Michelle Jarvis

Michelle Jarvis has worked in the international criminal justice field for 19 years and is presently the Deputy Head of the International, Impartial and Independent Mechanism (Syria), having taken up the post in December 2017. Prior to that she was the Deputy to the Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Mechanism for International Criminal Tribunals (MICT), where she had oversight of legal issues across the Office of the Prosecutor. 

Prior to her work in international criminal law, Ms. Jarvis was a litigator in Australia, where her roles included improving women’s access to justice. Ms. Jarvis has lectured and trained widely on issues concerning international criminal law, including for Justice Rapid Response, the Nuremberg Principles Academy, the Salzburg Summer School and the Strathmore Institute for Advanced Studies in International Criminal Justice. She brings extensive expertise on issues concerning gender and armed conflict, having co-authored two books and numerous articles on the subject. 

She initiated and was the inaugural Coordinator of the Prosecuting Conflict-Related Sexual Violence Network, set up within the International Association of Prosecutors, and is presently a member of the Network’s Advisory Council. She is also an Advisory Board member of the Center for Climate Crime Analysis. Ms. Jarvis holds a Master’s degree in law from the University of Toronto as well as degrees in law and economics from the University of Adelaide.

Michelle Jarvis was profiled for ATLAS by Sareta Ashraph. Learn more about Sareta's career and work at the end of the profile, and follow her @SaretaAshraph.

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What drew you to working in international law? And what were your first steps?

I developed a passion for international law at law school. I was a bit of a reluctant law student at first. I didn't have lawyers in my family and hadn't had any exposure to the law prior to my going to law school. So law was an unexpected career path for me but when I studied international law at university, I found it very engaging. This was in the early 1990s before the International Criminal Tribunal for the former Yugoslavia (ICTY) had been established so I certainly wasn't thinking about a career path in international criminal law (ICL) as it didn't exist as a career path . But I did really become inspired by the idea of international law and international humanitarian law (IHL) in particular. At that time, many people regarded IHL as an archaic, irrelevant area of law. I was fortunate that one of my law professors was an expert in IHL and was doing ground-breaking work on gender and IHL. I was inspired by the principle that there should be limits, humane limits, in the chaos of conflict. I was also increasingly aware and engaged with the fact that these areas of law had developed in a very gendered way, which didn't reflect the experience of women of conflict. I was drawn deeply into the study of IHL. From there, it became a question of how to practice law - I knew I was interested in being on my feet in court- and also to continue to work in international law. 

Becoming an international criminal lawyer hadn't crystallised a a viable opportunity so I did what you do when you need to have an income after law school: I got a job. In my case, this was with a commercial litigation firm in Adelaide where I had studied. I started learning the skills which underpin the practice of law. It was an important first step for me but I didn't give up on the idea of working in international law. I managed to stay connected with some of my mentors and professors who I'd worked with at the University of Adelaide. I continued to tutor, write, and stay involved with projects involving international law. A few years later, I found my way into a Masters of Law programme in Toronto, which provided me with an opportunity to study ICL. By that time, it was developing as a field of law as the ICTY and International Criminal Tribunal for Rwanda (ICTR) had been established and new jurisprudence was being developed. I maintained a focus on gender. After my degree, I took up  an internship at the ICTY. This was my entry point, and I arrived with a combined interest in IHL and gender.

I think domestic practice is crucial for ICL lawyers. You benefit greatly when you have a good grounding in your own legal system, and when you learn the practice of law in a situation where there are more opportunities for exposure. As a young litigator in Australia, I started out with small arguments in court, instructing barristers (as is the case in Australia), and sitting through trials and understanding the process. In the international criminal tribunals, there so few cases - and consequently few opportunities for young lawyers to get on their feet in court at an early stage. This is why having that grounding in your national system is really important.

I finished my internship; years later, I would return to the ICTY as a staff member. Before I did that, I practised in Adelaide at a women's community legal centre, which was focused on increasing women's access to justice. It was a real opportunity to practice and to handle progressively more complex cases. I also came to grips, first-hand, with some of the barriers to women accessing justice in my national system. These are things which stayed with me as I've continued to work on some of the biases in the international system when it comes to women's access to justice.

Why do you think having a gendered approach is important? 

I started my career in ICL with a deep interest in gender though I never had a specific position inside the ICTY which was focussed on gender. I was always employed as a legal officer, appeals counsel and, eventually, as the Deputy to the Prosecutor. As I had this understanding of the importance of a gendered approach, I could see how important it was to having successful outcomes in the ICTY. I felt more of a responsibility to advocate for it: to use the increasingly senior positions I had inside the ICTY as a way to try to open up understandings of gender across the office more broadly and to try to generate buy-in. It is sometimes really difficult for focal points who may be more marginalised inside office structures or at lower levels to have the impact that they need. 

