Tag: international courts

Book Review: “The Justice Cascade”

My “Human Security” doctoral students just finished reading Kathryn Sikkink‘s new book on international tribunals and it is undisputably their favorite of all those assigned this year. Partly that is because it is written in clear, non-academic prose. Partly it’s the common-sense way in which Sikkink describes her methods and findings, and she ties her story concretely to ongoing policy debates. Partly it’s the way she weaves a portrait of her own intellectual journey into the writing. This book is going to have wide appeal beyond the academy for these reasons, but it was also notably very appealing to doctoral students for the same reasons, as they are hungry for scholarship to which they feel they can relate.

Beyond its appeal to the informed public and as a classroom text, The Justice Cascade makes significant intellectual, theoretical and empirical contributions to human security studies. The title is a little bit misleading since it implies that the story is about the rise of international justice as a norm… and it is, partly. But the real contribution is in demonstrating that trials and truth commissions work, especially in tandem. At least, these mechanisms appear to correlate somewhat to certain favorable outcomes, not least of which is a decline in human rights repression; and notably, in contrast to earlier work by Jack Snyder and Leslie Vinjamuri, her analysis shows such mechanisms certainly do no harm.

This finding should not be understated. Many have made similar arguments in the past, but none of the literature was particularly systematic or well-conceived: Sikkink’s own earlier quantitative work on the topic was either region-specific or failed to control for other causal factors. In fact a 2010 overview of the state of the TJ literature by Oskar Thomas, Jim Ron and Roland Paris concluded that it was impossible to know whether TJ worked due to absence of good data, over-reliance on case data, and conceptual incommensurability.

Sikkink’s new book is a redounding riposte to these claims, providing a much more careful systematic treatment of the relationship between trials and truth commissions and the deterrence of human rights abuses than anything I’ve read. She ties together a career’s worth of research on the subject, describing the evolution of the “norm cascade” toward individual state-level accountability for human rights abuses, documenting the effects within Latin America and then replicating these tests on a new global data-set. Throughout, she is careful to discuss the different analytical ways of thinking about “effects” of transitional justice, and she is clear on her coding and the trade-offs in some of her conceptual choices. Other scholars, she acknowledges, have created different data and found different results, but Sikkink’s reaction to that has been to team up with these colleagues on a new project aimed at reconciling the two sets of findings. So she describes her path-breaking conclusions with humility. Her work is a model of normatively-driven, empirically rigorous, policy-relevant social science.

I have only two mild critiques. The first is that I would have loved if the global deterrence chapter had explored differences between types of tribunals. An important policy question animating discussions of how to try Assad, for example, is whether international tribunals have advantages over local courts. It’s not clear to me that Sikkink’s data reflects the kinds of important variation that we see here: in fact my impression (though I’ve not look at the dataset itself) is that she coded only state-level courts. So there are open questions about the role of international institutions and the transnational international justice epistemic community in creating the outcomes she documents. I am hoping some of these more nuanced variables will be reflected in her new work with Leigh Payne.

My other set of questions has to do with the final empirical chapter on US policy post-9/11 and what this means for the “justice cascade.” First, the chapter itself is brilliant for what it is: it’s the best descriptive overview I’ve seen of the rhetorical mechanisms the Bush Administration used to stave off prosecution for its violations of human rights and humanitarian law in the war on terror (or at least, the best overview situated within the IR theory on norms). But the chapter makes an explanatory claim as well – that the efforts of the US to reinterpret international law indicate the strength of the justice cascade, rather than heralding its decline. Here Sikkink’s argument is weaker: it would be fairer to say she has advanced a new and very interesting hypothesis than that she has adequately demonstrated a finding on this point: the chapter includes no counter-factual comparison to earlier US administrations or to the behavior of other states in the same period; and no genuine causal assessment, actually, of whether the US would have behaved differently in the absence of the justice cascade. Plus it largely ducks the other question of whether a superpower’s malfeasance affects the legitimacy of the international norms it’s breaking, or only its own.

Still, both because of its many strengths and because of these small flaws, the book is absolutely ideal for teaching graduate students about how to do systematic, policy-relevant social science and to communicate it to wide audience. We ended by considering whether Sikkink could have written this book in this way straight out of grad school. Probably not: junior political scientists are still safer if they publish a few books with university presses in the style of Activists Beyond Borders before moving on to this more public-intellectual style. But this discussion not only inspired students to think about the justice cascade – it inspired them to visualize themselves at different places in their careers, as scholar-practitioners embedded in the human rights epistemic community, helping build social justice through research.


