Professor Susan Farbstein Explains the Importance of Community Lawyering in Human Rights

Professor Susan Farbstein is currently the co-director of the International Human Rights Clinic at Harvard Law School. She received her B.A. from Princeton University, Master's in International Relations from Cambridge University, and J.D. from Harvard Law School. He current work focuses on human rights in South Africa, socio-economic rights and racial justice in the United States, and gender equity and women's leadership in human rights organizations.

The interview below was conducted in the fall of 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): Hello, Professor Farbstein. Could you first discuss what got you involved as a human rights attorney and your career since you’ve been involved?

Professor Susan Farbstein (PSF): I first got involved when I was a senior in college. I received funding that allowed me to travel to Argentina for my senior thesis, to learn more about the Dirty War that had happened there. I was able to interview parents whose children had disappeared, children whose parents had disappeared, activists who had become involved, and members of the clergy, among others. I think that was when I first realized that this was something that you could do, you could do it for a career, and it could be really rewarding. So that was sort of where I got my start.

In terms of my career, I did a master’s degree in International Relations and then went to law school, knowing that I wanted to do human rights work, so that was how I tried to focus my time in law school. I spent both of my summers doing human rights, one at the International Center for Transitional Justice and one at the International Criminal Tribunal for Rwanda. I clerked for a federal judge in the United States, and then received a fellowship that allowed me to move to South Africa to continue doing human rights work there, focused not just on South Africa but on human rights issues across the continent. I eventually returned to the U.S. and have been working at the Clinic basically ever since, doing a variety of human rights accountability litigation, transitional justice work, work related to economic, social, cultural rights, and women’s rights. So just a really interesting mix.

HULR: That’s awesome. In your career, what position or stage did you find the most rewarding?

PSF: There have been different moments in time that have been really rewarding, but the thing that is consistent for me throughout is that I find interacting and collaborating with other people the most rewarding. That can be communities, survivors,people who are trying to figure out what next steps look like for them after something terrible has happened. But that can also be my students. I really love working with my students, training and mentoring them and helping them think about what they might do when they go out into the world. So any time that I’m around people who are committed and interested in thinking about creative ways to advance human rights agendas, I am happy.

HULR: Speaking of students, I’m a student in your freshman seminar, which I have enjoyed. I’ve been fortunate to learn a great deal about human rights work. You have highlighted the importance of community lawyering in our seminar. Could you discuss what community lawyering means to you and how you seek to implement it in your work? 

PSF: Sure. Community lawyering is a notion that’s been around for a while, often in domestic contexts, and it can sometimes be a bit more challenging in an international or transnational context. But the basic idea is that meaningful systematic change requires shifting power, centering the communities that have the most at stake, and ensuring they play a leadership role in whatever social change you are seeking to achieve. As an attorney, you are prioritizing the needs and interests of the community or of the clients. So you may bring some specific skill set or some expertise, but the community knows best. They are in the lead, and you are very much in a supporting role. The goal is to empower them, or oftentimes, they already have power and you are just helping them to exercise their agency, and making sure that they are really the decision-makers in the social movement or campaign or case. I am using my skills — my legal skills, but also a wide range of community-building and advocacy-related strategies and tactics — not just to help defend and protect certain rights of these communities, but also to help build these communities’ power and leadership.

HULR: So perhaps a dilemma may arise when you do focus on the community. Say your clients pursue a course of action you do not think is appropriate or you may want to pursue a course of action that the clients don’t. How do you deal with the dilemma? Do you always adhere to your clients or are there times you make the point: “No, we should really do this?”  

