Influencing the Tide of International Law (in a Tiny, Tiny, Minuscule Way)

2016 Cooke FionaBy Fiona Cooke

I am now one week out from finishing my internship at Avocats sans frontières Canada in Québec City. Although one week isn’t really enough time to look back with any sort of objective perspective on my internship, I do feel able to draw a preliminary conclusion about my time at the organization, and the work that I did.

On the last day of my internship, I had a réunion de retroaction with the supervisor I worked most closely with. She asked me to offer my suggestions on what I felt they could do better, or what sort of things I didn’t like as much about the internship. What I said to her at the time was that I would have liked to have done more “practical” work. I can’t quite recall what inspired this criticism; I vaguely remember a fellow intern being assigned the task of researching the functioning of legal aid in Ontario, and I was envious of that seemingly fascinating assignment. I thought about some of the questions I had been posed – does the state, because of its legitimate monopoly on violence, maintain this monopoly in the context of an armed conflict to which IHL would apply? How does the ICC interact with human rights law, as a criminal court? Is there a justiceable right to peace in international law? These questions, while absolutely fascinating, all felt very theoretical – floating on some higher plane, divorced from context and individuals. I am so grateful for having been assigned them – I now have a much broader and more solid understanding of the various areas of international law, when they apply, and how they interact with each other. However, I didn’t feel like I had witnessed any way in which these areas of law had impacted real peoples’ lives. I remember thinking: my work is interesting to me, and useful to me – maybe not so useful for individual vulnerable people in Haiti, or Mali, or any of ASFC’s other countries in which it works. However, now, with a bit of distance, I’m better able to see the larger picture.

Colombia’s government and the FARC-EP rebels signed the Peace Agreement on June  23rd[1], a momentous occasion that everyone hopes will signal a significant and genuine step towards ending the conflict that has devastated Colombians for decades. The Peace Accord includes unique provisions that foresee punishments alternative to time in prison for the perpetrators of international crimes.[2] The questions on everyone’s mind were: 1) will this fulfill Colombia’s obligation under international law to punish perpetrators of these crimes? – because if it doesn’t, the ICC could step in, and 2) will this satisfy the victims’ right to justice? Are “restrictions of liberty” combined with acts of community service enough of a punishment? Is it a punishment at all? No international tribunals have ever given any punishment other than prison time. This is an innovative test case for restorative justice after international crimes, and the debate is fascinating.

When the accord was signed, ASFC released multiple data fact sheets, explaining the context of the agreement and what it included in terms of transitional justice for victims, as well as a its official evaluation of the peace agreement. While reading these fact sheets, one line struck me – it was a line that summed up the conclusion of one of my first memos I had written for my supervisor. Behind that one short sentence was 3 weeks of intense research, thinking, and learning on my part. It made me think about just how much human effort and passion goes into research by NGOs in order to make informed and careful statements or suggestions that will have an impact on real situations. The research that I had done, alone in my office, lost in the puzzle pieces that are IHL, IHRL, ICJ, and one hundred other initialisms, ended up informing ASFC’s official position on the new Colombian peace agreement. In the end, ASFC came out in cautious support of the agreement, provided its provisions were carried out with genuine intent to bring the perpetrators of crimes to justice. ASFC is an influential organization that others will look to to inform their own opinions, trusting the research that is behind this organizations’ conclusions. And opinions are the motor of international law, it seems – forming opinions will influence what direction the law actually takes. ASFC’s opinion is one of potentially multiple cautiously optimistic takes on the Colombian Peace Agreement that may, eventually, profoundly influence international criminal justice – moving its focus away from punishment and more towards reconciliation and rebuilding societies, and allowing for more flexibility in situations of conflict.

So, I see it now as a snowball effect – the tiny amount of contribution I made by way of my memo has its place in the larger role that NGOs play in international law in influencing both public opinion and the opinions of judges world-wide. That being said, I realize that the point of doing this work is not the personal gratification of seeing its effects in the real world – I just mean to say, there is indeed value in sitting alone in an office, wading through the morass that is international law – without these drops in the bucket, the larger waves would not materialize.


[1] “Colombia & FARC Agree to Ceasefire in Historic Peace Deal, Begin Long Process of Implementation” Democracy Now (23 June 2016), online: http://www.democracynow.org/2016/6/23/colombia_farc_agree_to_ceasefire_in

[2] Helen Murphy, “Colombia’s FARC may face alternative justice, not impunity” Reuters (5 September 2013), online: http://www.reuters.com/article/us-colombia-peace-interview-idUSBRE9840VZ20130905

Close to Home

2016 Cooke FionaBy Fiona Cooke

My first entry on this blog has turned out to be a lot more personal than I thought it would be. I didn’t expect to feel as emotionally engaged in my work as I did at certain points these past few months, researching at Avocats sans frontières Québec. Because I’m “only” in Québec City, not some exotic, faraway country, I secretly feared my experience would be somewhat less authentic, or carry less meaning – that I wouldn’t feel it.

However, I was starkly reminded with my second research assignment that Québec City is not so far away from big questions of human rights. The office is situated on Rue Saint Joseph Est, right in the middle of a neighbourhood that is undergoing significant gentrification. In the midst of places like Zara and Crudessence (an extremely delicious but ridiculously expensive raw vegan joint) are community kitchens and homeless shelters. People sleep on the benches lining the street on a backdrop of over-lit high fashion shops and overpriced coffee shops, where young people park themselves all day with their Macbooks.

