On 5 October 2020, three NGOs, the Open Society Justice Initiative, Syrian Archive, and the Syrian Center for Media and Freedom of Expression, filed the first criminal complaint related to the use of chemical weapons in Syria with the Office of the German Federal Prosecutor in relation to the sarin attacks on Ghouta in 2013 and in Khan Shaykhun in 2017.1 The dossier includes the most detailed investigations to date with new evidence and investigative leads, and identifies a number of Syrian government officials and chains of command responsible for the attacks.2 Using German universal jurisdiction legislation,3 this historic filing is remarkable for a number of reasons but especially for the crucial collaborations in pulling the dossier together. The three NGOs not only worked with one another but also with technology companies like C4ADS,4 and university partners, in this case the University of California at Berkeley (UC Berkeley).5 Student researchers at UC Berkeley’s Human Rights Center used open source investigation methods to build and corroborate evidence for the case file.6 As noted by the Center, ‘through this work, UC Berkeley students contributed to the wider international efforts for justice and accountability for crimes committed during the Syrian civil war.’7 While not mentioned explicitly, in many ways, these students also helped advance the rule of law for atrocity crimes.
Civil society actors have long been involved with documentating serious human rights and humanitarian law violations.8 Over the years their support and networks have significantly increased, resulting in better standardization and professionalization within the documentation field.9 This change, coupled with technological developments, has allowed a greater number of civil society actors to use their documentation efforts to pursue different avenues of accountabilty for those states and individuals believed to be responsible for serious violations.10 Examples range from human rights NGOs bringing complaints before regional human rights bodies to hold states responsible,11 as well as filing criminal complaints or persuing private prosecutions against suspected individuals in domestic criminal courts.12 Indeed, there has been a transformation of human rights fact-finding and how it impacts the rule of law and accountability for serious crimes.13 Importantly, civil society actors, such as human rights NGOs or community groups, are not working alone. In many instances, like in the example given above, these groups have formed formidable relationships with university partners. They regularly collaborate with universities through what is often referred to as community engaged learning (CEL).14
Within legal education, the most common form of CEL is clinical legal education. Clinical legal education, or similar types of projects, provide law students with the opportunity to gain real-life work experience by engaging with real people or organizations that have legal questions or problems. Clinical legal education is growing around the world,15 and according to Richard J. Wilson ‘the origins, growth and acceptance of clinical legal education throughout the world is the greatest single innovation in law school pedagogy.’16 One of the underlying benefits of clinical legal education is that ‘law students learn about their professional responsibility for—and develop a personal commitment to—sustaining and supporting the rule of law, human rights, and social justice.’17 On the whole, however, the individual law student (or even law school) has not been seen as a noteworthy actor in directly supporting the rule of law, whether domestic or international, as such. Rather, states, as well as international organizations like the UN, are customarily seen as the primary entities responsible for rule of law compliance and protection.18 In almost all of the documents espousing the significance of the rule of law, and in the billions of Euros poured into rule-of-law assistance programs beginning in the 1990s, the recipients of the funding and attention are states or international institutions.19 Accordingly, research on the rule of law has tended to focus on the role of states or larger governmental institutions in respecting rule of law principles or have approached the concept from a more theoretical basis.20 Less scholarly attention has been placed on looking at the role of actors operating below the state level in protecting and defending the rule of law.
This article aims to contribute to a growing strand of scholarship looking at how the rule of law is protected and bolstered ‘from below.’21 As noted in the introduction to this special issue, the phrase ‘from below’ has been used in a number of different fields of study, from history to transitional justice.22 It is generally employed as a means to denote a focus on the views or efforts of common people, as well as those that may be more marginalized in society, in comparison with state leaders or other influential actors. It is associated with a more inclusive way of looking at specific fields, in this case the legal field, and democratising the sources and materials examined.23 This article investigates the rule of law from below by exploring the role of a specific type of civil society actor; one that is not necessarily readily associated as being part of civil society and that typically holds a relatively privileged position in society, namely the university.24 Moreover, it examines the role of the university in a particular type of practice related to the rule of law: the documentation and investigation of serious international crimes and efforts at ensuring accountability.25 Research looking at actors below the state level, such as the role of civil society actors, has tended to focus on distinct aspects of the rule of law, such as around transparency or accountability, or more usually focusing on its counterpart: human rights.26 Yet, looking at how the rule of law is protected, defended, or even advanced by non-state actors operating below the state level is vitally important to understanding how rule of law principles get recognized, operationalized, and implemented.
