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* This transcript was edited and condensed for a better reading experience. Click the subtitles below to watch the thorough and compassionate discussion between Ms. Marcus and ILJ member Mazelle Etessami.

Ms. Maxine Marcus is the 2018 recipient of the Prominent Women in International Law Award by ASIL. Ms. Marcus is an international criminal prosecutor and investigator who has worked for over twenty years in the international criminal law field. She served for nine years as a prosecuting attorney at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Before that, she worked as an investigating attorney for the Special Court for Sierra Leone. Ms. Marcus is also the co-founder of Partners in Justice International (PJI), a mission that endeavors to strengthen justice processes for victims and survivors of atrocity crimes in their national jurisdictions.

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PART I, Distinguished Career in International Criminal Law: “Victims and survivors are the main purpose for prosecution.”

Could you start off by telling us a little bit about yourself? How did your background and early experiences inform your choice to pursue a career in international criminal law?

When I finished University, there was no such thing as a field of international criminal law practice. There was a human rights field, but essentially, I only knew that I wanted to help people. And I knew I wanted to leave the United States—so I wanted to help people somewhere internationally.

I started following a path that ultimately led me to be in Hungary. When the Bosnian War started and I was in Hungary, I thought I’d gone to the wrong place. I needed to go to Bosnia. But a lot of the refugees started coming into Hungry and I started working with the refugees there. I received some funding for a very little project in a refugee camp on the border between Hungary and Croatia. It was really through running that small project, which was for the teenage girls and the women in the refugee camp, that I was able to say that I don’t want to do humanitarian assistance work, such as providing food and blankets and medical care. I am more interested in policy work or human rights type work.

After I handed over that project to my successor, I did a Master’s degree of international affairs in international human rights at Columbia. I still saw no need to go to law school because I couldn’t prosecute more criminals, so why should I go to law school? I squeezed the two-year Master’s degree into one because I just felt like to get back to the field.

Then I went to Bosnia and started with Human Rights Watch, immediately post war. Therefore, the human rights documentation work that we were doing was actually war crimes investigation, which at the time was not a field of study, nor was it anything that you could take a course in. So, we did the best that we could at the time. That is why I have, and will always have enormous respect for Human Rights Watch. Even in those early days, now when I look back, the investigations were carried out with a very high standard, which we now hold up as an example, when we teach people how to do international crimes investigations.

It was during those few years in Bosnia that the ICTY and ICTR got set up. Then all of a sudden it was like, “oh, I gotta go to law school because I have to prosecute war criminals.” So I went back to school as one of the older students in Brooklyn Law School. I had a very clear goal of going to law school and I focused solely on that goal. I did some field work in Chechnya and in Kosovo in my breaks between years in law school, and then immediately went back to the field after I finished.

Essentially, I started in the human rights field and I have grown my career in international criminal law as the field has grown itself. I have been in it since its inception. I feel so fortunate to have that perspective and to have been working with all the amazing people in the organizations that I’ve been able to work with over this period of time.

Throughout your career, you have conducted field work extensively in multiple geographic areas: Chad, Guinea, Guatemala, Kosovo, and many others. How would you say your field-based experience shapes your decisions and strategies in the courtroom itself? And how does your experience in trial influence your work in the field?

I think that all my experience in the field was directly impacted by how I carried out my work as a prosecutor in the courtroom. I wouldn’t do it any other way. I would let you know that doing the field work is a critical part if you want to practice international law. But I won’t say it was easy. The field of practice of international criminal law, at least at the international level—meaning international tribunals or hybrid tribunals level—is heavily populated by national practitioners, who come there with a lot of courtroom practice experience at the national level. I didn’t have any. I was born in the United States. I am a U.S./German dual citizen. I never worked in the United States. I have only practiced international criminal law. Therefore, I had a different profile than my colleagues did. I learned so much from them; and I hope that I also brought something unique from the field perspective.

However, the only way for me to do this kind of prosecution is for the benefit of and in service to the victims and survivors. Victims and survivors are always at the heart of the main purpose for prosecuting these cases. The fact that I have spent so much time in the field sharing experiences directly with the affected community has given me greater confidence in striving to serve them and bring them justice. It has definitely enriched my life. It has enriched my trial practice. Now it is basically a core part of the work that I am doing with my co-founder, Kathy Roberts, of PJI. This is a core principle upon which we operate. Everything that we do is in service of the affected community of victims and survivors.

What are some of the biggest challenges or trends that you see in the development of international criminal law? How have those trends and challenges influenced your career? 

