Law vs. Power: Who Rules? Who Makes the Rules?

MODERATOR: This distinguished panel will discuss one of the most philosophical and practical issues of international affairs which is the relation of law and power. All of us here know that this issue is almost a gray area. There are no moral high grounds. Those who cling moral supremacy often lose it sooner than they think. We all have issues as Americans, as Canadians, as Europeans. And as I am a German I would like to say rendition flights took place over my country, as well. So we will discuss here this evening a highly contaminated and highly emotional issue. I therefore pledge to all of you to discuss with all due respect to all participants and despite all pressing questions and all curiosity about the White House plans to close Guantanamo and pending cases in court. Please bear in mind that our distinguished guests cannot be asked to comment on pending cases. Law versus power. As a law student in the 70s and 80s I grew up with a conviction and the understanding that law is the counterforce to power. It is there to civilize, to restrain, to harness and to contain power. There is a proud history of legal and institutional containments from the habeas corpus to the Bill of Rights to the declaration of human and civil rights in France and the United States to our modern constitutions, our courts and the creation of the United Nations. But as long as there have been restraints, there have always been competing narratives. Power, it argues, is an interest and a purpose unto itself. Moreover, it is unilateralist in nature. It expresses itself through force and it is, in fact, its own norm. This second narrative appeared to be prevailing for a long time after the terrible attacks of 9/11. But there are also new threats. Terrorists act globally with the support of some governments or failing states. And this battle, it seems power contains, restrains and harnesses the rule of law. It is said that neither the laws of war nor the domestic laws provides sufficient answers or tools. A new term was coined unlawful combatants. The prison at Guantanamo renditions targeted killings appear to be symptomatic for the rule of law in retreat. But government have to find answers for the populations that seek security. They force difficult questions like it is justify to kill 10 people, among them also innocent ones if you save the lives of hundred. It was easy to install Guantanamo but is very difficult to untangle it. What do you do with dangerous people who cannot be tried for different reasons? Law is not just a set of principles. It is a basket of material to find practical solutions that help us tackle the problems. Power [INAUDIBLE] law, some see in it the rise of new legal realism and it is the answer to the facts on the ground. Others describe it as a return of the laws of the jungle. We have four distinguished guests, four outstanding experts who will look at the fundamental questions as well as the very concrete answers from very different angles. The Right Honorable Beverly McLachlin, Chief Just of the Supreme Court of Canada. She was appointed to the Supreme Court in 1989 and served since 2000 as its head. Welcome. The Honorable Stephen Breyer, Associate Justice as the United States Supreme Court, President Bill Clinton appointed him in 1994 to the Supreme Court. Both justices have an outstanding record and are renowned authors of multiple books and articles on the rule of law and such issues of the impact of international law. The Honorable Gregory Craig, White House Counsel of President Obama and a leading voice in the guide and process of closing Guantanamo with all its related problems. Gregory Craig is something like the chief justice in the White House. He has an outstanding legal career and has served numerous presidents and secretaries of state with his wise advice. Welcome. Finally Dr. Hina Jilani. She is one of the most highly respected civil rights lawyers in Pakistan and we know from very recent history that Pakistani lawyers and judges have a very, very proud history of the defense of the rule of law and human rights in their country. Hina Jilani has defended many cases in the Pakistani Supreme Court. She was also a member of the United Nations Commission of inquiring the four of the member of the fact finding commission in Gaza. Thank you very much for coming. I would like to start right away with a question to the audience. What do you think, ladies and gentlemen, does power trump law or does law trump power? Who thinks power trumps law? Please raise your hand. Who thinks law trumps power? Let me now take this question to this distinguished panel. To all four panelists. In lieu of you as practitioners of the law is the principle of power prevailing over the rule of law meaning is the international law on the retreat? Your Honorable Justice McLachlin, please start. THE RT. HON. BEVERLEY MCLACHLIN: Thank you. I just want to say first of all that I'm so pleased that this meeting is considering a legal dimension to the many other international problems that are being discussed. There are several questions in what you have said. Does law trump power or vice versa? Let me just say that I have trouble answering that which may be why you did get 100 percent response. It is not an either/or situation for me. The law and power have to be viewed together. Even the most dedicated advocates of sovereignty in an absolute sense would not want power to be totally untrammeled by the law. So as you have said the law is a way that we limit power within our countries, within our constitutions which limit it and outside our countries by treaties, norms and so on. So in this way we guarantee that power is exercised responsibly. So I see the law and power as symbiotic as both playing an important role. Depending on the circumstances, I suppose there are times when one trumps the other or is seen to be trumping the other. But this is a very natural phenomenon in an ongoing dialogue. And is international law, in particular, you ask, as a result of this on its way out? I don't believe it is. I know there are debating questions. I think if you take the long view international law is growing in its importance. If you go back a couple of hundred years there was very little international law. There were few treaties and the occasional peace settlement after a war. Gradually we have more and more of these. And after the Second World War and the horrors and the terrible human rights abuses that occurred before the Second World War the world reacted in horror and said we have to do something about this. So the United Nations was set up and we have the United Nations Declaration of Human Rights which greatly expanded the field of international law. We also have a lot of other treaties and so on that have been coming up. And the most recent development are international tribunals. Now, this is not a work that's completed and it is replete with many difficulties but I believe that's the trend. MODERATOR: Thank you very much. Mr. Craig, you probably had a lot of sleepless nights in the White House in the center of the power. How would you answer this question? THE HON. GREGORY B. CRAIG: