“The MacArthur Foundation and International Justice,” Remarks by Jonathan Fanton at the Forum Club of the Palm Beaches
March 7, 2008 | Speech | Human Rights

While I never met John D. MacArthur, I feel his spirit here in Palm Beach, the place where he felt most at home. Through the caring eyes of Don Warren, Phil Lewis, and Alex Dreyfoos, I have come to appreciate characteristics in John MacArthur which animate the work of his foundation thirty years after his death: his instinct for talent, his creativity, his ability to take the long view, his commitment to place, his innate sense of fairness and justice. And the loyalty he gave and evoked.

That loyalty was palpable last night as his close friends gathered on his 111th birthday to celebrate his life and how much he meant to them. Few of us can hope for that kind of loving devotion thirty years after our death.

I am an historian by training so I am drawn to South Florida and Mr. MacArthur’s friends to get a feeling about what he and Catherine cared about. When setting up the Foundation he gave little guidance. John told Bill Kirby, his lawyer and one of the original trustees, “I figured out how to make the money. You fellows will have to figure out how to spend it.”

So the trustees have been pretty much on their own in shaping the MacArthur Foundation whose assets have grown to $6-1/2 billion. We will make grants of $260 million this year.

The trustees have given special attention to Chicago and South Florida. Chicago was the home base of MacArthur’s insurance business – Bankers Life and Casualty Company. And, at one point, he owned more than 100,000 acres of undeveloped land in Florida, much of which he left to the Foundation. Our Board worked hard to dispose of Mr. MacArthur’s vast holdings in a way that balanced fiduciary responsibility with the Foundation’s concerns for the environment. Indeed about one-third of the land we originally owned is now in long-term conservation.

Our grantmaking here began in 1980 and since then we have made donations of nearly $200 million in Florida, primarily in Palm Beach and Martin counties. Some examples include the MacArthur Beach State Park, a donation of the land on which Florida Atlantic University’s Abacoa campus is built and support for cultural organizations and community development activities such as the Local Initiative Support Corporation of Palm Beach County and the Glades Community Development Corporation. We are also pleased with our work with the Conservation Fund and the Collins Center on Regional Planning. And we are proud to have supported Alex Dreyfoos’s vision of a world-class performing arts facility in Palm Beach, which led to the construction of this beautiful facility.

A lot of attention is focused on John, but we should not overlook Catherine, a woman ahead of her time and a full partner in his work. As John told Bill Kirby, “Change the name to include Catherine; she helped make it too.” During her lifetime she had a deep interest in Palm Beach Atlantic University. The University’s school of continuing education bears her name, and we were pleased to establish the MacArthur Café in the library named after Don Warren. The café evokes Mr. MacArthur’s primary place for conducting business: the coffee shop at his Colonnades Hotel on Singer Island. We thought the coffee shop was an appropriate symbol of his style – direct and accessible.

In the thirty years the Foundation has been active in Florida, the local philanthropic community has grown and matured. In 2004, we decided our Florida grantmaking should be managed here, by the people who know best where the needs are. So we created a $20 million endowment, the John D. and Catherine T. MacArthur Fund, at the Community Foundation for Palm Beach and Martin Counties.

Last year, the MacArthur Fund supported nearly 20 organizations in the two counties. Some examples of recent grants include one to Big Brothers/Big Sisters of Martin Country to expand its careers skills mentoring program, one to Ballet Florida Academy to bring dance instruction to disadvantaged children, and one to Florida International University to conduct a study of rental housing in the area. These grants advance work in areas of special interest to the MacArthurs during their lives – the arts, the environment, education, and the strength and vitality of local communities.

As part of our continuing commitment to South Florida, I am pleased to announce that the MacArthur trustees will add $5 million to the MacArthur Fund at the Community Foundation on the occasion of the Foundation’s 30th Anniversary. These funds will provide seed capital for the Community Foundation’s new affordable housing initiative, addressing one of the critical issues for the Palm Beach area. With a decline in the number of rental units, the rising cost of housing, and growing affordability gaps, the Community Foundation is rightly taking action to ensure that the area’s teachers, policemen, firemen, and other essential workers have the opportunity to live in decent, affordable, nearby housing.

