About Our Guest
Deena Hurwitz is director of the Human Rights Program and the International Human Rights Law Clinic at the University of Virginia School of Law. From 2000-03, she was the Robert M. Cover/Allard K. Lowenstein Fellow in International Human Rights with the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School. While at Yale she co-supervised the law school’s human rights clinic, coordinated events sponsored by the Schell Center, and taught International Human Rights at Yale College.
Before entering academia, Hurwitz served as a legal counselor with the Washington Office of the U.N. High Commissioner for Refugees. She spent 1997-99 in Bosnia and Herzegovina, where she was director of the International Human Rights Law Group’s Bosnia program for 14 months. Before joining the Law Group, Hurwitz served as an Organization for Security and Co-operation in Europe (OSCE) liaison officer to the Human Rights Coordination Centre of the Office of the High Representative in Bosnia and Herzegovina.
In 1997, Hurwitz worked in Ramallah (Israeli-occupied Palestinian Territory) with the Centre for International Human Rights Enforcement, as executive administrator for a project involving human rights enforcement under a European Union-Israel trade agreement. She has also been a consultant with the Women’s Division of Human Rights Watch, investigating violations of women’s rights under Morocco’s Family Code.
Before attending law school at Northeastern University, she worked more than 10 years for the California-based Resource Center for Nonviolence, where she was involved in capacity building and training with nongovernmental organizations in the United States and the Middle East. Between 1981 and 1993, she led regular delegations of U.S. citizens on study tours of the Middle East, and spent a sabbatical year (1989-90) in Israel and the occupied Palestinian territories.
Hurwitz has edited Walking the Red Line, Israelis in Search of Justice for Palestine, and authored “Lawyering for Justice and the Inevitability of International Human Rights Clinics” (Yale J. Int’l L. , 2003). More recently, she has served as a consultant with Global Rights in Afghanistan, and with the Center for Justice and Accountability in Lebanon.
Jan Paynter: Hello. I’m Jan Paynter and I want to welcome you once again to our program Politics Matters. Today we are continuing with part two of our conversation with Deena Hurwitz, Professor of Law at the University of Virginia. Welcome back, Deena.
Deena Hurwitz: Thank you.
Jan Paynter: Deena, let’s talk about a term that’s used often but perhaps not well understood and that is the doctrine of exceptionalism. What does it mean in general terms and what should we understand about it?
Deena Hurwitz: Well, generally the doctrine—the term exceptionalism is used to refer to a state’s right to opt out of a particular international or—a particular law or treaty or provision and it actually does come from international law because most treaties allow states to enter reservations or declarations—They’re called reservations, declarations or understandings and they’re three different things. But essentially it means that a state in ratifying a treaty will say, ‘We are—we agree to be bound by the provisions of this treaty but in terms of this particular provision we reserve the right to follow our own law or our own cultural preferences.’ And as you can image, with a women’s convention there are a lot of reservations that are entered by states to the equality in marriage or equality issues in the family. So—Torture is another issue. The question of torture and what—how torture is defined. The United States did enter a reservation to that definition when we ratified the Convention against Torture. So I think what happens with this doctrine of exceptionalism is that it gets taken to an extreme or states will use their—they’ll reserve the right to just not participate in a particular international norm. And actually in international law—maybe this is too technical—but in international law when a state is consistent in its refusal to join the consensus, one it would be understood to be a policy of not supporting that particular statement. But in international law or provision I should say, not statement. In international law there’s also a principle that states should not—may not join a treaty if they don’t intend to be bound by its provisions. And that’s sort of the counter technically to the exceptionalism doctrine. But here in our context of human rights the issue is that when do states—say national security for example is more—our national security is more important than the protection of individual rights or speech, speech as a right or nondiscrimination.