Nobody was being held accountable for war crimes, between Nuremberg and when the ICTY and the International Criminal Tribunal for Rwanda (ICTR) were started. There was no trial, no accountability, and no forum to bring a case. We had very amazing human rights litigations being done by our colleagues, but there was nobody being held criminally responsible for these crimes. The mere fact that accountability became a thing, that it is taken for granted that people will be prosecuted for war crimes and crimes against humanity and genocide, is an absolutely amazing development. I think the international community is the one that got behind that effort. The international system worked to put in place a mechanism for accountability and then another and then another, ultimately leading to the establishment of the International Criminal Court (ICC). The ICC was like a pipe dream when it was being discussed in the early days. The idea that there should be a permanent sitting international court, that would hold people accountable if their country was unwilling or unable to do so, was nothing short of a miracle at the time. I have to say that in my career lifetime, there have been enormous strides and there has been way more accountability than I think any of us imagined could be possible. That’s the good part.

I think the challenging part in terms of accountability is that the responsibility at the state level is still in its very early stages. Whereas you do have some locations that stand out in terms of national prosecutions of international crimes in national courts, it has not kept up at the national level with the scale of advancement at the international level. Some of that is political; some of that is about resources; but some is just about access and where the effort is made to build capacity.

That is why with PJI we are focusing on building the capacity of national practitioners in national jurisdictions. International Justice, though incredibly powerful, serves a very small fraction of the affected communities, even at its best. I am an enormous fan of internationalized justice; however, even when a case goes forward and even you have victim participation, only a limited community of victims will be brought justice and only a limited number of perpetrators will be facing trial. So, the bulk of that kind of justice has to happen at home. That is, I think, where so much work needs to be done. We are trying to take a fraction of it, but it has to be a global effort. I have come kind of full circle working in the field and national jurisdictions then litigating at the international level. Now we are bringing those experiences to our colleagues, our peer prosecutors, investigators, and victim lawyers who are trying to litigate these cases in their own national courts. It is an absolutely incredible experience.

 

PART II, Work for Women, with Women, as Women: “It is hard to decide between tackling the misogyny and practicing international law.”

A lot of your work involves investigating and prosecuting sexual and gender-based crimes. Could you give us a little bit of a background and briefly explain the differences between sexual violence and gender-based crimes for those who don’t know? What are the challenges that arise from fighting against gender-based crimes specifically as a woman?

Very briefly—gender defines roles that are socially constructed and it is essentially a fiction, but a lot of people suffer persecution on the basis of gender. Gender-based crimes can be much broader than the sorts of gender-based sexual violence crimes that we are focusing on as international crime prosecutors and investigators, so I am not an expert on gender-based violence in the broad sense. What I do have an expertise in is conflict-related sexual and gender-based violence, meaning atrocities that have some kind of a sexual component to them.

And it is complicated. It has been really interesting to watch the development of this. The reason why I got into it, I think, is because when we were documenting international crimes in Bosnia with Human Rights Watch immediately after the war—literally, I arrived there two months after the war ended. There was no way to avoid being exposed to the severity of the sexual violence crimes that were committed. If you were going to communities and displaced persons’ camps and speaking with victims and survivors, you were going to face sexual violence crimes. There was one victim in particular who really affected me deeply. That was probably the one who brought my attention. I would never quantify and compare severity of harm; but the way in which she had emerged from those experiences was somehow different to me. It grabbed me for quite a while and from then on, it was very much on my radar.

That was the late 1990s, where the tribunals were just getting up and started. In that time, gender justice advocates, of which I am the second generation, were pushing for sexual violence crimes to be recognized as standalone crimes, not to be subsumed under something else, in order to acknowledge the extreme and unique nature of the impact on victims that sexual violence causes. Not because they were quantitatively different, but because they were qualitatively different. The survivors deserved justice that was tailored to the nature of the harms that they had experienced. They deserved for it to be called rape, if that was what they experienced and that was what they wanted it to be called—not just to be called torture. It was incredible to be a part of that process.

The core challenge of our lifetime is to bring survivors into the courtroom and to be able to have the trial process be an empowering experience, rather than a re-traumatizing one. How do we bring justice that is respectful and tailored to the particular needs of the survivor, but make sure that the survivor is not sacrificed to the process? That is a big challenge because the legal system and the courtroom trial are not compassionate and supportive environments, even in the best of circumstances. It is not designed that way. How do we bring in that respect, while also abiding by all of the principles of due process and the rights of the accused that are pivotal to any effective justice system?

