Episode 5 - How can we expand international law?

Interview with Dr Marina Aksenova

[00:00:01] Intro

[00:00:05] Dr Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we talk to some fascinating people, legal experts, academics, and human rights advocates to explore ideas about the future of human rights and improving access to justice for all.

[00:00:20] I'm Dr. Miranda Melcher, a Senior Legal Fellow at Just Access, and in this episode, I speak to Dr. Marina Aksenova. She's a professor of comparative and international criminal law at the IE University in Madrid. In this discussion, we go over her research background, her research interests that bring together not just international criminal law as is traditionally thought of, but many more aspects as well, and talk about gaps she sees in the international justice system and ways perhaps of addressing them.

[00:00:52] Interview

[00:01:00] So to start us off, can you please tell us a bit about your background and how you came to have your current role?

[00:01:17] Dr Marina Aksenova: Yes, my journey started with my law degree in Russia. I did my first degree at International University in Moscow, and I was actually specializing in civil litigation and civil law. But then I graduated quite young. I graduated when I was 20 years old. And at that time, I didn't feel like entering the workforce.

[00:01:39] So I went to the Netherlands and I did my master's degree. in international law and by pure chance I stayed to work at the International Criminal Tribunal for the former Yugoslavia. So I was quite young and my first job was practically being an intern and then legal assistant [00:02:00] for defense teams at the Yugoslavia Tribunal.

[00:02:03] So my journey started then, and I tried working in a law firm. I spent two years in international arbitration, which I absolutely loved, and I had great experience. But then some existential questions still kept going in my head. For instance, why people commit mass atrocities? Why these horrible things are happening?

[00:02:26] And I decided to embark on a criminological study at Oxford, and then more in depth study at the PhD level in Italy, in Florence, where I looked at these questions in more detail. And to be honest, this did not bring answers to all of my questions. So I had to do more work in this regard. But yeah, this is how I would say my path started and evolved.

[00:02:51] And at the moment I'm Assistant Professor in criminal and international law at IE University in Madrid. And I [00:03:00] teach in English, and I teach a group of wonderful students who come from all over the world. So I'm extremely privileged to have all the time students coming from different jurisdictions, different backgrounds.

[00:03:11] So we get to discuss these existential questions together.

[00:03:17] Dr Miranda Melcher: Brilliant. And that's, I think a very good introduction as to why we want to talk to you. Given that background, and as you said, those existential questions, what are the main areas of research that you focus on now and how did you develop them?

[00:03:33] Dr Marina Aksenova: So my study initially began with international criminal law, and that got triggered by my professional experience at the Yugoslavia tribunal, and especially working for defense and meeting in person, people accused of mass atrocities. So when I was 21, I remember entering a room. with my mentor and with my boss and meeting a person accused of Srebrenica massacre and looking into his eyes and not really seeing evil in his eyes.

[00:04:04] So my expectation was that I would meet someone who at that time I thought would be evil, so that was the story I had, and I did not see that. So these are the questions that started me with international criminal law and now as I teach criminal and comparative criminal law, and that was also the topic of my PhD research.

[00:04:26] I looked at the responsibility of people who help with committing crimes. So I was less interested in perpetrators as such in a legal sense of the word, those who would perform actus reus or those who would perform the culpable conduct. And I was more interested in people assisting or facilitating or ordering, so those who do not pull the trigger on the gun.

[00:04:48] So yeah, from complicity, I evolved into purposes of international law and why we have it after all. So why do we have the why do we have this discipline?  Afterwards, I started looking at causes of criminality. So I started digging deeper because as I said, just legal research did not answer all of my questions.

[00:05:10] I wanted to examine what drives people to offending and what is this collective aspect of criminality? And that led me into exploring perception. So also the lens of. looking at things. What is my agency when I examine all these questions? What can I learn about the system examining myself and examining how I look at it and what kind of questions I ask?