I could see as I advanced and had more influence among the management team that there was an opportunity, and maybe an obligation, to ensure that I used my position to try to create a positive outcome, especially for women who had been affected by the conflict in the former Yugoslavia. By the time I was Deputy to the Prosecutor, it was the later stages of the ICTY's work and the fact that the ICTY would be closing down was very prominent in people's minds. There seemed to be an opportunity that we could not let go to record the insights and lessons learnt of the Office. It was the first international criminal tribunal of the modern era. Together with the ICTR (which was established a year later), it was the first to grapple with the challenge of accountability for conflict-related sexual violence (CRSV). There was so much which had been learnt inside the walls of our institution that needed to be pulled together and recorded so that it could positively influence what would happen in accountability processes in the future. Many of us who were working on this issue were concerned that many of the same mistakes were being replicated in other courts and tribunals that had come after the ICTY. And more positively, we saw there was a chance to keep developing, and becoming more sophisticated in our approaches. 

We were concerned that such an opportunity would be lost because the institutional experience and knowledge wasn't being captured and recorded and made available for others. So the idea of the legacy project, which resulted in the publication of the book, really sprung from that. We realised there was a window of opportunity to capture it for the benefit of the future and if we didn't, affected communities in the future would be worse off due to the lack of effective approaches.

The issue of CRSV in the last 7-8 years has been a prominent issue, high on the political agenda notably of the UK's PSVI. So there a risk that a sense of complacency may take hold, a feeling that surely we have this under control now, that we've advanced to a level where we've overcome the obstacles. But I've seen first-hand that the moment we take attention off this issue, things can regress rapidly. Even at the ICTY, with some of the early successes in the Foča and Furundžijacases, everyone thought it seemed positive. At a later phase of our work, however, we had a number of problematic precedents coming through at trial level which almost slipped by unnoticed by the broader observing community. It was only through advocating inside the Office about taking these issue up on appeal and having management  who were willing to back the arguments being put forward by those in the Office who saw these precedents as problematic, that we were able to get a solid record on prosecution of sexual violence. Complacency is very dangerous as this is not entrenched progress. This is progress that can easily disappear when attention turns elsewhere.

The issue of CRSV is now very visible but it's a fragile progress. We now know a lot more about what the obstacles are and the strategies to overcome them. Now we need to understand how gender operates in conflict more broadly, and specifically that it's not only sexual violence which raises gendered issues and gendered harms. We need to be better about understanding the context in which crimes have happened as well. While there are commonalities in the way in which crimes of sexual violence are used, it always takes on particular dimensions in a specific conflict. It is crucial that we focus on understanding in detail the context we are working in.

What have been the high points of your career thus far?

High points is a difficult concept in a career filled with difficult and often traumatic work. If I interpret highpoints to mean instances that for me professionally have been the most meaningful, I can see a pattern where I had an opportunity as a lawyer to present views and perspectives of the affected communities in a way that hasn't often historically been available. That has been incredibly rewarding. By this I mean things like advocating on gender issues and the appellate work I did on setting positive precedents on issues where the less positive precedents had been set previously. 

I was involved in the genocide appeal that the ICTY Prosecution brought in the Karadzic case. This was the argument alleging genocide in the municipalities of Bosnia and Herzegovina. The charges for this offence had been dismissed at the Rule 98bis stage in Karadzic. For me being able to present to the Court and to reflect the perspectives of the affected communities as to why they considered those crimes do constitute genocide is something that I'll never forget. 

Here at the IIIM, we are committed to a survivor-centred approach. It is a term that's used a lot these days but  we still have a lot of thinking to do around what that means, especially when it comes to a complex situation like Syria. Having an opportunity to focus on that and devise strategies to discern what that means in the context of the IIIM's already unique mandate has been important to me.

Anything that involves creative new approaches has been a highlight of practicing in this field. Many people coming into the field of international law experience the novelty and the lack of precedents to work with as a source of frustration. For me it's always been a source of inspiration to have an opportunity to try to think about how to do things differently or how to overcome those core operational problems.

What are some of the challenges that you faced coming up in your career?

Take a statistic: only 13% of the witnesses at ICTY over the course of its work were women. That's a dramatic statistic that hasn't got as much attention as it should have. At IIIM, in the materials we are collecting from other actors, we are seeing a similar gender bias. What this indicates is that we are not properly surfacing the experience and perspectives of females as victims, survivors, and witnesses to the conflict. Our understanding of the conflict comes, predominantly, from male voices. It is important to be aware of those biases. 

At IIIM, we have an opportunity to come up with strategies to correct it. How do we do that? It is about being pro-active in our own investigations to fill the gaps so that we are receiving and understanding the perspectives of females, and making it a priority to collect material which conveys that experience. It is also, importantly, about building trust with those parts of the affected communities who are being marginalised in the documentation process - in large part because of structural difficulties in bringing those witnesses forward. These are not insurmountable obstacles but they do mean you need to be aware of the gender bias and come up with strategies to help overcome it. At the IIIM, we prioritise communicating with the affected communities on these issue; that we are seen as credible and trustworthy when it comes to the practices that we adopt, the security that will attach to any information that is transferred to us; and that we bear in mind the practical considerations that may prevent people, particularly females, from coming forward do speak to speak with investigators or law enforcement officials. These considerations include considering how to tackle the issue of childcare, to find comfortable spaces for females to speak to someone from an international organisation who is asking questions about sensitive and difficult topics.