Jan Paynter: We see that everywhere. Post 9/11 issues of rendition. We see problems with Guantanamo. There’s a wonderful book of poems from the detainees which we won’t be able to get to today which is quite poignant which speaks to their sense of being imprisoned with no clear sense of why they’re there and yet we rationalize—our government rationalizes that and perpetuates this. One of the things we were talking about on the break was the ways in which—and I often think about this—two exceptional, magnificent nations—the U.S. and Israel, both of whom cherish and utilize the ideas behind human rights and yet both nations, in different ways it seems to me, fall back on exceptionalism as a bit of a rationalization for activities which really should be prohibited and in terms of international human rights law have been—are prohibited and they have been censored for it.
Deena Hurwitz: I think it’s important for us to acknowledge that all states practice some form of exceptionalism so we focus on the United States and on Israel because we’re American and because the United States has a very vocal policy of exceptionalism.
Jan Paynter: Very powerful countries.
Deena Hurwitz: Very powerful countries and I think the same thing is true for Israel. Their policy of exceptionalism is rationalized in a very furtive and some would say illegitimate way.
Jan Paynter: Well, it’s interesting because it’s also bound up in a way in the idea of national pride as well. We are an exceptional nation so we are law abiding, we are democratic, whatever we do we have a good reason for it and trust us about that. Well, that’s—around the world not everyone is going to trust us because we’re doing things that make us in fact untrustworthy.
Deena Hurwitz: The United States always raises our Constitution as being our statement of human rights, of civil liberties and that’s a form of exceptionalism but we don’t see it—the government doesn’t see it that way. The government sees the Constitution as being a better way of protecting the rights of “our” people. It’s not looking out to the rights of others which of course is what human rights is.
Jan Paynter: You put your finger on it exactly. The exceptionalism tends to channel into our country not the countries around us. If you have a state or an entity which is not widely acknowledged to have statehood, I’ll choose Palestine as the example, how do you protect those rights if they don’t have definition of statehood behind them?
Deena Hurwitz: International law has a very specific definition of a state. It’s a group of people who identify themselves together as a people, that have a defined territory.
Jan Paynter: So there is a kind of—the law allows for an umbrella concept to protect people whether or not they have an actual official state identity.
Deena Hurwitz: So there’s two things. We started out sort of what do you do, how does a group of people define itself as a state and the argument that is made about Palestine is it is a state, it is a clear group of people that self-identify, they have their own leaders, they have—they elect leaders and they have a distinct territory. Now that territory has been whittled away by Occupation but that doesn’t make it any less definitive as the boundaries of a state. The other issue that you raise is the problem of protection of individuals who are by definition stateless. So Palestinians are the sort of well-known stateless people but others talk about Armenians. International law and international humanitarian law, the law of war, have principles and rules for protecting stateless persons. So refugees, there’s a definition of a refugee, and states have an obligation—well, there is a refugee convention so the states who have ratified that convention and most have an obligation to protect refugees that meet the definition of a refugee. So an economic migrant is not a refugee, a person who’s fleeing economic insecurity, but a person who’s fleeing—the definition is persecution on particular grounds, persecution on the ground of their nationality or their religion or ethnicity. So there are specific ways that international law and human rights call on states to protect stateless persons. But there’s also a recognition of what a state may be in and you have the Vatican just declaring its recognition of Palestine. It was very controversial when UNESCO two years ago perhaps agreed to—recognized Palestine as a member state. I remember that. These are incremental affirmative steps for defining what a state is let’s say to Palestine.
Jan Paynter: So steps along the way toward fuller actualization of human rights.
Deena Hurwitz: Well, yes, towards…yeah.
Jan Paynter: In reading your work another thing that comes through that I thought was fascinating was the fact that students just will expect that there will be an outcome of a case and that in fact often—and this leads into something I wanted very much to talk with you about and that is your Chapter 8 in the book Human Rights Advocacy Stories, you very movingly outline the Sabra and Shatila case in Belgium. Summarize this case. I know it’s a tremendously complex case with many back and forths in developments but summarize it if you would for us and tell us—because I thought this was quite interesting that this case throws into stark relief many of the issues and complexities inherent in the teaching and practice of human rights law that we’ve been talking about in these two programs.