I think it ebbs and flows. When I was a young lawyer I represented indigent clients as a federal defender. And every time I got up in front of people that were distinguished judges I always felt that the Constitution of the United States was in jeopardy largely because I was the one that was arguing it. But I felt that every time I brought a Fourth Amendment argument or a Fifth Amendment argument it was a close call as to whether or not the Constitution was going to win or if it would be some other policy that would overcome that. I'm reminded about that old story about ancient Rome when ancient Rome was just a city they had very powerful priests and that priesthood set forth a rule that was unbreakable that before Roman Armies could go forth from the gates of Rome the priests had to gather together and declare that this was in selfdefense otherwise the Armies could not leave the city of Rome without the priests blessing it. Well, as you know Rome conquered the world. It was in selfdefense. Every time they sent the armies out the priests gathered together and issued a ruling. The Roman Empire ended in selfdefense. The point I'm making is that law sometimes doesn't necessarily reflect something that's static. It gets changed and determined by the realities of the day. I think the world has changed dramatically in the last 10 or 15 years. We no longer have alliances and alignments with armies facing each other. We have a greater realization that the global economy, the threat of terror, we are all interrelated so we can't solve these problems by ourselves. I think we got a better sense of that than ever before except maybe during the Second World War. I think that leads to a resurgence in international arrangements, international conventions. And so I agree with the Chief Justice that international law is coming back stronger and better than before. MODERATOR: Thank you very much. Justice Breyer, you are regarded as one of the judges that is a strong voice for international law on the Supreme Court. In the hall of fame of international law, how would you draw a conclusion? THE HON. STEPHEN G. BREYER: First, I would like to thank you for inviting me to this. It has been very, very interesting. That was a very nice introduction. I thought you were going to tell the truth and say he is the author of many, many boring books. I agree with Chief Justice and I agree with Greg Craig, too. What? This is a power versus law. No one thinks of it that way who is in law. Great statement, I think. Justice Jackson. Nuremberg tribunal. He opened with a fabulous remark. He said I don't get it exactly right but he said," four nations flush with victory put aside vengeance, putting their enemies subject to law is the greatest tribute that power has ever paid to reason". When you think about that and say there is reasoned power. So if you want to be philosophical I would say law is an example of reasoned power. Of course, law depends upon power. Think of Andrew Jackson. The Cherokee Indians owned some land. The Supreme Court says its theirs and Andrew Jackson says John Marshall, the Supreme Court Chief Justice has made his decision. Now let him enforce it. Haha. The Indians left. He threw them out. Terrible. Of course, law depends on power and law is an effort by those in power and in means democracy. It means everybody, to produce reasoned exercises of power. So that's philosophical. Metaphorically I don't like the international versus national metaphor at all because I think that does not describe the state of the world. We have gone from meetings 15 years ago where when you had judges meet it was what I call my day at camp. This is how we do it here at our camp. This is how we do it there at our camp. That's gone. Last week, two weeks ago I meet with three French judges and we are not discussing my day at camp. We are discussing cases in France that have direct implications [INAUDIBLE], for example, in the courts of the United States. That's why when you started by the way, Professor [INAUDIBLE] in Italy has counted more than 1000 institutions that today are making law that binds more than one nation. So, of course, we have to look to other law when a plaintiff in Ecuador sues a defendant in Holland to see whether American law applies, antitrust law. Why would he sue an American? But the fact is that we have to know something about Europe. So I'm not just here for my own pleasure. I have to know as part of my job something that makes realism of what I'm doing. Now, that I, I think is the final point which is the challenge. Jackson, also, and this is another thing that I think is very metaphorical and descriptive. We did a during World War II we took 70,000 American citizens whose were Japanese and moved them into camps and historians showed there was no justification for that whatsoever and the authorities knew it and it time the Supreme Court in 1944 and they upheld it 6 to 3. I hope that wouldn't happen. Who knows? The three including Jackson [INAUDIBLE] and they illustrate what I think is the question which is the real dichotomy and I think we vacillate to those two points. One, Jackson. Here is what we do when there is war. The generals and admirals will do what they want and what they think is necessary. And let them do it. But when it comes to us we apply the law which will be after the event and so it won't matter. That's a little bit too realistic. The other view is Murphy and Murphy says putting those Japanese Americans into camps was wrong at the time, wrong now and the generals should have followed it. Now, that's easy to say and hard to do. My friend Aharon Baraq, the Chief Justice of Israel takes that second approach and that approach in the sentence is the law has to work out. You cannot impose unrealistic conditions on the generals. But be careful. You're there to protect the individual rights and that's what he tries to do and its popular with nobody. But if you take that second position which I think is the right one then when I hear today the lawyers are being obstacles to sensible policy with privacy. Piracy, sorry. I don't worry about privacy. I worry about piracy. But you see that's wrong. There's something wrong there. There's a disconnect. And the people who are writing these rules and regulations which are everywhere in the world have to understand what the actual security problems are so that they can protect the individual without hurt turning our constitution into a suicide pact. That's the problem. You give us the answer. MODERATOR: Thank you very much. Ms. Jilani, from your perspective as human rights lawyer you deal with daytoday cases and you don't only deal with the retreat of international law. You also deal with the retreat of human rights. So how does that look from your perspective in your daytoday work? What is your biggest problem? DR. HINA JILANI: Well, let me first of all say very clearly that I don't think that the retreat is on the part of either human rights or international law. I think retreat is on the part of those who have constructed these regimes but now they seem to be on the retreat in terms of their duty to protect and their duty to promote the very principles that the world