by Kathryn Sikkink
W.W. Norton, 2011, 342 pp., $27.95Prosecuting Heads of State
by Ellen L. Lutz and Caitlin Reiger
Cambridge University Press, 2009, 348 pp., $32
Marxists used to talk about “the march of history.” Kathryn Sikkink, an advocate for prosecuting human rights offenders, prefers the more high-minded but also more urgent metaphor, “justice cascade.” Still, this impersonal force, as her subtitle insists, is “changing world politics.” A “cascade” is hard to resist. You might try to flee, but you can’t take much time to reflect on your options.Sikkink herself has had a decade to reflect, however. She published an article (co-authored with Ellen Lutz) on “The Justice Cascade” back in 2001.1 At the time, there were substantial grounds to think that human rights prosecutions were gaining momentum.In 1998, former Chilean President Augusto Pinochet came to London for back surgery. A Spanish magistrate sought Pinochet’s extradition to Spain, in order to stand trial for extra-judicial killings following the 1973 military coup, which brought Pinochet to power. The Spanish magistrate had proposed a broad doctrine of “universal jurisdiction”, according to which courts of any state could try officials from any other state for human rights abuses in their home countries. British judges were divided on this doctrine. The highest court first endorsed a broad version of the “universal jurisdiction” claim and then, on a second appeal, narrowed the grounds of extradition to offenses that might violate the UN Convention Against Torture, which the judges read as authorizing such universal jurisdiction—for the period after the Convention was ratified by Chile and Britain, in the last two years of Pinochet’s 17-year presidency. Several other countries in Europe then offered to host their own Pinochet trials on broader grounds.The British government finally decided that Pinochet was too old and infirm to stand trial and allowed him to return to Chile. But the episode helped stir Chilean courts to undertake their own prosecution efforts against Pinochet and others in his military government, challenging the amnesty law with which Pinochet tried to protect himself and his followers before he yielded power to a democratic transition in 1990. A somewhat similar pattern (again with an attempted, though abortive prosecution in Spain) seems to have spurred Argentine officials to launch prosecutions of their own retired military dictators, starting in the late 1990s. With differing details, there were parallel developments in several other Latin countries, as formerly hesitant prosecutors pressed claims against previous dictators. One could argue, as Sikkink and Lutz did, that this was more than a pattern but actually a trend—perhaps even a cascade.Ten years later, however, there has been no second Pinochet case. No former head of state—indeed, no high-ranking official—has been tried by the national court of another country on the “universal jurisdiction” theory launched in the Pinochet case. To the contrary, the International Court of Justice ruled against Belgium in 2000 when the Republic of Congo protested that Belgian courts had no authority to prosecute a Congolese cabinet minister for abuses committed in the Congo. The Court agreed there was no settled basis in customary international law for such trials by outside states.Then, in 2003, a Belgian court announced that it was prepared to consider prosecutions against American Defense Department officials for excessive use of force in the first Gulf War. The United States let it be known that it was prepared to consider a demand that NATO headquarters be removed from Belgium. Belgium cut back its universal jurisdiction law. After somewhat similar, if less publicized episodes, Germany and Spain changed their laws as well. Meanwhile, the Security Council, after establishing special international tribunals for the Balkans and Rwanda in the early 1990s, lost patience with their slow pace and in 2003 demanded that the tribunals finish their work within the next five years.Sikkink reports none of these facts in her book. Instead, she offers “data” that purport to demonstrate that human rights prosecutions have been continuously increasing and generating worldwide improvements in the protection of human rights. One way she skews the data and her accompanying historical narratives is by starting her “count” (and her accounts) in the mid-1970s, when the collapse of authoritarian regimes in Greece and Portugal led to prosecutions of their top officials under the democratic governments that succeeded them.Sikkink’s choice of time period allows her to simply disregard the prosecutions of top officials in many European countries after World War II, such as the de Gaulle government’s swift prosecution of former President Philippe Pétain and his Vichy Prime Minister Pierre Laval. Further back, the restored Bourbon government had prosecuted some of Napoleon’s marshals, as the first French Republic had prosecuted the royal family