COM 05/2019

Interview with Kingsley Abbott, Senior Legal Advisor, Global Redress and Accountability, International Commission of Jurists (ICJ) on international legal human rights work and global trends

Q: Kingsley Abbott, thank you very much for your time today. To begin, in your personal view, what is human rights work about and why do you think it is important?

A: A very technical answer that somebody could give is to try to promote and protect all the international human rights conventions which contain the different guarantees that states have to give in terms of human rights. But the real answer is about improving the lives of people. If you look at the different human rights people have, it is not only about things like the right not to be tortured, the right not to be killed, but also about the right to education, the right to health, the right to water and this is important because it’s about improving the day to day lives of ordinary people.


Q: Can you share some experiences from your day to day work? What are challenges that you encounter, how do you overcome them? Can you share some positive and negative experience that you have had?

A: My work is mostly focused these days on accountability for human rights violations and so that has me travelling all over the world, hoping to promote accountability and end impunity in different parts of the globe. I think one of the interesting parts of my work is that we are involved in trying to promote accountability from the top down and from the bottom up. At the very top level we are trying to develop international law and standards which are aimed toward ending impunity at the very highest level, and then a level lower down, we are working with governments, hoping that those governments will then adopt those laws and standards and apply them at the domestic level.

At the domestic level, we are working with different justice sector actors like judges, lawyers and prosecutors, training them and building their capacity to deliver justice. We also work with victims, communities and civil society, helping improve their capacity and their knowledge so that they can seek justice within that framework. So, in real terms, work that has been going on often is sitting at my desk and helping develop in word documents different international standards that might apply, sending them to actors around the world and working collaboratively with them. It also has me sitting quite often with justice sector actors such as judges, lawyers and prosecutors, whether it’s in a formal or informal setting, sometimes over dinner sometimes in their offices and developing potential programs that they might be interested in requesting. They could be doing a training or a workshop on the international standards that apply to investigations or the international law and standards that apply to victims’ right to remedies and reparation, the independence of the judiciary and judicial accountability.

But I think some of the most rewarding parts of my work is working with civil society and working with affected communities. It’s also the most challenging part of my work, because as a lawyer I think we are often quite comfortable sitting with legal colleagues talking about these things theoretically but it’s tremendously challenging and places a very big burden on us when we sit with affected communities, civil society and victims of these crimes. Often, they don’t have a legal background, and they don’t think about their experiences in terms of international legal framework and the challenge for me is often to pull all of the international law and make it accessible and relevant to the lives of victims in civil society. They are often people who have had terrible life experiences, and they often have very high expectations for what they want from us and from the international justice framework. I think there is a real importance in building relationships with these people in a way that you can actually help and support them without bamboozling them with the whole lot of international human rights law and standards.

I think many of the most inspirational people I have met and the people that keep me going are human rights defenders in their own countries, and the victims of those human rights violations who have had their families killed. They usually work inside their own countries where they are enormously vulnerable to any kind of retaliation. They have often had traumatic experiences in their lives and they have been fighting for accountability for many years, sometimes decades, and I greatly admire their strength and tenacity and they inspire me on a daily basis. So that is, I think, the most rewarding part of my work.

I think sometimes the most difficult part of my work is having to make peace that you are not always going to get the results you want quickly. The international human rights movement, the international justice movement, is something that requires the input and the commitment of tens if not hundreds if not thousands — millions of people all over the world in order for it to make it work. Often, change is slow-coming, it’s usually one or two steps back as you make one or two steps forward. Particularly in the current global environment it’s becoming more and more difficult because people are now challenging the international human rights framework — multilateralism, globalism, and so we really have to find new voices and new ways of promoting human rights in that context. I think that we should continue doing the work that we do because we believe it’s the right thing to do, and I think it’s important to contribute to the human rights narrative to all different discussions that are going on around the world whether it’s in media or the local communities and governments.