While we maintain our commitment to South Florida and Chicago, the Foundation now works in virtually every state and in sixty countries around the world. The trustees have recently refreshed the Foundation’s mission statement to capture its world-wide reach, complexity and values. Here it is: The MacArthur Foundation supports creative people and effective institutions committed to building a more just, verdant, and peaceful world. In addition to the MacArthur Fellows, we work to defend human rights, advance global conservation and security, make cities better places, and understand how technology is changing children and society.

Of course, one paragraph cannot capture everything. Our work in the U.S. also includes preserving affordable rental housing, reforming the juvenile justice system and improving education. In addition to conservation and human rights, our international work focuses on: population, migration and reducing the dangers from weapons of mass destruction.

MacArthur and International Justice
Rather than give you a taste of each of these fields, I want to talk with you in depth about one of the MacArthur Foundation’s core programs: support for the emerging system of international justice. The protection of human rights has been an interest of the Foundation since the beginning. Our very first grant in 1978 went to Amnesty International and support for nearly 600 other human rights organizations has followed.

The modern human rights movement is guided by the Universal Declaration of Human Rights adopted by the U.N. sixty years ago. It declared that “recognition of the inherent dignity and … inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” In the intervening years we have seen the creation of non-governmental organizations like Human Rights Watch and Physicians for Human Rights that hold governments accountable to the U.N. Declaration, the Geneva conventions and other treaties that have followed. MacArthur supports these groups and more, working in hotspots around the globe – documenting war crimes in Uganda, exposing abuses in Burma and standing for the rule of law in Pakistan.

But despite the best efforts of governments and civil society to expose mass human rights abuses, they still happen: the killing fields of Cambodia and mass disappearances in Chile during the 1970s; 5 million killed in civil war in the Congo since 1998; genocide in Darfur as we speak.

Most of us believe that justice is best advanced when crimes are prosecuted where they are committed. But history is replete with examples of countries unable or unwilling to prosecute human rights abuses. In these instances, justice must come from beyond national borders. And let me be clear: international justice is not only about preventing genocide but also about protecting ordinary citizens against police abuse and discrimination, and encouraging free speech and assembly.

There is hope for a better future. A system of international justice is emerging and growing stronger with each new case tried in a regional human rights court and each investigation opened by the new International Criminal Court, the ICC. I want to give you a brief history of the evolution of that system of international justice and the modest role MacArthur has been privileged to play. It is our hope to build a system strong enough to bring evil doers to account and deter future atrocities.

History of International Criminal Justice
The notion of a system of international justice is not new. The modern movement has its roots in the first Geneva Convention of 1864, which dealt with the treatment of wounded combatants. There were furtive attempts to punish the war crimes committed during World War I.
After the Second World War the allies established the tribunals in Nuremberg and Tokyo to set a new standard: individuals in positions of responsibility were held accountable for their criminal behavior. Still no permanent, international criminal court was established. The UN made a series of attempts to create a permanent court but each foundered on the shoals of Cold War disputes.

In the early 1990s, there was renewed interest in international criminal jurisprudence. Events in the former Yugoslavia and Rwanda gave new urgency to the process. The Security Council established ad hoc Criminal Tribunals in 1993 and 1994 to try the government officials behind those atrocities. Slobodan Milosovic of Serbia was the first sitting head of state ever indicted, and Jean Kambanda, former prime minister of Rwanda, faced charges of genocide and pled guilty. With trials and appeals continuing, 239 people have been indicted and 78 convicted so far.

Other national leaders – including Augusto Pinochet of Chile, Charles Taylor of Liberia, and Alberto Fujimori of Peru – have also discovered that their status no longer confers immunity from prosecution.

International Criminal Court
As cases mount, the world moves closer to ensuring accountability for gross human rights abusers. The next step is to make the International Criminal Court a success, so that, as a permanent institution, it will become a credible deterrent to those who might consider crimes against humanity in the future.

