"China and International Justice," Remarks by Jonathan Fanton, Chinese University of Politics and Law

I am very pleased to be in China and to visit with you today. Your warm welcome and hospitality are deeply appreciated.

I am joined by the Chair of MacArthur's Board of Trustees, Sara Lawrence Lightfoot, Professor of Education at Harvard University.

We are in China to visit with organizations the MacArthur Foundation has been supporting here in international relations, the environment, the rule of law, and energy conservation. From Beijing, we travel to Shanghai, and then to Kunming, where we will visit the Gaoligongshan National Nature Reserve.

I have had a good conversation today with President Xu, where we talked about the important work under way here on the rule of law and human rights. Among the most important are of course the contributions of President Xu to China’s new constitution, specifically provisions requiring the government to respect human rights. Such a provision furthers the rule of law by setting down a principal for the judicial system to act in favor of human rights in cases where laws are not clearly defined. President Xu has also been a leader in the work on the institutional development of a human rights protection system in China.

I want to talk with you this afternoon about MacArthur's work around the world and the growth of our grantmaking in China. Then I will describe MacArthur's longstanding interest in the rule of law and China's potential role in an emerging system of international justice.

Let me start with the MacArthur Foundation and its work.

We are one of the ten largest private foundations in the United States, governed by an independent Board of Trustees. MacArthur is completely private, has no government affiliation, is not involved in politics, and does not embrace any ideology other than a commitment to free expression and reasoned discourse. The funds come from the estate of John D. MacArthur, who died in 1978. He made his money in the insurance business.

There is a tradition of philanthropy in the United States -- over $250 billion is given to charitable purpose every year, by corporations, individuals, and foundations. There are now 65,000 private foundations in the United States. Some are small family foundations, while others, like MacArthur, are large multipurpose foundations governed by a Board with no connection to the original donor.

Despite their differences, all foundations have the common goal of serving the public good. And while they are private, they owe their existence to U.S. law which encourages people to set up foundations by giving tax exemptions to those who do.

Foundations support schools, hospitals, social welfare organizations, museums, art galleries. Foundations fund scientific research or inquiries into social problems. Providing solid objective evidence upon which to base public policy is a central goal. Foundations also encourage vigorous debate of public issues, making sure that a diversity of views and voices are heard. Foundations often support non-governmental organizations to design demonstration projects exploring new ways of delivering services or solving social problems. And sometimes foundations work in partnership with government and multi-national agencies like the UN.

Foundations rarely deliver services or solve problems directly. They rely on smart and dedicated people and creative and effective institutions as their partners on the front line. MacArthur is no exception.

The MacArthur Foundation’s sole purpose is to improve the human condition. Each year, we make over $200 million in grants in the United States and in 65 countries across the world. We maintain offices in Russia, Nigeria, India, and Mexico – and we hope soon in China.

Our international program accounts for about forty percent of our annual grants. It focuses on four areas: biodiversity conservation and sustainable development; international peace and security - principally, on reducing threats from weapons of mass destruction; population and reproductive health; human rights and the creation of an international system of justice. This year, we have also begun a program on migration and the mobility of people.

Our work in the United States addresses four issues: (1) the growth and development of cities; (2) affordable rental housing; (3) juvenile justice reform; and (4) public education, with a new focus on the effect of digital media on how children learn -- in and outside of school.

The MacArthur Foundation does not have a special program in China, but we do give away about $1.5 million a year here. Our first grant was to the China Leprosy Foundation in 1985. Since then, we have given over $10 million to 33 groups doing work in China.

For example, our support for conservation in the Eastern Himalaya region extends into the western region of Yunnan Province. We support conservation training and planning at the Kunming Institute of Botany, the Southwest Forestry University, and the Management Board of the Gaoligongshan National Nature Reserve.

Preservation of China's environment requires more than preserving beautiful places like Gaoligongshan. It also requires energy conservation and developing cleaner sources of energy. That is why MacArthur, along with the Packard and Hewlett Foundations, supports the Energy Foundation, which has a special project in China. Its China Sustainable Energy Program encourages China's efforts to increase energy efficiency and renewable energy.