International law is a difficult field of practice in which to establish a career, and there are additional difficulties for females. For many women of my generation, the early years were relatively smooth thanks to the path-breakers who went before us. They did so much hard work in breaking down barriers that allowed greater opportunities to flow to the women who followed. As you progress to more senior positions, however, the reality of the gender barriers are more keenly felt. There is no doubt that the glass ceiling becomes more apparent. It is important to be aware of this, to not be surprised when those factors start to bear down on you, and start to affect how you operate within these structures. Be prepared for it.

There are tendencies to categorise women much more than men. There is a constant, and not always consistent, stream of the various expectations placed on women: "you can be this, you can't be that; you can do this, you can't do that". I see those same factors looming for my daughter who is 14 years old. The lesson I pass on to her is not to allow herself to be boxed in or allow someone to label her in a way that doesn't reflect who she really is or in a way that prevents her from doing what she want to do. I think that this constant - and tiring - push back against what the reality is for women still needs an honest discussion about why those pressures still exist.

Do you have any advice for people, particularly women, hoping to work in international law in the future?

Be realistic about the opportunities, which are limited in some respects especially if you want a full-time, on-going job to work in a court or tribunal at this point in time. Be relatively flexible about what your idea of an international career looks like, with the knowledge that both circumstances and what you want will evolve over time.

Don't give up. Persistence is everything.There are so many instances of people who've been creative and used ingenious strategies to break through the barriers.

Take every opportunity to stay connected with this area of law. You can do this through publishing material,  making yourself an expert in a particular topic, undertaking short-term deployments, teaching. These are all very good ways of boosting your profile and ultimately opening doors for the future.   

The architecture of ICL is still under development. Even four years ago, no one would have imagined a mechanism like the IIIM would be set up, and would have the mandate it does. It is a response to blockages in the UN Security Council and so it can be hard to predict where the opportunities will be, but we've seen amazing examples about how creative thinking has influenced the structure of ICL. One example is IIIM, now we have other mechanisms set up in a similar model, such as the IIMM. We also have developments like Justice Rapid Response and the Institute of International Criminal Investigators. These are creative responses to structural problems in ICL. These developments, in the past, have mostly been driven by male colleagues. I think there is space for female practitioners to have more influence and to have a role in the creative, forward -looking thinking about how to better structure our work in this field of practice. 

Confidence continues to be an issue for many women which blocks them from putting themselves forward. I think it's important to be aware of the impact of lower confidence, that it has been documented as a factor linked to gender. I think recognising when you don't feel confident and understanding not only the personal but structural roots of it are important, as is ensuring that you work on strategies to help ensure that you don't undermine yourself simply by failing to put yourself forward.

As a mother of two children, I can confirm that it is an on-going challenge to find a balance between demanding jobs and feeling like you are meeting your responsibilities in other areas of your life - or even having the time with your family that you want to have. I don't know that  there's an easy answer to this. Having a partner who can share the load makes a huge difference. Also, it's important to recognise that there will be times in your life and career where you have to adjust the balance. Sometimes it feels like the demands of work are overwhelming but hopefully you get to a phase where you can reverse the balance a bit and make up for periods where you haven’t been able to be there as much as you would like. It's important to take a longer term view and don't put too much pressure on yourself to strike the  perfect balance at all times.

Recognise your own individuality, and the uniqueness of your circumstances. Women are under so much pressure and also put so much pressure on themselves to be a particular way, adopt a particular approach, or to have a life which has particular characteristics. What works for others may not work for you. It's also about having the courage to say "this is who I am and this is what works for me and I'm going to have the confidence to move forward in that way". 

 Michelle Jarvis was profiled for ATLAS by Sareta Ashraph. Sareta is a barrister specialised in international criminal and humanitarian law. She is currently a Senior Legal Consultant on projects directed towards furthering accountability efforts for crimes committed in Syria and Iraq, and a Visiting Fellow with the Ethics, Law and Armed Conflict group at the Blavatnik School of Government. Sareta has worked for the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh, the International, Impartial and Independent Mechanism (Syria IIIM) and the UN Commissions of Inquiry on Syria, and on Libya. From 2004 to 2009, Sareta was Defence Co-Counsel before the Special Court for Sierra Leone. Sareta is an associate tenant of Garden Court Chambers (London), and is called to the Bar of England and Wales, as well as the Bar of the Republic of Trinidad and Tobago. She is a co-founder of ATLAS. @SaretaAshraph.