An expert on human rights law, Rebecca Hamilton is a Research Scholar and Lecturer at Columbia Law School. Prior to her work at Columbia, she was a Special Correspondent on Sudan for The Washington Post and a lawyer for the International Criminal Court (ICC). Here, she talks to 7Sage about her experiences as a joint JD-MPP student at Harvard Law School, her work at the ICC, and her thoughts on the ICC and present-day human rights concerns.
Can you talk about your time at Harvard Law School?
Harvard is like New York City in the sense that its size brings a lot of diversity.
I had an incredible time at the law school. I remember Dean Kagan telling us as 1Ls that Harvard is like New York City in the sense that its size brings a lot of diversity, and I found that to be true. You have a large number of classmates and so from among them you can find your own niche. I very much found my human rights niche there with a great human rights clinic that enabled me to do a lot of things that I was passionate about doing.
You did a joint JD-MPP degree. Is that something you’d recommend for students interested in international law?
I don’t think it’s necessary for people going into international law as a career, although any additional experience is invariably useful in whatever you do.
I don’t think it’s necessary for people going into international law as a career, although any additional experience is invariably useful in whatever you do. For me, it was a nice balance of subjects, and I liked having a very policy oriented focus in the mix. I was in the extremely privileged position of having a scholarship, but the costs are significantly higher when you do a double degree – both in terms of the tuition and the opportunity cost of another year out of the workforce – so I really advise people to think hard about whether it is worth them taking that extra burden on.
What were some of your most enjoyable classes, whether in your JD or MPP program?
But I made some great friends, and as a result I’ve now got friends who work on all sorts of areas of the law that I know absolutely nothing about, and that ends up being quite useful in daily life.
The law school’s human rights clinic was certainly a highlight. I also had fantastic seminar experiences in my third year with other students who were doing a joint public policy and law degree. What’s exciting at that point is you’re starting to build a core community that’s going to stay with you after law school and be part of your professional life. In your third year, you have more of your bearings and understand more of what’s going on whereas the first year is generally overwhelming.
Although I will say that my first year, I had a fantastic section. It’s a group of 50 students you do all your required classes with, and most of those people will never go near international law. But I made some great friends, and as a result I’ve now got friends who work on all sorts of areas of the law that I know absolutely nothing about, and that ends up being quite useful in daily life. People come to you, knowing you’re a lawyer, and say, “I’ve got this custody issue, can you help?” As an international lawyer I’m of no use to them, but at least I probably can find them someone who will be!
How did you initially become interested in international law?
I saw what a precarious situation refugees were in, legally.
Back in in Australia, I had worked with asylum seekers, and they seemed to have very minimal legal protections under refugee law. I saw what a precarious situation refugees were in, legally. Only after that did I learn about internally displaced persons (IDP). When you are an IDP, you are suffering persecution just like a refugee but you can’t actually cross the border and get away from the government that is persecuting you The end result is that you have no formal protection of international law because you are still stuck in your country. I couldn’t understand how this could be, and I was really interested in studying and understanding that, which led me to get interested in Sudan. It was a country, which at that moment (and this was pre-Iraq), had the largest number of internally displaced people. So I began working with IDPs there, and everything else flowed from that.
I know that you worked for the International Criminal Court (ICC) after graduating from law school. Can you talk about that experience?
It was a huge privilege to be working on cases of that scale so early in my career.
It was incredible to be at the ICC at such an early stage in its institutional development. I was really seeing it from the ground up. It was a huge privilege to be working on cases of that scale so early in my career. Just seeing what this radically new court on the international stage was trying to do and the reactions of states was an enormous education.
It was also frustrating—the degree of cooperation that the court was receiving was not as much as it needed to be, particularly with the Sudan situation. After an initial period, the court could no longer get investigator access to the situation at all.
Do you think the U.S. will be joining the ICC in the future?
I don’t think it’ll happen soon but the relationship between the U.S. and the ICC since the second term of the Bush administration has been one of constructive engagement, and I think that’s a pretty functional status quo. Still, I hope at a future point, the U.S. will ratify.
Fatou Bensouda became the ICC’s Chief Prosecutor to much fanfare in 2012. How has she been doing in this role?