More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.


Learn to Love Lawfare

Photo courtesy of Etsy. The perfect lawfare key chain!

Over at the Lawfare blog, Jack Goldsmith recently offered up a “mea culpa” on his changing views of the concept and practice of lawfare. I don’t want to address the specifics of that post, but this and the Libya situation got me thinking again that a non-pejorative conceptualization of lawfare needs to be put forward. Particularly in the context of the International Criminal Court. Stay tuned. But for now…

Charles Dunlap defends that his original conception of lawfare was meant to be a neutral one. But it has since been co-opted by various scholars and political actors as a pejorative accusation – meant to delegitimize those who abuse law for strategic purposes. There’s an important distinction to be made though between the understanding of lawfare as a strategic weapon of war versus a coercive alternative to war. Specifically, there is a normative gap between the pejorative conceptualization of lawfare in the realm of U.S. national security and as a “weapon of the weak” to constrain U.S. military power, and the multilateral realm of international criminal law where the lawfare of the ICC and other tribunals is viewed as a a benchmark of moral progress.

Certainly, this latter form of lawfare is both coercive and strategic, whether it’s arresting war criminals or threatening judicial intervention if human rights abuses are not curbed. Therefore, this use of lawfare is meant to prevent and end conflict, not provoke it, entrench it or restrain legitimate uses of military force. The combined use of judicial and military intervention, in the Former Yugoslavia, Sudan, Libya, and Cote d’Ivoire, etc., underscores this trend.

Among the few that have addressed this understanding of lawfare are those that participated on the international tribunals panel at a conference on lawfare at Case Western University School of Law a year ago. (I posted a brief summary of this conference here.) Discussion of the ICC was scant and the selected quotes below, from the subsequent special journal issue, demonstrate there’s little consensus on lawfare in this realm so far.

Justice Ogoola on the peace vs. justice nexus in Uganda:

“In many senses, lawfare is the opposite, indeed the very antithesis of warfare. Warfare is the ancient, primitive, and largely discredited mode of dispute resolution between nations and among peoples. Lawfare, on the other hand, has all the civilized undertones of letting the law fare well in the struggle to achieve peaceful resolution of disputes. If has the ring of due process, of the doctrine of the rule of law, and rule of reason – of the principles of fairness, equity, and justice in bringing a peaceful end to a  violent conflict.”

Robert Petit on political interference by the Cambodian government in the ECCC:

“If, however, we intend lawfare to equate to what is more traditionally viewed as political interference in the application of justice, then yes, lawfare is practiced in International Criminal Law.”

David Crane on the “take down” of elite perpetrators and Charles Taylor for the Special Court for Sierra Leone.

“The law is a powerful tool. Some say it can be used as a weapon. That power was used to bring down the most disruptive and evil warlord in Africa and his co-defendants not just by the stroke of a pen on March 3, 2003, but in the execution of two operations, Operation Justice and its follow-on Operation Rope.”
“The term – lawfare – has been viewed somewhat negatively and at best as a clever turn of a phrase. Used in the appropriate context it can be a force for good and positive change.”

David Scheffer on accusations against the legitimacy of the International Criminal Court:

“I plead guilty to being a major perpetrator of lawfare, on behalf of the U.S. Government, during the 1990s. My mission…was to use the power of the United States to build international and hybrid criminal tribunals that would subject the leaders of other nations and rebel movements engaged in warfare, including internal armed conflicts, to international criminal justice. I used the law aggressively and continuously and sometimes such actions served as at least a partial rationale for avoiding the use of American armed might or more political negotiations.”

“The commentariat believe that the ICC may be used by weak nations or by a rogue prosecutor to isolate and shame the United States. They fear that lawfare will prevent Washington from using its military power for just cause through the threat of investigation and prosecution of its often controversial policies and actions.”

There’s clearly room to interpret the ICC’s, or any international tribunals’, intervention in escalating conflict as a legitimate form of lawfare. Understandably, advocates of international justice will not want to associate such institutions with coercion, violence, and political strategy. But saving the concept as an alternative, not means, to war opens the door to a better understanding of the ICC’s potential role in conflict resolution.


