Responsibility and Solidarity of Lawyers in the 21st Century
The law is not only reacting to current events but is also anticipating upcoming challenges. In the face of all current threats, what we need above all is a sense of responsibility and solidarity - prof. Adam Bodnar reminded students at the NYU
Responsibility and Solidarity of Lawyers in the 21st Century
New York University School of Law
19 May 2022
by Adam Bodnar
Dear NYU Law Graduates,
Ladies and Gentlemen,
In 1989, I was 12 years old. On November 15, 1989, Lech Wałęsa, the leader of the Solidarity movement and later President of Poland, gave a speech in the United States Congress. His speech was a symbol of the upcoming democratic changes in Central and Eastern Europe and the liberalization of this part of the world. Later on, a number of European nations gained freedom and independence from the Soviet Union. Poland and other Central and Eastern European countries became members of the European Union.
But 33 years later, on February 24, 2022, history came full circle again. Russia invaded Ukraine and started the war. The whole liberal world created a strong alliance to support the Ukrainian nation. On March 16, 2022, Volodimir Zelensky spoke in the US Congress. He called for support, for humanitarian and military aid, and he proposed solutions. He reminded me what the war was about: “Today the Ukrainian people are defending not only Ukraine, we are fighting for the values of Europe and the world […]. That’s why today the American people are helping not just Ukraine, but Europe and the world, to keep the planet alive, to keep justice in history.”
10 days later, on 26 March 2022, I had the honor of listening to President Joe Biden’s speech in the courtyard of the Royal Castle in Warsaw. President Joe Biden reminded us that the world has unfortunately become divided again – between the world of autocracy and the world of liberal democracy. He pointed out that the fight for democratic values will be more difficult than ever before. In the spirit of Winston Churchill’s words, he mentioned: “It will not be easy. There will be costs. But it’s a price we have to pay. Because the darkness that drives autocracy is ultimately no match for the flame of liberty that lights the souls of free people everywhere. “
You are witnesses of history. Before your eyes, things are happening that were unimaginable a few years ago. We do not know what our world will look like in a month, a year, in 5 years’ time. You watch the suffering. You see how geopolitical relations and relations between countries are changing. You wonder – who am I, how can I help, how can I use my legal knowledge? At the same time, you realize that the war in Ukraine is just one of the problems of this world. The world is slowly emerging from a tragic pandemic. The climate is changing and our planet is under threat. This in turn affects increasing migrations and the risk of climate apartheid, as Prof. Philip Alston has written and spoken about. New technologies are developing so fast, and corporations have such massive power, that public authorities are unable to keep up with them.
How to deal with it? Only good, well-thought-out, wise laws – made on the international, regional and national levels – can help. Laws are the result of human reflection, sensitivity, and responsibility. The law is not only reacting to current events but is also anticipating upcoming challenges.
In the face of all these threats, what we need above all is a sense of responsibility and solidarity. I appeal to you, as graduates of this prestigious university, for the responsibility and solidarity of lawyers in the 21st century.
Now, I would like to focus on responsibility.
The question is: how should lawyers’ responsibility be manifested? How each of you could share his or her wisdom and experience as regards resolving problems of this world and using legal knowledge in a most effective way. In my living room, there is a poster of Polish artist Rafał Olbiński: “New York: Capital of the World”. On this poster, Manhattan is portrayed as a big balloon holding on ropes a basket. We see that the whole planet fills in the balloon basket. In my opinion, this metaphor depicts your sense of responsibility for the world – taking into account that you all – as LL.M., JSD, and MS graduates – represent different nations and continents. At the same time, you are just enriched by the best American tradition of respect for rule of law, democracy, and constitutionalism.
For years, American lawyers have set an example of solidarity in their actions. After all, the famous “rights revolution” – the assertion of civil rights and freedoms through litigation began just here. It was from American textbooks, handed down to me by late Prof. Wiktor Osiatyński, that I learned what strategic litigation is all about.
It was in Weil, Gotshal & Manges that I first heard the word “pro bono” legal aid, which I then tried to instill in Warsaw law firms. American projects of innocence inspire how to use new technologies to fight for the rights of the wrongfully convicted. Law clinics at American universities show how to integrate involvement in key legal cases into the teaching of law.
However, when faced with the challenges of the 21st century, it is not enough. We must, as lawyers, show the world that we can do even better, that we have even more imagination and courage to solve problems, but also we have to invent new methods of accountability for violations of law.
The planet is dying because of climate change. That is why it is so fundamental not only to have climate agreements, but to fight in the courts for environmental justice. Such proceedings are already underway around the world – before domestic and supranational courts. The right to live in a clean, unaltered environment should be our human right, and lawyers must bring this before the courts and force politicians to be even more responsible.
The development of algorithms and artificial intelligence threatens our subjectivity but also shifts decision-making power towards large corporations. It is up to lawyers to find smart and enforceable solutions on how to restore the balance between public power (serving the individual and his rights) and corporations.
Many countries around the world are struggling with the consequences of migration and the influx of refugees. Poland has accepted more than 1.5 million refugees since February 24, 2022. But there is also a darker picture – the word “push back” is known in many countries dealing with massive migration. This word is also known in my country and refers to refugees crossing another border – the Polish-Belarusian border. Lawyers have to fight in courts for compliance by the executive and border control agencies with basic human rights standards as regards the treatment of refugees and migrants.
