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International rights prosecutions by 2022

Winter 2012 Strategic Futures

International rights prosecutions by 2022

What will have been the consequences of international human rights prosecutions by 2022?Helen Stacy

“By 2022, international criminal prosecutions of genocidaires and their henchmen will be a standard and uncontroversial function of the global system. International prosecutions of ‘big fish’ human rights violators will have triggered a cascade effect across national courts, regional and sub-regional human rights bodies, as well as hybrid institutions – all acting in concert to counteract the 21st century scourge of massively expanding international black markets in guns, drugs and trafficked people. The extradition of the final Serbian war crimes fugitives to The Hague, the trial of former Egyptian president Hosni Mubarak in Cairo, and Cambodia’s criminal convictions more than 30 years after the horrors of the killing fields, will isolate the chorus of trial skeptics and normalize criminal law as a tool in the kit of international human rights.

The International Criminal Court (ICC) will have a firmly established record of indictment, trial and sentence from across Latin America, Asia-Pacific, the Middle East and other regions of the world in which perpetrators are caught by the Court’s jurisdiction – changing the perception that it is a Western institution that picks on Africa. The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda will have completed their dockets – leaving in their place better-functioning national legal systems in Rwanda, Bosnia-Herzegovina and Kosovo. Strengthened regional and sub-regional human rights systems, aided by reliable evidence from willing and cooperative governments – and civil litigation to claw back the profits of corrupt government officials – will bootstrap up to international standards and resist retrenchment into ghettos of human rights abusers.

Most significantly, international criminal prosecutions will embolden new actors on the international human rights scene. International politics will comprise national, regional and sub-regional networks of trade, technology and philanthropic not-for-profit organizations that increasingly work with national governments. Relationships between governments, NGOs and capital will be symbiotic: nation-states need NGOs for their ideas and services; NGOs need nation-states to do the work of arresting war criminals; and corporations need governments to provide infrastructure. And all of these new actors need new technologies – cell phones, satellite positioning systems, genetically modified food strains – that impact people’s capacity to acquire information, to politically organize and advocate, and to win and lose in international markets.

The US will have joined the ICC – recognizing that even liberal democracies need supranational institutions. US foreign policy will no longer pressure foreign governments to improve personal freedom, while refusing to apply global or regional standards at home. As an international standard-setting nation, the US will increasingly turn to building relations with Asia-Pacific as a peaceable bulwark against a still-repressive China. Economic and human rights compacts with Libya and Tunisia will likewise isolate outliers in the Middle East.

There will still be outliers, to be sure – countries where corrupt and autocratic leaders use violence against their own population. The risks of these isolated nations cannot be understated. But by 2022, repressive politicians will increasingly choose democracy – rather than risk being hauled into the criminal dock or have their bloated overseas bank accounts drained of funds. Merging governmental and private efforts – UN resolutions, national foreign policies, NGOs, corporations, investors and individuals – will pressure nations such as China and Iran to endorse (perhaps in initially vague ways) international human rights standards. By 2022, human rights will be the only legitimate game in town and the litmus test for international and domestic credibility.”

» Helen Stacy is a Senior Fellow at the Freeman Spogli Institute for International Studies, and Director of the Program on Human Rights at the Center on Democracy, Development and the Rule of Law at Stanford University.

David Scheffer

‘We can gauge what will be the impact on world politics by 2022 of international human rights prosecutions by understanding what has happened over the last 30 years. The emerging reality is that such prosecutions in fact do have consequences, particularly in countries where severe human rights abuses and atrocity crimes (genocide, crimes against humanity, and war crimes) have occurred – typically under authoritarian or tyrannical regimes. Over time, there is a discernible diminution in such abuses and crimes in the wake of prosecutions of political and military leaders.

Professor Kathryn Sikkink of the University of Minnesota documents this trend in her new book, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. She and her team of researchers examined human rights prosecutions both domestically and before international criminal tribunals, and found that nations subjected to such accountability – as well as neighbouring countries in many instances – emerge as more respectful of human rights, and thus more law-abiding over the long-term. We need no longer to rely on anecdotal examples in order to prove the worth of human rights prosecutions. There is now empirical evidence to support the proposition that there are positive outcomes in such exercises – be they before national courts or before international criminal tribunals.