I also think that we believe in the fact that over time change would come. Someone famous once said the arc of justice bends towards the outcomes we wish for. There have been several instances where we have had good results, quite a number! The fact that international human rights framework even exists is a post-World War 2 miracle, the fact that now we’ve got a human rights council, states are having to come together, account for their work on human rights or their failings and be reviewed by their peers and other states around the world, is something that would be mostly unthinkable of in the 1940s. I think there are also more specific examples we can give where we now have places around the world where perpetrators of human rights violations have been held to account in international and domestic justice systems, and that only happened because those international laws and standards were developed and were adopted by states, often with the pressure from civil society and from victims, and there are countless examples of that around the world. At the micro-level, states like Thailand have made some progress over the years. For example, when I worked with the judiciary, we talked the other day about how victims of violations in the country are not always aware of the different access they might have to remedies and reparation within the justice system and so the judiciary took that advice onboard and seem to have a memorandum around the country making it an important part of each legal process, that victims are aware of what their rights to remedies might be. We also worked on some international standards for the investigations of unlawful deaths, and the Thai Police and Thai Prosecution and some of the educators within that system have come to us and adopted some of those standards and training materials. Thus, there are good results on the big stage and good results on the smaller stage as well.


Q: Does it ever get easier? On the grassroots level, you said that you encounter victims, people who have been at the wrong ends of human rights abuses. Do you feel that there is any specific skillset that you need for your job, and specific training you receive, such as how to deal with people who have been abused or how to engage with traumatised victims?

A: As I said I think it’s one of the most challenging parts of my work to work with the victim communities and victims on the ground because you don’t learn all those skills in law school and you don’t learn them working as I did in international criminal tribunals. They are really life skills for the most part, and you have to be a lawyer who can go and sit and empathize, do a lot more listening than talking. You have to be always calibrating what you’re saying to a non-legal technical level that they can understand. I think one of the biggest gaps which I sometimes see, which I think requires a lot of skill, is to translate some of those technical information and knowledge into a way which might be useful to and understandable by communities, civil society and affected groups. Within those groups there is a huge range of knowledge, some people are very educated and already quite aware of these issues and some people have no education whatsoever and they are not interested in hearing from me about these international human rights treaties and conventions. They want to know how we can help them help themselves, so I would say that one of the greatest skills I think for human rights work is for a lack of better words, compassion and people skills. You also often have to take your ego out of the equation and really do a lot more listening than talking, particularly in the early stages, as I said.


Q: You have had experiences in many different regions around the world. Are there stark differences in how you approach communities in different regions? Is it easier in one region than another to fight for human rights compliance? Lastly, what do you need to be aware of in terms of cultural compliance?

A: I think one of the worst things that any international human rights organization can do is parachuting into a new context and new situation and start telling everybody what to do. I’ve seen that unfortunately happen in some situations. I think that in order to be successful in any country, we have to show first of all that we have something valuable that people on the ground actually welcome, would like to learn more about and receive training on. Thus, the early days should always begin with a pretty detailed assessment as to whether or not our advice and input is welcome, before we start working in a country. Usually it’s not until we receive an invitation from the government or victims of civil society inviting us to come and help them with their work. I think usually that needs to begin with a very detailed assessment of context first. I think before any of us go into a new country, we try to talk to as many experts as we can, with a strong emphasis on experts in the region, nationals of the country that we are thinking about working with, and when we arrive in the country we are mostly dependent on local assistance. Whether its local civil society, interpreters, translators, lawyers on the ground who are bilingual or multilingual who can assist us. It’s important also to begin very slowly, as I said, to really spend a lot of time listening to local actors so that we can really understand through their voices what the situation is and perhaps in some instances mutually identify some issues we can assist them with. But I think it’s important to emphasize that our work is really to support the work that people in their own countries are already doing and to identify ways in which we might be able to help them without getting in their way.


Q: What would be a concrete example of this approach?

