DOUGHTY STREET CHAMBERS ASSOCIATE TENANT
You are in London as a newly-selected associate tenant at Doughty Street Chambers.
Yes. I've been an associate tenant for a year, since the fall of 2014.
What does that entail?
Well, it's a fantastic opportunity to work with a set of very distinguished Barristers. They are like highly competent surgeons coming into action to play a specific role either as litigators or trusted advisors.
I was invited to join Doughty Street Chambers to help develop, together with several high-profile barristers, a new legal practice: Business and Human Rights. I felt quite honoured to join Doughty Street Chambers and to have my name on their wall and their website because it is an internationally acclaimed human rights set of chambers. I'm originally a pure criminal defence lawyer and gradually moved into the sphere of international criminal law. I expanded my practice over the last few years and work more and more in the field of human rights.
You define your work as a practice in business and human rights. What do you do, exactly?
It's an up-and-coming practice. We're working on three angles. We're trying to help companies build a social license to operate and work in sync with the local communities where they operate. It means that to develop a project like a mine, an infrastructure, a road, a dam, etc., you have to engage with communities. We're really trying to open this new field of getting corporations to better work with local communities. Experienced lawyers are particularly suited to organise negotiations and mediations to solve conflicts as they emerge. We also want to put in place remediation process following alleged human rights violations and conflict on the ground, relative to an on-going project. I believe independent lawyers are best able to frame the kind of remediation that's appropriate in the specific circumstances of the situation. Whether it's negotiations in the supply chain, whether it's mediation, whether it's eventually arbitration… litigation being at times the best but if possible the ultimate option. We want to promote, whenever possible, a whole set of alternative modes of dispute resolutions that would help local communities to really benefit from a project, instead of being at war with it.
Recently, a government in South America consulted me on these very issues. My career and the different functions and roles I played have made me truly independent. I am not attached to any institutions, just to the rule of law. That's why I fit well with Doughty Street Chambers.
How does the Modern Slavery Act affect your work with supply chains?
The legal practice of business and human rights is also focused on responsible sourcing and ethical global supply chains. The new UK law was adopted to prevent slavery from occurring in the supply chains of UK companies with an annual turnover of £36 million or more, really not that much for any global supply chain.
The UK Modern Slavery Act was adopted by Parliament at the end of March 2015 and the guidance and the by-laws implementing the law came into force on 29 October 2015. We're offering to conduct risk assessment in the supply chains with targeted forensic investigations to uncover the weak links, where slavery and human trafficking could be found. The auditors do all the work of trying to certify these supply chains, but there are areas that are at high risk of encountering child labour, slave labour, forced labour. We offer to conduct investigation to find out what's happening on the ground. We also want to help design processes and conceive solutions to stop modern slavery, human trafficking and child labour.
This new legal practice really fits well with my human rights background. This is truly human rights work. It also fits relates with advocacy and with trying to do something that's not just theoretical.
Your initial background was criminal law...
I first completed a degree in political science before going to law school. I was then granted a scholarship from the French government to study criminal law, criminology and comparative criminal law at Panthéon-Assas in Paris. I then completed a LL.M at the London School of Economics (LSE). I returned to Canada and practiced as a public defender for nearly ten years, and then continued to be a criminal defence lawyer but with my own practice. I gradually became involved in the establishment of the international justice system. In the mid-nineties, as the International Criminal Tribunal for the Former Yugoslavia (ICTY) was being created, I decided to get involved in this historical development. I created an NGO (the International Criminal Defence Attorneys Association, ICDAA-AIAD), and started to participate in the preparatory commissions to create the new International Criminal Court (ICC), a permanent institution. They were held at the seat of the United Nations in New York City. I led the movement for the creation of the International Criminal Bar (ICB-BPI) with the Head of the Paris Bar and other bar associations and lawyers from around the world. I was elected first president of the ICB in Berlin in 2003.
What was it like, being part of the creation of the International Criminal Court?
Well, it was a great experience. I wanted to try a case. At first it was really my hope and my purpose, but I saw a need for institutional and policy work and decided to create an NGO devoted to giving a voice to the defence and to ensuring the independence of the legal profession before the new international criminal court. I started doing a lot of lobby and advocacy work at the UN and internationally and also participated in a lot of international conferences, workshops and training. Advocacy work allowed me to develop in depth knowledge of civil society and the world of NGOs. It is this work that oriented me toward business and human rights. I also learned the art and difficulties of negotiations in an international forum. My background as a litigator was quite helpful, but I had to learn and develop a new set of skills and abilities.