has taken decades to construct. I don't see that there is any retreat on the part of the legal regime itself in terms of the international law. But let me take it where the Honorable Justice of the USA left. He said in the beginning that there is no question that either law trumps power or power trumps law. I think both need each other. And I quite agree with that. The only thing that I would sort of put it differently would be that law actually does give the power to confer legitimacy on the exercise of [INAUDIBLE]. So in that sense there is a relationship and it may not necessarily be a relationship of competition between the two. But let's look at another aspect of it. From where I come I think the problem is not a recognition that the rule of law legitimizes power and puts a limit on it which balances the rights and entitlements of those who should be the beneficiary of the law and the authority that has the duty to enforce and impose the law. I think the problem for us is that the law itself in many situations becomes a tool of repression. There are far too many countries in my part of the world who have legal regimes which are continuing to confer legitimacy on unfair and unjust actions of the state. And I think that's where my problem with the whole concept of the rule of law not being properly understood comes. You don't make that part of the law a part of the concept of the rule of law which actually in many ways undermines the rule of law. So if somebody as a lawyer [INAUDIBLE]go to court and defend people against the injustices of a particular law I wouldn't want that there be a power with that judicial system to be able to diminish the injustices that emanate from a law that has been the fruit of another institution in the same state and has been imposed. MODERATOR: Is it the injustice of the law itself? DR. HINA JILANI: It's the injustice of the law. If I give you an example from my own country. For 25 years we dealt with an extremely discriminating law which was a part of the Islamization Regime 25 years ago when we had a military government. This discrimination women and citizens of Pakistan had to bear the brunt of for 25 years. And eventually we were vindicated. Those who had fought against this war for 25 years were vindicated because it had to be reviewed and changed and reformed by another military government. The people who saw that law as a tool for what they wanted to do 25 years ago were forced into a recognition that this law is neither just nor sound as a social and political policy of the state. So what I'm trying to say here is that absolutely the power to enforce the law is a legitimate power for as long as there is a recognition that laws have to benefit people; laws have to promote and protect human rights and that laws must also take into consideration not just civil and political rights but the social economic benefits that the people in my part of the world, for instance, social and economic deprivations have become the reason for action by pubic, like protests, etc. which have led to violations of civil and political rights. So that kind of interdependence and the intricate relationship of rights is very clear there. On international law I think I agree very much with my other colleagues that international law is there. It has come back especially in the light of the very deliberate erosion of international human rights and international humanitarian standards that we have seen because of security concerns, because of terrorism, etc. and as a part of the jurist panel set up by the International commission of Jurists we were very clear in our view that security imperatives are there but these imperatives have to be solved within the framework of human rights and international humanitarian law there is absolutely no space for stepping out of that regime. MODERATOR: Thank you very much. I would like to have two brief answers from our two judges. I know that there have been many disputes over the way you use international law in legal decisions also between the United States and Canada because they have a different view about binding effects of international law. How do you use international law when you have to draw a decision? THE RT. HON. BEVERLEY MCLACHLIN: We use international norms a lot in our decision making and there's no feeling that we shouldn't as far as I can tell. But we use them in a very contextual way that is appropriate, not necessarily to tell us what an answer must be but how that fits into the Canadian context. Let me give you an example. We had a case where a woman was being deported to Jamaica. She had, I believe, four children who were Canadian citizens. When she would be deported her children would either have to go with her to Jamaica or they would be in Canada but without their mother. And the case went up through our various immigration tribunals and finally got to the minister level. The minister confirmed he had a discretion exercise. And he confirmed the deportation. She appealed. It was a very narrow right of appeal on humanitarian grounds. And she won in our court. On the ground we said that the minister had not considered the international covenant on the rights of the child. And this decision to which Canada is a party this decision that the minister had made would have impact, a very bad impact on those children potentially either way. So we didn't tell the minister what he would have to do but we said "Mr. Minister, we're going to give you a little advice. We're going to send it back and we'd like you to look at it in the context of Canada's international obligations". Sometimes, too, when we're interpreting our charter rights and freedoms we have very nice, broad phrases, freedom of expression, equality, wonderful phrases. But what do they actually mean in a particular case? We will get great assistance by looking to Europe, by looking to the United States, by looking to other countries to see how they have interpreted, what legal content they have given to those phrases. And that won't necessarily dictate our answer. We have to look for Canadian answer, but it helps us a great deal. MODERATOR: Thank you very much. Justice Breyer, you quoted the Israel Supreme Court judge, Aharon Baraq. And the Israeli Supreme Court uses international law all the time and also because of a lack of its own constitution. When you discuss that at the Supreme Court what effect does international law really have in your discussions? THE HON. STEPHEN G. BREYER: I won't discuss that. I mean, the issue very rarely arises. Why? Because when it will come up will be, for example, a style of law, look at the statute. It adopts into American law standards from what you're calling international law that I would say are a group of people who were at the UN who drafted this. It's part of our law. The same is true of the torture treaty which is a statute in the United States of America. The same is true when you start looking at questions that have nothing to do with human rights, but, for example, whether a firm in Los Angeles can get information from another firm to give to the EU. There is a principle called comity and comity it is a national principle about international