PSF: In the context of litigation, when you are representing clients, the clients are the decision-makers. That is our job as the attorneys, to follow their lead. But there may be times when there are really tough decisions to be made or it is not clear what the best decision might be. And when you are working from a community lawyering lens, you talk to the clients and to the community and you try to figure out what are their goals, what are their interests, what does it mean if you choose one option over another option, what are the risks, and what are the benefits. You talk that through and I think you can certainly offer your advice and insight as somebody who has some understanding of the legal system, but it really is a decision that is in the community’s hands. Even in offering advice, you have to be super aware of the power dynamics, because simply by suggesting something as the attorney, a community might think, “That’s the thing we should do because this lawyer says that’s the thing we should do.” So you have to be really thoughtful and really careful. I think having a relationship that hopefully is a very trusting, honest, long-term relationship can make the community or clients feel comfortable pushing back and saying, “Actually, you know, we understand why that might be your advice, but we believe X, Y, and Z and we’re going to do it that way.”

HULR: Not only do these different ideas for the course of action arise between clients and lawyers, but they may also arise between different lawyers that are partners on a case. Some may argue litigation is the best way while others would point to lobbying and advocacy. Focusing on litigation, what are the factors considered and questions asked when deciding to move forward with litigation in a discussion between lawyers?

PSF: I, again, think it all sort of starts with the interests of the clients and the community, and oftentimes with the broader movement that they are a part of and they are representing. What strategies will best achieve the community’s goals? Are these approaches exclusive, or can they run in tandem or be sequence? Is a case going to be uniquely beneficial in some way? There are lots of goals that you can have in bringing a case. So it might be that you are trying to get to a verdict, or to a finding of liability or accountability. But it might be that a case is part of a much broader campaign where what happens in court is only one piece of the puzzle. You are using the case to shift power dynamics, to energize social movements and advance advocacy agendas, and as an opportunity to tell stories about what has happened, to educate, to shape the historical narrative about certain events. Obviously as the attorneys we are thinking about the chances of success. But not just success in the courtroom, also success in terms of allowing the plaintiffs to tell their stories, to have their experiences acknowledged, to be empowered, to memorialize or remember family members who might have been lost or suffered, to advance social or political agendas. And there are successes related to the defendants as well, for example, shaming or deterring bad actors. I think oftentimes there is a sense that the cases are all about winning or losing in court. That is a piece of the puzzle, but that’s not the totality of what they are seeking to achieve. 

HULR: Could you speak on any cases that you may have lost in litigation, but felt there were real wins in other senses?

PSF: One case that I have spent a lot of time reflecting about – and which I published an article about last year — is the Apartheid suit that our Clinic was involved in for many, many years, seeking to hold U.S. corporations accountable for their role in aiding and abetting Apartheid-era abuses in South Africa. The defendants in the case were IBM, which was responsible for making ID cards that stripped Black South Africans of their nationality, and car companies, like Ford and GM, that built armored vehicles that were used to suppress the Black South African population. That was a case that we never won; it was dismissed before it went to trial. A lot of time, energy, and resources were put into that case and I think ultimately, the outcome was disappointing.

But there were still a lot of good things that came out of the experience of litigating that case. We were able to uncover new facts about Apartheid-era human rights abuses, especially about the role of corporate actors. We were able to shape public perceptions, making clear that the work of the TRC (Truth and Reconciliation Commission) was crucial and important, but that there is still a lot of unfinished business. There are still many South Africans who have not gotten justice or accountability for Apartheid-era abuses, and those survivors should be allowed to seek remedies for past harms. For the communities that were part of the case, we were able to practice community lawyering and ensure decision-making about the case was more collectively owned. Many plaintiffs had been activists during Apartheid and participating in the case helped them kind of reactivate those strands of their identity. They were starting to organize again and reconnecting with each other.

I think that we were also able to, through the Apartheid case and other cases against corporations, push forward a broader movement around corporate social responsibility and corporate accountability, and inspire similar efforts in other countries. Also, since we work as a Clinic, we were able to train a lot of law students and young lawyers, not just in the U.S., but also in South Africa, so that they are better equipped to think about when litigation is and is not a good option, the risks and rewards, and how to practice community lawyering .

So, was it worth it? Was it not worth it? Those are questions not just for me but for the clients and for their communities. But I think simply saying we didn’t achieve a court verdict doesn’t tell the whole story of the case.