This article first explores the concept of the rule of law and how that is connected to accountability for serious international crimes. Next, it unpacks the role played by universities, often through their clinical legal education, in assisting with the documentation and investigation of serious international crimes and pursuing accountability. It shows how universities are increasingly involved in documentation and investigation themselves, often working together with multiple societal partners. It goes on to explore what implications the role of independent investigator means for academic institutions in protecting and advancing the rule of law. It suggests that despite not adopting a rule of law frame, the universities advance or bolster the rule of law by (1) basing their work around international norms and standards; (2) engaging with and utilizing institutional accountability frameworks for serious international crimes and lending legitimacy to their work; and (3) heavily supporting other civil society actors through direct cooperation as well as training the next generation of actors in rule of law implementation.
Following on from these observations a few things become clear. The success of these various programs should foster greater recognition of the need for societal engagement from universities around rule of law initiatives. Also, since many of these universities hold privileged positions in society, they are well-placed to help build capacity amongst civil society actors as well as amongst their peers and counterparts in the Global South. Finally, more research on the impacts of universities and students on advancing the rule of law and accountability for serious international crimes is needed in order to better understand contributions by actors ‘from below’ to the rule of law.
2. The Rule of Law and Accountability for Serious International Crimes
The concept of the rule of law, while celebrated by legal scholars and practitioners, has been notoriously difficult to define and delineate clearly.27 Countless academic conferences, special publications, and monographs have been dedicated to the subject.28 Boiled down to its most basic, it can be seen as the regulation of the exercise of authority.29 However, understandings have ranged from formal and ‘thin’ conceptions to more robust, ‘thicker’ conceptualizations, namely those underpinned by human rights and democratic ideas. Dicey has outlined three understandings of the rule of law: (1) the rule by regular law, and not by arbitrary power; (2) equality before the law; and (3) the protection of individual rights by judicial decisions.30 The concept is said to cover issues from judicial review over government action to publicly promulgated laws laid out in advance of application, as well as adherence to basic standards of fairness.31 Legal scholars tend to now agree that overall ‘thicker’ rule of law principles provide, amongst other things, that laws are clear and applied fairly; that everyone is accountable under the law; and that fundamental rights should be protected.
Whether as ideal or ideology, respect for the rule of law is central to the international legal and political order,32 and it is a cornerstone of the protection of human rights as well as calls for accountability for serious international crimes.33 UN Member States have time and again affirmed ‘that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.’34 In institutional documents stressing accountability for serious international crimes, the rule of law is routinely evoked.35 Accountability processes are seen as part of the effort to restore or re-establish the rule of law in regions or countries where the rule of law has failed for one reason or another.
Notwithstanding its clear importance, the rule of law has become a buzzword at the international level—sometimes with little meaning attached. So much so, that in 2003 one author referred to there being an ‘explosion in “rule of law” promotion.’36 It has been so overused in political and legal rhetoric that Judith Shklar, the late Harvard political theorist, already remarked in the late 1980s that it ‘has become meaningless thanks to ideological abuse and general overuse[…]. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.’37 Though many academics would disagree on this last point, it is clear that the rule of law is a contested and messy concept, but nonetheless significant for underpinning accountability efforts for serious international crimes.38
3. Universities, Community Engaged Learning, and Clinical Legal Education
While definitions differ, the Office of the High Commissioner for Human Rights defines civil society actors as individuals and groups who ‘engage in forms of public participation and action around shared interests, purposes or values that are compatible with the goals of the UN: the maintenance of peace and security, the realisation of development, and the promotion and respect of human rights.’39 Schools and universities, as social institutions, as well as churches and other cultural institutions, fall under this definitional umbrella when their work connects with these aims. Universities are a category of higher education institutions (HEIs), defined by UNESCO as establishments providing higher education and recognized by competent authorities as belonging to their higher-education systems.40 They vary greatly in terms of size, focus, and accessibility. They can be public institutions funded by the state or private universities funded largely by higher tuition payments and donor contributions. These different factors all impact the educational programs offered to students and the various roles that they play in communities.