things. It happens in all nations that have adopted it. And I must know something about European law to apply it. There is, in fact, a treaty called the Warsaw Convention which are you getting the point? It picks up something that is international because every nation has adopted it. If you start talking about human rights we have a constitution. And now nobody has a law and they can't pass a statute stopping me from looking at what I want to look at when I interpret our provisions. And if we have, in fact, in the world more and more democracies, more and more problems that have similar people, human judges. They are called judges. They are human beings. I know that is up for dispute, but nonetheless. And there are human beings there with courts like ours, with constitutions like ours and have problems like ours I might read them. So I find something in Baraq or I might find something in India or I might find something in South Africa that suddenly triggers something in my mind just as I might read a law review article nobody is going to say I can't do it. That's the last and I say it's the least important in a sense. So I'm not going to get into an argument with people about whether or not though I do like to, actually about whether we are going to refer to is something called international law or not. There are thousand different concrete specific ways in which it becomes part of our law. And that is good enough for the moment and it is more and more true that I will look to what other courts have done in order to not necessarily copy them, they are not binding in that area, but they are entitled to being read and thought about and that happens more and more, too. MODERATOR: Thank you very much. I would like to pick up a hot issue before I open it to the general audience. Mr. Craig, do we find answers in the law concerning the new threats? We say thou shall not torture. Is water boarding a form of torture and outlawed by principle or is it justified on a casetocase basis? THE HON. GREGORY B. CRAIG: Well, I think water boarding is a form of torture just to answer that question. I would like to say that I think we are avoiding some of the really tough questions where the tension between law and survival sometimes comes directly to policymakers. And tough choices have to be made. And that is when lawyers are invaluable but as Stephen Breyer said the Constitution of the United States is not a suicide pact. I remember reading maybe 9 or 10 days after 9/11 occurred a very distinguished expert on non proliferation and nuclear matters predicting that within one decade it was likely, 50 percent likelihood, that nuclear materials would fall into the hands of terrorists and there would be a nuclear detonation in a major city in the United States of America. If that is a realistic proposition it liberates policymakers to do a lot of things that they otherwise would not do to try to prevent that from happening. Now that is, it seems to me, the tough questions and the tough calls. I happen to believe that torture under any circumstances is not only illegal, it doesn't work. So I find myself shaking my head in wonderment when people with the timing, you know, the model of the ticking time bomb. They go woozy in the head thinking that for some reason torture with a ticking time bomb scenario is going to be much more reliable than it is at any other time. So it seems to me that when you apply logic to that question, the question of torture and circumstances like that, the answer is selfevident. But these are tough questions and the asymmetrical system of warfare that we've got today is very, very different from what came out of the Second World War in terms of when our international institution was created. We still do not know how to deter non government suicide terrorist attacks. We never may be able to know how to do that. The question of whether material support is a violation of the laws of war, it never has been in the past because if you were a German and you supported your Army or if you are an American and you support your Army that was not a violation of the rules of war. But today the Congress of the United States has in setting up the military commissions adopted material support of terrorism as a violation of the laws of war. That's a dramatic example of how the Congress of the United States is trying to meet this new world. MODERATOR: We have a lot of tough calls. Targeted killing is a tough call. Another tough call is indefinite detention. How, from your perspective, Dr. Jilani, as a human rights lawyer do you see the answer to tough calls? DR. HINA JILANI: I think the answers are there in the law itself. And I don't think that the regime of international law that developed after the atrocities and the criminal, extreme criminal actions that happened during the World War were made without a recognition that there will be tough times. For instance, the human rights regime has a delegation regime, as well. So I don't see any problems there. I agree with the counsel that there are absolutely no circumstances under which torture can take place. I was a little disturbed and a little concerned when I was confronted in the United States with the argument that we take your point on torture, but cruel, inhuman and degrading treatment, the CID treatment that is an ambiguous concept. This was coming from lawyers, by the way, that were advising the White House at that time. And when we spoke to the military they said absolutely not. This is a part of our military menu and we understand that concept and our soldiers are trained to understand it. So there is that kind of a division even amongst those who are designating certain areas as top areas in which it might be justified to cut corners. I think there is absolutely no need to cut corners. In fact, it is counterproductive. In my country torture is not an exception. It's the rule. I can tell you [INAUDIBLE] I don't bring about justice all to reveal the truth in order for authorities to act it, in order to prevent any crime. I don't believe in it at all and I have been with this for almost 35 years of my life. Secondly, I have every bit of faith in those who have stood steadfast with international law and these are not people who are turning their eyes away from reality. Who knows the menace of terrorism more than those who have been fighting against terror? And against the intolerance that that menace has created. And these are people like human rights defenders that I am talking about. They are in the front line. They are the first targets of terrorism in countries where terrorism has the deepest root, in my region, for instance. And these are the very people today saying you cannot give a public the perception that terrorists are those who do such heinous crimes and wrong are victims of injustice. Go with the law. Expose the injustices and the heinous of the crimes committed as a part of terrorist acts. We tried and we see the benefits of it. That is why I say it is not only wrong. It is counterproductive. MODERATOR: Ladies and gentlemen, do we have to stick with the law? Do we have to broaden the law? Do we have to find new frameworks? The floor is yours. The panel