Perpetrators on trial: The justice cascade
One of the most shocking scenes in Mad Men, the popular TV series about the hard-drinking advertising scene of the 1960s, occurs in the pristine upstate New York countryside. After an idyllic family picnic, Betsy Draper shakes out the family’s litter-filled blanket onto the grass and returns to the car. Just like that. Our level of disbelief at her carelessness illustrates the rise of general environmental awareness over the last 50 years. Sometime between the early 1960s and today, leaving your trash behind in nature became unacceptable to most of America.
How, when, and why we see these kinds of changes in what one could call ethical common sense — norms not only of acceptable behavior, but also of the consequences attached to unacceptable behavior — is the focus of Kathryn Sikkink’s groundbreaking book The Justice Cascade. Rather than environmental awareness, Sikkink zeroes in on the rapid rise of the idea that political and military leaders can be held individually and criminally accountable for violating human rights.
Since the mid-1970s, Sikkink writes, “there has been a shift in the legitimacy of the norm of individual criminal accountability for human rights violations and an increase in criminal persecutions on behalf of that norm.” The consequences of this shift can hardly be overstated. Former heads of state who long thought themselves protected by the age-old principles of national sovereignty and sovereign immunity — the idea that a country’s leader can do whatever he wishes to his own citizens and cannot be prosecuted for his actions — are now likely to find themselves in court if they are not already languishing in prison. The list has been steadily growing: Argentina’s Videla and Massera; Uruguay’s Bordaberry; Serbia’s Mladić; Liberia’s Taylor. To be sure, the Obama administration has not ratified the International Criminal Court and has not been willing to investigate violations of human rights by U.S. government officials. But Donald Rumsfeld and Dick Cheney are now forced to think twice before boarding a plane to Europe, where there are several universal-jurisdiction cases running against them and the other architects of Bush-era torture policies.
Sikkink’s book traces this trend from its origins in the post-World War II Nuremberg Trials, via its more recent but still largely happenstance manifestations in post-dictatorial Greece and Portugal, to its consolidation in Argentina in the 1980s. In her riveting and crystal-clear account, Sikkink changes our understanding of transitional justice in four important ways. First, she shows that the change in norms did not happen by itself, but was the result of work by small groups of activists — “norm entrepreneurs” — whose creativity and persistence helped change the perception and legal practice of entire societies. Second, she shows that the trend toward individual criminal accountability is contagious in several ways. Activists in one country inspire and collaborate with others. National judiciaries look at each other as examples and changes in norms are eventually integrated into treaties and international law. Third, she points out that, despite the visibility of international tribunals, most human-rights prosecutions occur in domestic courts.
Finally, Sikkink produces social-scientific evidence to demonstrate that trials have a positive effect on human rights violations. Based on the first global database connecting the two phenomena over more than three decades, Sikkink’s research shows that “countries with human rights prosecutions have better human rights practices than countries without prosecutions”; that “transitional countries that have experienced more prosecutions over time (and thus a greater likelihood of punishment for past violations) have better practices than countries that have had no or fewer prosecutions”; that “countries are more likely to use prosecutions if they are already being used by other countries in the region”; and that “the presence of human rights prosecutions in geographically proximate countries surrounding a particular country significantly decreases the level of repression for that country.”
A political science professor at the University of Minnesota, Sikkink has studied transitional justice for many years, first as an exchange student in Uruguay in 1976 during that nation’s dictatorship and then as an intern with the Washington Office on Latin America (WOLA), at a time when Jimmy Carter made human rights a cornerstone of US foreign policy. She was in Argentina during the first trials of the military Junta leaders in 1985. This personal involvement allows Sikkink to intersperse her book with poignant personal anecdotes. It also means that she is compelled to look back on her own changing awareness of what was necessary and possible in the face of human rights violations. “For almost two years,” she writes about her time at WOLA, “I was part of a network that later became a main advocate for individual criminal prosecution, and yet I cannot identify the instant when the idea first appeared and started to flourish.”
Sikkink’s work fundamentally reframes the debate over the merits of domestic and international human rights prosecutions, particularly in the context of democratic transitions. Until now, that debate was largely cast as one between naive, quixotic idealists and skeptical pragmatists. “In an ideal world, the guilty would be held accountable,” the latter would argue, “but in the real world, prosecutions are unwise and risky.” According to this view, a country emerging from a period of civil violence can have either peace or justice, but not both. Sikkink’s research allows us to move past this seemingly insurmountable division; she shows that, in many cases, prosecutions are in fact the most pragmatic solution.
At the same time, she points out that justice, as an ideal, is treacherous. Given what is at stake, human rights trials almost always disappoint every party involved, including the victims, who “are ultimately disillusioned with institutions that can neither heal their broken bodies and minds nor return their loved ones.” Nevertheless, Sikkink’s painstaking, evidence-based approach shows that, however slow and uneven, the progress has been real.
The Justice Cascade contains painful lessons for countries that have resisted human rights prosecutions, including Spain and the United States. If Spain’s democratic transition in the late 1970s did not result in any prosecutions while those of Greece and Portugal did, it was not only due to the fact the Franco regime could negotiate terms but also because the notion of accountability was only just emerging. At this date, many trials are off the table because most perpetrators are now dead. Still, as Sikkink told Scott Horton last year, “although criminal accountability for human rights violations from that period is no longer possible, other forms of accountability are needed. In particular, many family members still hope to locate the remains of their relatives, to rebury those remains, and to know more about the circumstances that led to the deaths. Such truth-telling is still necessary and possible, even if individual criminal accountability is not.”
For the United States, to which Sikkink dedicates a whole chapter, the chickens are bound to come home to roost. “The people whose positions carried the day within the Bush administration,” she writes, “believed they were operating in a realist world where international law and institutions are quite malleable to exercise of hegemonic power.” They were wrong. Unless the United States adapts to the justice cascade, it will have a difficult time maintaining its “claims to leadership in the area of democracy and human rights” both in the United States and abroad.
Sebastiaan Faber is Chair of ALBA’s Board of Governors.