New York, NY, April 11, 2019 — Thank you for inviting me to speak tonight and for honouring me with the Wolfgang Friedmann Memorial Award. I have no claim to the legal brilliance of some of your past awardees, but there is profound shared inspiration from, on the one hand, the life of Professor Friedmann and the principles he fought for his entire life, and on the other hand the story of the International Rescue Committee, which I have the privilege to lead, and in whose name I am proud to accept this award.
Professor Friedmann was a Jewish lawyer and judge working in Germany when the Nazis came to power in the 1930s. There was, increasingly, only one option: to try to leave, which he did as a refugee. In the process, and in his career in the US, he proved that when a country does the right thing it can also do a smart thing. His contribution to America was signal. As you know, tragically too few of his fellow countrymen and women were offered escape from Germany and what became occupied Europe, but like many who did, Professor Friedmann more than repaid his debt to his new home.
At the same time, another refugee in America, Albert Einstein, was beseeching the American government to help those facing persecution by the Nazis. He met stiff resistance. And so he found some solace in helping found the International Rescue Committee, set up to rescue those suffering persecution in Europe. Many of the people the IRC first helped escape from Germany were persecuted not just for their religious identity, but also because as scholars and defenders of the rule of law, they were the last line of defence against Hitler’s attempts to remove every last barrier to his control over German society.
It’s been a long time, and is a long way, from the world of Professor Friedmann in 1930s Germany to the exodus of Syrians today from their home country, or Rohingya from Myanmar. But my argument tonight is that there is more in common between those stories than that which sets them apart; that we need to honour the legacy of people like Professor Friedmann by defending our world against those who would allow an age of impunity, disregarding the norms and rules of international humanitarian law so assiduously built up to learn the lessons of the first half of the 20th century; and that the legal community in the US has a distinctive and important role to play in helping to push back against the retreat from those norms and laws. I hope you will all pick up Professor Friedmann’s baton.
For context, the IRC operates in more than 30 countries across 190 field sites, with more than 13,000 staff and 15,000 volunteers providing lifesaving and lifechanging aid to people whose lives have been shattered by conflict or disaster. From Somalia, where I visited last fall, to El Salvador, where I visited last month, the rule of law is a distant dream. For reasons of war or persecution, the rule of law has been replaced by the rule of the iron fist, leaving the most vulnerable communities – political dissidents, innocent civilians, ethnic minorities, women, children, the LGBTQ community – with few protections against the whims of the most powerful.
The figures are striking. 68 million people displaced by conflict, persecution, or disaster. 28 million of them are refugees or asylum seekers, crossing from their own country to another state. Nearly 90 per cent of those people are now in poor or lower middle-income countries like Jordan, Bangladesh, Kenya or Pakistan. 60 per cent live in urban areas. The average length of displacement is at least 17 years.
The great ambition of the post-World War II pioneers was to use international law as a lever to improve the lives of the most vulnerable – and who could be more vulnerable than civilians facing the might of the state or refugees without a state of their own at all. They believed international law could serve as a check on the abuse of power and help build an international system that had progressively greater restraints on such abuses. The great leaders of the post-war era like Eleanor Roosevelt understood that power corrupts, and they were determined to ensure that absolute power could not corrupt absolutely.
This legal regime – international humanitarian law, the international conventions on human rights and on refugees, the conventions on the rights of the child – is, however, in retreat in the places where we work. Every day, our aid workers face the risk of assault and intimidation, the risk that our facilities will be bombed, that our right to deliver humanitarian aid will face interference.
139 aid workers were killed in 2017, the second-highest death toll ever recorded.[1] There were over 700 attacks on health facilities in 2017, and tragically several IRC facilities were among those targeted in places like Syria, Yemen, or the Democratic Republic of Congo, where our staff are attempting to control the second-largest Ebola outbreak in history.[2] Parties to war don’t just flout international humanitarian law by directly attacking aid workers. They also do it by hindering civilian access to aid. In Yemen, where more than a third of the population remains just a step away from famine, there are 51,000 tonnes of wheat – enough to feed 3.7 million people for a month – stuck in a UN grain silo they cannot access because of the number of mines laid around the facility.[3]
Most concerning, the retreat from international law is no longer confined to failed states. As Larry Diamond, author of Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition and American Complacency has written: “[E]very type of regime is getting worse. Liberal democracies are becoming more intolerant. Illiberal democracies are electing authoritarian personalities. Authoritarian regimes that once coexisted with pockets of opposition no longer see the need to bother.”[4]
In other words, the retreat is at home as well as abroad. It is creeping into our own societies, into long-standing democracies built in theory around a respect for the rule of law. Nowhere is this more evident than in the abrogation of the rights of refugees and asylum-seekers. The increasingly illiberal Hungary has deployed several new laws that violate the rights of asylum-seekers in an effort to keep them out, including imprisoning asylum seekers in shipping containers for months and criminalising humanitarian and legal assistance to refugees. Last fall the UN called an Australian policy of arbitrarily detaining and separating refugee families a breach of multiple articles of the universal declaration of human rights and the international covenant on civil and political rights.[5]
Similarly, what is happening today on the US southern border can only be described as not just a flouting of our moral obligations to people fleeing violence and persecution, but a direct violation of both domestic and international law on the rights of asylum.
