Structural determinants of human rights prosecutions after democratic transition

Abstract

<jats:p>Over the last three decades, a growing number of countries have experienced a transition from authoritarianism to democracy, and the new governments have been increasingly expected to address past human rights violations. While the academic literature on the impact of human rights prosecution is relatively well developed, the literature on the causes of such prosecution is still sparse. Why do states pursue criminal prosecutions against former state officials on the charge of human rights violations? This article answers this question by testing three key theories: the balance of power between old and new elites, transnational advocacy networks, and the diffusion theory. I conduct a cross-national study of 71 countries that were in a state of democratic transitions between 1980 and 2006, using a new dataset on domestic human rights prosecutions. I find strong evidence to support the transnational advocacy networks and diffusion explanations. First, active domestic and international human rights advocacy for individual criminal accountability is a key factor guaranteeing persistent and frequent human rights prosecutions. My study further shows that domestic advocacy plays a crucial role in criminal prosecutions of high-profile state officials while international pressure is more effective in promoting prosecutions of low-profile officials. Second, the diffusion theory is also supported since the occurrence of human rights prosecution in neighboring countries is a relevant factor. Interestingly, transitional countries are most sensitive to trials occurring in culturally or linguistically similar countries and this supports the constructivist norm diffusion theory, which focuses on the role of identity and communication in the diffusion process. However, I find that the power balance explanation, which has been the prevailing explanation, is valid only for the immediate use of human rights prosecutions.</jats:p>

The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

“…Other explanations emphasized in existing studies receive mixed support in Model 1. INGOs is positively and significantly associated with a higher likelihood and speed of prosecution, lending support to sociological explanations that emphasize social pressure (e.g., Kim ; Sikkink ). However, Leader Change is not significant, offering little support to the rationalist explanation that justice comes quickly in transitional countries that have made a clean break from the former regime (e.g., Huntington ).…”

“…A second sociological account relies on the influence of cultural neighbors. Peer diffusion—that is, the increase in occurrences of trials among a state's cultural and linguistic peers—reinforces the idea that trials are possible and appropriate and helps inspire local actors, like victims groups and other civil society organizations, to push for prosecutions in their own states (Kim ; Sikkink ; Simmons & Elkins ). In this formulation, elites seek to emulate the socially appropriate behavior of other elites and feel pressure to make choices that resemble those of their peers.…”

“…To account for sociological explanations, we first include a measure of regional diffusion, Regional Trials . Modeled after Hun Joon Kim's formulation, this variable is operationalized as the percentage of a state's cultural neighbors that have undertaken prosecutions, lagged one year (Kim ) . We also include two measures of pressure from domestic and international civil society: a logged count of the number of INGOs operating in the country (Hathaway ) taken from the Yearbook of International Organizations (Union of International Associations 1967–2015); and a binary measure of whether a UN peacekeeping mission was present (Kim )…”

“…This trend is puzzling given long‐standing norms that traditionally shielded government officials from criminal accountability. Scholars have sought to explain why prosecutions occur in some post‐transition societies but not others, and in doing so have identified a number of factors—including political incentives and regional socialization—that increase their likelihood (e.g., Appel & Loyle ; Dancy & Michel ; Kim ).…”

Human Rights Enforcement From Below: Private Actors and Prosecutorial Momentum in Latin America and Europe

“…This school attributes the "revolution in accountability" occurring across states to various global factors including the worldwide diffusion of liberal legal models, the consolidation of human rights treaty law, and sustained transnational advocacy (Sriram 2005;Nagy 2008;Gready 2010;Drumbl 2011;Dancy and Sikkink 2012). Another global explanation posits that recent criminal prosecutions are the result of regional cultures (Kim 2008(Kim , 2012.…”