Question: You served as Special Assistant and Legal Officer to President Rosalyn Higgins of the ICJ. What did you gain from this experience?

Answer: I have to say that until now this experience has been the highlight of my international law career. While I was at the Court, I was lucky to see the progress of 15 cases from the institution of the proceedings to the delivery of the judgment. That was a wonderful insight that certainly informs my own practice now as a counsel and an advocate who appears before the Court. It was a very special experience to gain an insight into the working of the Court and also to see President Higgins in that role. She is obviously hugely successful and respected in international law with an outstanding reputation, but what I really appreciated was her human side. It was instructive to see the person at the top of the principal judicial organ of the UN, treat everyone with kindness, to make a genuine connection to people from all backgrounds, and to maintain interests outside of the law. She was, and is , a wonderful mentor.

Question: The Human Rights Council has decided to establish a Commission of Inquiry to look into the violations that have stemmed up from the Russian aggression in Ukraine which has been supported by the European Union. How else can International organizations act in order to prevent war situations faster and lessen their ramifications?

Answer: A lot of international activity has taken place since 24 February 2022. We have had the ICJ ordering Russia to suspend military operations in Ukraine; an order that has not been respected. We have had interim measures issued by the European Court of Human Rights, and expanded on two occasions. We have had a General Assembly Resolution with 141 states condemning Russian aggression. We have seen the fastest and most comprehensive response to an act of aggression by the international community compared to past events. Even so, we have also seen the weaknesses of our international institutions. We have seen the UN Security Council unable to act under Chapter VII because of the veto of the Russian Federation. That also has ramifications for the ICC because potentially it could have had jurisdiction over individuals via a Security Council referral to the ICC, but that is not possible. Technically, the provisional order of the ICJ, which is not being  respected by Russia at the moment, could be put before the Security Council for action  – but again the veto is blocking this route. We have an international political system that was designed nearly 8 decades ago and it is showing its inability to act in certain situations. This calls  for a reconsideration of our institutions. Are they fit for purpose? Do changes need to be made? Change would be very difficult because the veto is built into the UN system, but is there more that other UN principal organs or regional organisations can do? Is there more that coalitions of states can do? Is there more that national jurisdictions can do exercising universal jurisdiction? What about the role of civil society?

We need not be too discouraged by the weaknesses that have been exposed in the international system – we should use it as a motivation to deploy all the tools that we have. What I hope is that we are able to maintain and increase international action and not fall back into old patterns. This is the moment for international lawyers or any committed citizen of the international community to push for a better system.

Question: What message would you like to give to young women who are climbing up or aspire to step on the ladder for a career in public international law?

Answer: The first message I would say is go for it! It is a fascinating and important area of law.  Recent events have shown us how important international law is and how much work is left to be done. We need the next generation and their energy and ideas to help make changes. I tell my students that international law is a winding path and you have to be comfortable with some uncertainty about where your next position is coming from, where you have to move next, who your colleagues might be. It is not predictable like a commercial law path where you have clear timelines and steps to take until you retire. I think it is inspiring that an international law career does not require you to tick the right box. If you did not go to a particular university or you did not do that particular clerkship, you can still pursue this path. But you have to accept that it is a winding path, so always make the best first impression you can and be open to a bit of adventure along the way! 

Philippa Webb Professor of Public International Law and Director of the Centre for International Governance and Dispute Resolution (CIGAD) at King’s College London. She joined The Dickson Poon School of Law in 2012 after a decade in international legal practice.

Professor Webb holds a doctorate (JSD) and an LLM from Yale Law School. She obtained the University Medal in her LLB and the University Medal and First Class Honours in her BA (Asian Studies), both of which were awarded by the University of New South Wales in Australia.

She has extensive experience in international courts and tribunals. She served as the Special Assistant and Legal Officer to Judge Rosalyn Higgins GBE QC during her Presidency of the International Court of Justice (2006-2009) and, prior to that, as the Judicial Clerk to Judges Higgins and Owada (2004-2005). She was the Associate Legal Adviser to the Chief Prosecutor at the International Criminal Court (2005-2006) and an Associate Officer at United Nations Headquarters (2001-2003).

