Lawyer Limelight: David Tolbert

Photo by Laura Barisonzi.

David Tolbert’s passion for human rights and his interest in forging a legal career were rooted in his experience of growing up in the segregated South. But it was his travels abroad as a student and young lawyer that triggered his desire to bring an international component to his career. It’s safe to say that Tolbert, now five-plus years into his tenure as President of the International Center for Transitional Justice, has succeeded in this goal.

When he took the job in March 2010, Tolbert had a wealth of experience that included nine years – including nearly four as deputy chief prosecutor – at the International Criminal Tribunal for the Former Yugoslavia (ICTY), followed by stints working as a United Nations expert for the Khmer Rouge trials in Cambodia and as registrar for the Special Tribunal for Lebanon. Prior to his first ICTY job in 1996, Tolbert worked for the UN agency for Palestinian refugees, and he interrupted his ICTY service with three years as the executive director of the American Bar Association’s Central European and Eurasian Law Initiative.

The International Center for Transitional Justice, or ICTJ, is a nonprofit that assists societies with devising and implementing strategies to address massive human rights violations. This effort can take many forms: prosecutions, truth commissions, reparations, institutional reforms, memorials. ICTJ provides expertise on all justice mechanisms and across a daunting array of post-conflict situations across the globe, working on the local level with victims, civil society groups and governments. As Tolbert and other observers point out, now does not appear to be a golden era for accountability efforts for human rights violations – a truth that highlights the importance of the ICTJ's work.

Lawdragon: What led you to take this position at the ICTJ after serving high-level roles in the tribunals?

David Tolbert: I was drawn to ICTJ’s broad approach and use of comparative experience in addressing massive human rights abuses. ICTJ wrestles with the question of how to assist countries that have experienced massive human rights violations and finding ways to help them move toward respecting human rights. Experience across a range of countries points to accountability for these violations as a critical element in reestablishing a society on the basis of respect for human rights and the rule of law. While criminal justice processes, like those I worked on earlier in my career, are an important form of accountability, there are other equally important, and sometimes more appropriate, approaches to addressing the past. Truth commissions and commissions of inquiry often are more effective in describing what happened in a society and often “get at” the root causes of conflict.

Moreover, experience shows that it is important to ensure that victims participate in the process and that the injuries they have suffered are addressed, thus reparations have played an important role in recognizing victims. Reform of state institutions can play a very important role in ensuring non-recurrence of the abuses. Thus, these approaches of accountability, acknowledgment and reform have been shown to be effective in helping societies recover from massive human rights abuses and to move forward on the basis of a society that respects rights. So, it is this broader approach that attracted me to ICTJ’s work. If I look at my experience at the ICTY, by many measures it is a successful tribunal. However, there were over 120 people brought to justice, and 10,000 perpetrators in Bosnia alone – so there’s a lot more that needs to happen to address the impunity gap and to ensure that victims are reintegrated into society.

LD: The broad approach also creates a lot of work. You advise on the full range of justice mechanisms, and you are active in a really wide range of conflict and post-conflict settings around the world. There must be huge challenges in managing all of that.

DT: Indeed, this work is very challenging. We’re stretched thin, and there are places that I think we ought to be working but simply don’t have the resources. We have greater impact than our funding would imply because we have some of the best experts in the world on these issues, and we also take very seriously what happens on the ground. Our work is very context-driven, and that’s what I really look for in our country offices – excellent political analysis and relationship building, both at the national and international level. I think it’s that combination of expertise and understanding the local context that makes ICTJ so effective. We are engaged with the victims on the ground and operate where there’s some political space in which to push governments to take steps on accountability. We are taken seriously because we can speak with authority about these elements of acknowledgement, accountability and reform with hands-on, comparative experience as well as research on these areas.

Nonetheless we have to make difficult decisions about where we are putting our resources. When the Arab Spring occurred, we were called by many to be engaged, and it turned out Tunisia was the right place for ICTJ to be most deeply engaged. We also tried to work in Egypt, but the door closed quickly. There are situations that are more open or have entry points for our work, Colombia comes to mind in this respect. Others like the Democratic Republic of the Congo will have a very incremental kind of progress.

LD: Do you have any particular philosophy when getting involved in a local situation, such as trying to make sure they use a combination of justice mechanisms? The “package” approach seems to have achieved some level of consensus within the field.