[00:05:38] And that, of course, brought me to aesthetics, because I'm less interested in the objects and when people first hear aesthetics in conjunction to international law, they would assume that I relate to objects and beautiful objects, or perhaps IP law, but this is less of my interest. It is more the [00:06:00] universality of perception, and how we can find ways to look at things differently.

[00:06:06] And then my last frontier, I would say, which is extremely challenging, but also rewarding is the idea of citizenship and nationality within the container of international justice. So moving away from international criminal law to some extent, and just looking at what everyone can do to improve their chances of access to justice, regardless of where they're born and in which conditions they are born. So I look at citizenship from this different perspective, not as a particular nationality, but as a way of belonging.

[00:06:40] Dr Miranda Melcher: Brilliant. That's such a fascinating combination of research interests and I'd love to ask about, I think some of them obviously in more detail, starting with one thing that I know you're working on that we haven't quite talked about yet. We've talked a bit more about teaching and research. So can you introduce us to your art and international justice initiative and what is it? Why did you create it? What's up with this cool project?

[00:07:08] Dr Marina Aksenova: Yeah, it's it's a project that I feel very passionate about. And as I mentioned, this whole linear progression, it's not always that linear. Of course I have to describe it here as a linear. Process. But at the time when I was thinking about purposes of international criminal law and also about the context of mass offending, of course, part of me wanted to bring some improvement.

[00:07:34] There is an activist part in me that wants the world to be a more peaceful place that wants the world to heal, especially when it comes to conflicts. When I studied the reasons for offending, I realized that a lot of problems are actually intergenerational. So this is what separates I would say traditional domestic criminality from international mass criminality.

[00:07:59] [00:08:00] This is the systemic and cyclical nature of violence that it gets perpetuated over decades. So that led me towards healing or thinking in terms of healing and reconciliation because it is one of the goals of international law or international criminal law and this instrumental way of thinking led me to art and aesthetics, because what I learned from aesthetic theory is that there is some change happening while we observe, while we engage with an object of art.

[00:08:31] As I mentioned, it's not so much about the object, but it's more about the relationship with the object and the state we enter when we engage with something that is unfamiliar. So even if the object does not appeal to us, we can look at it and say, wow, this is horrible. This is disgusting. There is this wonder in disgust.

[00:08:51] So it's not necessarily about beauty in traditional western categories. And putting it together with international law and engaging artists and engaging policymakers in this more open. conversation about what we are observing and how we can heal together using the categories of international law actually led me to create this initiative and to talk to other people, to other lawyers and international lawyers, what they think about it.

[00:09:21] So I organized a couple of events. And I tried to start a conversation between artists and lawyers and international lawyers and see what comes up.

[00:09:32] Dr Miranda Melcher: That is a very interesting set of conversations. Are there any sort of current or future projects within that, that you're especially excited about?

[00:09:43] Dr Marina Aksenova: Yes, I am finishing a book, which is called Art, Aesthetics and International Justice. It's coming out next year with Routledge and yes, that was a big process. And of course I'm also exploring [00:10:00] how to use this lens of aesthetics in conjunction with specific problems of international justice. Because what I learned in the process of organizing the events and working with creativity is that it's very nourishing in terms of examining our biases.

[00:10:16] But if we want to move further with international justice, there needs to be a topic or a set of problems to which we apply this lens of perception. Currently, I'm engaging with this lens of aesthetics and the concept of citizenship to question the assumptions. And I will briefly explain what I mean by that.

[00:10:37] 1948 Universal Declaration of Human Rights talks about right to a nationality, and this is a very famous pronouncement. So basically the system is geared towards all of us having a nationality, so we all have the right to a nationality, but there is no opposite right. There is no right not to have a nationality and enjoy the fruits of the human rights movement.

[00:11:03] So it's very easy being a lawyer to take this right to a nationality as a starting point for the exploration and then to see what are the sources of law and how we solve problems. So when we look at it from a more creative perspective, or when we open to different possibilities, then we start asking deeper questions.