I think her tenure needs to take on a different role from the first Prosecutor.
It’s too early in her tenure to make any assessment but I think it’s fantastic to have an African woman at the head of the Court. I think her tenure needs to take on a different role from the first Prosecutor. The role of the first Prosecutor was really to convince the world that this thing called the ICC could be viable and could be a player on the world stage, and that’s an important part of any new institution’s role. The role for the person who comes in after that is really about consolidation and showing that you can do the day-to-day operations and make the trials credible, both procedurally and substantively. That work happens farther removed from the spotlight. That’s the role she’s taking on.
Can you talk more about the article you wrote on the lack of capacity of domestic courts in states where ICC cases are pending?
So the root of the problem is that those domestic jurisdictions can’t – or wont’ - take on the cases themselves because if they could, then the ICC would not be in there at all.
It was in the context of this charge that the ICC is targeting African states, which, despite the over-representation of African cases, is misleading in the sense that most of those situations have been referred to the ICC by those African states themselves, or by the U.N. Security Council. But the bigger issue is that the ICC only gets involved when the domestic jurisdiction is unwilling or unable to do so. So the root of the problem is that those domestic jurisdictions can’t – or wont’ - take on the cases themselves because if they could, then the ICC would not be in there at all. So the question I had was whether these African leaders who are saying that the court is racist are trying to deflect attention from the debilitated state of their own domestic justice systems.
Information via the ICC
Is that the ultimate goal, to have domestic courts that can handle these types of cases?
Yes, in an ideal world, you wouldn’t need the ICC. In a truly ideal world, you wouldn’t need the ICC because none of these atrocities would be happening. But at the very least, justice is always best if it can be closer to the victims and survivors. So if domestic courts could be prosecuting these crimes, it would be a great result for everybody. But we need an ICC for as long as domestic jurisdictions are unable or unwilling to play that role.
How would we go about doing that, and is there a role for international law in that process?
I think we spend, as lawyers, a lot of the time looking at the legality of getting into situations and not nearly enough time thinking about the exit.
There’s a role for international actors. That’s a little bit of what you’ve seen in Yugoslavia with the ICTY taking on a coordinating role with other actors to help establish the ability to do war crimes trials in Bosnia for instance. It takes a sustained period of work. One of the papers I’m writing now is about how unless the ICC has an exit strategy in place in the situations that they are in, it’s hard to motivate these actors to think about how to get their own domestic systems ready to handle these crimes in the future because they think the ICC will do it. But the ICC should not be doing this on a permanent basis in any one country.
I think we spend, as lawyers, a lot of the time looking at the legality of getting into situations and not nearly enough time thinking about the exit. Yet we know from the perspective of people on the ground that the way exit is handled has a huge impact on long term outcomes.
You have and continue to work with civil society groups against mass atrocities and have significant experience on the ground. What is memorable or surprising about these on-the-ground interactions?
The resilience of people is always absolutely humbling. I’ve spent time with women who’ve experienced things that I feel like would completely destroy me, and yet they are making it work and doing the absolute best possible job for their kids. It gives one a good sense of perspective.
What areas in the world are you concerned about now for the potential of genocide?
South Sudan, where there is horrific violence. What started as a political conflict has escalated. There has been highly irresponsible leadership that has been fueling atrocities between different communities on the ground. But there is any number of places to be watching out for. Obviously, the moral stain that the world is facing with Syria, and similarly with Myanmar and the Central African Republic. And it seems that world leaders never have the bandwidth to deal with more than one crisis at once.
Are there lessons you wish you had known as a law student, or earlier on in your career?
You won’t remember 90% of the actual coursework that you learned but the relationships you make will last.
I think what shocks me still is the degree to which a J.D. opens doors into things even vastly outside of the law. It seems, in the U.S. context in particular, that the J.D. is a unique signal of credibility. I know my ability to work as a foreign correspondent in Sudan for instance was partly perception that well, she’s had that legal training and critical thinking instilled through the J.D. so we can trust her analytical abilities.
And the other is that they always tell you in law school, but that you don’t fully appreciate at the time, is that you learn the most from your colleagues. Turns out they’re right. You won’t remember 90% of the actual coursework that you learned but the relationships you make will last.
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