A: I think there are many examples around the world. Usually we will begin by talking to the local civil society, local lawyers in our case and often victims of violations in that area. An example might be the deep south of Thailand where there is a long-standing insurgency. A lot of violations have been documented and committed by the state, and when we went to the deep south we started by approaching the local lawyers and learning what the context was, and how we might be able to assist them. We also spoke to a number of local civil society groups in the deep south, and often when we conduct activities with the civil society, lawyers or later with the governments, we will do it in partnership with the locals. We very rarely do anything on our own, and on another level, we often employ some of the work of those teams from the country. The Thailand team is made up of a strong contingent of Thai lawyers who are very familiar with the context of the country. Without them we wouldn’t be able to do our work. It’s the same for our work in Myanmar. When we started work in Myanmar, we first spoke to local civil society, local lawyers and government to identity ways we might be welcome to assist. Fast forward several years, our team in Myanmar is made up of quite a number Myanmar lawyers in different parts of the country and the activities we conduct in partnership with Myanmar organizations, and the work we do with the government requires us to sit with different Myanmar officials and identify ways we might be able to also help the government with their international human rights obligations. Therefore, at each stage of the process we are engaging as much as possible with local actors, be it in southern Thailand, Myanmar, the Middle East, North Africa, Western America and so on.

Q: Another practical question: When you have an idea for a project or when you encounter a situation where you know assistance is needed, it usually won’t work unless you have financial support. How do you deal with this? How do you get funding for specific projects that you are working on and how do you develop the funds more generally? What strategies do you have?


A: I think with respect to funding and developing projects, the first challenge is to come up with an idea that you think is in fact going to be useful, and you need to be able to articulate from the beginning what your objectives are, and what activities you want to recommend so as to fulfil those objectives, and what outcomes will result from them. That’s what donors want to hear. Often the instinct is to say well, working on human rights is just valuable in and of itself, but donors, and rightly so, want the details and precisely what your plans are and that is sometimes challenging.

I think there are several steps to the process, the first is to come up with your idea. The second is to reduce that idea to a particular objective, and when you do so, it requires a detailed and close consultation with the wide range of actors, such as victims, civil society, the government, and whoever you think will be the beneficiaries of that work in order to streamline and sharpen precisely what it is you are trying to achieve. Then when you develop certain activities, it should not just be to develop a lot of conferences for people to talk, often donors want to see something more practical, something more targeted. Have you already done the baseline assessment as to what the issues are before you give everybody a room to talk about it? Is there going to be any follow-up? Because I think often the challenge that donors see is that a lot of work is being done on a particular issue for two years, and then it’s dropped. You need to be able to identify outcomes and what you actually hope to achieve by the end of this. Do you hope to achieve some kind of country or regional standards? Do you hope for it to be more strategically engaged in courts? Do you hope that the domestic legislation of a country is going to be informed? You have to be very clear about this. Once you think you’ve got it down in a two-page, three-page document which is very tight and very logical, then I think there is some more pragmatic work that you have to do, which is to approach donors.

Usually that flows in both directions. It typically involves my colleagues and I going to donors with ideas and pitching those ideas to them, and they would get back to us saying “Yes we are interested in this” or that this is something that might be dealt with by somebody else or in another part of the world. You’re often the one doing the writing and pitching your proposal. On the other hand, different donors like states will issue calls for proposals where the state itself will develop what it thinks its priorities should be in a certain country, region or globally. They might say they want to work on the rights of women in Thailand, or access to justice for victims in Myanmar and then we keep an eye on those calls for proposals and we create them. If we think that it aligns with work that we could do or are doing, then we submit proposals to those courts.


Q: Human rights is an incredibly broad subject. Some sceptics have argued that it is soft issue which can be hard to grasp in concrete terms and on an abstract level, most people want to be at least perceived to agree on them. Is it a soft issue?

A: Yes, I have heard people say that in the past. My background is coming from being a criminal prosecutor and criminal defence lawyer in my home country in New Zealand and also working in international criminal tribunals. I think the work that I do in the International Commission of Jurists and human rights is in fact some of the most difficult and sharpest work I’ve ever had to do.