By 2022, few political or military leaders will exercise their power without a fairly good understanding that they seriously risk being held accountable, someday, before a court of law, either domestic or international, for violations of international human rights law or atrocity law – namely, the specialized law being developed by the international criminal tribunals. To date, 120 nations have joined the ICC. The number of States Parties will grow by 2020. By then, it is hoped that the US will be part of the ICC, and that it will fully embrace its denial of leadership impunity. A Jordanian diplomat has suggested that this would be “the biggest step forward in law since the Magna Carta.” The age of leadership impunity has been nearing its end for many years now, and by 2022 will be viewed largely as a historical relic.’

» David Scheffer is a law professor at Northwestern University School of Law and former US Ambassador at Large for War Crimes Issues. His new book is All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton University Press, 2012). He was recently appointed Special Expert on the UN Assistance to the Khmer Rouge Trials.

Leila Nadya Sadat

“Because the question refers to ‘prosecutions,’ and not litigation, it presumably targets the worst sort of human rights abuses – those that give rise to individual criminal responsibility, such as genocide, war crimes, crimes against humanity and torture. These are justiciable in the ICC, but subject to severe jurisdictional and procedural limitations. They are also justiciable in national courts either under universal jurisdiction or as an element of post-conflict justice, and in international or mixed criminal courts such as the International Criminal Tribunals for the former Yugoslavia and Rwanda.

By 2022, we can assume that there will no longer be any mixed or international criminal courts, as they will have completed their work. There appears to be very little enthusiasm for establishing new ones. At the same time, the Rome Statute will have achieved nearly universal ratification if the current rate of state adherences (six to eight per year) remains steady. That would bring the total number of countries adhering to the Statute to between 175 and 183, or nearly every country in the world. At present, 120 states are parties, but many powerful and populous states – including three of the five Permanent Members of the Security Council – China, Russia and the US – remain outside of the Rome Statute system. Politically, it will become increasingly difficult for states to remain outside of the Rome Statute system as the number of ratifications continues to increase. Additionally, in 2017, the ICC will likely include within its jurisdiction the crime of aggression, although ratifications of the Kampala amendments introducing that crime have been slow. It is quite possible that states that have thus far adopted a ‘wait and see’ approach to the Statute, such as India, may join once aggression is part of the Court’s Statute.

It is therefore likely that the effect and reach of the Statute – directly through international prosecutions, and indirectly in catalyzing and supporting domestic prosecutions – will continue to grow. It will become increasingly difficult for states to offer exile or otherwise shield those accused by the Court, and the Court should, as a consequence, have increased success in implementing its arrest warrants. This may have an important deterrent effect on the commission of atrocity crimes, as government leaders (and rebels) internalize the idea that there will be some degree of accountability for their actions. It is likely that the kind of regional anti-ICC politics now evidenced by African nations will diminish as the Statute moves closer to the goal of universal ratification, and as accused from countries outside of Africa are charged by the ICC Prosecutor. For its part, the US will come under increased pressure to ratify the Statute and, over time, the current domestic objections to ratification should dissipate. Entry of the US into the Rome Statute system – if it can be achieved by 2022 – will evidently strengthen the Court considerably as well.”

» Leila Nadya Sadat is Henry H. Oberschelp Professor of Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law.

Leonid Kosals

“The impact of international human rights prosecutions will have been tamed in accordance with the rising ‘price’ of removing autocrats from office. Indeed, more moderate regimes of prosecutions will prove more effective than monochromatically tough ones in the case of countries in which human rights are not deeply embedded in the domestic political culture. Autocrats at risk of inflexible international human rights prosecution are more prone to violate human rights – often brutally – in order stay in power. For instance, Russia’s political elites – now unstable and confused after the mass demonstrations at the end of last year in Moscow – are developing two contrasting responses to public protest: surrender, on the one hand, and tough reply, on the other. Surrender means gradual liberalization in economic and political affairs in order to create a more competitive total system. (This approach threatens the Putin clan.) The ‘tough reply’ approach involves violent repression of political opponents. In this sense, a straightforward or pedantic threat of international human rights prosecutions could well beget Tiananmen Square-like clampdowns and push Russia toward the ‘Chinese path’ of hard political autocracy under a market economic system.”

» Leonid Kosals is Professor of Sociology in the Moscow Higher School of Economics.

(Photography: The Canadian Press / Helen Sinith)

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