We resume our series of interviewing young professionals in the field of human rights with this extensive interview with Pubudu Sachithanandan who works for the International Criminal Court.
Tell us a little about your educational background- where did you complete your undergraduate studies from and what particularly interested you in public international law/ international criminal law for your advanced studies?
Sometime before entering law school, I attended a lecture by Dr. Rohan Edrisinha, a constitutional scholar in Sri Lanka. He sketched very deftly how constitutional provisions can have a massive impact on the lives of ordinary people by either preventing or allowing abuses of power. This idea that law was not just swotting for exams – but a weapon that you could use to protect vulnerable people - was an eye opener for me. It was a sort of “light-bulb” moment. So my first passion was constitutional law and by extension human rights law.
Shortly afterwards I started law school in Sri Lanka, at the Law College of Sri Lanka. I began to follow human rights issues in Sri Lanka and abroad. I attended courses organized by local human rights lawyers like Radhika Coomaraswamy who was later appointed the UN Special Representative for Children and Armed Conflict. I also became involved in student activism and tried to get my fellow students involved as well. Many of these early projects didn’t get anywhere but they did help me realize that I had a lot to learn both in terms of the theory and practice of humanitarian work.
This realization was one of the drivers for my later studies in international law at the University of London and in human rights law at the University of Oxford. At Oxford I was fortunate to study under several jurists who had remarkable firsthand experience in human rights work. I studied the African human rights system under Christof Heyns (UN Rapporteur on extrajudicial executions) the Inter-American human rights system under Juan Mendez (UN Rapporteur on torture) and had Patricia Viseur Sellers (later a Special Advisor to the ICC Prosecutor) as my thesis advisor.
My interest in international criminal law also began when I was an undergraduate. I was frustrated with the limitations of traditional international law as well as ordinary human rights litigation – which focused on state responsibility, and often was limited to “soft” impact. But then I started reading about the international tribunals for Rwanda and the former Yugoslavia which were in the news. Then the International Criminal Court. Suddenly international law had teeth. It wasn’t just theory any more. If you broke it you went to jail.
You have worked on an academic dissertation where you analyse criminalization of attacks on humanitarian assistance and peacekeeping missions, which is not a very widely studied area under international humanitarian law/ laws of war. Tell us something about your research and what interests you in this issue?
I became interested in this area when working on the Abu Garda and Banda and Jerbo cases at the ICC. These cases related to an attack on an African Union peacekeeping base in Darfur. I was moved by the gravity of such attacks. Attacking peacekeepers and humanitarian workers often not only harms the immediate victims, it also potentially harms the thousands of people who rely on them for food, shelter, medicine and maintenance of the rule of law.
Given that you come from Sri Lanka where the issue of violation of human rights of civilians has been at the forefront, did that in any manner impact and influence your decision to pursue a career in this field?
Yes. Hugely. For the first thirty years of my life, Sri Lanka was a war torn country. My mother is Sinhalese and my father is Tamil, which is a bit like having a Protestant father and a Catholic mother in Belfast. This gave me access to several different perspectives on the conflict. During the anti-Tamil riots of 1983 my family had to go into hiding in the hill country. Then during the Marxist uprisings of 1987-89 I remember not going to school for long periods and hearing of people killed by “necklacing” - where a person has a tire filled with petrol placed around them and is then set on fire. When I was 15 and in school I heard what I thought was the school gate collapsing – but it turned out to be an LTTE bomb at the central bank which killed 91 people and injured 1,400 others.
You have now been working with the International Criminal Court almost since the Court’s inception. Tell us how did you start working with the organization, what was your experience with the recruitment process like?
I joined the ICC almost by accident. I was in Salzburg for a course on International Criminal Law and Humanitarian law and one of my lecturers was the then head of the Legal Advisory Section of the Office of the Prosecutor. He recommended that I apply - I did, and then joined the Legal Advisory Section. I was later transferred to the Prosecution Division and moved over the years from the Uganda team to the second team working on the DRC and then later Darfur. Recently I joined the Appeals Section. In the early years, the ICC was still developing its standard operating processes. Everything we did was for the first time. There is a great deal of competition for posts – but I would encourage applicants not to be deterred by that. If you are interested in public service and international criminal law – it is fascinating and rewarding work.
Currently I wear two hats. I work 50 % as a lawyer on a trial team. This work involves legal drafting, some courtroom advocacy, and occasional trips to the field to interview witnesses. I also work 50% in the Appeals Section. This involves mostly drafting of appellate submissions and a fair bit of legal analysis – which is another thing that I like to do.
During this decade of your association with the Court- how has your work portfolio and functions evolved and how do you contrast it with the development and advancement of the work of the Court itself?
I have gone from drafting memos in the Legal Advisory Section to working on the arrest warrant applications against Joseph Kony to working on the confirmation of charges against Germain Katanga and Mathieu Ngudjolo, to interviewing witnesses for the Darfur cases, to now working in the Appeals Section. So I’ve been fortunate to have a diverse set of experiences.