Question: How did you stumble upon Public International Law and what factors helped you decide that it would become your field of study and foundation of your profession? How much difference has international exposure made in terms of your work?

Answer: “Stumble” is indeed the correct verb to describe how I ventured into public international law. Like many Australians, I come from a multi-cultural background. My mother is from Philippines and my father is from New Zealand. They met in Australia during their university studies and I was born in Sydney. We used to travel a lot in my childhood so I grew up with a sense of the world and a keen interest in other countries and cultures. For some reason when I was looking at my law school and subjects, I thought that International Law would be a good fit. When I studied it during my undergraduate degree, I loved it. I found it fascinating. I love the interaction between international law and politics and it led me to undertake an internship with the United Nations Headquarters in New York which also confirmed my interest in international institutions, and led me to specialize in international law. I ended up undertaking an LLM and a JSD (Doctorate) in Public International Law at Yale Law School. So, it started off as a fairly random elective choice and became my field of study and the direction of my career. I left Australia around 22 years ago and I have lived in Tokyo, Kyoto, New York, The Hague, Paris, London, and Oxford: this was sometimes driven by personal factors but always for international law opportunities as well. Living in these different countries has helped in terms of building a network, learning languages, understanding different approaches to questions of international law, and for enhancing cross-cultural understanding. 

Question: Which public international law case that you have worked on in your career has been the most professionally stimulating one?

Answer: I have two cases that I would like to mention. The first one is quite a classic one; it was the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) at the ICJ where I worked as the Special Assistant and Legal Officer to President Rosalyn Higgins. It was a special case in many ways. It was Judge Higgins’ first case presiding as President of the Court. It was a very significant case concerning allegations of genocide by one state against another. There were six weeks of hearing, which is unusual for the ICJ. It was a very intensive  process of deliberation. I gained a number of insights. First of all, it showed me the evolution in the work of the ICJ. The traditional view is that the ICJ is there for territorial and maritime delimitation, but increasingly – as with with Ukraine v Russia, another case under the Genocide Convention –  the Court is being asked about alleged massive human rights violations. The Court is being looked to as a guiding light for how states should fulfil their responsibilities and be held accountable. I think the Bosnian Genocide judgment was a significant milestone in that evolution, but it also showed the limits of the Court’s jurisdiction because there was clearly evidence of crimes against humanity and other mass atrocities, but the Court was only able to decide the case in relation to the allegations of genocide. Sometimes the limitations on the Court are hard for the general public to understand: they see all this evidence of human rights violations, but then the Court decides that there was one instance of genocide and the requisite specific intent was lacking for other incidents. It was also a significant case for me because it was fact-heavy. There were live witnesses and reams of evidence. There was also an interesting interaction between the ICJ and the Yugoslav Tribunal. In sum, I think the case confirmed the challenges facing the ICJ, but also demonstrated its ability to be a real leader in this field.

As regards the second case:  international law crops up in domestic courts all the time, so when we think of “international law cases”, it does not necessarily mean only ICJ or ICC cases. I have been working on a case for four years concerning allegations of human trafficking, forced labour and domestic servitude of a migrant domestic servant in London. I have been representing the domestic worker in her case against the diplomat who employed her. On the one hand, it is a simple employment law claim. She is claiming that she was not paid properly, not treated properly and that her contract was breached. But on the other hand, it is a test case for the scope of diplomatic immunity in international law, specifically the question of whether human trafficking, forced labour and domestic servitude can fall within the exception in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations that pertains to a “commercial activity” outside of the diplomat’s functions. That case was heard in October 2021 by the UK Supreme Court and I hope that the eventual judgment will be one that advances justice.

Question: Covid- 19 has impacted international law litigation. What kind of incorporations/ reforms can be advantageous for International Courts so that a pandemic does not affect its working?