For instance, the Energy Foundation has worked with the Beijing Energy Efficiency Center, the Chinese Research Academy of Environmental Sciences, and the Development Research Center of the State Council to develop policies reducing China's carbon emissions. It has worked with the Beijing Electrical Engineering Society to improve the management of electric utilities. And it has supported the China National Institute of Standardization to improve the energy efficiency of appliances sold in China.

The largest amount of MacArthur’s grantmaking in China is done through our Peace and Security program, which seeks to reduce the dangers of weapons of mass destruction worldwide. We fund programs at four of China's top universities: Tsinghua, Fudan University, Peking University, and the Institute for Applied Physics and Computational Mathematics. By 2010, these programs will have provided training and research opportunities for 100 new security specialists in China, working on topics like nuclear arms control, missile defense, space weapons, and biosecurity.

Our third area of grantmaking, the rule of law, was stimulated by a conversation I had two years ago with Dean Wang of Tsinghua Law School. We discussed opportunities for MacArthur to help strengthen the rule of law in China. I listened carefully, because MacArthur works worldwide in human rights and the rule of law.

I was impressed with the commitment of Tsinghua Law School to strengthening China's legal system, especially for ordinary people in the countryside. Dean Wang asked for our help in developing a program to train a cadre of lawyers who, in turn, would train "barefoot lawyers," paralegals who live in the countryside. The program had three training sessions over the summer in Hebei Province and in Gansu Province for a total of 140 trainees. Conferences this on rural legal services have also been held and that there are plans to publish training materials for villagers.

I am pleased that MacArthur could help the project at Tsinghua with an initial grant, and we will do more. But we also want to work with other groups in China doing vital work to strengthen the rule of law, and so I am especially pleased to be speaking with President Xu, the faculty, and the students at CUPL today.

Our grants on rule of law issues in China reflect MacArthur’s long-standing commitment to human rights, the rule of law, and developing a system of international justice. Over the years, our Foundation has supported

more than 400 organizations with almost $150 million.

Our program has three dimensions.

• First, we support organizations like Human Rights Watch, Physicians for Human Rights, and the International Crisis Group that provide the infrastructure for the human rights field worldwide. In Africa, we assist the Institute for Human Rights and Development in Africa, and in this region, we support the Asia Pacific Forum of National Human Rights Institutions.
• Second, we focus on three countries in transition: Russia, Nigeria and Mexico, with attention to police reform, strengthening civil society organizations, and improving the legal architecture for the rule of law.
• Third, we are helping build an international system of justice, including regional human rights courts and the International Criminal Court. We supported the coalition of 2000 NGOs that helped speed ratification of the Rome Treaty that created the Court, and we are assisting NGOs documenting the abuses that are central to the first three cases in Uganda, Congo and Sudan.

We also care about framing international norms.

In 2000, responding to the leadership of the Government of Canada, MacArthur provided funds to the International Commission on Intervention and State Sovereignty. The Commission’s report, The Responsibility to Protect, articulated the standards and the means for the international community to prevent conflict, to protect civilians when facing massive human rights abuses or genocide, and to help rebuild societies in the aftermath of devastating conflict. The language of the Report was endorsed in U.N. Security Council Resolution 1674 in April and is being put to the test in Darfur.

A new norm, the responsibility to protect, and a new International Criminal Court are leading the emergence of an integrated international system of justice. Let me delve more deeply into that topic, and then close with a reflection or two about China’s role.

Over the last fifty years, the world has made tremendous progress in building the architecture of treaties and covenants that, taken together, establish international norms. I think of the International Covenant on Economic, Social and Cultural Rights, the Genocide Convention, the Convention Against Torture, and, of course, the Geneva Conventions. All of them have been signed and ratified by China.

Now the world's challenge is to live up to the promise of security and justice established in those charter documents.

The centerpiece of this emerging system of justice is the International Criminal Court, established by the Treaty of Rome, and ratified by 102 countries. I hope our two countries will join in the future.

