Professor Susan Farbstein Explains the Importance of International Human Rights Law on Her Path to and Role as the Director of the International Human Rights Clinic

Professor Susan Farbstein is the Director of the International Human Rights Clinic and a Clinical Professor at Harvard Law School. After receiving her B.A from Princeton University, she went on to earn an M.Phil. in International Relations from Cambridge University and a J.D from Harvard Law School. Her current work focuses on enforced disappearances in Mexico, corporate accountability for human rights abuses in the seafood supply chain, and Torture Victim Protection Act litigation in U.S. courts against perpetrators of extrajudicial killings. Other recent work includes investigations of human rights violations in The Gambia, the right to water and the right to education in South Africa, as well as efforts to advance gender equity within human rights organizations and institutions.

This interview has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): Thank you so much, Professor Farbstein, for your time and agreeing to speak with me today. Could you first discuss what motivated you to get involved with international human rights and transitional justice as a whole as well as your career over the past twenty years?

Professor Susan Farbstein (PSF): To start, I have to go back to when I was a senior at Princeton, where everybody had to write a senior thesis. I was really interested in issues around education equity and access in the United States, but the professor who would have been able to supervise that thesis was on leave, so I had to figure out something else. I had taken a lot of classes that were about themes of accountability, responsibility, human rights, atrocity, and war, so I realized I was interested in those topics. And there was a new professor who had just started, Gary Bass, who was writing a book about the politics of war crimes tribunals. I went into his office and I begged him to supervise me, and lucky for me, he agreed. So I ended up writing my senior thesis about the trials and the truth commission in Argentina after the dirty war. I received funding that allowed me to go to Argentina to interview people who had been involved, like las Madres de la Plaza de Mayo, people from the church, children of the disappeared, parents of the disappeared, and that was really when I was hooked. So that's where it all started.

In terms of my career over the past 20 years, after college, I earned a master's degree in international relations, but again, focused very much on human rights issues. I wrote my master's thesis about the International Criminal Court’s complementarity regime, which at the time was very new. And then I came to law school here at HLS, knowing that I wanted to do something related to human rights, but honestly not knowing exactly what that would look like. I spent my 1L summer at what was then a new small human rights NGO, The International Center for Transitional Justice, and I spent my second summer at the International Criminal Tribunal for Rwanda. I clerked for a federal judge after I graduated. And then I received postgraduate fellowship funding that allowed me to move to South Africa to pursue human rights work.

The South Africa connection was actually through ICTJ, and this is a good reminder about the importance of networks. When I had been at ICTJ during law school, the summer interns were each paired with a senior person. I happened to be paired with Alex Boraine, who had been the vice chair of South Africa's Truth and Reconciliation Commission, and who was still doing a bunch of work to prepare to release the TRC’s final report. So that was when I was first really introduced to South Africa. Then when I received the postgraduate funding, I was able to call him up and say, essentially, I can be free labor and can come back and work for you, because by that point, he had returned to South Africa to launch ICTJ’s office there. So that's how I found myself there. After my time with ICTJ, I returned to Cambridge and started working in the clinic, first as an unpaid volunteer, then as a consultant, then as a fellow, and over time, I came to have the position that I have now.

HULR: Thank you. I'm sure in your role as a Director of the International Human Rights Clinic you've experienced countless interesting projects. So I was wondering if you could go into the work the clinic partakes in specifically and what your involvement means to you now that you have such a prominent role?

PSF: The clinic is part of the academic training that students receive at the law school. They get credit for working with us on projects and on cases that are related to human rights issues. So we have a dual mission—we're advancing and promoting human rights, and we're training and mentoring the next generation of human rights advocates. An important part of our model is that all the work we do is carried out in partnership with human rights and civil rights organizations, grassroots movements, and affected communities, and we have lots of different sorts of work that we do.