Answer: The impact of the pandemic has been interesting because in recent years there had been discussions about making courts more flexible, introducing technology to facilitate their work, perhaps allowing video conferencing when it was appropriate for either defendants or witnesses, but it had been a very slow progress. Then, suddenly we had a massive two-year experiment in virtual hearings forced upon us and courts had to adapt. I have to say the ICJ, the court I know best, is a very traditional court as the UN’s principal judicial organ, but it adapted surprisingly quickly. It quickly arranged to hold remote and hybrid hearings. Within three months of the pandemic, it had issued news rules that permitted not only the parties attending remotely but also the judges participating remotely. It also worked to maintain, the principle of open justice and to accommodate different time zones. The Court has continued to be able to deliver judgements and decisions that help resolve inter-state disputes, without building up a backlog. Of course, now we are thinking about which adaptations we keep as the pandemic wanes. Especially for the ICJ, there are advantages to in person hearings. These are cases of great significance to the parties. There are often diplomatic elements. It may be helpful to the parties to be meeting in person in the corridors of the Peace Palace, to be seeing each other to diffuse the tensions. This may militate in favour of maximising in person presence for ICJ cases. However, I think it may be helpful to retain some flexibility for when states or certain participants need to attend remotely. Another simple but practical change that I hope the court will consider is electronic filing of pleadings because typically it requires the delivery of 125 hard copies of the pleading to the Peace Palace. Many of these pleadings are hundreds of pages. It would facilitate matters on the parties’ sides, at least, if emailing the pleadings was an option.

to be continued…

Question: Do you think a permanent suspension of any influential person’s social media account is the ultimate solution for tackling online hate speech?

Answer: I’ll reply as if you’d asked about dangerous speech, since hate speech is a vague and contested term, and some hate speech isn’t dangerous. The only ultimate solution for tackling online dangerous speech, or offline dangerous speech for that matter, is to convince people not to be interested in it. If people lose interest, the speech loses its power.  

Here it’s important to realize that when we refer to “freedom of speech” or expression, what we really mean isn’t the freedom merely to speak, say in the shower or in the woods. It’s the opportunity to get someone else to hear or read you. I use the term “freedom of reach.”

It’s hard to persuade people to lose interest in what an influential person has to say even when that person is spreading harmful lies, but it’s not impossible especially if other influential people work at it. We need much more of that, as I argued in a recent oped. Meanwhile, an interim solution is to limit the freedom of reach of influential people by suspending their accounts. There are many other possibilities, such as downranking their content which would limit their reach without taking down their accounts.

Question: What kind of measures can social media platforms take in order to tackle the menace of hate speech in today’s volatile world?

Answer: The most obvious and most-discussed response is to attempt to detect hate speech and take it down. To do this at scale, you’ve got to detect hate speech automatically, with software, and that’s very difficult since hate speech is hard to define consistently as I mentioned above. Even content that is clearly hateful is often expressed in idiosyncratic, subtle ways (like mocking the way another group of people talk), and it’s highly context-dependent. For example it can be difficult to distinguish someone expressing racism, from someone calling out someone else’s racism. Also platforms operate in dozens of languages. All this makes me worry that detecting and taking down hate speech automatically would lead to overbroad censorship, so takedown decisions should be made or at least reviewed by people, and there should be some form of oversight of the platforms’ enforcement of their own rules, at scale. (This is not at all what Facebook’s new Oversight Board is doing. It is reviewing only a few dozen cases a year; Facebook implements millions of decisions every week).

Platforms can take many other measures, such as detecting and removing bots that produce hate speech, banning accounts that persistently spread hate speech, requiring users to verify their identities, attempting to reform users who post hate speech (with a variety of behavioral interventions), providing users with blocking and filtering tools so they don’t see hate speech or other objectionable content, limiting the reach of hate speech that the platform chooses not to take down entirely, prioritizing hate speech that seems to bring about specific kinds of harm that the platforms (and especially relevant groups of its users!) decide to prevent, making it easier for users to understand platform rules and to report hate speech, and many more.

Question: The Internet has also turned into an unsafe place for women. What kind of steps should social media companies take to address the issue?” 

Answer: Yes, the Internet is unsafe for many women in different ways, and responses must be tailored for each of those. For this large topic I’ll first point you to a brilliant book filled with important ideas: Danielle Citron’s Hate Crimes in Cyberspace. Danielle describes a variety of attacks on women and argues for better laws to protect women, including civil rights laws, since as she argues persuasively, online attacks often violate civil rights.