Deena Hurwitz: What you’re pointing to is just so important because the—when we teach human rights lawyering, we’re teaching students to be—we’re teaching students about a process and we’re teaching students to be cognizant of the dynamics when you’re lawyering. It’s always great when the outcome is a win for your client or you get what you want with your partnership but you’re right, it’s not always that way and students graduate and never see the outcome of cases. So the Sabra and Shatila case is—In 1982 when the Israeli military invaded Southern Lebanon, under the protection of the Israeli defense forces, the Christian Phalange militia entered into these– Sabra and Shatila are two large refugee camps in Southern Lebanon, all Palestinian. And you have to imagine, refugee camps are like towns. Some of them are—some parts of them are shanty towns and some parts of them have a lot more comfortable homes and so forth but they are virtually towns or cities. And with the IDF’s protection literally the Christian Phalange entered into the refugee camp and massacred thousands of Palestinians but mostly Muslims and it was a huge out roar about it in Israel as well as around the world. It was a horrific, horrific situation. And in fact in Israel there were huge demonstrations. Ariel Sharon lost his position. He was sanctioned but not out of government. So the issue in the case—the case was brought 15, 20 years later in Belgium and how was it brought there? It’s the legal doctrine of universal jurisdiction which is a very controversial doctrine and in fact has been whittled away but the idea behind it is that there are some—there are some crimes that are so egregious—this is the Law of Nations. There are some acts that are so egregious that they are…
Jan Paynter: So they’re really beyond the pale in terms of human rights abuses so they supersede I suppose you would say the sovereignty of a particular nation.
Deena Hurwitz: They supersede—That’s exactly right. They are. They’re war crimes, crimes against humanity, torture, grave violations of the Law of Nations. And there had been really no justice for the victims of Sabra and Shatila because nobody—Lebanon was not going to prosecute the Phalange leaders and people knew who was involved. And Israel was not going to participate in prosecuting the Lebanese or the Israelis who were responsible. So universal jurisdiction as a principle allows any state to—or calls for any state to either prosecute or extradite a person who’s alleged to have—who have—who is alleged to have been involved in war crime, a crime against humanity and so forth. So what happened, what was really, really interesting in the ‘90s, there were a series of—there were a number of countries that had these universal jurisdiction statutes. Belgium was one of them, France was another, Spain was another. The Pinochet Case is an example of a case that was brought under this notion of universal jurisdiction, when Pinochet was in the UK and was kept there while they tried to figure out if England had the jurisdiction to try him. But in Belgium the statute was part of their criminal code and they—there was a group of lawyers—a Lebanese lawyer Chibli Mallat and a couple of Belgian lawyers, Luc Walleyn and Michael Verhaeghe—who decided to use this statute to try to bring justice, to try to bring some closure or some justice to—for Palestinians. And it is, it’s a very long story. There are a lot of problems just in bringing these kinds of cases and of course there’s a lot of politics.
Jan Paynter: There is. You make a wonderful I just think spectacular point in the book about the world’s willingness as you go on to talk about to pursue universal jurisdiction when it concerns Third World, less democratic and less powerful nations but increasingly hesitant to prosecute and I’m quoting you now, “global north and its democratic allies.” You further note, I think it’s very powerful, that the “colonialist overtones are hard,” as you say, hard to ignore. And that is—it’s an overwhelming thing to think about really.
Deena Hurwitz: And with Belgium there was a lot of prosecution of Congolese war lords and Rwanda and Burundi because there were Belgian citizens in the Congo, in Wanda who were—some were killed, some were attacked so they were able to do this kind of—obtain this kind of jurisdiction but of course they were African leaders.
Jan Paynter: Well, yes, our country becomes and many powerful nations become very exercised when it comes to human rights violations by those smaller countries, less powerful countries.
Deena Hurwitz: In Belgium what happened with the case of course is that—one of the issues was whether Ariel Sharon could come to Belgium to conduct diplomatic—to be diplomatically present.
Jan Paynter: And he got wind of what was going on and cancelled his trip, yes?
Deena Hurwitz: And cancelled his trip. And then there was a—there were a series of cases that were brought, some consider them to be frivolous but others consider them to be very important against for example George Bush, Dick Chaney, Rumsfeld for the Abu Ghraib situation and for the Iraq War and for Guantanamo and that was the straw that broke the camel’s back and the political pressures that came to bear on Belgium were great. So they ultimately amended their law.