Duch-ing the issue: International Justice in Cambodia?

Lots happening on the international law front – A Spanish judge (not Garzon!) has indicted three American soldiers who fired upon a hotel in Iraq which resulted in the death of a Spanish journalist. (Those Spanish judges sure love their universal jurisdiction…) Also, the Cluster Munitions Treaty came into effect.

But perhaps the biggest international law story of the week was that of the conviction of Kaing Guek Eav or “Duch” by the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (aka Cambodia Tribunal).
However legal scholar Peter Maguire isn’t so sure. In a rather scathing critique of the Court he highlights several major problems, including:

  • It has lost the support of the (what seems to be increasingly corrupt) Cambodian government
  • That the Cambodian members of the Court are more anxious to please the wishes of the government than carry out objective investigations
  • That there have been allegations of corruptions and the fact that the Court is running at ‘a conspicuously slow pace’.
  • That although the Court was predicted to cost $20 million (US) per year, “the court has already spent at least $70 million and convicted only one suspect.”

But he leaves, perhaps , the most scathing critique for the ‘cheerleaders’ of international justice:

The biggest problem facing the ECCC is living up to it’s own hype. Claims that such trials lead to healing, closure, truth and reconciliation are speculative at best. How does one measure “healing, closure and reconciliation”?
While most Cambodians would like to see the Khmer Rouge leaders punished, they’ve grown used to seeing common thieves and their government’s political opponents suffer far worse punishment than that meted out to Duch. Bou Meng, a survivor of the Tuol Sleng prison, described Duch’s sentence to reporters as “a slap in the face.”
The U.N. legal experts and their cheerleaders in the human rights industry have lost sight of a basic fact: No matter how procedurally perfect the ECCC is, if it outlives the people it was supposed to try, it cannot be judged a success.

This is quite simply the most interesting article on international criminal justice that I have read in a long time.

The other fascinating aspect of it is his condemnation of the fact that the prosecution has decided to add the charges of genocide to the list facing the accused. He does not pretend that what happened under the Khmer Rouge was in any way not brutal, but points to the fact that this has really only made the case for the prosecution harder. “Proving” genocide is one of the hardest possible things as it requires evidence of intent. It was something that caused great difficulty in prosecuting Milosevic (until he did everyone a favour and managed to die in jail). Again, as Maguire notes:

None of the four defendants were hands-on killers like Duch — they simply issued orders from on high. Thus their cases will require the tribunal to take a much broader view of their legal mandate. Unlike Duch, these defendants were careful to distance themselves from the atrocities.

I must admit that I was more optimistic about the Court until I read the article. Then again, to be honest, I hadn’t been paying much attention to it. I was aware that it’s a “hybrid” Court – both a national and international court, with staff from both, like the Special Court for Sierra Leone. The benefit of such Courts for some NGOs and advocates is that while they are still under the ‘universally accepted principles of international justice’ (ie: due process and the like) they also serve as a teaching tool for the rule of law in countries where it has effectively been broken down. (For the US the advantage is to show that ad hoc courts work just as well, or better, than the ICC – something that it has a clear policy interest in, for better or worse.)

However, given what Maguire is saying above, this clearly appears to not be the case. In fact, it sounds as if it may be playing a role in helping an increasingly undemocratic government in Cambodia.


Garzon’s Reign in Spain Falls with Mainly Who to Blame?

It was announced last week that Judge Bathazar Garzon will be investigated for over stepping his authority for knowingly taking on a case that was outside of his jurisdiction. Garzon is, of course, famous for indicting Chile’s General Pinochet for crimes against humanity in the 1990s which lead to his arrest in London (although he eventually was let go on medical ground – and died).

Since 2008, Garzon had apparently been turning to domestic figures, looking to open an investigation and prosecution against those Spanish officials which allegedly were involved in acts during the Franco dictatorship that could amount to crimes against humanity. While there is a 1977 amnesty law – passed to help with the transition to democracy – it was Garzon’s contention that such a law could not cover crimes against humanity and therefore officials could be prosecuted.