Within universities, and beyond regular course work, students often connect with the promotion of and respect for human rights (and rule of law) through CEL. CEL is experiential education in which students, teachers, and external partners work together on societal challenges.41 CEL integrates societal engagement with academic study and reflection to enrich and enhance the learning experience and contribute to community needs.42 A key aspect of CEL is a strong focus on reflection and helping students analyze and critically think about their experiences in the context of their project goals and working environments. The reflection includes covering questions related to the limits of their work and their limited ability to address community needs at a structural level.43 Unlike volunteer work or internships, the university plays a central role in ensuring the student’s work links with academic content and the values of the institution.44 For academic staff, CEL increases collaboration with societal partners,45 which can be beneficial for both teaching and research activities. For the universities, CEL projects often benefit its external image in the community. An important advantage of CEL for society is that societal partners can work with and use the expertise of students and academic staff to collectively help them solve or address complex challenges.46
When these challenges involve legal questions or concerns, the work will likely be part of clinical legal education or a similarly set up program or project. Legal clinics generally comprise small groups of students providing work to real clients or societal partners for real-world use. Supervised by lecturers or practitioners, law students gain first-hand knowledge of legal institutions, acquire in-depth understanding of particular fields of law, follow important jurisprudential developments, and develop a range of valuable skills pertaining to legal research, analysis, writing, communication and time management. Legal clinics first (re)emerged in the 1960s in the US,47 where they began focusing on cause-based lawyering.48 These causes were largely linked to domestic social justice issues such as access to housing or other benefits, immigration, or discrimination cases.49
Legal clinics have since spread throughout the world,50 making a significant impact on legal education.51 They have expanded in scope from domestic social justice issues to addressing global legal challenges.52 For instance, there is a growing number of international human rights and environmental law clinics and programs that tackle abuses around the globe. In the dynamic and rapidly expanding field of international law, courts, organizations, and individuals have increasingly benefited from these types of legal services provided by universities (read students and teachers) through their international legal clinics. Notable examples include the international human rights clinics at American University’s Washington College of Law, Columbia University, UC Berkeley, the University of Miami, Harvard University, Seattle University, and Stanford University. Each of these international clinics, and many others,53 has influenced or impacted international human rights bodies and their operation or decisions. As with most domestic legal clinics, the students in these internationally-oriented programs are regularly sent into the field to carry out human rights field work or fact-finding, in order to compile or build the factual basis on which their legal argumentation will rest. This frequently involves interviewing clients and other relevant individuals, filing freedom of information requests, archival research, and other forms of information and evidence collection.
Student documentation and investigation work has the possibility of offering students a closer look into the lived experiences of those individuals at the heart of their work. It has a number of pedagogical advantages including introducing students to ‘empathic lawyering, issues of difference and privilege, sound legal judgement, collaboration, and inter-disciplinary approaches to legal problems.’54 It requires information-gathering and interpersonal communication skills, which in cross-cultural contexts and trauma environments can be particularly challenging to develop. In many circumstances, it allows students the opportunity to strategize for broader legal activism.55 There will also likely be numerous ‘disorienting moments,’ where students will begin to question previously held understandings of the world.56 Quigley argues that these present opportunities, through reflection and discussion, to learn lessons of social justice.57 Nevertheless, in addition to these benefits, fact-finding and investigations are also potentially dangerous. Students will be exposed to trauma environments, graphic material, and possibly to harmful individuals. The classroom support should provide the opportunity to teach the students about the importance of both mental and physical well-being and how best to identify and address any risks.
Not all legal clinics, however, have fact-finding, documentation, or investigation components. In fact, most international legal clinics do not engage with direct-service client representation or engage directly in independent documentation work at all.58 Rather, they contribute to legal analysis and argumentation though reports and legal memoranda to clients or the filing of amicus briefs based on fact-finding carried out by local partners or professionals. This allows, for example, students working on serious international crimes to undertake their work at a safer distance (both geographically and visually in terms of not having to view graphic images) than their counterparts in other legal clinics that may have a documentation or investigation component. With a handful of important exceptions, which this article will explore, most international clinics dealing with serious international crimes, such as war crimes, crimes against humanity, and genocide have not involved students in independent factual investigations.59 Importantly, however, this is beginning to change.