Jan Paynter: How in your view might legal training continue to evolve in shaping more broadminded and civic minded students in the area of human rights?
Deena Hurwitz: I think it’s just really, really important for students—for students of law particularly—to have some knowledge and experience of other cultures and other peoples so that we understand that ours is not the only legal system or the best legal system. It is a good legal system and perhaps we can bring parts—for sure we can bring aspects of our legal system to other situations but we can also learn from the experiences and the structures of other countries and other peoples. And increasingly law schools are teaching international law as a prerequisite which I think is very, very important and a good thing.
Jan Paynter: I think it’s very exciting because as I mentioned to you before the program, this area of the law is so inspiring to so-called civilians, to people who are not lawyers and legal scholars but it is very inspiring I think for people to see what is done. It also encourages other people to become involved at whatever level they’re able to be involved in human rights work and advocacy. So I think it’s a magnificent area of the law and it also—I was thinking about this—it cycles us back to the true spirit of the law. We were talking on the phone I think last week about sometimes lawyers get a bad rap and in fact there are so many exciting and really noble things that are going on in many areas of the law but particularly in human rights advocacy law that I think people need to know about because it does take us back to the spirit and I would imagine, as a non-legal person, the intent of the law which is to protect and to serve people and to support the disenfranchised.
Deena Hurwitz: I think that’s absolutely right and I like to mention—paraphrase a quote by Supreme Court Justice Louis Brandeis who said, the most important office in a democracy is the office of citizen and that…
Jan Paynter: Ah, that’s wonderful.
Deena Hurwitz: That our commitment to the rule of law and to the reason—the foundational dimension of the rule of law which is our ability to reason and to think through the context means being—taking on that role of citizen and questioning governments and rulers and not allowing the use of power for arbitrary or unreasonable, unjust purposes.
Jan Paynter: It is interesting in the end it is a case that a nation’s people will be judged by their collective principles, again cycling back to why I’ve done this program. People really can be their principles and politics can be tied to principles even though we see them as antithetical most of the time I think in terms of the way things play out and is a particular outcome desirable? For instance, this makes me think about this. Is it desirable if it is at the expense of something else? When you’re practicing human rights law, I would imagine there are all kinds of tradeoffs that you have to make. Do I want the desired result? Do I want to support this individual plaintiff in supporting their rights? Is my—is the—is a particular theory my client or—and this gets into a whole other issue or do I have an individual as my client, whom is it that I serve? And I would think that this is a problematic but also fascinating aspect of the law.
Deena Hurwitz: Well, the law has professional responsibility or the rules for lawyering set by bar associations require that—all bar associations—require that lawyers serve their client not some cause and that makes that issue of cause lawyering difficult because if you’re working with a client who at some point in the cause lawyering process disagrees with the strategy or becomes concerned about their role in this cause and impact litigation, you might have to withdraw from the case because you can’t represent the cause and not the client. But it’s—there’s always going to be a tradeoff. Law is political, it’s instrumentalist as we said earlier but the question I—one of the questions is, what’s the basis for the—for weighing the issues. Is it justice? Is it the individual’s voice and empowerment or is it the status quo? Is it poverty alleviation or is it the policies of something as large and as important and influential as the World Bank? These are issues that get addressed politically as well as legally. You earlier said that this is—a lot of this as a non-lawyer is meaningful to you anyway. Human rights isn’t just for lawyers. Human rights is something that we all participate in and should be participating in and I think that’s why it’s being taught more and more in schools—in elementary schools and high schools, of course in universities.
Jan Paynter: Deena, thank you so much for doing this two part conversation. It’s been a wonderful learning experience for me and I think it will be great for people to have the benefit of your experience and your great knowledge in this area.
Deena Hurwitz: Thank you for your knowledge. You’re clearly very involved in these issues and I really appreciate this program and what you do. Thank you for the invitation.
Jan Paynter: Not at all and I hope you come back.
Deena Hurwitz: Thank you.
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