Review Essay
Accountable Judges and Their Role in Prosecuting Serious
Violations of Human Rights
Prosecuting Serious Human Rights Violations, Anja Seibert-Fohr. Oxford
University Press, August 2009, 350pp. ISBN: 9780199569328 – hardcover ($170).
Transitional Justice, Judicial Accountability and the Rule of Law, Hakeem O.
Yusuf. Routledge, April 2010, 204pp. ISBN: 9780415575355 – hardcover (£80).
Just over a year after the end of the war in Europe, on 29 April 1946, the UN
Economic and Social Council held the first meeting of its Commission on Human
Rights (CHR). In his opening remarks, Assistant Secretary-General for the
Department of Social Affairs Henri Laugier reminded the meeting that
it is a new thing and it is a great thing in the history of humanity that the international
community organised after a war which destroyed material wealth and spiritual
wealth accumulated by human effort during centuries has constituted an international
mechanism to defend the human rights in the world . . . We are only at the starting
point of a very great enterprise, the volume of which and the action of which will
have to grow, day after day.1
The objective of the CHR was to discover the basis for a fundamental declaration
on human rights that would be acceptable to all who might seek admission
into the ‘international community.’ Its specific task was to ‘define the violation of
human rights within a nation, which would constitute a menace to the security
and peace of the world,’ and, beyond this, to ‘suggest the establishment of machinery
of observation which will find and denounce the violations of the rights of
man all over the world.’2
The Universal Declaration of Human Rights was opened
for signature in 1948.
Human rights have since become the acknowledged ‘values for a godless age.’3
One must remember the context of their creation to appreciate how far these ideas
have travelled.4
During 1945–1946, when the UN Charter and Declaration were
developed and signed, the Soviet Union had its Gulag, France and Britain still had
their colonies and the US its de jure racism.5
In addition, human rights were
1
UN Doc. E/HR/6 (1946), 1–2.
2
Ibid., 3.
3
Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights
(London: Penguin, 2000).
4
Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United
Nations (Princeton, NJ: Princeton University Press, 2009).
5
Belgrade Circle, ed., The Politics of Human Rights (London: Verso, 2000).
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grounded in international law, the same set of rules used to sanction the carving
up of Africa by Europeans at the Berlin Conference in 1884. It is therefore somewhat
surprising that this body of law became a powerful tool in the hands of those
it initially disenfranchised and disempowered. Human rights have now become
the language of liberty for the oppressed in the global North and South:
For the historically disempowered, the conferring of rights is symbolic of all the denied
aspects of their humanity: rights imply a respect that places one in the referential range
of self and others, that elevates one’s status from human body to social being.6
The protection of human rights laid out in international law has been used to
challenge and change colonial practices, prompt national civil action against
racial discrimination7
and, now, as detailed by Anja Seibert-Fohr, to secure criminal
prosecutions for serious violations of human rights.
Since 1945, systems for the general protection of human rights have appeared in
many regions, including Europe (the European Convention on Human Rights)
and the Americas (the American Convention on Human Rights), in addition to
more specific instruments at the international level.8
The focus of Prosecuting
Serious Human Rights Violations is the extent to which these and other instruments
impose an obligation upon state parties to ‘prosecute the perpetrators of
serious human rights violations’ (p. vii).
The use of prosecution under criminal law has never been popular in securing
human rights, as they were not intended as tools for seeking retribution. For
example, when the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD) was being developed, the use of criminal sanctions
was a reason for the hesitant support from countries such as France and
Britain. The draft of Article 4 was perhaps the most problematic because it
required signatories to
declare an offence punishable by law all dissemination of ideas based on racial superiority
or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or
ethnic origin, and also the provision of any assistance to racist activities, including the
financing thereof.
This text did, however, make it into the final draft submitted for approval.
The ICERD was unanimously adopted by the UN General Assembly and
opened for signature on 21 December 1965. By 1969, a total of 27 states had
6
Patricia J. Williams, The Alchemy of Race and Rights: The Diary of a Law Professor (Cambridge, MA:
Harvard University Press, 1991), 153.
