The Guardian of Rights: Diplomacy, International Law, and Legacy with Architect of Justice Beth Van Schaack
Prior to returning to Stanford University, Dr. Beth Van Schaack served as Ambassador-at-Large for Global Criminal Justice in the U.S. State Department office where she once served as Deputy. GCJ advised the Secretary of State and the Under Secretary of State for Civilian Security, Democracy, and Human Rights on issues related to war crimes, crimes against humanity, and genocide, and the deployment of the whole range of transitional justice mechanisms in states emerging from violence or repression. Before returning to public service, Dr. Van Schaack was the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School, where she taught international criminal law, human rights, human trafficking, and a policy lab on Legal & Policy Tools for Preventing Atrocities. In addition, she directed Stanford’s International Human Rights & Conflict Resolution Clinic. Ambassador Van Schaack has published numerous articles and papers on international human rights and justice issues, including her 2020 thesis, Imagining Justice for Syria (Oxford University Press). From 2014 to 2022, she served as Executive Editor for Just Security, an online forum for the analysis of national security, foreign policy, and rights.
In addition to her work as a Distinguished Fellow with Stanford’s Center for Human Rights and International Justice, Dr. Van Schaack is a Commissioner with the International Commission of Jurists (ICJ), and a Senior Peace Fellow with the Public International Law & Policy Group. With seven other senior U.S. government human rights mandate holders, Dr. Van Schaack is a co-founder of The Alliance for Diplomacy and Justice, which works to center human rights within U.S. foreign policy. Earlier in her career, she was a practicing lawyer and board member at the Center for Justice and Accountability (CJA). She is a graduate of Stanford (BA), Yale (JD), and Leiden (PhD) Universities. International Justice, Dr. Van Schaack is a Commissioner with the International Commission of Jurists (ICJ), and a Senior Peace Fellow with the Public International Law & Policy Group. With seven other senior U.S. government human rights mandate holders, Dr. Van Schaack is a co-founder of The Alliance for Diplomacy and Justice, which works to center human rights within U.S. foreign policy. Earlier in her career, she was a practicing lawyer and board member at the Center for Justice and Accountability (CJA). She is a graduate of Stanford (BA), Yale (JD), and Leiden (PhD) Universities
Dr. Van Schaack sat down with Marvelous Inc.’s CEO and Founder, Marvelous Maeze, to discuss her illustrious career, women leaders in human rights, and U.S. foreign policy.
Marvelous, Inc.: As you recently stepped down from your role as Office of Global Criminal Justice (GCJ) Ambassador-at-Large after three years, what would you say are the most significant accomplishments of your office during that period, and which remain unfinished or most challenging?
Beth: Thank you. It was an incredible experience made all the more wonderful by how terrific my team was. By the end of my tenure, we had about 30 really passionate expert advocates for transitional justice and survivors working with us, helping to think about how to deploy U.S. resources in support of justice around the world. So, at some level, building that team was really an incredible accomplishment, and it’s been really sad to see all of them lose their jobs in the current crisis at the State Department.
In terms of the substantive work, we spent a lot of time looking for ways to empower victim groups and justice advocates around the world who were trying to pursue various forms of justice following periods of repression or atrocities. Putting them in a position to be able to articulate a vision for justice and then to implement that vision; working with government actors, other funders, the diplomatic community, multilateral actors—all trying to just build an ecosystem in these societies so that justice could be pursued. I also spent a lot of energy going to places where justice is being pursued and where survivors find themselves. I think it’s really important to show up, and often these were places that had not seen senior governmental officials from outside of the region. So, having a senior U.S. person spend time in a refugee camp, small village, or indigenous community and listen to people and then look for ways to express their preferences and expectations in our foreign policy was something that was really moving to me. I also really liked trying to build reparative systems, looking for ways to rehabilitate victims, and working with survivors. We tried to co-create some of these ideas. There are some really great organizations, like the Global Survivor’s Fund, that are trying to find better ways to deliver interim reparations, and then to work with governments to encourage [them] to provide reparations for survivors. So, that was a really meaningful part of it. [...]
