In 1865, David Reesor rose in the Legislative Council of Upper Canada to argue that if the prime minister was granted the power to appoint senators he would “deluge this House with party tools.” Unfortunately, Canada’s founders did not heed his warning, and a 150-year flood began. Liberal leader Justin Trudeau made the right move this week by partially damming the deluge of partisanship in the Red Chamber.
Admittedly, Trudeau’s policy execution left much to be desired. Senators themselves were caught off guard and confused by the change. Some were supportive, others dismayed. It’s still not clear how committee memberships and research budgets will be distributed to these newly “independent” senators.
But with the move, Trudeau highlighted the partisanship and patronage that has delegitimized the Senate and undermined its democratic role. When we say the Senate should be a “chamber of sober second thought,” we mean that it can bring to bear expertise and viewpoints that differ from those forged under the conditions of party strife. But today, even when senators do their job well, we are suspicious of their motives. And when they are shown to be party shills and fundraisers, meeting in the Prime Minister’s Office to accept payouts and talking points, our cynicism is justified.
Electioneering machines and sober second thought
By proposing that senators should be selected by a “non-partisan public process,” Trudeau challenged the conventional wisdom that our only alternatives to Senate dysfunction are to abolish the chamber or elect senators the same way we elect MPs. While he did not say much about what a non-partisan selection process might look like, it’s worth exploring the options. Before doing so, let’s consider some of the reasons why a non-partisan Senate is desirable.
First published on Justice in Conflict on November 22, 2013.
While the relationship between the International Criminal Court (ICC) and African states looms large over the current meeting of the Assembly of States Parties (ASP), victims’ issues will also receive a great deal of attention. Victims and affected communities will be the focus of a plenary discussion today and side-events will tackle victims’ legal participation, the external review of the Trust Fund for Victims, and justice for victims in Kenya. ASP members and civil society groups want the ICC to improve its policies on victims’ matters such as participation, reparations and engagement with affected communities. Academics, too, have been weighing in.
In this post I will mention a few of the issues raised in recent publications, focusing on concerns about victim participation. Academics and civil society organizations tend to want more extensive participation, which will likely require more resources. However, several legal officers from ASP member states have in recent months told me that their governments see victim participation as a money pit, capable of costing much and adding little to the Court’s core functions. To address these various concerns we need better assessments of the impact of victim participation.
Last week the illustrious, despised and devilishly playful Jacques Verges died. The French lawyer was notorious not only for the clients he defended but for the provocative tactics he used. Most recently, he had defended former Khmer Rouge head of state Khieu Samphan, now being tried at the Extraordinary Chambers in the Courts of Cambodia. I wrote about the ECCC in its early days for Macleans, The Walrus and the Radio Netherlands World Service. I was curious see whether Verges might challenge the authority and the narrative of the ECCC, as he had done in previous trials. I therefore secured a meeting at his Paris home in August, 2008. I had planned to write a magazine profile on Verges but never got around to it. I re-read the interview last week, and I continue to find his views on criminal trials to be interesting, provocative, and somewhat self-serving. He saw legal advocacy as profoundly creative and political, particularly if one casts off conventional views around the legitimacy of courts and the ability of criminal trials to establish the truth.
Before excerpting from that interview, here are a few details from Verges’ fascinating life. Those interested in more can turn to this superb profile by Stéphanie Giry, the very good documentary Terror’s Advocate and a great character sketch in Erna Paris’ Unhealed Wounds: France and the Klaus Barbie Affair. Verges was born in 1925 in Thailand to a French doctor and his Vietnamese wife. His father had to quit as French consul because of this interracial marriage, and Verges seems always to have had a love-hate relationship with France. He enjoyed attention from his countrymen, a refined life in Paris and the French tradition of subversive public intellectuals like Voltaire. (Verges died in a home that Voltatire once lived in.) Yet he spent much of his life attacking the country’s mores and defending some of its enemies.