and their top officials in the 1790s and as English rebels a century earlier had tried Charles I and members of his court. Even the attempted prosecution of President Bill Clinton, which took place in her restricted time period, disappears without a trace from Sikkink’s account. A look at earlier history would have reminded readers (or Sikkink) that such prosecutions have had their ups and downs in the past.The second thing Sikkink does to make her cascade look more unstoppable is to gloss over the distinction between successor regimes trying their predecessors and outside states (or outside tribunals) asserting criminal jurisdiction over officials in other countries (for actions taken in those other countries). While the former is in no way a novelty of recent decades, the latter is very much so. It’s not that Sikkink is unaware of international factors. She traces one “stream” leading to her “cascade” back to the Nuremberg and Tokyo war crimes tribunals and another to international human rights treaties, “culminating”, she says, in the Statute of the International Criminal Court in 1998. But by her account, it all seems to have flowed into one common cascade in the new century.Finally, Sikkink offers a data set based on a quite unusual way of counting. Instead of counting the number of convictions or even indictments, she counts the number of years in which human rights prosecutions were “ongoing” in each country. By this way of counting, de Gaulle’s swift reckoning with Vichy officials—which swept up several thousand collaborators—would count as a one or a two, while years of torpid legal fencing in Chilean courts, resulting in barely a handful of convictions, would count for ten times as much. Even then, to trust Sikkink’s data, you must rely on the tabulations of “human rights records” compiled by her research assistants from Amnesty International reports and other sources, whose reliability (or actual methodology) this volume does not assess.Using her own counting methods, Sikkink offers statistical evidence that countries with more human rights prosecutions tend to have better human rights records. Even if one accepts the claim, one might think the causation runs the other way. It may be that countries with more stable democratic institutions and a more securely established legal system can afford to pursue past human rights violations over a longer period. It does not follow that more human rights prosecutions are the best means of advancing human rights for every country, in every circumstance.To her credit, Sikkink does mention in passing that others who have investigated these questions, relying on different counting criteria, have found that the number of human rights prosecutions does not, in fact, correlate with human rights improvements, and that the countries that have seen the most improvement are those that combined amnesty laws with a selective set of prosecutions. An obvious explanation for these findings is that transitional democracies are likely to achieve more stability when they can reassure officials of the displaced regime that there will not be wholesale retaliation.Once one notices such complications, it’s hard to ignore the questions that Sikkink’s “cascade” metaphor seems designed to hurry out of view. There is the initial question of whether to compromise on full justice for the sake of conciliation or stability. Governments not only have prosecutorial powers to ensure legal justice but also pardon and amnesty powers to serve the overall public good. Then there is the ultimate question: Who should decide? To embrace “universal jurisdiction” or international prosecutions is to do away with the local power to pardon (since it cannot bind outsiders). Is it likely that outsiders will make better choices than officials of the affected country, particularly when that country (like post-Pinochet Chile) has a democratic government in place?Sikkink herself does not seriously consider these questions. She includes a whole chapter on whether Bush Administration officials will be “held accountable” for “torture” and other abuses relating to their anti-terror policies. She holds out hope that foreign courts will compensate for the Obama Administration’s disinclination to bring criminal charges for decisions made after the 9/11 attacks. It does not seem to occur to Sikkink that the desirability of such an outcome involves questions a bit more complicated than whether one does or does not approve of “torture.”Readers will get much more food for thought in the volume edited by Sikkink’s former collaborator Ellen Lutz, Prosecuting Heads of State (co-edited with Caitlin Reiger). Where Sikkink is a political scientist (and seems to have little patience for legal issues in the cases or treaty provisions she discusses), Lutz and Reiger were trained as lawyers, as were most of the contributors to this book. Lutz and Reiger compiled basic data on the 67 heads of state (from 43 countries) threatened with prosecution between 1990 and 