Divided we fall: how the International Criminal Court can promote compliance with international law by working with regional courts.

• Author: Sainati, Tatiana E.
• Position: III. Enforcing International Law A. Compliance Theories 3. Process-Based Theories through VI. Conclusion, with footnotes, p. 218-243

3. Process-Based Theories.

   The legal process tradition can be broken down into three strands: (1) the International Legal Process School, (2) the New Haven School, and (3) Professor Koh's transnational legal process theory. The International Legal Process scholars argue that states comply with international laws largely due to rational, utilitarian principles: nations observe international law when the costs of violation outweigh the costs of compliance. (131) Participation in international legal process works to constrain the policy choices made by states. (132) The New Haven School, in contrast, perceives policy as a justification: international law is "a decisionmaking process dedicated to a set of normative values." (133)

   More recently, Professor Harold Hongju Koh has developed the transnational legal process theory of compliance. Building off of the work of the legal process school, transnational legal process theory asserts that human rights norms are enforced through a three-phase transnational legal process of interaction, interpretation, and internalization. (134) During the first phase, institutions interact to debate global international human rights norms. In the second phase, these norms are interpreted, before finally becoming internalized by domestic legal systems in the final stage. (135) The goal of institutions concerned with human rights, such as regional human rights courts, is to "develop and nurture" this process, in recognition of the fact that "[t]he most effective form of law enforcement is not the imposition of external sanction, but the inculcation of internal obedience." (136)

   Ultimately, legal process strands--whether the International Legal Process School, the New Haven School, or the Transnational Legal Process theory--all recognize the tremendous importance of participation in promoting the international legal regime. The emphasis on participation resonates with two mechanisms for influencing state behavior identified by Ryan Goodman and Derek Jinks: persuasion and acculturation. (137) Persuasion contemplates "the active, often strategic, inculcation of norms." (138) Actors are persuaded when they become "convinced of the truth, validity, or appropriateness of a norm, belief, or practice" by "actively assessing] the content of a particular message." (139) Acculturation describes "the general process of adopting the beliefs and behavioral patterns of the surrounding culture." (140) Identification generates "varying degrees of cognitive and social pressures ... to conform." (141) Acculturation processes work to "mobilize internal and external pressures," which lead actors "to adopt socially legitimated attitudes, beliefs and behaviors." (142)

   Under this theory, TSMs are predictors of compliance. Activists in TSMs function much like institutions in Transnational Legal Process theory: interacting to debate global international human rights norms; insisting on interpretations of these norms that will serve to promote and protect human rights in their communities; and working to internalize international rules by fostering--and even demanding--compliance by domestic legal regimes. (143) In this sense, TSMs are critical to understanding the global dispersion of human rights law, despite the potential of international law to undermine state sovereignty. (144) Indeed, the ICC itself is largely the product of just such a Transnational Social Movement: more than 800 NGOs were involved in the promotion and creation of the Court in Rome. (145) Lawyers, human rights groups, women's groups, global good governance groups, peace groups, and religious groups from around the world participated in the drafting of the Rome Statute. (146) These groups actively targeted the media, seeking their support and notice regionally and locally, and engaged in street action designed to promote the Court directly to the public. (147) NGOs also successfully countermanded efforts by the United States to exempt any prosecutions of individuals before the Court without the consent of the individual's state. (148)

   TSMs straddle the transnational and the local, encompassing both transnational organizations operating under international laws and principles, as well as local needs, rules, and norms. (149) The interplay between international law and TSMs facilitates the goals of complementarity as it domesticates international rules, strengthens reform movements, reestablishes the rule of law, and promotes compliance with international law--all of which work to end impunity. The existence of, or the potential for, a vibrant and engaged TSM thus serves as a reliable barometer for determining the likelihood of compliance with ICC rulings and the ultimate success of the institution.