We did that, and a couple of things ended up happening that we are now focused on overcoming. For one thing, in treating the harm of sexual violence as something unique or different, we also kind of suggest that it is either not as bad or not as likely or foreseeable as non-sexual crimes. In some of the jurisprudence, there would be the idea that it was foreseeable that this militia group would kill and torture non-sexually and loot and pillage, but it was not foreseeable that they would also rape. One thing that has become clear, I think, is that we had not changed the fundamental belief system and mythology that underlies all of these decisions. We had not really changed the entrenched misogyny that underlies the persecution of vulnerable groups—survivors of sexual violence, male or female—and that pervades everything including the courts, and the practice of law. We have our work cut out for us.

At this point, knowing what I know now, I would certainly still try to bring standalone charges of sexual violence, but I would also, with complete deference to the victim’s choice, recommend charging non-sexual violence crimes—charging rape as an act of torture as well—to make it clear that it is just as grave and just as serious as torture and other forms of cruel treatment. This should not be something that we have to prove, but the reality is that we still have to prove that. One of the challenges that the prosecution still face is how to bring justice that serves the victims, but also to advance the law and to build a greater understanding of the fact that sexual violence does not need and does not have a different evidentiary standard. The survivors of rape are no less credible than survivors of non-sexual torture, simply because they are women, are elderly, come from indigenous communities, and do not speak the language that is spoken in the capital. There is an enormous amount of underlying discrimination. The discrimination impacts on how prosecutors decide to bring cases, because if the witness is going to be assumed to be not credible, what is the prosecutor going to do? Charges of sexual violence usually do not have medical documentation, because the crimes happened a while ago, the country was at war, and there was no doctor or rape kit available. For instance, in the Special Court for Sierra Leone all of our cases, with the exception of the Taylor case, were primarily based on witness testimony. That requires the court to find the witnesses credible, which in turn requires the court to actually think as highly of a rural elderly female indigenous woman as they do of a younger male from the city. There is no legal standard that requires a different level of scrutiny, but that is the reality of what we face in the courtroom. Those are the challenges that are not unique for a woman prosecutor.

As a woman, it has gotten a bit better as I have gotten older. I think any hardcore profession is still harder as a woman in many ways, and we still have to make choices that certainly our white male counterparts don’t ever even notice. If you want to move forward in a career in international law as a woman, you have to decide whether you are going to tackle the sexism and misogyny that is going to come at you, or whether you are going to practice international law. It is really hard to do both. I am sure a lot of my enormously respected peers will disagree and maybe some of them have managed to take on both. I know that I have not managed to and I have great admiration for those who have.

It is still extremely difficult to work in the international criminal legal field as a woman. At the time when I was a trial attorney at the ICTY, I was the only female prosecutor at that level with small children. The system, at least the ICTY system, which I think is heavily modeled on the American common law system, is not set up for you to be doing anything else except that round-the-clock. I do not think it needs to be that way, even respecting the rights of the accused to a speedy trial. And it is particularly difficult to investigate in the field as a woman in conflict zones or post conflict zones, which entails unique risks. There are certain realities that we have to face. I hope the choices get easier.

Are there any advantages that come with being a woman?

One part of the advantage, I hope, is that those female survivors of sexual violence crimes or of any atrocity crimes may feel a comfort in connecting to another woman. I don’t think that it is necessarily the case. It is not my view that it has to be a woman who investigates or even interviews survivors of sexual violence. But I do think that there is a comfort to the victim that I have experienced many times, which is a beautiful thing.

Another part of the advantage is perhaps the diversity of thought that we may bring to the law, which was originally developed by men, but could use a more diverse interpretation or type of practice. For example, by working with women victim organizations that are run by women, we are able to share ideas and develop creative strategies for witness protection in a way that is possible only if you understand the community that women are living in and how that operates. I hope that over time the more women that participate in this, the more the law is going to be more of a home for women practitioners as well. I am sure that some of my women colleagues and peers find it already to be so, but I also know for a fact that many of them don’t.

Honestly, it is hard to conclude that way. I have been taught and mentored by incredible male professionals who modeled for me that “if you’re doing your job right, you’re doing your job right.” And if you are empowering the survivors and focusing on justice for the survivors and the victims, it really does not matter who you are or where you come from. I cannot say and would never say that men cannot do it. I would say that there are some distinct advantages. I think that being a woman and dealing with victims of sexual violence has a bit of an ease to it that a man might not have.

What would you say the most important lessons you have learned from the women that you have worked with for helping survivors of sexual violence, local lawyers, people on the ground?