[00:11:24] What would the world look like if we didn't have the right to a nationality, but we had some other possibility to access human rights? So how can we create another normative system of belonging, perhaps a complementary system of belonging based on different ways of perception? So this is what I'm working on, connecting aesthetics, international justice, and a specific problem which I see right now - identity politics. So I think it's one of the biggest issues at the moment that our identities become too ingrained in individuals and collectives, and that leads to conflict.

[00:12:02] Dr Miranda Melcher: So these issues obviously are incredibly important and it's clear you're very passionate about them, right? Not just having a book, but also the initiative and the projects, and in some respects, that might be seen as unusual for a lawyer, right? For someone with a legal background, that's not necessarily what we traditionally think of.

[00:12:23] Oh, a law professor, that's what they do, right? But this is clearly quite important to you to expand the conversations law is in beyond just the idea of what does the letter of the law say. So could you speak a bit about why you think it's so important for lawyers and law to be part of these conversations to have a wider perspective on legal work?

[00:12:48] Dr Marina Aksenova: Yes, lawyers tend to be categorical in their thinking. Law is a discipline that I often call black and white, yes or no, [00:13:00] guilty, not guilty. So it's a binary discipline, which is very helpful to make sense of the world. But what I often tell my students is that it's a model. It's a model that we superimpose on reality.

[00:13:13] So we have a certain number of rules, for instance, if we talk about criminal law, we have a number of prohibitions that are accepted by societies and there is a consensus around them and we apply them to each situation. But each factual situation is very different. And sometimes the model does not necessarily fit the scenario, ideally. And this is where the legal process starts. Interpretation, finding support finding, let's say, customs or provision in a treaty or a general principle of law, if we're talking about international law, or finding a criminal code provision, if we talk about domestic law, but our reality is changing very quickly, especially when we talk about international affairs or international conflicts or what we see on the news.

[00:14:03] It's changing and the old paradigm of international law and international criminal law that I mentioned a few times, it's part of international law. So this current paradigm was designed in the 1950s, 1940s at the time of Consensus that we don't want wars anymore. So there was this global consensus, but I would argue this paradigm is outdated and we're currently living in a different moment of consensus.

[00:14:30] So that would be my argument at the moment that because of all technological advances, because we have such easy access to information and we have so much more connectivity, we need to look again at the structures we created in terms of international law, if we want it to be relevant for solving conflicts, for improving people's life, for improving people's access to commodities and so on and so forth.

[00:14:57] So we need to take a closer look. And then the question is, how do we do it in the most organic way? And my answer is aesthetics, perception, and of course, I don't suggest replacing old categories, because sometimes when I present, I get questions, what do you mean? Do you mean a planetary rule of law, a cosmopolitan order?

[00:15:19] It's not feasible because of distributional challenges, because clearly there are distributional issues and states, which are central tenants of international law, are fundamental for distributing benefits and liabilities. I'm not saying let's cancel states, for example. I'm saying let's create another normative system to talk about improving the situation, but let's make corporations, individuals, civil society also relevant for this discussion and give them more agency in a sense, because international law is built around the agency of states primarily.

[00:15:57] Of course, we have human rights law, which talks to individuals, but individuals need citizenship or nationality in order to facilitate their access to human rights. So there is still this intermediary in a sense. So how can we reinvent the system in order to make it more hetero polar as the world right now?
[
00:16:17] So that's a long answer to your question.

[00:16:20] Dr Miranda Melcher: But a very important one. Do you have any, I guess obviously the obvious answer is you've just asked a question. How do we do it? My question back to you is, how do we do it? Do we have any answers?

[00:16:33] Dr Marina Aksenova: Yes, and I was reflecting on this issue in the past week, and I'm quite inspired by one example that I want to share. There is a request for an advisory opinion related to climate change. It was submitted to the International Court of Justice, which is a very traditional international law institution.

