The Justice Cascade

Author’s Note: I wrote this piece about a week before Liberian strongman Charles Taylor was found guilty Thursday of aiding and abetting grave human rights abuses and war crimes in a historic verdict by the Special Court for Sierra Leone. Taylor’s conviction both reinforces the arguments offered by Sikkink (that are discussed below) and my criticisms of her argument. While Taylor’s conviction is important, it is indeed incredibly rare for a  head of state to be convicted in an international court, it also demonstrates the limited diffusion of the justice norm. No one can argue that bringing African human rights violators like Taylor, Omar al-Bashir, or even the now infamous Joseph Kony, to justice is an important development and evidences the diffusion of the justice. Similarly, the anomalous example of Latin America, where many leaders have been tried and convicted in domestic courts, represents the emergence and diffusion of the justice norm and its potential power. But, as I argue below, this norm will continue to be subverted until it is applied equally. In other words, when American, British, Israeli leaders or leaders of other Western countries, that are typically given immunity, are brought to justice like Charles Taylor has been, then we can say that the justice norm has universal acceptance. 

It is no longer shocking to hear that leaders of states that have engaged in alleged human rights abuses are unable to travel abroad without fear of arrest, indictment, and prosecution. Several senior level George W. Bush administration officials, including President Bush himself, have been the targets of international legal efforts at prosecution due to human rights abuses perpetrated in Iraq, Afghanistan, and Guantanamo Bay. The former foreign minister of Israel, Tzipi Livni, has had to cancel numerous trips to the United Kingdom because of efforts to hold her legally accountable for Israel’s wholesale massacre of hundreds of Palestinians civilians from December 2008 through January 2009. Once one of the most powerful men in the world, Henry Kissinger is no longer able to travel internationally because of similar trepidation. This is, however, a recent phenomenon in international politics. While the Nuremberg trials are perhaps the first such efforts to hold leaders individually and criminally accountable for human rights abuses, such prosecutions have only taken a more frequent and salient role in international politics since the 1970’s when they were first employed by Greece and Portugal. Indeed, as a generally accepted normative concept, the notion that individual leaders should be held criminally responsible for human rights abuses is an evolving phenomenon that has only been recently institutionalized and instantiated internationally by the 1998 Rome Statue of the International Criminal Court. Yet, the “justice norm” and the ICC itself remain problematic, as major powers are reluctant to fully compromise the sovereign immunity of their leaders.

In The Justice Cascade, Kathryn Sikkink addresses the evolution of this norm through an “agentic” constructivist approach, focused on norm emergence and diffusion. In common with all schools of constructivism, this agentic approach is “concerned with the role of human consciousness in international politics.” For Sikkink, and constructivists in general, “political realities are not permanent or inevitable, but are constantly being reaffirmed or reconstructed through political discourse and activity.” Norms, values, and even fundamental ethical principles are thus intersubjective and mutually constitutive. “Constructivists have conceived of and deployed a number of analytic frameworks that use ideas of mutual constitution to capture normative dynamics,” asserts Matthew Hoffman. In other words, norms arise through human interaction and the evolution of ideas. In one of the seminal works of constructivist literature, Alexander Wendt notes, “Actors acquire identities—relatively stable, role-specific understandings and expectations about self—by participating in such collective meanings. Identities are inherently relational.” Indeed, it is not only identities, but also norms and fundamental conceptions that are constructed through accreted norms, interactions, and identities. Wendt argues that even the fundamental “anarchic” depiction of international relations, which both Realists and Liberals subscribe to, is “what you make it.” In other words, anarchic international relations can be shifted to a system premised on cooperation through ideational transformation.

Far from fixed, immutable, codified principles, constructivists proffer a system of norms that is fundamentally dynamic and constantly changing. Even the preeminent structural realist Stephen Walt has noted, constructivism is perhaps the most befitting approach to explain change in international politics. Soviet President Gorbachev’s effort to reorient the Soviet Union’s strategic posture is a strikingly pertinent illustration of Sikkink’s agentic constructivism.

