Wiebelhaus-Brahm on Sikkink, 'The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics'

Kathryn Sikkink
Eric Wiebelhaus-Brahm

Kathryn Sikkink. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton, 2011. viii + 342 pp. $27.95 (cloth), ISBN 978-0-393-07993-7.

Reviewed by Eric Wiebelhaus-Brahm (Florida State University)
Published on H-Human-Rights (June, 2012)
Commissioned by Rebecca K. Root

On the Rise of Transitional Justice

Kathryn Sikkink’s new book is an engaging look at the rise of transitional justice and the effects of the developing accountability norm on state behavior. Sikkink refers to this development as the justice cascade, which she defines as “a shift in the legitimacy of the norm of individual criminal accountability for human rights violations and an increase in criminal prosecutions on behalf of that norm” (p. 5, emphasis in the original). The first half of the book traces the reasons behind the justice cascade. The second half reviews evidence as to whether the growing frequency of trials has promoted positive developments in areas like democracy and human rights. In the parlance of social science, she alternately treats transitional justice as dependent and independent variable. Finally, the book concludes with an exploration of the policy and theoretical implications of the justice cascade. Transitional justice scholars may be disappointed with the limited amount of new research, but students and nonspecialist audiences will find the text very accessible.

In the first part of the book, Sikkink looks at the early transitions of the “Third Wave” of democratization. Democratic transitions happened first in Greece, Portugal, and Spain. For each country, she provides an overview of the transitions and the methods of transitional justice that were pursued in the aftermath. Greece and Portugal prosecuted some former officials, while the Spanish parliament approved an amnesty law in 1977. The histories are interesting, if brief and somewhat atheoretical. In particular, the absence of a discussion of official efforts to deal with the past in Spain under Jose Luis Rodriguez Zapatero is a glaring omission. Moreover, it would have been helpful to incorporate the theoretical argument throughout the chapter. As it stands, theory is confined to the chapter’s conclusion. Finally, transitional justice scholars with an interest in southern Europe may be surprised by her underestimation of the amount of scholarly attention to transitional justice in southern Europe.

The chapter on Argentina similarly provides an overview of human rights abuses that gave rise to demands for justice and the transitional justice measures that were pursued after the democratic transition, namely, the National Commission on the Disappeared (CONADEP), the contentious prosecutions during the Alfonsin administration, and more recent trial activity. President Raul Ricardo Alfonsin, the first democratic leader after the transition, faced several coup attempts over the expansion of prosecutorial activity against the military. He ultimately approved the Due Obedience law that effectively provided amnesty for the military. Sikkink argues that many observers wrongly took from Argentina’s experience the lesson that trials cannot be held. This is true, but the lesson appears to be that widespread trials cannot be held, at least not right away. The chapter is somewhat disappointing in that it spends most of its time on how transitional justice choices were made in Argentina and on describing the processes themselves rather than their aftereffects. (More discussion of developing innovative legal strategies to circumvent amnesty would have been welcome, for example.) As it is, the chapter reflects the transitional justice literature’s tendency to focus on the immediate transition period.

Reflecting on these early transitions, Sikkink notes that, although Greece and Portugal prosecuted members of their respective military regimes after democratic transitions, these experiences did not resonate globally. By contrast, Argentina became hugely influential. Part of the reason she offers is structural. Domestically, she points to the balance of power at the transition, as have many other scholars, as well as the nature of the judicial system, which in Argentina permitted more diversity in judicial background and active participation by civil society in criminal cases. Internationally, Argentina was at the forefront of a regional democratization trend. Other Latin American countries looked to its transitional justice experience. In addition, Argentine human rights organizations were better organized and more globally connected than those of southern European states.

One of the strengths of the first part of the book is its focus on individuals as agents promoting the justice cascade. Sikkink provides interesting profiles of several individuals most responsible for promoting the justice cascade. Argentines like Juan Mendez and Luis Moreno-Ocampo gained international prominence through their work in drawing attention to the junta’s abuses and in the pursuit of justice in Argentina and beyond. By focusing on the role of particular individuals, she convincingly traces how Argentina has mattered much more for the justice cascade. Sikkink does something similar with the development of international legal obligations to prosecute. She also profiles key individuals like Cherif Bassiouni and Aryeh Neier who make up the part epistemic community, part activist network of international lawyers who helped to create the Convention on Torture and the Rome Statute on the International Criminal Court (ICC) that Sikkink sees as important developments in promoting a prosecutorial norm. Theoretically, she argues that “agentic” constructivism provides a more compelling explanation for the justice cascade than coercive power, structural power, or structural constructivist theories. Overall, she proposes a Kuhnian view to explain the evolution of global norms. Sikkink argues that rationalist and structural explanations are useful in times of normative stasis, but we need an agent focus to understand change. With respect to the justice cascade, the opportunity for change came about due to the “shock” of the brutality of 1970-80s Latin America. Once conditions were ripe (the Cold War had ended and international human rights law was in place), domestic and transnational norm entrepreneurs were able to spread the prosecution norm.

To describe the evolution of the justice cascade, Sikkink employs the metaphor of streams. She argues that the growth of prosecution has proceeded in two streams: an international stream through Nuremberg and subsequent UN-sponsored international tribunals; and state prosecutions of domestic crimes and of cases under universal jurisdiction principles. She sees these streams converging with the ICC. To continue the metaphor, international lawyers have constructed the streambed on which justice has cascaded by developing international criminal law that places increasing prosecutorial obligations on states as well as by developing mechanisms, namely, the ICC, to step in when states are unwilling or unable.