Verges rose to fame in 1957 when he defended – and fell in love with – Djamila Bouhired, a young revolutionary with Algeria’s National Liberation Front. Bouhired was accused of planting a bomb in a milk bar in Algiers frequented by French civilians. Eleven people were killed. Verges did not try to prove that Bouhired was innocent or seek a reduced sentence. Instead he mounted what he called “la défense de la rupture” – to defend the accused by creating a rupture in the trial itself. He did so by challenging the legality and morality of the state that mounted the prosecution, through dramatic speeches to the courtroom and the news media. In Bouhired’s case he attacked the court as a puppet of French colonialism in Algeria. Bouhired was sentenced to death but Verges’ performance had made her a cause-célèbre. Facing a domestic and international outcry, the court stayed her execution. When Algeria became independent in 1962 she was released and proclaimed a national hero. Bouhired and Verges together advocated for anticolonial causes, met with Mao Zedong in China, and married in 1965.
In 1970, Verges told his wife and his colleagues that he was going to Spain, and then he disappeared for eight years. He has referred to this phase, mysteriously, as when he stepped “into the looking glass.” Theories abound concerning his whereabouts: in Cambodia under the Khmer Rouge (I think unlikely), in Palestinian militant training camps, perhaps living invisibly in Paris, etc. When I asked when he would reveal the truth of those years, Verges said “perhaps as a last testament.” He added with a laugh, “But for now I am in very good health.”
Many thanks to Charli Carpenter for her recent article, the prodigiously titled: “‘You Talk Of Terrible Things So Matter-of-Factly in This Language of Science’: Constructing Human Rights in the Academy.” She explores the intellectual, ethical, and career dilemmas that political scientists get into when they do research on and with people they care about. Such reflections in a high-profile journal are important because the discipline seems to ignore such things. Anthropologists have written and agonized for at least half a century about encounters in the field, and the role that their knowledge production plays in politics and governance. Somewhat strangely, political scientists have not. And IR scholars in particular remain at a remove from the human beings they study – either by focusing on institutions (states and international organizations) and data sets. We don’t often discuss, in public, the harm or help we might be doing to our research subjects. Carpenter does here, with admirable honesty.
The article begins with a great anecdote. Her research is on the absence of international attention to children born of war-time rape. After presenting early results, a senior faculty member told her: “You’d better stop talking to international organizations about this issue until you publish…Otherwise, before you know it, you will no longer have a puzzle to explain, because these children will be on the agenda” (363).
Carpenter was startled by the suggestion that her academic work might in fact be norm entrepreneurship. She was even more surprised at the value judgment implied by the comment—that publishing an interesting paper on the phenomenon was a higher priority than bringing attention and assistance to a profoundly disempowered group. Carpenter’s article therefore explores the impact of engagement with human rights advocacy on her academic role, and the opportunities (and limitations) for an academic to engage in human rights advocacy.
Among her interesting observations:
- She notes that while “calls for calls for greater reflexivity in the discipline are now commonplace, they are rarely implemented in mainstream IR research. Even rarer are empirical studies of the IR discipline as a site in which global politics gets constructed” (364). Tellingly, when she tried to include a chapter on this topic in her book Forgetting Children Born of War, Columbia University Press insisted it be cut.
- Other pressures she faced in the IR discipline: to avoid “should” questions and focus on “why” questions (a bias she admits to imposing on her own students), to avoid publishing with a commercial press (even if it means the work will get a much larger audience, including policymakers and the human rights community), and to avoid asking questions that require methodological approaches not favoured in IR.
- Carpenter felt that the ethics review board process failed to provide guidance in interviewing vulnerable populations (by contrast I found UBC’s BREB quite helpful). But while she lacked assistance through formal channels, she seems to have worked things out over time—which I suspect is a common path.
- Very interesting was her attempt to ‘give something back’ to the community she was studying (organizations who assist children born of war). She is inventive in doing so: ranging from giving out copies of her publications, to sharing contacts, to reviewing grant applications, to consulting for UNICEF. “It seemed unethical to me to study a human rights non- issue without contributing to well-intentioned efforts to turn it into an issue” (369).