The “justice cascade” describes the increasing “legitimacy of the norm of individual criminal accountability for human rights violations and an increase in criminal prosecutions on behalf of that norm.” There are three central tenets that buttress this norm. First, is the notion that fundamental violations of human rights “cannot be legitimate acts of the state and thus must be seen as crimes committed by individuals.” Secondly, individuals that commit these crimes should be held accountable through prosecution. Finally, these prosecutions should take place with a respect for the rights of the accused who deserve a fair trial. She aptly uses the term “cascade” because it “captures how the idea started as a small stream, but later caught on suddenly sweeping along many actors in its wake.” While the central pillars of this justice norm seem unassailable, it was not long ago when different models of accountability prevailed. Three different models of accountability have traditionally been utilized: 1) the impunity model; 2) the state accountability model; and 3) the individual criminal accountability model. Following World War II, the impunity model and its emphasis on state sovereignty began to erode, with the state accountability operating as the “new orthodoxy” for successive decades. The justice cascade has challenged this orthodoxy, and has been particularly salient in democratizing and transitional countries.

Structural variables, such as the “third wave of democratization” and the end of the Cold War, aided and augmented the justice cascade. Yet, these structural factors cannot solely or fully account for the normative shift to the promotion of individual criminal accountability. For Sikkink, the purveyors of these norms, what she calls “norm entrepreneurs,” “started with some ideas about the need for individual criminal accountability and, by campaigning and agitating, helped make this norm global in scope.” Individuals like Luis Moreno Ocampo, the first and only ICC prosecutor and a prominent lawyer in the Argentine Trial of the Juntas, and Cherif Bassiouni, a law professor at DePaul University and one of the earliest and most strident advocates of inserting the individual into human rights prosecutions, militated towards diffusing a new norm regarding human rights abuses. Indeed, Sikkink notes that “the first change that needed to occur for the justice norm to advance was that international law had to begin to focus on the individual.” This normative shift could have arguably not come about through a top-down process, whereby powerful states, such as the permanent members of the United Nations Security Council, willingly sacrifice a key component of their sovereignty. This is surely why the United States has never ratified the Rome Statute. Rather, the justice cascade “started in domestic politics in the semi-periphery and diffused outwards and upwards through horizontal diffusion from one country to another, and then via bottom-up vertical diffusion from individual countries to international organizations and international NGOs.” Moreover, the sustained efforts of individuals like Moreno-Ocampo and Bassiouni furthered aided the active diffusion of ideas related to the justice norm.

While human rights prosecutions in Argentina, Greece, and Portugal had already taken place, the arrest of former Chilean dictator Augusto Pinochet in London in 1998 served as defining moment in the diffusion of the justice cascade. “His arrest personified and embodied the struggle over global justice,” notes Sikkink. “The Pinochet Effect,” as Naomi Roht Arriaza deemed it, engendered “an upsurge of other foreign prosecutions.” The 1990 Chilean transition was “pacted,” meaning the elements of the dictatorship negotiated with the opposition regarding the modalities of re-democratization. The brutal Pinochet remained the head of the armed forces and was appointed a Senator for life. In such transitions, it is highly unlikely that there will be any sort of human rights trials or truth commissions. Indeed, in the case of Chile, Garreton argues that the pacted nature of the Chilean transition hampered Chile from fully democratizing. It took foreign efforts to ultimately bring Pinochet to justice. His arrest in London due to a decision by the British Law Lords (essentially the British Supreme Court) that he could be arrested and extradited to Spain because of violations of the Convention Against Torture was truly a game changer in the diffusion of the justice cascade.

Through a quantitative analysis of human rights trials since the 1970s, Sikkink attempts to rebut the scholarly and political consensus regarding the ostensible “destabilizing” role of human rights trials and truth commissions. The conventional wisdom amongst academics and politicians alike was that “prosecutions for past violations were likely to destabilize new democracies.” Many feared that attempts to prosecute human rights violators, particularly in the armed forces, would foster situations ripe for military coups. Moreover, others argued that these prosecutions or the threat of such prosecutions would manifest further human rights violations by dictators that were attempting to maintain their grip on power. Stephan Krasner has argued, “attempts to bring even the leader of an abhorrent regime to trial could make it more difficult to promote democracy by making such leaders and their accomplices more desperate to maintain their hold on power.” This argument still has a great deal of currency and has been employed in the case of Sudanese President Omar al-Bashir. However, Sikkink demonstrates that these fears are wholly unfounded and that human rights trials and truth commissions have contributed to stability, engendered political cultures of accountability, and established salutary legal and normative precedents. Beginning in Argentina, and continuing throughout Latin America, such as in El Salvador, Guatemala, Chile, and Uruguay, human rights trials and truth commissions have been an important component of successful democratization in Latin America. Indeed, the empirical evidence speaks for itself, as Latin America has seen by far the most human rights trials and truth commissions and also has a remarkable paucity of authoritarian retrenchment.