4. Examples of universities engaged in documenting serious crimes to aid in accountability
A select number of universities have increasingly taken on documentation and investigation roles in relation to serious international crimes to later be used for accountability purposes. This growing trend at universities coincides with the rising numbers of civil society organizations also taking on private investigations (and even prosecutions) for serious international crimes.60 Alston and Knuckey have identified two reasons for the changes: (1) advances in investigative methods and new technologies available to a wider array of actors and (2) aspirations to impact existing legal frameworks, such as international criminal justice.61 In addition to these, universities have faced mounting calls to better connect their research and education initiatives with societal needs to generate positive societal impact.
Probably one of the most well-known early examples of a university wading into the waters of documentation of serious international crimes was that of Yale University and its work in setting up the Documentation Center of Cambodia (DC-Cam). DC-Cam was established already back in January 1995 in Phnom Penh, Cambodia as a field office by the Cambodian Genocide Program at Yale University.62 The project was funded by the US Department of State, Yale University, and other international actors including the Dutch government.63 It set to work documenting the crimes and harms suffered during the Democratic Kampuchea (DK) regime that lasted from 1975–1979. Yale University supported the training of DC-Cam staff and set out to: (1) collect, study, and preserve all information about that period in Cambodian history; (2) make this information available to a court or tribunal with jurisdiction to prosecute alleged perpetrators; and (3) generate a critical, analytic understanding of genocide to help prevent political and ethnic violence against populations elsewhere in the world.64 DC-Cam, with the assistance of the university, became an NGO in Cambodia and created the largest geographic database on the crimes in Cambodia. The information collected has been directly used in court proceedings before the Extraordinary Chambers in the Courts of Cambodia and was made available not only to the lead co-Prosecutors but also to defense counsel and legal representatives of civil parties.
Another notable example was the collaboration that took place between Chadian survivors, lawyers, the global NGO Human Rights Watch (HRW), the Human Rights Data Analysis Group (HRDAG), and Harvard Law School’s Human Rights Program to bring Hissein Habré to justice for crimes he committed while president of Chad.65 With the financial and practical assistance of the Human Rights Program, LLM students/recent graduates traveled to Chad to collect and then smuggle out documentation of the crimes that would later be used in his trial.66 Without a doubt, the work was dangerous and not without controversy. Encouraging or supporting students or interns to travel to foreign countries where their lives or security could be at risk is not something that universities take lightly. Nevertheless, Harvard’s Human Rights Program, including its human rights clinic, is known as one of the most active and successful human rights programs in the world, and well versed in documentation work.
A more recent example was in 2014, when the Interantional Human Rights Clinic at Harvard Law School published a legal memorandum, following from a four-year investigation, finding that the Myanmar military commited war crimes and crimes against humanity in 2005–2006.67 The students undertook 11 field missions and compiled more than 1000 pages of draft affidavits from more than 150 in-depth interviews within and outside of Myanmar, including from former Myanmar army soldiers.68 Security concerns did limit the work of the students, restricting them from carrying out further investigations. Despite these concerns, as one of many reports produced by the clinic, the memorandum made a signifiant impact upon early calls for accountability for serious interantional crimes in Myanmar. Although the memorandum deals with crimes occurring between 2005–2006, and not the time frame covered under the investigation by the International Criminal Court (2016–2017) or under the complaint filed by The Gambia against Myanmar before the Interantional Court of Justice (2016–2017),69 it does help to show patterns of violence carried out by the military and could be relevant to both court proceedings. The quality of the memorandum is indicative of the high standards expected from the students and highlights the extraordinary opportunities afforded to Harvard students.
Like Harvard, a handful of other elite US universities have also carried out investigative work on serious international crimes and used their platforms to call for accountability.70 At Stanford University, for instance, students in the Human Rights Clinic, run by Beth van Schaack, take on significant documentation work around serious international crimes. Working with civil society organisations, UN investigative bodies, and international courts, Stanford students have engaged with open source investigations, tracking the prices of milk and other food commodities and the rates of child marriages to show how starvation is used as a weapon of war. They have also been sent to relevant regions to carry out interviews of affected populations.71
One of the most new and innovative examples of universities and students engaging in documentation and investigation work is the group of universities involved in Amnesty International’s Digital Verification Corp (DVC), which launched in 2016.72 In contrast with the more traditional documentation approach of interviewing victims, witnesses, or perpetrators, these universities have a unique approach to documentation. Led by Sam Dubberley of Amnesty International, and assisted by teams of professors and professionals around the world, students working with the DVC are trained to use modern technology, namely open source investigations, to document, verify, and analyse serious international crimes. The advantage of this work is that students are not directly placed in harms way. Still, there are risks associated with the work such as through vicarious trauma.