The second half of the book turns to the effects of the justice cascade. Here, Sikkink first explores the consequences of conducting trials (and to a much lesser extent truth commissions) for societies in transition. She considers the evidence for prosecution advancing or undermining efforts to promote democracy, human rights, peace, and the rule of law, first in Latin America and then around the world. The chapters are based on earlier coauthored research. For scholars familiar with this earlier work, her main addition is her critique of competing large-N research that has yielded contradictory findings with respect to the impact of prosecutions on transitional societies. Some of her criticisms of Tricia A. Olsen, Leigh A. Payne, and Andrew G. Reiter’s work (Transitional Justice in Balance: Comparing Processes, Weighing Efficacy [2010]) on measurement and modeling are valid, but Sikkink’s own coauthored work could be critiqued on similar grounds. Other disagreements are on interpretation of data. Whereas Olsen, Payne, and Reiter see the growing use of amnesties as evidence that a prosecutorial norm does not exist, Sikkink argues that this indicates that perpetrators fear prosecution and so demand amnesties more frequently, which is a sign of the norm’s strength. In reality, both projects measure amnesties in a crude way that does not do justice to the diversity of forms that they have taken. This points to a more general measurement issue of how to quantify transitional justice in statistical research. Sikkink makes a reasonable argument that counting the number of trial years is a strong indicator of how routine trials have become. Nonetheless, the measure seems to value long, drawn out trials over the more efficient delivery of justice. It also would be defensible to look at only high profile trials, which are more likely to have dramatic societal effects.

Another methodological issue deals with causation. Since quantitative methods are not very effective in identifying causal mechanisms, Sikkink uses some examples to illustrate the point. Some conclusions, while theoretically plausible, are stretches. For example, she argues that trials help consolidate democracy by warning spoilers. This may fit some cases, but not Argentina where most trials came well after democratization. Conceptually, it is inappropriate to count those trials right after the democratic transition that were reversed by the amnesty law. Moreover, she argues that prosecutions can be an alternative to military intervention. However, even if one believes her findings that there is no trade-off between peace and justice, she is testing claims where there already has been a transition, not where fighting is still ongoing.

Sikkink presents a new piece of research in this section that looks for evidence of the justice cascade in the George G. W. Bush administration’s authorization of torture in the “war on terror.” She argues that the behavior of individuals and agencies within the administration demonstrates a major concern over the potential for domestic and international prosecution for torture. The Convention on Torture contains some of the strongest language of any international human rights treaty with respect to state obligation to punish violations of the convention. For Sikkink, the CIA’s concern about getting legal protection and the administration’s attempts to portray its behavior as in compliance with international law demonstrate the power of the justice cascade. Based on the justice cascade, she is optimistic that eventually there will be prosecution for torture under the Bush administration. However, I do not share her confidence that a full repudiation is in the offing. Former Bush administration officials’ travels may be curtailed to avoid prosecution under universal jurisdiction, but the United States does not crave international approval like many transitional states and it has a historic hostility to international law and institutions.

One lingering question throughout the book is how global the justice cascade is. The chapters on the emergence of the transnational justice network are dominated by actors from Latin America and Europe, with some important exceptions. In addition, with 80 percent of domestic trials in her data happening in the two regions, it is debatable how much of a cascade there is (yet). Later in the book, Sikkink argues that she has witnessed demand for individual criminal liability everywhere she has done fieldwork. Yet her work has been confined to Western countries.

One of the more fascinating aspects of the book is the insight into Sikkink’s intellectual development. In many respects, this book is an autobiography of a prominent scholar of political science and transitional justice. She is deliberate in showing how the origins of the justice cascade coincided with her early development as an activist and scholar. Readers get a good sense of her career path. Moreover, in her discussion of her coauthored research on transitional justice impact, Sikkink is candid in describing the process of developing research projects, constructing datasets, and making methodological choices. In general, graduate students and junior scholars may be interested in the book to trace her career path.

Overall, The Justice Cascade provides a very accessible introduction to transitional justice and many of the important debates in the field that will be of particular benefit to students and nonspecialist readers. For example, Sikkink gives an effective theoretical overview of the justice cascade. Throughout the book, her explanations of methodological, theoretical, and conceptual issues use nontechnical language. As such, the book would be an effective text for an undergraduate course. Transitional justice specialists familiar with Sikkink’s earlier work and early transitional justice cases in southern Europe and Argentina may find less original arguments here. While the description of the data on the justice cascade and its effects is very brief, much of it is helpfully available in appendices. However, interested readers would be better served by consulting her earlier publications. The book is unlikely to win too many converts. Transitional justice advocates are likely to warmly welcome her findings, which support their arguments on the value of prosecutions. Transitional justice skeptics, by contrast, will not be persuaded by the book. Given the lack of decisive evidence either way, the debate about transitional justice impact is not going away anytime soon.

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Citation: Eric Wiebelhaus-Brahm. Review of Sikkink, Kathryn, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. H-Human-Rights, H-Net Reviews. June, 2012.
URL: http://www.h-net.org/reviews/showrev.php?id=35060

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