The Justice Cascade: Political Scientist Dr. Kathryn Sikkink on Human Rights Prosecutions

What is the justice cascade and how did you choose that metaphor?

I started the research on this issue in the late 1990s. By then, I had already noted a significant increase in human rights prosecutions in Latin America.

I had been reading an article by legal theorist Cass Sunstein about a norms cascade, which he defined as the increasing legitimacy of new norms and practices. I took that term and twisted it a bit to form justice cascade.

The important thing to know about the justice cascade is that some believe that I mean true justice is being done everywhere in the world. That’s not what I mean and that’s not the case. We all know that there are many cases of individuals who are still immune from prosecution. But I do mean what Cass Sunstein meant -- that there is a new norm that state officials who commit crimes should be held criminally accountable for those crimes. There is new legitimacy for that norm.

People around that world used to think it was not possible to hold their state officials accountable. They assumed state officials could always stay immune from prosecution. Now that’s not the assumption any more. Now, whenever you have a new transition to democracy, like we saw recently in Egypt, immediately people in the streets start demanding prosecutions. In this case, they wanted prosecution of Mubarak for deaths that occurred in Tahrir Square.

That’s how I started using the term “justice cascade,” and it caught people’s attention so I decided to use it as the title of the book. I also get in arguments about it because many people find the term too optimistic -- that it implies the world is quickly becoming a place of full justice, and that’s not what I intended. I’m referring to a dramatic and important change in world politics [but] I know there’s a lot more work to be done to bring perpetrators of human rights violations to true justice.

As you point out, until the 1970s or 1980s, even after the post war Nuremberg and Tokyo trials, the idea that state leaders were immune from individual prosecution prevailed. Many see those trials and the more recent war crimes tribunals for Yugoslavia and Rwanda as the major stream of the justice cascade, but you point out other trends.

The book makes a couple of important contributions. First, I stress that international tribunals are not the only aspect of the justice cascade.

The international tribunals are very important and noteworthy, but most significant [are] human rights prosecutions as experienced in domestic courts around the world. Even if the international tribunals disappeared tomorrow -- they’re not going to -- the trend wouldn’t go away because it’s also embodied in domestic law and in domestic consciousness. People increasingly demand that their own courts hold their own former state officials accountable.

So it’s not just happening in international tribunals but also around the world in domestic courts. We may not always hear about these trials because they’re not as high profile as the international tribunals, but they’re equally important and they’re part of a decentralized, interactive system of global accountability that I see emerging.

That’s one contribution: the emphasis on these domestic trials is a crucial element of the justice cascade.

And a second contribution has to do with the impact of human rights prosecutions. There have been heated debates about whether or not countries should have human rights prosecutions, or whether or not the international tribunals should indict important leaders like President Bashir of Sudan for human rights violations. Many people fear that the demand for justice will undermine democracy or lead to military coups or damage peace processes, and that will worsen the situation rather than make it better.

In the book, I use a database of human rights prosecutions around the world to test whether prosecutions are associated with improvement in human rights. I find that, controlling for other factors that contribute to human rights practices, prosecutions have an independent and significant effect on improvement in human rights.

Your research is very impressive, especially on the idea that human rights prosecutions don’t result in further abuses or repression.

That doesn’t mean that in a particular country, prosecution could not temporarily make things worse. But there’s no evidence, as a general rule, that that’s the case. As countries try to decide what to do, some people say you can’t pursue individualized prosecutions because we all know that will lead to a military coup. Part of the purpose of this book is to say we don’t all know that. To the contrary, there’s not any systematic evidence to support the idea that human rights prosecutions undermine democracy, create conflict or worsen human rights situations.

You stress the idea of prosecuting state leaders, which evoked for me the Nuremberg principle of command responsibility -- rather than going after only low-level perpetrators, as with the United States handling of torture cases by American soldiers.

One of the characteristics of human rights violations is that sometimes the responsibility increases as you get further away from the actual person who pulled the trigger or committed abuse. We find that these kinds of violations often would not have happened if it weren’t for orders from above or whole situations that are created by powerful institutions and powerful leaders of those institutions that make soldiers or prison guards feel they have no choice but to carry out the orders.

There have been studies of what happened at Abu Ghraib prison, for example. One of the things we see is that the people who carried out abuse believed they had been ordered to do so. They believed that decisions had come from above, like the decision that the Geneva Conventions were not relevant because these individuals [the detainees] were not prisoners of war. So it is important also to hold higher level officials accountable who gave the orders or created the conditions for human rights violations.

You offer many striking examples of the effectiveness of prosecuting leaders and how that can end violence. Didn’t the Serb campaign against in Kosovo in 1999 end within a couple weeks of Slobodan Milosevic’s indictment as a war criminal?

