Ellen L. Lutz, Caitlin Reiger, eds. Prosecuting Heads of State. Cambridge: Cambridge University Press, 2009. xxi + 326 pp. $95.00 (cloth), ISBN 978-0-521-49109-9; $29.99 (paper), ISBN 978-0-521-75670-9.
Reviewed by Jelena Subotic (Department of Political Science, Georgia State University)
Published on H-Human-Rights (December, 2009)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)
The Promise and Pitfalls of High-Profile Human Rights Trials
The very useful edited volume by well-respected human rights experts Ellen L. Lutz and Caitlin Reiger is the first systematic overview of the emerging trend in human rights practice of prosecuting heads of state for grave human rights violations. While there have been previous attempts to capture the human rights "justice cascade"--the institutionalization of the international norm that perpetrators of human rights abuses should be held accountable--Prosecuting Heads of State is unique in its exclusive focus on the perhaps most difficult, and certainly most controversial trials: those of top leaders.
As Lutz, Reiger, and their contributors persuasively show, prosecuting heads of state offers the most promise for delivering a strong message of accountability for grave crimes, but it also comes with profound challenges. Trials of heads of state are inevitably politicized, domestically as well as internationally. They are extremely costly and often a logistical nightmare. More important, they are prone to producing paradoxical outcomes, such as when the leader on trial garners sympathy or, worse yet, further mobilizes domestic support for a policy that led to abuses. The great value of Prosecuting Heads of State is in offering a fair perspective on both the promise as well as the serious pitfalls of this emerging human rights practice.
The volume revolves around four principal questions: (1) To what extent are sovereign states trying leaders who had committed serious human rights or other crimes while in power? (2) What are their motivations? (3) What are the outcomes of such cases? And (4) what was the impact on society? The eight case studies of prosecutions in Chile, Peru, the Philippines, Zambia, Rwanda, former Yugoslavia, Liberia/Sierra Leone, and Iraq, as well as regional surveys of prosecutions in Europe and Latin America, offer a variety of answers to these questions. The case studies are strongest in providing detailed accounts of individual trials and their political background. Where they are the weakest is in answering the last question (about the impact on society), but this is mostly because many of these trials are either ongoing or have just recently been completed. A difficult and methodologically challenging task of measuring trials' impact on society would almost certainly necessitate a greater passage of time after the trial as well a different type of study.
The book makes it very clear that the trend of holding heads of state responsible is, indeed, quite a new phenomenon. Before 1990, only a handful of heads of states had ever been indicted. Since then, as many as sixty-seven heads of state or government from forty-three countries have been formally charged and indicted with serious criminal offenses (p. 12). This is truly remarkable and is worthy of serious analysis.
In their framing introduction to the volume, Lutz and Reiger ask two fundamental questions. First, why is it important that heads of state be put on trial? They offer four good reasons: heads of state are by virtue of their position at the top of the chain of command; they were aware of human rights abuses even if they were not directly responsible for them; prosecuting heads of state sends a powerful warning to both domestic and international audiences; and it signifies a profound break with the past (p. 3).
Second, what has brought on this change? Lutz and Reiger argue that a series of structural political changes at the international level (transitions to democracy in Latin America and eastern Europe) as well as specific transitional justice processes in various countries (trials in Argentina and the truth commission in South Africa) opened a political window of opportunity for other countries and regions to emulate the trend. This argument has been made elsewhere and so the current volume does not break much new theoretical ground. Its principal value, rather, is in detailed case studies that track the political background of high-profile trials, their implementation, and their outcome.
The individual case studies vary in approach, angle, and specificity, but all are highly readable and very interesting. Taken together, they point to a variety of potential outcomes of high-profile human rights trials--some beneficial, some deeply troubling. For example, the "success story" of the Alberto Fujimori trial in Peru shows how prosecuting the head of state helps strengthen the independence and robustness of the domestic judiciary. Similarly, the mostly positive experience from Zambia points to the critical role international actors play in transitional justice processes held in local settings. Contrast this with largely failed or at least disappointing trials such as those of former leaders of the Philippines, Rwanda, Serbia, or Sierra Leone. The failures came in many forms. The trials disappointed because of institutional incapacity of domestic courts to deal with such complex and interrelated charges (the Philippines), because they were deeply politicized and served as show trials (Rwanda), because the defendant used the proceedings to further mobilize domestic support for abusive policies (former Yugoslavia), or because the tribunal suffers from a lack of domestic legitimacy (Sierra Leone).
Perhaps the most riveting case study is of the catastrophe that was the Iraqi High Tribunal that tried, convicted, and executed Saddam Hussein. The story of the Hussein trial disaster is the most systematic account of the proceedings to date. It offers great insights into the political background that led to the establishment of this institution, including a series of mind-boggling blunders by both American and Iraqi officials in the chaotic and lawless years that followed the U.S. occupation. The Iraq case is almost a primer of how not to set up a high-profile human rights trial. More important, it clearly demonstrates that human rights trials specifically, and transitional justice more generally, is inextricably linked to domestic and international politics. It also shows how the promise of prosecuting heads of state comes with great perils when prosecutions are unprofessional, biased, or simply incompetent. It is the best testament to this book that it has presented a breadth of evidence--the good, the bad, and the ugly--about what it takes to bring those most responsible to justice. This volume will be highly useful for all scholars of human rights and transitional justice.
. Ellen L. Lutz and Kathryn Sikkink, "The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America," Chicago Journal of International Law, 2 (2001): 1-34.
. Kathryn Sikkink and Carrie Booth Walling, "The Impact of Human Rights Trials in Latin America," Journal of Peace Research, 44 (2007): 427-445.
If there is additional discussion of this review, you may access it through the network, at: https://networks.h-net.org/h-human-rights.
Jelena Subotic. Review of Lutz, Ellen L.; Reiger, Caitlin, eds., Prosecuting Heads of State.
H-Human-Rights, H-Net Reviews.
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