost, a traumatic event.

Carole Macneil: Traumatic?

Louise Arbour: Yes. It was an enormous shock, from where I saw it, to see the capacity, the repressive capacity of the state in full-fledged action right in front of my eyes. It was very shocking.

Carole Macneil: What's going through your mind, when you recount that? What moment did you find shocking?

Louise Arbour: I think the most striking moment for me was the arriving, the presence of the army on the streets of Montreal, and the discovery, again it's a vague recollection, coming out of a students’ bar, and, it's very late, whatever, on a Friday night, we'd all been there, and we'd come out on the street and across the street was either a police station or maybe a fire hall, a very friendly community institution that was always there, and I remember coming out and there were people there in camouflage. It was shock. These were the days when we watched movies like "Z". These things were not supposed to happen in your own country. It was the sense of being completely overtaken.

Carole Macneil: How did you interpret that? How did you internalize that? How did it become part of you?

Louise Arbour: Well, I was one of maybe, certainly not the majority, but one who was very skeptical right from the beginning about the entire exercise, the necessity for it. It was the sense that one had lost control, that others were in charge. I wasn't giving them sinister motives. It was just the sense of having completely lost control, of having literally been taken over by others who were pursuing an agenda that were not in the public domain, that there was something else happening out there, which to a large extent, in the future, had anchored my sense that one has to be vigilant against abuse of power, and that power has to be made as transparent and accountable as is possible, as it unfolds. So I think a lot of my subsequent inclinations of, not being suspicious of the exercise of authority, but being extremely firm in requiring transparency and accountability, I think a lot of that is rooted in this. You know, it's a moment in Quebec history that a lot of people have lived differently, including those in power then. This is what it looked like to me, as a 20-year-old law student.

Carole Macneil: And later on, did it manifest, as time went on, and you grew and learned more? What we were talking about earlier, being careful about exchanging freedom for security?

Louise Arbour: Oh, absolutely. In fact, I think the only organization I've ever been a member of in my entire life, and it's not a coincidence, I didn't have a lot of time, I had small children, I couldn't do a lot of things out there, but the only group with which, and there were a lot of choices to be made, this was at the height of the women's movement, but there was a limited amount of time and energy I could devote to anything beyond my profession, teaching and raising my kids, I was drawn immediately to the CCLA, in large part because to me this was a priority.

Carole Macneil: Speaking of the women's movement, would you consider yourself a feminist?

Louise Arbour: God, I haven't heard that word in a while. Well, in fact, I just got back late last night from the Beijing Conference in New York and, yeah, very much so, whatever the term has meant in the past and what it means now. It's part of the landscape of human rights. And, you know, I spoke to the conference yesterday and what I said there represents, again, what I think. I have difficulty isolating, completely, this movement. What I think is maybe the greatest accomplishment of the women's movement is what it has done for the freedoms of others. Women have been at the forefront of developing the concept of substantive equality and, at the end of the day, the greatest legacy is not just what it has done for women, which is good enough, but also how it’s empowered so many vulnerable and marginalized other groups. I think that is an enormous achievement.

Carole Macneil: You know, when I asked you about feminism, I kept thinking of Judy Rebick's face, going after your ruling, your ruling that the rights of the defendant being able to pursue the sexual background of a rape victim. You came under a lot of attack and Judy Rebick and others might say, ‘what kind of feminist is that?’

Louise Arbour: Well, I think true feminists will recognize that even amongst feminists, you will have differences in opinion. I continue to think that everything else now being settled in the law, that the position I took on that case was the correct position. Again, it's a question of fine tuning systems to ensure the redress that was very necessary to give victims an appropriate place in the courtroom. Rape victims had always been horrendously treated by the legal system, but I was always persuaded that it wouldn't give them much redress to abuse the rights of the accused, particularly if it jeopardized, if it put at risk the possibility of a wrongful conviction. Which, I think, is talk again of the repressive arm of the state being abused. I think that wrongful convictions are a stain on our legal process, so we must be very careful to avoid that. So, on that issue, I've never changed my mind about the correctness of the position that I took, but I have a lot of respect for others equally committed to the welfare of women who take a different view.

Carole Macneil: Have you changed your mind about something?

Louise Arbour: I change my mind about all kinds of things, but I never have regrets. Yeah, I hope I change my mind otherwise isn't that the way you become really conservative, when you never change your mind? Someone said to me, that I thought was really illuminating, ‘that you become senile when your past is more important to you than your future.’ And, so I think in the same way when I say to you that I'm not very introspective, I'll have lots of time when I'm gardening to think about my past, I'm much more interested in the future.

Carole Macneil: Madame Arbour, thank you very much for speaking with me.

Louise Arbour: You’re welcome.