Episode 2 - Improving Access to Justice
Episode 2 – Interview with Liz Evenson – HRW – Part 2
[00:00:00] Dr MIranda Melcher: Hello and welcome to Just Access! Too many individuals and groups around the world today are denied access to justice. Such access is vital for making human rights effective and securing human dignity, especially for those in situations of vulnerability such as women, children, minorities, migrants, or detainees.
[00:00:26] In this podcast series, we speak to academics, international legal experts, human rights advocates, and many more about hot topics in international law. Our goal is to expose and highlight situations of structural injustice and explore unusual or creative solutions to these issues with an overall aim to protect and enforce the rights contained in international treaties.
[00:00:50] My name is Dr. Miranda Melcher, and I’m a Senior legal Fellow at Just Access. In this episode, I continue my conversation with Liz Evenson. She’s the International Justice Director at Human Rights Watch, or HRW. Hope you enjoy the second part of our conversation.
Interview – Second Part
[00:01:09] Dr MIranda Melcher: Given your position at Human Rights Watch and of course your experience and career so far, thinking broadly, what are some of the biggest gaps in the current system for people to have justice? Where do we see some of those most lacking areas?
[00:01:29] Liz Evenson: Right. Well, so I’m working in what we call the international justice system and I think it’s important to kind of define that system because probably people you’d ask, a couple different people, you get a couple different answers, including like, is it yet a system? You know, because the system suggests that it’s sort of closed and complete and maybe then there wouldn’t be gaps.
[00:01:51] But what we’ve seen over the last 30 years or so, it’s kind of hard to date exactly the modern international justice system, but basically what we’ve seen is a growth of institutions that are dedicated to establishing accountability for serious international crimes through trials, through assigning individual criminal responsibility. And then there’s a lot of other things that were kind of in parallel to that system to look at state responsibility, for example, through the International Court of Justice, or to look at the financial liability through civil claims in national courts.
[00:02:30] But the international justice system as I tend to think of it really comes out of the Rome statute system – the Rome statute being the founding treaty of the International Criminal Court, and it makes the International Criminal Court a court of last resort. So really the idea is that justice for these kinds of crimes should be normalized at the national level and that the ICC’s intervention should be extraordinary only where that’s not possible. And alongside that we also have the concept of universal jurisdiction, which is where courts can try these crimes even where they weren’t committed in that country, or even where there’s no kind of obvious link to a particular country.
[00:03:08] And that again helps to filling a gap in a sense. You know, you talk about where the gaps are. I guess I would say actually this is a system that’s sort of designed to be gap filling. The gap being that national governments who have the responsibility to provide victims access to justice when they are the victims of torture, crimes against humanity, war crimes, were not acting.
[00:03:31] So this has all been a process of building a system that would not displace that responsibility, but provide encouragement and support to carry out that responsibility and then have some backstops for when it’s not an option to do this at the national level. And so that might be through the International Criminal Court, it might be through other kinds of jurisdiction.
[00:03:53] So that’s a very long answer about the system. And it’s not even, it’s not even complete. And now I’m gonna talk about, so within a system that’s a gap filler, like where are the other gaps? Well, the biggest gap is really in those countries that have held themselves outside of the reach of the Rome statute system.
[00:04:12] So the ICC is actually, it’s a voluntary court, I guess is one way to look at it. You know, countries decide that they want to join this treaty. It’s not part of United Nations, it’s something separate. And if they decide that they wanna join the system, and 123 governments have, then it means that the court can act as that gap filler.
[00:04:31] If they don’t join the system, there are still some ways for the court to have a mandate, particularly through the UN Security Council, but it’s much harder. And so you have countries that have held themselves outside, like the United States, like China, like Russia, like Syria, where you have significant parts of the global population that do not actually have access to the system should they need it, either through their national courts or through the International Criminal Court.
[00:04:58] So I think one of the biggest gaps is that there are still double standards in terms of who gets justice. If you are a victim or a survivor in a country that belongs to the ICC, you may have a stronger set of national laws in place because part of the ICC system is to put those national laws in place, and you may also have some prospect of having justice at the International Criminal Court. If you’re not part of that system then that pathway, absent some pretty extraordinary political will on part of the international community, that pathway is just gonna be entirely closed to you.
