TEACHING INTERNATIONAL LAW IN PURSUIT OF JUSTICE.

• Date: 22 March 2022
• Author: Van Schaack, Beth
• Published date: 22 March 2022
• Author: Van Schaack, Beth

As this Symposium reveals, (1) there are many ways the academy can contribute to, and catalyze, the identification, development, and enforcement of international law. Indeed, the Statute of the International Court of Justice (2) acknowledges the central role that academics (a.k.a. "the most highly qualified publicists") can play in elucidating the major sources of international law, particularly when it comes to ascertaining customary international law (which requires a rigorous empirical analysis of State practice coupled with opinio juris (3)), investigating the drafting history and subsequent interpretation of treaties, and identifying general principles of law from a comparative analysis of the world's legal systems. (4) When it comes to the practice of international law, human rights and international justice clinics give students the opportunity to learn international legal doctrines, methodologies, and the structure of the system. Clinical students regularly participate in litigation under the Alien Tort Statute (5) and related statutes as co-counsel or on behalf of amici curiae, (6) and academics routinely appear as expert witnesses in cases in which international or comparative law will be raised (or may even be dispositive). (7) University-based international law centers have sponsored treaty drafting exercises (8) and track II negotiations (9) aimed at the progressive development and application of the law. Programs such as the Franklin Fellowship enable academics to serve in government, where the content and application of international law is applied and contested on a daily basis. (10) Finally, those of us who teach the subject have the august responsibility of training the next generation of international lawyers and nurturing students' natural instincts toward justice. In this regard, I have always felt that my students represent my most important, and enduring, legacy as an international lawyer. The academy is charged with creating a cadre of committed international lawyers who will be rigorous in their research and analysis, culturally competent while working within legal systems unlike our own, and relentless in their pursuit of justice for those who most need it.

Teaching international law has never been more stimulating. Gone are the days when every course in international law began with the existential question: "Is international law really law?" (11) Now, professors of international law are beset with the opposite problem: there is too much material to cover in a single quarter, necessitating a careful curation for the general course and the development of additional specialized and upper division offerings on discrete subsets of the field. (12) And, just as Professor Laurence H. Tribe realized that constitutional law contains too many fissures, discontinuities, and indeterminate evolutions to be packaged in a single treatise or captured by a grand unified theory, (13) so too is international law experiencing a period of fragmentation and great flux, hardening in some areas while being forsaken in others. (14) The challenge of enforcement remains acute given the still vast chasm between international rules and rights on the one side and effective mechanisms for implementation and adjudication on the other. (15) To truly master international law, students must grasp the continuing impact of geo-political power inequalities; the vagaries of State consent; the uneven incorporation of international law into national legal frameworks; and the architecture of the international law system marked as it is by both decentralization and redundancy. At the same time, students must cultivate creativity and persistence--intangible virtues embodied by effective advocates operating within any legal system. Finally, human rights cases also require a trauma-informed approach to keep clients' well-being at the center of the representation.

On the first day of class, cognizant that students may not be familiar with the human rights system or have completed any advance reading, I introduce the harrowing story of Khalid El-Masri through the vehicle of his poignant op-ed in the L.A. Times. (16) According to the facts that have emerged, El-Masri--a German citizen of Lebanese descent was detained in Macedonia in 2003 because his name resembled that of a known terrorism suspect. (17) He was transferred to the custody of the Central Intelligence Agency ("CIA") in early 2004 and then transported to Afghanistan, where he was held incommunicado in a black site (the "Salt Pit"). (18) During this ordeal, he was allegedly beaten, sodomized, hooded, sedated, repeatedly interrogated, and denied access to a lawyer or to consular assistance, despite repeated requests and fervent assertions of his innocence. (19) He was later "reverse-rendered" to Albania, (20) given 14,450 [euro] (more than the $3,000 he had in his possession when captured but just under the amount that might raise eyebrows at the border), and forced to make his way back to Germany. (21) During the period in which he was disappeared, he apparently had no contact with his family or the German consular services. (22) Thinking herself abandoned, his wife relocated to Lebanon with their children when he did not return from his trip to Macedonia. (23) It later emerged that the United States knew El-Masri was one of several individuals who had been wrongfully detained in the aftermath of the September 11th attacks. (24) Even with this knowledge, it still took two months to release him once then-National Security Adviser Condoleezza Rice intervened. (25) It appears that only then was Germany was informed of the fate of its citizen. (26) The CIA's Office of Inspector General Report (27) and the executive summary of the Senate Select Committee on Intelligence report ("SSCI Report"), (28) among other accounts, both admit that El-Masri's detention was based on a series of cascading mistakes and failures of oversight followed by "bureaucratic infighting" once it appeared that he was innocent of any wrongdoing. (29) The two individuals most involved with these events received only an oral admonition. (30)

For this exercise, I provide the students with the following prompt:

You are a lawyer and the director of the national security and counterterrorism program for a major international nongovernmental organization ("NGO") called the Human Rights Initiative ("URL'). HRI employs all the usual tools of human rights NGOs: report writing and "naming and shaming" campaigns to raise public awareness; lobbying national governments and international bodies; capacity building; and strategic litigation. HRI field offices are extremely important to its operations, and HRI takes care to be sensitive to local social and political conditions and tries to build relationships with governments and other civil society organizations in the countries in which it operates. HRI particularly prizes its ability to work with government officials on solving difficult human rights problems, and views its reputation as a reasonable and effective partner as an important, though intangible, asset. HRI has recently taken on Khalid El-Masri as a client. For class, please come prepared to discuss the following questions: What human rights violations are implicated by El-Masri's experience? Who is responsible? Where might you pursue litigation? Against whom or which entity? How would you--as a practical matter--put together his case(s)? What other legal and advocacy options are available to you? Once we are convened, the first question I pose relates to the rights violated. This is intuitive to the students, who variously invoke international human rights language and the domestic analogues they have studied in their criminal law or tort courses. They immediately identify the prohibitions against arbitrary detention, (31) torture, and other forms of physical and psychological mistreatment. Students who have worked in Latin America will inevitably be familiar with the concept of the disappearance, (32) which encapsulates much of what El-Masri experienced. (33) This occasions a discussion of the spectrum of harm recognized by international law, which includes torture at the extreme end and various forms of cruel, inhuman, or degrading treatment toward the other, and the difficulty of quantifying these gradations. (34) The lack of an equivalent to the tort of intentional (or even negligent) infliction of emotional distress offers an opportunity to discuss the central role that gravity plays in delineating the reach of international human rights and international criminal law. (35)

Although the students invariably start with the violations of physical integrity rights experienced by El-Masri, many will also identify the secondary rights at issue: to be informed of the charges against you, to appear before a judge, and to enjoy due process, even when accused of heinous crimes. Occasionally, those who have studied public international law will raise the issue of consular rights (36) and non refoulement (37) as well. Someone will invariably note that El-Masri's family might also have claims against those responsible for the disappearance of their loved one. This enables a discussion of the cognizability of economic, social, and cultural rights, such as the right to family, (38) as well as the overarching rights to a remedy and to judicial protection and the emerging right to truth. (39) Later in the course, we read cases in which the family members of victims and survivors are able to recover for the psychological and economic harm they experienced by virtue of harm to another. (40)

Once the implicated rights are identified, I can map the corresponding treaties, highlighting which ones have been ratified by the United States and other States involved in this rendition. This occasions a quick discussion about the domestic enforcement of treaty norms, the challenges of treaty ratification in the...