The Justice Cascade: The Origins and Effectiveness of ... · Origins and Effectiveness of...

LS09CH13-Sikkink ARI 26 September 2013 13:42

The Justice Cascade: TheOrigins and Effectiveness ofProsecutions of HumanRights ViolationsKathryn Sikkink1 and Hun Joon Kim2

1Department of Political Science, University of Minnesota, Minneapolis, Minnesota 55455;email: [email protected] Asia Institute and School of Government and International Relations, GriffithUniversity, Queensland 4111, Australia; email: [email protected]

Annu. Rev. Law Soc. Sci. 2013. 9:269–85

First published online as a Review in Advance onAugust 19, 2013

The Annual Review of Law and Social Science isonline at http://lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev-lawsocsci-102612-133956

Copyright c© 2013 by Annual Reviews.All rights reserved

Keywords

human rights violations, prosecutions, truth commissions, deterrenceeffect, diffusion

Abstract

The justice cascade refers to a new global trend of holding politicalleaders criminally accountable for past human rights violations throughdomestic and international prosecutions. In just three decades, stateleaders have gone from being immune to accountability for their humanrights violations to becoming the subjects of highly publicized trials inmany countries of the world. New research suggests that such trialscontinue to expand and often result in convictions, including some ofhigh-level state officials. This article summarizes research on the originsof the justice cascade and its effects on human rights practices aroundthe world. It presents evidence that such prosecutions are affecting thebehavior of political leaders worldwide and have the potential to helpdiminish human rights violations in the future.

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INTRODUCTION

A new trend in world politics toward account-ability for past human rights violations is takingplace simultaneously in international courts,foreign courts, and domestic courts of the coun-try in which the human rights violations oc-curred. These international, foreign, and do-mestic human rights trials are all part of aninterrelated trend that Lutz & Sikkink (2001)have called the justice cascade and Sriram(2005) has called a revolution in accountabil-ity. The justice cascade is a rapid and dramaticshift in the legitimacy of the norms of individualcriminal accountability for human rights viola-tions and an increase in actions (such as trials)on behalf of those norms (Sikkink 2011). Thistrend has led social scientists to make humanrights crimes a higher priority, generating anew wave of research on accountability (Struett2008, Savelsburg 2010, Olsen et al. 2010,Kutnjak Ivkovic & Hagan 2011).

This article provides an overview of the ar-guments about the origins, spread, and effec-tiveness of prosecutions for individual criminalaccountability for human rights violations. It isorganized around three big questions:

1. What are the origins or sources of newideas and practices concerning individualcriminal accountability for human rights?

2. How and why have these ideas spreador diffused across regions and, ultimately,across the globe?

3. What is the impact of these trials?

In particular, we ask if prosecutions of humanrights violations actually help prevent futurehuman rights violations.

The justice cascade is nested in a larger normcascade around accountability for past humanrights violations. Since the 1980s, states havenot just been initiating trials; they have alsoincreasingly been using multiple mechanisms,including truth commissions, reparations, lus-tration or vetting, museums and other memorysites, archives, and oral history projects, toaddress past human rights violations (Barahonade Brito et al. 2001, Roht-Arriaza 2002, Jelinet al. 2003, Teitel 2003, Roht-Arriaza &

Mariezcurrena 2006, Stan & Nedelsky 2013).These measures are often referred to as transi-tional justice, which is commonly understoodas “the conception of justice associated withperiods of political change, characterized bylegal responses to confront the wrongdoings ofrepressive predecessor regimes” (Teitel 2003,p. 69). The increasing use of these practices at-tests to a broader accountability norm cascade,of which the justice cascade is only one part.A close examination of the origin, diffusion,and impact of prosecutions of human rightsviolations throughout the world, however, hasimportant theoretical and policy implications,as the importance of criminal prosecutionsremains unrivaled compared with that of otheraccountability measures (Freeman 2006).

THE INDIVIDUAL CRIMINALACCOUNTABILITY MODEL

The emergence of the justice cascade followsdecades of efforts to have greater legal account-ability for past human rights violations. Ac-countability refers to practices by which someactors hold other actors to a set of standards andimpose sanctions if these standards are not met.There are many forms of accountability: Legalaccountability is the requirement that “agentsabide by formal rules and be prepared to justifytheir action in those terms in courts or quasi-judicial arenas” (Keohane & Grant 2005, p. 36).States have used three different models of ac-countability for past human rights violations:(a) the immunity, or impunity, model; (b) thestate accountability model; and (c) the individ-ual criminal accountability model. The immu-nity model, under which no one is held account-able for human rights violations, has historicallybeen by far the most common of the three. Un-der the state accountability model, the state isheld accountable, and it provides remedies andpays damages. Under the individual criminalmodel, individual state officials are prosecuted,and if convicted, they go to prison.

Prior to the 1970s, the immunity model wasthe norm, and state officials were protectedfrom any individual legal accountability for

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human rights violations. There were isolatedhistorical examples but no sustained attempts ateither domestic or international prosecutionsof human rights violations until after theSecond World War (Bass 2000, Elster 2004).The seeds of the justice cascade began with theNuremberg tribunals after World War II, andboth the Nuremberg and Tokyo trials werein many ways both the beginning of the trendand the exception that proved the rule: Only incases of complete defeat in war was it possible tohold state perpetrators criminally accountablefor human rights violations. The new humanrights treaties that states started drafting afterWorld War II primarily used a state account-ability model in which the state as a whole washeld accountable for human rights violationsand was expected to take action to remedythe situation. Much of the UN human rightssystem as well as the regional human rightscourts uses the state accountability model. Butunder the state accountability model, stateofficials themselves are still immune fromprosecution for human rights violations. It wasnot until the mid-1970s, with prosecutions ofhuman rights violations in Greece and Portu-gal, that the individual criminal accountabilitymodel began to be used to prosecute stateofficials in domestic courts. The creation ofthe International Criminal Tribunal for theformer Yugoslavia (ICTY) in 1993 was the firsttime since the Nuremberg and Tokyo trialsthat states returned to using individual criminalaccountability at the international level.