is yours. I would just like to remind you to ask questions. MODERATOR: Robert Jackson from the [INAUDIBLE] in London. It seems to me one that in terms of the context which we are discussing this issue which is international security, it seems that there's an issue over the way in which the same word, law, is used in a domestic context as opposed to an international context. I think one of the key questions that anybody is interested in with just outcomes and legal outcomes is what kind of a process has to have taken place and according to what principles in order to make something in accord with the rule of law? Now, domestically coming from the United Kingdom and yourselves at least three of you from the United States, from Canada and also from Pakistan although their system as well there, in countries where you have a jury system, someone is taken to court. They are charged with a crime and they expect that those 12 jurors will give an honest verdict on the basis of the evidence they hear. They don't expect the juror one is bribing juror three and juror five is threatening to stab juror six and juror 9 is blackmailing juror twelve. If you go to the United Nations Security Council how is international law made there? I gave an example which is a characterture, but not a particularly gross one. If you go back to the war in Iraq [INAUDIBLE] said a couple of years ago on BBC that he thought that because there hadn't been a subsequent resolution in the security council that the war was illegal. What if the United States had agreed to a deal in Russia and China had to deal with France and Britain had a deal with someone else? They could have made what was a debatable situation into a cast iron case where international law was agreed to. So the question is how do you cope with that difference in the way in which law is constructed? Because that is the crux of the matter in international politics. MODERATOR: Thank you very much. Very good question but please be brief. I think that is directed to you, Mr. Craig. THE HON. GREGORY B. CRAIG: I don't think you pretend that the security council proceedings are equivalent to a jury trial. And I think it is a mistake to pretend that nations are going to act unlike nations. They are going to pursue their interests. They are going to try to seek their own advantages. But the objective of the security council resolution is to provide legitimacy to international activity. This is where I totally agree with my fellow lawyer at the end of the table here. And that is that the question of legitimacy is a huge question and it authorizes the use of power or it actually delegitimizes the use of power. And the security council plays that function. One of the questions asked early on in the piece of paper that went out describing this panel was whether there were any international institutions that should be reformed. I think the security council should be reformed. It should be changed dramatically. It doesn't reflect the reality of the power situations today, the economic situations today. And it requires, I think, a major change. This is Greg Craig speaking. This is not speaking for the President of the United States or the White House. But it does seem to me that it is a mistake to make equivalent what goes on in the security council when nations are acting as nations and seeking legitimacy and consensus, cooperation and collaboration to meet common threats whether it is terrorism or pandemic or climate change. You can't compare that or make it the same as a jury trial. MODERATOR: When you talk about reforming the security council, can you be a little more specific? Does it mean broader number of members or does it mean different rules for voting and different veto powers? THE HON. GREGORY B. CRAIG: I don't want to get in the weeds but I think there should be other permanent members at the security council to more adequately reflect the populations, the interests of the global community rather than just the victors of the Second World War. MODERATOR: Thank you. Does anyone want to add something to that? Next question, please. Can somebody help him with another microphone, please? AUDIENCE: My name is [INAUDIBLE] formerly with the center for American progress in Washington. I wonder what the panel thinks about the rise of China and the resurgence of Russia and the implications for the strength of international law. Both Chief Justice Breyer and Bhief Justice McLachlin noted correctly that if one looks back 60 years is our current international legal regime is directly a result of the victors of World War II. Had the allies not had a decisive victory one could imagine a very different result for international [INAUDIBLE]. So 60 years hence when China is in its full velocity as an international power and other [INAUDIBLE] can we expect that international law particularly with regard to humanitarian law and human rights law will be as strong 60 years hence or can we expect it to be weaker when the international balance of powers change? THE RT. HON. BEVERLEY MCLACHLIN: That's a very, very important and interesting question. I have been to China several times working with the judges and the people's Supreme Court and engaged in this effort that is going on in China to build a rule of law. Now, there are people who say it is ruled by law and not rule of law. And that's a subtle distinction because usually the rule of law has an independent judiciary in our western sense. And people argue that that is not yet the case. But you have to look at the Chinese will tell you look at where we came from. After the revolution law was destroyed and then you have the terrible era of chaos. And it wasn't until the late 70s that the opening up came. And I was told they had two laws on the books at the time. I mean, the idea of law was that a gang of people took a certain person to a square and they all talked about it and whatever happened. And so they have had to build up this whole body of law. And they have been doing it for commercial reasons, in my opinion. And to get into the WTO because the WTO has said as long as the [INAUDIBLE] they have recognized that the rule of law is essential not just to security but to economic development. And you have to have a dispute resolution. You have to have independent tribunals. You have to have some expectations. So China has made huge progress and one hopes that it will continue. There are people in China who say it is. One young man said to me once we get a judiciary working and once we have the people having confidence in it and you have to recognize China's huge diverse customs then the rest will come, too. MODERATOR: Would you say it is a valid argument, the Chinese argument to say we have come a long way, see what we have achieved? Because when you look at Chinese courts, and I've done that, you have party commissions ruling in? THE RT. HON. BEVERLEY MCLACHLIN: I'm not saying it is a justification. I'm not trying to justify that at all. But I do think that you have to look at these problems in historical and cultural perspective while working to encourage rule of law in the full sense. DR. HINA JILANI: I would like to answer that question in a different