DT: We’ve talked a lot about this in the context of ICTJ’s new strategic plan. We would push back against any kind of formulaic approach – that a country has to implement these four or more measures, and they have to be sequenced in a particular way. The direction primarily must be determined by the national context and driven by what we call active social forces – a broader definition of civil society, including social movements, religious institutions, trade unions, etc. – in those countries. Each measure can have an important role to play and oftentimes there’s an interrelationship between them, such as when truth commissions uncover evidence that ultimately leads to prosecutions, or makes findings for reparations. But we have pushed back from a check-the-box approach.

We work with countries and try to bring in the lessons or the experiences of other societies. Ultimately, it is for that society to define its own path subject to certain international norms, but I think we can provide important comparative experience to inform these decisions and processes. We find that many people are hungry for this comparative experience. They want to know what approach was followed in Argentina. They want to know what the process in South Africa looked like. I don’t think an international group can be like Moses and bring the tablets of wisdom down from the proverbial mountaintop: Societies have to wrestle with these approaches themselves. Nonetheless, organizations like ICTJ can assist them in important ways by providing expertise and comparative experience.

LD: Of the various mechanisms that you are involved in, do reparations still get short shrift? Maybe it’s media interest or coverage – naturally a lot of attention gets focused on high-profile trials or truth commissions.

DT: I think that’s true, and it’s regrettable because reparations can materially and symbolically impact people’s lives in ways that make it possible for them to regain trust in national institutions. I also think memorials are very important. Part of the issue with reparations is complexity – reparations do not always revolve around money or finances. Moreover, reparations programs depend very much on the local context, so it’s difficult to generalize about them. There are some misunderstandings about reparations, including that victims are in a sense paid to forget the past and go away, and that is not the intention at all, nor is this the reaction of victims. The intention is exactly the reverse: Reparations are intended to recognize victims and to help repair their relationship with a society that has failed them. So, I do think reparations get shortchanged and that is indeed unfortunate.

LD: Earlier this year you wrote an essay called “A Wrong Turn for Human Rights,” arguing that it’s not just a time of horrendous human rights abuses but also for the level of commitment towards ending them and holding perpetrators accountable. Why is this happening?

DT: I think part of that is a cycle the world is in which, if anything, has gotten worse since I wrote the article. If we look at the 1990s, when horrible things happened – Srebrenica, Bosnia, Rwanda – there was some kind of reaction to that. The international community established the ICTY, the Rwanda tribunal, ultimately the International Criminal Court (ICC), the Sierra Leone court. There were 10 truth commissions and a number of other steps taken in reaction to the events. But now, if one is hard-nosed about it, the West as a champion of these steps has lost a lot of credibility – the U.S. in particular, with Abu Ghraib, Guantanamo Bay, torture after 9/11.

There are geopolitical trends, as well, such as the Middle East coming apart. If we think about accountability, where the worst human rights abuses happen, perhaps the most serious are now in Syria and there are no serious efforts to address these crimes. With the ICC, which is obviously something I still support, I think there was and still is a little lack of realism – one could hardly expect one court in The Hague, with a fairly limited reach, to address all of the massive crimes within its jurisdiction.

LD: Do you see any cause for hope that the situation will improve?

DT: There are things that you can point to that are going in the right direction. I don’t think it’s a completely bleak picture. The peace process in Colombia is potentially of historic importance. The case against Hissène Habré [former dictator of Chad] in Senegal, which is in its early stages, is encouraging. I think there are many active civil society groups across the world who are not going to let past abuses be swept under the proverbial carpet. The Arab Spring didn’t go the way we would have liked, but that does not necessarily mean that the passion for justice, respect, human rights and dignity isn’t there. I don’t think these issues or activists are just going to disappear.

Within the U.S., issues like marriage equality have taken off, and there have been new conversations about race with what has happened in places like Ferguson and Charleston. These are largely outside what we’re working on at ICTJ at the moment but still part of the human rights discussion and positive steps.

LD: Are you also hopeful that the ICC will regain its footing?