For victims and survivors, what I learned is that most of the assumptions that are made about them are just wrong. They don’t need someone to decide for them about whether or not they might want to testify or might be upset. They don’t need somebody to disempower them again. They know very well what they want and they know very well how to decide that. They have a right to have the information brought to them, and they will make the decision. It is important to not re-traumatize the victims; however, this idea that we cannot investigate sexual violence crimes because we don’t want to re-traumatize the victims has somehow become an excuse to not investigate those crimes or include those crimes in cases. It is still viewed as a separate subject that needs a specialist, a special kind of prosecutor, a special court, and special everything. Actually, this notion has contributed to taking away the agency of the survivors and separating them out and blocking their access to justice, more than it has to include them.

Therefore, I have learned that survivors want to participate in the justice process. They want to face their perpetrator if they can—we are very often dealing with a superior of the direct perpetrator. There is such a hunger for justice at the national level that if victims are engaged in the process from the moment that the investigation starts and if they are consulted as integral part of the process throughout, they will have an empowering process even if the ultimate result of the trial goes wrong or does not go the way they want. In the genocide case against the former president of Guatemala, Ríos Montt, he was convicted at trial and on appeal, but the conviction was overturned by the Constitutional Court on a procedural ground. But the survivors who went through that trial—who are elderly after waiting 30 years for justice—celebrate every year on the day of the conviction, which was overturned. They have a celebration not because they did not want him to be convicted, but because that was not the only point. Their story has been told. They have had their day in court. There is documentation of the atrocities. If it was not that guy, there has been and will be other guys being convicted. People want justice, but they also want to be engaged as part of the process.

That is a core part of the practice that we are sharing with the investigators, prosecutors, and victim lawyers that Kathy and I are working with through PJI. They asked us to help them on their cases because they have never prosecuted international crimes cases before. The piece of integration and ownership by the victim community and building that relationship from the beginning so that victims feel involved and consulted in the process—that is something we bring as a core part of our partnering and mentoring local lawyers. That is not only the main way to bring justice to those whom we serve, but also the best way to present a strong case. If you know your victims and your victims are engaged, your case is going to be spot-on and true to what happened. It is going to be compelling because crimes are awfully compelling.

 

PART III, Reflecting and Looking Forward: “My heroine is my mother.”

As an international criminal lawyer who is confronted with some of the most atrocious aspects of human behavior, how do you manage to keep faith in the world, in the future and in international law? Do you have a legal hero or heroine that you look up to, or some guiding force that gets you through?

The thing is that, if all of these survivors can come forward, share with us what has happened to them, repeat it again and again and again, and come out feeling that justice has been served in some way, then how can I let that get me down? In fact, if you look at the atrocities, you will also hear stories of humanity and courage and bravery and rescuers. I don’t have that view in a naive or flippant way. I believe that because I have seen that in every context where I have investigated or prosecuted or supported local prosecutors. I have seen that there are the most powerful stories of humanity that come out of those terrible crimes. If the survivors can hold on to those stories, we also must hold on to those stories. That is what keeps me going. That is what I told my children. There are awful things that happened in the world, but they are dramatically overtaken by the good in the world. I really do believe that and that comes from my mother, my heroine. She was a teenager during WWII. She went through all the concentration camps, including Auschwitz and she survived. She came out of that as an optimist, believing the good of humanity, which sounds crazy, but I know that it is true to who she is. She is the kind of motivation for what I do.

What advice would you have for young women considering a career in international criminal law today? What are some different pathways into the profession, and what are your thoughts on that?

If we do our job right, then these crimes should be prosecuted at home in national courts. The industry of internationalized practice of international criminal law should get smaller and smaller. Courts such as the ICC are structured as last resort options only if the country is not willing or able to prosecute these crimes at home.

Unfortunately, there are so many countries that are unwilling or unable to prosecute these crimes at home. The expectations for the ICC are so much larger than the capacity will ever be even when it operates at its optimum. The future of international criminal law is about domestic application of international criminal law. Therefore, my advice to students who want to go and practice international criminal law is to go to the field, because international crimes are not committed in Cambridge or in Los Angeles. If we want to be good prosecutors, we have to go to the ground. I am not talking about going during a war, but we have to go to the communities where these crimes have been committed and support our peers there to bring localized justice. That is really what international criminal law in practice should be about—with a minority of people doing it at the international level, because we cannot do without that.