I saw the NGOs at work and the push they were making for the creation of the Court. I saw their power when acting together. I also realised that, out of this movement to fight impunity, a new trend was going to emerge in support of victims of human rights abuse: a demand that corporations bear more accountability and liability. Globalisation and economic development made them the natural deep pockets to target in case of abuse and human rights violations. So when I first became involved in business and human rights, I was wearing my criminal lawyer hat. I was learning and reviewing international criminal law, the various UN treaties, the national laws being adopted by all the States ratifying the Rome Statute (establishing the ICC), the web of liability being created with its numerous modes of participation and ways to make groups of leadership accountable in cases of conflict. I also reviewed all the case-law and studied its impact on the possible liability of corporations.
I gave tens of talks on a variety of issues relative to international justice thanks to my platform first at the President of the International Criminal Defence Attorneys Association, then also as the President of the International Criminal Bar. I was invited to talk all over South America and in the process I re-learned to speak Spanish. I also conducted training in Africa for colleagues.
In the latter phase of the International Criminal Defence Attorneys Association, we decided to really gear our action towards the reinforcement of the international rule of law and in particular of legal aid systems. For instance, together with an American NGO the ILF (International Legal Foundation) and the support of the Canadian International Development Agency (CIDA) we developed a comprehensive legal aid system in Afghanistan, where we worked for six years (2005-2011). We were in the process of doing the same thing for Haiti when the earthquake destroyed everything.
Did this match what you hoped to do while at university?
When I was studying at LSE, I was thinking that what I really wanted to do was find a way to marry law and politics. Work in a field where international politics would have an impact on the law. When I saw these institutions being created I thought to myself: "This is really for me." This is the place where politics and law are coming together. I have always been fascinated with politics. I've very much enjoyed being a criminal defence lawyer practising at the national level, but after a while I felt passionately attracted to exploring this new international field and develop my advocacy skills in an international diplomatic forum.
Do you think you had a career plan, to start with? Or has it been more opportunity-based?
The only plan I had was to be a criminal defence lawyer. That is something I decided when I was 15. This was my passion. I went for it. I did it. I loved it. I still have a passion for it. But the rest kind of happened. It didn't fall in my lap; I made it happen by taking a lot of risks and being creative, entrepreneurial even reckless at times. Early observers of my work including my family saw me as an artist throwing paint on a white canvas that did not seem to make sense. But then finally it was taking shape. I do come from an artistic background so I took it as a compliment. My parents were artists. Not painters, but actors. I guess that really runs in my blood, in the way I do things. I am very instinctive and rarely just followed the conventional path except, I guess, when I was in law school.
I had some questions about when you started out, and going from being a public defender to having your own practice. Why did you make that decision?
I felt I had explored the work accomplished by a public defender and I wanted the challenge to expand my practice and take cases that I could not try as a full time legal aid lawyer. In Canada and in the US, you have the public defenders’ office, where basically you are an employee of the State. But you remain totally independent in your professional decisions and your conduct.
This was a fantastic school to learn to be a lawyer. I was on my feet in court ten hours a day from the first minute. They give you a pile of files and they say, "Go deal with it." That's quite a challenge. But after eight or nine years, I felt I wanted to run my own practice. This was a new challenge and I always look to challenge myself.
You work across different countries and in different legal systems. How does that work?
As an international human rights lawyer I see the law as getting more and more uniform and standardised. What is different is the way in which it is implemented, the process. I'm originally a lawyer in Québec (Canada) and I recently passed the Paris bar exam (2013) and was admitted to the practice of law in France after being sworn in at the Paris Court of Appeal. I have also become a legal consultant at the New York state bar (2014) where I was sworn at the Court of Appeal, in New York City. I thought it was important to have an institutional link to an American bar association since I now live in the US. It is a special status but I'm not a fully licenced lawyer in the US.
It opens doors, when you are an international lawyer to be able to wear these different hats. Here in the UK, I'm not a member of a bar, but I can tell you that the Canadian legal system is almost identical to the British system. I mean, really, that's the closest of all the legal systems I came across. When I watched the show ‘Silk’ depicting the daily life of Barristers it looked just like my practice in Canada. The cultural lighting is different but this is a pretty minor difference in the end.
To practice business and human rights, I think it's a great asset to be multi-lingual (I am fluent in French and English and speak good Spanish) and to belong to many jurisdictions that enable you to understand the legal systems of many countries. All the work I did during the creation of the International Criminal Court certainly taught me a lot about comparative law and multi cultural environments. It is all coming together in my new practice.
The website is aimed at young women early in their career. What would you recommend to a student who would like to work in business and human rights?
This is a new field of legal practice that covers so many areas of the law. I truly believe it will become very prominent in the coming years. Not long after moving to the US I became the convenor of the American Bar Association Centre for Human Rights Advisory Board Business and Human Rights Project. This project enabled me to assemble a large group of experts, mostly Americans, but also Europeans and Canadians, on these issues; they came from practice, academia, labour, government, business and civil society. It helped me to create links and establish a base. While many of the senior experts around the table are still mostly men, the young lawyers assisting with the project are almost all women.
