Human Rights Realism.

• Author: Davidson, Natalie R.

TABLE OF CONTENTS I. INTRODUCTION 33 II. LEGAL REALISM, RIGHTS AND REMEDIES 10 A. Legal Realism from Domestic to International Law 40 B. Legal Realism and the Right-Remedy Relationship 43 III. A REALIST CRITIQUE OF SOVEREIGNTISM AND HUMAN RIGHTS ABSOLUTISM IN DEBATES ABOUT UNIVERSAL CIVIL JURISDICTION AND BEYOND 10 A. Introducing the Universal Civil Jurisdiction Debate 46 1. In the United States 46 2. Outside the United States 48 B. Deconstructing the Universal Civil Jurisdiction Debate 50 1. The Sovereigntist Position: Substance and Procedure as Distinct 51 2. The Absolutist Human Rights Position: Remedies as Adjective to Norms 54 C. Sovereigntism and Human Rights Absolutism beyond Universal Civil Jurisdiction .... 58 IV. RECONSTRUCTING HUMAN RIGHTS REALISM 61 A. The Benefits of Gaps between Human Rights Norms and Remedies 62 B. Determining the Extent of the Gaps 66 V. HUMAN RIGHTS REALISM IN ACTION 72 A. Operationalizing Human Rights Realism 72 1. Human Rights Realism in Universal Civil Jurisdiction 73 2. Human Rights Realism in Regional Court Jurisprudence 74 3. Human Rights Realism in International Criminal Law 76 B. African Withdrawal from the ICC and Human Rights Realism 77 VI. CONCLUSION 80 I. INTRODUCTION

Since the 1980s, human rights advocates have argued for legal accountability in cases of gross human rights abuses, seeking the prosecution of individual perpetrators and the compensation of victims. (1) As a result, regional human rights bodies now impose on states a duty to investigate, prosecute, and provide compensation for serious human rights abuses, ruling that even democratically reached amnesties violate victims' right to an effective remedy and to a hearing. (2) The International Criminal Court (ICC) was established to prosecute grave crimes, and its rules of admissibility are designed to incentivize states to prosecute those crimes committed within their territory. (3) Prodded by victim groups, domestic criminal courts have also exercised universal jurisdiction over heinous crimes. (4) In addition, civil domestic courts have been asked to entertain tort lawsuits concerning abuses occurring in foreign countries under universal civil jurisdiction (UCJ). Since the 1980s, US federal courts have created a form of universal jurisdiction in civil cases by entertaining damage lawsuits under the Alien Tort Statute (ATS) against individuals alleged to have violated, even outside the United States, norms of international law enjoying universal acceptance. In other jurisdictions, victims have brought civil claims against foreign states and state officials for torture under ordinary tort or obligations law in the jurisdictions in which they reside. (5)

These transnational mechanisms of legal accountability for egregious human rights abuses appear acutely challenged today. In the first decade of the twenty-first century, some European states such as Belgium and Spain amended their universal criminal jurisdiction legislation so as to restrict the possibility of taking jurisdiction in foreign cases. (6) In 2013, in Kiobel v. Royal Dutch Petroleum Co., a conservative majority of the U.S. Supreme Court severely narrowed the possibility of bringing claims under the ATS, requiring a strong connection between the claims and the United States. (7) In other jurisdictions, the principal obstacle to exercises of UCJ is the doctrine of sovereign immunity, which courts interpret to bar lawsuits concerning governmental acts not only against foreign states (as is the general rule in the United States) but also current and former foreign officials. The supreme courts of Canada and England, as well as the European Court of Human Rights (ECHR), have rejected attempts to recognize a torture exception to sovereign immunity from civil proceedings in decisions that cross-reference each other heavily. (8) The ICC, for its part, is at risk of losing state parties. The Republic of Burundi withdrew from the treaty establishing the ICC a few weeks after the Office of the Prosecutor announced it would open an investigation for crimes against humanity allegedly committed in that country, and the African Union has published a set of demands for reform of the ICC presented as conditions for African states to remain members of the court.