   B. Regional Courts and TSMs

   The experiences of regional courts (150) underscore the importance of strong links between international legal institutions and organized social movements. These internationalized courts have proven most effective at implementing and enforcing international law when TSMs have been able to assist in the process of interaction, interpretation, and internalization necessary to promote compliance with international principles. In contrast, where internationalized courts have operated in a vacuum, apart from any organized social movement, both their institutional legitimacy and their ability to foment compliance with international law have suffered.

   Lessons gleaned from human rights tribunals are applicable to the ICC for at least four reasons. First, international criminal law focuses predominantly on human rights violations. Second, principles governing international criminal proceedings enshrine basic human rights, such as the presumption of innocence and the right to an impartial trial. (151) Third, like the ICC, regional courts typically lack effective enforcement mechanisms to ensure compliance with their rulings and thus depend on the willingness of states to obey. (152) Finally, as with the ICC, these regional courts are tasked with promoting human rights in recalcitrant states plagued by endemic, large-scale human rights violations. (153) As a result, regional courts presiding over states where the rule of law rests on shaky ground should ensure compliance with their rulings as a means of forging "a rule-of-law practice and culture." (154) Analyzing when and how regional courts have achieved compliance by working with social movements can thus assist in establishing criteria that the ICC can use to decide whether to pursue a case or defer to regional initiatives.

1. The Case of the Inter-American Court of Human Rights

   The Inter-American Court of Human Rights (IACtHR) has managed to promote greater respect for human rights in Latin America by crafting judgments capable of incorporation "into domestic actors' broader strategies to promote positive change on the underlying issues." (155) Take, for example, the cases of Loayza Tamayo v. Peru (156) and Castillo Petruzzi v. Peru, (157) The Loayza Tamayo case concerned the 1993 detention of Professor Loayza Tamayo, who was accused of associating with an insurgent group. (158) She was subsequently detained, abused, and ultimately sentenced by a faceless tribunal to twenty years in jail on terrorism charges. (159) The IACtHR ruled that Peru had violated Professor Loayza Tamayo's rights to personal liberty, humane treatment, and judicial guarantees, and ordered her release. (160) Peru complied within a month. (161) The court's ruling, however, was by no means the sole impetus for Peru's compliance. Professor Loayza Tamayo's arrest and subsequent detention engendered widespread support and attention from the media and the broader public within and beyond Peru. (162)

   The victims in Castillo Petruzzi had no such public support, even though the facts of the case were similar to those in Loayza Tamayo. In Castillo Petruzzi, four Chilean nationals had--like Professor Loayza Tomayo--been sentenced to life imprisonment by a faceless tribunal in Peru. (163) Again, the IACtHR found a violation of the victims' rights and ordered their retrial with full due process guarantees. (164) This time, however, the lack of public or media support proved fatal to the implementation of the order. Peru refused to comply with the judgment, asserting that it was an impermissible intrusion on its sovereign rights, and the Peruvian Congress approved a resolution to rescind Peru's acceptance of the IACtHR's jurisdiction. (165) Thus, advances in human rights in many Latin American societies stem not from the IACtHR's orders but from "the ability of social movements and human rights advocates on the ground to exert pressure on authorities to implement change." (166)

   The experience of the IACtHR teaches that "impact matters, and should matter, to regional rights bodies," (167) since "international rights courts are most effective when their work contributes to efforts deployed by domestic activists as part of their broader human rights campaigns." (168) Thus, courts tasked with hearing human rights cases must understand factors, including "the prevailing social and political climate in countries subject to its jurisdiction; the strategies of relevant national, regional, and international human rights campaigns; existing or planned government projects aimed at addressing human rights problems; and the shape of domestic public opinion on human rights issues," in order to promote lasting change. (169)

2. The Experience of the Community Court of Justice for the Economic Community of West African States

   Similarly, the ECCJ's experience demonstrates the salience of both international law enforcement theories and transnational social mobilization efforts. The ECCJ was originally conceived as a mechanism to resolve economic disputes arising between member states of the Economic Community of West African States (ECOWAS). (170) In 2005, the ECCJ acquired jurisdiction over human rights claims and since...