Interview with Professor Mark Drumbl (Part-1)

Professor Mark Drumbl serves as Director of the Transnational Law Institute of Washington and Lee University, USA. He has held visiting appointments and has taught at Queen’s University Belfast, Oxford University (University College), Université de Paris (Panthéon- Assas), VU Amsterdam, and various other prestigious universities throughout the globe. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process. Professor Drumbl’s articles have appeared in the NYU, Michigan, Northwestern, George Washington, Tulane, and North Carolina law reviews, many peer-review journals, including Human Rights Quarterly, with shorter pieces in the American Journal of International Law and numerous other periodicals.

Professor Drumbl’s first book, Atrocity, Punishment, and International Law, which was published by Cambridge University Press, has received critical acclaim. Later on, he went on to write or edit two more books titled Reimagining Child Soldiers in International Law and Policy (OUP) and Research Handbook on Child Soldiers (Edward Elgar Press) in 2012 and 2019 respectively. He is co-authoring a book on informers and transitional justice to be published by Oxford University Press in 2022. His work on Rwanda has been reviewed as “exemplary” in its treatment of “the possibilities of the coexistence of victims and survivors within the same society after the event” by the Times Literary Supplement in its Learned Journals review.

I had the honor of interviewing him. I thank him for the interesting conversation that touched upon various topics from child soldiers to ecocide. The transcribed version of the interview is available below.

1.What interested you to take up international law as your study in college times?

When I was an undergraduate student, I studied political science and philosophy. Then, I did some graduate work in comparative politics; and, from then, I went on to law school. Actually, when I was in law school, I did not take many public international law classes. I took corporate and business law classes. Then I worked for a number of years at large law firms doing arbitration and corporate law work in New York and Toronto. In that context, I specifically developed an interest in transnational and international disputes and arrangements. One coincidence that occurred – I had an opportunity to work on a pro bono file that involved investigations of wrongdoing by the Canadian Army and peacekeepers. In peacekeeping work, the Canadians were implicated in the United Nations’ mission in Somalia, which led to a major public enquiry and I along with the senior partner of the firm I was working at became involved with that. It related to questions of war crimes and peacekeepers. At that point, I became quite interested in the role of law and public enquiries as a deterrent to human rights abuses.

During my work as a practitioner, I decided to pursue the goal of becoming a professor. When I started my doctoral work at Columbia University, I was interested in international economic law. I actually started off on that note. By absolute coincidence and serendipity, I unexpectedly had a last second opportunity to go to Rwanda and do defense work in genocide trials several years after the genocide against the Tutsi. I jumped at the opportunity at the last second, took time off from my graduate work and went to Rwanda. When I arrived there, I was so excited about how proper criminal trials could encourage processes of national reconciliation. I had about 250 clients while working in Rwanda, and I left with a much deeper sense of skepticism about the potential and possibility of international criminal law. I came back to New York and wrote an article based on my experience. I found it so gripping to write that piece that I changed the entire focus of my doctoral programme to international criminal law. Two decades later, I work and teach in the same field. That interest stuck for me. The bottom line is that a completely serendipitous opportunity presented and re-routed all my interest. Hence, I highly recommend younger folks to be very open to coincidences and randomness because sometimes things ‘just happen.’

2. What were your thoughts after reading the Ongwen judgment? Were there instances in the judgment that could have been reconsidered in terms of the sentencing or any other aspect?

One of my major academic interests for many years has been to think about the role of ordinary people, compromised people, and victims who despite their victim status – their meekness and weakness – in turn may come to victimize others. In other words: how to speak of ordinary people who inflict tremendous pain on others? That has led me to a sustained academic interest to these kinds of characters such as very low-level perpetrators in Rwanda, child soldiers, collaborators and informers to name a few. All this brings me to Ongwen and my interest in that trial. For me, Ongwen comes under the category of victims who victimize. Ongwen was probably nine years old, kidnapped on his way from school into the LRA, brutalized and beaten. He was socialized into one of the most violent organizations and it is heartbreaking to say that his deployment of violence was a skill that he developed so as to not only survive in the LRA but also thrive as he rose to a high-level position of Brigadier Commander. Throughout his journey in the LRA, he moved from a powerless victim to a powerful victimizer. Just the other day, the ICC sentenced him to twenty-five years’ imprisonment.