It’s useful to distinguish between attacks on women as individuals, (like nonconsensual publication of intimate images by their former partners) and attacks on women as members of groups (such as women journalists, who often face relentless harassment and threats because they dare, as women, to do certain kinds of work.

Regarding attacks on women as individuals, almost every U.S. state now has laws against cyberbullying and cyberstalking. Platforms should work with government to enforce such laws, and to crack down on perpetrators where laws or law enforcement are absent. This is bound to be inadequate, but it’s better than nothing. Regarding attacks on women as a group, platforms should count gender as a protected group when it’s the basis for attacks on them, and pay special attention to groups of women who are frequently attacked, like political candidates, journalists, women of color, and overlapping categories of those.

There are also some civil society efforts that can’t take the place of law enforcement, but that can help to make some progress toward preventing harassment, by raising awareness. An interesting one is a video about harassment of women journalists who write about sports, called More Than Mean. In the video, women sportswriters sit and listen while men who volunteered for the project read aloud harassing messages that the women have already received online. The male volunteers have not seen the messages before, and they become increasingly uncomfortable at the profanity and viciousness of them, while the women nod knowingly.

Susan Benesch is an American journalist and scholar of speech who is known for founding the Dangerous Speech Project. She is a free speech advocate, recommending the use of counter speech rather than censorship to delegitimize harmful speech. She earned a JD at Yale in 2001 and a LLM from Georgetown University Law Center in 2008. She also worked for Amnesty International and Human Rights First, and is currently faculty associate of Berkman Klein Center for Internet and Society at Harvard University. I thank her for providing her valuable insight into my questions. 

Question: What interested you to study speech that inspires violence among people? Any personal experience that you would like to share?

Answer: I started out as a journalist, and worked in Latin America and Haiti when many thousands of people were murdered there for their beliefs or identities. Hoping to prevent other killings I wrote about them, but came to believe that as a journalist I was mainly a spectator. So, I became a human rights lawyer.  Working at the International Criminal Tribunal for the Former Yugoslavia (ICTY) while still a law student, I read witness statements describing brutality so awful that it stunned me in spite of what I had seen as a journalist, and although many of my relatives, including my father’s parents and his brother and nearly all my mother’s family, were murdered in an attempt at genocide. I have never stopped wondering how and why humans can do such things to each other, nor wanting to prevent it.

It isn’t normal; something must change people’s minds and behavior so that they’re able or even eager to embrace terrible violence. I became interested in speech as a catalyst for intergroup violence while in law school, and wrote a paper on incitement to genocide. Later during a fellowship at Georgetown University’s law school, I did more research and hatched the idea that certain kinds of rhetoric have special power to convince people to condone or commit violence against members of another group. If that kind of speech is a precursor to intergroup violence, or even a prerequisite, this offers new possibilities for preventing violence. I have been working on that idea for nearly a decade.

Question: What are the key parameters to adjudge that a certain speech is a hate speech or a dangerous speech?

Answer: Those are overlapping categories.

Judging that a particular speech act is hate speech is more difficult, since there’s no consensus definition of hate speech, either in law or in colloquial use. (Most bodies of law, including international law, do not codify hate speech at all.)

There is one common thread among definitions of hate speech: that it demeans or attacks people based on a shared identity of some kind, so “I hate you” isn’t hate speech. Definitions vary by including different types of  groups. Most list familiar protected categories from international human rights law like religion, ethnicity, and nationality, but others like age, caste, immigration status, sexual orientation, disability, and gender are in some definitions but not others. The United Nations has recently produced a new definition of hate speech that wisely uses a non-inclusive list of group identities, but it sets a very low and perhaps subjective bar for what counts as hate speech, by using the word “pejorative.” Here’s the definition: “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”

In sum, in all too many cases hate speech is explicit, vicious, and obvious, but the category’s boundaries are hard to define and are often subjective.