7
Iyiola Solanke, The Evolution of Anti-Racial Discrimination Law (London: Routledge, 2011).
8
Such as the Convention on the Prevention and Punishment of the Crime of Genocide,
the Convention against Torture, the Convention to Suppress the Slave Trade and Slavery, the
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, the Apartheid Convention, the International Convention on
the Elimination of All Forms of Racial Discrimination and the International Convention for
the Protection of All Persons from Enforced Disappearance.
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ratified it, bringing it into force. Both the UK and Germany were among the initial
signatories. The convention has now been ratified by 128 states. It is the oldest and
most widely ratified UN human rights convention.
Yet, given the egregious violations of recent years, can human rights law retain
its power without using criminal law? According to Seibert-Fohr, it is indeed racial
violence, particularly ethnic cleansing, that formed the backdrop to the renaissance
of the idea of criminal prosecution for international human rights violations.
In the 1990s, ad hoc tribunals were created in Rwanda and the former
Yugoslavia to deal with this cleansing as crimes. These tribunals were, she
argues, driven by ‘the conviction that those responsible for the most serious
crimes, including crimes against humanity and genocide, should not go unpunished’
(p. 1). Seibert-Fohr presents the question of criminal accountability as the
common denominator linking the law of armed conflict and human rights law. In
addition, she notes that the latter ‘fills the gaps’ in international criminal law. The
two are therefore mutually empowering when used in relation to not only prosecution
for torture and genocide but also any serious violation of human rights.
Prosecution of human rights violations brings into focus key questions on the
nexus of international criminal law and human rights law. What is the rationale
for use of criminal law in such prosecutions? If not to punish, what is its role?
Equally, when is a violation serious enough for prosecution rather than immunity
or some form of amnesty?9
These are the pertinent questions addressed throughout
Seibert-Fohr’s study in order to clarify the justification for prosecution rather
than other forms of redress. In addressing the duty to investigate and prosecute
under human rights law, Seibert-Fohr of necessity also considers the related complex
issues of granting amnesties, impunity, victims’ rights and the right to truth.
These are not just practical questions; they touch upon the core values and morals
of internationalism. The book is therefore a study not only of international law
and the legal rationales informing key principles but also of the sense of justice
that inheres in international law and guides its enforcement.
It can be argued that enforcement has always been a challenge for international
law. This may be due to the relationship between state acceptance of human rights
norms and national sovereignty. As noted above, acceptance of human rights
became a ticket to enter the ‘international community.’ Recognition of and respect
for human rights also became a means by which to assert sovereignty once
military aggression was discredited. Thus, respect for rights guaranteed international
recognition of state legitimacy. Partial cessation of sovereignty secured
recognition of state autonomy. Donation of some sovereignty became the new
postwar currency to legitimate ownership of sovereign rights. Even today, only
polities that submit their autonomy to external accountability are seen as fully
9
For more on amnesty, see, Louise Mallinder, Amnesty, Human Rights and Political Transitions:
Bridging the Peace and Justice Divide (Oxford: Hart Publishing, 2008); Louise Mallinder, ‘Global
Comparison of Amnesty Laws,’ in The Pursuit of International Criminal Justice: A World Study on
Conflicts, Victimization, and Post-Conflict Justice, ed. Cherif M. Bassiouni (Antwerp: Intersentia,
2010).
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legitimate democracies and full members of the ‘international community’ of
nations.10
This complex relationship between recognition and state sovereignty restricts
the potency of human rights as a tool for pursuit of global justice. As respect
for human rights was the price for recognition of state sovereignty, application
and enforcement of human rights principles had to be a domestic affair.
This restricted international oversight over national adherence and made recognition
more symbolic than substantive. For example, the CHR designed machinery
for ‘observation,’ not enforcement. This is visible in the ICERD: its
enforcement provisions were not part of the main text but added in an Annex
that set out the prototype for the international commission. The ICERD was to be
overseen by a Good Offices and Conciliation Committee. This became the
Committee on the Elimination of Racial Discrimination (CERD), the first body
created by the UN to monitor and review actions by states to fulfil their obligations
under a specific human rights agreement.11
While CERD conducts regular
missions to monitor compliance with the convention, its ability to address identified
discrepancies remains limited. Thus, as in Rwanda and other parts of the
world, international law instruments have few muscles to flex when confronted
with the most flagrant violations of human rights. The establishment of the
International Criminal Court (ICC) was an attempt to address this complex historical
relationship. The ICC was met with resistance, most notably from the US,
which is not among its 120 member states. It has still not replaced the creation of
ad hoc courts, as in Rwanda, the former Yugoslavia and Sierra Leone.