There are brilliant national processes under the mechanism of universal jurisdiction in a number of countries and it is continuously expanding. That is the domestic application of international law, where a lot of work needs to be done. If you have a case of war crimes committed in Syria and it can be brought in a German court under the notion of universal jurisdiction with a certain personal jurisdictional link, there will be accountability brought to a national trial even if Syria is probably decades away from any national processes. That is a very powerful tool. In this regard, the United States is lagging far behind. There is a powerful academic community. There are brilliant civil ligations that have been being brought for years, which my law partner Kathy Roberts is an expert in and she brings into the work we are doing in different countries. But there is scarcely anyone who has been prosecuted. It is not only a political thing, not only during this time where things are so up in the air. Thus, for anybody who wants to practice international criminal law in the United States, you should start building it.

To sum up, for law students who want to study and practice international criminal law, I would first of all encourage you to go to the field and spend time in the field as much as you can. I would also encourage you to gain courtroom experience. Finally, I really encourage you to focus on national systems because that is really where the international criminal law should be applied. If you have another citizenship, you can move around. If you want to stay in the United States, where actual prosecution of war crimes, crimes against humanity and genocide in the courts is not a heavily populated activity yet, your task is set.

Are there any concluding remarks that you have and want to share with our audience?

I just want to encourage everyone who wants to go into this to just go for it, to get out there, to not be daunted by what seems like huge obstacles. For anybody who comes to me for mentoring or career guidance, in a post COVID-19 world, my strongest advice always is: “which region interests you?” “what languages do you speak?” and “can you afford to buy a ticket and go there?” That is really where all this starts: in the affected communities. That is how I started and that is the way to really get the exposure that you need in order to properly bring this kind of justice or help others bring this kind of justice. You can do it if you want to do it. You definitely can.

* This transcript was edited and condensed for better reading experience. Click the subtitles below to watch the vivid, candid, full-of-laughter conversation between Judge Barkett and ILJ editor Kathy Zhang. 

Judge Rosemary Barkett is the winner of the Prominent Women in International Law Award in 2017, and a judge on the Iran-US Claims Tribunal since 2013. Before her appointment to the Tribunal, Judge Barkett was on the Court of Appeals for the 11th Circuit for 20 years. Before that, she served as the Chief Justice of the Florida Supreme Court, and was the first woman Justice to serve on the Florida Supreme Court. More recently, in 2015 Judge Barkett was appointed to the Panel of Conciliators for the International Center for the Settlement of Investment Disputes. In 2016, she was elected Honorary President of the American Society of International Law.  

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Part I, A Distinguished Career: “I Love Being A Judge”

Let’s start by talking a little bit about your background.

My father and mother were both born in Syria, in 1899 and 1905 respectively. After they married at a young age, they attempted to come to the United States, with my father’s brothers. But my mother was pregnant, so they had to wait. When they later tried to come, they were refused, having been caught by the limitations of an immigration law in force at the time. After my brother was born and the quota system refused permission to enter from Syria, they thought that if they managed to come through Mexico, then they could come and join their family in Florida. Some way or another—which is an amazing story in itself—at the age of 19 or 20 for my father and 16 or 17 for my mother, they managed, with a child, to travel from a place near Homs in Syria to Marseille, where they took a boat to get to Mexico. When in Mexico, they found themselves barred by the same quota immigration laws for entry into the United States. They spent twenty years in Mexico, where my siblings and I were born. My first language was Spanish, although my older brothers and sisters spoke both Arabic and Spanish. We ended up coming to this country when I was about 6, and I went to Catholic schools here and obtained my education thereafter in Miami.

How do you think being an immigrant and a child of immigrants have shaped your view about America and its promise, inscribed on the Statue of Liberty?

When I was growing up, my mother loved this country. She was a total fan of the “America,” —she spoke with an accent—and I derived a great appreciation and love for it from her. Throughout my legal career, the more I learned about the constitutional principles and the attempts to obtain equality, and the more I saw the country pick itself up and recover and try to do better when it fell the other way, the more impressed I became from a whole different legal perspective.

I was extraordinarily lucky that I had both the Syrian experience, the Mexican experience, and the American experience. The more experience that you are exposed to, the more understanding you have of the various viewpoints and perspectives that different people have. I am also very fortunate that in terms of my job description it works, because a part of what I think a judge has to do is to understand the positions that are presented, and you understand better when you have as wide a perspective as you can obtain.

As a human being, I just cannot minimize the tremendous opportunities and joy of having all of those experiences and music and food and people. I want everyone to have this experience! Not everyone can be born to immigrant parents, but they can go places, relate to people, learn languages, experience food and music, and be open to all of that. I think that makes you a better person. The similarities between people’s desires, needs, wants, and concerns seem to be the touchstone of gaining more understanding of how to make the world a little bit better.