- Rather than a simple theory-practitioner divide she “encountered practitioners willing to listen to me as an academic, and academics hungry for me to articulate a clear policy stance” (371).
- Communicating with audiences outside of academia required new skills – such as putting together glossy policy documents (and the funds to publish them), hitting one’s talking points on radio interviews, and blogging (Carpenter is a key contributor to the Ducks of Minerva). In addition to these different skills are the different form of impact she sought.
- Most interesting was her observation that by actively engaging as a part of the advocacy community, she struggled to maintain forms of objectivity, but at the same time gained great insight into the obstacles that advocates faced. Had she wanted, Carpenter could have drawn on writers from John Dewey to Pierre Bourdieu to Iris Marion Young to explain theoretically why this experience of position-taking is relevant and epistemologically robust. But she would likely come to the same take-away lesson: “that interfacing with the policy community in order to disseminate research findings itself constitutes a form of participant observation that can supplement and enrich earlier research findings derived from multiple other methods” (376).
Carpenter’s attempt to advance a cause and an academic career is estimable, but also daunting. I was struck by how much extra work it required, beyond the usual demands of academia. It doesn’t appear that this additional labour receives institutional recognition–she didn’t mention how policy documents contributed to getting tenure, or how public advocacy got her time away from teaching. Maybe that’s as it should be. But the “dual role” she played reminded me of the one the one now ‘enjoyed’ by women who seek to have vibrant careers and be devoted mothers—you can have both, so long as you have great support and little need for sleep.
And she finds time to be a Star Trek and Battlestar Galactica nerd!
In the next two weeks, the Assembly of States Parties will undoubtedly address one of the most innovative and troubled aspects of the International Criminal Court: victim participation. Such discussions must take heed of recent decisions by Trial Chamber V on the upcoming trials in the Kenya situation, which introduced a dramatically different scheme for victim participation compared to previous Court practice. Will that decision lead to a shrinking role for victims at the ICC, or make it more efficient and inclusive? Much will depend on how the new scheme is operationalized, including the resources and direction the ASP offers.
The ICC’s approach to victim participation is without precedent. The only role for victims at previous courts was limited to witnesses, a role that was criticized by civil society actors and some states during the drafting of the Rome Statute. The Rome Statute ultimately included Article 68(3), which stated that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court…
Judges and court staff spent considerable energy in the Court’s early years interpreting and re-interpreting how victims would participate. Fundamental questions have been grappled with: Who is a victim eligible to participate? What modalities of participation are possible, and at what stages of proceedings? ? How can common legal representatives (CLR) for large numbers of victims be selected?
While rules for victim participation have become more concrete, they continue to leave many unsatisfied. This summer, several legal advisers for State Parties told me that it was a top issue for reform, primarily for budgetary reasons. While some civil society groups were pushing for more resources for victims’ legal teams, key State Parties continue to push for tightening legal aid and Registry budgets. These areas of the budget will continue to be squeezed so long as the Court takes on more situations (some referred to it by the UNSC) while State Parties hold to zero-growth in funding.
A Kenyan boy wears a t-shirt bearing the name of former ICC Prosecutor Luis Moreno-Ocampo
A version of this post originally appeared at the Africa Portal.
Toward the end of my Africa Initiative field research in Kenya, I visited a woman (I’ll call her Eunice) at her home in Kibera, a large informal community in Nairobi. I had met her a week earlier when she was a participant in a focus group that brought together victims of post-election violence to discuss their views on justice, assistance and the work of the International Criminal Court.
During the focus group, I was struck by Eunice’s straightforward answers and openness in discussing the day post-election rioters burned down her home. I couldn’t help but notice the mottled pink and white scar tissue on her hands and face, the only parts of her body not covered by clothes or a headscarf. Many Kenyans continue to suffer from post-election violence, but few have it written as plainly on their bodies.
My subsequent encounters with Eunice following the focus group highlight some of the ethical questions that confront those who research social justice issues. While ethics boards at academic institutions address some of these concerns — in particular the promotion of informed consent, and the avoidance of harm and conflicts of interest — these bodies do not determine all of the principles that orient researchers’ relationships with the people, organizations, or communities they study.