Three key ideas underpin the individualcriminal accountability model. The first is thatthe most basic violations of human rights or thelaws of war cannot be legitimate acts of stateand thus must be seen as crimes committed byindividuals. A second and related idea is thatthe individuals who commit these crimes canbe, and should be, prosecuted. The third ideais that the accused are also bearers of rights anddeserve to have those rights protected in a fairtrial (Weissbrodt 2001). These seem like sim-ple, even obvious, ideas. But they run counterto centuries of beliefs about the immunity ofstate officials from prosecution. It took a ma-

jor movement to put these new ideas forward,embed them in law, and put them into practice.

This new individual criminal accountabilitymodel applies not to violations of the wholerange of civil and political rights, but rather tothose of a small subset of political rights some-times referred to as the rights of the person,especially the prohibitions on torture, summaryexecution, and genocide, as well as to war crimesand crimes against humanity. Practices of stateaccountability for these human rights violationshave not diminished but continue to exist sideby side with the trials for individual criminalaccountability, and these two forms of account-ability can reinforce one another. The justicecascade is also nested in a broader process ofstrengthening the rule of law through variousforms of justice-sector reform. Although betterquality rule of law is neither a necessary nora sufficient condition for transitional justice,developments in the rule of law have con-tributed to transitional justice, and the successof some transitional justice measures may inturn enhance the rule of law (Carothers 2001,Domingo & Sieder 2001, Smulovitz 2002).

Most previous discussions of these issueshave looked at pieces of the overall trend,for example, examining specific internationaltribunals and trials, high-profile foreign trials,or domestic trials in certain countries (Acunaet al. 1995, Acuna & Smulovitz 1996, Barahonade Brito et al. 2001, Schabas 2001, Macedo2004, Roht-Arriaza 2005, Acuna 2006, Schiff2008, Struett 2008). For example, there are anumber of excellent studies of the ICTY andjustice in the Balkans (Bass 2000, Hagan 2003,Subotic 2009, Nettelfield 2010, Orentlicher2010, Kutnjak Ivkovic & Hagan 2011). Whatis often missing, however, is attention to thelarger decentralized but interactive system ofaccountability that is emerging around theworld for violations of core political rights,with fragmented enforcement that is primarilyundertaken by domestic courts (Sikkink 2011).

This system of accountability is starting toemerge because many domestic and interna-tional courts are now drawing on a body ofdomestic and international law that permits

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individual criminal accountability for corecrimes (Scheffer 2011, Teitel 2011). Thesystem is decentralized because there is nosingle international court or agency decidingwho should be prosecuted, yet it is interactivebecause decisions made at one level haveeffects at other levels. Even the InternationalCriminal Court (ICC) is doing only a smallpart of the work of enforcement. Decisionsabout whom to prosecute are made in hundredsof different courts around the world, most ofthem domestic courts. As such, enforcementis often fragmented and haphazard; whethera state official is prosecuted for human rightsviolations depends mainly on whether deter-mined and empowered domestic litigants arepressing for accountability.

To understand how this new model ofaccountability for violations of core politicalrights now functions at the global level, weneed to look at the entire international system,including the ICC. The Rome Statute of theICC embodies this new model of individualcriminal accountability, but because of the im-portance of domestic courts, the ICC is not themain institution through which the new modelis enforced. The Rome Statute mandates thatthe Court function under a doctrine of com-plementarity, in which domestic courts havepriority and the ICC can exercise jurisdictiononly if domestic courts are unwilling or unableto prosecute (Schabas 2001). The doctrineof complementarity in the ICC can be seenas a broader expression of the new model inwhich the primary institutions for enforcementare domestic criminal courts and the ICCand foreign courts are the backup institutionsor the last resort when the main model ofdomestic enforcement fails. Orentlicher (1995,p. 2562) calls this “domestic enforcement withan allowance for ‘fallback’ international juris-diction,” and Roht-Arriaza (2005, p. 200) refersto foreign trials as a “back-stop” for domesticjustice. Such backup institutions, however, arenecessary to create a fully functioning inter-national model. If the model depended onlyon domestic courts, powerful former membersof the military and state officials could always

escape accountability by blocking domestictrials or going abroad to a friendly thirdcountry. The backup provided by foreign andinternational prosecutions makes such optionsless likely than before. The move to create amore transnational system of accountabilityreduced the control that perpetrators in anysingle country have in preventing prosecution.

Many critics of the ICC or the specializedcourts have not understood the role of thesecourts as backup institutions in a global systemof accountability. For example, one observer ar-gues that international tribunals “have squan-dered billions of dollars” and that domestic so-lutions would be more cost effective (Cobban2006, p. 22). It would indeed be costly if theICC or international tribunals were designedto provide comprehensive criminal justice bythemselves, but that is not how the decentral-ized system is currently operating. The use ofinternational tribunals or foreign courts is theexception and not the rule in the new model ofaccountability, as they serve merely as a backup.The new decentralized system of enforcementdepends primarily on human rights violationsprosecution in domestic courts. Because thesystem is decentralized, however, the quality ofenforcement varies with the quality of the crim-inal justice systems in different countries.

For years, scholars were unaware of themagnitude of the move toward individualaccountability because there was no worldwidedata set on prosecutions of human rightsviolations. Without data, it was difficult todetect the presence of a new norm and theemergence of new practices. Responding tothis void, various authors created data setsof transitional justice mechanisms, includingdomestic, foreign, and international trials;truth commissions; amnesties; reparations; andlustration. Lutz & Reiger (2008), for example,documented the prosecutions of 34 heads ofstate for human rights violations between 1990and 2008. Olsen et al. (2010) created a databaseof trials, amnesties, reparations, and lustrationin transitional countries. Kim, Sikkink, andWalling created a database of international,foreign, and domestic prosecutions of human

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rights violations and truth commissions intransitional countries (Sikkink & Walling2007, Kim & Sikkink 2010, Sikkink 2011).These prosecutions of human rights violationsinvolved not only heads of state, but also otherhigh-level officials as well as lower-rankingofficials.