What would I recommend? Certainly understanding politics and economics is very important. You cannot just do law. In France, when you do law you have to do at least a masters before going to the bar. Usually you have general knowledge that will give you a sense of how society functions. Here, I think it depends where you go to school and in my jurisdiction, people go straight to law school and they're sometime missing a more comprehensive view of society. I think it's also very important to speak many languages and to want to travel because you're going to be called to travel constantly.
What is fantastic is that the business and human rights field of practice is bringing the law in line with a lot of other fields. People are working now with management consultants, anthropologists, economists and engineers. It's forcing people to think more transversally, which I think is great. Silo thinking is certainly not leading to comprehensive solutions given the complexity of the problems we're facing in today’s world. We need to have access to people who can work in many disciplines.
Business schools are also starting to work in business and human rights, and sometimes they're ahead of law schools. Especially in the US, it's a new trend to have these programs in business schools. It goes far beyond business. I was recently asked to collaborate with Rutgers University in New Jersey (USA). They have one of the best supply chain faculties in the country. It is a management school not a law school.
If we want to change the corporate culture on these issues, we need to learn to work with management, study with them, understand how they operate, including the practicalities of their everyday work.
Do you think there are particular advantages and issues to being a woman in law?
In our countries, nowadays, women are doing pretty well over all. There are still lots of problems, lots of issues, but it doesn't compare to what it was 100 or even 50 years ago. Progress has been huge and it continues. The situation of women in developing countries is still immensely challenging and inequalities are striking. Opportunities are far from the same. I saw this morning on the BBC, a young Afghan woman that was stoned to death for not having accepted to marry the man her parents had chosen. She had extra-marital sex and the man was just lashed once. These women still have so long to go.
When I started practising in criminal law, there were very few women working in that field. You had to make your space. It was not obvious, it was difficult, but I never felt that it was going to prevent me from doing what I wanted to do. I never felt the door was closed to me. I also have three children. So, no. If you want to do it, you can do it. When I took my oath at the Court of Appeal in Paris, in 2013, I was amazed to find myself surrounded by so many young women who represented approximately 75% of the new lawyers being admitted to the practice of law.
Yes but it should be balanced. I favour mixity and diversity. Men see problems differently from women and I think the best teams are teams composed of men and women from different horizons. We each have our ways of thinking and it is wonderful when our different thought process and emotions come together. I think it's very positive.
Is there any particular case you're really proud to have worked on?
Oh, many, many. But they're not necessarily famous cases. One that could be of interest to women was called the Self Defence Review. I was appointed by the Canadian Minister of Justice to review the cases of women who had been found guilty of murder in a context of family violence. There was a decision of the Supreme Court of Canada (the Lavallée case) that recognised the battered wife syndrome. It stated that in certain circumstances these battered women could be acquitted because they acted in self-defence, even if there was no imminent threat. I was asked to review the cases of 12 women in Quebec, who had been convicted in a context of family violence. I spent months in jail, interviewing these women and understanding their life, their stories. It was very hard. It enabled me to really understand the battered wife syndrome, which is a reality. I realised that these women lived in a universe closed on itself where the abusive male figure is always present, representing a clear and constant threat to the woman, who feel there is no way out, and constantly fear for her life.
Any unexpected cases?
I did a case of police brutality, where I represented a police officer. At the beginning of my career I don't think I could have ever envisaged I would try that kind of case. I wanted to stand and fight for the underdog. That was what motivated me as a young barrister. As a mature lawyer I learned that criminal law is also about the process, the support of the rule of law. It's making sure that the same rules apply to all people, rich, poor, educated, uneducated, whatever role they play in society. Ensuring the full enactment of the presumption of innocence. As a defence lawyer, you stand alone in court with your client facing the powerful state apparatus investigating and trying cases. You have to be very solid on your feet to ensure that the system does not steamroll the individual accused, your client, if he or she is to be found guilty benefits from all the safeguards of the law. Letting the process unfold without hindrance in full transparency and publicly is very important and forms a key part of any democratic regime.
We also learn, as we perform the work of defence lawyer that guilt is not black and white, the process to achieve a verdict fairly and according to the legal parameters and constitutional safeguards are very complex. I recommend a very good film that stars one of the barristers here at Doughty Street Chambers, Mr Wayne Jordash. The documentary film is called 'War Don Don'. It's about the case of Mr. Sesay before the Special Court for Sierra Leone (SCSL). It really demonstrates vividly how complex the issue of guilt is.
I got to understand how defence lawyers had a very important role to play in maintaining a true democracy. Without a strong defence, you will not have a truly independent judiciary. The judiciary would always tilt on the side of the prosecution. You need to have a strong defence and an independent bar supporting the defence so that you have a balance that is how you have an independent judiciary. An independent judiciary is one of the main corner stones of any democracy. To me, acting as a defence lawyer is a pretty fantastic role to play. But you don't really understand that when you start in the profession. It takes years before you truly figure it out. You first feel it in your guts, but as you move forward, you really start to internalise it and realise its institutional importance. I often say that the defence plays the role of the loyal opposition in the legal system comparable to that played by opposition parties in parliament. That is how you avoid absolute power and dictatorship.
What makes lawyer’s job different from all the other professions?
I was in Vienna at the International Bar Association. I was asked to be the discussant of an eminent Harvard Law professor (Prof. David Wilkins) on the future of the legal profession in the 21st century. I basically said that what distinguishes lawyers from other consultants, or other professionals, is their ability to be independent, and to say NO, even to their client(s): "No! You can't do that. No, I won't do that for you. No, I don't want to do this. This is not legal or this is not the right thing to do." If you are able to assert and maintain your independence daily and express truthfully or candidly what needs to be said when assessing a situation, advising your client with honesty, integrity and independence, then you have a special role to play in society.
You're an officer of justice. You're of course, devoted to your client whom you have to represent with loyalty using all the legal means available to you, but you also have to be devoted to the rule of law, the bigger picture. And you constantly have to balance the two roles. That's what makes you a trusted advisor, and that's what makes you a leader. For example, in the field of business and human rights, say you represent a big corporation, and you find out that there is slavery in their supply chains; you have to find the courage to go talk to your client. You know you’re not going to be popular. Some may even hate you for it. But you’ve got to find a way to do it anyway because you know that this is the right thing to do. And the right thing to do doesn’t necessarily mean that it’s going to bring you more money, fame or success. You are constantly challenged within yourself, your values, your ethics and your role. If you do it on a regular basis, then you gain some strength and confidence as a representative of an institution in which you believe: the legal system and the rule of law.
I do believe that most leaders would want to be advised by this kind of lawyer, someone who's going to tell them how things really are, where the risk lies, instead of just covering their eyes with wool. It takes judgement. It takes strength and I believe young lawyers need to be supported by older lawyers to learn to do just that. Then I think we really learn from each other. A more extreme case is that of the human rights defenders persecuted and imprisoned all over the world, in repressive regimes, while they are trying to do their job and upholding the rule of law. They too need to be supported. We have to bring them our support and stand up for them.
When you take my ideal model of the role of a lawyer, and you export it to places like Afghanistan, or some very repressive regimes in Africa or Asia or elsewhere in the world, you understand that it's much more difficult to do that work against a State apparatus that is dysfunctional or repressive. So you need to have the support of an international institution and an international legal profession to be able to do just that.
What is the most useful thing you've learned?
To be true to yourself. To be true to your principles, to follow your passions while trying to do the right thing. To share. To avoid judging. To me, it's very, very important to share, to learn to share with others and work with others. This is not just about the self. This work needs to be done in team, together. It's a profession where your courage will be tested. When you start you don't know if you really have it. And it's not something that's a given when you start. It's something that you'll learn to develop as the tests come your way and they will come. The more you test yourself, the more you'll get tested, the more you'll learn about yourself and discover the fabric you're made of.
Then, when you discover that you're made of something solid, you want to make sure that it serves others. Serving others is extremely important to me. It has always been a motor.
Any parting wisdom?
I believe that you can forge your own destiny and for that I encourage young people to think independently and follow their passions. They need to find a path and persevere relentlessly and with determination. I also encourage them to speak up when face with injustice or wrongdoings, not to hesitate to be provocative at times and to challenge conventional wisdom. This is how you forge your identity and move forward, on the path of change and hopefully progress on issues that really matter to you.
Elise Groulx Diggs | Doughty Street Chambers Associate Tenant | Principal BI for Business Integrity & Partners LLC
Over 30 years' experience
CV in brief
Studied Master of Laws (LLM) in Comparative Criminal Law and Human Rights at LSE | Certificates, Criminology and Criminal Law at Université Panthéon Assas (Paris II) | Bachelor of Laws (LL.B.), Law, Honors from Université de Montréal / University of Montreal | Bachelor's degree in Political Science from Université du Québec à Montréal (UQAM)
Previously worked as Of Counsel at Cabinet Geni & Kebe (Senegal), Cabinet Alkyne (France), Boyle Litigation (USA) | Lawyer at Hincker & Associates (France) | International Member at Perren Buildings | President of the International Criminal Defence Attorneys Association | President of the International Criminal Bar
Languages spoken French, English, Spanish
Exclusive interview by Lucie Goulet on 4 November 2015