Reflections From the 2013 BIIJ Interns
Sixteen judges from 13 international courts and tribunals attended the ninth Brandeis Institute for International Judges July 1-3, 2013, in Lund, Sweden. The institute was organized in partnership with the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and the Lund University Faculty of Law.
The following are reflections from three undergraduate interns from Brandeis University who provided support throughout the Sweden institute.
"The Importance of Outreach"
The theme of the 2013 Brandeis Institute for International Judges was “International Law in a Human Rights Era,” a fitting overarching theme for some of the greatest legal minds in international law. The theme encompassed many topics that one would expect to hear discussed at a meeting of international judges: the universality of human rights, the tension between truth and justice, and the roles and mandates of the different courts. I was a bit surprised, however, to see the amount of time the judges also devoted to a somewhat unexpected topic: outreach.
Only seven months before interning at the BIIJ, I would have never thought that outreach was a priority for international judicial organizations. The Brandeis in the Hague Program made me realize the need for outreach, but also that I was not alone in my initial thinking. The truth is that many of the founders of international courts and tribunals grossly underestimated their institution's need for effective outreach programs.
Outreach has been an unforeseen challenge to international courts and tribunals, in part, because outreach plays an insignificant role in domestic judicial systems. The idea of marketing courts seems silly, if not downright unethical on a domestic level. This is because domestic courts, like domestic governments, are accepted as vital components of society. Though the rulings of a domestic court are sometimes questioned, the questioning occurs within the judicial system and the necessity of the judicial system itself is never a topic of debate.
A society's need for the judicial system enjoys an almost self-evident status, which rests on the premise of a cohesive state and a relatively unified identity, such as that of Americans or Swedes, who are ruled by an accepted governmental system, such as the democratic republic system in the United States of America.
These foundations do not exist on the international scale: the idea of a global identity, of global citizens, is relatively new and by no means accepted by all. The idea of a world government, furthermore, is even less palpable, even to those who view globalization in a positive light. Though international courts and tribunals have become a very real and important part of society today, they exist outside the framework of an accepted administrative and organizational system. Hence they have the added burden of convincing the world of the importance of their work and of justifying their budget to third-party donors.
That is not to say that outreach is a strictly financial or state-centered topic, as the discussions in Lund demonstrated. I was surprised that, though there was not a session dedicated to outreach, it came up naturally in almost every session. The judges considered the goals and challenges of outreach in a variety of different situations and contexts, which I thought showed their recognition of the importance of the subject. After all, the challenges of maintaining autonomy when dealing with states or the United Nations would differ greatly when facing the same challenges when dealing with NGOs and even more so when dealing with local populations. I agreed with the broad conclusion of the discussion that while maintaining autonomy is vital to any judicial body, international courts and tribunals must find a way to maintain that autonomy, while seeking acceptance and understanding from both the local and international communities.
The presence of representatives from regional and non-criminal courts added interesting dimensions to the discussion. First, the judges made the point to acknowledge that outreach can be a two-way street. Although tribunals are involved in setting up the rule of law in a nation undergoing transitional justice, in some cases they should also incorporate and learn from local tradition and customary law. Furthermore, the question was raised of the extent to which results, in the form of efficient and consistent rulings, could replace outreach. Personally, I think that while efficient case management and the creation of jurisprudence is enough to ensure compliance in those courts dealing with cases between states and whose rulings are voluntarily enforced, this is not always the case for courts dealing with transitional justice scenarios. For those courts, a strong outreach program is vital to success, because it creates an opportunity for acceptance, not only from the international community, but also from local populations. I think this is especially the case when domestic law differs significantly from the international or hybrid law being used by the international judicial body.
By the institute's closing session, there was no doubt in my mind that outreach is becoming a high priority for international judges. Not only had several judges dedicated their opening statements to the importance of outreach, but the topic was woven into most discussions. I was very happy to see this productive and concrete examination, as it seems to me that outreach is key to the successful future of international judicial bodies.
"The Role of Regional Courts"
Over the past two years, I have had an amazing array of opportunities to learn about international law and how it operates in the real world. I served as an intern at the 8th Brandeis Institute for International Judges in Carmona, Spain. Afterwards, I participated in both the Brandeis in The Hague program and a study abroad program in Geneva, where I interned for Geneva for Human Rights, an NGO that oversees human rights treaty bodies at the United Nations.
More recently I worked for Physicians for Human Rights in the Sexual Violence in Zones of Conflict program, which has already achieved a great reputation for its work in networking medical, legal, and law enforcement sectors in Africa as a means of preventing and prosecuting perpetrators of gender violence. Finally, I had the good fortune to intern once again at the most recent BIIJ in Lund, Sweden.
Of all these opportunities, I found my time in Lund the most memorable. The fluid dialogue that took place among the international judges resulted in very fruitful discussions about international justice. A recurring topic throughout the institute, and one that struck me as especially important, was the work of regional courts and their increasing importance for the realization of global justice.
It has been almost two decades since the first international criminal tribunals were set up to conduct trials against perpetrators of arguably some of the most heinous crimes committed in the recent past. The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) have been enormously successful, and are still actively trying perpetrators due to the necessarily lengthy judicial process. These two institutions seem to have whet the palate of the international community, making it hungry for more international courts and tribunals to prosecute the world's criminals and solve global disputes.
We have since seen the creation of the International Criminal Court, Special Court for Sierra Leone, Extraordinary Chambers in the Courts of Cambodia, African Court of Human and Peoples' Rights, and Special Tribunal for Lebanon, to name the most prominent institutions. And though many of these courts have starting chipping away at numerous cases of serious human rights violations and international crimes, there is increasingly an interest among some in the international community for an amended approach. I am talking about the discussion surrounding regional courts.