Here, we present new data that were notavailable in previous work. These new data arethe result of a major joint research initiativethat received financial support from the US Na-tional Science Foundation (NSF) and UK Artsand Humanities Research Council (AHRC).This article presents initial data on transitionalprosecutions and amnesties from the combineddata set from the NSF/AHRC project (http://www.transitionaljusticedata.com). In thefuture, with additional support from NSF/AHRC, the project’s database will also haveglobal data on reparations, civil trials, vettingand lustration, and traditional forms of justice.

Figure 1 visually depicts the global normcascade of amnesty law and prosecutions ofhuman rights violations. It presents an over-view of annual data on trends in verdicts and

convictions in domestic prosecutions of humanrights violations and the adoption of newamnesty laws. The figure shows the numberof countries in any given year with at leastone verdict or conviction in a domestic humanrights prosecution and the number of countriesadopting new amnesty laws.

Looking at the graph, one can see that untilthe mid-1980s, an increase in prosecutionsis hardly noticeable. By the early 1990s, thenumber of such events began to increasesteeply. It is striking that the rapid diffusion ofthe idea follows almost immediately after theend of the Cold War and the fall of the SovietUnion in 1989–1991. This figure summarizes aworldwide trend that would have been difficultto see without a comprehensive data set. Theincreasing use of prosecutions resulting inconvictions attests to the importance of abroader accountability norm. A clear shift awayfrom amnesties, however, has not accompaniedthe global accountability trend. Althoughthe data in Figure 1 suggest there has beena decline in the adoption of new amnestylaws, a large number of existing amnesty laws

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Figure 1Trends in domestic prosecutions of human rights violations and amnesty laws, 1979–2009. The linesrepresent the number of countries in any given year adopting new amnesty laws (red ) or reaching a verdict(blue) or a conviction ( green) in a prosecution for human rights violations.


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http://www.transitionaljusticedata.com



Asia17%

Africa12%

a b c

Americas48%

Europe23%

Asia 32%

Americas0%

Europe30%

Africa37%

Asia10 (19%)

Africa18 (33%)

Americas17 (32%)

MENA1%

MENA0%

MENA4 (7%)

Europe5 (9%)

Domestic prosecutions International prosecutions Truth commissions

Figure 2Regional distribution of prosecutions of human rights violations, 1979–2009: (a) domestic transitional prosecutions, (b) internationalhuman rights prosecutions, and (c) number (and%) of truth commissions by region. Abbreviation: MENA, Middle East and NorthAfrica. (Trials are included as long as they began within the stated time period.)

continue to be in place throughout the worldat the same time that countries increasingly useprosecutions.

There is significant variation in the use ofprosecutions of human rights violations in dif-ferent regions of the world. As the pie chart inFigure 2a indicates, the trend toward domesticprosecutions of human rights violations hasbeen most pronounced in Latin America andin Central and Eastern Europe. Prosecutionsare under way in Asia, Africa, and the MiddleEast, but to a lesser extent than in Europeand the Americas. International prosecutionsare also unevenly distributed across differentregions in ways that do not simply reflectwhere the worst human rights violations in theworld have occurred. The chart in Figure 2bshows the regions of countries whose nationalshave been subject to international tribunals toachieve justice, not the countries where theprosecutions occurred. Europe and Africa areheavily represented, in large part because of theprosecutions of the ICTY and the InternationalCriminal Tribunal for Rwanda (ICTR). Nointernational tribunals have been set up to pros-ecute human rights violations in Latin America.The international prosecutions chart includesthe so-called hybrid tribunals that combine

international and domestic judicial features.Hybrid tribunals in Cambodia and especiallyEast Timor help account for the significantnumber of prosecutions in Asia. There are alsodifferent kinds of regional variation with regardto other transitional justice mechanisms suchas truth commissions. For example, Figure 2cshows that truth commissions have been usedmost frequently in Africa and the Americas.

THE EMERGENCE AND THESPREAD OF THE JUSTICECASCADE: SOURCES OF NEWIDEAS AND PRACTICESRELATING TO INDIVIDUALCRIMINAL ACCOUNTABILITY

The justice cascade does not have a singlesource (see Figure 3). Rather, we can think oftwo main streams from different sources flow-ing in to create it, streams that began to mergeat the start of the twenty-first century. By 2010,the individual criminal accountability modelhad gained momentum and been embodied ininternational law, international and domesticinstitutions, and the global consciousness. Itis this momentum that makes cascade an aptmetaphor.

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1985Argentina

1987Convention

against torture

1993 ICTY

1998Rome Statute

1980Apartheid

convention

GenevaConventions1949

1945Nuremberg/Tokyo

2002 ICC

1975Greece

1976Portugal

Stream one—international prosecution

Stream two—domestic and foreign prosecutions

Hard law streambed

Emergence of decentralized,interactive system of global accountability

1994 ICTR

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Convention onForced Disappearances

1998–19991998–1999Pinonochet Caset Case

1998–1999Pinochet case

1940 1950 1960 1970

Year1980 1990 2000 2010 2020

Figure 3The emergence and the spread of the justice cascade. Abbreviations: ICC, International Criminal Court; ICTR, International CriminalTribunal for Rwanda; ICTY, International Criminal Tribunal for the former Yugoslavia.

The first stream began with the Nurembergtrials in 1945 and 1946, but it temporarily driedup or went underground for almost 50 yearsuntil states created the specific ad hoc interna-tional institutions the ICTY and the ICTR in1993 and 1994, respectively. These tribunals inturn put into practice and furthered the doc-trine and jurisprudence of individual criminalaccountability.