Some of it, for example, is related to accountability and remedies. So I've done a lot of litigation in U.S. courts seeking accountability for gross human rights violations in South Africa, Nigeria, and Bolivia. One of my colleagues, who also does work in this space, has been a leader in thinking about how to hold international organizations like the UN accountable when they are responsible for violating human rights. Some of our clinic’s work is related to armed conflict and civilian protection. That's not my area of expertise, but I have colleagues who are truly world experts on international humanitarian law, different weapons systems, and how to keep civilians safe during armed conflict. We do work that's related to climate justice and the environment, and another of my colleagues just released a massive report about access to water in Delhi, India. We also do work to protect fundamental freedoms, combat gender and race based discrimination, and advance social and economic justice.

One of the things that I love most about working in the clinic is the diversity of issues and projects we take on. We’re engaged in human rights issues all over the world, and we use lots of different legal and advocacy tools to try to advance justice. I'm one member of a team of truly amazing, sharp, hardworking, dedicated human rights attorneys, and we have a lot of discretion to choose our own streams of work and think about what issues maybe the rest of the human rights movement isn't paying enough attention to, or areas where perhaps, by becoming involved, we might be able to push agendas forward.

Something else that I really love about working here are the students. I actually can't imagine anymore being in an NGO setting, working in government, or in the UN. I just feel like the students and their energy, and seeing them grow and develop as advocates, is one of the things I enjoy the most.

HULR: Thank you. That’s so incredible that you get to work with a range of people and ages which must make your career really exciting. Keeping in mind the community you are a part of and the gratification you get from your students, is there a specific clinic project you worked on that stands out? Maybe it was really challenging, but then in the end, very rewarding?

PSF: Oftentimes, when people ask me a version of this question, I talk about two of the really big cases that I've been involved in over the years. One is a case against a handful of U.S. corporations for their role in supporting and assisting the apartheid government to commit human rights violations. And the other is a case that we actually just settled this fall against the former President and Minister of Defense of Bolivia for extrajudicial killings that were committed there in 2003. Both of those projects have meant a lot to me, because when you're representing clients over a number of years, you have an opportunity to really get to know them. There's a particular bond that happens when you're fighting an uphill battle together, and also a level of responsibility that comes from being involved. So both of those projects are very, very near and dear to my heart.

However, the project I was actually going to talk about with you is a more recent project that I had in the clinic, related to enforced disappearances in Mexico. It is a huge catastrophic situation in terms of the number of people—more than 100,000—who have disappeared since the War on Drugs started there in 2006. So last year, we began working on behalf of a woman whose husband and brother had both disappeared. She was thinking about avenues for accountability. For example, could she bring a case to the UN Human Rights Committee? Could she bring a case to the UN Committee on Enforced Disappearances? Could she bring a case to the Inter-American Commission? We were working with her to weigh these accountability options. And as often happens in these situations, she was very concerned about her own safety and the safety of her children if she were to go forward. The more we talked about it, the more she and we became uncertain about whether engaging with these mechanisms was going to advance her goals, and the more we became concerned about her safety. So for a variety of really good reasons, she decided not to proceed at this time. And that, in one sense, made the project very challenging because the thing that we thought we were going to do ended up not being the right choice.

But we were able to pivot because in working on what we thought was going to be her case, we had identified gaps in the international legal framework in situations like Mexico, where it's not just the state that’s responsible, but where you have drug cartels and organized crime who are also responsible for the disappearances. So my students and I and our partner ended up writing an article, very much addressed to the UN Committee on Enforced Disappearances and organizations that engage with that Committee, about international legal frameworks for when a disappearance committed by non-state actors constitutes an enforced disappearance under international law. The piece will be published next year, and the hope is that it might help shape how the Committee thinks about these questions and make a meaningful difference for survivors seeking justice for enforced disappearances.

So to me, that project is a good example of how you have to be flexible as a human rights practitioner. It was challenging, but I feel like we got to a good outcome, because hopefully, some of the things we said will be listened to by others who work in this space. Maybe survivors will have a slightly better chance of achieving some meaningful accountability when they engage with these institutions.

HULR: Now, I know that's something that happened recently, but transitioning back in time, I noticed you worked at the Cape Town office for the International Center for Transitional Justice. Comparing your current work and your time at the ICTJ, are there any similarities or differences in the projects that you've engaged in or people you've worked with? Is there anything you miss from the Cape Town office?

