Books Synopsis: The Justice Cascade

Kathryn Sikkink | The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (W.W. Norton: 2012)

by Chad M. Remus, a law student at New York University School of Law

Kathryn Sikkink’s book, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics, provides a personal, historical and empirical account of human rights prosecutions in international politics. As discussed below, its themes have direct and indirect implications for U.S. national security law and policy. The author describes the justice cascade as the emergence of a “dramatic new trend in world politics toward holding individual state officials, including heads of state, criminally accountable for human rights violations.” Traditionally, the prevailing model was immunity for both states and officials. Following World War II, the immunity model began to erode and would be replaced as the dominant model by state accountability, which continues to dominate in human rights regimes. Finally, a model of individual criminal responsibility began to develop through human rights prosecutions, with all three models continuing in existence today. Throughout the book, Sikkink focuses on the role that individuals, NGOs and states have played in creating, developing, and responding to the justice cascade.

In Part I, Sikkink examines the first instances, in Greece, Portugal and Argentina, of countries’ holding individuals accountable for human rights violations. In the Greek example, prosecutions were the result of a combination of external pressure, individual ambition, and state temperance. The external pressure stemmed from an Amnesty International report on torture which led to a claim against Greece, as a state, before the European Commission of Human Rights (ECHR). Individual accountability did not occur until Alexandros Lykourezos, an individual lawyer, utilized a Greek law allowing for civilian criminal prosecutions to charge the leaders of the military government with high treason. The government was then obliged to investigate the validity of these treason charges, and eventually successfully prosecuted several leaders. However, President Karamanlis refused to execute the military leaders, breaking from the traditional Greek political trials. Sikkink suggests that this decision gave the prosecutions more legitimacy in the long-term, because they could no longer be viewed as mere political vengeance.

Sikkink contrasts the Greek case with the Portuguese trials, where prosecutions were viewed as less successful. Portugal was not a member of the Council of Europe, and thus could not be brought before the ECHR. While the Portuguese system also allowed for civilian-led criminal prosecutions, these were not utilized by individuals. This lack of external pressure, combined with the government’s decision to hand down weak punishments after speedy trials resulted in a negative public perception regarding the trials.

While the prosecutions in Greece and Portugal were isolated and did not have a transnational impact, the prosecutions in Argentina had an effect that was felt across South America. Luis Moreno Ocampo was a young lawyer working on the prosecutions, and his team implemented a strategy of focusing on cases with sufficient evidence to sustain convictions, and then pursued the most attention-grabbing cases first. These first trials were highly publicized, capturing national and international media attention. They further instilled in the populace a sense of efficacy for the justice system and developed a national understanding of past abuses. When the prosecution encountered roadblocks in the form of amnesty laws, it sought international allies to gain leverage and bring pressure on their government from the outside, what Sikkink describes as the “boomerang effect.” In the Argentine example, domestic groups challenged amnesty laws before the Inter-American Commission of Human Rights and successfully brought cases to foreign courts in Europe. Judges in Argentina also had relatively high levels of autonomy which allowed them to overturn laws by combining domestic and regional human rights law. These early prosecutions, particularly those in Argentina which were highly publicized, altered expectations of prosecutions, and likely emboldened the citizenry to demand justice.

Part II examines the spread of individual accountability across regions and eventually, according to Sikkink, across the globe. While the end result of this “justice cascade” was the creation of the International Criminal Court, Sikkink focuses on the buildup to the Rome Statute and the efforts of individuals and organizations to develop norms and institutions to combat human rights violations. In 1968, Cherif Bassiouni authored a groundbreaking paper suggesting that individuals should have standing in international criminal law. This shift, spanning the three (previously) distinct fields of human rights law, humanitarian law, and international criminal law, affected accountability for perpetrators and reparations for victims. Bassiouni also drafted much of what would eventually become the Convention Against Torture (CAT) with a focus on individual perpetrators. Furthermore, Amnesty International played an invaluable role in convincing states to include a form of universal jurisdiction in the CAT, allowing for decentralized enforcement in any national judicial system against individuals.