There are many more problems, such as poverty, suffering, hunger, discrimination, and exclusion, that are still prevalent throughout the world. Living in peace in a multi-ethnic, multi-religious, and diversified society requires an understanding of tolerance and acceptance, but also enforceable anti-discrimination regulations. The message of the Universal Declaration of Human Rights is more relevant than ever.
Ladies and Gentlemen,
These are all global challenges. However, I come from a country that borders the Russian Federation, I come from a country that is right next to the theater of warfare. That is why I would like to tell you now the story of two courageous lawyers.
One of them is Ivan Mischenko – until February 2022 he was a judge of the Supreme Court of Ukraine. A handsome, tall man. But when the war started, he joined the territorial defense and later the 93rd Mechanized Brigade of the Ukrainian Army. In an interview with Jane Ferguson of the “New Yorker” magazine, he said he hoped to return to work behind the judges’ table. Let me quote him: “I even had thoughts about the cases I was working on. I was thinking, on this case I have to use this legal precedent or something like that.” But then he realized that he has other dreams and tasks now: “I want my family to return. I want a normal, peaceful life. But first, we have a job to do.”
The second person is a student of the Law Faculty of the SWPS University in Warsaw – my university. At the end of February, he informed me that he is returning to his homeland to serve in territorial defense. It was his patriotic duty. I was shocked because after all, such stories my generation could listen to only from our grandparents. Now I cannot be even certain whether one day he will be able to come back to Warsaw to complete his studies.
For me, these two individuals symbolize an entire generation of Ukrainian citizens who dream of living in a normal, law-abiding, democratic state, a member state of the European Union. It is to them that we, as lawyers, should show solidarity through our actions.
Rev. Prof. Józef Tischner, a famous philosopher of the “Solidarity” movement emphasized that man is always in solidarity with and for someone. He was saying: “So – with whom should our solidarity be with and for whom? We can also ask what kind of deeds and works it can be expressed by.” According to Tischner, the foundation of solidarity is conscience, and the stimulus for it is the cry for help from a person who has been hurt by another person. Solidarity is especially for those who have been hurt by other people and who suffer avoidable, accidental, and unnecessary suffering.
Therefore, we have a special duty of solidarity as human beings toward the Ukrainian people, and as lawyers – toward the mentioned representatives of the Ukrainian legal world. They are right now one of the most vulnerable and most suffering people in the world. What does this duty of solidarity mean?
Firstly, we must bring to justice all war crimes, crimes against humanity, and genocide committed by Russian soldiers. This task might be fulfilled by the International Criminal Court and lawyers will play a crucial role in documenting crimes and preparation of indictments. The experience of hybrid courts adjudicating crimes in former Yugoslavia, Ruanda, Cambodia, Lebanon, or Sierra Leone, could be helpful in bringing justice and in wiping tears from the eyes of Ukrainian victims.
But it is not enough. Let me remind here Raphael Lemkin, a Polish lawyer of Jewish descent who created the legal concept of genocide, several years before WW II, and several years before the Holocaust. Only after the Second World War, in 1948, the Convention for the Prevention of the Crime of Genocide was enacted. The concept is, unfortunately, still applicable. Such an innovative approach by lawyers is needed also now in order to prosecute Russian leaders, including Putin, for the crime of aggression against Ukraine. According to the current law, this particular crime may go unpunished, if some special international court or tribunal is not created. We must be as creative as Raphael Lemkin has been.
Then, our role as lawyers is to secure that sanctions against Russia and its oligarchs are as effective, tight, and penetrating as possible. Much depends on the law and its enforcement.
Next, we must prepare for the fact that Ukraine will need reconstruction, support, and the building of a modern state. The role of lawyers will be invaluable in this regard.
In addition, we must support Ukrainian refugees in guaranteeing the full scope of rights and equal treatment. As regards fleeing Ukrainian lawyers, we must create conditions to develop their legal talents so that they can soon take full responsibility for the reconstruction of their own homeland.
Finally, we need to consider what the new international order, and especially international organizations, should look like. Is the United Nations fulfilling its tasks correctly? What about the future of the Council of Europe without Russia? Maybe a new international organization is needed to tackle world problems. Moreover, the European Union has to strengthen cooperation as regards military issues. Consequently, lawyers must take responsibility for finding new solutions for the operation of international organizations.
Upon completion of your studies, you will work in law firms, NGOs, universities, corporations, international organizations, and governmental institutions. Remember that after February 24, 2022, the world has changed, and it is incumbent upon us as lawyers to stand in solidarity. People that are gathered in this beautiful place, in the middle of the capital of the world, are fortunate not to bear arms and not to stand in defense of their homeland. But it does not mean that we can be just observers. To repeat after Judge Ivan Mischenko “we have our job to do”. Each of us – in our own conscience – has to answer the question.
What is my professional responsibility to the challenges of the world and what is my solidarity with those who suffer? I am certain that thanks to the education at this great university, you will find a proper answer. So, find an answer and do your job.