The Court was established by the Treaty of Rome in 1998. Its jurisdiction began in 2002, with ratification by the requisite 60 countries. To date, 105 states have ratified, but alas not the United States.

The Court’s chief purpose is to be a permanent and independent court to prosecute the most serious crimes against humanity. Based in The Hague, the ICC has jurisdiction over acts committed on the territory of a state party to the Statute, and acts committed by the nationals of a state party. Also, the UN Security Council may refer a situation to the Court, regardless of the nationality of the accused or the location of their crimes.

The ICC is a court of last resort. It operates under the principle of complementarity, which the United States helped embed in the Court’s charter document. The Court only has jurisdiction when national courts are unable or unwilling to act. All member nations retain the primary right and responsibility to investigate their own citizens.

The Court issued its first warrants in 2005 against Joseph Kony, leader of the Lord’s Resistance Army in Uganda, and four of his subordinates. They are implicated in the murder and torture of civilians. Later it issued a warrant against Thomas Lubanga, leader of the UPF militia in the Democratic Republic of the Congo, who is accused of kidnapping children for use as soldiers.
Lubanga was brought into custody late last year, and is awaiting the start of his trial this month, which will be the first in the Court’s history. Two other militia leaders from the Congo are now in The Hague awaiting trial: Germain Katanga and Mathieu Ngudjolo Chui.

In April of last year, the Court issued arrest warrants for Ahmad Mohammad Harun, formerly Sudan’s Minister of State for the Interior, and for Ali Kushyab, leader of the Janjaweed militia. They are accused of 51 counts of crimes against humanity and war crimes, including collaborating in the forced displacement of ethnically African people in Darfur, and of a mass campaign of terror that included aerial bombing, abduction, rape, and murder.

However, their warrants remain unfilled as the Sudanese government has no incentive to turn them over. Indeed, Harun now serves as Minister of Humanitarian Affairs with responsibility for hearing complaints from victims of human rights abuses in Darfur.

These cases – and that of Joseph Kony, who also remains at large – raise an important question: Who is responsible for enforcing the ICC's arrest warrants? To fulfill the Court’s promise as a permanent venue to try crimes against humanity and a strong deterrent of future evildoers, the international community must enforce the Court’s warrants.

With that said we are beginning to see examples of the Court’s deterrent power, even before the first trials are underway.

In late 2004, tensions flared in Cote d'Ivoire, fueled by radio broadcasts of hate speech and violent groups in the streets, reminiscent of the hate speech that preceded the Rwanda genocide. In response, Juan Mendez, the UN’s Special Adviser on the Prevention of Genocide, wrote the Security Council a widely-publicized note that reminded the Council that the ICC has jurisdiction over such acts, hate speech, that lead to crimes against humanity. The message was heard in Cote d'Ivoire: The hate speech and the immediate threat of violence subsided.

Another example comes from Uganda where the recent peace accord between the Lord’s Resistance Army and the government rejects the LRA’s demand for amnesty. The accord provides for a special division of Uganda's High Court to prosecute those who planned or carried out war crimes and other widespread attacks on civilians. There are also provisions for a truth commission, reparations to victims, and traditional justice practices.

I am told the acceptance of a serious accountability process in Uganda was motivated by a desire to avoid trials by the ICC in The Hague.

Despite these encouraging signs, there is more to do to get the Court off to an effective start.

The Court needs help gathering evidence, explaining its work in situation countries, training staff and much more. So far, MacArthur has supported the Court directly in these efforts and 29 NGOs helping the Court.

For example, Global Rights, Human Rights Watch, and the International Federation for Human Rights gathered essential evidence from the DRC, Uganda, and Sudan for the first cases. The Ugandan Coalition for the ICC is educating the public about the Court. Redress and the Women’s Initiative for Gender Justice are working with victims and witnesses. The International Bar Association is monitoring the Court’s proceedings. And Alliances for Africa is helping signatory states bring their laws up to international standards. So far, Mali, South Africa and some 40 countries around the world have changed their own laws in response to the existence of the Court.

