For years, professors of international law began their courses with a rhetorical query: Is international law really law?
The problem was, international law didn’t seem to pass the litmus test for what constitutes law. Law comprises a body of commands issued by a sovereign and backed by sanctions—a definition shaped by 19th-century legal philosopher John Austin. But the international system is premised on the myth of sovereign equality; hence there is no ultimate sovereign capable of enforcing its pronouncements in the event of a breach.
While in law school, I attended a lecture from one of the prosecutors from the International Criminal Tribunal for the Former Yugoslavia. He traced his work to the Nuremberg trials and other efforts following World War II to hold individuals accountable for crimes against humanity. In the context of the interethnic war then raging in Yugoslavia, he made a strong case for retribution and for deterrence: that it was only by prosecuting individuals for their crimes that societies could do the hard work of healing the body politic and ensuring that these crimes are never repeated.
Immediately upon graduation from law school, I worked in the prosecutor’s office at the Yugoslavia Tribunal. I was tasked to the first big appeal (The Prosecutor v. Duško Tadić); we were lawyers from all over the world trying to decipher legal principles from cases that were decades old and from disparate legal systems. As an intellectual exercise it was fascinating. It was also emotionally compelling, because it felt like we were finally creating a system of institutions and rules that would ensure that the Nuremberg principles were not merely relegated to history.
Today, Santa Clara graduates are working at nearly all the major international tribunals—ranging from the Special Court for Sierra Leone, established to prosecute international crimes committed during the civil war, to the International Criminal Tribunal for the former Yugoslavia to the International Criminal Court (ICC). You’ll find Santa Clara students in prosecutors’ offices, in chambers with the judges, and with defense counsel. And each summer we send a team of current students to The Hague for an intensive course in international criminal law based at the Yugoslavia Tribunal and the ICC. We also place students in internships at the Extraordinary Chambers in the Courts of Cambodia, which are prosecuting surviving members of the Khmer Rouge.
“While a leader like Gadhafi likely doesn’t care what the ICC would say, some of his subordinates may; perhaps that explains the many defections we’ve seen.”
Many find this work powerfully engaging. There are not enough positions, however, to absorb all the interest among students after they graduate. And, the ad hoc tribunals for Yugoslavia and Rwanda are in their completion phases, so the ICC is gradually becoming the only game in town. Since the United States is not a member, it is harder for U.S. citizens to compete for open positions there. A number of our students have, however, been able to create a sort of revolving door for themselves, whereby they work in domestic criminal law, spend some time at one of the tribunals, then return to work stateside. Plus, even a domestic criminal law practice is more and more global, with transnational organized crime and human trafficking issues filling the dockets of local judges.
Dealing with international criminal law means enunciating legal norms across cultures and societies. More viscerally, it also means dealing with the stuff of nightmares. As a mother, I’m sometimes asked whether that fact makes the work more difficult—or if, conversely, it underscores how important it is. For me personally, the hardest case in this regard was one involving Salvadoran refugees who had sued two of their country’s former ministers of defense in a U.S. court. One of the plaintiffs had been eight months pregnant when she was detained and tortured. The baby was born in a trash dump, where the mother’s broken body was left for dead; the child ultimately died of injuries sustained in utero. I was pregnant while I was representing her. The comparison of my pregnancy and the end of hers was so stark that it still brings tears to my eyes.
After the case concluded with a jury verdict for the plaintiffs for more than $50 million, we talked about this strange convergence of life stories. As it turned out, we had both been more preoccupied with each other than with ourselves: She was worried about what her witness testimony was doing to me, and I was worried about what witnessing my healthy and safe pregnancy was doing to her.
But do the bad guys care?
It took the thawing of the Cold War in the 1990s and the return of genocide to Europe to galvanize theinternational community to recommit to international criminal law. With the ICC in place we have a permanent institution to prosecute the most serious crimes of international concern. Major changes have also happened locally: Penal codes in many nations now prohibit international crimes, and prosecutions are happening closer to the events in question. Tribunals have also done a relatively good job with retribution; individuals proven to have committed international crimes are serving sentences all over the world.
Where the system has yet to prove itself is with respect to deterrence. It is not clear if tomorrow’s genocidaires will think twice before committing their crimes. International prosecutions may still be too episodic to work real deterrence. That said, there are some indications that warlords in Africa and elsewhere are aware of the ICC and its work.
While a leader like Gadhafi likely doesn’t care what the ICC would say, some of his subordinates may; perhaps that explains the many defections we’ve seen. And certainly the referral of the situation in Libya to the ICC galvanized the resistance and also gave some hope to Gadhafi’s victims.
But often victims and witnesses are dissatisfied with the process of international justice and with the degree to which they are able to participate. This makes other transitional justice mechanisms—truth commissions, collective or symbolic reparations, local trials—that much more important. It also underscores how essential the work is that many Santa Clara alumni are doing constructing a global system of justice and accountability: one that envisions a world governed by law and altruism rather than power or apathy. We see over and over again what doing nothing makes possible, whether in Rwanda, Darfur—or, still, in Burma, where the governing regime has enjoyed impunity for much too long.