Law school classes in recent years have become increasingly diverse in their multicultural fluency. Do you think this is going to shape the law going forward?

I hope so. Diversity is extremely important because we are a diverse race. We have to understand and represent the views of varying groups of people and perspectives. You cannot understand if you don’t open your mind in some fashion. You can’t always have the same experience, but you can learn about them by reading, travelling, and talking to people. You can try to understand why someone has a different perspective and what in them developed those perspectives. So yes, it is hugely important.

Do you think that drive to learn about different experiences and to hear and understand them informed your choice of career to be a lawyer and a judge?

It is very limiting to have one life—but I can’t say I’m disappointed in having chosen the law. I love the law, I loved being a lawyer, I love being a judge. I’m not sure I can answer the question of whether or not my experiences as an immigrant or my childhood informed that decision. I don’t consider myself a brilliant person by any means. I’m smart enough, but I’m not the philosopher that I would like to be… But the law ended up being a great fit for me. I love the concept of an organized society where people can interact peacefully with one another.

And this concept is facilitated by the rule of law?

Definitely. Except that people don’t define the rule of law the same, and that’s a huge problem. I have been to conferences all over the world, sponsored by all kinds of regimes, and everybody is speaking about the rule of law. But the rule of law as it is expressed in a country with a dictator is very different from the rule of law in a democracy or in a republic. I think a lot more work has to be done about trying to get people on the same page about what are the essentials that the world thinks of as part of what the rule of law should be. This is not easy because there are cultural issues that conflict with the rule of law, very frankly.

What was the transition from lawyer to judiciary like, and why did you decide to make that transition?

I started practicing law in a small trial law firm with 8 to 10 people. Like many small trial law firms, things went along very well for a while and then disagreement arose and people decided to go their own ways. Then, I decided to practice on my own for a year, which became a very hard situation to maintain—you are constantly on the run. So, I reached a point where I knew I would either have to go to work for a firm, or join somebody, or do something. At that point the members of the Judicial Nomination Commission approached me—I was practicing in a small legal community where everybody knew everybody, and people on the committee wanted a trial lawyer on the bench. They said I should apply, which was something that had never occurred to me. I never thought I could be a judge; I didn’t know anybody; I was not politically aware probably as much as I should have been. But I applied anyway, thinking that I could take a year or two as a judge and see the law from that perspective and I could become such a great trial lawyer after that. I got appointed, and I didn’t want to leave the bench at all because I love being a judge. It was a terrific and has been a terrific experience.

Can you tell us a little about your transition from the Florida Supreme Court to the Eleventh Circuit, and then to the Iran-US Claims Tribunal? What were the biggest differences you found between the state and federal institutions?

Procedurally, the differences between the state courts and federal courts are not so great. You consider evidence, you study the law, and you try to apply the law to the facts in particular cases. The appellate process is the same. The lawyers come, they argue and the judges debate in conferences. You then write opinions and explain why one side is more correct than the other.

Substantively, it is very different. For one thing, the Eleventh Circuit covers the federal jurisdiction, much of which is not dealt with in state courts. For another, the way in which judges look at the rules differ a little bit. For example, in Florida we have a concept that says, in a criminal case, if there is only circumstantial evidence and the circumstantial evidence is equally consistent with a finding of guilt as well as with innocence, you cannot convict because guilt is not beyond reasonable doubt. On the Eleventh Circuit, I was surprised by the law that the jury decides everything, even in the aforementioned circumstances. I still think that does not make much sense, but things like that—and the more obvious things, federal laws, bankruptcies, everything else that does not have anything to do with state law—are different. In the state court, you are also a little closer to the people, the lawyers, the litigants. You are much more aware of the ramifications of what your decisions are. The federal court seems a little bit more distant.

What about the differences between the U.S. and international institutions? Are there any cultural differences between these two?

The differences are huge. For the record, I am not someone who has spent thirty years in the international law arena. Although for many years—even before I got on the court—I have been involved in international law from an interest perspective. I was very involved with ASIL. I participated in helping develop programs to educate judges about international law—again, the more judges know, the better judging would occur. That’s how I got to know Charlie Brower and other giants in the international legal field. However, I never thought there would be a career for me there until I was asked in 2013 to consider the Iran-US State Claims Tribunal. My experience in international law before that was more intellectual, and my experience thereafter has not been huge.

