Backlash to International Human Rights and Criminal Tribunals

I am working on a series of projects related to international human rights and criminal tribunals.  I have two papers, listed under the ICC tab, on the International Criminal Court.  I also a working on a book-length project on the backlash to international human rights and criminal adjudication.  A brief description of this project follows.

Tribunal Capture: How Political Elites Seek to Undermine International Human Rights Tribunals and What to Do About It

International human rights and criminal courts are the crowning achievements of the 20th-century human rights movement. Tribunals give teeth to the human rights legal instruments that multiplied following World War II and they institutionalize the idea that human rights are universal and inviolate. This said, today these human rights and criminal tribunals are under attack. Their critics are many and range from the powerful states and elites whom they seek to hold accountable, to outside observers and the very constituents they are meant to protect. The tribunals have had a hand in generating this backlash. They are slow, highly bureaucratic, and often elitist; they have failed to take seriously complaints from powerful states and individual leaders that they are biased and violate sovereignty rights; and they have responded to critiques of their hyper-legalization by adding to, rather than improving, their own bureaucracies.

Examples of backlash are plentiful. Consider, for example, the African Union (AU)’s threatened mass withdrawal from the International Criminal Court (ICC) and their proposal for a regional replacement. We also could consider the case of the United Kingdom’s threatened withdrawal from the European Court of Human Rights or Italy’s declaration that it would only comply with Grand Chamber judgments issued by that same body. In addition, there is the Latin American states’ intentional bankrupting of the Inter-American Commission on Human Rights and Hezbollah’s decision to undermine the Special Tribunal for Lebanon by leaking the names, phone numbers, addresses and photos of 32 witnesses. While the list of backlash incidents is long, it is not universal. For example, Botswana has resisted the AU’s call for a massive ICC withdrawal, the Special Court for Sierra Leone enjoyed widespread political support, and Mexico turned toward the Inter-American Human Rights System during a time of human rights crisis.

This project asks two key questions related to the wave of backlash against international courts:

  • What are the conditions that generate backlash against these tribunals?
  • How can human rights and criminal tribunals and their stakeholders fight against this backlash?

This book will consider, for the first time, the phenomenon of backlash to international human rights tribunals using a wide lens. To accomplish this, I have created a typology of backlash that corresponds to the basic threats that the tribunals face; namely, threats to their membership, the integrity of their cases, their financial capacity, and their normative and moral legitimacy.  Further, my project will match cases of backlash with non-backlash in order to consider when and why backlash occurs. The empirical scope of this project is ambitious. The project covers six criminal and human rights tribunals – the ICC, Inter-American Commission on Human Rights, European Court of Human Rights, Special Tribunal for Lebanon, Special Court for Sierra Leone, and Extraordinary Chambers of the Courts of Cambodia. By examining a wide range of tribunals and states operating within each, my work provides a critical, systematic analysis of this kind of backlash.

This project also seeks to fill in the gap on individual perspectives on these tribunals by conducting public opinion polls. From Kenya to England to Brazil, we see public discontent over the tribunals, but we do not know why. Nor do we know to what extent public opinion is movable or how to garner more public trust in these institutions. This last piece is important because if those whose rights are most at stake do not have faith in the tribunals, the tribunals can be easily manipulated by those with nativist concerns and will fall prey to the same cycle of bureaucratization and capture.