Right. We believe -- and I use the “royal we” because on the statistical research I worked with very gifted graduate students and colleagues. I want to underscore that in the single-author book, I am very often referring to articles I have written with my graduate students and colleagues, like Hunjoon Kim and Geoff Dancy, who are doing important statistical research.

So we believe that the reason human rights prosecutions lead to improvements in human rights is that individual [leaders] are either deterred from committing future human rights violations because they know they’d be punished, or they’re incapacitated in the sense of someone like Milosevic. Once he was indicted and especially once he was sent to the Hague, he could no longer direct campaigns of ethnic cleansing and violence, which he had directed for years in the Balkans.

The same happened with [former Liberian President] Charles Taylor. Once he was forced into exile in Nigeria, the people in Liberia were still very afraid of Charles Taylor and the trouble he could cause from exile. They were so afraid of Charles Taylor that they did not want him tried in Sierra Leone or Liberia and felt strongly he needed to be tried in the Hague where he would be far away from cronies and allies who might mobilize to cause violence on his behalf.

I think one of the advantages of these indictments and prosecutions and detentions of individual leaders is that they help diminish the terrible fear people have of violent individuals who, until recently, had almost utter impunity.

You describe the origins of domestic prosecutions in human rights cases in Greece, Portugal and Argentina in the 1970s and 1980s. Did events in the United States in the 1960s such as the civil rights movement, the women’s movement and the anti-war protests affected the trend in other nations?

We have to remember that those trends in the United States were also going on elsewhere, especially in Europe. The events of the late 1960s were definitely important in the cases of Greece and Portugal.

Just as the rest of Europe was going through [these events], Greece was under a military regime from 1967 to 1974. The Greek military regime became very emblematic for the European student movement of the late 1960s. It was not just authoritarian and tortured its opponents, [but] it was also an ally of the United States in the Cold War. The United States insisted on supporting the military regime because they saw the Greek colonels as crucial allies in its anticommunist struggle.

I believe the Greek military junta -- just as later [Chilean President] Pinochet -- became symbolic for the student movement. When democracy returned to Greece in 1974, [students were] shouting and chanting for justice. The politicians, who were center right, could see that the times had changed and they knew they needed to respond to demands of the Left and students. Human rights prosecutions were one way they could respond.

It’s important to remember the political and cultural context of those trials. In Greece, you even have the importance of the movie Z that was shown all over the world and dealt with [human rights abuses]. It was very critical of [Prime Minister Constantine] Karamanlis, and he felt it was black stain on his reputation. Some historians speculate that he moved toward trials because he wanted to be remembered in a different way.

And you had a personal acquaintance with the situation in Argentina when the generals were tried for human rights crimes in 1985.

Yes. I was living in Argentina in 1985 and doing my dissertation, which was on a totally different topic: economic policymaking. But there I was and all of a sudden this historic trial was taking place in Buenos Aires. No country in Latin America had ever before put its former officials on trial for human rights violations.

The trials had a visitor’s gallery, and my husband and I went and watched what was going on. We knew people from our previous work in the human rights movement and we talked to them and interviewed them and we joined the marches in the streets. We followed the newspapers. It was a very dramatic time that we just happened to have had the opportunity to witness.

What inspired your interest in human rights issues?

My parents say I have to mention that I lived in Spain as a teenager under Franco, which I don’t mention in the book. My dad had a sabbatical in 1970 and took the whole family to Spain because it was a quiet, inexpensive place where a professor on half salary could live with his large family. We went to an international school in southern Spain.

My parents reminded me that we saw the very dying days of the Franco regime. It was much less repressive by then, but we saw Guardia Civil [national police] on all the street corners and we knew how frightened people were of the Guardia Civil. People didn’t want to talk about politics or the Civil War. They were extremely guarded even toward the end of the Franco regime.

More important, as a student just graduating from high school, I went to study Spanish in Mexico and learned about the student demonstrations and the repression of student demonstrations in 1968. And as an exchange student I went to Uruguay in 1976, and I lived the whole year during the darkest days of its military dictatorship.

It almost seemed that I was singled out to learn about repressive societies. Especially the experience in Uruguay marked me permanently. I always wanted to know why this had happened in Uruguay. How was it possible that Uruguay -- previously a progressive, relatively well developed, middle-class country in Latin America -- had suffered this terrible dictatorship? And of course, I got very interested in knowing what could be done.

The book traces not only my intellectual interest in these issues but it traces the personal journey as well.

How do you see the role of truth and reconciliation commissions, such as the commission headed by Archbishop Desmond Tutu in South Africa? How do these bodies tie in with the justice crusade?