The probe into Garzon came after two far right political groups brought legal action against him. For his part, Garzon is arguing that the probe amounts to a serious attack on judicial independence.
Clearly the situation is serious for Garzon because it will probably suspend his career for some time and it could result in him losing all of his judicial powers in Spain.
A couple of thoughts on this –

Reaction from the left and right has been fairly predictable. This article on the Guardian website declares that “justice itself may be the victim” if Garzon is found guilty. His indictment of Pinochet is described as ushering in “the heyday of international justice”.

Really? A heyday? It never seemed like much of a heyday to me – the number of war crimes trials is still relatively low and predominantly focuses on African countries.

Additionally, the movement to setup the ICC had already been established by the time of Garzon’s indictment of Pinochet and the ICTY and ICTR were already functioning (sort of in the case of the later). Garzon is not and does not singlehandedly represent international justice… just one kind of form of it that people on the right tended to find irritating.

Speaking of the right, Eric Posner today describes the charges in the Wall Street Journal as “the end of a failed experiment in international justice” and that universal jurisdiction “increasingly and thankfully, looks like a pipe dream”. Posner then predictably launches into an assault against international law the ICC.

The problem with Posner’s argument is that what Garzon was doing and what the ICC does are very different things. The former was using universal jurisdiction within his own state to prosecute those he saw as war criminals in Europe. The ICC on the other hand has a Statute and binds member states (although citizens of a non-state party may be indicted if they commit a crime on the territory of a party).

Of course there are some similarities here but Posner is making a mistake in assuming that there is one giant global justice movement (although sometimes even international lawyers like to portray it that way). There are different approaches and different legal mechanisms. Stopping Garzon is not going to take away from the functioning of international courts.

However, one thing that Posner does get right, I think is that we have gotten away from the original purpose of universal jurisdiction :

Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice.

I think he has a point here – that international lawyers have tried to stretch a concept over a larger and larger areas where it may not necessarily fit so well.

Still, the key thing here in relation to Garzon is that the charges against him do not mean that the ICC will be going away anytime soon. Nor does it mean that global justice is collapsing forever. No one figure can represent all that is international legal justice.


Going to court

Serbia is going to the World Court today to ask for an advisory opinion on the independence of Kosovo. The US and most of the EU has recognized a new Kosovar state; Russia, Serbia, and most of the rest of the world has not. The Serbian Foreign Minister observed that the decision to go to court marked a “paradigm shift…the first time in the history of the Balkans that somebody

has decided to resolve an issue of significance using exclusively peaceful means.” That’s a bit of a stretch. Serbia’s ambassador to France said that Kosovo’s declaration, as well as its recognition, “is a challenge to the international legal order, based as it is on the principles of state sovereignty and territorial integrity.” He’s right.

That’s really what’s at issue here. A Serbian friend of mine constantly reminded me during the Kosovo War that what NATO was doing was a violation of fundamental legal norms, and while he was right he never quite grasped that his point may be increasingly irrelevant. The norms are changing. What are the new norms, and how will they emerge? An advisory opinion of the ICJ isn’t going to settle these issues, but it might have some influence on the debate. Keep watching.


International Justice: Miscarriages and Misconstruals

The latest on atrocity allegations between the parties to the smoldering conflict in the Caucasus, from the New York Times:

In South Ossetia, investigators began to look into accusations of atrocities. Human Rights Watch reported that researchers witnessed “terrifying scenes of destruction” in four ethnic Georgian villages, and said the villages had been looted and burned by South Ossetian militias.

Some thoughts: I’m happy to see a joint like Human Rights Watch has got boots on the ground, but surprised it’s allowing its researchers to issue subjective statements like this, which have very little value other than for propaganda. How terrifiying a scene of destruction may be is probably as much a product of how inexperienced or, on the other hand, jaded, a particular HRW researcher is as of any objective facts. Come on, how about some specific evidence to help us sort out competing claims of atrocity? That’s your comparative advantage, eh?

Anna Neistat, one of the researchers, said by telephone from Tskhinvali, the capital of South Ossetia, that they had found no evidence to substantiate Russian assertions of widespread brutality by Georgian troops. Human Rights Watch has been able to confirm fewer than 100 deaths.

