Whatever happens in Monday’s election, many Canadians will wake up disappointed on Tuesday. The local representative we voted for will have lost, or our preferred party will not form government. It’s therefore worth remembering why democracy is the best political system for those who are on the losing side of elections, and not just for the winners.
Three features make losing more palatable and less dangerous in democracies – the legitimacy of elections, checks and balances on executive power, and a democratic culture of inclusion. Unfortunately, the Conservative government has undermined all three.
An Unfair and Unequal Election
First, in functioning democracies, elections produce a government that is legitimate. We may be disappointed but we do not feel cheated, since each person had an equal opportunity to vote and each vote counted (more or less) equally.
However, with the misnamed Fair Elections Act, the Conservative government undermined fair and equal participation. The Act reduces Elections Canada’s programs to encourage voting, and takes away vouching or Voter Information Cards as sufficient proof of identification at polling stations. These changes are expected to make voting more difficult for thousands of people, with a greater impact on people less likely to vote Conservative, including student, indigenous and poor voters. The Act also reduces Elections Canada’s role in policing electoral laws.
Beginning Tuesday, we need to see how these changes affected the election. If people have faced unequal obstacles to voting, and if any party violated electoral laws as the Conservative party has in the past, we need to root out failings. Whether or not we pursue new voting systems, as the NDP and Liberals have proposed, we need to make sure that Canadian elections are increasingly equal, open and fair.
Undermining Checks and Balances
Second, elected governments face several institutional checks and balances, which help protect vulnerable groups and those on the losing side of elections.
Good news! Taylor Owen and I received a SSHRC Connection Grant to brainstorm and develop a new digital platform to promote dialogue on issues of global politics. Our plan is to create a platform that facilitates scholarly commentary on pressing issues, and that will partner with media outlets and major think tanks to engage larger publics. We’re pleased to be partnered with a bunch of great institutions on the project: the Carnegie Council for Ethics in International Affairs, the Centre for International Governance Innovation, the Canadian International Council, the Igarapé Institute, the Liu Institute for Global Issues and the Munk School of Global Affairs.
More details to follow. But thanks to SSHRC (and thus my fellow Canadians) for the support, and to Taylor for getting the ball rolling on this.
This post was first published on Justice in Conflict on May 28, 2015. My interview with Thierry Cruvellier, conducted May 6, 2015.
When the Khmer Rouge were driven from Phnom Penh by Vietnamese and Cambodian forces in early 1979, they left behind an institution that has come to illustrate the regime’s cruelty and paranoia. At the S-21 prison, now the Tuol Sleng Genocide Museum, the liberators found 14 recently-executed prisoners as well as rooms full of chains, shackles, a waterboarding apparatus, and other instruments of torture. They also found a vast archive, with thousands of photographs of terrified men and women, along with the confessions that were extracted from them. The documents showed that while the activities were barbaric, the institution operated with bureaucratic discipline. Scrawled across many of the documents were terse orders from the prison’s commandant, Kaing Guek Eav, known as Duch. On one interrogation record he wrote: “Beat [the prisoner] until he tells everything, beat him to get at the deep things.” Beside a list of names: “Kill every last one.”
In 2009, Duch became the first person tried at the Extraordinary Chambers in the Courts of Cambodia (ECCC). Every day of the trial, Thierry Cruvellier came to the courtroom on the outskirts of Phnom Penh and carefully watched Duch, along with the lawyers and judges arrayed around him, and the witnesses who took the stand. Cruvellier has established himself as the preeminent journalist of international criminal justice. He has reported on trials in Arusha, The Hague, Sarajevo and Freetown; edited the International Justice Tribune; and authored the excellent Court of Remorse: Inside the International Criminal Tribunal for Rwanda. He believed that the Duch trial would offer something new, the chance to examine at length the mind and motives of a senior perpetrator of atrocity crimes.
The result is The Master of Confessions: The Making of a Khmer Rouge Torturer (originally released in 2011 as Le maître des aveux). Among its many virtues, Cruvellier’s book is a master-class in how to evoke characters through description, and none are drawn more sharply that Duch himself. The book also shows what gets missed when researchers (like myself) study international criminal justice without attending trials in their entirety. We forget about the many storylines a trial can offer. These include the competing visions of the crimes – and of justice itself – advanced by lawyers, judges and defendants. They also include the dramatic arcs of individual testimonies, as witnesses respond to questions and to their roiling memories and emotions.
I recently spoke with Cruvellier about his book, about the ECCC, and about lessons from the Duch trial that might apply to future international criminal trials.
Chris Tenove: Why did you believe that the Duch trial would be exceptional?
Thierry Cruvellier: I came to Cambodia after covering international tribunals for 10 years, when I was starting to feel like I should move to a new topic. But I realized the Duch trial would be a unique circumstance. Because of the legal system that applied [the ECCC follows France’s civil law system], there would be no plea-bargaining. So even though Duch was essentially pleading guilty, he would have a full trial.