I think when people talk about human rights being a soft issue, they might be referring to things that are easily agreeable, things like the right to education, the right to water and food, I think nobody disagrees on those things. But there is a tremendous struggle going on around the world with gross inequality affecting victims of the most marginalized communities, and some of the toughest fights are going on at the moment. Some of the work that I do is focused on gross human rights violations, or violations that might end up being crimes in international law. We are here in the human rights sphere talking about the crimes that are related to genocide, extrajudicial killings and torture. When we work with victims of such violence we are working with some of the most desperate, the most marginalized and those who have suffered the most. The subject matter is sometimes enormously difficult to grapple with, for them and for anyone who is trying to assist them.

Often when you’re working with states on those issues, they are usually defensive and unwilling to cooperate, and then when you get to accountability mechanisms like the International Criminal Court or some other mechanisms that exist around the world within the human rights framework, you are really fighting for access to justice for victims for some of the most serious crimes in the world. There is also a tremendous unwillingness to recognize those rights that victims have because it might amount also to some kind of acknowledgement that violations have taken place, and certain states are unwilling to do so at different stages of their development.


I also think that sometimes when people talk about human rights being soft, they might be talking about fundamental freedoms, like freedom of expression, freedom of association, freedom of assembly, but in different parts of the world, those are some of the most difficult rights people are fighting for. You only have to look at places like Hong Kong at the moment, places like Tiananmen Square in the China’s past, even in parts of Thailand it has been documented that incidents of retaliation against people for merely wanting to express their right for democracy and transfer in government. In many instances, it has resulted in people being tortured and killed. Hence, while I have heard before that human rights is a soft area of the law, it hasn’t been so in my experience.


Q: Let me put another sceptics’ argument to you: I would imagine that you have come across the criticism that describes human rights as a western concept. People argue that if you go towards the developing world and the global south, it might be deemed as an instrument through which the western powers further their own agenda. What do you reply to that?

A: It’s a question I often get asked and get challenged by different people, and it’s something I never really understood through the lens of my own experience. I think there are several ways of answering this and one is to say a fact, which is that particularly after the second world war and subsequently in the 1960s, the states which were throwing off their colonial past, often countries of the global south, were the ones who were most actively calling for international laws that were binding on all countries and upheld human rights. Therefore, historically it’s false to say that countries in the global south have no interest in human rights or have not been involved in their development.

I think on another level I’ve had hundreds if not thousands of conversations with different actors in the global south, and it has invariably been government officials that have suggested to me that in some way human rights are a western concept being imposed on them. However, the vast majority of the civil society — ordinary citizens, victims of human rights violations — whom I’ve spoken to wouldn’t agree with that at all. They want their human rights. Often, they can articulate what rights they want. But even if they can’t articulate necessarily the rights that they want, they have an inherent sense of justice, and an inherent sense of wanting accountability. There are places in the global south I think I have met with human rights defenders and victims who had no legal education, and who couldn’t manoeuvre within human rights treaties, but they are able to articulate the human rights that they want better than I can. This is because they feel it inside themselves as a measure of the human experience, particularly people who have suffered violations themselves.

Another way of answering this question is to ask ourselves, which isn’t always done: do people in the global south really want human rights? As a good lawyer, I’d say we start by some definitions: what are human rights? Let’s list a few of them and see what people might want. The right not to be arbitrarily deprived of your life — generally there is an agreement on it. The right not to be tortured, the right to be able to associate with the people you wish to associate with, the right not to be arbitrarily detained, and if you are arrested and placed in a court, the right to receive a fair trial — there are very few people I’ve met who would disagree with any of those. Then you move on to economic, social and cultural rights, do we think it’s important for people? What about the rights to food and water, how do you disagree with that? By the time you go through the list of human rights, there are very few people that would actually disagree after having a concrete discussion about it.

I think lastly, if you look at the experience of the global south, what’s going on the last hundred years, last ten years, the last six months, there are countless examples of people calling for human rights. You look at protests in Latin America, you look at the recent protests in Hong Kong, and protests here in Thailand where people have stood on streets in front of the state. People often say “speaking truth to power”, meaning we want the state to guarantee our human rights, we want accountability for past human rights violations, we want remedies and reparations and we want to be able to improve the quality of our lives, whether its not to be killed and also to be educated, to have health, food and water.