There are many strengths to Seibert-Fohr’s book. A key one is its original perspective.
Instead of looking through the lens of international criminal law to
human rights, Seibert-Fohr looks through the lens of human rights instruments
to document the extent to which these international treaties provide a basis for
the ‘extension of criminal obligations’ (p. 4). This focus produces an in-depth
survey of a number of international human rights treaties and conventions and
the case law that has arisen from them. There is no easy answer to the questions
posed, but their exploration is methodical. Seibert-Fohr carefully details the
strength of any duty to prosecute whatever they may contain: How should violators
be dealt with? What does an instrument require states to do? If a duty to
prosecute exists, does this as a corollary give individuals a right to prosecution?
Each chapter has a similar structure based upon a systematic analysis of specific
provisions, an exploration of their logic and discussion of the opportunities and
10
Thus, accession by the European Union (EU) to the European Convention on Human Rights can
be interpreted as a sovereign act. If the EU has sovereignty to give away then it must possess it, per
se. The EU is in fact already acting as a sovereign: in November 2009, it signed an international
human rights treaty, the UN Convention on the Rights of Persons with Disabilities.
11
Similar committees that monitor implementation and effectiveness have been established under
the International Covenant on Civil and Political Rights (Human Rights Committee),
the Convention on the Elimination of All Forms of Discrimination against Women, the
Convention against Torture, the Convention on Economic, Social and Cultural Rights and the
Convention on the Rights of the Child.
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limitations they present to adjudication. The result is an impressive stock taking,
via the body of decisions under international law, of existing standards and the
salience of the idea of mandatory prosecutions for serious human rights violations.
On this level alone, the book offers important information for practitioners,
as it demonstrates the opportunities for more rigorous protection of human
rights via prosecution under criminal law.
Yet, the book goes beyond this to consider whether the duty to prosecute can
aid universal notions of justice. Seibert-Fohr’s secondary objective is to consider
the rationale that can inform and justify this deeper moral goal for international
human rights law to make it a tool for the pursuit of global justice. She is interested
not only in the past and present but also in the future. What contribution
can criminal prosecution of serious human rights violations make to the pursuit
of global justice, in particular ‘post-conflict justice’ (p. 5)? While recognizing that
‘human rights is not about retribution’ (p. 9), this does not mean that prosecution
should not be used to pursue these larger aims. Amnesty may restore perpetrators
in the eyes of the law, but it may also leave victims with some sense of dissatisfaction.
Specially created tribunals may lack credibility in the eyes of victims,
particularly as they encompass broader security goals of reestablishing peace,
reconciliation and stability.
How possible is it, however, to seek postconflict justice in preconflict institutions,
especially where these may have played a role in the conflict? The counterpart
to the philosophical and doctrinal survey of criminal prosecution of serious
human rights violations under international law must therefore be a consideration
of the judicial institutions that will be called upon to activate this. In order
to pursue the larger goal of global justice, a more critical position is required on
institutions of justice themselves, namely domestic courts.
This latter challenge is taken up by Hakeem Yusuf in Transitional Justice,
Judicial Accountability and the Rule of Law, which highlights the politics of addressing
human rights abuses in Nigeria as the country attempted to transition
from military to democratic civilian rule. The book revolves around the Oputa
Panel, specially commissioned to address alleged human rights violations and set
an agenda for the transformation of Nigeria. The Panel, more formally known as
the Human Rights Violations Investigation Committee, was established by
President Olusegun Obasanjo, who led the first civilian government after the
end of military rule in this former British colony. It was intended to be a
truth-seeking mechanism that would not only purge the country of antidemocratic
practices but also cleanse its social and political infrastructure for return to
democratic rule. This did not happen, however. High hopes for the Oputa Panel
were deflated as its summons were ignored and its legality was successfully challenged
by the generals it sought to investigate. Its recommendations became
worthless when the Supreme Court of Nigeria held that ‘the President lacked
the powers to set up a body like the Oputa Panel with a remit that extended to
the whole country to enquire into human rights violations’ (p. 45).