I realized it would be an opportunity to finally hear in detail the voice of the perpetrator. Anyone who covers war crimes tribunals becomes interested in this voice. Only the perpetrator can tell us how that very specific crime – a political crime – actually works. How is it that individuals like Duch, who had not been criminals before this period and would probably never be a criminal after, get involved in a violent machine like S-21?
Victims are frequently brought into public debates about criminal justice policies. This occurs in domestic systems (such as recent changes to Canada’s prostitution laws) and in international criminal justice (such as ongoing debates about the role of victims in trials at the International Criminal Court). Victims are sometimes treated as having moral authority to demand particular policies. However, many experts and policymakers believe that victims’ perspectives should be heavily discounted. They often assume that victims lack generalizable knowledge, and that their desire for vengeance or compensation will lead to unfair judgments or bad policies. Victims therefore tend to be treated in one of two ways – either as privileged spokespersons for justice, or as people who deserve our sympathy but whose views on justice policies should be largely ignored.
I’m currently writing a paper on how researchers and policymakers should listen to and engage victims. Some of the most helpful thoughts that I’ve encountered on the topic come from Judith Shklar’s 1990 book The Faces of Injustice (originally a Storrs Lecture at Yale Law School). I’ll return to those shortly. But first, a word on “victims.”
The term, “victims,” is a loaded one. For some, it is associated with powerlessness or pity and should never be used. While I agree that those negative connotations often exist, I think “victim” is an important social role, and one that should be made empowering rather than stigmatized. After all, most of us will be victims of injustice at some point. To be considered a victim can mean that certain people, or society at large, owe a debt to us for egregious actions against us. Many of the participants in my focus group research in Kenya and Uganda, who had all suffered great violence or injustice, considered themselves “victims,” and saw it as an accurate and somewhat desirable label because of the social obligations it acknowledges. (For some of my reflections on victim participation and the International Criminal Court, see here and here.) Like them, I think it’s important to acknowledge the possibility that victim status is morally signifiant and politically actionable, while at the same time not suggesting that it is the entirety of people’s identity.
In her book, Shklar argues that citizens and political theorists ought to pay serious attention to victims’ perspectives on injustice. She claims that victims’ “sense of injustice” can provide a necessary corrective to existing theories, laws and institutions of justice. She clarifies that our conventional understanding of justice, or “normal justice,” is a “body of rules and basic principles governing the distribution of benefits and burdens within a community, and it demands the establishment of effective and impartial institutions to guarantee the enforcement of these basic rules and principles” (p. 17). This rule-bound, generalized approach is necessary for justice to be institutionalized as laws and organizational practices. But as a result, normal justice frequently has blind spots, gaps and unintended consequences.
A couple weeks ago I defended my PhD dissertation – Justice and Inclusion in Global Politics: Victim Representation and the International Criminal Court – before the eminent panel of Richard Price and Mark Warren (my co-supervisors), Michael Byers (committee member), UBC examiners Erin Baines and James Stewart, and external examiner Jan Aart Scholte. It was a pleasure to discuss my research with this group, and to address their incisive and thought-provoking questions. And it was a pleasure to be done!
To give you a sense of my relief to be completed my PhD, see as exhibits the following two pictures.
#1: November 20, uploading doctoral dissertation with last ounce of strength.
#2: January 13, outside UBC Faculty of Graduate Studies, dissertation defended and ready to celebrate with Elin.
This post, first published on Justice in Conflict on December 10, 2014, was co-written with Stephen Smith Cody (Director of the Atrocity Response Program at the University of California, Berkeley School of Law) and Susana SáCouto (Director of the War Crimes Research Office (WCRO).
When the Assembly of States Parties convenes this week, members will select judges, finalize a budget, and debate new rules and regulations. Another topic sure to arise is the major reform of the Registry of the International Criminal Court (ICC). Such actions don’t make headlines, but they have serious implications for how the ICC operates and how it relates to one of its key constituencies, victims of crimes. We have several concerns about how proposed reforms of the Registry might impact victims’ opportunities to engage with and be heard by the ICC.
The Rome Statute gives victims the right to participate in judicial proceedings that affect their personal interests, so long as this does not violate fair trial processes or the rights of the accused. Victim participation, along with victims’ right to reparations and opportunities to receive assistance and rehabilitation from the Trust Fund for Victims (TFV), can enable the ICC to engage victims and promote justice for them beyond the courtrooms of The Hague.
Victims’ opportunities to participate have of course been shaped by judicial decisions. (For several reports and comments on these developments, see the end of this post.) They are also affected by the Registry’s policies, and so the major institutional reform of the Registry – known as the “ReVision Project” – may have significant implications for victim participation. (Registrar Herman von Hebel has discussed this major restructuring, and FIDH has issued a thoughtful letter in response.) While we can find no public document outlining the ReVision proposals, Registry officials have provided an overview to some civil society actors. Among other proposed reforms, the overview suggests that victim participation will be streamlined by merging two current offices (the Victims Participation and Reparations Section, or VPRS, and the Office of Public Counsel for Victims, or OPCV) into a single Victims Office, and legal representation for victims would come entirely or partly from within this office.