[00:16:52] How did it start? It started on a campus of the university in Vanuatu. Students, in the context of studying, were given an assignment by their wonderful professor to consider what other options in terms of remedying climate change or working with this issue. And they started an initiative, just 12 students guided by professor, they formed an organization.

[00:17:18] And this became the root of this legal development because the government of Vanuatu very much supported this initiative and then some law firms and some civil society actors. So this whole process started at a very local level and with students and it is pioneered also by one of my dear colleagues and friends, who I know was very passionate from the beginning about the issue of climate change.

[00:17:44] So in a sense, It's also the passion of people engaging with students or engaging with civil society. And it is also about trust that as lawyers, of course, we want to find solutions, but also we want to start legal development. So we want to start the process. We don't necessarily need to see all the results immediately.

[00:18:06] It's not always about conviction or acquittal. Sometimes it's about starting legal change, starting the dialogue. So yeah, working with students, working with civil society actors and having a passion. And this is also something I share a lot with my students when they come to me and they have this desire, which is very pure desire to make this world a better place.

[00:18:31] So I recommend them to find their passion and their particular type of injustice. In a sense, we all have different stories and different histories and different narratives, so different people would resonate with different problems. And I think it's much more powerful when someone identifies what triggers them and connects it to their own personal story for whatever reasons, and then finds time and energy to invest in it.

[00:19:00] Even if it's one hour every month, it doesn't matter, because it can be more productive instead of trying to change the world at a very global level to work with a particular passion project.

[00:19:14] Dr Miranda Melcher: Absolutely. That's very much what we at Just Access believe in. So brilliant to hear that being taught to students as well. Speaking of that idea of there's so many things in the system that are not necessarily working you said earlier the idea of it not being fit for modern purpose, right?

[00:19:32] We need more from it. From your perspective, what do you think are some of the biggest gaps in the system when it comes to accessing justice?

[00:19:44] Dr Marina Aksenova: I would say it's unacknowledged role of corporations and unacknowledged role of other actors in the global ordering system at the moment, and I will give an example. I worked for some time as external consultant on a case or a communication submitted to the International Criminal Court to hold weapons producers accountable for complicity in crimes committed in Yemen.

[00:20:18] So there are supply networks and there are particular value chains which have impact on the way global ordering and societies work and they're not fully acknowledged in our political discussions or legal discussions. So in a sense, economy is kept separate from international law discussions. So for instance, when we talk about wars and conflicts in different areas, we focus on what is happening and we don't focus enough on the root causes of offences.

[00:20:51] So how are weapons manufacturers responsible? They supply weapons to Saudi Arabia, knowing that Saudi [00:21:00] Arabia would or could use them for particular activities in Yemen. So does this knowledge make them responsible? And what can we do about that? And that brings me again to the agency question, because international law and international conversation is very much based on states and what states do or don't do.

[00:21:21] And I think it would really be responsible to include corporations into conversations, both as a form of accountability, but also to use this new reality to access justice because there are different ways to voice concerns on social media platforms. And of course, there is a shadow side of it that we all know about identity politics and informational bubbles, but The positive development is that we can use these platforms or use the tools provided by corporations in order to facilitate more access and more visibility when it comes to our concerns.

[00:22:04] So both ways I would say corporate engagement is essential and that would be the main thing that I see at the moment.

[00:22:13] Dr Miranda Melcher: Yeah. I think that's very worth highlighting. So thank you for putting that on the table. Quite often when we get to talk to people with your expertise, I mean with expertise in this field, there's of course the temptation to talk about how much more complex these issues are, right? Changing international law is not a one day project or a one year project.

[00:22:34] And there's so many different pieces to consider which is so helpful to understand more of what they are through these conversations. But sometimes there are solutions that are actually perhaps more straightforward than we think but maybe we're not aware of them, or they sound complicated, but actually they might be more simple than we realize.