First, the Tribunal is a very different legal animal than the experiences that many international lawyers would have. It is not a one-shot deal like a single arbitration. This institution has been there for almost forty years. It is a quasi-arbitration, quasi-court institution. It has its own rules, and its precedents have been established by different people throughout the years, as judges have come and gone. Second, the way in which international law is practiced on the continent is different from the principles I am familiar with. I think there is lots of wasted time in international arbitrations! But you have to take everything I say with a grain of salt, because I have not experienced two hundred or two thousand arbitrations. I have participated in several non-tribunal arbitrations, and I have seen my own tribunal. It does seem to me that there is a lot that could be considered about and copied from the U.S. system in terms of—for example, motions to dismiss. In the United States, you cannot file a complaint without a good faith belief that there is a legitimate issue. There is nothing comparable as I am aware of in international law. The arbitrators do not have the same level of control as the federal or state judges have over frivolous claims or in imposing sanctions for ethical violations. Therefore, you have to operate in a different theatre in order to achieve justice—which does happen.

 

Part II, Life as Woman in International Law: “A Dismissive Kind of Discrimination”

You are currently the only female judge on the US-Iran Claims Tribunal. The ICJ is overwhelmingly male, and the ICC skews male as well, though slightly less so. How should we think about this disparity, and do you think it affects the outcomes at all?

This is a hard question. Throughout the years I have seen several law review articles that tried to evaluate decisions based on gender composition of the courts, but I don’t know. There is empirical evidence in a different context, though. Someone has sent me a poster which showed that women-led nations have been doing significantly better in response to the COVID-19 situation. It does seem to me that women are much more open to hearing perspectives and views. Not all of them are as ready to say that “I know it all.”

I think gender, racial, and ethnicity representation on courts and on boards is extremely important, because of its impact on inclusiveness and on the understanding that we are all part of the same world and need to have our group represented. Having said that, the more important thing for me in terms of diversity on courts is the diversity of viewpoints. Sometimes you can have diversity of gender but absolutely no diversity in viewpoints. The value of diversity on appellate courts, for example, is to have more than one viewpoint. If you are going to have multiple members who think exactly alike, why not save the money and have one judge be the appellate person? One has to examine whether there is diversity of thoughts that is going to be enhanced in a particular institution.

Here is a silly little example. I was in a court conference when I was on the Eleventh Circuit. There was a case where a man had just sold all his properties and was going to the Bahamas and had a hundred thousand dollars in his pocket, and the whole question was: why did he have so much money in his pocket? People thought that it must have come from drugs or been illegal. A judge said that a non-criminal person would have put it in the bank. I said wait a minute; my father kept much money in the house. He didn’t really trust institutions, he couldn’t speak English very well… And the other judges were all like, really? And I said yes. He kept tons of money at home somewhere, and it doesn’t mean that he was a criminal.

Can you think of a time during your career when you were made very aware of your gender or your ethnicity? Do you have any advice for young women starting a career on how to navigate those situations?

I think you have to be patient. There are so many degrees that people suffer in gender discrimination in different ways. Many times, you may not be aware that you have been discriminated against. If you don’t get a job, you cannot always tell if it has anything to do with your gender or your race or your personality. There is direct discrimination like that—you cannot have the job because you are a woman—the kind that Justice Ginsberg suffered through, for example.

There is also a lesser, more subtle kind of discrimination—a dismissiveness kind. I have noticed that a lot throughout my life. You are in a group, you express a view, which you think is very sensible, coherent, and clever, and everybody sort of nods. Two speakers later, one of the men in the room expresses exactly the same view and suddenly everybody is nodding and is like “that is really brilliant!” That’s something that I don’t think they see, and I don’t really know how to talk about it other than at some point like this. Women, no matter how brilliant they are, are not listened to in the same way or given the same acknowledgement sometimes. I think I have been very lucky in not experiencing very direct discrimination by being a woman or a minority. The groups of people that I have been part of are, for the most part, very generous sweet people, or at least I saw them that way. If there is discrimination, it happens to me in a more subtle and unaware way.

 

Part III, Looking Forward: “We need to be more obnoxious about gender violence”

You mentioned that a lot of work that needs to be done on the rule of law is to get people on the same page and to overcome the cultural issues. Can you expand a bit more on that thought?

It is so complicated because if you want to have a message heard, you have to be the messenger whose message will be heard or can be considered. If someone is too abrasive or aggressive, you have to take that into account. Some way or another we need a whole range of activists, and I call anybody who wants to make the world better an activist. But an activist can range from someone who is willing to go out and put their lives on the line in a demonstration where injustice occurs, to somebody who sits in their judicial office and writes opinions that are fair and tries to impose a rule of law that requires a just result and treats people equally.

