The Path to
Sitting in Bannan Hall, debating the use of the controversial legal theory joint criminal enterprise, during my second year course on international criminal law, I never imagined that a few short years later I would find myself living in The Hague and working on the team that would determine the fate of the first accused person to be brought before the International Criminal Court (ICC).
As the first and only permanent court to try individuals for the most heinous global crimes—genocide, crimes against humanity, war crimes and aggression—the ICC has over 100 state parties who have ratified its treaty and as such, fall under the jurisdiction of the ICC. However, as an American, I am a citizen of a non-state party country and stood very little chance of obtaining a position at this elite court of law. Yet, with the help and support of Santa Clara Law faculty, I was able to embark on the path that has led me from California to East Africa to The Hague in the pursuit of international justice.
I made the choice to attend Santa Clara University School of Law because of its strong international law program and the flexibility in curriculum which I believed would allow me to choose public international law courses in order to get as much exposure to the various areas of human rights law as possible. And, true to my hope, I was able to have my first taste of international justice before I graduated from law school, interning at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague during the summer between my second and third years of law school. In the fall of my third year, I traveled to Tanzania to intern at the International Criminal Tribunal for Rwanda (ICTR).
By this time I was hooked. I had always pictured myself working on human rights treaties and conventions with a goal of the prevention of human suffering. However, the fascination of working with criminal statutes which brought together various legal systems of the world in order to enforce a more humane global society was too interesting to pass up. After graduating, sitting for the bar, and spending a short period of time back in Tanzania working for the Office of the Prosecutor at the Rwanda Tribunal, I eventually made my way to my current position—Legal Officer to the Vice President of the International Criminal Court charged with determining the guilt or innocence of Mr. Thomas Lubanga Dyilo, a Congolese national and the first person to go on trial at the ICC.
Mr. Lubanga's trial began this past January, though he was taken into U.N. custody and flown from the Democratic Republic of the Congo to the Netherlands in March of 2006. The Rome Statute, which governs the work of the ICC, has taken much of its structure from the statutes which govern the ICTY and ICTR, yet has some additions which the delegates of state parties who negotiated the treaty hoped would add value to the development of international criminal law. The first of these additions is the insertion of a pre-trial chamber, whose functions were envisioned to streamline cases making them trial-ready, as well as confirming the charges against the accused. The drafters hoped to ensure fairness of proceedings and increase expeditiousness with this addition. Yet, while the charges were confirmed by the pre-trial chamber in January of 2007 and the case transferred to the trial chamber, there was a concern that this trial might never happen, due to a stay in the proceedings because of disclosure problems that were not sorted during the pre-trial stage. The possibility of Mr. Lubanga's not receiving a trial, and the truth of his involvement in the conflict not coming to light, were very upsetting for the court. However, it would be even more damaging should Mr. Lubanga not be able to receive a fair trial at such a global court of justice. Thus, fairness in the proceedings was of utmost concern to the trial chamber, and I felt great privilege to be a part of that experience.
Another Rome Statute addition which is new to international criminal law, is the possibility for victims to have legal representation and to participate in the proceedings. This too, remains untested and leaves the judges of the ICC with the difficult task of ensuring that fair proceedings remain untouched for the accused, while allowing for victims to have a greater role in court.
While many days and nights at the ICC are spent in great frustration trying to balance tenets of the Romano-Germanic system of law with those of common law, I am often acutely aware that I may currently be experiencing the most fascinating period of my career. Where else am I able to be such an intimate part of the creation of law? I feel both a great privilege for the opportunity and great responsibility to the state parties and the drafter of the Rome Statute to carry out their intentions and to put in place a fair and expeditious system of international justice.
With the difficult work of framing the parameters under which the Lubanga trial will operate behind us, the court must now focus on important matters ahead. The situation of Darfur is proving to be a complicated one. Since the ICC must often operate under conditions in which conflicts remain ongoing, this can prove difficult in terms of investigations for the prosecution as well as politically. While the court is an independent body and must make judicial decisions based on the international laws that govern us, there is often a painful reminder that decisions made judicially may have political and even life-changing impacts for people on the ground in the midst of these ongoing conflicts. This is serious work which can have serious consequences and it is important to be mindful and respectful of that. The job cannot be taken lightly.
At the same time, the personal side of this life can be quite rewarding as well. I have been fortunate between my work at the Rwanda Tribunal and at the ICC to travel extensively within the European and African continents. I have learned about and experienced many different cultures. And I have worked with and become friends with people from a multitude of places. My life is forever enhanced and enriched by those relationships.
In fact, my personal life has been greatly impacted by my travels and those I have met along the way. I have just adopted a little boy from East Africa and so find that not only is my professional life enriched by my work with the U.N., but my personal life is forever changed as well. Whether in my office in The Hague, poring over legal drafts and debating customary international law with colleagues from different systems of law and with different interpretations of the law, while drizzle and fog surround the building, or on the ground in East Africa attending meetings at the Rwanda Tribunal in Tanzania while working with the orphanage to adopt my son who has lost his parents to HIV-AIDS which is ravaging the continent, life in international criminal law is never boring. I will always be grateful for the people who have opened doors and made this life a possibility for me.