Finally, getting the U.S. to support the Aggression Tribunal for Ukraine was a real accomplishment of a number of justice advocates within the United States government. The United States had been, historically, quite cautious about the Crime of Aggression. We didn’t advocate for its inclusion within the Rome Statute, and were part of an effort to build some limitations in the jurisdictional regime within the Rome Statute—but the United States came around when it came to Russia’s full-scale invasion. So, generally, my job was to look for ways for the United States to deploy its financial resources, technical skills, diplomatic energy, and expert personnel to pursue justice anywhere that it was desperately needed.
Marvelous, Inc.: Your team emphasized “survivor-centered approaches to transitional justice” across multiple regions. How do you balance the competing demands of accountability, truth-seeking, and reconciliation, especially in contexts with ongoing conflict or political instability?
Beth: You can think about transitional justice even prior to a full-scale transition. It’s really important to lay the groundwork. There’s a lot that can be done even if the political context is not quite ready for it. We’ve also seen now, historically, through looking at a number of really important case studies [...] that the different imperatives that you mentioned–-accountability, truth-seeking, reconciliation–-can be pursued in sequence, simultaneously, by different institutions sometimes working together or in acoustic isolation.
So much of it comes down to societies, and what the expectations and preferences are of those communities. One of the things I tried to do as the Ambassador of this portfolio was to really understand the comparative models that are out there so that I could work with the Ethiopians and say, “Well, listen, here’s what Colombia is doing. Let’s hold a convening and let’s bring people from Colombia here so you all can talk in a room and figure out whether what they’re doing might be appropriate or adaptable for your context.” So, [it’s] time to bring advocates from across systems together to explore how to balance these competing demands.
We also tried to fund, or encourage other donors to fund, population-based surveys so that different communities could be asked about what they’re preferences are, how they would rank those various imperatives, what they want to see in terms of a truth-telling process, what their expectations are around accountability, i.e., should an accountability exercise focus on those senior figures more responsible–-the architects of violence–-or do they want to see people from their own communities who turned against their neighbors held responsible. Ultimately, it’s for these societies to decide for themselves, but I think it’s really important for the donor community and the diplomatic community to try and support those efforts while having a really good understanding of what the people want to see when it comes to justice.
Marvelous, Inc.: How does having women in senior human-rights leadership roles change the way justice and human-rights priorities are set, compared with historically male-dominated leadership? In your view, why is gender balance (or at least gender representation) in institutions dealing with human rights, peacebuilding, and transitional justice essential for legitimacy and trust among affected communities?
Beth: Women make up half the world. So, obviously, there should be women in these positions. You’re right that foreign policy has historically been very male-dominated, and I think that can create some blind spots. We know from business and sociological research that more diverse teams make better decisions. They [generate] more informed decisions. They take into account multiple perspectives. They’re more creative. I was really quite proud of the Biden-Harris administration for how many senior women were holding human rights mandates within the State Department, and a number of us have gone on to form the Alliance for Diplomacy and Justice. As it turns out, it’s almost all women who held human rights portfolios in the State Department [including those] focused on global youth engagement, international labor rights, anti-trafficking, global women’s issues, LGBTQI+, and racial equity and justice. These are all women who held senior positions, and so that was the face of these issues of the U.S. government, and that matters because many individuals who are impacted by repressive policies and mass atrocities are also women. So, it’s often easier to work with women and to tell your story to another woman than it might be to tell your story to a man.
An important experience that really hit home for me was that I had traveled to Bangladesh. This was before the [political] transition there. I was very much focused on the situation of the Rohingya, and we went to Cox’s Bazar, where upwards of a million Rohingya are seeking shelter from the genocide in neighboring Myanmar. The organizations that we were funding, working with, doing transitional justice work, and training in forensics organized a series of meetings with community leaders. I walked into one of these meetings, and it was all women. These were women who had never held leadership positions in their communities, and they were thrust into these roles by virtue of their circumstances being refugees, survivors, and fleeing violence. Many of them were heading women-only households because their husband or partners had been killed or were elsewhere. So, they were having to articulate [their community’s] visions for justice. We sat on the floor. This was not a fancy meeting at some big high-rise hotel. We sat on a dirt floor. I didn’t ask them to tell their stories because I didn’t want to put them through that again. I knew they had all been through horrific events, but what I asked them was, “What is your vision of justice?” Each one of them had very concrete, detailed ideas.