HULR: So you brought up the TRC, which was a truth commission. I know it is hard to generalize about all truth commissions, but what are the general goals of a truth commission and how do they align with the goals of human rights?

PSF: Certainly truth commissions vary in lots of different ways. But the basic idea is that perhaps in contrast to a court proceeding, a truth commission is very much about centering survivors, and giving people an opportunity to tell their stories in the way that they want. Hopefully it is a forum that feels more comfortable and supportive and perhaps less confrontational than a courtroom. It is also, as the name suggests, very much about truth seeking and sort of understanding, in a collective way, the history of a country or the history of a period of unrest or conflict. The goal is to acknowledge past harms in order to allow a country to move forward and hopefully to avoid repeating past mistakes. Often in the names, there is some aspect of reconciliation, reparations, or rehabilitation. That is a really crucial part of truth commissions as well, that ideally, they are working to repair and to bring different entities who may have been on different sides of a conflict back together in some way, to rebuild and allow a society to move forward. 

HULR: We have kind of touched on the ideas of restorative justice and transitional justice. Can you speak on the pros and cons of those two approaches and how they kind of align with human rights work?

PSF: In a restorative justice model, the focus is on repairing harm, on making amends, on acknowledging past violations. It includes accountability but is less about punishment and more about healing and rehabilitation. The idea is to bring people together in a way that allows perpetrators to take responsibility for their actions and begin to repair the harm caused; that allows survivors to participate in determining what justice means for them and to receive an apology or acknowledgment for their suffering, and perhaps to offer forgiveness; and that potentially repairs relationships and transforms not just the individuals involved but broader communities and even societies. 

Restorative justice can be used in many contexts including as part of a transitional justice process, by which I mean the process a country adopts as it emerges from a period of widespread human rights abuse or conflict, and attempts to address its history. Transitional justice should be context-specific, but the general idea is to recognize the dignity of survivors, to acknowledge and redress past violations, and to prevent abuses from recurring. 

A basic component of human rights is the idea that someone whose human rights have been violated has an opportunity to redress those harms. You have the right to a remedy. But that can be done in different ways. So, for some survivors, they may really want criminal accountability. They may want to see the person who has harmed them or their family declared guilty by a court of law and put in prison. But there may be other survivors who want something else and it can vary depending on the kinds of harms. In places where individuals have disappeared, or the violations happened during a period of war or unrest and people might not know what happened to their loved ones, those survivors may say, “Actually, the thing I want first and foremost is to know the truth. I want the story of what happened, because I don’t know.” Or for the people who were themselves harmed, they may want to understand how or why a decision was made to target me or my family or my ethnic group, or they might want a formal apology, or they might want compensation or support for rehabilitation. So, I think that different people can want to see different forms of accountability, and sometimes restorative justice or transitional justice approaches have more to offer than traditional criminal accountability.

HULR: Going back to South Africa, following the end of apartheid, they established a truth commission, the TRC. This truth commission operated under several controversial methods. Most notably, some perpetrators were given amnesty if they testified. This tradeoff between truth and justice is an important one to consider. In what ways do you find truth being a better goal opposed to justice? And in what ways do you find justice being a better goal opposed to truth?

PSF: I think this sort of gets back to what I was attempting to say in my last answer, which is that I don’t know that it’s for me, as an attorney or as a human rights advocate, to come in and say, “Oh, in this context we should prioritize justice, or in this context we should prioritize truth.” The people with the most at stake should be the ones setting the priorities.

But I will say that justice doesn’t have to be retributive or punitive — as we discussed with restorative justice — and that there doesn’t necessarily always have to be a tradeoff between truth and justice. Oftentimes they can overlap or one will follow the other. That was what was supposed to happen in South Africa. People who came forward and testified before the TRC and told the whole truth could be granted amnesty. Amnesty was a kind of inducement to encourage truth-telling. It was really important that South African society understood the reality of Apartheid, which was not necessarily well known or acknowledged. So rather than starting with a court process, which can sometimes cut off truth — if you are trying to defend yourself in court, you are trying to deny what has happened, you’re trying to protect yourself, you are not necessarily going to share the truth — the idea was that if we offer amnesty, we may get more truth here, more people may be willing to come forward. We may be better able to repair and rebuild based on a shared understanding of our history, and that is what we as a society are prioritizing right now.

