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With human-rights prosecutions, delays and backlash are the rule — but justice often does come

The murder trial of ousted Egyptian President Hosni Mubarak encountered difficulties this week when prosecutors said that video evidence provided by the intelligence agencies was “worthless.” Egyptians concerned about justice need not lose hope, but they should be aware that the path to judicial accountability is often full of detours.

Kathryn Sikkink
Kathryn Sikkink

Human-rights prosecutions around the globe have grown dramatically in the last 20 years, but in no case have they occurred smoothly and without delays, backlash, push-back and unexpected legal maneuvers. These prosecutions are taking place in international tribunals, like the Ad-Hoc Tribunal for the former Yugoslavia, (the ICTY); in “hybrid” international-domestic courts, like the Extraordinary Chambers in Cambodia; in foreign courts, like the prosecution Gen. Augusto Pinochet faced in the U.K.; and in domestic courts, like the ones in Egypt. At each of these levels, delay has been the rule, not the exception.

Only with the long-term view can the trend toward individual criminal accountability for human-rights violations, the trend I have called the Justice Cascade, be discerned. Writing about the possibility of human-rights prosecutions is his 1991 book, “The Third Wave: Democratization in the late Twentieth Century,” Samuel Huntington said, “In new democratic regimes, justice comes quickly or it does not come at all.” The single most forceful finding of my research is that in that statement Huntington was completely wrong. Justice comes slowly, and in the eyes of the victims, often painfully, unacceptably slowly, but, surprisingly, it often does come.

Domestic courts in Uruguay took 20 years after transition to sentence former authoritarian leaders Juan Maria Bordaberry and Gen. Gregorio Alvarez to 30 and 25 years in prison for ordering the murder of political opponents. The Extraordinary Chambers in Cambodia issued its first conviction last year, over 30 years after the horrors of the killing fields. When the ICTY was first set up in 1993, supporters of justice were deeply skeptical. They pointed out that the tribunal did not have the support of NATO troops to arrest war criminals and would only try the small fish it could stumble across. In his book “Stay the Hand of Vengeance,” Gary Bass wrote that the establishment of the ICTY was an “act of tokenism” by the world community. “The tribunal was built to flounder.” And flounder it did, for quite a while.

Leaders eventually were caught
But eventually the big fish — Slobodan Milošević, Radovan Karadžić and Ratko Mladić — were all apprehended, and in the last month, Serb officials handed over the last fugitive wanted by the tribunal, Goran Hadzic. Justice has not come quickly in the Balkans, but eventually, and as a result of the myriad efforts of countless individuals committed to justice, it is coming. Some felt justice was cheated when Milošević died in his cell in The Hague before he could be convicted for his crimes, or when Gen. Pinochet died in Chile before he was convicted in multiple prosecutions for both corruption and human-rights violations. But even without verdicts, other repressors are not comforted when formerly powerful heads of state like Milošević and Pinochet die facing disgrace and almost certain imprisonment.

The most hopeful evidence from my research is that prosecutions actually appear to deter future human-rights violations. A careful statistical analysis of all human-rights prosecutions in transitional countries around the world shows that countries that use such prosecutions are more likely to see improvements in human rights compared to countries that don’t use trials. I believe this means that since human-rights prosecutions increase the perceived likelihood of punishment, they deter potential repressors from killing or torturing their opponents.

The great paradox of the story is that if advocates believe that justice is inevitable, they might feel complacent and end their demands and activity for accountability. But if they stop their pressures, the outcome is more likely to be impunity than justice. So the “advice” I might give to the protesters in Tahrir Square is all the more equivocal. You must know that justice takes time, often too much time, but that it is possible, and even probable. But only if advocates of justice do not tire, nor relent — not only in Egypt, but elsewhere in the world — will accountability be realized.

Kathryn Sikkink is a Regents Professor and McKnight Presidential Chair in Political Science at the University of Minnesota. Her latest book, “The Justice Cascade: How Human Rights Prosecutions are Changing World Politics,” was published by W.W. Norton in August 2011.

Comments (2)

  1. Submitted by John D Sens on 10/18/2011 - 11:26 am.

    You have some good points, but I am compelled to disagree with some of your theory. First, the “big fish” often are never caught. Josef Stalin was responsible for killing millions but died at home in bed; Hirohito, the emperor of Japan, in whose name the Japanese army killed millions in China alone in the 1930’s, survived nicely after WWII. There are those who want to try George W. Bush, Henry Kissinger, and other Americans for various charges, but it will never happen. On the great scale of things, Milosevic and Mladic are minor actors compared to them.

    Second, it is most often the “little fish” that fry. While Hirohito got off free, some of his generals were executed. Right now German prosecutors are going after old folks in their eighties and nineties who are, again in the great scale of things, nonentities. The latest well-known example is John Demjanjuk.

    Third, many of the trials smack of “victor’s justice.” That is, the winners kill the losers. This seems distasteful for a supposed judicial proceeding where, as you intimate, the result is pretty well assured from the start. Makes the court look like a political rubber stamp.

    I have always been intrigued by the observation that someone escaped justice by dying. I know this is true. Many were chagrined when Ken Lay died in bed and at home before he could be dressing in prison closed and frog-marched before TV cameras. Since it is not acceptable to torture, what worse could someone want than to wish a hated person dead?

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