Amnesty International first partnered with the UC Berkeley on this work. Berkeley has a long history of engaging students with documentation projects through the work of professors like Eric Stover and others. Already back in 2008, Berkeley’s Human Rights Center began making connections with technologists and technology companies, seeing the possibilities and utility that technology can bring to the justice sector. Soon they were partnering with major actors in the justice and accountability field, including Commissions of Inquiry, UN investigative bodies, international courts, and a wide range of civil society organizations. Berkeley has the largest documentation project set up at a university, with roughly 70 students per semester from across disciplines and graduate levels participating on 10–12 investigations at any one time. According to Alexa Koenig, Executive Director of Berkeley’s Human Rights Center, one of the strengths of the program is the diversity of the student body (both in terms of experience and language capacity) and the emphasis they place on well-being, community, and cooperation.
Indeed, the university not only promotes strong cooperation skills among Berkeley students but also with student bodies at other universities, with Essex University being one of the early partners. Essex University’s Law School launched its Digital Verification Unit in 2016 as part of the DVC partnership. In addition to Berkeley, Essex had one of the first university-based human rights investigation units of its kind using open source investigations for international organizations and courts; and partnering with UN Commissions of Inquiry and other NGOs.73 Just like at Berkeley, students are trained to verify user generated information on potential war crimes and they work to document and verify digital evidence pertaining to serious human rights abuses and to use open source investigative techniques to pursue accountability.74 Other university partners now include the University of Pretoria in South Africa, the University of Toronto in Canada, Hong Kong University, and Cambridge University in the UK—with Ibero-American University in Mexico joining soon. Not all of these programs operate at the same scale as Berkeley,75 but they are no less impressive. One aspect that is particularly important in maintaining the strong partnerships is their annual Global Summit that brings students and supervisors from all of the programs together. This event helps create a shared sense of community through common values and purpose.
Other noteworthy international examples, though these are more limited in scope, include work carried out by the University of Amsterdam, students at the University of Edinburgh, and at the Harry Radzyner Law School in Israel.76 At the University of Amsterdam’s International Law Clinic students have undertaken open source investigations to aid in future accountability initiatives. One example was a project where students used open source material to identify corporate activity linked with the repression of Uyghurs in the Xinjiang province in China.77 Another project related to open source investigations and the financing of property in the West Bank for advocacy work. At the University of Edinburgh, students have taken the lead in setting up clinical legal education and using open source investigation methods to contribute to investigations of serious international crimes and accountability. As with students involved with the DVC, they have partnered with other global NGOs to help document, verify, and analyse serious international crimes. Outside of Europe, the Interdisciplinary Center Herzilya at Harry Radzyner Law School in Israel also undertakes documentation work with its students by identifying, interviewing, and strategizing with asylum seekers who were victims of international crimes and working with them to seek accountability. These are only a small number of examples from around the world but again it is important to note that these types of examples (working on independent investigations related to serious international crimes) are far fewer in number than their counterparts working on human rights documentation more generally.
For most universities operating a legal clinic or student-inclusive project on serious international crimes, students will not take part in independent fact-finding, documentation, or investigation work. There are a number of reasons for this. First, depending on the circumstances of a project, there may be inherent dangers in exposing students to documentation work in situations of ongoing conflict or tension. Serious crimes contexts are complex and sensitive and any type of investigation could be deemed undesirable from the actors involved and too much of a liability risk for the universities involved. Second, teachers may feel that students lack the maturity to carry out certain types of documentation work. This concern was raised by a number project supervisors in conversations with the author. It is particularly true when it comes to interviewing victims, perpetrators, or witnesses of mass atrocities or international crimes. There may not be the quality assurances necessary to place trust in students understanding confidentiality, privacy, or sensitivity issues. Some of this may come down to age or life experience. Third, there may simply be time limitations. Many of the above-mentioned legal clinic projects where students engage with documentation are carried out over an extended period of time of one year, often working 20–40 hours per week on a project. This is possible at American law schools because of their three-year duration, but within one-year LLM programs this becomes more difficult unless it is opened up to LLB and other bachelor students. These obstacles essentially mean that most universities will refrain from documentation work though still seek to contribute to accountability efforts in other ways. Such contributions may include the filing of amicus curiae briefs or the publishing of reports or memoranda about abuses—all of which are possible without directly engaging students in independent fact-finding. For those universities that do engaged directly with documentation work, there are some key aspects to help the quality of the work and learning environments: institutional support; connection with societal partners; reflection and vicarious trauma support; and specialized knowledge.
