Vermont Judges Shape International War Crimes Law

by Allison Teague

Two Vermont judges, the Honorable Justice Shireen Avis Fisher and the Honorable Justice Patricia Whalen, have been breaking boundaries for decades, shaping laws in Vermont and internationally. Both began their careers during a time when there were no women in the Vermont judiciary. The appointment of Vermont's first woman state judge, Linda Levitt, by Gov. Richard Snelling took place in 1984; it took until 2010 to see Christina Reiss appointed as Vermont's first Federal Court judge.

In that context, it seems all the more remarkable that Fisher and Whalen are both serving as judges on war crimes at the International Criminal Court (ICC) at the Hague in Netherlands and in Bosnia.


The Honorable Shireen Avis Fisher


Shireen Avis Fisher began her legal career as a public defender in Vermont, focusing on juvenile justice cases, and went on to found her own litigation law firm. In 1986, she was appointed a Superior Court judge in Vermont, becoming the second woman to join the Vermont judiciary.

Most recently, in June of 2012, Fisher was elected to a one-year term as the presiding ICC judge of the Appeals Chamber of the Special Court for Sierra Leone. She currently is overseeing the appeal of the November 2012 conviction of former president of Liberia, Charles Taylor. Taylor is the first head of state to be found guilty of war crimes since the Nuremberg trials after WWII.

Leading up to her appointment as president of the Special Court, Fisher was a commissioner on the Kosovo Independent Judicial and Prosecutorial Commission, and served as an international judge in the War Crimes Chamber, Court of Bosnia and Herzegovina. Fisher adjudicated convictions for war crimes, crimes against humanity, and genocide.

Importantly, she also developed the court rules for victim and witness judicial protection measures, and established the Court of Bosnia and Herzegovina Advanced Judicial Education Program.

Her colleague, Patricia Whalen, J.D., has just returned from Bosnia to Vermont. Whalen has served since 2007 as a justice for the International War Crimes court, having been selected because of her experience harmonizing civil and adversarial systems of law. Whalen's international work began with Fisher when, as a colleague and a fellow member of the International Association of Women Judges (IAWJ), Fisher tapped Whalen in 2002 to help draft The Hague Maintenance Convention, an international treaty on child support.

"We really enjoyed working together," Whalen said. "We approach issues in a similar fashion."


The Road Less Traveled

Whalen's professional career is as impressive as Fisher's: justice at the International Criminal Tribunal for Bosnia, official representative to the Hague Conference on Private International Law for the International Association of Women Judges, Vermont project director of the Afghan Women Judges Judicial Education Project, and founder of the Rural Women Leadership Institute of Vermont.

Whalen sees the bridge to her work with the War Crimes Chamber in Bosnia-Herzegovina, starting years ago, before law school. Her work with women and children began because of a pre-law school experience with a neighbor who had been so severely abused by her husband that she lost the fetus she was carrying. "While I was with her at the hospital," Whalen said, the husband "shot himself in the foot, and she got off her gurney to take care of him. That one night taught me everything I needed to know about domestic violence."

Realizing the legal system rarely provided either justice or recourse for victims of this kind of violence, Whalen decided she wanted to change that, and began attending law school part-time.

She was working three days a week at the time at the Brattleboro Women's Crisis Center, which she had helped start, and because of the importance to her of that work, did not want to attend school full-time. She said that path took longer but the work at the center was important to her.


The Honorable Patricia Whalen, J.D.

Later, during graduate law school, Whalen landed a Reginald Heber Smith fellowship to study battered women's issues. This led to her wanting to work in Legal Services, which provides services to those who cannot typically afford them. Judges mentoring her graduate work at the time told her: "If you work for legal services, you will get nowhere." She responded: "It's everything I want to do. I want to work with women and children and low income families."

In 1985, "when Madeleine Kunin became [the first and only female] governor of Vermont," said Whelan, "she dramatically changed the face of the Vermont judiciary by appointing women, and women from nontraditional backgrounds." Largely because of to her academic interests, her background at Vermont Legal Aid, and her experience working to support battered women, Whalen earned one of those appointments, as a Family Court magistrate in 1990.

Whalen said that Family Court was considered a "pink collar" job that nobody with career aspirations would want. "Women's issues weren't anything anyone cared about" back then, she said.


Pioneering Work

Justice Whalen began working under a new national statute that had created guidelines around divorce and custody. "Much of what we did setting up the child support system was pretty interesting work," she said about this period of her career.

Meanwhile, a decision to care for her ailing parents required more of her time, so the State Supreme Court and the Legislature agreed to create a "job-share judicial position," reasoning, she said, that the state would be getting a good deal by having two people share one judgeship.

Whalen said that after her parents died, she found she had more time to pursue other interests, and she began working with the International Association of Women Judges through her friend and former Vermont District Court judge, Shireen Fisher. The two worked on projects internationally, a collaboration made possible by Whalen's part-time schedule, which she said, "ended up opening a whole new opportunity."

In 2002, when Fisher asked Whalen to help draft The Hague Maintenance Convention, Whalen explained that they "embarked on a five-year treaty process. Then I was…appointed to work on a review process of a parental abduction treaty."


That international treaty centered "on child support and maintenance," Whalen said. "Working on a Hague treaty, you learn about other legal systems, delivery of law in an adversarial system, and you learn how to harmonize" civil and adversarial law systems between nations.

Fisher, who while working on international criminal law had been appointed to the court in Bosnia, was so impressed by Whalen's work that she encouraged her to apply as well. "At the same time, I was recommended to the Bosnian court by the [Hague Conference on Private International Law] head, J.H.A. Hans Von Loon" Whalen said, because of "the work we did harmonizing civil and common law codes so that implementation of any treaty could be implemented in both systems" of national and international law.

"The Court of Bosnia and Herzegovina is a hybrid form of law combining civil and adversarial law," she explained. It was a job that seemed custom-fitted to her experience.

Sarajevo Tribunal

Whalen was appointed in 2007 to the Court of Bosnia and Herzegovina War Crimes Tribunal in Sarajevo. "To be honest," she said, "the system of how cases in these courts [are adjudicated] is more similar to family than criminal courts. It was not a difficult transition. The thing that is interesting to me in family court is you have good people [who] once loved one another doing unspeakable harm to one another," Whalen explained. "That's exactly what happens in war—neighbors who liked each other previously are doing unspeakable evil to one another."

All the war crimes cases she heard came out of the civil war in Bosnia and Herzegovina from 1992 and 1995. The conflict was mainly among three groups: the Bosnian Serbs, who are Orthodox Christian; the Bosniaks, who are Muslim; and the Bosnian Croats, who are Catholic. The court found that elements within the Serb army had conducted an "ethnic cleansing campaign" that included unlawful confinement, murder, rape, sexual assault, torture, beating, robbery and the shelling of civilians. Homes, businesses, and places of worship were intentionally destroyed.

"I believe in accountability, and I think these crimes are enormous crimes," Whalen said. "Genocide is a crime that strips us of all our humanity. It's very difficult to contemplate that people can do that to one another.
"A rule of law demands that there is investigation and accountability, and I think that is being demanded by most concerned people," she said, clarifying: "That civilians can be targeted. We can all agree that at the end of the day these crimes reach the definition of war crimes."

International Family Law

Whalen sees a connection to her earlier local work. "In terms of the issues that are confronting the state of Vermont [such as] domestic violence and gender violence, it's not all that different from gender violence against women in war. It originates from the same place. The issues are the same. And child support has to do with how we can make sure a child gets their fair share of parents' resources in order to maintain a healthy welfare level. That is the issue. How do we make sure the children have adequate financial resources, housing, food, and medical [care]," Whalen said, and judging these "is no different in Vermont than in Bosnia and Herzegovina."