Q: Last question, and following on from the examples which you have just mentioned. If you look around the globe today, what are some of the trends that encourage you in your work and what are some of the trends which you think might be a cause for concern?

A: I think that some of the trends that encourage me is where we are at in 2019 in terms of having the tools to promote human rights. We’re at an unprecedented stage in history. If we had this conversation in the 1920s or 1930s, I wouldn’t be able to point to international human rights mechanisms and international laws that states agree to be bound by, which enumerate what human rights are. There was no UN human rights council, there was no ICC. Therefore, the framework that we have to work with in 2019 is something to be very encouraged by.

I think also globally there are some positive developments in terms of reduction of poverty and quality of life of people around the world. If you look at the way in which the world was decimated in post-World War 2 which wasn’t that long ago (it’s in my father’s lifetime), where we’re at in 2019 I think that the quality of life for people around the world is better than those in 1945. That’s a positive development as well.

In terms of negative developments, I think there are some at the moment, and they are gathering pace. A lot of criticisms that are now becoming mainstream are directed at the human rights legal framework. There are criticisms of the way in which countries are being asked to accept refugees for example, and the global refugee migrant crisis is an important challenge that needs to be addressed. It need not be addressed by closing borders or building walls or by violence, particularly since we are talking about people who are fleeing from persecution and conflict.

I think a second global trend that is very concerning is the attacks on free media. Critics start to say that the media is enemy of the people, that the media can’t be trusted, as it brings about a population that is bamboozled with what the truth is or isn’t, and therefore not knowing or being equipped with the ability to make informed decisions in terms of electing political representatives and the proper function of the democratic system.

I think we are also seeing attacks on the judiciary around the world. Certain states are saying look, these issues, whether they are purely political or not, have gone through the justice system. The judges have not ruled in my favour, and this is because the judges are biased and political, and you can no longer trust the judiciary. You slowly start to see the erosion of public trust in those institutions which are there to protect human rights. We also see a lot attacks on civil society around the world, the idea that civil society is it in fact not there to promote better quality of life for people within the country or region, but actually is a destabilizing force. They are in some way seen as a group of people who do not love their country and need to be silenced by the worst ways possible or by legal harassment. This criticism has been gaining traction around the world as well.

And there are other trends that seem to be coagulating at the moment but I think that the solution to a lot of those challenges is to go back and regroup. We have a relatively strong international legal framework that enumerates and describes what human rights are, and we have different mechanisms on human rights violations. We know what the rights are, and we know what the obligations of states are and I think what’s required first and foremost is more global leadership on those issues. Who has the prime obligation in the international human rights framework to protect human rights? It’s the states! They are the ones who have the duties. We need more leadership from around the world in terms of how heads of states, judiciaries, different government actors stand firm on a principled basis to say freedom of expression should be guaranteed, freedom of assembly should be guaranteed, independence of the judiciary should be guaranteed.

With respect to refugees, if you want to improve the refugee crisis, maybe answers can be found in the international refugee convention. It also illuminates how to develop a response consistent with international human rights law. I think unfortunately it’s something of a trend at the moment, a fall of global leadership, but I hope there will be a reversal in that. I think you can see something like that around the world. It’s not because I’m from New Zealand, but I think New Zealand is a good example, with our prime minister Jacinda Ardern who in response to a number of crises in our country in recent months stood out and took a very compassionate, firm and principled stance on different human rights issues. I think now is the time for different countries or smaller countries to start standing up and provide support to other countries, and be flag bearers for the international human rights cause. It’s something that isn’t just good because it’s good, it’s something that needs to be something that countries want to have, like sustainable development, stability, a happy, prosperous people within a country. Many of the answers to those trends can be found in international human rights frameworks, and its execution requires political leadership.

The interview was conducted by Jan Kliem, Senior Program Officer and Researcher at CPG.