Memorials against Impunity
In a conversation with her team members, Aline Wani examines creative approaches to justice in contexts of impunity and lack of political will.
1. November 2022
Ein Beitrag von Lina Schmitz-Buhl
„As a Mercator fellow, Lina Schmitz-Buhl explored the concept of intersectionality in international criminal law. Previously, she worked for ECCHR and REDRESS where she contributed to strategic human rights litigation against enforced disappearance, sexualised violence and other forms of gender-based violence in conflict. She is a German-trained lawyer and holds an LL.M. in Transnational Law from King’s College London and a Maîtrise en Droit from Université Paris 2 (Panthéon-Assas).“
01.11.2022 — Berlin, Germany
Catherine Marchi-Uhel heads the United Nations’ International, Impartial and Independent Mechanism on Syria (IIIM). In the interview with Lina Schmitz-Buhl, she discusses inclusive and intersectional approaches to international criminal justice.
Inclusive justice is not unique to the IIIM – but we really make it a driving element of our strategies. Making sure that we are working primarily for victims and survivors is really our mantra.
We are conscious that “inclusive justice” easily becomes a buzzword if it is not underpinned by dedicated strategies and implemented in day-to-day work. Traditionally, conflict-related accountability processes have primarily focused on the situation of men. You would not see many women being interviewed as witnesses. The media reported on the impact of the war on children, but this aspect was not addressed in the cases before international courts.
Our approach is to create an institutional environment where the experiences of victims and survivors who have historically been overlooked are intensely explored. Instead of seeing “inclusive justice” as an add-on or a tick-the-box exercise — fulfilled by advancing one or two isolated cases on women and children, for instance — it is embedded in our general analysis of the evidence across all levels, from the collection of the evidence to its analysis.
The analysis sometimes reveals gaps. Inclusive justice is embedded in the way we function, how we recruit people, train our staff, how we create working groups to focus on certain under-explored aspects, such as gender and children. Here is where intersectionality becomes important.
We often look at identity factors like gender in isolation. But if you really want to understand the impact of a conflict on individuals, you need to look at the hierarchical structures that drive discrimination. It is rarely one factor alone. Discrimination can be based on gender, religion, class, political affiliation or opinion, age — or on a combination of these factors. If you really want to capture all of that in an inclusive way — if you want to address not only the nature and extent of the harm, but also the structural factors driving violence — well, then you need an intersectional approach.
All too often, as a prosecutor or judge, you can get away with an exclusive focus on the male perspective. You prove, for instance, the persecution of men and boys in a given conflict, but miss other forms of violence, the bigger picture even. Capturing all facets of a conflict is crucial if you want victims and survivors to feel that they obtained justice.
Yes, and to understand what drives a conflict. This goes beyond immediate justice. In an ideal world — which clearly our world is not — accountability processes help build a better future. Even if they cannot entirely suppress harm or discriminatory structures.
I am not saying that the IIIM or justice itself has to be transformative. But it provides the analysis to support those in a society who want things to change. If you are in denial of structural drivers of violence, you may very well have some accountability at a certain stage — and reproduce the same discrimination in the future.
It’s a complex issue. Punishment alone is not enough. And punishment is not always the best solution. Even if it were, we do not have the capacity to punish every possible perpetrator in a large-scale conflict situation like Syria. A dedicated tribunal would perhaps try 100 people if successful, while there are maybe 10’000 or 100’000 people involved in the crimes.
Some victims and survivors call for punitive justice. But there are a variety of positions. One mother of a child that was tortured or killed might want the direct perpetrator — the one who inflicted the pain — to be punished. Others want the highest perpetrators to face justice, those who orchestrated the violence at the political level.
At the same time, you can see how important it is for affected persons and communities when those who are responsible admit their crimes in the trial. This can be even more important than the judgment itself.
I would not rule out other justice avenues, such as truth and reconciliation commissions. They work towards building a future. But I believe it is difficult to build a better future with no punitive justice. I do not have the key to that question, but I think it is best if you have a combination of both elements — punitive justice and reconciliation.
It is a team effort, not just me. It is people who are dedicated to the work and bring in their own skills. Indeed, in the very early days of the Mechanism, with my Deputy Head Michelle Jarvis, we had discussions to identify how — in terms of leadership — we could shape this institution to give it the direction it needed.
That was not uncontroversial. When you bring a team together, it may seem counterintuitive to spend so much time on the strategy, on the methodology. I think it was important to put in this effort to create an institutional environment that is conducive to inclusive and intersectional approaches — and I believe we have succeeded in doing so.
What drives me? Maybe I need to share some personal background. What brought me to justice was a sense of injustice that people close to me had experienced during the Second World War, in a concentration camp. The power of justice really inspired me: when a family member was able to obtain justice, I experienced how empowering it can be, if done correctly. I knew I wanted to do law. I had this vague intuition that international law would be great, without knowing what it was.
Initially, I started as a judge for juvenile cases, which taught me a lot: the importance of interacting, explaining what you are doing, listening to the various interlocutors — and, in situations of juvenile justice, to care and protect the children who were harmed. After about 10 years in the legal system in France, I wanted to explore international justice.
My first exposure to international criminal justice was in Kosovo and at the International Criminal Tribunal for the former Yugoslavia. It left me a little bit frustrated because victims and survivors were mainly considered as witnesses, as sources of evidence to satisfy procedural needs. Of course, everyone wanted to treat the witnesses well, but the broader needs of victims and survivors were not at the core of the proceedings. At the Extraordinary Chambers in the Courts of Cambodia, reparations and participation of victims and survivors were considered in judicial proceedings. It was not perfect, but it was better. When I came to my current position at the IIIM, we seized the opportunity to shape this institution from the outset to encompass inclusive justice.
Hier diskutieren Fachleute ihre Erfahrung aus der Praxis. Alle drei Monate erscheint ein thematischer Blog zu einer drängenden Frage der internationalen Politik und Zusammenarbeit.