Now, that’s very interesting. Doesn’t mean, of course, that there weren’t plenty more deaths… HRW errs on the side of conservative estimates, and deaths are often hard to confirm in these cases. But bear in mind that civilian dead doesn’t necessarily mean war crimes, since it’s perfectly legitimate under international law to kill innocent people as long as you don’t mean to. In other words, the equation of civilian body counts with “war crimes” is problematic. What matters is whether you can reasonably infer from the evidence of targeting decisions that the belligerents did not make attempts to minimize civilian casualties. Judging by the liberal body counts put forth by both sides, I’d say the evidence is scant so far… even 2,000 civilian dead sounds low to me if a military like Russia’s is hell bent on mowing down the innocent… what seems to have happened here was well-intentioned efforts to evacuate civilians from besieged areas, followed by attacks on infrastructure that caught some of the remaining civilians in the cross-fire.

Then there’s the looting that BBC reported in Gori:

“Russian tanks were in the streets as their South Ossetian separatist allies seized Georgian cars, looted Georgian homes and then set some homes ablaze.”

But again, let’s be careful not to infer a systematic Russian plan to commit atrocity from some random acts by victorious soldiers: this is quite typical in areas taken by siege (not excusable, of course, but typical): what we should watch for is how Russia reacts and whether there materializes any evidence that troops were instructed to behave this way. Only then can you claim that this constitutes evidence of a policy of anything like “ethnic cleansing.”

This is a term, by the way, of which we increasingly hear both parties accused. Before we toss it around too loosely, it’s useful to reflect on its history. Ethnic cleansing was a euphemism for forced displacement, originally developed by the Bosnian Serb Army drawing on Nazi discourse, and signifying the “pollution” of territory by the wrong ethnic group. It was ironically appropriated by Western powers during the conflict in ex-Yugoslavia as a way to avoid calling the killing “genocide” and invoking the responsibility to intervene. Conceptually, it best describes efforts to move people off disputed land in order to create a one-to-one relationship between nation (as a people) and state (as in territorialized political entity). In short, it’s both broader than “killing of civilians” (because it involves a concerted strategy to clear land, not simply to kill) and narrower (because it can involve merely displacement, not killing). As far as I know, however, ethnic cleansing is not a legal term reflected in any international treaty. Forced displacement, however, is a war crime – if indeed it’s occurring, rather than simply regrettable but unavoidable collateral damage.

Finally, returning to the New York Times:

Russian leaders have said they would like to bring Mr. Saakashvili to face war crimes charges in The Hague. Meanwhile, Georgia has filed a lawsuit against Russia at the International Court of Justice in The Hague for its actions on and around Georgia from 1991 to 2008, the court said in a statement.

This characterization would seem a little more accurate than the Georgian Deputy Interior Minister, who was quoted as claiming that:

“Georgian government is going to lodge a suit against Russia at the International Criminal Court (ICC) in The Hague, said Eka Zguladze, Georgia’s Deputy Interior Minister… Zguladze said that the suit contains facts of genocide against Georgians in Abkhazia in 1992, current developments and Russia’s acts in Georgia. Earlier, Russia announced it intended to file claims against Georgia at the ICC and the European Court of Human Rights in Strasbourg for the Georgian attack on South Ossetia. Russian prosecutors are now collecting evidence of genocide in South Ossetia.”

Georgia of course cannot “file suit” at the ICC in the Hague, since only the International Court of Justice functions like a civil court in which countries can sue one another: the ICC is a criminal court in which individuals are tried by an international institution, not by states.

Russia’s request that the ICC investigate war crimes and “genocide” make more procedural sense… but Russia will have to come up with more than 100 civilian dead to support an indictment like that, and also perhaps read up on the definition of genocide, which isn’t based simply on the killing of civilians but rather on the intent to wipe out a specific national, ethnic, racial or religious group – so far their version of events hasn’t really supported such a claim, just a claim of “war crimes” at best. But it’s cool to see them get behind the idea of international justice: so far they’ve refused to ratify the ICC statute, and Sudan was so confident of their anti-ICC stance that it recently asked Russia to block the indictment of Bashir in the Security Council. Perhaps the quest for the moral high ground will have a healthy socializing effect on Russia; one can only hope.

As for Saakashvili’s lawsuit at the ICJ, good luck: that court has less authority than Judge Judy. However I hope the case goes forward because it will contribute to clarifying some of the fascinating legal questions brought to the fore by these events, such as: is S. Ossetia a state? To what extent is sovereignty dependent on “the will of the people” in international law? How might nations understand the threshold requirements for the Responsibility to Protect? Excellent coverage of legal issues pertaining to this conflict here and here.


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