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In trying to explain the impotence of the Panel, Yusuf explores some judicial
traditions, particularly deference to the judiciary. This deference is a fundamental
principle in most legal and political systems, whether achieved via merit or edict.
Yet, as the demise of the Oputa Panel shows, it is not only in the latter context
that such deference can be abused.12
Yusuf also critiques modern postconflict
political practices, and it is here that his work dovetails with that of Seibert-Fohr.
Yusuf argues that truth commissions,13
a traditional alternative response to
prosecution in transitional contexts, are flawed mechanisms, suggesting that
they are, for example, too subjective and unable to address broad structural
problems. He notes that they suffer from a sincerity deficit and are open to
abuse by legitimacy-hungry regimes that seek to secure their own power internationally
rather than justice internally. Beyond this, they have a dangerous blind
spot, tending to ignore the need for the judiciary to account for its role during the
period of nondemocratic rule. Yusuf argues that this was the downfall of the
Oputa Panel: its enquiries were ‘laudable’ but ‘it failed to engage with the role
of the judiciary in governance in almost three decades of authoritarian
rule . . . [The judiciary was] in complete abeyance, or, indeed, non-existent’
(p. 46).
Following in the footsteps of David Dyzenhaus,14
Yusuf maintains that justice
sector reform needs to get personal. Blindness to the judiciary is, he warns, ‘fatal
to the transitional polity’ because
the fragile institutional structures that characterise societies in transition engender
substantial reliance on the judiciary as the major force to stabilise and foster the
democratisation process and uphold the rule of law. (p. 46)
Yusuf shows clearly why a corrupt judiciary must be included in the transition
process undertaken by countries returning to popular democratic rule after conflict.
He argues, and no doubt Seibert-Fohr would concur, that it is increasingly
untenable and to some extent self-defeating to set the judiciary apart from other
democratic institutions. He questions, therefore, why key national and international
actors designing the postconflict return to democratic rule in some countries
overlook the need for a fundamental review of this fourth branch of
government as part of the transition process.
12
‘Japan’s Judiciary on Trial: Prosecutors or Persecutors?’ Economist, 14 October 2010.
13
There is a large body of literature on truth commissions. See, for example, Stephan Landsman,
‘Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth
Commissions,’ Law and Contemporary Problems 59(4) (1999): 81–92; Jonathan D. Tepperman,
‘Truth and Consequences,’ Foreign Affairs 81(2) (2002): 128–145; Erin Daly, ‘Truth Skepticism:
An Inquiry into the Value of Truth in Times of Transition,’ International Journal of Transitional
Justice 2(1) (2008): 23–41; Eric Brahm, ‘Uncovering the Truth: Examining Truth Commission
Success and Impact,’ International Studies Perspectives 8(1) (2007): 16–35; Priscilla B. Hayner,
Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York:
Routledge, 2002); James Gibson, ‘The Contributions of Truth to Reconciliation: Lessons from
South Africa,’ Journal of Conflict Resolution 50(3) (2006): 409–432.
14
David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid
Legal Order (Oxford: Hart Publishing, 1998).
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Such blindness is also catastrophic for the pursuit of any form of global justice.
Nigeria is just one illustration of how complicated judicial politics can be.
The story of the Oputa Panel clarifies how, with or without criminal obligations,
the protection of human rights can remain illusory if it is left in the hands of
compromised institutions, be they old or new. In South Africa, the Truth and
Reconciliation Commission may have circumvented some of these problems of
political interference, but the absence of criminal prosecutions does not always sit
well with citizens. In Chile, military control of the Supreme Court was one factor
that enabled dictator Augusto Pinochet to die without a single conviction in a
criminal court, despite hundreds of criminal charges against him. This is a country
where the judiciary is said to take a conservative stance on human rights, and
civilians are still subject to the jurisdiction of military courts.15
Yusuf argues that it is not always necessary to establish ad hoc mechanisms, as a
judiciary can perform a critical role if it has been transformed. New nonjudicial
institutions may have speed on their side, but transformation of the judiciary
need not be prolonged. Yusuf presents the Hungarian Constitutional Court
(HCC) as an example of the positive results that can occur where attention is
paid to an existing institution postconflict. The HCC was reconstituted after the
fall of communism and quickly became the court of choice for the people in that
transitional democracy. It became more trusted than the ordinary courts, which
carried the blemish of the communist past in the eyes of the public. Even the
introduction of elections for judges did not diminish the public memory. The
HCC was, by contrast, surrounded by a ‘legitimacy of hope’ (p. 143). Poland is
also used as an example where nonengagement with the past of the judiciary
tainted its legitimacy in the present.
If international criminal law is to be useful in making international human
rights effective in the pursuit of global justice, deeply held legal principles need
to be made mutable. Traditional notions of judicial independence should be
‘contingent’ upon time and place and, in particular, be set aside in transitional
societies where ‘there is (as is usually the case) direct or indirect complicity on the
part of the judiciary for gross violation of human rights’ (p. 28). This, Yusuf
argues, was the case in Nigeria, where ‘justice was available for sale to the highest
bidder’ (p. 79) under authoritarian rule. The exemption of Nigerian judges from
the ‘truth and reconciliation’-style process established to inform transition precluded
the Oputa Panel’s success and reduced the Nigerian Supreme Court to a
battleground of electoral politics.
In addition, if global justice is to be secured, the design of enforcement mechanisms
in international human rights law may need to become more mainstream
and less ad hoc. This issue has already been addressed with the creation of the ICC,
15
Diana R. Gordon, ‘Deepening Democracy through Community Dispute Resolution: Problems
and Prospects in South Africa and Chile,’ Contemporary Justice Review 14(3) (2011): 291–305.
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which has so far opened cases in seven countries, all of which are in Africa.16
However, as mentioned above, the members of the Court do not include the most
powerful nation in the world, the US. The ICC’s focus to date has also fallen either
on countries torn apart by civil war or on politicians and political institutions.
It is questionable whether the Court could address the wider agenda envisaged by
Yusuf and Seibert-Fohr.
The challenge outlined by Yusuf is to find the correct balance in both stable and
transitional societies, a ‘publicly accessible accountability mechanism with significant
potential to re-establish confidence in the judicial function as a fundamental
aspect of democratic governance’ (p. 187). Yusuf concludes that faith in
courts not only is a question of the present but also requires an accounting for the
past: ‘People don’t simply forgive . . . a troubled past without some form of acknowledgement
or accountability’ (p. 60). This idea of judicial accountability17
is no longer oxymoronic. Like its more traditional counterpart, judicial independence,
it is not of interest for its own sake18
– it is integral to the development
of global justice.
If internationalism is to be more than the re-creation of existing domestic
power configurations at a global level, effective enforcement must become a priority.
These two books complement each other nicely when considering this
task: Seibert-Fohr focuses on the legal logic and procedures, and Yusuf on the
judicial institutions. It is hard to imagine that expanding the consequences of
judicial review to include prosecution for serious violations of human rights can
be legitimate without heightened attention being paid to the power of the
judiciary.
By Iyiola Solanke, Senior Lecturer, School of Law, Leeds University, UK.
Email: i.solanke@leeds.ac.uk
doi:10.1093/ijtj/ijs004
16
On limits of the ICC’s jurisdiction, see, Dapo Akande, ‘The Jurisdiction of the International
Criminal Court over Nationals of Non-Parties: Legal Basis and Limits,’ Journal of International
Criminal Justice 1 (2003): 618–650.
17
Daniela Piana, Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice
(Farnham: Ashgate, 2010).
18
Pamela S. Karlan, ‘Two Concepts of Judicial Independence,’ Southern California Law Review 72
(1999): 535–558.
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