And then I said, “Do you have any questions for me?” The questions were unbelievable! They had questions like: “What is the status of the case that The Gambia has brought against Myanmar before the International Court of Justice at The Hague?” I could tell them that because I had just been at The Hague and spoken to the lawyers that were bringing that case, and I had been to The Gambia and worked with the Ministry of Justice to find resources to support them in pursuing this groundbreaking case under the Genocide Convention. So, I was able to give them a real-time update. [...] We were able to use our partnerships in the camps and our diplomatic relationships to help bring seven survivors, six of whom were women, down to Buenos Aires to give live testimony before a court there that is investigating the genocide in Myanmar under their universal jurisdiction statute.
Marvelous, Inc.: At the Office of Global Criminal Justice, you worked on “the responsible use of emerging technologies in promoting accountability.” What opportunities and risks do you foresee when deploying technologies (e.g., satellite imagery, digital documentation, data forensics) in atrocity investigations and prosecutions?
Beth: This is very much the next frontier of international criminal justice. The digital revolution has revolutionized the way justice is being pursued and the way evidence is being gathered and presented to courtrooms. It’s also created a number of challenges because generative AI is capable of producing disinformation that might mislead prosecutors, investigators, etc. I’m also very worried about [digital tech] from an atrocities prevention perspective because we’ve already seen in places like Kenya prior to the [2007] elections that gave rise to the case before the International Criminal Court a lot of dis- and misinformation. People were hearing things about ballots being stolen and ballot boxes being stuffed. Much of it was false, but it created an environment that encouraged violence to happen. We saw post-election violence in 2007 and 2008. That was prior to all the AI tools that we now have. So, this has always been a problem.
[On the positive side.] it’s incredibly important to be able to mine this information and to teach machines to do so because the result is voluminous amounts of potential evidence and it falls to investigators and advocates to sift through that and find what information is going to be accessible, admissible in court, that can be authenticated, and that will ultimately prove that one or more elements of the various offenses have been satisfied. Syria was very much the first example of this. I saw an incredible statistic that there was more video footage on YouTube of the war in Syria than there was of the actual war. In other words, so much footage had been taken that it went well beyond the [number of] years the war had been going on. We have amazing technologists now that are working to train machines to sift through all this information; figure out whether it has been manipulated [or if it can be] geolocated and chronolocated; or utilize image identification so that they can look for duplications. [...] We helped train advocates to take digital information, utilize it, and protect it from being manipulated and to make sure that it’s in its purest state so that eventually it can be admitted into evidence and serve as the basis for a criminal process against individuals deemed responsible.
We’re seeing this in Ukraine. Satellite data, digital data, etc., are being collected and used to prepare dossiers against responsible individuals. Even though it’s incredibly important to collect and use this open source information, it’s never going to replace witness testimony. You are still going to need to hear from actual eyewitnesses who can describe their own personal experiences. Another big priority when I was Ambassador was to build out our global system of witness protection because witnesses are the soft underbelly of the system. [....] We need to, as an international community, still invest in witnesses and survivors and accompany them through the justice process while at the same time developing these incredible tools to capture, collect, preserve, and authenticate digital artifacts of atrocity.
Marvelous, Inc.: Given geopolitical interests, strategic alliances, and domestic priorities, how does the U.S. navigate the tension between realpolitik and human rights-centered foreign policy when pushing for accountability in atrocities? What compromises were hardest?