[00:05:34] But then even when you’re in the system it’s not as simple as that, of course. I mean the ICC is only one institution, it has a limited budget, for many, many years now, it’s been clear that the demands on the institution are way beyond the financial resources that states have made available to it.
[00:05:53] And so even if you’re in the system, it doesn’t mean that your particular situation is gonna be one that the International Criminal Court will be able to deal with, at least not comprehensively. So, I mean, there are almost more gaps than there is system – is sometimes how it feels.
[00:06:10] And at the same time, it’s a very, I would say NGOs around the world have been very creative trying to make the most of what does exist. So even where you don’t have access to the International Criminal Court, you can still use the fact that the International Criminal Court exists, that these laws exist to try to mobilize some other kind of response, whether that might be a commission of inquiry, which would hold the space open for justice in the longer term, or using the fact that the ICC exists to do campaigning with your own national parliament to join the ICC, to put these laws into effect nationally so that trials could be held out nationally.
[00:06:52] So it’s a system that’s still developing, it’s far from complete and yet there’s a lot out there that allows NGOs and those advocating for justice to try to kind of push the envelope and create some solutions that are, you know, wholly new, with the goal in the long term of eventually getting into a court room.
[00:07:14] Dr MIranda Melcher: So given the gaps within the system and obviously outside the system and kind of trying to get into the system, it sounds like one of the obvious things that could be done to improve it, not to say easy, very different, but one of the obvious things would be all the countries joining the system. Are there other kind of low hanging solutions or something that would work to address some of these gap?
[00:07:41] Liz Evenson: I think they are. I mean maybe they’re low hanging cuz they’re obvious, but as you said that doesn’t mean that getting them to happen is low hanging. So yes, I mean, all countries should join the Rome statute, 123 is a large number and happened a lot faster than most people thought so it’s only been, it’s been almost 25 years since the court’s treaty was adopted, but only 20 years this year since it entered into force, and the fact that it entered into force so quickly was actually I think a surprise to many. Many thought it would take many more years to get the kind of number of states parties that we got then and has grown now to 123.
[00:08:19] I think, you know, the other obvious solutions are to put more resources into the system. And that can come at every possible level. So, um, I’ve already mentioned the kind of gap between the court, the International Criminal Court’s budget and the workload it has, but that’s just, you know, the tip of the iceberg.
[00:08:38] If you look at investment in rule of law nationally, where again, ideally it would be the strengthening of the rule of law nationally that this whole system promotes and perhaps has a preventative effect in the first place, but if not, allows victims to access justice nationally. So resources there to support the kind of specialized expertise that these cases take to support victims to make sure that they have the services that they need to be able to go through a justice process, which is not an easy thing or a short thing.
[00:09:11] Resources to support NGOs. Most of these kinds of cases take extraordinary campaigning over many years because the political interests that kind of are opposed to accountability or just wanna protect the status quo are just very difficult to shift if you don’t have active long-term campaigning by NGOs.
[00:09:31] NGOs need resources and support and, you know, beyond financial support for NGOs, they also need the kind of backup when they come under threat for standing up for justice, which happens. So in terms of states everywhere trying to protect the , the space that’s open to civil society to even claim justice on behalf of victims and survivors.
[00:09:53] So I don’t think that the solutions are elusive by any means. I think, you know, with every passing year as the system develops, new things get tried; the last few years we’ve seen the creation of a lot of mechanisms through the UN system, which aren’t yet courts but are there to try to take the information in more real time and perhaps prepare cases for some future where there might be a judicial institutions involved.
[00:10:19] So we see a lot of innovation, a lot of creativity that that comes along the way to get around these gaps, but I think the answers are not too difficult. It’s more about shifting the political will, shifting the political priority to put the resources into the system and to give it the political backing it needs to work on behalf of justice.
[00:10:40] Dr MIranda Melcher: And of course that’s the role of NGOs, like Just Access or like Human Rights Watch so that’s why we’re having this conversation. Just kind of one last point on this idea of sort of the obvious versus the easy. If you could wave a magic wand, if you could maybe make the obvious easy, but you could only pick one thing, particularly within the context of the ICC, what might it be?