We wholeheartedly support efforts to make victim participation more efficient and effective. However, we are concerned that this reform may not take sufficient account of victims’ actual engagement with their representatives and Court officials or their own views on legal participation. As researchers working on different projects related to victim participation, we have examined these issues from empirical as well as doctrinal perspectives. Drawing on in-depth interviews with Court staff, victims’ legal representatives, and hundreds of victims in four ICC situation countries, we have several observations that might inform debates around victim engagement in general, and legal participation in particular.
Victim participation requires ongoing dialogue between the Court and victims.
Recognition of victims’ experiences and suffering requires contact and conversations with victims. This dialogue should enable victims to learn about the ICC, their right to participate, and details of judicial processes that concern them. It should also enable victims, when appropriate, to put forward their opinions, concerns, and interests.
We agree with the ReVision proposal to improve the coherence of the Court’s communication with victims, but we would emphasize that this engagement must be ongoing. Judicial processes and victims’ situations evolve, and so must opportunities for victims to become informed and to express their views. Victim representatives must be able to provide victims with up-to-date information, solicit victims’ views, and advance them through appropriate judicial and non-judicial channels.
One common complaint that we have heard from victims is that they do not know what the Court is doing on matters that concern them, such as the status of their application to participate, the timing of trials, or the opportunity to receive reparations. “The most important thing is that we want somebody from the Court to come here so that we can interact with them,” said one Ugandan victim (interviewed by Cody as part of a multi-country study of victim interactions with the ICC).
It is important that ICC staff and representatives create systems to disseminate information on judicial proceedings and other court-related activities on a regular basis. Doing so may require the Court to provide communication devices, such as radios or mobile phones, to representatives in affected communities and develop protocols for responding to victims’ concerns in a timely manner.
Victims’ representatives should be aware of potential insecurities, including the possibility for retaliation against victim participants. Representatives should also be able to help victims get attention from the Victim Witness Unit (VWU) should they be facing serious security and health threats, particularly if these arise from being victim participants.
In addition, representatives should be aware of the material needs of victims, and should help victims understand what assistance the Court can and cannot provide. In most cases, ICC staff who interact with victims should have a high level of cultural knowledge, training in working with survivors of violence, and experience working with vulnerable populations in the region. They should be able to speak of the work and mandate of the TFV, as well as the Court’s reparations process, while being careful not to unduly inflate victims’ expectations about reparations and assistance.
Victim participation requires independent representation.
The ICC should establish processes to ensure the effective coordination of victim-related services across all sectors of the ICC, and, where appropriate, combine efforts to utilize common systems and mediate costs and any potential risks to victims. We support some of the ReVision Project’s recommendations to achieve these ends.
However, the coordination of victim-related services and integration of court outreach and support must not compromise the independence of victims’ legal counsel, and we are concerned that eliminating external legal representatives altogether might do just that. It is important for victims’ representatives to act on behalf of victims, and thus to act and be seen to be acting independently of other constituencies or institutional imperatives. The Court must, therefore, preserve the autonomy of victims’ representatives’ vis-à-vis other sections of the Court in order to insulate representatives as much as possible from institutional pressures or tensions at the Court.
On May 22, U.S. Ambassador Samantha Power asked Qusai Zakariya of Syria to stand up in the gallery of the United Nations Security Council. Ambassador Power was in the midst of arguing for a draft resolution to refer the Syrian conflict to the International Criminal Court. She had to justify a resolution that some – including Ambassador Power herself in the past – had suggested could undermine a peace deal, and that was doomed to be vetoed by China and Russia. (Others have commented on the speech and the U.S. strategy, here and here.) Mr. Zakariya, a victim of a chemical attack, would be part of that justification.
Several scholars have written about how different actors make assertions about victims of international crimes in order to promote their aims or authority. Among others, Kendall and Nouwen argue that “the Victims” is an abstract category that justifies international criminal justice and displaces the voices of actual victims; Sagan has claimed that African war criminals and victims are discursive subjects integral to the project of cosmopolitan liberal justice; and Dixon and I argued that victims are central to claims about legal, expert and moral authority. So it is interesting to look closely at the rhetorical deployment of Mr. Zakariya.
Ambassador Power has a longstanding activist bent toward preventing or punishing those responsible for mass atrocities, and picks up those themes here. She references the need to hold perpetrators of mass violence accountable, and notes the unfairness of ICC action in eight African countries but not Syria. She speaks of thousands of Syrian torture victims. In her finale she calls for retribution by citing the ancient Greek philosopher Solon, who apparently claimed “Those who are not wronged, no less than those who are wronged, must exert themselves to punish the wrongdoers.” But the largest section of her speech referred to Mr. Zakariya and other victims. Here is an excerpt: