Sunday, July 14, 2013

The Effectiveness of Transitional Justice Mechanisms and International Human Rights Treaties in Promoting Human Rights



The promotion of human rights through the use of international human rights treaties has been a point of contention between realists and constructivist for some time.  Realists believe that states act in their own rational self interest regardless of human rights treaties that do not have built in enforcement mechanisms.  Constructivists believe the treaties, and the norms expounded within them, serve as motivation for states to act in ways which respect the treaties they have signed. 
A study by Hafner-Burton and Tsutsui shows that the signing of a treaty does not lead to increased respect for human rights, specifically physical integrity rights, by the signing nation. The study was based on what the authors termed the “Paradox of Empty Promises.”  The paradox refers to the findings of the then existent research that on one hand supports claims that ratification of treaties serves as mere window dressing and ratifying states tend to radically decouple human rights policy from practice.  The other side of the paradox is the support given to the claim that the legitimacy of the human rights regimes results in effects that improve human rights practices by those same states.  The research into this paradox suggests the signing of human rights treaties leads to increased human rights abuses.  This same study shows that a nation’s connection with civil society, as measured by the number of international non-governmental organizations (INGOs) in the state, has a positive effect on human rights practices within that state (Hafner-Burton and Tsutsui 2005).  
One unanswered question from the study is how the human rights treaties affect the number of INGOs in a state.  If it can be shown the treaties result in greater numbers of INGOs, then to make the claim that treaties are insignificant or result in greater human rights abuses fails to give the treaties due credit for paving a path to increased respect for human rights through the epiphenomenon of increasing the numbers of INGOs.  A more recent study on the impact a state’s ratification of human rights treaty has on the respect for human rights argues that state specific characteristics need to be addressed as explanations for state behavior regarding human rights practices.  In this study states ratification of three different treaties was compared to their behavior from the time of ratification.  The ICCPR, CAT, and CEDAW were the treaties investigated.  The CEDAW showed improvement among the states for women’s rights, while the ICCPR and the CAT were associated with worse human rights practices.  The results seem to support his claim that “more treaty-specific theory building is needed” (Hill 2010).
Transitional justice mechanisms refer to criminal prosecutions, truth commissions, reparations, and institutional reforms (ICTJ).  When it comes to seeing that justice is served by way of an international court, based on Owen Fiss’s article, “Within Reach of the State: Prosecuting Atrocities in Africa,” there is little reason to believe that international bodies can be effective at providing anything remotely resembling retributive justice.  In order to more readily reach a state of civil society and put the crimes of the past in the past there is a need to rely on efforts at reconciliation by way of measures seeking restorative justice.  In many cases the scale of atrocities is such that the numbers of perpetrators are so large that trying to set up prosecutorial systems are likely to fail in two ways.  First, the costs of investigations, case development, defense advocates, and the necessary systems to make the outcome as fair and objective as possible would be beyond the means of most states where these courts would need to be set up.  The costs would also be higher than any international body would be willing to pay to fund such an endeavor.  Second, the social results of trying what would likely be an extremely large number of people from both sides of a conflict, including those who may still have substantial political power risks increasing resentment from all involved parties and their supporters, and could spark new violence.  Considering the limitations the international agencies have when it comes to enforcement, it does seem a huge waste of money. For example, the only conviction the International Criminal Court (ICC) has ever received was in March of 2012 when it handed down a fourteen year sentence for Thomas Lubanga.  One conviction in ten years does not indicate money well spent from a cost-benefit perspective.  Fiss does, grudgingly, admit to the possibility that perhaps it is best that prosecutorial or retributive justice be sought for only the most egregious perpetrators, however, and that is historically the province of truth commissions (Fiss 2009).
When it comes to restorative justice, the tool of choice is the truth commission.  Unfortunately, though, there is little empirical evidence that truth commissions actually provide any sort of justice at all.  Restorative justice relies on the ability of a state to successfully transition from one that may be likely to fall back into the practices that warranted the necessity for a truth commission to one that is less likely.  This normally is addressed by trying to incorporate more democratic institutions, an objective judiciary that is not under the control of an executive or any legislators, the restructuring of armed forces firmly under the control of civilian authorities, and police that are accountable for their actions.  Ideally, a truth commission is able to publish its findings and make suggestions that the government will take and restructure itself.  One problem with knowing if truth commissions are causal agents for this change, when it happens, is how to separate the effects of the truth commission from the transitional effects already in motion by the state.  Eric Brahm makes a suggestion on how this may be done with a multimethod approach.  While many of his suggested methods for controlling variables seem possible, there are others that are likely to prove very problematic (Brahm 2007).  For example, he doesn’t explain how he would operationalize or measure the effects on the state brought about by powerful political personalities, pressure from civil society or the international community.  Brahm also mentions that the composition of truth commissions matter, their specific mandate matters, as does the degree of public dissemination of any reports.
I think a strong case can be made for the use of restorative justice mechanisms as a means of bringing about a more civil society.  In 2002, Rwanda instituted a system of local courts to hear cases regarding the 1994 genocide to discover the truth, reconcile the perpetrators with the victims, and seek some minimal semblance of retributive justice.  Looking at the CIRI physical integrity rights index for the eight years immediately following the genocide, and comparing the results to the eight years following the institution of these Gacaca Courts, an argument can be made that the hybridization of restorative and retributive justice can provide an appearance of success.  The index is ranked from 0-8, with 0 being the worst result and 8 being the best for human rights respect.  The mean and median scores immediately following the genocide were 1.75 and 2.00, respectively.  The numbers were 3.375 and 3.50 for the eight years after the initiation of the courts.  While the small degrees of freedom keeps the results from being statistically significant, if the current trend continues for several more years and the years preceding this test were added, the results would likely be significant.  Table 1 shows the results of the CIRI query for the years in question.







       Table 1
CTRY
YEAR

PHYSINT




Rwanda
1995

0




Rwanda
1996

1




Rwanda
1997

0




Rwanda
1998

2




Rwanda
1999

3




Rwanda
2000

2




Rwanda
2001

3




Rwanda
2002

3




Rwanda
2003

2




Rwanda
2004

2




Rwanda
2005

4




Rwanda
2006

4




Rwanda
2007

5




Rwanda
2008

4




Rwanda
2009

3




Rwanda
2010

3


















Works Cited
Brahm, Eric. "Uncovering the truth: examining truth commission success and impact." International Studies Perspectives 8.1 (2007): 16-35.

Fiss, Owen. "Within Reach of the State: Prosecuting Atrocities in Africa." Human Rights Quarterly 31.1 (2009): 59-69. Print.

Hafner-Burton, Emilie M., and Kiyoteru Tsutsui. "Human Rights In A Globalizing World: The Paradox Of Empty Promises." American Journal Of Sociology 110.5 (2005): 1373-1411. Business Source Premier. Web. 9 Dec. 2012.

Hill, Jr., Daniel W. "Estimating The Effects Of Human Rights Treaties On State Behavior." Journal Of Politics 72.4 (2010): 1161-1174. Business Source Premier. Web. 9 Dec. 2012.

ICTJ – International Center for Transitional Justice. "What is Transitional Justice? N.p., n.d. Web. 9 Dec. 2012. <http://ictj.org/about/transitional-justice>.

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