While her "Hague work was really about international child support," Whalen said, it was also an acknowledgement by the global society that families are no longer just a local phenomenon. Children in one country can have a parent in another country. In that way it is not so different to resolve than if a child's parents are in Vermont and in California.

"Internationally, there were neither mechanisms for enforcement of foreign orders nor a mechanism to send child support [OR?] alimony throughout the world. It was part of the furtherance of the work I did in Vermont, [but adding] to a global perspective.

"The war isn't really over here," she said, speaking from Bosnia in October of 2012. "The fighting has stopped, and the killing has stopped, but it's a country that still has issues to work through."
"We all have a responsibility," Whalen reiterates in this most recent interview. "With human rights, you have to be vigilant."

Fisher, Sierra Leone and Gender

Meanwhile, under newly appointed Justice Shireen Fisher, the Special Court of Sierra Leone has now gone further in addressing gender-sensitive mandates, recognizing that some atrocities in that country's conflict specifically targeted women and girls. As a result, the Special Court's statute includes crimes against women and girls, and makes provision for gender-sensitive justice mechanisms.

On completion of the Special Court's mandate, Fisher addressed the U.N. Security Council at the United Nations in early October 2012, noting the significance of Sierra Leone Special Court. "For the first time in the history of international tribunals, the four principals, the president, the prosecutor, the registrar, and the principal defender, are all women."

The Special Court's gender-sensitive mandate expressly includes these crimes: "rape, sexual slavery, enforced prostitution, forced pregnancy, and other forms of sexual violence, as well as the abuse of girls under 14, the abduction of girls for immoral purposes, and the conscription and use of girls and boys under 15 as soldiers."
Fisher's work with the Sierra Leone Special Court is part of a historic contribution to the understanding of the impact on women and girls of armed conflicts, and reflected that understanding in its jurisprudence and treatment of survivors in post-conflict justice.

Fisher and her colleagues considered both the physical and psychological trauma caused by these crimes, allowing the court to expand the list of crimes that target women and girls, most notably by recognizing, for the first time, forced marriage as a crime against humanity and sexual violence as an act of terrorism.
The Sierra Leone Special Court acknowledged these harms and incorporated contextual and experiential realities into law. Rape and sexual violence were often consequences of being forced to become "rebel wives," and the court made clear that, given the use of force, that action was a crime, even absent evidence of rape. The court established gender-sensitive education and outreach, as well as gender-sensitive management of the court.

Fisher acknowledged the U.N. Security Council for creating a "credible system of post-conflict justice that meets international standards," she said. It was the "first hybrid tribunal created to assist a state that desired post-conflict justice, but did not have sufficient capacity to ensure it."

The Sierra Leone Special Court is the first U.N.-sponsored tribunal to carry out its work in the territory where serious violations of international humanitarian law were committed, "ensuring that the survivors of the conflict are participants in justice, not merely bystanders to it." And Fisher told the council, "It was successful…a proven model… (whose) example should dispel doubts."

Bringing it Home

Whalen explained that because international courts are very expensive, their trials are going to start being held in the "sitting country, leaving behind international infrastructures." She hopes that future war crimes trials can now safely be resolved on the national soil where they occurred.

However, as in the case of former Sierra Leone president, CharlesTaylor—whose trial was moved to Sarajevo because a local trial could not ensure his safety or that of witnesses against him—the prosecution of heads of state may still require an international setting.

From her Vermont home, Whalen said her interest in international law continues. "I'll most likely go back to do work at the International Criminal Court in some capacity in 2013." In the meantime, she is "reverting to my Irish roots and playing char maid." She's been cleaning and organizing three adult children's "stuff," as well as rediscovering her own things. "I haven't found my long johns or winter coats yet," she laughed. "Since I've been back, I haven't wanted to stick even a toe out the door."



Allison Teague of Putney is a writer, an artist, and a regular contributor to Vermont Woman.