DT: The court has faced some really difficult circumstances. But history shows courts in a number of instances have recovered their reputations and regained their credibility. The U.S. Supreme Court has wrecked its reputation a number of times – Plessy v. Ferguson, the Dred Scott decision, Bush v. Gore – and yet, over time, it has reestablished that reputation. Other courts on both the national and international level have rebuilt their reputations. I do think the current situation at the ICC is discouraging at the moment. The ICC reminds me a little bit of what Antonio Cassese at one point said about the ICTY: that it’s a giant without arms or legs.

The ICTY eventually became relatively successful and was able to build the requisite political support, which provided “the arms and legs,” for it to achieve its mandate. The ICC doesn’t have the requisite support as yet, and it needs some things to go better so it can begin to establish a better reputation and more respect. I do not predict a quick turnaround. I suspect it’s going to be difficult for some time to come. I think that Judge Silvia Fernández de Gurmendi being elected president is a great sign, and there are other positive internal developments. With strong leadership, and some successful cases, it can begin to turn the corner. The jury is really still out – it’s too early to write it off.

LD: On the domestic side of things, the ICTJ has played a big role in the various transitional justice efforts in Colombia. How did that come about?

DT: We’ve had a strong office in Colombia for some time which is both very connected to civil society and also that’s called on by the parties for advice. My view is that ICTJ has been the “go-to” organization with respect to these issues, and it’s interesting how transitional justice seems to be on everybody’s lips in Colombia. We’ve been deeply engaged with the legal authorities, on the proposed truth commission, reparations programs, and gender issues. We gave a good deal of advice on the truth commission that is now moving forward after the agreement reached in June between the government and FARC rebels [The Revolutionary Armed Forces of Colombia]. On the prosecution side, we’ve also helped in terms of giving advice on the prioritization of cases, including having an expert implanted in the attorney general’s office to provide advice.

When I go to Colombia, there are big questions now about these prosecutions: Where do you draw the line? Not everyone who has committed a crime can be prosecuted – there is simply not the capacity. There is great resistance in several quarters about serving prison sentences. Are there alternative sentence arrangements that should be implemented? This is a significant issue on the FARC side. What’s going to happen with the government officials who are suspects? What about within the military? How are these issues going to be handled?

LD: The ICC has been watching Colombia to see if it is ultimately satisfied with what goes on with the mix of cases. Are you confident it will work out, both with the cases and the other accountability efforts?

DT: I’m cautiously optimistic. It’s not a foregone conclusion that it’s going to go the right way. There are a lot of bumps in the road. There have been serious problems, even recently. I’m hopeful that the parties have gone down the road far enough that they can agree to some compromises on the remaining issues. It would be a pity not to.

LD: People tend to think of these issues as involving only other countries, but I know that your organization and other human rights groups have called for accountability for abuses committed by the U.S. in the war on terror, most notably torture. Where do you see that going?

DT: There has been some incremental progress, and I think a growing realization that what happened was fundamentally wrong. I was encouraged that the U.S. Senate Committee (or at least a part of that Committee) finally published the redacted executive summary of the intelligence committee’s torture report. It should have happened a long time ago, and I think it will probably take longer to fully realize the injustices and the lawlessness that was involved. Eventually I hope these issues will take center stage. I’m just not sure how long that’s going to take. I think the further we get from September 11th, the more possible that is – it may take a generational shift. We see that also in transitional justice more generally. Sometimes a new generation will have to come to the fore for the abuses of the past to be adequately dealt with, such as in Germany. I think this lawless period is going to be looked at ultimately as an extremely dark stain in American history. A new generation of scholars may well turn the current narrative upside down, and hopefully we will see acknowledgment of the abuses and steps towards reform.

LD: I think most observers here agree that prosecutions are unlikely. Will we see something more like a truth commission?

DT: I think on some of these issues we may eventually see a presidential commission, which would make an inquiry and issue recommendations. The picture is not clear yet. We’ve had effective presidential commissions in the past. If you think about the report of the 9/11 Commission, it’s not perfect, but it had a significant impact. My guess is that we won’t see a truth commission like that in South Africa anytime soon, but perhaps a presidential or congressional commission that has a mandate to look at these issues in greater depth. Whatever approach is taken, it seems to me there ought to be several inquiries. One would be on abuses committed in the so-called war on terror. We also definitely need something like this – as well as other mechanisms for truth-telling – on race. I think it goes beyond just looking at recent policing issues. While I think policing is at the heart of a lot of the current issues, the injustice goes well beyond policing.