Dangerous speech (as I have defined it) is a smaller, more clearly bounded category. it is any kind of human expression that can make intergroup violence more likely by lowering normal social barriers against it. The most useful emotion for making people condone or commit violence against other people isn’t hate, it’s fear. (This has been amply demonstrated by neurobiology. For more on this, see Robert Sapolsky’s invaluable and very readable book Behave: The Biology of Humans at our Best and Worst.) Dangerous speech convinces people to fear another group of people intensely.

There are a few specific ways to do this, as it turns out, so the same rhetorical moves recur in the speech of malevolent leaders in the months and years before genocide or other mass violence. Because of these “hallmarks” of dangerous speech, it’s uncanny how similar it is from case to case, across countries, cultures, and historical periods.

The most familiar hallmark is dehumanization. The most destructive one may well be “accusation in a mirror” – telling your own group that another group is planning to attack or even annihilate them, when in fact you as a leader want your group to attack the others. Dehumanization can make killing seem acceptable; accusation in a mirror makes it seem necessary – and even virtuous, as the scholar Jonathan Leader Maynard has described.

A hallmark isn’t enough to identify dangerous speech, though, since I could say something dehumanizing about a group of people to you and it wouldn’t lower the likelihood that you will condone or commit violence against that group – because you’re not at all receptive to the message. Whether speech is dangerous depends on the context in which it is spread: whether the audience is receptive, whether the speaker is influential with that audience, and so on. I’ve identified five elements of context: the speaker, the audience, the message, the means of dissemination, and the social and historical context. To judge whether a particular act of speech is dangerous you ask questions regarding those elements. Then, based on your answers, you predict whether the speech will make other people more likely to condone or commit violence.  It’s a guess, but a systematic, educated one.

Question: Are there any legal statutes or guidelines regarding hate speech in International Law? If no, would you suggest that such provisions should be introduced?

Answer: No, international law doesn’t codify hate speech. Two human rights treaties – the ICCPR and the ICERD – have provisions related to hate speech. The ICCPR requires that states prohibit only two kinds of speech. One is propaganda for war and the other is “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” (ICCPR. Art 20(2) ) The latter seems to be both broader and narrower than the category “hate speech,” in different respects. In any case it is confusing and has not been adequately interpreted. Not surprisingly, it hasn’t been incorporated into municipal laws.

I would strongly oppose introducing a provision against hate speech in international law, at least until Art 20(2) is clarified, and until the treaty bodies explain how to reconcile the speech provisions of the ICCPR and ICERD in some detail. Until now they have simply declared that the two must not conflict; that’s insufficient for policymaking.

to be continued…

Sital Kalantry is the Clinical Professor of Law at Cornell Law School where she founded the International Human Rights Clinic and co-founded the Avon Global Center for Women & Justice. She writes in the fields of comparative feminist legal theory, international human rights, and empirical studies of courts. Her works have appeared in the Stanford Journal of International Law, Georgetown Journal of International Affairs, Cornell Journal of Public Policy to name a few. Her opinion pieces have been published in the New York Times, Slate, the New York Daily News and various other newspapers. We want to thank Sital for all the work and efforts she has contributed to INTLAWGRRLS over the past several years through this farewell post. I had the honor of interviewing her. The interview is transcribed below.

Question: You have written expansively about Women’s Human Rights. What drives you to focus on issues such as Acid Attack Violence, Domestic Violence, Sex-Selective Abortion Bans etc.?

Answer: I have always been interested in gender inequality since a very young age. One of the biggest influences for me were some feminist classes that I took as an undergraduate student at Cornell University. Taking those classes helped me see the world through a lens where one could identify inequality and problems on gender issues. I also had an interest in these aspects because I was born in India and travelled India significantly as I was growing up. Visiting my relatives gave me a new culture. It helped me observe the different kinds of inequalities that are present. I witnessed that there is a difference in the inequality that takes place in India and the United States. This gave me further interest to seeing ways where I might be able to help by solving and rectifying some inequalities.

Question: Your book “Women’s Human Rights and Migration” mentions about the practice of sex- selective abortion and how it violates women’s human rights. This contradicts with the concept of exercising reproductive rights as guaranteed as mentioned in Roe v. Wade. What do you think about this contradiction?