The challenges to these transnational accountability mechanisms are typically defended on grounds of the protection of state sovereignty. While a populist version of this challenge simply denies the validity of international norms, (9) the version found in academic and legal commentary condemns the commission of atrocities but questions the turn to transnational institutions to directly administer justice or determine states' remedial obligations. Under the latter position, which this Article terms "sovereigntism," scholars point to a range of risks posed by transnational accountability mechanisms for states' control of their internal affairs and/or international relations. These include concerns for domestic institutions' discretion to address violations and allocate resources within their political community; the smooth conduct of inter-state relations; or, with respect to universal jurisdiction, the power of the legislative and executive branches of government to conduct foreign relations in relation to the judiciary. (10)

The common response from the human rights camp is to affirm the non-derogable character of accountability for serious abuses. While in the 1980s and 1990s human rights advocates debated the legality and benefits of amnesties in transitions away from dictatorship or conflict, over time they came to deny that legal justice conflicts with truth and peace, under the motto of "anti-impunity." (11) Though many human rights advocates and scholars recognize the privileged role played by domestic legal institutions in responding to abuses, (12) the dominant position among them is that, subject to guarantees of due process for defendants, international law mandates criminal proceedings and compensation of victims as necessary responses to atrocity. A clear illustration of this position--which this Article terms "human rights absolutism" for its inflexible view of the need for a legal response--can be found in the following recent statement by Theodor Meron:

We insist on accountability for violations of international law because that is how we defend the law and demonstrate our insistence on respect for the law going forward. If we fail to ensure accountability across the board, we risk undermining the very beneficial effects to which the nascent accountability drive that has built over the past quarter-century has given rise. We risk telling states and individuals that the requirements set forth in international law--whether customary or conventional in nature--are not actually binding. That is the last message we would wish to send. (13)

This Article challenges both sovereigntism and human rights absolutism and offers a novel, intermediate approach to accountability for human rights abuses. Drawing on legal realism, this approach acknowledges that legal accountability can have unintended, negative political consequences. Yet, because it is grounded in human rights values, it does not accept all political considerations as trumping accountability. Rather, the Article argues that accountability can be limited to avoid those political consequences that provide fertile ground for the commission of gross human rights abuses, and it suggests armed conflict and rises in economic inequality as examples of such consequences. Put differently, the Article claims that human rights protection is strengthened by the recognition of some limitations to legal accountability for gross human rights abuses.

A number of scholars have argued that legal responses to atrocity should be limited. Ruti Teitel suggests that international and regional human rights courts defer more to domestic political arrangements. (14) Sarah Nouwen urges states to recognize an exception to the duty to prosecute in the proposed Convention on Crimes against Humanity in order to enable processes such as the South African transition from Apartheid. (15) Miles Jackson similarly urges the European Court of Human Rights to recognize the validity of amnesties furthering peace. (16) Scholars have also argued that alternatives to trial should preclude ICC jurisdiction when they further peace or justice. (17) However, if the critics of full legal accountability point to the harm posed to values such as peace, they do not address the counterclaim, exemplified by Meron's quote above, that the absence of legal accountability lessens the value of human rights norms. In addition, because the advocates of a middle ground point to peace and democratic decision-making as countervailing values that self-evidently merit protection, they do not offer a rationale for distinguishing these values from the other considerations advanced by sovereigntists to limit accountability, such as the smooth conduct of international relations. Thus, while human rights institutions such as the Inter-American Court of Human Rights have at times demonstrated flexibility in pushing states to prosecute in the context of peace-making, (18) the normative ground for such flexibility remains to be elaborated. This Article seeks to offer a robust justification, grounded in human rights norms, for accepting limitations to legal accountability across a wide range of mechanisms. Contrary to calls for compromise in order to save transnational legal institutions, (19) it argues for limitations on accountability as the normatively preferable position.

The argument is developed by revisiting the debate about UCJ in light of realist writing on the relationship between rights and remedies. This involves three methodological choices. First, while UCJ raised issues specific to civil litigation, the heated debate across jurisdictions concerning it offers a convenient window...