way. I believe that any of the rising powers, so to speak, we should keep an eye on their own conduct and on their record of respecting human rights and be able to then formulate strategies to protect that rule of law and the human rights regime from any kind of [INAUDIBLE]. But my concern as a human rights lawyer working in my own country and the international level doesn't just come from Russia and China. My concern is with what you call the retreat with those who at least claimed that they backed human rights. Most of our problems in the more recent years have occurred because of the erosion of this international law either as a justification to respond to security situations, counterterrorism, etc. Where do you think all of these renditions, illegal disappearances, torture this was happening in countries where we have traditionally not thought to keep and scrutinize their conduct. And they are stuck by what they have done. That is the more disturbing aspect of it. MODERATOR: Dr. Jilani, you are fighting on two fronts. You are fighting against the government that interprets the law sometimes like it likes to do. And you also have to fight against a tradition, a religious tradition that interprets the law in another way. So at these two fronts how do you feel and do you think at cultural economic historical arguments that are used in this debate have to be taken into account? Are they valid? DR. HINA JILANI: I think what I'm fighting for is neither culture or against anything else. I'm fighting for justice. I'm fighting for fairness. I'm fighting for nondiscrimination. I'm fighting for equality. And whether I have to fight for it against those who are using culture and cultural specificity to undermine justice and equality or against those who are using more legal arguments and more sophisticated ways of undermining justice and equality, I think my job is the same on both sides. MODERATOR: Thank you very much. Next question up there. AUDIENCE: [INAUDIBLE] From the Financial Times. I have a question for Justice Breyer and it is a pretty straightforward one, I think. Which is: is it now possible within the U.S. framework to have set up a system of trials for detainees at Guantanamo that is fair to the detainees in according them due rights of a defendant but also pays an attention to the rights of those people who might be effected by future acts of terrorism? And if it is possible to devise that sort of system, what does that system look like? MODERATOR: Thank you very much. Very good question. Justice Breyer, I would like Mr. Craig to answer that, too. THE HON. STEPHEN G. BREYER: I can give you a straightforward answer. I don't know. I can tell you the state of the [INAUDIBLE] Some are being tried under our ordinary criminal justice system. That has all kinds of tools, weapons, illegal devices and so forth to assure a fair trial and the relative interests being protected. When you talk about trial the state in Guantanamo, the military tribunals. There are two systems, the military justice system, which is called the courts marshal and the other is a system of special courts called military tribunals, which Congress passed a statute setting up. The state of the art in the Supreme Court is when that came up in a case called [INAUDIBLE] we said that that kind of system could be used for the purpose of determining whether a person was being held as a military combatant, a prisoner of war. And we said Afghanistan at that time being in real conflict, war going on, that was conditions held, you could hold the person and if he said I'm not a combatant but he said I am just a Red Cross worker. I was a shepherd. And the military says why did you have a machinegun. Well, we need those for shepherds in our area. But the point is there is a dispute of fact. And we said the military tribunal can determine that but they have to have the elements of due process, a neutral decision maker, an opportunity to present evidence and see the evidence against you and back and forth on that. That's as far as we have gone. So that doesn't answer your question; does it? If it arises we'll do our best. THE HON. GREGORY B. CRAIG: I think the answer is yes. The Supreme Court granted all detainees in Guantanamo the right to test whether or not they are being held lawfully under habeas corpus. And the government's record, batting average, so far is I think we have lost 31 and we have won 6 of those habeas cases. But each one of the remaining 215 individuals at Guantanamo have that basic right to challenge the authority of the United States to maintain their detention pursuant to the authorization for the use of military force which was passed by the Congress after 9/11. So that is the floor of due process that each detainee gets. What has happened over the last 10 months is there has been a taskforce established by one of the executive orders that required experts not only in the law but also intelligence to review each detainee's file and make an independent decision as to whether this detainee could be transferred back to their home country or sent to a European country that might want to receive that individual or whether that person would be prosecuted pursuant to an article 3 civil court in the United States under the criminal laws of the United States or in accordance with the reformed military commissions. The Military Commissions Act was reformed in dramatic ways, made much closer to article 3 courts although not all the protections are there, but it is consistent with the tradition that when you are in a warfare situation in the past we have done this. We have had military tribunals dealing with violations of laws of war. So I'm hopeful that the system that we have established with the court's involvement will, in fact, at the end of the day, when this has been worked through, will be seen as a serious effort to get it right with respect to the due process for the detainees. THE HON. STEPHEN G. BREYER: A general point which I think is interesting to me. I hope it is to you. But note in this discussion that I hear two types of questions. One type of question is the type this gentleman asked is the rules in the security counsel of what's good, bad and different and they help him justify or not justify particular action abroad. Does it correspond with international law? I can't help you there. That's not my job. I know nothing about it. Then there is a second kind of problem. And the second kind of problem is what you started at the beginning. You started talking about rendition. Now we are talking about Guantanamo. That means in today's world there are fewer and fewer problems that are in your [INAUDIBLE] that do not, in fact, possibly draw me into it. Because they'll be a corner, a part, an instance where suddenly law is invoked in the sense that I have to apply it. You see? And that's why when I hear about the pirates again or when I know about your case which is the Goldstone report I suddenly think well, the law here better reflect reality. That means both a reality where people all over the world are striving to get what she's talking about, it's called human rights and the reality where there is still a need for military