The second stream involved domestic andforeign prosecutions for individual criminalaccountability, beginning in southern Europewith trials in Portugal and Greece in the 1970s.The 1985 trials of the juntas in Argentina gen-erated broad international attention, and a se-ries of prosecutions began in Latin America,including Bolivia, Guatemala, Panama, Chile,and Haiti. These prosecutions often movedslowly and were contested, uncertain, and per-ceived as still dangerous and reversible. Whenactivists were blocked in their domestic courts,they sought to use foreign courts to prosecutedomestic perpetrators of human rights viola-tions. These foreign prosecutions, often usingsome form of universal jurisdiction, became

part of the second stream of the justice cas-cade. By 1998, the arrest of General AugustoPinochet of Chile in the United Kingdom asa result of an extradition request from Spainhad become the most vivid illustration of thepotential power of these foreign prosecutions(Roht-Arriaza 2005).

Underneath these two streams of prose-cutions, states and nonstate actors worked tobuild a firm streambed of international humanrights law and international humanitarianlaw that fortified the legal underpinningsof the cascade, culminating in the RomeStatute of the ICC. One of the central prin-ciples of penal law is that one cannot bepunished for doing something that is notpreviously prohibited by law. As states shoredup the legal basis for the justice cascade,they assured that it would not be anotherephemeral flow, but rather a sustained politicaland legal development. The Nurembergand Tokyo trials did not rest on a sturdy legalfoundation, so they were more open to accusa-tions of victor’s justice and retrospective justice.By the time Pinochet was arrested in London


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in 1998, however, a firmer legal foundationfor individual criminal accountability had beenbuilt up, and even the conservative UK LawLords concluded that, on the basis of law thatPinochet himself had ratified (the UN conven-tion against torture), he could be extradited toSpain to stand trial for torture committed inChile during his regime. Although Pinochetwas allowed to return to Chile for healthreasons, he was facing domestic prosecutionfor human rights violations when he died.

The two streams and the underlyingstreambed initially appeared to be quite sepa-rate from one another. For example, the cre-ation of the ICTY owed little to the domes-tic prosecutions that preceded it. The ICTYwas seen as the first international tribunal sinceNuremberg and Tokyo, and its creators drewtheir inspirations almost solely from that prece-dent, not from the domestic prosecutions tak-ing place around them. The stories behind thesedevelopments have been told in a series of ex-cellent books (Bass 2000, Power 2002, Hagan2003, Roht-Arriaza 2005, Lutz & Reiger 2008,Schiff 2008, Struett 2008), but rarely do all thepieces of this global trend get put together inone place.

There have been various efforts to explainthe emergence of the trend toward prosecutionof human rights violations. Lutz & Sikkink(2001) argued that the justice cascade wasnot spontaneous, nor was it the result of thenatural evolution of law or global culture in thecountries where the prosecutions occurred, butrather of changes in ideas and practices fueledby the human rights movement. According tothese authors, the justice cascade started as aresult of the concerted efforts of small groupsof public interest lawyers, jurists, and activistswho pioneered strategies, developed legalarguments, recruited plaintiffs and witnesses,marshaled evidence, and persevered throughyears of legal challenges (Lutz & Sikkink 2001).The work of these norm entrepreneurs wasfacilitated by two broader structural changes inthe world, the third wave of democracy and theend of the Cold War. The first multiplied the

number of transitional countries open to thetrends described here, and the second openedspace for countries to consider a wider rangeof policy options (Sikkink 2011). Lutz andSikkink’s argument was based on qualitativeand historical research but was not yet sup-ported by cross-national quantitative studies.

Recently, there have been scholarly attemptsto integrate dispersed theories of the adoptionof prosecutions of human rights violationsfrom various disciplines and subdisciplines ofpolitical science, sociology, criminology, andlaw (Pion-Berlin 1994, Huyse 1995, Skaar1999). Yet, despite the emergence of recent ex-amples of cross-national analysis (Dancy & Poe2006, Olsen et al. 2010), the research has beendominated by case studies of a single nationor a small number of countries. Although thedetails of the prosecution process can be tracedclosely in these case studies, the variationsin the way decisions to begin prosecutions ofhuman rights violations are made within differ-ent countries cannot be examined easily. Kim(2012) conducted a cross-national analysis ofexplanations for the emergence of transitionaljustice mechanisms. In the study, after survey-ing the existing literature in the fields of humanrights, transitional justice, democratization,and international relations, he tested threekey theories: the balance of power betweenold and new elites, transnational advocacynetworks, and diffusion theory. The validityof each theory had been attested to separatelyin case studies of individual countries, but ithad not yet been tested simultaneously in across-national study of global samples.

Power balance theory explains the adoptionor nonadoption of prosecutions of human rightsviolations to be primarily the result of the bal-ance of power between different societal groupsin transitional societies. In countries that haveexperienced a ruptured transition after a revo-lution or the loss of a war, previously powerfulelites are often weakened and are unable to dic-tate any protections from prosecution. In ne-gotiated transitions, however, previous powerholders often build a blanket amnesty from

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prosecution into the transitional pact. Thus,power balance theory suggests that prosecutionof human rights violations will be possible incountries that experience a ruptured transition,such as what occurred in Argentina after the lossin the Falklands war, but not in countries, suchas El Salvador, that have a negotiated transi-tion to democracy (McAdams 1997, Olsen et al.2010).

Scholars of international relations havestressed the important role of individualsand advocacy groups in bringing normativechanges to politics (Finnemore & Sikkink 1998,Keck & Sikkink 1998). These advocacy net-works bring together actors from domestic andinternational nongovernmental organizations(NGOs) and civil society organizations as wellas parts of international organizations. Somescholars stress the importance of civil societygroups (Roht-Arriaza 2002), whereas others fo-cus on the role of international organizations(Buergenthal 1994) in promoting trials.

Diffusion occurs when the actions andchoices in one country are “systematically con-ditioned by prior policy choices” made else-where in the world (Simmons et al. 2006,p. 787). A growing number of studies show thatmany international policies and actions diffuse:They are rapidly adopted by many differentcountries for reasons that appear to have lessto do with their domestic politics or internalpressures, and more to do with imitating poli-cies other countries are adopting (Most & Starr1980, Starr 1991, Simmons & Elkins 2004,Gleditsch & Ward 2006, Simmons et al. 2006,Simmons 2008). Some scholars talk about “con-tagion” models of diffusion in which one state“catches” a new policy or practice (Whitehead1996, Starr & Lindborg 2003). Diffusion wouldoccur in transitional justice if the decision toproceed with a prosecution of human rights vio-lations in one transitional country is influencedby previous choices of other transitional coun-tries. In earlier studies of prosecutions of hu-man rights violations, the contagion effect wasoften introduced but found insignificant owingto a lack of evidence (Pion-Berlin 1994). How-

ever, after witnessing the dramatic increase inthese prosecutions around the globe, scholarsare increasingly suggesting that the concept ofindividual accountability has diffused globally(Roht-Arriaza 2002, Sikkink & Walling 2007,Hayner 2011).

Kim (2012) finds strong evidence to supportthe transnational advocacy networks anddiffusion explanations for the adoption ofprosecutions of human rights violations. First,active domestic and international advocacyfor individual criminal accountability provesto be a key factor guaranteeing persistentand frequent use of prosecutions of humanrights violations. Second, affirming diffusiontheory, Kim’s study shows that transitionaljustice experience in neighboring countriesis a relevant factor for explaining the use ofdomestic human rights trials. Interestingly,transitional countries are most sensitive tosuch measures adopted by other culturally orlinguistically similar countries. Kim finds thatthe power balance explanation—which hasbeen the prevailing explanation—is valid onlyfor the immediate use of prosecutions of humanrights violations. The level of repression in theformer authoritarian regime, the past historyof political instability, and prevailing economicconditions are also relevant. Kim’s findingsprovide a comprehensive test for three key the-ories explaining the emergence and spread ofprosecution of human rights violations. Whencombined, these three theories adequately ex-plain both the early and late adoption of trials.By its very nature, the diffusion factor providesa relatively weak explanation of the cases ofglobal and regional pioneers of human rightstrials, such as Argentina or Greece. However,the balance of power and transnational advo-cacy factors, or some combination of the two,are strong determinants of the start of trials forthose early adopters. However, as time passesin transitional societies, the power balance fac-tor becomes increasingly less relevant, and theimpact of transnational advocacy and peer pres-sure from like-minded countries grow stronger.Thus, it is a combination of peer pressure and


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transnational advocacy networks that explainsthe delayed transitional justice phenomenon.

Qualitative work shows that the spread ofideas and practices of transitional justice movesin multiple directions. Practices of individualaccountability used in the domestic legalsystem to address common crime are appliedwithin the same domestic system to stateofficials accused of human rights violations.These practices then spread from one countryto another in a process scholars call horizontaldiffusion. Thus, when the Uruguayans startedusing prosecutions, they were often drawingon models that diffused horizontally fromneighboring Argentina and Chile. Verticaldiffusion also occurs, and it takes two forms:bottom up and top down (Daley & Garand2005, Graham et al. 2012). Bottom-up verticaldiffusion occurs when an idea or practice movesfrom one specific country to an intergovern-mental organization or an international NGO.Top-down vertical diffusion occurs whenpractices of individual accountability movefrom an international actor to a national one,for example, when international or regionaltribunals encourage states that have not yetused individual criminal accountability to doso in their domestic legal system.

The justice cascade started in the semipe-riphery of global politics and diffused outwardand upward through horizontal diffusion fromone country to another and then via bottom-upvertical diffusion from individual countries tointergovernmental organizations and interna-tional NGOs. Any analysis of the justice cascadethus needs to be attentive both to developmentsat the international level and to explanations atthe domestic level. Developments in regionallaw and domestic politics, first in SouthernEurope, then in Latin American, permittedhuman rights activists to press for greateraccountability domestically; and in particularlyfortuitous situations, these developments alsomade individual criminal accountability possi-ble. Multiple domestic experiences with indi-vidual accountability thus created the backdropagainst which the international communitydeveloped new legal doctrines and fashioned

new international tribunals, especially theICC.

THE EFFECTIVENESS OFACCOUNTABILITYMECHANISMS

There has been a lively debate in the politicalscience and international law literature aboutthe desirability and impact of human rightstrials. Recent empirical studies have not beenable to resolve fully a decade-long debate overthe effect of prosecutions of human rightsviolations for improving human rights prac-tices (Snyder & Vinjamuri 2004a,b; Sikkink &Walling 2007; Akhavan 2009; Van Der Merweet al. 2009; Meernik et al. 2010; Nettelfield2010; Olsen et al. 2010). Many scholars andpractitioners believe that such trials are bothlegally and ethically desirable and practicallyuseful in deterring future human rights vio-lations (Roht-Arriaza 1995, Mendez 1997),whereas others believe that such prosecutionsdo not deter future violations and that, in somecircumstances, they exacerbate the situation byprovoking still powerful former state officials.Two state-of-the-field essays confirm the stillunsatisfactory level of accumulated knowledgeabout the effect of trials. Mendeloff (2004)found many claims about the positive effectsof human rights trials yet relatively little solidevidence to support those claims. Thoms et al.(2008, p. 31), after reviewing 100 recent empir-ical studies, conclude that “existing empiricalknowledge about the impacts of transitionaljustice is still very limited, and does not supportstrong claims about the positive or negativeeffects of [transitional justice] across cases.”

