Adam Smith Responds to Daniel Agundo
Daniel Agundo’s commentary about After Genocide is thought provoking. He is correct in emphasizing that processes towards international development, especially those developments that seek to provide global public goods, can be iterative and plodding, often involving “two steps forward and one step back.” He claims that international justice is no different, and thus some of the concerns After Genocide elucidates about international justice are just these setbacks, part of the “growing pains” of the system. While I appreciate Mr. Agundo’s commentary and find myself in agreement with much of it — especially his implicit admonishment that international justice debates include the perspectives of disciplines apart from law and politics (such as sociology) — there are a few aspects of Mr. Agundo’s review on which I am called to comment.
First, I think that Mr. Agundo is right that the analogy between economic globalization and judicial globalization is worthy of greater study. I mention it only once. However, I did not mean this single mention to be, in Mr. Agundo’s assessment, “barbed” or a “throwaway remark.” Rather my analogizing between international justice and economic globalization was made in the limited context of analyzing the policy and political debate on international justice and referred solely to the fact that in the world of economic globalization experts and advocates alike have come to the conclusion that a “one size fits all” approach is ineffective. However, that conclusion has yet to be reached by those who preach international justice. I find this inconsistency curious, especially when arguably a one-size-fits-all approach is even less appropriate in the context of justice than in economics — “There is no GNP of justice; it is almost solely what one makes of it.” (p. 42)
This is not to say that I don’t think Mr. Agundo makes a good point that there may be valuable parallels between the lessons of economic globalization and the lessons of the globalization of criminal justice. I think, however, we disagree on what those lessons may be.
Mr. Agundo details that the downsides of economic globalization are evident, making life more difficult for a range of people from the cotton growers of West Africa to the textile workers of Southern Africa. Yet, he notes that despite this, globalization has brought “untold benefits to hundreds of millions of people” allowing them to lift themselves out of poverty. Two steps forward, one step back. He notes that “The policy lesson is that no country can develop economically by shutting itself off from the global market.”
I could not agree more with Mr. Agundo’s assessment about economic globalization — though it has negatively impacted many, on balance it has provided significant benefits. However, though Mr. Agundo acknowledges that the parallels between international justice and economic globalization are imperfect, I think the manner in which Mr. Agundo makes his argument sets up a false choice, a choice as false for economic globalization as it is for judicial globalization. While it is undoubtedly true that “no country can develop by shutting itself off from the global market,” it is equally true that no country can truly prosper by throwing itself to the mercy of an unbounded globalization. There is clearly a middle ground of “controlled globalization” which both recognizes the economic imperative but remains cognizant of and sensitive to local, particularist concerns. Free trade agreements that insist on respect for human rights and the environment, for instance, or the concerns that the Doha trade round is trying to address are good examples of attempts at this middle ground of globalization. The world seems to have rejected the mercantilist notion of unbounded globalization in favor of a more moderated approach.
Not so for international justice. The overarching nature of international justice, via its one-size-fits-all approach and preeminence over domestic systems (de jure in the early tribunals and de facto in the later) can be analogized to an unfettered globalization — though I admit that the ICC’s complementarity provision, depending upon how it actually comes to life, may limit this. Even in the international community’s hybrid courts, where the judicial bodies have seemingly stepped back from true control over the domestic, this “globalization” has maintained. At least in its provision of justice, “the UN and the international community have proven particularly bad at nuance; the international component of these mixed courts has almost always trumped the local, overshadowed domestic participants, and again often rendered justice without concern for local needs or views about what justice looks like.” (p. 93)
As I note in After Genocide, I am not counseling that the response to judicial globalization is for countries to shut themselves off in a world of moral relativism, of judicial autarky, if you will. Rather, for international justice there is also a middle ground that seems to be eschewed by many proponents of international justice.
The latter half of my book attempts to set out the possible parameters for such a middle ground. I make two primary arguments: first, in as much as the international community is committed to trials as a mode of addressing mass crimes, they can more often than not take place in the country where the crimes were committed, using local process, law, judges and lawyers, rather than in a foreign locale. And second, the international community must be more open to the potential of non-globalized justice, one that resonates with the locality. And, this may mean that forms of transitional justice that may not strike the international community as “justice” but which may find a ready welcome in impacted states, should potentially be supported.
The other aspect of Mr. Agundo’s review is also penetrating; he argues, to paraphrase, that even if international judicial institutions may have had some growing pains their normative importance is broader than the institutions themselves. Mr. Agundo notes the recent developments in human rights practices in which it has become the norm to, for example, demand an end to impunity, bring perpetrators to account, refuse blanket amnesties as a part of peace processes, and to insist on some sort of transitional justice in the wake of atrocities. To this he could well have added the fact that the majority of the world’s countries have now signed up to the International Criminal Court.
I do not disagree that the institutions of international justice may have been important in furthering a culture of international human rights (and indeed, I note in After Genocide that some of the advances in international law occasioned by the international tribunals have been “as trailblazing as they are heartening” (p. 48). However, my concern with Mr. Agundo’s argument is two fold. First, the “international” culture of human rights all too often fails to reach the people. To his credit, Mr. Agundo recognizes this; he sets out Risse and Sikkink’s five stage model for how global norms become domesticated into national practice, and notes that most abusive governments have moved towards stage five — where countries have laws that protect their citizens and engage in “rule consistent behavior.” But, few truly abusive countries are there yet. And, though I agree with Mr. Agundo that a country at stage 3 is better than one at stage 1, I would argue that from the perspective of those being abused on the ground, the only important stage is stage five, when words and actions match, and abuses cease.