Last month when I visited the IRC’s San Diego office, where we are supporting asylum-seekers fleeing violence in Central America, I heard stories of pregnant mothers and new-born children treated like criminals by US border patrol. IRC staff in San Diego say that many of the children who arrive at the asylum shelter we operate with the ACLU and Jewish Family Services are often malnourished, have physical ailments, or mental trauma because of the appalling conditions in the detention centres run by US Immigration and Customs Enforcement. The US government’s so-called “Remain in Mexico” policy simply robs asylum seekers of their due process rights and forces asylum seekers to wait indefinitely in Tijuana, where they face physical violence, sexual violence, and kidnappings on a regular basis. Furthermore, it limits the access of asylum seekers to legal counsel, which is critical because asylum seekers with legal representation are five times more likely to be granted asylum than those who lack it.
The retreat from international law by its historic architects risks invalidating the very purpose of the entire post-war order. Richard Haas once noted that by the end of the Holy Roman Empire, it was neither holy not Roman nor an empire. The danger now is that the Liberal International Order – ‘liberal’ because it privileged individual rights alongside the sovereignty of states, ‘international’ because it covered every country in the world through their signature of the UN Charter, and ‘order’ because it created institutions to promote compromise and manage trade-offs – becomes decreasingly liberal, decreasingly international, and decreasingly an order.
Humanitarian groups like ours can treat the symptoms of an unravelling international order. My message, or plea, tonight is that we need your help to defend and restore the regime of human rights that was so important to the unprecedented period of peace and prosperity that defined the second half of the 20th century. Though we should not put all our hopes in the hands of the law, the law should be a critical partner for social change.
The safety and security of my staff and the people we serve does not depend on their armoury. They are unarmed. Their security depends on how together we establish and defend the norms and laws by which the powerful are forced to live. To that need, four things come to mind.
First, we need you and others like you in the liberal democratic world to fight to uphold the principles of your own constitutions. This is not separate from international policy. It is core to it, not least because every would-be abrogator of international law will point to the US for precedent if they can. When we set a good example, it tilts the playing field in one direction. The opposite is true today when autocrats and bad actors demean judges as “enemies of the people” or claim inarguable facts as “fake news.”
Second, push your countries to uphold the international commitments they’ve made by calling out transgressions when the arise and by ensuring domestic laws are grounded in international law concepts and obligations. This battle cannot just be won in the courtroom. It must also be won in the court of public opinion. The case for the liberal international order needs to be remade both to the public at large and specifically to students of the law. The liberal international order was not liberal in the sense of being left wing. It was liberal because it honoured the most basic rights of the individual for the first time in the international realm.
We face today an attempt to reassert the sovereignty of states as the sole determinant of the legality of actions within a nation-state. But that is the route to the law of the jungle. Help us show why international law is not a straight-jacket for national sovereignty but instead the scaffolding upon which nations can build a more stable, more just, and more prosperous future.
Third, help strengthen the efforts of organisations like the International Rescue Committee to promote the legal rights of the people we help. For instance, in Iraq we have a team of lawyers who are working around the clock to get citizenship papers for families who were living under ISIS rule, and now face the prospect of proving that they are not ISIS sympathizers. By getting these Iraqi families legal documentation, IRC lawyers allow them to receive financial aid from the government, prove their ownership over property lost to ISIS, and ensure their children can enrol in school.
The legal aspects of our work around the world are the hardest to fund, but can have great impact on life chances. Lawyers in industrialised democracies like the US and the UK can provide technical and training support to human rights defenders around the world, such as the Iraqi lawyers we work with. We are always looking to partner with you, and of course, we are not ashamed to ask you to support financially our legal work around the world.
Fourth and finally, I ask you to support refugees and asylum seekers arriving in this country by backing litigation to protect their legal rights – as the ACLU and IRAP have done over the past two years, by donating to resettlement organisations like the International Rescue Committee, and by providing pro bono support for refugees and asylum seekers navigating the daunting bureaucracy required to grant them legal status. The global community of lawyers is a substantial one that has the immense potential to drive change in America and around the world if it is rallied in the name of accountability and justice. When this administration announced the Muslim travel ban, the most powerful image was that of young lawyers like yourselves showing up at airports across the country to fight for legal rights of refugees. That did not just defend a principle. It sent a message, far and wide.
In every country we work in, there are lawyers who believe in the essential transformative power of the rule of law. The lawyers working for us in Iraq don’t just believe in the theory of the rule of law. They put their own lives at risk to stand up for this principle. They are not political in the sense of taking partisan sides, but they are proud to stand for the principles and practices that check the power of the powerful. That’s the essence of an Enlightenment project that is core to the founding of this country and has served as a light for the world.
By entering this field of study, by entering this profession, you arm yourself with a powerful weapon – if you choose to use it. Professor Friedmann, under threat of imprisonment and death, chose to use the law to fight for accountability and the legal rights of German citizens targeted by the Nazi government. He stood up for the rule of law in an age of impunity. As we face the danger of a new age of impunity, I ask you to honour Professor Friedmann’s legacy by standing up for the rule of law today, nationally and internationally, in your own work and in ours.
[1] “Aid Worker Security Report 2018,” Aid Worker Security Database, 2018
[2] Rachel Thompson and Mukesh Kapila, “Healthcare in Conflict Settings: Leaving No One Behind,” World Innovation Summit for Health, 2018
[3] Margaret Besheer, “UN: Yemen's Houthi Rebels Must Allow Access to Grain Silos,”Voice of America, 7 February 2019
[4] Larry Diamond, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency, Penguin Press, 2019.
[5] Helen Davidson, “UN body says Australia breached human rights laws and needs to review Migration Act,”The Guardian, 15 October 2018.