PSF: This is such an interesting question for me to think about, because when I was at ICTJ, I was much, much earlier on in my career. I was by far the most junior person in that office. I was the only woman attorney in that office, and I was the only person not from Africa in that office. So it was a really important learning experience for me in terms of: How do you work in a diverse cross-cultural setting? How do you demonstrate your value to an organization without overstepping? How can you practice humility as an outsider but also carve out a meaningful role? Even though I’m now based out of Cambridge, so much of our work engages with partners and stakeholders from all kinds of backgrounds, so those lessons are still constantly relevant.

At a more day-to-day level, at ICTJ my work was research, writing, and advocacy-based, whereas now in the clinic I still do plenty of that but I also have much more flexibility to take on different kinds of projects. That's probably one big difference in the clinic—my ability to use many different tools and to set the agenda. The other big difference, of course, is supervising the law students. When I was at ICTJ, I was the most junior person, so I was looking for people who could mentor me. And now the tables have turned, and I’m lucky enough to be in the role of mentor and teacher.

There are lots of things I miss about my time in South Africa. One of the biggest things I miss is the people and the proximity I had to the communities who we were working with. It's really grounding to be working from the place where your clients are based, and where the human rights violations occurred. You understand the context and the nuances in a different way, you’re connected to the work in a different way, and perhaps you have a clearer sense of why you're doing the work and how it fits in to broader goals and agendas. Sometimes a challenge of being in the clinic is that we are much more remote from the communities or from the partners we're working with, so we have to constantly tend to those relationships and keep those connections as strong as possible.

I also just really miss Cape Town. I've been lucky to travel to a lot of places in my life. But I still think Cape Town is the most beautiful city in the world. I love being out in nature, and we were constantly out and about when we lived there. So I miss the place very much too.

HULR: You mentioned, on your path to both ICTJ and your current work as the Director of the International Human Rights Clinic, South Africa’s Truth and Reconciliation Commission (TRC). Thinking about the end of apartheid, when the TRC was established, I was wondering if you could explain the overarching objectives of the commission and how those relate to your past and present work on human rights.

PSF: Truth commissions can vary in a lot of different ways but in South Africa, the TRC very much had a restorative justice approach. So different from litigation or criminal accountability, where the process is directed at finding out guilt and imposing a punishment, the truth commission model is about centering the survivors and making sure that they have an opportunity to tell their stories and be heard, hopefully in an environment that feels more supportive and less confrontational than a courtroom. In South Africa, one of the TRC’s aims was to hear from survivors and perpetrators and then shape, from those stories, a narrative or a shared understanding of what happened in the past which, to the extent that it's possible, could be used to heal and reconcile and bring people back together. So in South Africa the TRC was very much about building a foundation upon which we can create this new democracy, and prevent abuses from recurring.

I think 30 years on, it can sometimes be hard to remember how fragile South Africa was at that time. There were definitely compromises that were made to try to hold the country together, particularly the amnesty compromise. And there were certainly mistakes that were made, particularly the failure to think sufficiently about the economic impact of apartheid and how to repair that harm, how to shift power at the level of society and systems, and how to help bystanders grapple their role as beneficiaries of the apartheid system.

I carry those lessons with me, and try as much as possible in my work to not just address the symptoms but to address the underlying structures that lead to human rights abuses. Even in instances where perhaps I’m working on behalf of one individual or one community, I’m always trying to be mindful of the underlying causes that allowed human rights abuses to flourish, and whether there are ways to dismantle oppressive systems or put more power into the hands of rights holders.

HULR: Is there any overlap between your work with the IHRC and with the TRC?

PSF: There's so much overlap because even if I'm not doing work that's traditionally thought of as transitional justice work, I'm often thinking through that lens and considering all of the different goals that a survivor or a community might want to achieve. Some of that definitely comes from my experience in the transitional justice space, because ideally transitional justice is meant to be context-specific, survivor-centered, inclusive, locally-owned, and empower affected communities. To a certain extent, I’m always thinking about those kinds of factors when I’m weighing, for example, which strategy might be the best choice in a given situation. Even if a certain option feels like it might produce a win from a legal standpoint, if that’s not what the community wants, if that’s not going to allow them to exercise their agency, if there’s a risk that the lawyers might become the decision-makers, we shouldn’t go down that path. So I’m trying to think really creatively and listen really carefully to the different needs of the people I’m engaging with and then to follow their lead, so that we’re achieving their vision of justice.

