Confronting the challenges of ethical accountability in international human rights lawyering.

• Author: Moley, Nell

International human rights lawyering often entails great ethical responsibilities to the people with whom advocates work. Despite this, there are very few binding ethical regulations in this area to guide practitioners, and little scholarly discussion of the issue. This Note draws from a review of scholarship in multiple disciplines, existing regulations in relevant fields, and original interview materials to provide a thorough examination of the applicable standards of professional conduct that govern human rights lawyers working abroad. Part One identifies the central problem of the potential ethical challenges facing human rights lawyers. Part Two provides an in-depth review of the existing regime that constrains international human rights lawyers, including a survey of various human rights organizations' internal regulations. Part Three identifies the gaps in this regime and in the current scholarship that addresses it. Part Four examines the framework governing international medical ethics as a rough model for a regime in international human rights law. Finally, Part Five offers a solution to the problem of ethical accountability, in the form of six basic principles for human rights lawyers and a proposed framework for implementation.

INTRODUCTION: ETHICAL ACCOUNTABILITY IN INTERNATIONAL HUMAN RIGHTS LAWYERING I. THE POTENTIAL FOR ETHICAL LAPSES IN INTERNATIONAL HUMAN RIGHTS LAWYERING II. THE EXISTING ETHICS REGIME A. Ethical Rules Governing Lawyers in the United States B. Ethical Rules Governing Human Subjects Research: Institutional Review Boards C. Internal or Self-Imposed Ethical Regulations in International Human Rights III. GAPS IN THE ETHICS REGIME A. Limits to Domestic Legal Regulations B. Limits to Institutional Review Boards C. Limits to Self-Regulation IV. THE DOMESTIC AND INTERNATIONAL FRAMEWORK FOR MEDICAL ETHICS V. SOLVING THE ACCOUNTABILITY CHALLENGE A. Guidelines or Best Practices Regulating Human Rights Fieldwork B. Implementation of Standards for Human Rights Fieldwork CONCLUSION INTRODUCTION: ETHICAL ACCOUNTABILITY IN INTERNATIONAL HUMAN RIGHTS LAWYERING

Imagine a typical scenario facing a community that suffers from human rights violations. The community is part of a nation beset by economic weakness, political instability, and violence against civilians. Armed hostilities are rampant, placing members of the community at continued risk of serious harm or death. Ethnic and political tensions exacerbate the situation and often incite additional outbursts. It is not surprising when the community suffers a particularly violent attack by a regional armed group. Many people are raped, tortured, killed, or abducted. Families bear losses unimaginable to most in the United States. In the wake of this tragedy, the people of the community begin the slow process of rebuilding their lives.

A few months after the attack, a human rights organization wishes to conduct fieldwork in the area. Due to its history of human rights abuse, the community provides an ideal setting in which to document atrocities and further the organization's mission. Newly formed and eager to establish itself, the organization sends a team of lawyers to research the situation on the ground. During the course of the research, the lawyers identify several victims of rape, torture, and other atrocities to interview. To be as thorough as possible, the lawyers interview and videotape as many people as possible as they recount the attacks in detail.

After successfully obtaining the information that they seek, the lawyers leave. During the course of the fieldwork, many victims explicitly relive the horrors that they experienced. Although recounting the attack awakens painful emotions, the people work with the lawyers because they hope that the organization will bring them some form of either help or justice. In addition, the lawyers unwittingly expose the histories of certain victims, including those who suffered rape, to the community. Because of cultural norms that treat these injured parties as damaged, the community stigmatizes and ostracizes them. Lastly, word of the Western attention reaches a hostile armed group, which sacks the community in a renewed act of violence. Ultimately, the lawyers increase awareness of the overall human rights situation in the region. However, they never return to the community, and it receives no direct benefit from their research.