The ICC replaces the ad hoc tribunals established by the Security Council specifically for the situations in the Former Yugoslavia and Rwanda. The ICC has jurisdiction over the worst human rights abuses committed after July 1, 2002 – genocide, war crimes, and crimes against humanity – if national justice systems fail to act.

The ICC is preparing cases in Uganda and Congo, and has an investigation under way in Sudan. So far, it has chosen to focus only on the top perpetrators of gross human rights abuses. But, of course, more than the top few are guilty of terrible crimes. National courts and traditional justice and reconciliation mechanisms like the Mato Oput or "the bending of the spears" ceremonies in Uganda complement the Court.

When we speak of an integrated system of international justice, we are talking about more than international tribunals. There are regional human rights courts and commissions for Europe, Latin America, and now developing in Africa. We hope for a similar body in Asia one day. Although these are not criminal courts per se, by enabling individuals to hold governments accountable for violations of human rights they complement the ICC in creating an international justice system.

Respect for norms, laws, and rules is an indivisible concept – respect begets respect. The reverse is also true: relatively minor violations of human rights are the building blocks for gross abuses later on.

The existence of international and regional courts is actually energizing national courts to do their jobs better. For example, Pinochet is now being tried in Chile for crimes under his rule; and Alberto Fujimori has been indicted in a Peruvian court.

The cumulative result is a clear pattern: those who perpetrate genocide and crimes against humanity will face justice. Increasingly, there is nowhere left to hide: Slobodan Milosevic, Saddam Hussein, Charles Taylor, Ta Mok, and perhaps Hissene Habre in the near future.

We are at a turning point in history, when the high principles of international charters are beginning to be implemented by the international community. Will we see a day when those who consider acts of genocide think twice because they know they will face almost certain punishment? I hope so.

China has an historic opportunity to accelerate the system of international justice, and, in my view, a responsibility to do so. As Wang Guangya, China’s Ambassador and Permanent Representative to the United Nations, said at the conclusion of the ICC Treaty Conference:

China is a major power in international affairs. Like other major powers, it has a responsibility to work towards international peace and security, to try to prevent conflicts, to protect civilians when facing massive human rights abuses or genocide, and to help rebuild societies in the aftermath of devastating conflicts.

China has recognized some of its new responsibilities by increasing its participation in U.N. peacekeeping operations. Since 1990, China has participated in 15 UN missions involving 6000 Chinese peacekeepers. The latest commitment sent 1,000 troops to Lebanon.

Unfortunately, China has not been supportive of a U.N. peacekeeping operation in Darfur to stop the genocide that is underway. But it has contributed 450 peacekeepers to the U.N. mission in Southern Sudan, supporting the peace process there. And, like the United States, China did not object when the Security Council referred Darfur to the ICC.

China could take a more supportive role in the work of the International Criminal Court by ratifying the Rome Statute and by including the treaty crimes of genocide, crimes against humanity and war crimes into its domestic law. Empowering Chinese courts to consider these crimes would set an example for other states that have not yet ratified the Statute.

Even if China does not ratify the Statute in the near future, including genocide, crimes against humanity and war crimes into its domestic criminal law – and being willing to prosecute perpetrators -- would be worthwhile for the Chinese government to consider in its own self-interest. Doing so will protect Chinese nationals under the Rome Statute’s complementarity provisions. Under complementarity, the ICC can only proceed with a case if a state is unable or unwilling to investigate and/or prosecute. As China's Ambassador to the Netherlands has argued:

By aligning China’s domestic criminal code with the Rome Statute, China will be in a position to prosecute terrible crimes of abuse under its own legal system while still furthering the purposes of the Court – and sending a strong message that the ICC is not only a western institution.

I want to end by saying again how pleased I am to be here and how much I have been looking forward to this conversation. The MacArthur Foundation is interested in exploring more ways we can work with organizations like the Chinese University of Politics and Law to strengthen the rule of law in China and Chinese participation in the international justice system. I look forward to hearing your thoughts on these and other issues. Feel free to ask me about any aspect of MacArthur's work or our interest in international justice.