HULR: You previously mentioned the amnesty compromise and the TRC. Considering the TRC’s range of cases, it seems almost inevitable that there would be some controversy. Specifically, I read about how some offenders were pardoned. In human rights law, there is naturally a difficult balance between morality and justice. In what cases do each play a larger role, and have you experienced any struggles in prioritizing one over the other?

PSF: In the South Africa case, if a perpetrator came forward and told the TRC the whole truth, then they could be granted amnesty. But people who didn't come forward and participate in the TRC, and who didn't tell the whole truth, could still face prosecution in court. It was a very contextual decision that was made because there was a sense of, we can't possibly prosecute everyone, too many people were involved. And also, South African society needs to understand the true reality of Apartheid, and that requires some inducements for perpetrators to come forward and speak the truth.

Some survivors and families of victims really wanted the truth, more than they wanted to see a prosecution or bad actor rotting away in prison. They wanted to know how their loved one died, and that was the most important thing. But for other people, there might have been a real sense of: this is not enough, this is letting someone off too easily, and there should be some other legal process. In my role as a human rights practitioner, I often say that it's the voices of the survivors who should guide that type of decision, but of course communities and survivors are not monolithic and may want very different things. Another critique of the TRC was that in some cases survivors were sort of forced to accept amnesty for the greater good of South Africa, and that might feel really problematic.

The South African process has also been criticized because the prosecutions of perpetrators who did not come forward or did not receive amnesty never materialized. The TRC handed over hundreds of cases to South Africa’s National Prosecuting Authority decades ago for further investigation and prosecution, and nothing much has come from that. So, the two pieces did not work together in the way that it was originally envisioned, and many families are still demanding prosecutions of apartheid-era crimes.

Amnesty was viewed a necessary compromise at the time, in order to successfully make the transition from Apartheid to democracy. In part that was a moral decision, linked to goals of forgiveness and the South African concept of ubuntu—the idea that your humanity is tied up with humanity of others—but it was also very much a pragmatic decision, linked to the impossibility of prosecuting all perpetrators and the prioritization of stability and reconciliation to try to move the country forward. But it was a compromise that many victims and survivors accepted on the premise that perpetrators who rejected the TRC or who were denied amnesty would be prosecuted, and also that the government would implement a comprehensive and meaningful reparations policy to address the legacy of apartheid. That unfortunately has not happened, which in retrospect makes the compromise feel more problematic.

HULR: Continuing with the subject of South Africa, as someone who is incredibly passionate about advancing educational equity in America, I am curious how your experience working towards advancing the constitutional right to education in South Africa shifted the way you understand our own nation’s systems?

PSF: For me, getting to work on access to education in South Africa was a very full circle moment, because as I mentioned, I had originally envisioned a career working on education issues, although in the U.S. So I loved it from that perspective. And I feel like there are a lot of commonalities between the education system in South Africa and the education system in the U.S., because in both countries, I would say, the education system is failing in a lot of ways. And one of those ways is that it's perpetuating inequality.

In South Africa, the education system is still very much linked to the legacy of apartheid, when schools were absolutely segregated. The white schools received a lot of funding and schools that were serving black children received almost no funding, because the idea was, we're not even going to educate this population. The view of the apartheid state was: these people are going to do manual labor or domestic labor and therefore do not need an education, and we don't want to give them an education because we want to be able to control and suppress this population. Even now, 30 years on, where you are born, how wealthy or poor you are, and the color of your skin still very much determine the quality of the education that you get in South Africa. So there are very, very clear parallels to the U.S.

One big difference, of course, is that the right to a basic education is embedded in South Africa's constitution. And in contrast to other socio-economic rights in the constitution—housing, health, water, food, where the government has to move towards realizing those rights, but only within available resources—education is not what we call progressively realizable. In South Africa, education is different because it’s immediately realizable, so resource constraints are not an excuse for the state failing. So courts in South Africa don’t ask whether the state has taken reasonable steps to provide basic education progressively over time, but instead they ask whether access to the right has actually been achieved by the students or the community who have brought a case.