In the early 1990s, the UN Security Council resurrected the use of international tribunals, which had laid dormant since Nuremberg, first with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY). Richard Goldstone, chief prosecutor for the ICTY suggested that several conditions needed to be in place for such a path-breaking tribunal. All of these factors converged in Yugoslavia; the Cold War had recently ended, media presented images of ethnic cleansing, and finally national and international NGOs were campaigning for the tribunal and swaying public opinion. The ICTY was important both for the resurrection of the use of international tribunals and for the impact that it had in the creation of other tribunals to deal with violations in Bosnia, Rwanda and Cambodia. The resolution of complex legal issues surrounding the ICTY, combined with the desire to prosecute individuals in Somalia and Syria, helped ease the US government’s reluctance to support an international criminal court. The US supported the original draft of the ICC which presented a relatively weak court. However, through the efforts of a large number of NGOs and the so-called Like-Minded Group of States (including Canada, Australia, Chile, South Africa, and several European countries), the end result was a strong and independent court, which was capable of ratification without US support. While international prosecutions were developing rapidly throughout the 1990s, domestic and foreign prosecutions continued to play an important role in the justice cascade, most notably the British decision that former Chilean President Augusto Pinochet was not immune from extradition based on the CAT.

In Part III, Sikkink uses empirical analyses to examine the effects of human rights prosecutions and considers whether the United States is immune to the justice cascade. The empirical analyses attempt to evaluate arguments presented by trial skeptics and enthusiasts, and to test conventional wisdoms about the impact of human rights trials. Sikkink finds that, contrary to conventional wisdom, prosecutions need not be brought immediately after transition in order to be effective. Another conventional belief is that a decision must be made immediately after the transition on how to proceed – whether to punish through prosecutions or to learn through truth commissions. The analysis shows that transitions are actually more effective when they combine these elements, rather than treat them separately.

Latin America, which has seen the most extensive use of human rights prosecutions, is also the region that has had one of the most stable democratic transitions, according to Sikkink, suggesting that prosecutions help rather than hinder democracy. Sikkink found that human rights prosecutions improve a country’s record of violating physical integrity rights. This impact was stronger both for countries with a long history of prosecutions and for those with a larger number of prosecutions. Sikkink also refutes the belief that prosecutions will exacerbate internal conflicts-the theory being that both leaders and insurgent groups may entrench themselves in war for fear of prosecution after the end of the conflict. Sikkink suggests that the rule of law and human rights prosecutions can develop simultaneously, working as mutually reinforcing processes. Human rights prosecutions also appear to have a positive effect on placing the military under civilian control and diminishing a culture of impunity. The data suggests also that human rights prosecutions have a cross-border effect, improving the human rights records of neighboring countries.

Sikkink examines the actions of the Bush Administration regarding torture post 9/11 to test whether the United States may be immune to accountability. She first examines the legal framework which binds the United States, both in international law through the CAT and the Geneva Conventions, and in domestic law through the War Crimes Act. Despite these legal obligations, the ICRC investigated actions taken at Guantanamo, and found the actions were “tantamount to torture.” Sikkink contends that many actions that seem to suggest American exceptionalism may have actually been taken in response to the justice cascade, in particular seeking immunities for CIA agents and narrowing the definition of torture. While senior officials have not been prosecuted, there have been prosecutions brought domestically before courts-martial against lower-level officials. There have also been attempts to prosecute senior officials overseas, and the threat of prosecution could make it difficult for these officials to travel internationally. According to Sikkink, these effects indicate the growing relevance of the justice cascade to deterring US violations of international norms.

In sum, the Justice Cascade includes at least two discussions that relate to US national security law and policy. First, Sikkink suggests that individual norm entrepreneurs and civil society actors wield significant power in effectuating changes in international justice and accountability – a factor with which US policymakers would have to contend in navigating international affairs. Second, she provides an optimistic account of the effect of human rights prosecutions in foreign countries – an effect which the United States must take into account when determining whether to support either forms of immunity or accountability in dealing with crises in other countries.

Harold Hongju Koh on Sikkink’s The Justice Cascade

An eminent political scientist deploys rigorous empirical research to prove that world politics has witnessed a dramatic new trend toward holding individual state officials, including heads of state, criminally accountable for human rights violations. Reviewing decades of prosecutions in Latin American courts, judicial outcomes following transitions in Greece, Portugal, and Spain, and the work of international criminal tribunals, Sikkink concludes: (1) that countries with human rights prosecutions tend to have lower levels of repression; (2) that prosecutions tend to work better when paired with truth commissions; and (3) that on balance, human rights prosecutions do in fact tend to deter human rights violations (Harold Hongju Koh).

Ryan Goodman on Sikkink’s The Justice Cascade

Kathryn Sikkink’s The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics is an important book. It involves the kind of social science scholarship that can inform policymakers. But does it provide “actionable” empirical evidence? Or is it too soon to base policy recommendations on the book’s findings? Here are three sets of questions that cast doubt on some of the book’s central empirical claims.