Indeed, we have seen how relatively easy it is for a state to sign an international convention and even insist on the need to end impunity, as the African Union Peace and Security Council did regarding the ICC indictment of Bashir. That several members of the African Union Peace and Security Council that authored this statement have questionable human rights records of their own (while demanding “an end to impunity” for others) is an indicator of this ease. The membership of the UN Human Rights Council is similarly full of countries that have promised to protect human rights but engage in rather different behavior. Unfortunately, no clearer evidence for this disconnect exists than the fact that from the 1990s until present, the era in which international human rights has clearly been receiving higher billing on the international plane, has been extremely bloody, arguably more bloody than similar time periods before the rise of international judicial institutions. I am not implying that the tribunals led to this bloodiness, just that their advent (and the linked advent of greater global sensitivity towards human rights issues) did not necessarily indicate a real departure from genocide, mass crimes, and atrocities.
Mr. Agundo seems to imply that the movement of countries from 1 to 5 is perhaps inexorable, given how many have arrived at stages 3 and 4. Yet, I am sadly unconvinced that there has been significant movement into stage 5, no matter how many countries get to stages 3 and 4. In this regard, Freedom House’s “Freedom in the World” index — which measures how well countries protect the civil and political rights of their citizens — makes for sobering reading. Freedom House separates countries into three categories — Free, Partly Free, and Not Free. “Not Free” countries are those that do not protect their citizens’ rights and can be seen as a broad proxy for those states that are certainly not in “stage 5″ (or perhaps even in 3 or 4). Throughout the era of modern international justice (broadly from the end of the Cold War until present), there has been little change in the proportion of states falling into the “Not Free” category. In 1990-91, Freedom House found that 31 percent of the world’s nations were Not Free; in 2009 it found that 30 percent of the world’s nations remain so. Though the makeup of the list of offending countries differs, the overlap of countries that were unfree in 1990-91 and in 2009 is significant.
However, even if we accept the supposition that human rights understandings and undertakings are increasingly the global norm I think there might be an unwarranted assumption of causation made in Mr. Agundo’s argument. I posit that the institutions of international justice developed out of ever-strengthening and globalizing standards about human rights; they did not create them.
In fact, I believe that to argue otherwise would neglect the arguably more significant strides in international human rights taken before the era of international justice. From the 1970s and into the late 1980s a bevy of human rights institutions and understandings came on line and countries emerging from mass crimes began to address these crimes (via transitional justice mechanisms), even if haltingly. The Second Geneva Protocol, the Helsinki Final Act, the ICCPR, the ICESCR, and the International Bill of Rights all preceded the 1990s judicial institutions. Scholars have noted that all countries “transitioning in the post-Nuremberg environment [from 1945 until present] have been [and will be] confronted with…international and domestic pressure to hold past perpetrators [legally] accountable…” (Reiter 2007). The 1990s judicial institutions were clearly not created out of whole cloth upon the dissolution of the Cold War; they were a logical evolution, arising out of the significant institutional, political and emotional underpinnings already in place, and catalyzed by the pent up demand released after the fall of Communism to finally re-commence the processes begun at Nuremberg. Turning to Freedom House once again, it is interesting to note that there were far more significant changes in the proportion of the world deemed “Not Free” in the two decades that preceded the advent of modern international justice than since. In 1973, Freedom House found that 53 percent of the world’s nations were “Not Free;” this number reduced to 31 percent in 1990 — and again, has only reduced to 30 percent in 2009. It is far from clear that international judicial institutions have been necessary (let alone sufficient) to further true human rights-sensitive law and behavior.
Finally, though I agree with Mr. Agundo that I write with passion, I do not view myself as a whistleblower or an angry one at that. I do not completely reject “international justice,” or at least the important role of the international community in providing justice (even if the justice is local and non-judicial). I still believe in the power of the international. And, I think it is a reasonable argument that certain judicial institutions, like Nuremberg and perhaps even the ICTY and ICTR were, at the time of their formation, “needed” in order to move our world forward and they may indeed have had a hand in embedding human rights and international crime in domestic jurisdictions. And, just as importantly, I believe that in each instance institutions were founded with the best of intentions. But, once the challenges of international justice were realized I feel a rethinking and retooling by the international community is warranted. Mr. Agundo comments that the ICC may be doing just that, and that there could be flexibility in the ICC under the current or future prosecutors to take account for all that we have learned. I note this potential in After Genocide as well, though I also note that the jury is clearly still out on whether such flexibility will actually transpire. I am not convinced that the ICC treaty allows for such flexibility and this question remains the subject of significant disagreement. Further, it is an open question whether the Assembly of States Parties (ASP) would either condone such a move or continue to fund the ICC under circumstances in which it departs from a strict interpretation of the treaty. Bureaucratic inertia suggests that once in place a bureaucracy maintains, and the international community (along with the growing number of Hague-based international judges, prosecutors, and staff) will thus likely demand the ICC be used for the “purposes for which it was intended” (i.e. international justice). This bureaucratic imperative — let alone that of the treaty — suggests that regardless the philosophical principles behind the Rome Treaty (which, I admit, may have had the promotion of domestic proceedings as a goal) it may be some time, if ever, before a non-fully-internationalized trial emerges under the ICC’s auspices. It will likely not satisfy donors if the ICC’s sole (or even primary) accomplishment is to promote domestic justice.