Trying to get people together to reach an agreement on what are the basic principles of a rule of law is difficult, because you have to communicate with people and try to bridge important cultural differences. But there have to be certain principles that, I think, can be shared. For example, independence of the judiciary—I can’t imagine a group which would disagree, at least in form, that it is imperative to have a judiciary that is going to treat people equally and not be corrupted by money or power.

But then you get bogged down when you get to other things. Eliminating domestic violence is an issue that I think everybody should be able to get behind, and yet I am aware of some cultures that hold opposite beliefs. I had a debate with a judge in another country who said that “it was not rape to rape your wife, because she was your wife.” We need to find ways of communicating to bridge gaps in views like that. There is something that cannot become acceptable just by saying that it is culturally ingrained. There is something that violates human dignity and even human personhood that you cannot excuse on the basis of cultural differences. I know others have different opinions, but maintaining one’s culture should not be at the expense of hurting someone. This is the whole concept of the golden rule: you should treat people in a way that you want to be treated, you should be left alone to be whomever you want to be. There should be a world that is supportive of letting you be whomever you want to be, and you should never hurt anybody else. In fact, I attribute the whole concept of social justice to my upbringing in Catholic school and in the convent, where those were the values that we were teaching and I was learning.

In this country and around the world, both as a result of rapidly evolving technologies and of shifting political wills, there seems to be a change in how people are understanding “fundamental human rights.” What do you think are some of the most important issues in this area, particularly in regards to women’s rights?

Gender violence. We don’t speak about it enough, we don’t explain to the general public how pervasive it is all over the world—even in our own country. I did a lecture at NYU titled “Bringing Human Rights Home? I Thought They Were Already Here.” It talked a lot about the Supreme Court cases that said police officers have the discretion as to whether to answer a domestic violence call or not. This line of cases is appalling and needs to be changed. I think the cultural views that are held in some countries, that rape is a price of war, are outrageous. I think you don’t own your spouse and cannot inflict physical or mental or any other kind of harm upon her. I think that is one of the largest problems in human rights that is very seldom addressed adequately. I am not the only one who points that out—it happens because men don’t have to deal with this issue as much. Every woman that walks through an alley at night has a fear that men who walk through the same alley do not have, of being raped, of being physically assaulted. We need to engage men in this debate to eliminate gender violence. I don’t understand the mentality that permits fragile people to be abused. Anyway, we should do something about it.

What can we do about it? How can international lawyers make an impact in women’s rights both around the world and at home?

We need to be more obnoxious about it. We need to keep talking about it. We need to follow the example of all the people who have been walking in the streets because of police brutality, peacefully. We cannot let people forget the magnitude of this problem. We should call it out whenever we see it. We need to encourage any of our sisters who are experiencing it to do something about it. We need to support shelters, we need to bring lawsuits, we need not laugh at jokes which are told at the expense of women in law firms because we are afraid that the partners are not going to make us partners. I really think if you are sincere and you stand up, you will be respected for it, assuming that you do it with as much charm as you can muster. It is a complicated process but we all have to engage in it. It would be much nicer if I could bluntly say “that it is the stupidest thing I have ever heard.” But doing it that way is not going to change them and is only going to solidify their views. I also have the tendency to sometimes not be the messenger that I would like to be, but I continue to try and be more tactful at it.  But you cannot ignore it—that is what I think we have done for way too long on the whole issue of gender violence.

And let me make that crystal clear: you cannot only do one thing. I get very annoyed at people who are only interested in protecting or advancing their own, individual groups’ rights. That is not how this works. Fundamental rights and human dignity—I apologize for being preachy—is something that cuts across all the spectrums and we have to speak out on all the spectrums. You cannot say that I only care about making sure that women get the equality and power they deserve. It has to be everybody.

What are you most looking forward to? What are you hopeful about?

I hope that the world will get better incrementally. As a realist, I doubt that there will be a dramatic breakthrough, though I will certainly embrace it if there is any! I hope we will be able to understand how to communicate better, so that the values that I espouse will be understood by those who don’t seem to have the same values, or those who seem to have the same values, but somehow can’t see that those values are not being advanced. I am looking forward to continuing to enjoy my life. I got on a paddle board in the Hague on one of the canals, and I did stand up to have a picture taken! I am looking forward to the end of COVID-19. I am looking forward to going back to real work since the Tribunal has been working virtually. Just making life better for everybody.