The second research mandate I was given was to write about “Canada’s experience with transitional justice” for an upcoming forum that ASFC will hold in August on Transitional Justice. Canada’s experience is not typical – the “transition” is not referring to a regime change or exiting a time of conflict. However, its Truth and Reconciliation Commission, as well as the Indian Residential School Settlement Agreement, can be compared to similar settlements in approximately 40 other countries in the world.[1] Canada’s Commission was tasked with collecting the stories, experiences and truths of Aboriginal people all over the country who suffered through the Indian Residential System or its intergenerational effects.

The TRC is based on the principle that true reconciliation cannot come about in the absence of truth. In most transitional justice contexts, this means the right to know “the truth about the abuses they have suffered, including the identity of the perpetrators [and] the causes that gave rise to violations.”[2] In Canada, “truth” has meant more “truth-telling” by the survivors themselves – creating a record that collects their individual experiences so that the magnitude and severity of the violations can be accurately communicated. The TRC’s aim was to communicate to the Canadian public in general the truth of what happened to Aboriginal people in residential schools, and to promote an understanding of the intergenerational effects of this system. The idea is that this will be the first step in healing the relationship between Aboriginals and non-Aboriginals in Canada, along with an apology from the government individual payments as part of the Indian Residential School Survivor Settlement.

The Importance of Truth-Telling

Completing this mandate affected me in three very personal ways that I was not expecting. During the exact same two weeks during which I was working on this project, my own life felt like a microcosmic reflection of what I was reading about. Out of the blue, I received an apology for something that happened to me almost two decades ago, from the person who should have prevented it. It was a very sincere, genuine apology, that I believe came from a true place of regret in this person. However, despite this, I still didn’t feel like I could truly forgive or reconcile with him. While continuing my research at work, I realized why. One of the reasons was – he didn’t know the half of what I had gone through. How could he truly apologize when he doesn’t really know exactly what he’s apologizing for? I felt like, in some very small way, I understood the impulse that drove hundreds or thousands of Aboriginal people to tell their stories at the TRC events. The need to feel like suffering has been vindicated, recognized, completely acknowledged – it feels like an essential component of feeling like justice has been done. And I’m just not sure that the TRC had the exposure it needed – every single Canadian needs to read at least the Summary of the Final Report before society can truly transform in a way that will be conducive to righting the wrongs that have been perpetrated for so long.

Apologies

Another reason for my skepticism about prospects for reconciliation: a true apology is not just words – it is actions, it is changed behaviour in the long term. A true apology can span decades. The apology that I received was followed almost immediately by an excuse, and indications that by-stander behaviour wasn’t over. The apology that the Aboriginals of Canada received not only didn’t address the greater narrative of colonial assimilation, but was also simultaneous to the ongoing destruction of their traditional lands, ongoing funding discrimination, ongoing institutional racism – Matt James refers to it as a “politics of distraction” from the question of restitution of stolen lands.[3] One participant said, “I won’t forgive the government. There’s no way in hell. I’m going to court to protect the land. […] That’s why it’s a lot of bullshit with the government and the apology.”[4] This is why guarantees of non-repetition are fundamentally important in transitional justice contexts – societies cannot let go of their anger if the wrongful behaviour is ongoing, or likely to occur again. I felt/understood the truth of this principle in both theoretical and very personal ways throughout my research on the Canadian TRC.

First Steps

Finally – doing all this research, but especially reading the summary of the final report of the TRC, which is full of survivors’ stories and the history of the indian residential system, had a fundamental impact on my understanding of the current situation of Aboriginal peoples in Canada. I wouldn’t have considered myself ignorant before – I knew that the Indian Residential School existed (despite not having been taught about it at school), and I knew that Aboriginal communities had lower health outcomes than non-Aboriginals. I knew that poverty and discrimination abounded. One of my best friends is native, and I had heard of the struggles of her community. However, I don’t think I truly understood the connection between the history of Canada’s treatment of Aboriginal people and the current problems. Reading peoples’ personal stories helped me understand that everything feeds off each other. I experienced a fundamental, if almost imperceptible shift in my reactions to hearing about Aboriginal communities’ difficulties. Before, my reaction would have been one of sympathy and frustration about the current state of things. Now when I think about it, to those reactions is added a recognition of my implication in it – of my duty to try to understand the cause and effects, and to understand and respect the anger and resentment. These are legitimate feelings, on a societal and personal level, that cannot be done away with by a simple apology.

Take the TRC reading challenge –

http://trcreadingchallenge.com/


[1] Rosemary Nagy, “The Truth and Reconciliation Commission of Canada: Genesis and Design” (2014) 29:2 Canadian Journal of Law and Society 199 at 200.

[2] International Center for Transitional Justice, “Truth Seeking: Elements of Creating an Effective Truth Commission” (2013) at 3. Online at : https://www.ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013-English.pdf.

[3] Matt James, “A Carnival of Truth? Knowledge, Ignorance and the Canadian Truth and Reconciliation Commission” (2012) 6 The Int’l Journal of Transitional Justice 182 at 189.

[4] Anne-Marie Reynaud, “Dealing with Difficult Emotions: Anger at the Truth and Reconciliation Commission of Canada” (2014) 56:2 Anthropologica 369 at 375.

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