There is a growing literature that is quiteskeptical about the positive effects of humanrights trials. Goldsmith & Krasner (2003,p. 51) contend that “a universal jurisdictionprosecution may cause more harm than theoriginal crime it purports to address.” Theyargue that states that reject amnesty and insiston criminal prosecution can prolong conflict,resulting in more deaths. Snyder & Vinjamuri(2004b) also argue that human rights trials

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themselves can increase the likelihood of futureatrocities, exacerbate conflict, and undermineefforts to create democracy. They claim that“the prosecution of perpetrators accordingto universal standards. . .risks causing moreatrocities than it would prevent” (Snyder &Vinjamuri 2004b, p. 5). These argumentssuggest that more enforcement or the wrongkind of enforcement can lead to less compli-ance with international and domestic law. Inparticular, they suggest that during civil wars,insurgents will not sign peace agreements ifthey fear they will be held accountable for pasthuman rights abuses. As a result, these authorsclaim that the threat of trials can prolong warand exacerbate human rights violations.

It is difficult to evaluate the impact of tran-sitional justice mechanisms. Conclusions de-pend greatly on how effectiveness is defined andwhat measures or methods are used to evaluateit. Effectiveness is always evaluated relative tosome other benchmark, and thus, a judgmentabout effectiveness always involves some kindof comparison. Policy makers and activists of-ten use three distinct forms of comparison inevaluating the effectiveness of transitional jus-tice mechanisms: (a) comparison to the ideal,(b) counterfactual reasoning, and (c) empiricalcomparisons. We prefer to use empirical com-parisons, in which transitional countries thathave used prosecutions of human rights vio-lations are compared with other transitionalcountries that have not.

Here, we briefly summarize the results ofour previous statistical study (Kim & Sikkink2010), which is also discussed at length in TheJustice Cascade (Sikkink 2011). We also pro-vide additional findings from a recent analy-sis (Kim & Sikkink 2013) using some of thenew data in the NSF/AHRC data set. Wetested various propositions that had emergedout of previous research. First, we wanted totest the proposition that prosecutions of humanrights violations are associated with improve-ments in human rights. Second, we wanted toexplore whether prosecutions contribute to hu-man rights because, for example, they imposepunishment on state officials or because they

communicate and dramatize norms. Third, wewanted to test if prosecutions in one country cancontribute to improvements in other countriesas well, in other words, if it is possible to havedeterrence across borders. Finally, we wantedto answer the main question raised by trial skep-tics: Do prosecutions in situations of internal orcivil war exacerbate human rights abuses?

Figure 4 provides a simple visual represen-tation of the basic findings of the analysis—thatcountries with prosecutions of human rightsviolations tend to have lower levels of repres-sion than countries without such prosecutions.To measure repression, we use the physical in-tegrity index from the Cingranelli and Richardshuman rights database, which is a combinedmeasure of summary execution, torture, dis-appearance, and political imprisonment (seeCingranelli & Richards 2010). Figure 4 showsthe changes in the average repression scoreof countries with different experiences withprosecutions of human rights violations. Onthe left hand side is the measure of repression:the higher the number, the higher the level ofhuman rights violations. Within each graph,the red line indicates the global means, thatis, the changes in the yearly mean of therepression score for all the countries in theanalysis, both those that have prosecutedhuman rights violations and those that havenot. In panel a, we compare these global meanrepression scores with the repression scoresof countries with prosecutions ( gray line) andthose of countries without any prosecutions(blue line). The distinction between the linesbecomes clear and remains stable after 1994.After that time, the mean repression scores ofthe group of countries without prosecutionsare constantly above the average global levelof human rights violations, whereas the meanrepression scores of the group of countries withprosecutions are below the average. Panel bcompares the global mean repression scoreswith the repression scores of countries with asingle prosecution year ( green line) and thoseof countries with multiple (2–20) prosecutionyears ( purple line). Although countries withone prosecution year have below-average


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2

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Global mean

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Figure 4Changes in mean scores of repression by human rights prosecution experience.

mean repression scores for most of the timeperiod, states with multiple prosecution yearstend after 1994 to have more stable and lowerrepression scores than the global average.These are still just averages, and the readerwho wishes to see the regression tables shouldlook at the original article in InternationalStudies Quarterly (Kim & Sikkink 2010).

In many ways, our findings are consistentwith previous studies. Democracy, civil war,economic standing, population size, and pastlevels of repression have a statistically signifi-cant and substantively important impact on lev-els of repression. But in addition, prosecutionsof human rights violations have a strong and sta-tistically significant downward impact on levelsof repression. When controlling for all otherrelevant factors discussed above, the mean lev-els of repression in countries that have had aprosecution are lower than those of countriesthat never had a prosecution. Moreover, notonly does prosecution experience matter; so,too, do the persistence and frequency of pros-ecutions. The level of repression decreases asthe number of years with prosecutions of hu-

man rights violations increases in a country. Ifa country were to move from the minimum (0)to the maximum possible number of prosecu-tion years (20), this would bring about a 3.8%decrease in the repression scale.

In sum, we find that countries that haveprosecuted human rights violations have betterhuman rights practices than do countries thathave not. In addition, transitional countries thathave experienced more prosecutions over time(and thus a greater likelihood of punishment forpast human rights violations) have better hu-man rights practices than countries that havenot had, or had fewer, prosecutions. Contraryto the arguments made by some scholars, pros-ecutions of human rights violations have nottended to exacerbate human rights violations.

The main criticism of prosecutions of hu-man rights violations by some scholars is thatthey can lead to greater repression, especially insituations of civil war because the demand forsuch prosecutions can delay a peace agreement.Because civil war is associated with humanrights violations, anything that prolongs warcould exacerbate human rights abuses. In

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our sample, 53 countries—265 country years(18%)—were categorized as having had a minoror major civil strife after transition. In addition,16 countries—124 country years (8.4%)—werecategorized as having gone through a transitionfrom a civil war situation. We were able to usethese variations within our sample to examinethe different effects of prosecutions under thesituations of past or current civil war. We findthat the independent effects of prosecutionson repression are still significant in situationsof civil war. Although, as previous studies haveshown, civil wars continue to be associatedwith worsening human rights situations, pros-ecutions of human rights violations during civilwars do not make the situation worse. Basically,controlling for war, our results show that pros-ecutions in countries that have undergone atransition from civil war do not have a differentimpact on repression than those in countriesthat have undergone other types of transitions.This finding provides counterevidence to theargument that prosecutions in civil war situ-ations are less effective. Although an involve-ment in civil war certainly exacerbates gov-ernmental repression, prosecution experiencesstill appear to have a positive impact on humanrights protection in those situations whencompared with other civil conflict states withno prosecutions of human rights violations.

