Justice Cascade
California Lawyer

Justice Cascade

How Human Rights Prosecutions Are Changing World Politics

August 2012

W.W. Norton & Company, 342 pages, $27.95, hardcover

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The conventional wisdom used to be that international human rights law sounded great on paper but had few teeth. Well, not anymore.

As forcefully argued by University of Minnesota professor Kathryn Sikkink in her new book, The Justice Cascade, the past several decades have seen the emergence of a new societal norm that supports personal accountability for perpetrators of genocide, mass executions, disappearances, and other crimes against humanity. Borrowing from legal scholar Cass Sunstein, Sikkink calls this a "justice cascade," in which government actors are losing their sovereign immunity for acts that violate international human rights law.

In the past, a head of state who was responsible for mass killings or other atrocities was usually considered beyond the reach of the law, free to live comfortably in exile after being forced to leave his country. Sikkink calls this the "impunity" model. This model reigned for centuries, originating in common law and other ancient practices that held the sovereign to be beyond the legal process for wrongdoing.

After World War II and the shocking revelations of the Holocaust, the impunity model began to lose some of its power as a norm. The world shifted toward the "state accountability" model, which holds a state responsible for such conduct and provides for remedies and damages. This model is the basis of many of the treaties drafted in the wake of World War II, and it remains at the center of much of the United Nations' human rights apparatus. Unfortunately, as many critics have noted, this model has weak mechanisms for enforcement, which provide little recourse if the state in question refuses to take responsibility.

But according to Sikkink, by the 1980s another approach gained traction: pursuing criminal prosecutions against former heads of state and other individuals for human rights violations. Sikkink takes the reader through the history of postwar human rights campaigns, from Greece and Portugal to Argentina, "truth commissions," and beyond, showing with specific examples how greater acceptance of individual criminal liability evolved.

And what of the United States? Sikkink devotes a chapter to the "war on terror" under the Bush administration, which includes a discussion of the famous "torture memos." Those memos, she says, show just how concerned White House lawyers were about what was going on in places like Guantanamo. Though the Obama administration has been unwilling to prosecute former officials, she says the U.S. has now at least "entered into the debate."

Of course, too many perpetrators still elude prosecution. But Sikkink insists that the "cascade" has begun, and that means heads of state can no longer assume they are beyond the reach of the law.

Anne Richardson, an attorney with Hadsell, Stormer, Richardson & Renick in the Los Angeles area, specializes in civil rights and human rights litigation.

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