Last Updated June 20, 2008

Spring 2002 Commencement

Thomas Buergenthal
International Court of Justice
Address Given to the Washington College of Law 115th Graduating Class
May 19, 2002

President Ladner, Provost Kerwin, Dean Grossman, Distinguished Alumni and Guests, Colleagues, and Fellow Graduates:

It is truly a great privilege and pleasure for me to be back at the Washington College of Law at American University. I remember my faculty colleagues here with great affection, and I don’t think there are all that many former deans who do. At least the ones that aren’t here. The same is true of the many alumni who helped me very enthusiastically during my deanship. I spent some of the most enjoyable years of my career at this law school. It is not surprising, therefore, that I look back with special warmth on the work we did together, on our lasting friendship and on the Washington College of Law; and that is why, Mr. President, Dean Grossman, this degree means so much to me.

Law schools, I believe, should be judged not only by the teaching and scholarship of their faculties, but also by their human qualities. This faculty deserves very high marks on all three counts. That is what I meant when I said many years ago when I was still dean that the Washington College of Law is a law school with a heart. From everything I hear about this school, it continues to deserve to be so known. It is a school where human values and concerns for justice are not divorced from the teaching of law and where great importance is attached to law as an instrument that serves rather than oppresses society. Where lawyers recognize their obligation to the community and particularly to its most vulnerable members. That to me is what great law schools are all about, and that is what this law school is all about.

The legal education that you who are graduating today received at this law school is second to none. There are probably only two law schools in this country—New York’s university and this law school—which have outstripped all others to their dramatic progress to the top. That is quite an achievement. Much of the credit belongs to your outstanding faculty and to Dean Claudio Grossman, a man of unequalled creative energy, enthusiasm and a commitment to academic excellence. Not to be forgotten is Dean Grossman’s immediate predecessor, Professor Elliott Milstein who guided the school with intelligence and a sense of mission during some very difficult times. In many ways, what has happened here at the Washington College of Law is an academic miracle. Credit for it belongs to Dean Grossman, the faculty, the university support under President Ladner and in no small measure, to the student body and the many alumni who recognize their indebtedness to the Washington College of Law, and I hope those of you who are graduating today will do the same.

Among the many very special achievements of this law school is its international law program. Its pioneering work, particularly in the international human rights and international criminal law areas has won widespread acclaim and admiration. AU was among the first law schools to grasp the importance of internationalizing the law school curriculum and exposing law students and faculty to other legal systems; to international law, public and private; to law as a force that can contribute to peace, prosperity and justice throughout the world. Today the American legal profession can no longer neglect the study of the world’s major legal systems, or the study of contemporary international law and legal institutions. There used to be a time when the practice of law in the United States was almost exclusively local. Those days are over. The world we live in has been transformed by the end of the Cold War, globalization, humanity’s quest of human rights and dignity, the communications and information revolution, the dramatic expansion of international non-governmental organizations that span the globe with their focus on everything from the protection of the environment, human rights, the abolition of land mines, humanitarian law, hunger, the rights of children and refugees and slave laborers in its many forms. A law school that does not expose its students to the full range of implications that these developments have for the role of law and the functions it performs is closing its eyes to what it means and will mean to be a lawyer in the 21st Century.

Many other law schools in this country are only now beginning to understand the pedagogical significance of these developments. AU is way ahead and showing the way.

And this brings me to a related topic. As you know, the seat of the International Court to which I have been elected is in the Hague, the Netherlands; which is also the seat of the international criminal tribunal for the former Yugoslavia whereas you know, Mr. Milosevic is being tried. Here, too, sits the U.S.-Iranian Claims Tribunal, which has been in business for more than 20 years adjudicating claims arising out of the Iran Hostage Crisis and paying out billions of dollars. There are other international tribunals in this town, which explains why the Hague is known as the international judicial or legal capital of the world. Very soon, the permanent International Criminal Court will also open its doors in the Hague. When one lives in the Hague, one senses the reality and relevance of international law and its growing influence, all of which, unfortunately, is lost by many here in Washington, D.C.

My wife Peggy and I have now lived in the Hague for more than two years. We were there on September 11, and like many Americans abroad felt a terrible disconnect, and an ever-greater urge to get back to America to our family, our friends, and to be in the country as it was coping with this terrible tragedy. During those early days, as we walked around the Hague, we were confronted by an outpouring of sympathy for America by the Dutch people. Almost every house on our street, a quiet residential section in the Hague, flew the Dutch flat at half mast. This act was repeated throughout the city. A few days later as I drove past the U.S. Embassy, the entire sidewalk in front of it was covered with flowers deposited by the Dutch with little notes expressing support for the people of the United States. The Queen of the Netherlands, when delivering her annual speech to Parliament, wore black in a symbolic gesture of solidarity with America, insisting also on suspending the usual festivities accompanying the opening of Parliament. And the Dutch know how to have a good time. Many of our neighbors with whom we had in the past exchanged only passing greetings, stopped us on the street or dropped in to express their condolences.