[00:22:53] Are there any sort of low hanging fruit type solutions that you think might improve access to justice?[00:23:00]

[00:23:01] Dr Marina Aksenova: I would say legal clinics at university campuses. I can speak for my university where I work. IE University has a legal clinic that is looking for projects. So the students actually really want to be involved. And there are professors who are there to supervise them. And then, of course, there needs to be broader support of non governmental organizations, civil society actors, so professional lawyers who are still in legal practice in this process, but starting to look for opportunities that go beyond courts.

[00:23:38] Because when individuals hear about particular problems or when they experience a human rights issue or violation, traditional way of approaching the problem, I would Perhaps file a complaint or go to court through a state system, but not every state has a functioning system of justice. But even in functional states, which we consider functional, the length of the time is incredible.

[00:24:05] So there are lots of cases in the European court of human rights against Italy, for example, and other European countries where it just takes too long. So maybe you get your fruit, the result of your effort. But Ultimately, by the time you get it, it's not even worth it. So how can we look at problems more holistically?

[00:24:24] So starting with legal clinics, civil society actors as a process, and then looking for other avenues of seeking justice and redress, which are more creative. So as I said, filing complaints on social media platforms, starting some campaigns drawing people's attention, and in a way, looking for more creative solutions.

[00:24:49] Dr Miranda Melcher: No, absolutely. I think that's a really good point and maybe not one that lawyers always talk about or are willing to admit. So that's very much appreciated. In that answer and [00:25:00] in some of the earlier part of our conversation, I think there's already some fabulous ideas for how students, newcomers to the field can get involved in this sort of thing.

[00:25:10] Is there anything else you'd recommend for ways people can help expand access to justice?

[00:25:16] Dr Marina Aksenova: It's a very good question because as a lawyer, the process, the thinking process I have around justice is what do we mean by justice? Of course. And this is also part of education in law that we are trained to think in categories. For me, justice is quite subjective. I would say, another way to engage with these questions is to ask oneself what is justice for me and what kind of problem societal problem or individual problem is triggering me in my particular environment and to start from that and then to look at this issue as a problem that can be solved and look at creative solutions.

[00:25:57] Of course, we're conditioned through international law to think about human rights and violations and then international criminal law, of course, talks about the worst type of violations, such as genocide and war crimes and crimes against humanity. But we're starting to open up to a broader range of injustices, for example, slow version of injustices, so to speak, bad working conditions, starvation.

[00:26:21] All these things that maybe are not reaching us through social media or through other news outlets. So for everyone, particular injustice that they may experience or they may observe can be different. So I would say starting with defining what is justice for them and working on this issue, but from the perspective of, as you said, gradual change that it's not going to change over time that you need to invest in it on a consistent basis, but not expect overnight change or overnight solutions.

[00:26:59] Dr Miranda Melcher: Oh, brilliant. That's a fabulous combination of encouraging and realistic at the same time. Is there anything further from your work or your knowledge you'd like to share with our audience?

[00:27:10] Dr Marina Aksenova: Yeah. I think the last thing I want to mention is the importance of play, and it may come unexpectedly from a lawyer, from someone who teaches criminal law, but usually when I start my class, a lot of students are quite invested in retributive approaches, that we need to punish evildoers for what they're doing, and that there's a certain solution that comes from winning over someone or getting some particular outcome.

[00:27:45] And what I think we lost in a sense is this ability to play and to see everything in a playful way. And it may sound somewhat offensive to those who are undergoing severe challenges and I don't mean to be insensitive to that. It's not that it's more that this ability to play and to connect with our childlike self is going to open up, as I mentioned, perceptual faculties and more ability to see more solutions to certain problems that we consider most important in our journey.
[00:28:21] So I would say playful approach and ability to see opportunities. Yeah.

[00:28:26] Outro

[00:28:26] Dr Miranda Melcher: Thank you so much Marina for speaking with us. Stay tuned for future Just Access interviews, and do get in touch with us if you have any suggestions for people or topics we should cover.
[00:28:42] [00:29:00]