LD: Talk a little bit about your interest in race issues, if you could. I read that you grew up in North Carolina and that some of the race issues you saw had a big impact on you.

DT: My elementary school was segregated, so segregation was a very real experience for me. My paternal ancestors were from South Carolina. They had opposed secession in the Civil War period, had opposed slavery, and had tried to defend the rights of African Americans. My grandfather was an attorney in South Carolina who defended African Americans. He was assaulted and crosses were burned in the yard and a number of other acts of violence were taken against him. That’s something of a hidden history in our family. I didn’t really know too much about it until I did research in this area. My grandfather ended up committing suicide, I think, because of all the pressure. This is a very southern, almost Faulknerian type of story. I feel this real identity with him and what the family tried to do during those times.

I didn’t hear much of the story from my parents, who were quite conservative politically. In any event, I have felt this deep sense of injustice regarding the society I grew up in. I think that’s what might have led me to go into the law. I wanted my life somehow or another to be about some of those issues. That was part of my motivation. People like Martin Luther King were very inspirational to me.

LD: You said earlier there have been some positive steps in this area.

DT: It’s good in a way to see the country finally begin to grapple with the issues of race more seriously. Ta-Nehisi Coates’ book was really interesting, and President Obama’s recent eulogy in Charleston was very moving. But race is still the great unsolved injustice in our society. If you go to Washington, you see all these monuments but virtually nothing on these issues. Martin Luther King finally has a statue and a memorial on the Mall, but we have nothing about slavery. I think they’re opening a wing now in the Smithsonian relating to African Americans, but it’s awfully late. In the meantime, there are dozens of statues of former slave owners. Thus, on this front the United States has completely failed.

And I wouldn’t limit the failure simply to slavery. There’s the question of economic inequality, and the way African Americans were held back with restrictive covenants and other legal devices to basic economic opportunity and security long after slavery and Jim Crow ended. Coates also talks about this in his article “The Case for Reparations.” The effects are still present in our society. Although I’m not really directly working on most of those issues here in the U.S., my motivation comes to some extent from having grown up with that.

LD: What are some big-picture issues that you will be dealing with in the year ahead?

DT: Gender justice definitely is a key issue going forward and one that we will be emphasizing, as empowering women is a critical issue in all the contexts in which we work. We talked about reparations. I think the social and economic aspects of transitional justice probably will get more attention. I also think we will continue to have this issue of the “peace versus justice” debate. I know it’s an old debate, but it seems to be coming back – Colombia brings it back in a way, and so do some of the ICC cases.

The situation in Africa is one that we’ll continue to deal with. The African Union is looking at developing its own transitional justice policy. What does that really mean? Is it a way to avoid prosecutions? With that, there may be a bit of a struggle around what transitional justice means. We also have the issue of economic crimes, and how those may be addressed. This may be a way to look at some crimes in African nations in a way that has support there, as they would be pursuing Western businesses as opposed to national governments. In the West, are we going to continue to see a decline in a commitment to accountability for human rights violations? If economic crises continue, there is a concern that the commitment to human rights will continue to wane.

There’s also the issue of terrorism, and how we look at groups like ISIS. How do human rights activists deal with these new forces on the scene and the atrocities they are committing? The issue of refugees flooding into Europe from Syria and Iraq is one that is bound to have serious repercussions. How do we, from a transitional justice point of view, try to address those issues?

LD: What about farther down the road? Are there some transitional justice issues that will evolve over the next decade or so?

DT: One interesting question is where’s China going? That’s really unclear at this stage. Are they going to reform themselves internally? If any country needs transitional justice, to look into its past, China clearly does. I don’t see any opening today, but what happens with a growing educated middle class in China? I suspect we’ll be dealing with that. Maybe I won’t be, but somebody in my position in 10 or 15 years may well be.

There’s also the whole issue of climate change that’s going to impact our world so much. It’s going to affect lots of poor people. You can certainly see issues coming in around that in terms of justice issues and conflicts around resources. That is going to intensify, and I don’t think much thought has gone into that. It is an oddity of my career perhaps, but I wrote my first article on climate change 25 years ago, but I have never really looked back. We are going to have to deal with the consequences of global warming in a myriad of ways.