1. The world has experienced a “global” justice “cascade”? It is questionable whether the spread of accountability systems is truly global or accurately described as a cascade. For example, with the exception of such places as Cambodia, the Asian region seems to have hardly experienced the cascade. And countries in Latin America appear to represent the bulk of positive cases. For researchers and policymakers, the question should not be what factors caused a global cascade, but rather what factors caused a regionally uneven distribution. And why has the spread been largely limited to those specific areas of the globe and to particular countries?
The imagery of a cascade also suggests a unidirectional shift. There are, however, major setbacks that complicate such an account. Consider, for example, the outright rejection of universal jurisdiction at the Rome conference for the International Criminal Court, the revocation of universal jurisdiction in important national cases, and the lack of accountability for official torture policies during the George W. Bush administration.

2. Idealistic individuals changed the world? An alternative explanation that is not sufficiently tested in the Justice Cascade is that states and global power politics – not individuals, and not idealized norms – explain the rise of institutions such as the International Criminal Court. One needs more evidence and a research instrument specifically designed to test, for example, whether the Court’s formation primarily resulted from individuals (like Cherif Bassiouni) engaging in advocacy rather than alternative political explanations such as: the Court was largely the product of mid-level powers (e.g., some European states) acting in their political interest to counterbalance the United States.

3. War crimes trials do not generate political instability? Sikkink concludes that human rights trials tend to result in greater political stability and rights protections. Her conclusion is based on a correlation between trials and those political outcomes. That research design, however, does not exclude an equally, if not more, plausible explanation: the conditions that led countries to establish human rights trials (e.g., strong social institutions; a political culture of accountability) are the same conditions that led those countries to experience greater political stability and less repression. In other words, Sikkink concludes that A (human rights trials) caused B (less repression), but the truth may be that C (particular social and political conditions) caused both A and B to occur. In political science this potential oversight is called a “hidden variable” or “spurious correlation.” Among other implications, policymakers would be ill-advised to assume that trials will have such politically salutary effects when those other factors—particular social and political conditions—are absent.

The Justice Cascade is a valuable contribution for policy-makers who must strategically take into account the international forces that generate accountability institutions and the political effects of such institutions on the ground. Identifying gaps in Sikkink’s analysis thus provides an important caution for drawing policy lessons from the book. Identifying such gaps also helps to illuminate research paths that the next generation of scholars might follow.

Fionnuala Ní Aoláin’s Review of Sikkink’s The Justice Cascade

The Justice Cascade offers a sustained endorsement of the value and significance of human rights trials to address the rights violations of prior regimes. The book is rooted in a combination of quantitative and qualitative inquires combining case studies (Argentina, Greece, Spain and Portugal) with empirical database analysis systematically tracking domestic, foreign, and international criminal responsibility for past human rights violations. Sikkink makes a compelling case for a sustained trend to accountability. In doing so, she maintains positive trajectories for justice and democracy outcomes at the country level, and her findings contradict the skeptical positions of some scholars and policymakers who claim that the move to trial destabilizes regimes and undermines fragile democratic transitions. More provocative for some will be the claim that transitional countries in which human rights prosecutions take place are less likely to be repressive than countries without prosecutions.

Sikkink builds her case around the conceptual frame of a “justice cascade,” contending that social entrepreneurs across multiple jurisdictions committed to individual criminal accountability have succeeded in thickening and enabling norm diffusion. The claim to the cascade phenomena is rooted in “the idea that the most basic human rights … cannot be legitimate acts of state” (p13); connected further to the associated position that persons who commit such crimes should be prosecuted; and ultimately tied to the parallel view that all criminal defendants are rights-bearing subjects who have fair trial protections. The book’s claim to individual accountability has its limits; it does not cover the gamut of civil and political rights but rather a more narrow set of physical integrity rights, namely those rights that directly harm the body. Sikkink teases out a puzzle of norm emergence, which posits the intuition that of all transitional justice mechanisms it seemed least likely that human rights prosecutions would have emerged dominant given overarching interests of state and sovereign immunity. At the heart of unpacking the trend and its causes, is the book’s claim that a “decentralized but interactive system of accountability for violations of core political rights with fragmented enforcement, primarily undertaken by domestic courts” (p18) is emerging.