Beth: Every policy, at some level, is going to be a compromise of competing equities. And the way we tried to craft policy was to bring all of the relevant offices and experts together in a room and try to understand their perspective on a particular situation–-what their preferences would be in terms of U.S. policy. Then, we’d sort of hammer it out together. That’s why this current environment is so dangerous and worrisome because the human rights-oriented architecture within the State Department has been violently dismantled by this administration. The offices are gone. They’ve been removed from the organizational chart. Senior positions are not being filled or have been abolished. My [former] position is gone. My office is gone. Many of the offices that were held by my colleagues in The Alliance for Diplomacy and Justice are gone. They will not be filled or they are significantly depopulated, downsized, or de-resourced. So, when you used to have a big table where you would have the counterterrorism people, someone representing the bilateral relationship, the Department of Defense, and human rights mandate holders [together,] we would get to policy where the human rights issues were taken into account, things were adapted to them, we were looking at the long-term impact on human rights. Even if the policy that was ultimately chosen was not the preferred one, we were choosing that policy with eyes wide open, and we could think about mitigation or rehabilitation later. So, having those human rights voices in the room was really important, and that’s what’s lacking now, I fear.
Marvelous, Inc.: From your experience, where do global justice mechanisms and international institutions still fall short, and what reforms (legal, structural, political) are most urgently needed to strengthen accountability for war crimes, genocide, and crimes against humanity?
Beth: One area where we’ve made great strides is that states around the world have increasingly incorporated the prohibitions against international crimes into their domestic penal codes. So, they now have a legal framework that enables them to prosecute these cases. Many of them have also incorporated the principle of universal jurisdiction. [...] So, that’s what we were seeing in Argentina with this Rohingya case. They have incorporated the prohibitions against genocide and crimes against humanity into their code, and they can initiate an investigation even in the absence of an accused, so long as there’s evidence that one of these international crimes has been committed. So, they’re moving forward on that basis. A number of states have also identified and convened expert war crimes teams. These are increasingly networked across the globe. They meet regularly with each other, particularly within Europe. They’re sharing techniques, information, and evidence. So, this is all where the system is strengthened in comparison with years past.
The international institutions remain somewhat weak. There’s a lot of criticism of selective justice at the International Criminal Court or for the fact that the Court doesn’t have more perpetrators in custody. This is a function of how the Court was designed and of deficits in state cooperation. So, it’s not the institution’s fault. It’s the fact that it was built to be somewhat weak and to depend entirely upon state cooperation. There isn’t an international police force that can go out and arrest individuals who stand accused of committing international crimes. [The Court is] dependent on national legal authorities to identify the presence of individuals within their jurisdiction, take them into custody, and transfer or extradite those individuals to either another state that has a case open against them or to the international institution that is able to proceed against them. We need to look for ways to strengthen state cooperation […] to potentially amend some of the constitutive documents of these institutions so that they’re able to be stronger and more effective at what they’re doing.
From the institutional perspective, there’s also very serious concerns about morale issues, institutional culture; e.g. the chief prosecutor of the ICC is under investigation for potential sexual assault. So, that’s deeply problematic. Then, these institutions are also quite slow and inefficient. They need to find ways to work more quickly. As the prosecutor used to say, “at the speed of relevance,” so that they are not consuming resources without producing good outcomes and really delivering justice for survivors. There’s much work to be done, but we’re laying the groundwork and we now have an ecosystem of multilateral and national systems coupled with and strengthened by really strong civil society networks.
Marvelous, Inc.: Many argue that prevention should be prioritized over post-facto justice. Based on your background in both law/practice and policy, how should the international community better invest in atrocity prevention, and what barriers prevent more proactive approaches?
Beth: We know that we’d much rather prevent these events from happening than to try and struggle to deliver justice for a handful of perpetrators and victim communities after the fact. It’s not efficient, and it forces people to suffer horribly. [Being more preventative] was a big priority under the Obama Administration with Samantha Power having a senior position in that administration, when I served as Deputy in the office that I later led under the Biden-Harris Administration. We really put a lot of energy toward prevention. We improved our information gathering through our intelligence community. We conducted research to figure out what the risk factors were and what trigger events tend to give rise to communal or governmental violence. We tried to build a diplomatic community that was also similarly focused on this.