[00:11:08] Liz Evenson: If I could pick one thing for the ICC, it would be for the ICC and its officials to have a shared perspective about the legacy and the long-term vision for the International Criminal Court in terms of having an impact for victims and affected communities. And I say that because I think there are lots of opportunities that the International Criminal Court has not always taken to make sure that what it does is meaningful and has impact, and hopefully contributes down the line to the rule of law in any of the situations where it works.
[00:11:44] And those opportunities have included things like just having more strategic vision. You know, what will it mean when the ICC has done it’s work in a particular context? Like what will that mean? What will that look like? Having kind of a shared conversation about that and then working backwards from there to see what the court’s activity should look like. I think having that conversation could lead to a lot of different conclusions. I think some of them would probably be making sure that the court is more firmly rooted in the situations where it’s working in terms of its presence, in terms of its staffing, in terms of its country expertise.
[00:12:20] Some of the outcomes of that conversation might be less obvious, or might be more difficult to achieve because they might mean a stronger, longer term investment in helping the national authorities in a particular country, like get the capacity or have the political backbone to do these kinds of cases.
[00:12:38] And that might expand the footprint beyond what some might think the International Criminal Court should have, but I think if we really want a system that works for victims and has an impact, then we need to have a shared vision. That the ICC it’s working now across some 17 different countries.
[00:12:58] That’s incredible for one institution and for it to really have an impact it needs to take ownership and take responsibility that means it needs to have kind of 17 different visions as to what it’s doing and the resources and the support to carry out that vision. But having that greater orientation towards impact, towards meaningful justice, towards legacy, I think would be a really helpful shift at the Court.
[00:13:25] Dr MIranda Melcher: What a wonderful answer. Thank you for sharing that with us.
[00:13:29] I want to move maybe a little bit away from the ICC for a moment. I’m sure we’ll come back to it, but perhaps addressing, I know some of our listeners quite directly, what would you, in your position, recommend that students or newcomers to this field, what can they do to help with this work of expanding access to justice?
[00:13:54] Liz Evenson: It’s such a great question and, you know, there’s so many different ways to answer it. Maybe the way that I’d like to answer it is to think about, you know, who you are and what skills you have to offer, because if we think about access to justice and just kind of make it broader to the human rights movement, the human rights movement needs everyone and it needs all the help it can get.
[00:14:16] And it can be from lawyers, but it has often also been from artists, from journalists, from political scientists, from climate scientists, to poets, you know, it really is a movement that at the end of the day, you’re speaking up for this common humanity. And so I think maybe looking at yourself and like, what is it that you wanna do? Like what is it that you can bring to this movement?
[00:14:43] What are the kind of skills or the voice, or the expertise, maybe the lived experience that you might have of human rights violations. What is it that you might wanna bring to this? And starting there, because the pathways to being part of this movement are really endless. They’re open to you whether you wanna make it your full-time job or whether you wanna make it your full-time passion or whether it’s both for you.
[00:15:08] But I feel like the logical starting point place is to think about, who are you and who do you wanna be in this space? And a lot can then come from there.
[00:15:18] Dr MIranda Melcher: So similar question, but I’m gonna guess not a super similar answer. What is the role of states in improving access to justice in this system?
[00:15:30] Liz Evenson: Yes, I wish I could say I’d like states to reflect deeply as to whether their primary contribution will be poetry, or financial, but no. Yeah. What is the role of states? I mean, I think access to justice is not unique in the human rights movement because pretty much by definition, you know, human rights are things that states have to act to guarantee.
[00:15:51] But in some ways, the justice system goes to the heart of what a state does because it’s the exercise on the one hand of its enforcement power. So unfortunately, the misuse of that enforcement power can cause human rights violations and on the other hand, it’s the justice system that allows victims to access remedies and allows the state to protect human rights in other ways. So that role is just through and through – from having in place systems nationally that aren’t, you know, non-discriminatory, permit victims to have access to justice, protect also the fair trial rights of defendants – we’re talking about criminal processes.
[00:16:28] And then internationally to support and cooperate with, you know, we haven’t talked about the fact that something like international criminal court doesn’t have its own police force. So it can issue arrest warrants and it can give them a lot of attention, but it needs to rely on the enforcement powers of states to actually secure the arrest of someone who then can stand trial before the International Criminal Court and give victims their day in court.
