Justice Kennedy Speaks out on Darfur in ASIL Keynote

In his keynote address to the ASIL Annual Meeting today, Justice Kennedy focused on the international crime of genocide, all but calling on the world community to do something to stop the ongoing atrocities in Darfur. It was a stunning — and I thought compelling — speech for a sitting justice.

As reported by the AP, Kennedy stated:

“It is the duty of the world to do more than watch,” he said.

Kennedy said that after the genocide in Rwanda “the world wept but little, and then went on its way.”

Interestingly, Kennedy did not, as is custom with the Justices on questions relating to matters before the Court, completely shut down a question about Guantanamo:

Kennedy was asked separately by an audience member about the U.S. military prison at Guantanamo Bay, Cuba, which has sparked international criticism of the Bush administration [Note: The audience member referred to Guantanamo as “America’s gulag”].

“The lessons of history, the lessons of literature must teach us that it is all too easy to fall into the mistakes of the past,” Kennedy responded. “We must be diligent as we meet threats that we had never contemplated five years ago.”

I was struck by the tone of Kennedy’s remarks, which he delivered soberly and without reference to notes. They appeared to be from the heart — the thoughts of a man genuinely troubled by the incivility of discourse in the world, with the persistence of extreme poverty, and with erosion in the rule of law. Kennedy demonstrated that he has been deeply affected by his experiences with judicial exchanges in Europe and in his more recent role on the UN special panel promoting access to justice for the poor. (For those who missed Jeffrey Toobin’s excellent profile of Justice Kennedy the internationalist in the New Yorker last fall, here is the link.)

So why Darfur? Kennedy was careful not to make explicit criticisms of the US government’s policies toward Darfur. And when an audience member asked whether the use of military force under the rubric of humanitarian intervention would be a lawful in response to genocide, he replied simply that he would need to think about it. But by raising Darfur, Kennedy was implicitly criticizing the acts of omission that have led us to the current devastating state of events.

My own theory is that Kennedy spoke about Darfur because he could not talk about Iraq or Guantanamo. He did let on at one point in the Q & A that he had “a lot on his mind” these past few weeks. Indeed.