2008. Fewer than half of the indictments actually resulted in trials; fewer than half of those trials actually resulted in sentences served, with pardons or commutations being a common occurrence.Equally striking, the majority of these prosecutions were not for “human rights” abuses but for “financial crimes” and “other crimes.” A fair number were brought, not by new democracies, but by governments (democratic or not) with scores to settle: for example, various military governments in Pakistan (which prosecuted two former Prime Ministers for financial corruption); the Mugabe dictatorship in Zimbabwe (which charged an out-of-favor Mugabe-era “President” with “sodomy”); the coalition in Bosnia (which charged a former Croat “Co-President” with “corruption”); the Lukashenka dictatorship in Belarus (which charged a former Prime Minister with “financial crimes and abuse of power”). Only two of the 67 heads of state (Serbia’s Milosevic and Sierra Leone’s Charles Taylor) were actually tried by an international tribunal (and in Taylor’s case, the trial was conducted by a special tribunal, where international prosecutors worked with local judges).Prosecuting Heads of State also offers valuable, detailed accounts of what actually happened in a number of these cases. The “cascade of justice” atmosphere allowed Rwandan President Paul Kagame to deal with a former President (and rival, as a fellow-Tutsi) in a manner that did not exemplify high standards of justice. The chapter on the trial of Milosevic makes it clear that the international tribunal, preoccupied with its own priorities (such as justifying NATO’s air campaign on behalf of Kosovo) failed to impress public opinion back in Serbia with the seriousness of the former dictator’s worst crimes. A chapter on Latin America (where nearly half these prosecutions were launched) indicates that the Pinochet drama did help to prod action in neighboring countries but also concludes that we may now “expect a downturn” in criminal investigations of top officials in Latin countries, particularly for human rights offenses.Abstract talk about “human rights” should not blind us to the awkward fact that the world does not agree on what should be classified as a “grave criminal offense”; still less does it agree on what risks are worth taking to punish such acts in particular circumstances. Neither of these volumes grapples with some large, looming facts in the background of global trends in “justice.” Millions of people were slaughtered by communist regimes in Russia and China, but no one has ever been prosecuted for any of the mass murders that occurred there. Even in the past decade, tens of thousands of civilians have been killed or displaced by Russian brutalities in Chechnya and by the Sri Lankan government’s suppression of ethnic Tamil rebels. North Korea is an ongoing horror. The UN Human Rights Council, of which Qaddafi’s Libya was a member in good standing at the start of this year, has preferred to ignore these extreme situations and focus unwavering attention on purported abuses committed by Israel (which then received more condemnations from that body than all other countries put together).Meanwhile, despite all the public denunciations of terrorism in the past decade, the United Nations has been unable to agree on a common definition, because too many UN members feel sympathy for some motives for terrorism. Neither the Convention Against Torture nor the proposed “crime of aggression” provisions in the International Criminal Court statute extend to atrocities by non-state actors. Western human rights activists and non-Western governments have had other priorities.Whatever the claims of justice, stopping ongoing abuses might seem far more urgent than punishing past offenses. Yet even the limited NATO intervention in Libya has provoked controversy. No nation has advocated outside military intervention in Syria or Sudan or other sites of murderous repression. It is true that criminal prosecution is a less intrusive sanction than hurling cruise missiles or Marines against an oppressive regime. But for that very reason, resort to prosecution might be invoked more impulsively. The Security Council’s first response to the turmoil in Libya was to unleash the International Criminal Court—which has made it much harder to arrange asylum for Qaddafi and to persuade him to agree to a peaceful transition.A world that finds it so hard to agree on first principles does not seem well equipped to sustain an international criminal code. The International Criminal Court, after a decade in operation, has not yet completed a single trial—and it has only started two so far. State referrals to the Hague Criminal Court have been very few, and cooperation in apprehending offenders may be even slower in coming. There may be very good reasons, after all, why what once seemed a justice cascade has now slowed to a trickle. 1“The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America”, Chicago Journal of International Law (Spring 2001).