Not all universities have the infrastructures and funding to support intensive clinical legal education, under which most of these projects were carried out. Successfully operating international clinical programs can be expensive and usually does not take hold without strong financial and administrative support from the respective law school. With a few exceptions, the examples that came to light in this research generally represent well-regarded, Global North institutions. These are institutions and programs that are highly selective or expensive to attend. Most clinical projects operate with between 5 and 15 students, some as low as 2–4 per year. The ability to participate in these projects remains a scarce opportunity for a privileged few. The student-led Edinburgh project was an important exception as the student volunteers do not necessarily need to attend the university. However, this project struggles to find funding and broader institutional support.
Connection with Societal Partners
Regardless of the size or level of institutional support, all of the projects mentioned above have established crucial relationships with important societal partners, which is a key component of CEL and clinical legal education in particular. Amnesty International’s DVC aside, most of the projects only included one university partner working with societal partners on a project basis. The DVC work is unique in that Amnesty International works with multiple university partners around the world and facilitates collaboration amongst the universities and students. This global collaboration network between the NGO and universities spanning different continents illustrates the importance of the diversity of actors needed in documentation work. Verification of online material improves when different actors, with diverse backgrounds and knowledge, assess information and contribute to accountability.
Reflection and Vicarious Trauma Support
Overall, all of the programs seemed to be aware of the secondary or vicarious trauma that can result from documentation work.78 Vicarious trauma ‘is the emotional residue of exposure’ that comes from working with people and ‘hearing their trauma stories and become witnesses to the pain, fear, and terror that trauma survivors have endured’.79 Whether through interviews or exposure to graphic images, vicarious trauma can arise at any time during a clinic experience. Almost all the law clinics explored in this article have incorporated specific components in their programs to assist students in identifying signs and symptoms and addressing personal well-being. Some hold specific trauma-related workshops and others organize weekly or bi-weekly group reflection sessions. The individual and group reflection components of the various clinics are an integral aspect of the learning process and particularly well-suited for addressing issues of trauma. That said, not all of the clinics partner with psychosocial care professionals, which may be desirable and easily arranged given their university environments.
The various illustrations of clinics around the world, but predominantly in the US and Western Europe that this article touches on, demonstrate how the expertise of students and teachers can be successfully employed to assist societal partners in documenting serious international crimes and then using that to support different types of accountability processes. It requires a specific type of legal knowledge, namely public international law, international criminal law, international human rights law, and in some cases international humanitarian law, in addition to more specialized knowledge around specific subjects such as documentation, fact-finding and investigations, ethics, victimology, trauma, and well-being. Not all universities focus on these fields or areas of expertise. Since the subject matter is more specialized, and many of these projects were established through friendships and professional networks, it is easy to understand why the examples are limited in comparison to the far larger number of human rights clinics carrying out documentation work around a broader category of issues.
5. Contributions to the Rule of Law
When asked how their clinics or documentation projects contribute to society, almost all of the program leaders or supervisors interviewed for this research responded with answers evoking terms like justice, accountability, and human rights, but refrained from using rule-of-law language in their responses about the contributions of their work. When asked whether they ever use the language of the rule of law in their work, all but one said rarely if ever, again favoring terms like justice, accountability, and human rights. The one exception came from one of the universities involved in the DVC, where the supervisor explained that a rule of law framing, in their particular context, was often more useful and strategic than using terms like human rights. The responses from all of the supervisors of the various programs were in line with the online materials available on these projects as well. International legal clinics and other projects make broad claims such as contributing to the realization of human rights or accountability but few, if any, make claims about contributing directly to the rule of law.80 In fact, in all of the examples looked at for this study, none of the programs or clinics mention the rule of law on their websites or in their promotional materials—although their respective centers regularly organize a multitude of rule-of-law events for students with guest speakers on relevant topics.