In the Latin American cases, truth commissions were used frequently and often preceded prosecutions. That happened in Argentina where the truth commission came in 1983 and 1984, and the prosecutions came in 1985. In the case of Chile and later in South Africa, we got a truth or justice model. There was a fear of repercussions from prosecutions, so governments thought they might use truth commissions instead of justice. That was the Chilean truth and reconciliation model when they did not intend initially to have prosecutions. And then the South African model used in their Truth and Reconciliation Commission was that people would get amnesty if they told the truth, but if they did not tell the truth, the possibility for prosecution was available.

Basically, truth commissions and trials can be combined very effectively, and they can serve different purposes. Sometimes information first gathered by truth commissions can later be used in prosecutions. I argue that it’s a mistake to think of it in terms of truth or justice. Most places in the world that use truth commissions also hold trials.

With all these trends -- what I call transitional justice mechanisms -- there’s many things countries can do to address past atrocities. All are important such as truth commissions and reparations for victims. The criminal trials don’t provide any reparations, so you want to assure that victims receive financial reparations and other forms of reparation. There’s also memory work and incredible museums. I was in Uruguay recently, and visited the Memory Museum there.

I very much favor multifaceted and culturally sensitive responses to atrocity. Each country, with its distinct culture and its history, has to find its own way to address the past. Having said that, part of that package of transitional justice mechanisms must be trials if countries want to see the deterrent effect that our research shows.

The role of remembrance is very significant -- and it seems that we often encounter a collective amnesia in the United States about painful past events. You raise important concerns about our own human rights record and violations of international law, including violations of the Convention Against Torture in the past decade -- and you ask: is the United States Immune from the justice cascade? Can you talk about your findings?

In that chapter, I say that United States officials were aware of the possibility of prosecution, and one of the things done consistently in the Bush administration was to put in place policies that would make it very difficult to prosecute.

Now I use a term I didn’t use in the book, but I decided that what we had here is a de facto amnesty partly because legislation passed by Congress said that officials who engaged in abusive practices couldn’t be prosecuted if they thought what they were doing was legal.

So that the immunizes officials from prosecution for acts of torture, conduct at CIA black sites, and any other human rights abuses?

Yes. Basically I believe we have an amnesty here and we’re not likely to see criminal trials in the United States in the near future. But in other countries, there have been efforts to hold foreign prosecutions of U.S. officials for torture and extraordinary rendition. In the one I mention in the book took place in Italy, when 25 CIA agents were convicted in absentia, which is possible in the Italian judicial system, for an extraordinary rendition case where they kidnapped an individual from the streets of Milan and sent him to Egypt where he was tortured.

And just now, I’ve been following two civil cases for damages against [former Defense Secretary] Donald Rumsfeld. There’s cases in the federal district courts of Chicago and the District of Columbia. These cases involve three U.S. citizens. Two of them worked for defense contractors and one was a translator for the U.S. government, and all three were detained and tortured. They have brought civil cases for damages in U.S. courts and, at least the judges in the first instance have been sufficiently impressed by the cases that they have permitted them to move ahead. The judge in the Chicago case [observed] that it seemed impossible that a U.S. citizen would not have any standing to sue U.S. officials who committed gross violations against him.

We’ll see. It’s possible we may see some civil cases on these instances of torture.

What are your thoughts on our ambiguous relationship with the International Criminal Court -- and whether that relationship is evolving under President Obama?

Dr. Kathryn Sikkink: I think it’s very unlikely that the U.S. government will ratify the Rome Statute of the International Criminal Court in the short term. Having said that, it’s important that the U.S. government has changed its initial policy under the Bush administration of extreme hostility to the Court. Now, on a number of occasions, the United States has supported resolutions in the UN Security Council to have cases referred to the Court, so we recognized its legitimacy by supporting these resolutions.

I think there are things the U.S. can do despite a very hostile Senate that is unlikely to ratify the Rome Statute of the ICC. U.S. lawyers can be defense lawyers as well, and a crucial part of any human rights prosecution is that we provide protection for the accused. It’s not a human rights trial unless we assure that we respect the rights of the accused as well, and that’s a very honorable thing to do for U.S. lawyers to step forward and offer to be defense lawyers in ICC cases.

I think there’s a number of ways we can have a constructive relationship with the Court even though we’re unlikely to ratify [the treaty].

You’ve written a very hopeful and inspiring book. Do you have any further thoughts on the lessons from your research or what you’d like readers to take from your book?

I would like readers to take away the fact that the justice cascade did not happen naturally. It was not due to the natural evolution of law. It was due to struggle by people all over the world who believed in this idea of justice and worked very hard to make it happen, and especially many forgotten individuals in domestic human rights movements in places like Argentina and Greece and Sierra Leone.

I’d like people to know that dramatic change is possible, but it happens because people struggle hard to make it happen. We need to find that balance between appreciating and feeling hopeful that change has happened, but not being complacent to think that it will happen if we don’t all do our best to support justice in the world.