Similar scenes and spontaneous outpourings of expressions of sympathy and solidarity were repeated in many parts of the world. It was truly gratifying and heartwarming. There was continuously broad support and understanding for U.S. military action in Afghanistan. But you know all of that. I repeated only to contrast these attitudes with a great sense of disappointment that some recent U.S. diplomatic action, such as our attitude towards the International Criminal Court are engendering around the world and particularly in Europe. It is a disappointment that I share because I believe that these actions are misguided and not in the interest of the United States. They undermine what I have always believed to be our commitment to a world where the rule of law, the protection of human rights and democracy are the core building blocks of our foreign policy. They undermine the ideological and moral force of the policies of interest we seek to promote. That is why some of our actions are so difficult for our friends around the world to understand, and why they are so harmful to America’s long-term political, economic and social interests.

The most recent example as I already noted is the administration’s announcement two weeks ago withdrawing United States’ signature from the Rome Treaty establishing the permanent international criminal courts. Since we have not ratified this treaty, the withdrawal of our signature is designed to express our opposition to the court in the strongest terms, and what is more significant, to allow us to pressure other countries, particularly those who rely on U.S. aid, not to ratify or to operate with the court, which is the real and professed objective of this action. To date, more than sixty countries, including almost all of our Western European allies, including Great Britain, Germany and France, have become parties to the treaty. These ratifications reflect a belief in the need for a permanent to serve as a warning to all tyrants and war criminals that their crimes will not go unpunished. But our almost messianic and fanatical opposition to the International Criminal Court is a manifestation of a negative unilateralism on the part of the U.S. that hurts our image abroad and prevents us from playing a constructive role in the promotion of international legal norms consistent with the ideals this country stands for. What is so objectionable about this attitude is not necessarily our opposition to this or that treaty provision or collective measure—reasonable people can differ on the need or wisdom of one or the other—what is objectionable is that we are pursuing these policies without giving serious thought to their consequences in undermining the international rule of law. One has the feeling that those responsible for these policies could not care less. This is our new, in-your-face diplomacy. It is bad for the United States and bad for the world, which we are part of whether we like it or not. It is a world that we need as much as it needs us.

How ironic that our decision to withdraw from the International Criminal Court, and so shamefully to attempt to undermine support for it, comes at the same time as we threaten Serbia with the loss of economic assistance unless it cooperates with and turns over indicted war criminals to the International Criminal Tribunal for the former Yugoslavia. Enough said.

The war on terrorism cannot be won with military might alone. The strongest weapon in the arsenal of the United States has always been our historic commitment to human rights, democracy and the rule of law. It is dangerous and foolhearty to believe that we will preserve these values for ourselves without also promoting them actively and honestly abroad, complying with our treaty obligations, treat citizens of other countries in the U.S. as we would like Americans to be treated abroad, and support the establishment of international institutions capable of adjudicating and settling international disputes and punishing individuals who have committed serious crimes in violation of international law. It is not generosity that should compel us to adopt these policies, it is our own self interest.

In the past, different U.S. administrations use arguments similar to those now invoked with regard to the International Criminal Court to justify our decision not to ratify human rights treaties. It took us a long time to recognize what a mistake that was. The break came when President Reagan ratified the Genocide Convention after the Senate had refused for twenty-nine years to consent to ratification. And it took twenty years before we became parties to the International Covenant on Civil and Political Rights and to the Racial Convention. These and related agreements are all treaties we said we would never ratify, and we made it official by notifying the United Nations. And the arguments that were used against ratification were similar to those now invoked against the International Criminal Court. Eventually, of course, we did ratify this, and that is why I am convinced that sooner or later, we will join the International Criminal Court. But by the time we do, we will have lost the opportunity to influence its modus operandi and the ability to help it become a more effective institution. We paid a similar costly price because of our refusal to join human rights treaties early enough to have an impact.

Well, you might ask, why this conditional opposition to international institutions and agreements in the United States? Part of the problem, no doubt, has to do with the strains of isolationism that continue to permeate our society. This is a costly luxury for a country that is, for the time being, the only super power. As such, we have great opportunities to fashion an international society in which the values we want for our children and grandchildren can also be enjoyed by others. But if we fail to grasp this opportunity, we might over time be deprived of the enjoyment of these very values by those around the world who are denied the opportunity to enjoy them as well. The other, and in the long run, more troubling reason for U.S. opposition to international treaties and institutions has much to do with our education. Most Americans know shockingly little about the rest of the world. American lawyers, who have such a pervasive influence on American public policy and foreign relations, tend largely to be ignorant about the existence and workings of international institutions created to promote the values we treasure. Of course, it is this very ignorance about contemporary international law, international judicial institutions and the way the international legal commitments are enforced that feeds the isolationism and suspicion of all things foreign and hampers the effective participation of the United States in international lawmaking efforts. It is a vicious and a dangerous circle. There are various solutions to this problem. One of them, and a very successful one, is this law school’s effort to train lawyers who understand other legal systems, who have been exposed to contemporary international legal development, and that are properly prepared to practice law in the 21st Century. Lawyers who know that there is much America can teach the world, and much that the world can teach America.

Superpower or no superpower, it is never a one-way street. That is why I am so proud and so grateful to have been affiliated with this law school and to continue my affiliation with it through the honorary degree that you have conferred upon me. Let me, therefore, express my admiration to Dean Grossman and to the faculty for the great job they are doing, and let me congratulate the parents, spouses, next of kin of today’s graduates on their achievement. I salute you fellow graduates…applause…You want me to be finished. I’m almost done. All I wanted to say is AU has given you what it takes to be the type of lawyers the world needs; the type of lawyers we’re all proud of. The rest is up to you. Thank you and congratulations.