Despite ‘rule of law’ rhetoric being overused by international institutions like the UN or states involved in development, accountability, and human rights work, it appears from the interviews and online material that universities are more reluctant to use the concept to frame their work. Perhaps it boils down to semantics, and the acknowledgement that people ascribe different meanings to the concept. Or perhaps it is simply a pragmatic choice to focus on more digestible, and arguably concrete, aspects of the concept such as accountability and human rights. That said, the term ‘justice’ is replete with complexities and uncertainty but is still invoked more than ‘rule of law’ by the law schools and universities. Does this lack of rhetorical use of the concept by the universities, as juxtaposed against state and international institutional actors, support Sklar’s argument that the concept boils down to ‘ruling class chatter’? Or is the concept simply not useful when framing the work of the students? As one clinic supervisor remarked, ‘a rule of law frame is too broad and too narrow at the same time.’
While more research is needed on the disconnect between the use of the concept by UN and state institutions and the apparent absence of the concept in the discourses of university civil society actors, that absence does not detract from their contributions to the concept overall. Although not directly applying the phrase to frame their work, there are a number of significant contributions to bolstering the rule of law (at least in a broader sense) made by the universities.
First, the universities base their work around international norms and standards. In all of the programs, students and supervisors are trained in international law, international human rights law, international criminal law, and/or international humanitarian law. Legal norms and standards from these fields, often together with domestic legal codes, also guide their analysis when pursuing accountability. Their work makes concrete contributions to specific accountability processes (through strengthening investigations) by using legal norms and standards in the work of claiming human rights and protecting human rights. This is a key aspect of the thicker conception of the rule of the law. Examples include the memoranda produced by Harvard Law students working on the documentation of crimes in Myanmar. It their 2014 report, they use the international criminal law framework to lay out the contextual elements of war crimes and crimes against humanity and then detail the underlying crimes and identify possible perpetrators.81
Second, the universities are directly engaging with and utilizing institutional frameworks at the international, regional, and national levels to pursue accountability. This is important since much of the UN’s focus on rule-of-law programming/assistance includes institution building and institutional reforms. Universities are often seen as legitimate, objective actors and their involvement with specific institutional actors lends to the legitimacy of those institutions. This involvement may include direct cooperation with the institution, namely providing documentation support to the institution’s work, or using the institution to pursue accountability on behalf of victims. In either case, the role of the university in the operation of the institutions lends credence to their work. An example of directly contributing to accountability efforts can be seen in the German filing in relation to the sarin attacks on Ghouta in 2013 and in Khan Shaykhun in 2017 where the students’ work contributed to new evidentiary leads, suspect and witness identification, and the establishment of chains of command of responsibility.82 In the Darfur situation before the ICC, satellite imagery has played a significant role in the investigations, tracking relevant developments from the burning and destruction of villages to the movement of populations and the location Sudanese government forces.83 The availability of this satellite imagery was due, in part, to the collective efforts of university actors, namely the Harvard Humanitarian Initiative, civil society actors, such as Amnesty International, and technology partners, such as Google Earth.
Third, the rule of law depends profoundly on the support of the public and civil society, and the universities’ documentation work heavily supports other civil society actors. They not only work with global NGOs and larger technology companies, but importantly the universities are partnering and working directly with local societal partners. The knowledge sharing between the various groups is a crucial aspect of the success of the documentation work. Amnesty International’s DVC annual Global Summit is a good example of knowledge sharing across universities and civil society partners. It allows those taking part to identify lessons learned and to strategize for future work.84 Moreover, the universities are not simply supporting current civil society actors. They are training the next generation of documenters and investigators. This new generation of fact-finding experts will leave university more prepared (and more connected) than previous generations, enabling a potentially far greater impact on accountability processes. The reflection and wellness trainings that they receive as students may also help protect them from vicarious trauma and leaving the field of documentation earlier than would be the case otherwise.