This hypothetical illustrates a common way by which victims of human rights abuse can be re-victimized by the work of inadequately trained or inexperienced human rights workers. Although fictional, this type of scenario may be more common than many think. (1) Work in the area of international human rights entails tremendous ethical responsibilities. Despite the best of intentions, even experienced lawyers can inadvertently create serious harm or risks of harm to victims in the name of human rights. Especially in culturally or politically sensitive situations, great care is needed to ensure that those seeking to help victims do not cause more harm than good.

This Note seeks to offer the first comprehensive overview in current literature of the unique ethical obligations and potential conflicts facing lawyers involved in international human rights fieldwork. Drawing from a review of scholarship in multiple disciplines, the existing regulations in relevant fields, and original interview materials, this Note provides a thorough examination of the applicable standards of professional conduct that govern human rights lawyers working abroad. In doing so, this Note also aims to stimulate a needed discussion of ethical accountability for human rights lawyers.

This Note focuses on lawyers in order to clearly illustrate the problem and potential solution in a discrete professional field. Attorneys enjoy an authoritative status in most societies, with heightened ethical responsibilities. Due to their level of specialization, they may be viewed as particularly knowledgeable, and may provoke certain expectations among those with whom they work. In the context of international human rights, however, the traditional ethical checks on lawyers are often much less pronounced. Likewise, there is a dearth of guidance in the legal community discussing the ethical treatment of third parties. Accordingly, this Note will concentrate on work conducted by lawyers who undertake human rights work with those who have experienced abuse abroad, and who are not traditional clients. (2) At the same time, this argument is intended as a suggestion for all professionals who work in the field of international human rights, and may apply with equal force to non-lawyers.

Part One identifies the central problem of the potential ethical challenges facing human rights lawyers. Part Two provides an in-depth review of the existing regime that constrains international human rights lawyers, including a survey of various human rights organizations' internal regulations. Part Three identifies the gaps in this regime and in the current scholarship that addresses it. Part Four examines the framework governing international medical ethics as a rough model for a regime in international human rights law. Finally, Part Five offers a solution to the problem of ethical accountability, in the form of six basic principles for human rights lawyers and a proposed framework for implementation.

1. THE POTENTIAL FOR ETHICAL LAPSES IN INTERNATIONAL HUMAN RIGHTS LAWYERING

   Despite the best of intentions, international human rights work can have unintended consequences. In the aftermath of the Rwandan genocide, humanitarian organizations continually supplied aid to refugee camps despite the fact that the camps were increasingly operated by violent armed groups, in what was described by those involved as "a total ethical disaster." (3) In 2005, relief organizations in India allegedly reinforced an unequal caste system by inadvertently participating in discrimination while helping to rebuild after a devastating tsunami. (4) Witnesses in international tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have been threatened or even killed in retaliation for their cooperation with legal authorities. (5) Most recently, researchers and students from Harvard Law School were accused of insensitivity and placing their own agenda over the stated needs of Palestinian refugees. (6) Clearly, human rights actors face a host of ambiguities and ethical conflicts in their work, and especially in areas of political instability and cultural conflict.

   Human rights organizations' need to safeguard ethical obligations to third parties is particularly acute when the organizations conduct fact-finding missions, investigations, or other research implicating people affected by human rights violations. This type of activity, understood broadly in this Note as fieldwork or research, (7) may cause or exacerbate harm to victims in several ways. As illustrated by the hypothetical above, there is often an inherent risk of violence or other physical harm that threatens researchers as well as the people with whom they work. (8) After human rights workers leave, these people may be left vulnerable to retaliations, as reflected by the threats to witnesses working with the ICTR and ICTY. The attention brought by foreign presence or the benefits bestowed upon a community may also upset ethnic tensions or incite other violence.

   In addition, interactions with fieldworkers may psychologically harm victims or others who have been subjected to human rights violations, a problem that many in the international community have identified and attempted to address. (9) Similarly, victims may be stigmatized within their community if the workers unwittingly reveal that they have suffered abuses such as rape. (10 Needless to say, nearly all subjects of human rights work will be...