Scholars frequently argue that countries must choose transitional justice or peace, but cannot have both. Moreover, any efforts at prosecuting human rights violators must take place in the initial phase of the transition. Again, Sikkink’s empirical argument, relying heavily on the Latin American experience with transitional justice, demonstrates otherwise. “The Latin American cases indicate that there are many possible paths for coming to terms with the past and that no one path is the necessary or feasible one,” notes Sikkink. What’s more, her data demonstrates that human rights trials can continue decades after a transition and serve no destabilizing role. Sikkink notes that most countries in Latin America have engaged in human rights trials or truth commissions with the glaring exception of Brazil. This, Sikkink argues, can account for the culture of impunity that is markedly pervasive in police violence in Brazil. Human rights trials in Latin America have ultimately had the exact opposite effect than what was often suggested by academics and politicians in the 1980s.

What calls the justice norm in to question is the posture of the United States vis-à-vis the ICC. The United States has not ratified the 1998 Rome Statute of the International Criminal Court and worked vigorously to undermine it by attempting to forge bilateral agreements with a host of signatories that would have given American citizens impunity. Of course, this runs counter to the whole purpose of the ICC and its universal jurisdiction. One of the glaringly flaws of the ICC that militates against the justice norm and Sikkink’s argument is the lack of an American imprimatur. “America would make itself truly exceptional, in the sense of choosing ideals over interest, if it broke with this pattern and staked its faith in international justice by turning over a citizen to the court, should the occasion arise. But that day, if it ever comes at all, is a long way off,” argues Michael Ignattieff. Sikkink argues that the Bush administration, which presided over a vast regime of torture from Guantanamo to Abu Ghraib, was actually cognizant of and responded to the justice norm. She notes four efforts that demonstrate the Bush administration’s concern over potential prosecution: 1) the CIA request for an advance pardon from the justice department; 2) the drafting of the “torture memos”; 3) the effort to provide prosecutorial protection for officials that engaged in interrogation; and 4) the destruction of evidence.

To be sure, the Bush administration actively sought out legal justifications, and often engaged in outright legal chicanery, in an effort to provide legal shelter of torture and rampant human rights violations. While this may have been due to the diffusion of the justice norm, that provides little succor to the victims of human rights abuses. American unwillingness to participate in the International Criminal Court not only undermines that justice norm it arguably subverts it altogether. This also lends credence to those who argue that the International Criminal Court is simply a tool for powerful states to prosecute human rights violators in the periphery. Indeed, most of the ICC indictments have been aimed at African violators. The case of Syria’s bloodthirsty dictator, President Bashar Assad, also demonstrates the ineffectuality of the court. While the diffusion of the justice norm has likely engendered a general sense that Assad should be held individually criminally responsible, the absence of an indictment demonstrates that major powers, like Russia and China, are simply not on board with the Court when it contradicts their interests. As Ignatieff notes, “creating an international court was supposed to rescue the possibility of universal justice from revenge frenzies, political compromises, and local partialities of national justice. International justice turns out to be as much the prisoner of international politics as national justice is of national politics.” Ultimately, Sikkink demonstrates that there has been a clear emergence and diffusion of the justice norm, but there is still a long way to go before this norm is unassailable and categorical. While, I agree with Sikkink that individual criminal accountability has been an increasingly accepted norm in international politics, I am less sanguine about the power of this norm in the face of American noncompliance. American compliance would certainly play an important role in the true universality of the court. Until then, Latin America serves as the most successful and desired model for individual criminal accountability for human rights violators.