Kathryn Sikkink on the Justice Cascade

Kathryn Sikkink, Regents Professor of Political Science at the University of Minnesota, is one of the most influential scholars in the field of international relations. She is well known for her works on human rights, constructivism, and transnational social movements, including her important book Activists beyond Borders, co-written with Margaret Keck. She is currently in Uruguay, where she is teaching international relations and following new developments in transitional justice in Latin America.

Dr. Sikkink spoke with Chris Tenove about the debate on peace versus justice, the decades-long fight for human rights, and about her new book, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, which recently won the Robert F. Kennedy Book Award.

The Justice Cascade isn’t a traditional academic book. In addition to statistical and historical analysis, there are also descriptions of your own field research and portraits of people you’ve met over the years. Can you tell me about your own history with these issues?

I start the book with my arrival as an undergraduate in Uruguay in 1976, at the darkest days of the military dictatorship. I point out that people at that time were not talking about individual criminal accountability for human rights violations. It was the same in Washington, D.C., from 1979 to 1981, when I was working with human rights groups. But in 1985, when I was a graduate student doing research in Argentina, the country was holding the unprecedented trials of nine members of military juntas for acts committed during the former dictatorship.

I use these stories to show that holding officials to account for human rights violations has gone from the almost unimaginable to becoming something that is not just possible but commonplace in some places in the world.

Let’s get to the heart of the argument of your book. What is the “justice cascade”?

I take the notion of “norm cascade” from legal theorist Cass Sunstein. For Sunstein, a norm cascade is a dramatic change in the legitimacy of certain ideas and practices.  We’ve gone from not being able to imagine holding officials accountable to thinking that it’s the natural thing to do. For example, in Egypt during the Arab Spring, one of the protesters’ immediate demands was that [President Hosni] Mubarak should be held accountable for the deaths of demonstrators in Tahrir Square.

Just to be clear, I’m not saying that all of a sudden justice is being done everywhere in the world, Hallelujah! But I want to insist that the legitimacy of certain ideas and practices has changed dramatically.

What kind of “justice” are you speaking about?

“Justice” is one of those words that, like “democracy”, means everything to everybody. It can mean economic fairness, for instance, which I’m not talking about. I focus on one fairly narrow form of justice, which is legal accountability. I’m narrowing it even further to individual criminal accountability.

This is different from state accountability, which is the main focus of the human rights system that was developed at the United Nations and in regional human rights courts after World War Two.

There’s also another, older kind of accountability, which is a kind of retribution or revenge. You see this when there are revolts or coups  and past leaders are lynched or murdered. I argue that it was essential to move away from accountability as political revenge. An essential aspect of a human rights trial is not just holding individuals accountable but also protecting the rights of the accused themselves. And I think that includes the absence of the death penalty. So if you look at the trial of Saddam Hussein, not only were there deep structural problems with the trial, but the decision to use a hasty and brutal death penalty meant it doesn’t fit our understanding of what a human rights trial should be.

We often hear that the criminal accountability for human rights violations arose at the Nuremberg tribunal after World War Two, went into hibernation during the Cold War, and then reappeared with the tribunals for Rwanda and the former Yugoslavia. But you tell a more complicated story.

Remember, my interest in this starts in 1985 in Argentina. That year, the new democratic government was putting on trial its former authoritarian leaders. So when I hear years later that nothing happened between Nuremberg and the formation of the ICTY [International Criminal Tribunal for the former Yugoslavia] in 1994, I say: That’s not true!

To continue the metaphor of water, I argue that two streams flow into the justice cascade. One is the international stream that starts at the Nuremberg and Tokyo and successor trials after World War Two, and gets picked up again with the ICTY and ICTR [International Criminal Tribunal for Rwanda] and eventually culminates in the creation of  the International Criminal Court. That’s a very important stream, and if you ask international lawyers that’s the story they will tell.

The other stream, which my book focuses on, is the stream of the domestic trials. I went to Greece and Portugal, which in the 1970s had the first domestic human rights trials of former leaders. Our database on human rights trials since the 1970s shows that domestic trials are more common. In fact, I call international and foreign trials an important back-up system to domestic trials.

There is one other important element, which I call the “streambed of hard law.” Some of the laws applied at the Nuremberg trial didn’t really exist at the time the crimes were committed. So there was a perception that the victors imposed their will on the losers, rather than apply the rule of law. I say this not to diminish the importance of Nuremberg, but we know it had those critiques.

The current justice cascade rests on a much firmer legal streambed. Countries around the world have worked to construct hard law through treaties, ratified by many countries, that include provisions for criminal accountability for human rights violations – including the Genocide Convention, the Geneva Conventions, and most importantly the Convention Against Torture (CAT). So it’s harder to accuse lawyers and judges of the ex post facto application of laws.

Let me put on the hats of some critics of the justice cascade. What about the idea that strong countries will use this kind of accountability to punish weak countries, but will ignore it themselves?

