Justice for all

A recent article in the New York Times about India’s Right to Information law made me incredibly happy, because the power of this law demonstrates how law can be used to empower poor and marginalized parts of the population.

Law is often vilified. By Americans, but also around the world. The common cartoon of a lawyer is this: a greedy corporate lawyer who preys on everyday citizens in order to get rich. The law is also the subject of much hatred; people feel like they are drowning in paperwork and penalized unnecessarily. But India’s right to information act is a testament to the fact that the law is not always bad - and that in fact, it can be a powerful force for good and for social change.

Because of this law, the Indian government is required to respond to requests for information from individuals from all classes and parts of society. Now, villagers can file requests to find out why they didn’t receive a grant they were eligible for, or why a road hasn’t been built in their town despite promises from the government. And often, it seems that the government doesn’t just respond to the request for information, but actually takes action to solve the problem. By filing a request, a villager can now get her grant or find that the long-promised road is finally being constructed in his community.

The NYT article argues that although the law is beginning to empower the poor to hold their government accountable, it isn’t especially effective in fighting corruption. While filing a request for information about a service that the government hasn’t delivered upon has caused the state to improve service delivery, it hasn’t truly addressed the root of the problem. Officials who steal or divert money from the state’s coffers into their own bank account, public servants who simply aren’t doing their job, and other government leaders are not being held accountable for their actions. Corruption continues because there are few consequences. The state is improving the provision of services, but hasn’t been able to reduce instances of corruption as they occur in the first place.

Ultimately, this law is a very promising first step, and seems to be a measure that can be implemented in other democratic developing countries (I say democratic because I suspect a large part of the law’s success in India is due to the thriving nature of the country’s democracy and the politically active populace, along with the government’s desire to actually serve its people - sadly absent in most dictatorships).

Yet, such right to information laws should be implemented alongside a strong focus on some punitive measures for corrupt officials - whether it is a large fine, removal from office, or even a term of imprisonment. Without consequences and the enforcement of such, corruption will continue to persist — but the ultimate sad irony is this: in a society where the state bureaucracy is known to be so corrupt, even enforcing the rule of law and clamping down on corruption becomes nearly impossible because of the inefficiencies endemic in the justice system as well. In such a climate of corruption, the implementation of the right to information law in India seems to be a triumph worth celebrating.

Thanks to Running Chicken, I found an excellent new article by Hunjoon Kim and Kathryn Sikkink: Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries. The article basically concludes that:

We find that human rights prosecutions after transition lead to improvements in human rights protection, and that human rights prosecutions have a deterrence impact beyond the confines of the single country. We also explore the mechanisms through which prosecutions lead to improvements in human rights. We argue that impact of prosecutions is the result of both normative pressures and material punishment and provide support for this argument with a comparison of the impact of prosecutions and truth commissions, which do not involve material punishment.

If the article’s findings are correct and the statistical methodology is sound, then this is a great finding and can really help international justice move forward more confidently in the future. I am especially impressed by the finding that the normative impact of prosecutions has actually resulted in deterrence, since many have argued that international justice has not been communicated well on the ground, thus resulting in little impact on deterrence. More quantitative studies should be done on this particular question to further confirm these conclusions.

One of the questions that I had when I first read this was whether there would be a difference between post-conflict transitional justice and justice during conflict - such as the intervention of the ICC. Certainly, post-conflict transitional justice is often undertaken by regimes that are willing to prosecute members of a previous regime, and it would be understandable for those countries to ultimately have a better human rights record. However, the same cannot be said for international bodies undertaking prosecutions during a conflict, as indicted war criminals could simply exacerbate repression and continue to flout international law.

However, they addressed these questions as well, finding that prosecutions under civil wars do not have a different impact on repression than those in peace; indeed, prosecutions during civil wars may even lead to greater improvements on human rights records than prosecutions during peacetime. This is an incredible and truly groundbreaking finding, because it has applied statistical methods to the peace v. justice argument that has thus far been based on mostly qualitative case studies.

Indeed, I do think that many people are coming to the conclusion that the peace versus justice is a false dichotomy. While there was at first much backlash regarding cases in Uganda and Sudan, ultimately those who are indicted are responsible for massive human rights violations; while “peace” might depend on them temporarily, it would probably be best in the long-run if those responsible are simply taken out of the picture. I think the question now shouldn’t be whether we should wait to indict a war criminal or not, but should be about the enforcement of these arrest warrants. Faster and more efficient ways of apprehending war criminals would not only contribute to the deterrence effect, but it would also reduce the possibility of an indicted perpetrator continuing to wield power and exacerbate conflict at home.  Certainly, the challenges are numerous — but I really do think the next step should be to innovate better ways to arrest war criminals and gain international cooperation for their work, rather than to continue the debates about peace versus justice.