Answer: My thesis in the book is that we cannot have universal solution to gender rights or inequality. In some cases, we have to contextualize the law. There are a number of feminist scholars/ activists in the United States who oppose restrictions on abortion in any way, shape or form. They particularly oppose it because there is a restriction or ban on abortion. In India, feminists initially thought that they have to restrict it because it is being used in a way that is discriminatory to women when female fetuses are being aborted proactively and disproportionately in comparison to male fetuses. My thesis is that each country has its own understanding and there is a different law to have different reasons, goals and consequences from gender inequality’s perspective. So, we need to emphasis more one the contextualized view. When I observe the laws related to abortion in the United States, I think about the scope of the problem. Do we actually have the same magnitude of a problem in the United States as it is in India? And the answer is that we don’t. What are the obstacles which make it more difficult for the women in India? Do they have to sign papers or are they asked questions? Looking at the US perspective, there is no benefit to having this law in terms of equality purposes. In the Indian perspective, it works as a balancing check. Even when considering reproductive rights, you are balancing the interests of the women and the state interest. There is a valid reason why abortion does not take place a few days before the due date. So, there is a balancing that people have to do in India and they have to do it in a different way. After twenty years of experience of Pre- Conception and Pre- Natal Diagnostic Techniques Act (PCPNDT), we need to think whether the law is actually working or not. We need to see the positive and negative consequences of this law. There are different factors to consider and that is how I understand it completely.

Question: You have voiced your insights regarding the gender parity in Courts. What difference do you see when considering the Indian and US Courts in terms of gender parity?

Answer: When you look at the numbers of the Indian Supreme Court and the US Supreme Court and take the number of women as the percentage of the total number of judges, it is actually very similar which is less than 5 percent in both countries. The only difference is that in India, there are thirty judges with one woman and at times, they have two women. Currently in the US Supreme Court, it looks like the US Supreme Court has more which is 3 out of 9 i.e. 33 percent. But over time, it is the same. I feel that when we look at the lower courts in the US, the number of female judges has increased over time up to 20-25 percent but in India, the Supreme Court doesn’t seem to be focused on the gender issue. India is based on quotas and equalities but as observed in the Indian Supreme Court and High Court, the judges appoint the other judges and they are not subjected to any observation. I think this is the reason why the progress for gender equality in the Courts is stalled in India.

Question: What are some of the most memorable key findings of your scholarship in terms of women human rights till now? It could be related to domestic violence, sexual violence, acid attacks against women, human trafficking or any other issue that you have researched closely on.

Answer: It is a tough and broad question to summarize but I think that in the context of surrogacy which happens in India and the United States, I realized that it is important to look at the problems in each country. Based on these observations, one can solve these problems on the basis of the dynamics between the surrogacy and the intense trials of each country. Legislation should be adopted on the basis of the social or historical context within the country. In terms of the study, we frame it as a gender violence issue and can think of it as pick-pocketing, murder or battery but this crime is motivated towards women because of their gender. Often in India, it is perpetrated by men so we did data collection on who the perpetrators are. So, we often think of it specifically as a gender crime.

Question: Your scholarship provides a lot of fodder for the policy makers concerning the rights of women and girls. There must be instances where your work has made readers think about practically putting your ideas into use. Would you please share any such instances?

Answer: Students have been really instrumental in the human rights work that is being done and students have put together research that is done under my direction. This research has been cited at the Indian Supreme Court in the Acid Attack case. The Report on Surrogacy Law has been put forth in the Indian Parliament. It has been cited in many newspapers like The New York Times and various others. I think there has been real policy work related to gender issues with advocacy work. I try to combine data, empirical work and scholarship with activism. I think activists on the ground should open up and engage in certain depth of work and scholars are not speaking policy but are typically writing within their own fields. So, my call is to bridge the scholarship and policy gap.

Question: Lastly, how was your experience working as an Editor for the blog?

Answer: I have been editing the blog for seven years. I have enjoyed getting to know so many inspiring women. I particularly enjoyed it when people thanked me for my editorial comments.