force. And I guess that means if you want the point of this that I have been hectoring about. You ask your lawyers when they tell you something, why. Why should it be this way? Why should it be that way? Because that's the question the judge will ask. And all she wants is that the Pakistani judges get the freedom to ask what the local law tells them to do which is to apply human rights. MODERATOR: Thank you very much. I'd be happy to hear how the Goldstone report reflects law, but the lady first. AUDIENCE: I am from the [INAUDIBLE]. That is exactly my question. In international laws of war and international humanitarian law there seems to be emerging gaps with respect to the use of force against those who are embedded among civilians. Would any one of you care to comment? DR. HINA JILANI: Let me begin by saying there is absolutely no question in my mind that there is a framework that guides you to make decisions when you are conducting hostilities. And that framework very clearly lays down what is the principle of discrimination and what is the principle of proportionality between a military objective and the duty to protect civilians. In the context of what we are being told today that there is more asymmetrical warfare and it becomes difficult to make decisions or to draw guidance from international humanitarian law or from general the laws of war. You know I just want to make one give you one example. A few years ago I was on mission to Israel and one of my questions to some of the people there, legislators, lawyers, even judges, was about the practices of the occupation. And the answer I repeatedly got from them was "well occupation is not illegal." That's true. But at the same time there are laws that govern how an occupying power has to conduct itself and what responsibilities it has, not only towards the occupied territory but also towards the people in the occupied territory. On the other hand, I had the opportunity of talking to some of the armed groups, the Palestinian armed groups [INAUDIBLE ] The question with regard to their own violation of humanitarian law. And the answer I got from them was "we have a legitimate right to resist." So I give you that example to show you that everybody has their justification when they know that they violated the law yet if you look at the law that very clearly tells them what they're supposed to do. So dont I mean, I refuse to be confused by those arguments. I'm very clear. I have looked at the law myself. I know these laws are capable of being applied to situations that we are watching now. There are some problems certainly where non state actors are involved. The question of responsibility is not moot but the question of enforceability is still an area which has to be more clearly determined. We have very imminent jurists here and I'm sure that they would agree with me that a lot of the problems that we face every day in terms of shortcomings of the law are rarely taken care of by the interpretation and proper and appropriate application of the law. I think that exercise needs to be done. It's very easy to say there is nothing there and you can't see it but you've got to look for it. As a human rights lawyer and a human rights defender I have very few tools in my hands. But I can't tell somebody who comes with a problem to me, like for instance a woman has a problem because women's human rights are generally not as much recognized in most jurisdictions as they should. I can't tell her to wait for us to be successful. I have to look at the law and find whatever I can for her benefit and apply it. And this is how we have been able to get landmark decisions from all jurisdictions around the world. MODERATOR: Thank you very much. Chief Justice McLachlin, do you agree or do the laws, themselves, sometimes fall short? THE RT. HON. BEVERLEY MCLACHLIN: I very much agree but I would be the first to say that there are some laws that are better than others. Generally, what these laws are doing, I think, are setting out norms and they do so in fairly general terms. And I would agree that I think they can be applied and it is a question of then interpreting them and so on. One of the difficulties we sometimes have on these issues is finding the right tribunal, of course, in the international forum because we have just now entered, I think, in recent decades the stage when we're trying to look to international forums. Of course, we had The International Court of Justice. Now we have the International Criminal Court and we have some ad hoc international criminal proceedings. We are at the very beginnings of this effort and many of these problems don't even come before these courts. These courts, themselves, are feeling their weight. I don't think this is to indict them or to indict the efforts or the process. I'm hopeful that we will find better ways of adjudicating these things, but I agree with my colleague that I think that the laws are there. And if in the adjudication it should be revealed that a law simply cannot provide relief then that is clearly laid out, as well, in the decision that one hopes that that will be rectified. MODERATOR: Thank you very much. Gentleman here. AUDIENCE: This is a question directed to Mr. Craig and is essentially about the responsibility to protect and specifically [INAUDIBLE ] possibly Iraq, possibly not where there are many rights identified clear again and the security counsel situation where essentially a veto prevent nations acting to protect a population subject to persecution. So I'm wondering as a New Zealander involved with the United States on these issues that where does the United States now sit in relation to the responsibility to protect in the absence of security counsel resolution? MODERATOR: Thank you very much. THE HON. GREGORY B. CRAIG: I think there is an increasing sensitivity largely because of the experience in [INAUDIBLE] and Sudan that the international community does have a legal right to assert itself to protect populations at risk. In the past this is where I think international law needs to be developed. Dealing with refugees has been the United Nations has established protocols as well as practices, conventions and understandings whereby if population crossed state lines it's very well understood what can be done, in a national community what can be done. When it comes to internally displaced people, I think there is more that has to be developed in terms of developing authorities for the international community to take action. Your comment just underscored my view that the security counsel needs restructuring. I would like to make one comment on the question that was just asked earlier. The use of the word "norms and guidance" I think is very important to understand and the notion that people engaged in military activity are ignoring or negligent or disregard humanitarian law I think is a mistake. I don't think that's right. From my own experience I found it's very anecdotal but individualized. American military officers are very sensitive to their obligations. And I'm not sure I would call them legal obligations. I would call it professional obligations or moral obligations to minimize the kind of civilian damage