A handful of ad-hoc courts and tribunals — the ICTY, ICTR and SCSL — will soon complete their mandates and close their doors. How, then, will the new conflicts of the world be dealt with? Will new ad-hoc institutions be created? Or will the International Criminal Court be expected to take on all future cases of alleged war crimes, crimes against humanity, and genocide? Perhaps the solution lies elsewhere.
Financial restrictions make it unlikely that the United Nations Security Council will set up many more courts, and even the existing courts and tribunals are facing harsh monetary restrictions that have arguably affected the efficiency of their judicial process. And there are limits to how many cases the ICC can reasonably take on, especially given the time it took for the court to investigate and prosecute its first ever case, the Lubanga case. It is true that the ICC system is based on the principle of complementarity, the idea that domestic judiciaries have primary responsibility for prosecuting their own nationals for genocide, crimes against humanity, and war crimes. But how many countries with ongoing conflict or broken judicial systems will be deemed “unable or unwilling” to do so?
The BIIJ conference in Lund shone a light on the idea of setting up regional courts as a solution. Although not all participants agreed that this was practical or desirable, there was a lively debate on the question.
If African domestic courts could give jurisdiction to prosecute their nationals to a regional criminal court instead of always to the ICC, the Court could concentrate on its current situations and cases and in the future take on only those that are the most complicated or heinous. The creation of an African regional criminal court, or a similar one in any other region of the world, would not be simple. It would require funds for its creation, qualified judges to sit on its bench, and the support of the international community to transform it into a thriving organ of justice. One BIIJ participant went beyond the idea of a regional criminal court, saying that perhaps regional offices of the International Criminal Court should be created in Africa, Asia and South America so that the ICC would have a presence outside of The Hague.
There is no perfect solution to the problem of prosecuting perpetrators of heinous crimes in a fair and efficient manner. The ICC cannot do it alone, nor can we expect all domestic courts to become competent in such complicated legal matters in the next few years. It is time we look ahead and implement a means of assisting the ICC in its critical work. The participants of BIIJ 2013 in Lund took a stab at envisioning global criminal justice for the future.
"The Universality of Human Rights"
During the summer of 2013, the Brandeis International Institute for Judges met for the ninth time in Lund, Sweden. As an intern at the Institute, I had the opportunity to sit in on discussions with some of the world's most important international judges, who discussed a wide range of topics and problems related to international law. One topic that made quite an impact on me was the ongoing debate about the universal nature of human rights.
Personally, I was surprised by the disagreement between the participating judges. I expected the judges to all be strong proponents of the universality of human rights, given their position as the executors of justice, which, we all know, ought to be blind. Bearing this judicial responsibility in mind, how could the participating judges assert that human rights are anything but universal?
On an international level, law tends to only concern itself with crimes on the largest scale. Ordinary cases are not usually brought before international legal institutions — if we look at the Rome Statute (the establishing treaty of the International Criminal Court), for example, a truly monolithic document in the world of international law, we see that it is only applicable to crimes of the greatest concern to the international community: genocide, crimes against humanity, war crimes and (soon) the crime of aggression. My point is that public international law concerns itself only with the most serious violations of human rights — those which the international community feels can never be allowed to occur without any kind of judicial consequence.
I believe that the Rome Statute, to use the same example, is actually a human-rights document. Human rights treaties long preceded the Rome Statute, most notably the Universal Declaration of Human Rights, but to me the Rome Statute, although not usually seen as a human rights treaty, is in fact one of the most important humanitarian documents. Its importance is in creating within the community of countries that signed and ratified it, for the first time, a criminal ‘red line’ beyond which the large community of state parties can no longer be passive. This red line, in my mind, is the most practical realization of the rule of human rights and represents one of the first moves from theory and will towards action.
In the Rome Statute and in other forms of humanitarian law, rights are bestowed upon all persons by virtue of their humanity. In human rights law this is a given, and surely, I believed, this universality cannot be challenged by an international judge. As I said, justice must be delivered blindly, and furthermore, the same standard of justice should be instituted upon all persons under a certain jurisdiction. Traditionally, judicial powers have been limited to members of a nation, which have usually had homogenous cultural norms and beliefs, but the current move towards international jurisdiction, at least on the most serious criminal level, presents a challenge to judges and lawyers operating in that arena.
At the 2013 BIIJ I saw that some of the world's most important international judges, in fact, have serious doubts about the universality of human rights. They all seemed to agree with the notion that some rights are unquestionably universal; that some basic rights, like the right to life, can never be challenged on the basis of cultural relativism. In this sense, universality persists in the world of law. But some, on the other hand, had doubts about the universality of, for example, the rights of persons over their own bodies.
The question, then, is what ought to be the range of rights given to all humans from birth? This was the main theme in the BIIJ discussion on the universality of human rights. Personally, I find the notion that some rights are universal, while others are not, flawed at its core. The notion assumes, and indeed the judges seemed to suggest, that some rights ought to be universal and legally enforced — and thus be included in the "human rights lexicon" — while other rights are a matter of cultural preference. This, I believe, is not only a problem in the world of international law, but also a central problem in contemporary, postmodern political thought, a prevailing notion in the Western academic world.
In my mind, if one sees all human beings as equals, then the universality of human rights must follow. I do not have a model of rights that serves as a perfect example — this would have to be deliberated critically — but at the basic level I have two suggestions for making the human rights discussion more productive.
Primarily and most importantly, we must acknowledge that whichever rights we agree to add to the lexicon, they should be seen as universal. And second, we must always aim to make the lexicon larger, by carefully and sparingly adding the rights that must logically be given to all humans. Making exceptions and accepting the notion that different groups are entitled to different sets of rights is simply too dangerous in a new era of international law, for the legal mission in itself presupposes that justice is blind and that the same legal code shall be applied equally.
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