The real challenge is that there are so many circumstances that demand the full attention of policymakers in government, the State Department, and the ministries of foreign affairs around the world, so it’s hard to invest time and resources into something speculative around prevention. If prevention works nothing happens. So, you’re expending a lot of energy uplifting peacebuilders, dealing with dangerous speech, trying to build resilience within societies, and then nothing happens. It’s a good outcome, but you have no way of knowing necessarily whether or not your interventions and input were the causal factor of that. It’s [thus] hard to justify big investment in preventative work even though we all intellectually understand that we would rather be preventative. One of the arguments that a lot of us made to try and encourage more investment upstream was [to argue] that the things you are doing to prevent atrocities are good in and of themselves—[they help] to build strong, resilient, inclusive societies globally. They’re better for everyone. Even if we can’t prove that some particular intervention was preventative, we’re still creating a better, more just world where people can live in dignity.
Marvelous, Inc.: How important is the role of local civil society, survivor-led organizations, and domestic political will in successful transitional justice processes? Can top-down diplomatic and legal interventions succeed without strong grassroots engagement?
Beth: The short answer is “no.” You absolutely need to have a strong, independent civil society in order for these mechanisms to work. They’re essentially the bridge between a country’s government, diplomatic community, and multilateral institutions like the United Nations or investigative mechanism that may have been formed like the Human Rights Council, etc. They are also the bridge between those big top-down institutions and ordinary people–-the actual survivors who lived through these events. They can also help translate the ideas, visions, hopes, and expectations of ordinary people and mold them into policy proposals they can advocate before the government and bring in international support to try and build those things. Part of what we did in government was to try and fund those organizations so that they had the resources they needed to bring in expertise and hold convenings in these communities. With the funding frozen by the Trump Administration, and some of it actually rescinded, this sector is really in crisis right now. Part of what our Alliance for Diplomacy and Justice has been doing is working with philanthropists and other donors to try and think about how we can continue to invest in this sector.
Marvelous, Inc.: In pursuing justice (or transitional justice), how do you guard against unintended consequences such as the retraumatization of survivors, political backlash, renewed violence, or misuse of justice tools for vengeance? How should those risks shape policy design?
Beth: It’s incredibly important. We’ve become much more sophisticated now about thinking about trauma-informed approaches, really understanding that you can’t ask survivors to tell their stories over and over again. You don’t want to create multiple accounts that might later be used to cross-examine the survivor. Minor differences in an account do not necessarily mean the person is lying, it just means they told the story slightly differently, but a defense council is going to utilize that in an effort to zealously represent their client.
The worry of renewed violence is always there. I was in Liberia when Prince Johnson, who was one of the key alleged perpetrators during the wars in Liberia, was going so far as to practically threaten violence if Liberia moved forward with their War and Economic Crimes Court. So, people were quite worried that he was going to lash out, and it might bring about a return to some level of violence. [that said,] many Liberians felt like he was somewhat of a paper tiger. He had a lot of power in Nimba County, [...] but was he really able to mobilize violence? It was unclear, but it was a worry.
So, you’re constantly worried about the individuals who may be the target of investigations refusing to go along with this and looking for ways to derail a process, including by using violence. A lot of it depends upon working with the local society to figure out how to approach these issues in a way that can neutralize some of those potential threats. The whole system has to be created within the context of international human rights obligations that states have taken on by virtue of joining treaties or customary international law.
Marvelous, Inc.: As you return to academia and join, among other groups, the International Commission of Jurists (ICJ) as a Commissioner, what do you see over the next 5 to 10 years, as the biggest opportunities and greatest threats to global criminal justice? What legacy do you hope to help build?
Beth: We’re definitely in a period of retrenchment, and that’s obviously worrisome and disappointing because we emerged from a period where you saw a real expansion in commitments to justice in the plethora of new institutions that were being created–-new models, new ideas emerging, and a lot of creativity. The situation in Ukraine produced so many new pathways to justice that are available now to other societies to pick up and adapt for their own particular purposes. It was good in the sense that we’re proliferating ideas and institutions, but now we’re also seeing a withdrawal of support. Unfortunately, many other states are following the lead of the Trump Administration and using this retrenchment within the United States as an excuse to pull back from their own commitments, including states that have been long devoted to these issues. I would really like to see that change course and for states to instead step up and fill the gaps that are being left by the Trump Administration.
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