that can occur in this kind of warfare. It is not a new problem where combatants have hidden themselves in civilian populations. It is, I think, wrong to take the military as taking one position at the expense of the humanitarian law is not the case. MODERATOR: Thank you very much. There was a question over here. AUDIENCE: I am Boris [INAUDIBLE]. My question is about international law. One of the panelists used the term the international law is becoming stronger. My question is to distinguished panelists from the United States. According to which imperative norms of international law, the independence of [INAUDIBLE is taking place. And second question don't you think that there is a high time for United Nations to proceed with the codification of terms of humanitarian catastrophe and humanitarian assistance? MODERATOR: I think this is directed at you, Mr. Craig. THE HON. GREGORY B. CRAIG: You are testing my expertise here. I believe that international law is getting stronger because I think that there is a greater appreciation of the fact that one nation acting by itself cannot solve or deal with international threats as well as they could in the past. That is what I meant that there was a need for cooperation and collaboration so that increasingly there were going to be conventions developed that would govern the way and, in fact, it may require giving up sovereignty, to a certain extent, that would govern the way we deal with terrorism, the way we deal with climate change, the way we deal with pandemics. Now when you have specific examples of borders and dealing with those situations I'm not sure I can be very helpful on that because that is where nations start pursuing their own interests at the expense of the protocols and conventions of international law in the past. And I can't speak with authority on the examples that you MODERATOR: Thank you very much. I think we should forward this question to the state department. There was a question over here. AUDIENCE: [INAUDIBLE]Follow up very quick with [INAUDIBLE] many, many years ago there was a conflict in Panama where U.S. troops were used. Last year Russia and Georgia were involved in the military conflict and Russia was condemned. I use this example to ask a question. Do you think there are double standards in applied international law? And if yes how to avoid them? Thank you. THE HON. GREGORY B. CRAIG: Sorry about that. I think when it comes to an international court. I don't think any of those examples that you cite were tested in international courts. I'm not going to stand and defend the legality of either the [INAUDIBLE] invasion. It seems to me that we haven't figured out mechanisms by which we resolve these matters in judicial proceedings. And that may be something to work for. But I do believe that when it comes to the use of force where nations are pursuing their national objectives we fall short of having guidelines or guidance or conventions that actually deter nations from doing that. And it's the response of the international community to what happened in Georgia or what happened in Panama that is largely going to effect the future decision making of that kind. MODERATOR: Thank you very much. Power versus law. A very broad subject. It is your turn now. Your turn. AUDIENCE: Thank you. David Kramer with the German Marshall Fund. My question involves diplomatic legitimacy and legal considerations. If a leader of a country engages in unconstitutional or anti constitutional activities, he is the use of power through [INAUDIBLE] justified, does it depend on what the unconstitutional activities might be? Does it depend on whether other avenues have been pursued to deal with the problem? Honduras, of course, is the latest example where this has come to light. MODERATOR: Thank you very much. DR. HINA JILANI: Well, our courts at one point had said on exactly the kind of situation you are talking about that a successful in itself becomes legitimate because of the acceptability that comes afterwards. We have at least four decisions of our Supreme Court that has legitimized military takeovers. Finally, I think the judiciary has learned and they understand that while legitimizing something that absolutely destructs the political process it has undermined democracy in many ways or the potential for democracy in these countries. So I mean I think that this whole doctrine of necessity that was used to legitimize illegitimate power is now losing its efficacy in most parts of the world. MODERATOR: Anyone wants to add something? Thank you very much. There was you, sir. AUDIENCE: Spain Ministry of Defense. I would like to go to his issue because it is a good example of as the panelists say on how institutional law matters take an international dimension and vice versa. It is primarily an issue which if solved. We are missing the point because we have here Canada represented. They produced a wonderful document 50 years ago or so about under what conditions under which a province or a territory can proceed to secession. And I think this document is really a landmark on these discussions because it is a matter of constitutional law. If it happens then it takes an international dimension but it is basically the case in which internal politics has to take the legal form. And I would like the reactions of the panel and in particular the Chief Justice of the Supreme Court of Canada, under what conditions a territory can proceed to secession? And I am totally in favor of the document as such. THE RT. HON. BEVERLEY MCLACHLIN: Thank you. Well, as is well known we had referendums in the province of Quebec, two of them. And the last one was around 20 years ago and it was very close. And it was for sovereignty association which was taken by most people to be a form of separation. So after that the government of the day referred a question to the Supreme Court. Can a province unilaterally secede from the country of Canada? And this is an interesting question because unlike some constitutions our federation, we are a federation, our federal constitution had no provisions dealing with secession. The Italian Constitution, for example, says no state can secede so the answer would be easy. We don't have such a provision. So we heard extensive arguments. International law, can it secede under the Canadian Constitution? Can it secede under international law? And those were the two main questions. And we declined to answer, in a sense. But what we did was give the government advice. And what we said was there are certain fundamental principles that underlie Canadian democracy, federalism, the democratic principle, protection of minorities and so on. And we said that there is also a principle that we talk to each other and work these things out. So in the end we said if a part of the country decided it wanted to secede, if there were a clear question to which a clear majority answered and we didn't define what that was, we thought that is getting too far into the political, but a clear majority on a clear question wants to secede then we said the federal party would be under an obligation based on international law and our traditions to sit down and negotiate (LIVE VIDEO STREAM LOST)