We also tested whether prosecutions ofhuman rights violations have a deterrenceeffect across borders (Kim & Sikkink 2010).We already know that countries are more likelyto prosecute human rights violations if othercountries in the region are doing the same (Kim2012). This is why such prosecutions show astrong regional clustering. But what happens ifa country in a region does not prosecute humanrights violations even though many of its neigh-bors do? Does it benefit from a deterrenceeffect resulting from its neighbors’ prosecu-tions? Our analysis shows that the presenceof prosecutions of human rights violations incountries geographically proximate to a partic-ular country significantly decreases the level ofrepression for the latter, which suggests a possi-ble deterrent effect of such prosecutions beyond

borders. A transitional country with no pros-ecution activity at all can achieve a deterrenteffect similar to a country with its own prose-cutions, if four or more of the nonprosecutingcountry’s neighbors already have prosecutions.

This research calls into question the claimby trial skeptics that prosecutions of humanrights violations aggravate poor human rightspractices. We conceptualize such prosecutionsas an increase in the enforcement of existinghuman rights norms. This kind of enforcementinvolves individual criminal sanctions forstate officials who engage in human rightsviolations. The prosecutions data show thatthere has been an increase in enforcementand in the costs of repression, which is likelyto be perceived by government officials whomake choices about the degree of repressionto exert. We cannot distinguish these costs,but we believe they are both the economicand political costs of the formal sanctions (lostwages, litigation fees, inability to participatein elections while on trial or in jail, etc.) andthe informal social and political costs of thepublicity surrounding the prosecutions (loss ofreputation or legitimacy and the resulting lossof political and social support). At the sametime, there is no reason to believe that thebenefits of repression have increased. So, if thebenefits of repression have remained constantand the formal and informal costs of repressionhave increased, the economic theory of crimepredicts a decrease in crime, which is what wesee in the countries that have experienced morecumulative country human rights trial years.

In our most recent paper, we find onceagain that prosecutions are associated withimprovements in human rights conditions.In particular, we find that prosecutions ofhuman rights violations are especially effectivein deterring the use of torture and that evenprosecutions that ended in acquittals correlatewith lower incidence of torture. Second, wefind that prosecution processes and convictionsof high-level state officials appear to have astronger deterrence effect when compared withprosecutions and convictions of low-level offi-cials. In addition, high-level prosecutions and


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convictions are associated with improvementsin a wider range of physical integrity rights.Our study shows that high-level prosecutionscorrelate with lower extrajudicial killing as wellas decreased use of torture (Kim & Sikkink2013).

In this recent paper, we argue that althoughthe whole process of prosecution is associatedwith improvements in the human rights situa-tion, those prosecutions that result in convic-tions appear to have a greater effect than thosethat do not. Prosecutions of human rights vio-lations are also associated with decreased use oftorture, even if they do not reach convictions orif they end in acquittal. This has an importantpractical and theoretical implication, consider-ing the fact that torture remains one of the mostprevalent human right violations. Our studysuggests that, regardless of the result, prosecut-ing torturers could be an effective tool to dimin-ish torture. Oftentimes, victims of human rightsviolations or human rights lawyers are disap-pointed or frustrated with any acquittal of a sus-pected perpetrator, but our study suggests thatthe even those unsuccessful efforts may not bein vain. Both through the prosecution process(e.g., arrest, detention, trials) and through pub-lic education and media exposure, prosecutionsmay still help improve human rights practices.

A new line of research now suggeststhat prosecutions of human rights violationsmay be more effective when combined withamnesties. Researchers studying prosecutionsand amnesties (Olsen et al. 2010, Lessa & Payne2012) have made a persuasive yet puzzling find-ing about the effects of amnesties. They arguethat the combination of amnesties and trialsproduces more positive effects on human rightspractices than the use of prosecutions alone.

Most amnesties are designed to prevent trials,so if prosecutions occur, it is usually becausethe amnesties have been circumvented, oftenthrough creative litigation strategies of humanrights organizations or innovative maneuveringby judges. Olsen et al. (2010) and Lessa & Payne(2012) use an accountability-with-stability ar-gument to explain how amnesties help calm themilitary or police who are the targets of prose-cution, thus buying time for other transitionalmechanisms to exert a social effect. As manyamnesties exclude some crimes (e.g., genocide)or some perpetrators (e.g., junior officers),they divide the opposition to prosecutions andprevent a united front of spoilers composedof perpetrators from forming. Also, theseauthors argue, amnesties help limit unhealthyexpenditures on costly trials, thus assistingthe transitional regime in attaining economicstability during a turbulent time. This is apromising area for future research, which willbe facilitated by the complete database onhuman rights amnesties now available (seehttp://www.transitionaljusticedata.com). Asthese data have just recently become available,we have not yet incorporated them into ourstudies.

Protecting and improving human rightspractices require that transitional countriesmake substantial structural changes in thenature of their domestic institutions. Suchchanges are not easy to make. Prosecutions ofhuman rights violations are only one of themany forces and pressures that can contributeto positive human rights change. They are nota panacea for human rights problems; theyappear to be one form of sanction that cancontribute to the institutional and politicalchanges necessary to limit repression.

DISCLOSURE STATEMENT

The authors are not aware of any affiliations, memberships, funding, or financial holdings thatmight be perceived as affecting the objectivity of this review.

