The “soft vengeance” of Albie Sachs

Brandeis Events, Brandeis University, International Justice, Law and Justice No Comments »

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Abby Ginzberg has made a terrific new film, “Soft Vengeance: Albie Sachs and the New South Africa.” It brings to life one of the great human rights heroes of our time, a Jewish South African who joined the African National Congress, became one of the principal crafters of the South African constitution, and then a member of democratic South Africa’s constitutional court. Sachs spent two long stints in solitary confinement in apartheid-era prisons, and he later lost his right arm and the sight in one eye as the result of a bomb blast in Mozambique in 1988, but his commitment to justice and his zest for life emerged intact from those searing experiences.

For Albie Sachs, the “soft vengeance” for the bomb blast was the triumph of justice and democracy in South Africa. Ginzberg’s film works splendidly on three levels. It is first a story of an special, vital individual whose open personality, sense of humor, and burning passion are contagious. Secondly, it’s a national story, reminding its viewers of the tremendous odds that South Africans working for democracy faced, and of the great triumph of their collective struggle.

Finally, “Soft Vengeance” is a story about what Sachs called in our discussion the “emancipatory” potential of the law. Sachs had grown up thinking of the law as an instrument to protect property and the interests of the powerful. As a lawyer in an activist movement, he came to understand how law can be used creatively in the service of freedom. Not only did he go on to play a part in the new constitution for South Africa, but as a member of the Constitutional Court he penned some ringing human rights judgments, including the decision that legalized gay marriage, the first African nation to do so. Abby Ginzberg was also trained as a lawyer before she started directing films 30 years ago, so she brings a special passion for the subject of “emancipatory” justice to each of her projects.

We were fortunate to have Albie Sachs and Abby Ginzberg with us at Brandeis University last week for a special advance screening of “Soft Vengeance,” the first on a college campus.  We at the International Center for Ethics, Justice and Public Life were pleased to be joined by the National Center for Jewish Film and the Louis D. Brandeis Legacy Fund for Social Justice in presenting the event.

After the screening, Sachs and Ginzberg talked together about the making of the film, and the tug-of-war between them about how certain aspects of his life would be portrayed. “It may be your life,” Ginzberg had to remind Sachs from time to time, “but it’s my film.”

The screening took place on September 11, and perhaps there was something appropriate in this. Albie Sachs has had a special ability to transform personal suffering into a force for social good. He spoke eloquently about how, in the aftermath of the bombing, he had an ebullient feeling: “They came for me . . but I am still here!”  Human rights activists around the world are his comrades, Sachs told the audience, but they can be so dour. Why not, he suggested, seek both joy and the struggle? Hearing from Albie Sachs on September 11 was an opportunity for all Americans in the audience to think about the extent that we have or have not used the events of 13 years ago as a motivation for positive, productive change.

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L to R: Lisa Rivo, Sharon Rivo, Jules Bernstein, Abby Ginzberg, Albie Sachs, Dan Terris

International Courts: How “effective”?

International Justice No Comments »

As the world of international courts and tribunals has expanded over the past two decades, a fierce debate has erupted over whether or not they are “effective.”

The Peace Palace in The Hague, home of the International Court of Justice

Proponents of the courts have tended to argue in favor by pointing to individual successes.  The Yugoslavia and Rwanda tribunals have indicted and convicted major political and military figures.  The European Court of Human Rights has issued judgments that have compelled countries across the continent to modify their laws to respect the rights of minorities.  The World Trade Organization Appellate Body delivers judgments within 90 days and is widely credited with defusing tensions over trade issues.

Critics often seize on the vast gap between accomplishments and aspirations.  The persistence of large-scale violence in many parts of the world suggests that the international criminal courts have not fully succeeded in deterring leaders from committing crimes against humanity.   Many countries find ways to postpone or even evade compliance with the judgments of international courts.  And some courts – even the venerable International Court of Justice in The Hague – are hamstrung because relatively few nations have agreed in advance to be bound by their decisions.

In rhetorical terms, it’s rather easy to argue either way.  If you are a believer in the value of international institutions, you tend to judge these courts by their relative youth.  Look how much they have accomplished in a relatively short time.  Of course they have a long way to go.  As one judge who participates in our Brandeis Institute for International Judges once put it to me, “International justice is not instant coffee.”

If, on the other hand, you are a global skeptic, you tend to judge the courts by the relatively small return on investment.   Think what more good we could have done with the billions of dollars spend convicting a couple of hundred people from the former Yugoslavia and Rwanda.  And how does it help the rule of law to establish courts that countries can flout with impunity?  (Of course, there are also those who argue that international courts have become too powerful, aggrandizing themselves at the expense of a more constructive approach to international relations grounded in diplomacy and politics.)

So it is heartening that in recent years, a number of scholars have begun to look systematically at the question whether international courts are indeed effective.  And naturally they have had to begin by trying to define just what effectiveness means.

One starting point for the discussion of effectiveness has been the issue of compliance.   Both supporters and critics of the courts have looked to how completely countries have complied with the decisions of international judicial bodies.

But it is increasingly clear that compliance, by itself, is not a sufficient measurement.  After all, a court might achieve a 100% compliance rate by issuing such timid judgments that it is all too easy for countries to follow their dictates.  Alternatively, a court with a low compliance rate might be seen as playing a vital role in a gradual process of solidifying the rule of law in a region where democratic institutions are still evolving.

In this context, it is heartening to see that legal scholars from around the world have been giving more systematic attention to the question of effectiveness, moving beyond compliance to a broader range of criteria that better fit the political and public expectations of what international courts can and should achieve.

After all, we don’t create courts simply to test whether they will be heeded.  We create them for broader goals:  to provide an alternative to violence in settling disputes; to protect basic human rights; to provide stability in matters of commerce; to provide a bulwark against the undue accumulation of power.  And we do not create courts in a vacuum.  We create them in the context of many other imperfect institutions.  The interactions between courts and other institutions, in other words, are just as important as the activities of the judicial bodies on their own.

The question of “effectiveness” is one of the main research areas for a major new initiative called iCourts.  Based at the University of Copenhagen and funded with a major grant from the Danish government, iCourts was established to become a center of excellence for basic research on international courts and tribunals.

At the iCourts inaugural conference in September, the “effectiveness” agenda was on full display.   Work by scholars such as Yuval Shany, Lawrence Helfer, Karen Alter, Mikael Madsen and others have begun to unpack the dimensions of effectiveness, and bring dispassionate analysis to the field.  The analysis helpfully relies on interdisciplinary methods, bridging the work of legal scholars and political scientists.

I am by philosophy and by professional commitment a believer in the importance of international courts.   For this reason I welcome the development of rigorous attention to both their achievements and their limitations.  It will be better to have the argument on effectiveness with a shared vocabulary, and with solid information that reflects the full range of expectations and possibilities for an international rule of law.

 


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