But if you did not come forward, if you did not participate in the TRC, if you were not found to have been fully truthful, then there was always the promise that prosecutions would follow. And I think one of the reasons that the South African process has been criticized is because those prosecutions did not really follow. 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.

An incredible amount of information emerged through the TRC, but there are still many families 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. 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.

HULR: Continuing with the subject of South Africa, in a 2014 article titled Reflections on the Question of When, If Ever, Violence is Justified in Struggles for Social or Political Change, you examined the question through the lens of three justifications given by the African National Congress for violence. One, the cause itself was just. Two, the turn to violence was a last resort. Three, the nature and degree of the violence was measured and minimized. At the end, you reach what you yourself call an unsatisfying conclusion: that the answer is largely context based. In your work and experience since, have you found justifying violence to bring forth necessary change easier, harder, or the same?

PSF: What I would say is that I am not a person who would ever condone violence. But, I’m very much a person who supports peaceful protest and believes that protesting is really brave and worthwhile. In the article that you were talking about, part of what I was saying is that in some truly extreme situations — and the two examples that I tend to give are Apartheid South Africa and Nazi Germany, some of the most extreme and egregious examples that we can think of in history — those are the moments when I think it’s easier to perhaps understand why people would feel that they have no other option than to resort to violence.

But part of what we do as human rights advocates is try to prevent things from getting to that point. So, in a way, that’s how I sometimes view my job: What are non-violent ways for people to protect and defend their rights? When people’s rights are being massively violated and they feel that they may have no other options, is there a way to say, “Actually, there are other options, there are other ways of changing this situation, here are tools and tactics that might work, so that your rights aren’t being abused to the point where you feel like the only way to protect yourself, your family, or your community is through violence.”

HULR: One last question. Throughout your work and life, is there one person or a few that you can point to that have inspired you to continue what you’re doing?

PSF: Wow. So, certainly my parents. If we really get back to where all of this started, my parents graduated from UC Berkeley in 1970 and were very much opposed to the war in Vietnam. And I think that consciousness shaped me in ways that I didn’t totally appreciate when I was a kid. I didn’t necessarily make the connection between anti-war and human rights agendas. But the more I grew up, the more clear and explicit that connection became, particularly with the first Gulf War and the breakup of the former Yugoslavia. So, I would have to say, obviously, first and foremost, my parents.

I had an amazing mentor in college, who was the person who supported my thesis that I was talking about, related to Argentina, and really launched me on this path. His name is Gary Bass. He’s still a professor at Princeton. I think that he’s such a brilliant person and having someone that brilliant truly believe in you when you’re still in college and kind of say, “I see you have unlimited potential and you can do whatever you want,” having that support was really instrumental in me believing in myself, believing that I could do what I do now, and achieving it. I have modeled myself on him in a lot of ways as a professor and in how I try to mentor my students.

A third person who I would point to is the judge who I clerked for after I graduated from law school. By that point he was a very senior judge. In the 1970s and 1980s, he presided over a series of cases related to the Tombs and Rikers Island in New York City. He found the conditions in these jails violated constitutionally protected rights and ordered the city to improve. When it didn’t, he ordered that the Tombs be closed and the inmates be transferred or released. This was not necessarily a popular decision. And he made it not just based on the papers, but based on his own visits to the facilities. He is a clear example for me of someone who was very aware of what the law was, but also saw that the law did not always deliver justice, and he used the incredible power that he had as a judge in a way that was very conscious of the impact on real people. He was also just filled with integrity. His name was Morris E. Lasker. If I’m in a tough position, I often ask myself, “What would Judge Lasker do in this situation? What would he think? What would he say?” Because to me, he represents such an amazing combination of being rational and thoughtful and deliberate, but also having a heart and keeping in mind the humanity of the people in front of you.