Slowing Down “The Justice Cascade”

My general view is that critical book reviews are much more interesting than positive ones (unless it is of my own book, that is).  And so I read with great interest George Mason Law Professor Jeremy Rabkin’s takedown of Kathryn Sikkink’s new book “The Justice Cascade: How Human Rights Prosecutions are Changing World Politics.”  The Sikkink book argues, through an empirical study, that human rights prosecutions are having an important effect on changing international politics.  Rabkin’s criticism of the Sikkink “Justice Cascade” thesis, especially her choice of data and her odd method of counting, seems pretty powerful. Here is a small excerpt:

[Sikkink] 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. 

The review goes on to discuss, much more positively,  Ellen Lutz’s and Caitlin Reiger’s new book Prosecuting Heads of State.  But it is his critical take that stands out, and is worth considering.