Flowing from these observations around the contributions of the universities to the rule of law, a few things become clear. To begin with, the success of these various programs allowing for substantial student contributions to documentation, investigation, and accountability efforts should foster greater recognition of societal engagement on the part of universities around rule of law initiatives. More CEL and clinical legal education programs involving future lawyers working with serious international crimes are needed. Thankfully, the number of opportunities to contribute to accountability for serious international crimes is growing. No longer are accountability efforts confined to a small number of international(ized) criminal courts. Rather, in addition to the various international courts, a number of new UN investigative bodies have been created to not only collect information on serious crimes but also to prepare criminal case files to facilitate fair and independent criminal proceedings, in accordance with international law.85 Additionally, states around the world, and European states in particular, are increasingly turning to universal jurisdiction to prosecute individuals suspected of committing serious international crimes.86 Universal jurisdiction allows for the domestic prosecution of certain crimes regardless of where the crimes occurred or the nationality of the alleged perpetrator or victims.87 Although the challenges in building successful prosecutions remain high, domestic prosecutions are beginning to offer some results. This is due, in large part, to stronger transnational networks of cooperation between states and non-state actors, including universities.
Additionally, the university holds a privileged position in society, meaning that not everyone has access to attend and very often those attending come from higher socio-economic backgrounds.88 Amongst universities around the world, those considered the most privileged are at the forefront of occuying the space around serious crimes documetnation and accountability. Often, though not always, it is Global North institutions carrying out this work in situations and countries located in the Global South. These factors have implications for what types of students get the opporutnity to work in this field and contribute directly to rule of law iniativies aimed at accountabiliy for serious international crimes. Efforts should be made to build capacity amongst universities and students around the world and not those concentrated in the Global North. In practice, this could mean that more well-off universities partner with others to share knowledge and experiences. Existing university networks, such as the Talloires Network or European Network for Clinical Legal Education, could play a role here.
Finally, more research on the impacts of universities and students on advancing the rule of law and accountability for serious international crimes is needed. One of the more challenging questions that arose during the research and interviews of clinic supervisors was whether universities can really be considered actors ‘from below.’ On the one hand, universities can be categorized as part of civil society are not necessarily part of state rule-of-law structures—making the case to be seen as falling below the state level. On the other hand, if ‘from below’ is employed as a means to denote a focus on the views or efforts of common people, as well as those that may be more marginalized in society, viewing the university as ‘from below’ may be more problematic. Universities are not always associated with a more inclusive way of looking at specific fields.89 The broad array and diversity amongst university actors is especially relevant here. A better understanding is needed of whether ‘from below’ refers to all non-state actors regardless of their positioning or whether it is meant to evoke grassroot processes where individuals and organizations not in positions of great power, influence, or legitimacy play a role. Developing further the role of the wide spectrum of non-state actors would surely result in complex and interesting findings, from universities to private businesses and armed rebel groups. It seems imperative to not lump the varying actors into broad stroke categories given the power differentials at play when they take up roles in advancing the rule of law. Equally, research is needed into coordination efforts across the justice landscapes, as well as how traditional rule of law actors can better acknowledge and utilize the efforts of those ‘from below.’
Scholars have noted that the rule of law expresses ‘a worthy aspiration that rightly finds voice in the hard work of good-intentioned activists.’90 This article has focused on the university and its students and teachers as these ‘good-intentioned activists’ and sought to explore how, often together with other civil society actors, they protect, defend, and advance the rule of law. It did this by examining how universities, through their clinical legal education, have increased their documentation and investigation work in relation to serious international crimes and efforts at accountability. Though still limited in number, there is an increase in the number of universities carrying out independent fact-finding work. And although the universities do not frame their work around the rule of law per se, their projects advance the the rule of law in three ways: (1) basing their work around international norms and standards; (2) directly engaging with and utilizing institutional frameworks; and (3) supporting other rule of law actors such as civil society. Given the fact that universal jurisdiction cases like the ones in Germany for crimes in Syria are on the rise, with a 40 percent increase in named suspects across European jurisdictions over the last few years,91 it is very likely that university partnerships with civil society actors working on accountability will intensify. Having a better understanding of these contributions is vitally important to grasping how rule of law principles get recognized, operationalized, and implemented at all levels. Yet, the jury is still out about whether it is useful to see the university (or just the students) as simply an actor ‘from below’ when the institution of the university itself so clearly holds a privileged position in society. For this reason, and others, more research needs to be done on the role of the university in advancing the rule of law and accountability for serious international crimes.