The U.S. and International Justice
The absence of the United States from the ICC’s membership rolls is a low mark in an otherwise noble history of leadership in international justice. The U.S. was one of the architects of the Nuremberg and Tokyo tribunals. It has been an active supporter of the tribunals for the former Yugoslavia, Rwanda, and Sierra Leone. Still, the U.S. has balked at joining the ICC – despite surveys that show most Americans favor participation in the Court, some 71 percent according to a survey conducted by the Chicago Council on Global Affairs.

The Court’s opponents in the U.S. fear that membership in the ICC would expose Americans to politically-motivated cases and some say that the ICC falls short on due-process protections. But these fears have not materialized and are not likely to. The Court procedures have all the same due-process protections as U.S. courts, except trial by jury. And all charges involving Americans have been rejected.

While the Court is making its way without the United States, it would be stronger if the U.S. were a member. The American legal system and expertise have much to contribute to the early cases, which will shape the Court's jurisprudence for the future. And American intelligence agencies could help the Court gather evidence to ensure successful prosecutions.

In this campaign season, the public has the right to know where all the leading candidates stand on the issue. So I ask all the candidates these questions: If you were elected President would you ask the Senate to ratify the Rome Statute? While that process unfolds, would you support the Court’s work? Would you be a President that advances the cause of international justice, one who reinvigorates America’s noble tradition?

Affirmative answers to these questions would strengthen the Court and send a powerful signal that the U.S. wants to re-engage with the rest of the world.

Regional Human Rights Courts
So far we have been talking about high-profile cases of crimes against humanity. But the system of international justice also provides venues for ordinary people when they have exhausted remedies in their own countries. These places are the regional human rights courts in Europe, Latin America, and Africa. MacArthur has been supporting local human rights groups that bring precedent setting cases to these courts.

Here is an example of how these courts work:
In 2000, Russian journalist Viktor Chemodurov was sued for defamation, after he wrote a newspaper article criticizing corruption within the administration of the Kursk region governor. Typical of what happens in most defamation cases involving politicians, a domestic court ruled in favor of the governor. MacArthur-grantee the Black-Earth Media Rights Center took the case to the European Court of Human Rights. In July last year, the European Court said that the domestic court ruling violated the European Convention, which protects journalists' right to free expression. The Court ordered the Russian government to pay Chemodurov's legal costs plus material compensation.

All told there are almost 80,000 cases from 70 countries pending before regional human rights courts and commissions. A significant number of these cases result in decisions that compel countries to respect their own constitutions and abide by treaties they have signed.

Together, the regional human rights courts and the ICC make it possible that the 21st century will see the end of the era of impunity and the dawn of the age of accountability. And we hope the presence of the international system of justice will deter those who contemplate gross human rights abuses but also give incentives to nations to strengthen their own justice systems.

The MacArthur Foundation’s work in human rights and international justice reflects our basic values: optimism that humankind can improve and faith that good people working through organizations of civil society can make a difference. We believe a more just and humane world at peace is a worthy aspiration but also a real possibility.

As you reflect on these values and the MacArthur Foundation’s work during the past 30 years, you might wonder, what would John MacArthur think about it? What would he think about a Foundation bearing his name ranking among the top ten in the country, with names like Ford, Rockefeller, Carnegie, and Gates? How would he feel about working in sixty countries, his name honored by human rights activists in Russia, poor women receiving health care in rural Nigeria, conservationists in Peru, low income families, getting good housing in Chicago, New York and South Florida?

I had a chance to ask this question of broadcaster Paul Harvey, who was an original trustee, a close friend of the MacArthurs, and the last link between the Foundation of my generation and its founders. When he retired from the Board in 2002, he said this:

“I have tried to imagine how John MacArthur, were he here, would appraise our performance. I am convinced that upon surveying the past twenty-four years, he and Catherine would have said that we have succeeded – uphill as it was at times – in every imaginable way.”

We hope and believe John and Catherine would agree and share our aspiration that the 21st century sees a more just, sustainable, peaceful world.

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