ACKNOWLEDGMENTS

The data presented in this chapter are based partially upon research supported by the NationalScience Foundation (NSF) (Grant No. 0961226) and the Arts and Humanities Research Council

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(AHRC) (Grant No. 0AH/I500030/1) relating to the project titled “The Impact of TransitionalJustice on Human Rights and Democracy.” Any opinions, findings, conclusions, or recommen-dations expressed in this material are those of the authors and do not necessarily reflect the viewsof the NSF. We wish to thank our NSF/AHRC research teams for their assistance with data forthis article and, in particular, Geoff Dancy for preparation of Figures 1–4.

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Annual Review ofLaw and SocialScience

Volume 9, 2013Contents

Growing Up in Law and Society: The Pulls of Policy and MethodsRichard Lempert � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Integrating Law and Health PolicySandra R. Levitsky � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �33

The Legal and Political Legacy of Jeremy BenthamPhilip Schofield � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �51

The Political Psychology of CounterterrorismAziz Z. Huq � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �71

Legal Regulation of Health-Related Behavior: A Half Centuryof Public Health Law ResearchScott Burris and Evan Anderson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �95

The Adoption of Transparency Policies in Global GovernanceInstitutions: Justifications, Effects, and ImplicationsMegan Donaldson and Benedict Kingsbury � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 119

Law, Race, and Biotechnology: Toward a Biopoliticaland Transdisciplinary ParadigmDorothy E. Roberts � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 149

Niklas Luhmann’s Theory of Autopoietic Legal SystemsHugh Baxter � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 167

Special Interests After Citizens United: Access, Replacement, andInterest Group Response to Legal ChangeSamuel Issacharoff and Jeremy Peterman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 185

Militant Democracy: The Institutional Bases of DemocraticSelf-PreservationGiovanni Capoccia � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 207

The Regulation of Environmental SpaceSteve Herbert, Brandon Derman, and Tiffany Grobelski � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 227

Sex Laws and Sexuality Rights in Comparative and Global PerspectivesDavid John Frank and Nolan Edward Phillips � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 249

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LS09-FrontMatter ARI 4 October 2013 14:19

The Justice Cascade: the Origins and Effectiveness of Prosecutionsof Human Rights ViolationsKathryn Sikkink and Hun Joon Kim � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 269

Is There a Canon of Law and Society?Carroll Seron, Susan Bibler Coutin, and Pauline White Meeusen � � � � � � � � � � � � � � � � � � � � � � � 287

Motivated Cognition in Legal Judgments—An Analytic ReviewAvani Mehta Sood � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 307

Reproductive JusticeZakiya Luna and Kristin Luker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 327

Sentenced to Life: Penal Reform and the Most Severe SanctionsMarie Gottschalk � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 353

Contextualizing Mass Atrocity Crimes: Moving Towarda Relational ApproachSusanne Karstedt � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 383

Middle Eastern LawChibli Mallat and Mara Revkin � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 405

Indexes

Cumulative Index of Contributing Authors, Volumes 1–9 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 435

Cumulative Index of Article Titles, Volumes 1–9 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 438

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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AnnuAl Reviewsit’s about time. Your time. it’s time well spent.

AnnuAl Reviews | Connect with Our expertsTel: 800.523.8635 (us/can) | Tel: 650.493.4400 | Fax: 650.424.0910 | Email: [email protected]

New From Annual Reviews:

Annual Review of Statistics and Its ApplicationVolume 1 • Online January 2014 • http://statistics.annualreviews.org

Editor: Stephen E. Fienberg, Carnegie Mellon UniversityAssociate Editors: Nancy Reid, University of Toronto

Stephen M. Stigler, University of ChicagoThe Annual Review of Statistics and Its Application aims to inform statisticians and quantitative methodologists, as well as all scientists and users of statistics about major methodological advances and the computational tools that allow for their implementation. It will include developments in the field of statistics, including theoretical statistical underpinnings of new methodology, as well as developments in specific application domains such as biostatistics and bioinformatics, economics, machine learning, psychology, sociology, and aspects of the physical sciences.

Complimentary online access to the first volume will be available until January 2015. table of contents:•What Is Statistics? Stephen E. Fienberg•A Systematic Statistical Approach to Evaluating Evidence

from Observational Studies, David Madigan, Paul E. Stang, Jesse A. Berlin, Martijn Schuemie, J. Marc Overhage, Marc A. Suchard, Bill Dumouchel, Abraham G. Hartzema, Patrick B. Ryan

•The Role of Statistics in the Discovery of a Higgs Boson, David A. van Dyk

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Radu V. Craiu, Jeffrey S. Rosenthal•Build, Compute, Critique, Repeat: Data Analysis with Latent

Variable Models, David M. Blei•Structured Regularizers for High-Dimensional Problems:

Statistical and Computational Issues, Martin J. Wainwright

•High-Dimensional Statistics with a View Toward Applications in Biology, Peter Bühlmann, Markus Kalisch, Lukas Meier

•Next-Generation Statistical Genetics: Modeling, Penalization, and Optimization in High-Dimensional Data, Kenneth Lange, Jeanette C. Papp, Janet S. Sinsheimer, Eric M. Sobel

•Breaking Bad: Two Decades of Life-Course Data Analysis in Criminology, Developmental Psychology, and Beyond, Elena A. Erosheva, Ross L. Matsueda, Donatello Telesca

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Christopher D. Steele, David J. Balding•Using League Table Rankings in Public Policy Formation:

Statistical Issues, Harvey Goldstein•Statistical Ecology, Ruth King•Estimating the Number of Species in Microbial Diversity

Studies, John Bunge, Amy Willis, Fiona Walsh•Dynamic Treatment Regimes, Bibhas Chakraborty,

Susan A. Murphy•Statistics and Related Topics in Single-Molecule Biophysics,

Hong Qian, S.C. Kou•Statistics and Quantitative Risk Management for Banking

and Insurance, Paul Embrechts, Marius Hofert

Access this and all other Annual Reviews journals via your institution at www.annualreviews.org.

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