When I think about the criminal process against him, what I see and think to some extent is an individual scarred by his socialization into violence as a young boy — how does that figure or compute in conversations about this criminal responsibility? My main reaction after the Ongwen trial is that the criminal process does not deal well with these tragic, imperfect victims. The prosecution vastly overstates his free will, his intentionality and tends to downplay his socialization. The defense overstates his infirmity, weakness and malleability. In the Ongwen trial, the prosecutorial narrative dominated and he was presented as one of the most serious persons responsible for tremendous violence. My major concern is if law is going to deal with an enormous condition precedent to mass atrocity, namely the involvement of tragic figures such as Ongwen, I think we have to have a more candid conversation about the actuality of the perpetrator. I also think we need to have a more candid conversation about the imperfect nature of the ICC and the act of prosecuting. Ongwen would never have been prosecuted unless the prosecution skirted the violence of the Ugandan Government. The ICC has seemed to develop a specialty of prosecuting mid-level rebel leaders whose rebellions fail against governments. I cannot help but wonder whether international criminal law would do better and be more inclusive and effective if we recognized all around that those who deliver justice sometimes have to compromise and those who inflict tremendous pain may themselves be compromised souls.

3. Do you think transitional justice should be considered as important as prosecuting and imprisoning the accused in the international justice system? How much progress have we made towards the same?

I have long believed that mechanisms other than criminal trials are crucial. Truth commissions, commemorations, local ceremonies, education, constitutional reforms and so on. I think all of those can serve transformative goals. Unfortunately, I think the dominating narrative of international criminal justice and accountability has actually    become colonized by the courtroom and adversarialism. I think that process needs to become more inclusive of alternate mechanisms. While working on issues of abuse and gender, one thing that I have noticed is that societies in which international criminal trials have been brought as methods of post-conflict reconstruction are not necessarily more equitable, more inclusive, more embracing of cultures, juvenile rights, gender equality and equality such as that based on such as physical or perceived physical ability, identity, and I am left with a lingering sense that perhaps alternate justice mechanisms may not only deliver accountability for the past but may actually embed a more just society in the future. That is a very important goal to me.

To be continued…

Crowd-Funding for the ICC’s Trust Fund for Victims

Students enrolled in my Policy Lab at Stanford Law School on Legal & Policy Tools to Prevent giving-tuesdayAtrocities were asked to undertake a project dedicated to generating new ideas for funding international justice to ensure more stable funding streams for contemporary justice efforts.

The funding of international and hybrid courts has been a perennial challenge, and almost every ad hoc tribunal to date has gone over budget. (The Extraordinary African Chambers, which tried Hissène Habré has been the most economical to date). There is no question that the costs of international justice appear high, although not necessarily when compared to the cost of other international interventions in atrocity situations, such as peacekeeping missions, humanitarian relief efforts, and military action. The most stable source of funding available has come from U.N. assessed contributions, which enables burden-sharing and forward planning. As creatures of the Security Council, the ICTY and ICTR benefited from such U.N. funding.

Most modern hybrid tribunals, however, have depended on voluntary contributions, which has proven to be unsustainable in the long-run. Ambassador David Scheffer, U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials, has done a yeoman’s job of keeping the Extraordinary Chambers in the Courts of Cambodia in the black, but it hasn’t been easy. Over the years, the various tribunals and special chambers have been governed by different funding mechanisms and different budgetary arrangements with the host state. This is due in part to policy preferences but also to quasi-legal arguments about the availability of assessed contributions for independent entities with indirect United Nations involvement. Almost half of the funding for the Special Tribunal for Lebanon, for example, comes from Lebanon itself, which often teeters on the edge of being in arrears when domestic political support for the STL wanes.

My studealinant, Alina Utrata (left), and undergraduate at Stanford, took the lead on this project and developed a new crowd-funding platform dedicated to raising funds from people around the world for the International Criminal Court’s Trust Fund for Victims (TFV):  Go Fund Justice! Working with staff from the TFV, Alina built a website, created original content about the TFV, and launched a social media campaign in connection with Giving Tuesday.

 

This idea has great appeal; she has already reached 30% of her goal of raising $10,000.  Her explanation of this initiative is below:

Dear friends, family, and community members,

This year, on Tuesday, November 29, 2016, Go Fund Justice is participating in #GivingTuesday, a global day dedicated to giving. Last year, more than 45,000 organizations in 71 countries came together to celebrate #GivingTuesday.

Go Fund Justice is a crowd-funding initiative for the Trust Fund for Victims. The Trust Fund for Victims of the International Criminal Court is responsible for giving assistance and reparations to communities who have suffered from mass atrocities under the jurisdiction of the ICC.

That means they do things like things like providing prosthetic limbs and plastic surgery; trauma and counseling services; or vocational and financial training. Their work empowers victims to return to a dignified and contributory life within their communities. By focusing on healing the wounds caused by atrocities, the TFV hopes to foster a sustainable and long-lasting peace.

We hope that this Giving Tuesday you consider supporting Go Fund Justice. Even ten dollars can go a long way towards providing someone with a prosthetic limb or trauma counseling. You can also click here to hear about the experience of people who the Trust Fund for Victims has supported.

We also ask that you forward this information to just five members of your community. Spreading the word can help us make a difference! Click here to donate now to Go Fund Justice!