At the same time, the court has matured as well. Around when I joined, the court had no cases. Now, some nine years later, that empty slate has become filled with a broad and diverse workload. We’ve had our first conviction (in the Lubanga case). That case is now on appeal. The Ngudjolo case is also on appeal. We’re also expecting a judgement in the Katanga case. The Bemba trial, which relates to the Central African Republic, is also in its later stages. The Kenya trials and also the trial in Banda and Jerbo will take place sometime in the future. In the meantime we are also waiting to hear about whether charges will be confirmed against Mr. Gbagbo, former president of the Ivory Coast.
On 3 March 2011, the ICC Prosecutor announced his decision to open an investigation in the situation in Libya and later obtained warrants against Saif Al-Islam Gaddafi and Abdullah Al-Senussi. Early this year the Prosecutor opened an investigation into alleged crimes in Mali. We also have preliminary examinations ongoing in several countries including Afghanistan, Honduras, Korea, Nigeria, Colombia, Georgia and Guinea. If someone had told me in 1998, just before the Rome conference, that all this was possible – I wouldn’t have believed it.
You have also briefly worked with the International Criminal Tribunal for Rwanda—tell us about your experience. How similar or different is the ICTR to the ICC?
In some ways they are the same. They were both big public institutions facing many of the same challenges that plague large scale international trials. Witness protection issues, delays, cooperation issues etc. Arusha and The Hague are also oddly similar – both small, quiet, and beautiful in their own ways.
In other ways they are very different. Different in terms of both atmosphere and operating realities. The ICC is a young institution, with standard operating procedures still being crystallized, or recently crystallized. It is still forming an institutional culture. It is also seeking to increase its operations tempo and broaden its operations. By contrast, the ICTR is an established institution with a long institutional history. It is also in the wind-down phase of its operations.
Another difference is the relationship between the cases tried. Most cases at the ICC are unique in that the suspects have no direct relationship to each other. President Bashir has no obvious connection to Mr. Thomas Lubanga. But at the ICTR the suspects are all connected to each other – and all the cases relate to the Rwandan genocide - so all the cases have interesting overlaps. Hence it is a tricky exercise to avoid contradictions between cases at the ICTR.
A key operational difference is that many of the situations investigated by the ICC are still conflict zones, or are places of high insecurity and low stability. Rwanda, thankfully, is no longer a conflict zone – and so it is easier to gain access to crime scenes, do site visits, talk to witnesses, protect witnesses etc.
What is your view about the future of international criminal law—do you think over the past decade, the field has developed as a strong, independent field in public international law?
Despite the fact that the Nuremburg trials took place more than half a century ago – in practical terms international criminal law is still a young field. Compared to domestic legal systems, there is limited legislation and limited case law.
Having said that, after the ICTY and the ICTR started in the mid 1990’s, the field has developed a critical mass of case law. The hybrid / mixed tribunals like the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the Special Panels of the Dili District Court in East Timor also fed in case law into the field of ICL and IHL. The ICC has now started adding to these cases. These cases have clarified and developed various aspects of international criminal law and humanitarian law. Their findings are integrated into military manuals as well as domestic legislation. The law that's settled at these tribunals have found their way into legislation and military manuals and impact on the behaviour of countries and militaries world wide.
What are your future plans, say 5 years and 10 years from now- where do you see yourself working?
I’ve noticed that I am most motivated when I talk to victims and witnesses. When I am angry about the plight of a person who has been victimized – it drives me to work harder – and makes me believe that my work has meaning and purpose. So I might try to move professionally to work that involves more interaction with the people that I work for – one option would be to work as an investigator for the court. Another would be to move closer to a conflict / post conflict zone and work on rule of law projects there. I would also like to take some time off to travel, and maybe do some teaching and writing.
For new entrants in the field of international criminal law— do you have any recommendations? Any guidance and tips on how to apply for internships, what are the credentials sought for in candidates (academic and/or professional), any recommendations on courses to take at graduate and law studies?
I’ll begin by saying there’s all kinds of work to be done in International Criminal law. Not just traditional courtroom work. We have legal advisors, investigators who travel to the field, analysts who monitor and assess information from head quarters, co-operation specialists who handle diplomatic work. We also have outreach specialists, Interpreters, IT specialists, etc. So I think its good start with an open mind and consider what you like to do and what you’d be good at. Having said that, there are two basic pathways for working in international criminal law at the international level. The more traditional is to gain a few years of experience at national level (e.g. if you want to do court-room law - maybe do a few years as a junior Prosecutor in your home jurisdiction) and then apply for a mid-level position at the court. The other route is to start at entry level in an international institution and work your way up. I suspect that the traditional route is more successful in the long term – at least for litigators – because you get more exposure and a diversity of experience in a domestic system. This type of domestic training could be supplemented with internships or work as a visiting professional at the ICC or another international / hybrid institution that does work on international criminal law.
Excellent. Thank you very much for taking the time to talk to us.
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