A core strength of the book is its case studies. All are rich with insightful nuggets about individual impulses, the serendipity of particular political moments, the human tapestry of relationships that made for the connective tissue of norm diffusion in action. The little-known cases of Portuguese and Greek transitions are probed and revealed to the transitional justice universe. Tellingly both domestically and internationally the contributions of these trials are under-appreciated and contextualized in ways that do not “fit” easily with a triumphalist narrative on the emergence of global accountability. The Portuguese case is briefly acknowledged to have almost entirely ignored the systematic export of repressive measures to its colonial territories. That brief acknowledgement leaves open a wider set of conversations about the ethnocentric reading of and accountability for mass crimes which Pierre Hazan has cogently revealed in his book Judging War, Judging History (Stanford University Press, 2010). The Greek study potently links the long local history of political trials as the frame of reference within which domestic constituencies (then and now) understand and place the prosecution of the military junta. The Spanish case directs the reader’s close attention to the pernicious effects of transitions by pact, and the long threads such agreements weave into the willingness to invoke criminal responsibility for human rights violators. In Argentina, Sikkink usefully demands that we think in elongated terms when measuring what constitutes a “successful” trial. Here, the reader is encouraged to think beyond the amnesty and pardons that came close on the heels of the initial criminal accounting. Instead, we are to look at the painstaking reconstruction of legal responsibility through innovative lawyering and the construction of memory politics utilizing law in the decades that followed. For Sikkink, the long-term subordination of the military to the democratic political system is intimately tied with the ongoing torrent of multi-layered accountability and constitutes a key measure of trial success. Thus, while her claims about the overall lowering of repression are linked to initiating trial processes, she acknowledges that there are a variety of social, institutional and policy mechanisms that contribute to a dense understanding of accountability in a democratic transition.

The book is written in a narrative style that connects highly personal story-telling with technical highly detailed data analysis. This duality infuses Sikkink’s narrative of the relevance of international criminal law. Here, a rich history of personalities and locales emerge — placing the human link in norm emergence at center stage. The key personalities flit between academia, NGOs, government appointments and international institutions forming a web of nebulous but effective relationships that spurs the growth of anti-torture, apartheid, disappearance and impunity norms. These norms become the bedrock upon which the multi-dimensional prosecution cascade is ultimately delivered. In all these sites, while setbacks and challenges exist they are muted in favor of a generally linear norm emergence story. The story is generally a triumphant one, emphasizing the upsides based on empirical data that underscores a measurable move to less political repression in these sites. While many agree that there are substantive political advances in transitional countries their optimism is more subdued. Challenges including the perniciousness of violence, the “quality” of the rule of law, the distributional inequalities that remain far beyond the transitional moment, and the lack of repair and reparation to victims are consistent motifs. The book celebrates a world in which “the political is not static” (p83). Individual criminal accountability is the product of innovation, persistence and endurance. The book broadly embraces the move by international NGOs to utilize both human rights norms and the law of armed conflict to hold both state and non-state actors accountable for serious breaches of international law. But some caution may be warranted here. The full implications of this embrace remain a work in progress. There is increased evidence that the move to embrace the laws of armed conflict, including the acceptance of the principle of distinction between combatants and civilians has had unintended consequences. The most forceful of these has arguably muted the willingness of certain prominent NGOs to fully and unequivocally critique the actions of democratic states in their targeting, detention and surveillance practices post 9/11.

The Justice Cascade makes a distinctively grounded contribution to the continuing debates concerning human rights accountability. The evidence garnered on democracy and rule of law provide some ground for optimism, but whether the substantive outcomes on the quality of democracy and justice in all sites are equal still inspires substantial critical energy. For many, the enterprise of transitional justice, including the institutionalization and professionalization of its empire has brought other complexities. These include the complexity of using law to curb violence, the “othering” of the subjects most likely to be in the contemporary gaze of criminal accountability, the utilization of criminal law to advance the interests of powerful states, and the dominance of legal form in addressing the production and control of cyclical violence in deeply divided polities. The Justice Cascade, while not directly engaging these issues, leaves open the productive space to consider them in the context of providing textured local histories and an abundance of data. For this alone the book is strongly recommended reading.

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November 14 2024

Books Synopsis: The Justice Cascade

Harold Hongju Koh on Sikkink’s The Justice Cascade

Ryan Goodman on Sikkink’s The Justice Cascade

Fionnuala Ní Aoláin’s Review of Sikkink’s The Justice Cascade

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Early Edition

Early Edition

November 14 2024

Books Synopsis: The Justice Cascade

Harold Hongju Koh on Sikkink’s The Justice Cascade

Ryan Goodman on Sikkink’s The Justice Cascade

Fionnuala Ní Aoláin’s Review of Sikkink’s The Justice Cascade

Further Reading

Featured Articles

Resources