Ethical principles can inform many stages of research, from choice of topic to study design. But there is another set of issues: are ethical obligations limited to what you do as a researcher? Or, if you encounter people with problems that need to be addressed, and if you have the knowledge or authority or resources to help, should you do so? This question confronts anyone who witnesses suffering or injustice but whose job does not entail the direct delivery of assistance, from journalists to development experts to social science researchers. In my experience, people doing these jobs in countries with poor social safety nets often give aid to individuals they have encountered, from paying for someone’s medical treatment to funding a child’s school fees
Questions about ethical obligations beyond one’s research are more likely to come up when one encounters people suffering from illness, deprivation, or injustice. For that reason, it is not just what one studies, but also how that research is conducted. Methodology affects how a researcher understands and empathizes with the subjects of their study. It can also make one more aware of the need or opportunity for intercession.
Thomas Fuller, the New York Times reporter who writes most of the paper’s stories on Burma, recently wrote an article about the end of the government bureaucracy responsible for censoring media in the country. He also wrote a charming blog, A Reporter Meets His Censor, about his encounter with the unlikely and likable young woman tasked with censoring his own work. It’s yet another wonderful development in what seems to be s steady stream of positive steps in Burma. Political prisoners are being released. Government ministries are being reformed. The country’s president even praised Aung San Suu Kyi in his recent address to the United Nations General Assembly. With every such announcement I’m delighted, and a little baffled. It just isn’t the country I remember.
Back in 1999 I traveled to Burma for my first real experience of foreign correspondence and investigative journalism. I went there to explore a possible uprising against the military government, a set of country-wide demonstrations that might begin on Sept 9, 1999 (9-9-99) to mirror the massive anti-government uprising on August 8, 1988 (8-8-88). During my time in the country I spoke to people who were afraid to say Aung San Suu Kyi’s name in a restaurant or on the street, out of concern that a military intelligence officer might overhear and throw them in jail. I met with former political prisoners, who amazed me not only by the hardships they faced but their acceptance of the fact that they would likely end up in jail again in the future. These pro-democracy activists, writers, and monks would not abandon their support for human dignity, and that put them on a collision course with the government. Sooner or later they would choose principle over silence and be jailed for it.
No one I met in Burma made more of an impression on me than Ludu Daw Amar, one of the country’s best-known writers. We met in the building that doubled as both her home and publishing house, in the city of Mandalay. She sat behind a big wooden desk in a small room, cramped by piles of literary magazines. She, her youngest son, and her husband had all spent time in jail for their words and beliefs. She told me about writing under the regime of censorship that had existed for years. I remember one of her comments very distinctly:
When I write, I begin with a circle. But I know the censor won’t let it be published. So I turn it into a square. When the censor gets it he will still make changes, and he turns it into a triangle. The trick is to write in such a way that the reader will see that triangle and know the circle that I originally intended.
Interestingly, Daw Amar thought that the Burmese were therefore extraordinarily sensitive readers, alert to the allusions and indirect references that writers used to talk about issues that the government deemed controversial.
Another memory from that night. The window in her office had bars across it, and a wisp of curtain. At one point she gestured to the street corner outside. Several men loitered there. Those are government agents, she told me. They keep watch, and follow whatever we do.
The day after my meeting with Daw Amar I returned to my hotel in the afternoon and found that some of my notes, which I had hidden behind a pipe outside the window, were gone. Nothing else from the room had been stolen. While it was never confirmed, I assume that I had been trailed from her publishing house, and that intelligence searched my room the following morning while I was away. I can’t imagine the fortitude it would take to live in such a regime, continually at risk, knowing that any day you could be jailed at the whim of thugs or censors, and continue to write and publish for decade after decade.
Daw Amar was 84 when I met her. She lived to 93. I wish she had lived just a few years more, to learn that the censor bureau had closed, and that she could stop with squares and write circles again.