To bring this closer to home, I’ll talk about the United States. The U.S. has not ratified the Rome Statute of the International Criminal Court, and I don’t think we will in the near future, even though I think we should. But the U.S. did help draft and ratify the Convention Against Torture, including provisions for universal jurisdiction. Congress then implemented the Convention into U.S. domestic law. That framework was in place when the administration of George W. Bush decided to use torture and cruel and degrading treatment as a matter of U.S. policy. So the question is: What were they thinking? Were they ignorant of international law?

In fact, they knew very well about international law. At each step in the route toward using torture, Bush administration lawyers carefully built in protections against future prosecutions. I believe we can claim that they created a de facto if not de jure amnesty in the U.S. for those members of the Bush administration who were involved in torture.

The first years of the George W. Bush administration appear to be a confirmation of a realist understanding of international law – powerful states, if they choose, are able to flaunt international rules.

But we’re finding that in the longer term it has been a very costly episode. It has been costly to U.S. legitimacy and U.S. soft power in the world. It has been costly for our attempts to promote democracy and human rights around the world, because we’ve provided authoritarian governments with a script for how to avoid or challenge human rights laws.

There are also personal costs. For instance, in my book I tell the story of 23 CIA agents who were convicted in absentia in Italy. None of those individuals are likely to see prison, so you might say, “Big deal.” But there are European arrests warrants out for them. Some of the people who were convicted have lost their jobs – it’s hard to work for the CIA if you can’t travel. The former CIA bureau chief in Milan, Robert Lady, had great plans of retiring in Italy. He had purchased a beautiful estate, apparently, and he and his wife intended to retire there. Since his conviction he’s divorced, he had to sell his estate, he lost his dream of the future.

I won’t say that’s good enough, or that it is real justice. But I want to underscore that there are personal costs as well as political costs for the U.S. government and for officials who carried out policies that we all knew at the time were illegal, under both international and domestic law.

As leaders in countries all over the world have learned, self-amnestying yourself in domestic law no longer covers you when you leave your own country. Members of the Bush administration have to think carefully of where they travel abroad.

Another criticism of the justice cascade is that trials can actually be harmful to human rights or democratization.

Virtually all the people who argue that trials worsen human rights use counterfactual arguments. They say, “In El Salvador today, things look pretty good, and if they used prosecutions, things would be worse.” Well, actually, people can plausibly argue the alternative. I could say, “El Salvador is actually a pretty violent society today, in part because no one has been held accountable for human rights violations.” We can argue these counterfactuals forever without resolving them.

So my approach is to do a quantitative and comparative analysis, which takes us away from counterfactual arguments. Together with my talented colleague Hunjoon Kim, I analysed whether countries that use human rights prosecutions saw better or worse human rights practices afterwards. We found a statistically significant impact of human rights prosecutions on improving human rights practices, even when we controlled for all the other things we know are correlated with human rights, like country wealth, war, or levels of democracy.

In a particular country at a particular time, it’s very possible that a human rights trial might exacerbate the situation. But as a general rule that’s not the case. So scholars should be very careful before they advise countries not to have a trial because it will worsen the situation.

What is your take then on the “peace versus justice” debate?

There’s no doubt that one of the most important things you can do to improve human rights is to end a war.  But that is different from saying that trials undermine peace.  To examine whether we have to choose between peace and justice, we looked at countries that were in the midst of civil war. We found that even in these, prosecutions were correlated with improvement in human rights. We didn’t see evidence that prosecutions or threats of prosecution exacerbates war.

Perpetrators have an interest in telling us that prosecutions make the situation worse. Joseph Kony, who is indicted by the ICC, says he won’t end the destruction of villages and the kidnapping of people until the threat of prosecution is dropped. I call that blackmail!

The problem is not the ICC’s indictment of Kony. No, the problem is that Kony is a blackmailer and a murderer. The stories that Uganda or Sudan would be better off today without ICC indictments are more counterfactual stories. Other legitimate scholars say that Uganda or Sudan would be worse today without the ICC actions. We can’t resolve that debate, but our analysis shows that in general, trials in context of civil war don’t make things worse.

Another way you challenge the “peace versus justice” dichotomy is by saying that even when countries choose amnesties – choose the “peace” option – that trials often come in later years.

Yes. And my feeling is that if signing some kind of amnesty helps you get to peace in the short-term, fine. I don’t feel the ethical need to tell blackmailers “By the way, you should know that around the world these amnesties aren’t holding.” But that is what’s happening – around the world, amnesties are not holding.

This struck me as a theme of your book – when you analyze things over decades rather than weeks, a different picture emerges.

Looking for 30 years at these issues, I do see dramatic changes. Sometimes people who come to these issues are frustrated because things seemed stalled and they want more change. But one advantage of having a longer perspective is that I’m continually shocked at how things move ahead more quickly than I would have anticipated.

If someone had asked me two weeks before Pinochet’s arrest in London whether that might happen, I would have said “Never.” But it did. And I was recently in Brazil, which is the one Latin American country that had transitioned to democracy but hadn’t held individuals  accountable. But Brazil has now announced that it will have a Truth Commission, and there have been some recent attempts at prosecutions of officials.

The justice cascade takes me by surprise all the time.

Photo courtesy of Reuters