I loved the work that I did on education in South Africa. Some of it was related to school infrastructure where, you know, buildings are falling apart, schools might be made out of mud, the sanitation might be absolutely horrible. And some of it was related to issues around scholar transport because, especially in the rural areas of the country, students might be walking an hour each way to school. So they're leaving really early and they're getting home really late, which often means walking in the dark. There are all kinds of dangers, whether it's being hit by vehicles, being abducted, having to cross rivers and drowning, arriving at school freezing cold or too hot or hungry. We had some big wins, in terms of getting the government to promulgate norms and standards for school infrastructure, and a national scholar transport policy. Of course the work is never finished and there is so much still to be done, but having the constitutional right embedded gives you more tools to push back when the government is failing.

HULR: Did you ever have the chance to go to any of these schools in person and experience these differences?

PSF: Yes, our clinic did a lot of work back in 2013, 2014, 2015 on the scholar transport issue, in partnership with an organization called the Equal Education Law Center. We spent a lot of time in very remote villages in a province called KwaZulu Natal. So we were traveling around, and some of what we were doing was literally walking with students from their home to the school that they went to, in order to understand what they had to navigate each day. Some of these children were very young—like five or six years old—and they could be walking up to 20 kilometers round trip each day. And then we were spending time in the schools looking at the facilities and speaking with other students about the challenges of getting to and from school, as well as with parents about their concerns. I can remember at one school we interviewed a student who had watched a younger student drown while attempting to cross a river after heavy rains. And then that afternoon, after seeing that younger child drown, she had to cross that same river herself to get back home. At that same school, we interviewed another student who was abducted when hitching a ride to school, and she literally had to throw herself from a moving car to escape. So it’s truly terrifying. Many of the students, as you would expect, are working so hard and care so much, and they really do understand how important education is if they’re going to these lengths to get to school. And you have this sense that the schools are failing them. And oftentimes, I should be really clear, it's not that the teachers are failing them or that the school principals or the head of school are failing them, but it's the government failing them.

HULR: Naturally, you must have met and worked with such an inspirational range of children, both in South Africa and here with your students and adults through your international efforts and your work as a professor. What are some of the most memorable things you've learned from someone else, and how does that still influence your work and research today?

PSF: A couple of things come to mind in response to this question. The first thing I’ve learned relates to workplace culture. I'm lucky that I've gotten to interact with lots of different human rights organizations and lots of different human rights advocates. One of the ironies of being in this space is that, even within human rights institutions and organizations, people aren’t always treated well or with kindness and respect. I think we're improving, but we still have a long way to go. Historically, in the human rights space, there's almost been a kind of machismo culture—you have to go to the most dangerous places, you have work harder and longer, you have to really sacrifice yourself and your own well-being and if you don’t, that must mean you don’t really care and you’re not really dedicated to the cause. The culture within human rights NGOs can be really toxic and problematic, and sometimes people in positions of power aren’t practicing what they preach in terms of non-discrimination and or making sure that employees aren't harassed or belittled. So I try very hard to make sure that for everybody who works in this shop, people feel super supported, they know how much they are valued and respected, and they know that they have the space to make good choices for themselves and to take care of themselves. We think a lot about sustainability and what it means to practice resilience and model resilience for our students, because it's inevitable that you're going to be dealing with hard topics and trauma if you do this work. But hopefully if you’re part of a supportive team in a positive environment, the work can also be joyful.

The other thing that I thought about is how so many of the clients or the individuals who I've worked with have just been a model of patience and persistence. I mean, human rights is a field where things tend to move very slowly. And even if you get to a good result, that's usually not weeks or months of work. That's usually years and years of work. And I think that I have not always been a very patient person. For me, if I can see that there’s a way that something could be improved, oftentimes, I want that change to happen very quickly. So something that I've learned over my career is how important it is to just keep chipping away at something, celebrate the little wins, know that you’re moving in the right direction, and remain very determined. If you have something in your sights, it might take a long time, but it's possible. I appreciate now how important it is to play the long game.