[00:16:55] So there are just so many responsibilities that go back to states. And that’s again why actually the role of NGOs, of pushing states to live up to their commitments and live up to this promise of accountability is, you know, that’s why so much of our focus is in fact on states.
[00:17:12] Dr MIranda Melcher: That makes a lot of sense. And maybe someday we’ll be in a place where we can ask states to think about whether they want to contribute as poets or visual artists or some other mechanism. But, you know, maybe that’s what all of our pushing as NGOs will eventually allow us to be able to do.
[00:17:27] Until then, however, I do have one final question for you, with two parts: in the course of your career and your work on these issues, could you maybe tell us about some of the more worrying developments and things you’ve seen over that time, maybe that we’re looking to address now? But then maybe to end on a happier note, some of the more promising developments we’ve also seen or you’ve also seen during that time.
[00:17:53] Liz Evenson: I’m glad you’ve asked both parts of that question. It can be really easy to focus on the worrying parts and I probably spend a lot of time thinking about the worrying parts. You know, it’s interesting for me because I started working on the International Criminal Court in 2008 and at that time it felt like this was already like a system that was fully in place. And now I look back on it and that was only five years actually after the court opened its doors and I think the first trial was starting or hadn’t even started and now, you know, 15 years later, the system is still one that’s in progress and still developing.
[00:18:33] But I guess I say all that to say I feel still like a newcomer to this field and therefore hard to spot trends, and yet I have to admit that the years are mounting and so when I look over those years, I think what I find worrying of course, is the fact that there is such a proliferation around the globe of these crimes being committed.
[00:18:56] I’m really, really, very moved still by the preamble to the Rome statute, to the court’s treaty, which talks about this as being a project for future generations. This is a project to try to prevent these crimes through criminal accountability.
[00:19:09] It’s not a prevention mechanism, it’s not an early warning system for atrocity prevention, but, Idea was that by there being consequences or the prospect of consequences for these crimes, that future generations may be protected. And I think when we see what’s happening in the world in so many different places, that is a real challenge.
[00:19:32] You know, it’s a system that is probably needed more than people might have thought in 1998, in that particular moment in world history, and I’ve talked to people who were involved in the Rome conference, including my colleagues at Human Rights Watch, and there was a question of would this be a court without any cases?
[00:19:52] What are we gonna need? We’ve just come through the horrors of Rwanda and the horrors of the former Yugoslavia. Hopefully we’re at the beginning of a new page in history where we won’t really even need this court. And sadly we do, you know, we really do need the court.
[00:20:07] And so it’s worrying in terms of the human cost and it’s also worrying in terms of how do you build a system that can be responsive in all the ways we want it to be: to be meaningful and to have an impact and ultimately to send out a preventative impulse in some way when it’s grappling with so many important situations all at the same time. So that’s worrying.
[00:20:29] I think what’s promising and really, I don’t know if I should say why I do this work, but definitely the best part of this work, is meeting people that want the system to work and are willing to do so much to make it work.
[00:20:47] So I guess I should say people that really are working day in, day out for the recognition that kind of comes through a justice process of the harms that have happened to somebody and can be part of restoring some dignity by saying what happened to you matters so much that we’re actually gonna try to hold someone accountable for it.
[00:21:08] And those people come in all different stripes, so of course I think first of all of NGO colleagues, who are really working on the front lines of this movement and oftentimes suffering personal attacks and threats for the fact that they are speaking up for justice.
[00:21:25] But these people are also state representatives, and academics, and journalists, there’s a lot of people out there that believe deeply in the right of victims to access justice and are just every day trying to bring their best ideas and thinking to this. And so, you know, that gives a lot of hope, even in the face of this kind of, worry global picture that we find ourselves in.
[00:21:49] Dr MIranda Melcher: What a wonderful note to end on. Thank you!
[00:21:54] Liz Evenson: Thank you! My pleasure, being here!
[00:21:57] Dr MIranda Melcher: Thank you, Liz, for speaking with us on these episodes. Stay tuned for future Just Access interviews and get in touch if you have any suggestions for people or topics we should cover.