The most contentious finding of the Commission of Inquiry report is that crimes against humanity were committed by the regime. Although North Korea is not a signatory to the Rome Statute (nor is the US), these crimes could in theory be referred by the UN Security Council to the International Criminal Court (ICC) for indictment. China has signaled clearly it will veto that move, but it provides yet another interesting example of the emerging norm of individual accountability. How did we inch away from the concept of sovereign immunity toward the idea that political elites could be indicted for gross abuses of human rights?
Kathryn Sikkink’s readable and deeply researched 2011 book The Justice Cascade tells the story. The metaphor of a “cascade” rests on the idea that several distinct streams ultimately joined in the negotiation and ratification of the Rome Statute in 1998 (entering into force in 2002). The crucial precedents of the Nuremburg and Tokyo trials were followed by a long hiatus, but the Genocide and Geneva Conventions provided a “streambed” of hard law on which subsequent international efforts built. Common Article III of the Geneva Conventions contained particularly influential language prohibiting “at any time and in any place whatsoever” murder, cruel treatment, torture and “outrages against personal dignity, in particular humiliating and degrading treatment.” If such violations of core rights were prohibited in wartime, why should they be allowed in any other context?
The next efforts occurred not at the international level but in Greece and Portugal following the collapse of their dictatorships in the 1970s. The trials of the Argentine generals after the return to democracy in that country had particular impact, as did the stunning decision on the part of the British to honor a Spanish extradition request for Augusto Pinochet in 1998 (he was subsequently deemed too ill to stand trial, but the point had been made). By Sikkink’s count, no fewer than 48 countries (through 2008) have subsequently had transitional human rights prosecutions and another 28 have established “truth and reconciliation” commissions.
The international stream gained force around the negotiation of the Convention Against Torture (1987) and the establishment of international tribunals for the former Yugoslavia and Rwanda. An important innovation of the Convention Against Torture was the concept of universal jurisdiction: the idea that for certain egregious crimes, international organizations or states can claim criminal jurisdiction over the accused regardless of where the alleged crime was committed or the accused's nationality. Sikkink provides a particularly readable narrative of how a group of intrepid lawyers—from Northern Europe and new developing democracies in particular—pushed the doctrine of individual criminal accountability forward into the 128-article Rome Statute that created the ICC.
The second half of the book turns to the question of whether such prosecutions matter, and on this issue a lot of academic fur has flown. Sikkink emphatically argues “yes.” Leading with the effect of human rights prosecutions in Latin America she notes that none of these countries have witnessed reversals of democracy as a result of going after past dictators. She walks through the research leading to her important 2001 article with Ellen Lutz on the issue (also called "The Justice Cascade") and extends it to a global sample in Chapter 6. She—and her critics—are interested not only in the question of effectiveness, including whether prosecutions improve human rights and deter reversals of democracy. She is also interested in the mechanisms through which these outcomes emerge, including the diffusion of norms as well as deterrence through punishment. She claims that countries with prosecutions subsequently have lower levels of repression than those without, controlling for a battery of other covariates in some simple, cross-national panel models.
Critics—including my colleague Emilie Hafner-Burton, whose book we also reviewed—reach quite different conclusions. In a groundbreaking 2001 article, Oona Hathaway argued on the basis of a newly-created dataset that compliance was weak and that being a signatory of a human rights convention could even have perverse effects; Hathaway was followed by a raft of other work on the torture convention in particular. Hafner-Burton made influential contributions of her own in this vein and surveyed the field in another widely-cited piece with James Ron in World Politics (.pdf at Project Muse). Hafner-Burton and Ron found that while qualitative studies tended to champion the benefits of the human rights regime and prosecutions in particular, the quantitative evidence tended to find little or even perverse effects. Of particular interest in this regard was the way that threatened prosecutions might delay civil war settlements if combatants knew that they were vulnerable to prosecution. Most recently, Sikkink and Ann Marie Clark have responded in Human Rights Quarterly (again, .pdf via Project Muse) showing how the dominant datasets for measuring human rights abuses might mislead. Having worked with parallel measures of democracy, we are highly sympathetic with the claim that our knowledge is likely to change as measures get more refined; this debate is not settled.
Three concluding chapters address the question of the US and wade back into questions of international relations theory as well as ethics. The US chapter argues that while the Bush administration did act with impunity, it also showed tremendous concern with the international law (the so-called “torture memos”) despite the fact that it was not a signatory to the Rome Statute. US participation in the ICC raises serious issues—such as the constitutional promise of a jury trial—as well as more political ones, such as the long-standing resistance on the part of some to virtually any binding international legal obligations. Critics have argued that signing the Rome Statute would subject the US to the indictment not only of leaders but soldiers who are simply doing their jobs. But if US leaders or soldiers were to engage in systematic human rights abuses, they should be indicted and tried. The whole point of supporting universal human rights is that we subject ourselves as well as others to the responsibilities associated with upholding them.
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