Reverse-Rhetorical Entrapment: Naming and Shaming as a Two-Way Street

• Author: Suzanne Katzenstein
• Position: Visiting Assistant Professor, Duke University School of Law

1079

Reverse-Rhetorical Entrapment:

Naming and Shaming as a Two-

Way Street

Suzanne Katzenstein*

TABLE OF CONTENTS

I. INTRODUCTION .............................................................. 1079

II. HUMAN RIGHTS ADVOCACY: NAMING AND SHAMING .... 1083

III. HUMAN RIGHTS WATCH (HRW), THE UNITED STATES, AND

TORTURE: FROM NAMING AND SHAMING TO

CONSEQUENTIALIST ARGUMENTS .................................. 1086

A. Shaming Torture Before 9/11: The Crimes

Speak for Themselves ......................................... 1087

B. 9/11, Torture, and Consequentialist

Justifications....................................................... 1089

C. After 9/11: HRW and Consequentialist

Argumentation .................................................... 1092

IV. CONCLUSION—NORMATIVE IMPLICATIONS ................... 1097

I. INTRODUCTION

“Naming and shaming,” the process of exposing, publicizing, and

condemning human rights abuses, is one of the most important and

common strategies used by human rights advocates. In an

international political system where power is typically defined in

terms of military strength and market size, advocacy groups draw on

a mixture of moral and legal means to pressure governments to

improve their human rights behavior. In general, the mere act of

naming and shaming can promote human rights norms by reinforcing

the shared understanding that some types of government conduct are

beyond the pale.1

* Visiting Assistant Professor, Duke University School of Law. Many thanks to

Chris Griffin and Daniela Pisoiu for their insightful comments, to Graham Cronogue

for superb research assistance, and to the editors of the Vanderbilt Journal of

Transnational Law for editorial assistance.

1. See, e.g., Matthew Krain, J’accuse: Does Naming and Shaming Perpetrators

Reduce the Severity of Genocides or Politicides?, 56 INT’L STUD. Q. 574, 576 (2012) (“In

1080 vanderbilt journal of transnational law [vol. 46:1079

Naming and shaming may also work more specifically through

a dynamic of “rhetorical entrapment.” 2 Moral and legal censure

pressure the targeted government to respond to cri ticisms about its

conduct either by expressing public support for human rights norms

or by signing human rights treaties.3 Over time, advocacy groups

use such instrumental concessions to press the targeted government

further to stop its abusive practices.4 Words that initially appear to

be cheap gestures can, with the passing of time, have powerful

effects.

Some scholars have offered compelling analyzes of naming and

shaming, including cases involving Israel’s human rights policies in

the West Bank and Gaza Strip in the early 1990s5 and Uganda’s

repressive policies in the mid-1980s.6 Others warn that naming and

shaming can be ineffective and even backfire, moving authoritarian

regimes to shift to other more discrete forms of repression.7 Many

scholars argue that the efficacy of naming and shaming depends on a

sum, naming and shaming by HROs, the media, and IGOs works because it: creates

common knowledge about the abuses based or [sic] reliable reports; frames

perpetrators as violating international norms and as untrustworthy partners in future

interactions . . . .”).

2. For more information on rhetorical entrapment, see Frank Shimmelfennig,

The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement

of the European Union, 55 INT’L ORG. 47, 48 (2001) (noting that rhetorical entrapment

results from “rhetorical action” in which “[a]ctors who can justify their interests on the

grounds of the community’s standard of legitimacy are therefore able to shame their

opponents into norm-conforming behavior”).

3. See Thomas Risse & Kathryn Sikkink, The Socialization of International

Human Rights Into Domestic Practices: Introduction, in THE POWER OF HUMAN RIGHTS:

INTERNATIONAL NORMS AND DOMESTIC CHA NGE 16 (Thomas Risse, Stephen C. Ropp &

Kathryn Sikkink eds., 1999) (describing the process by which governments initially

become involved in the moral discourse for instrumental reasons).

4. Repressive government s tend to engage, rather than evade, human rights

naming and shaming and become rhetorically entrapped because they miscalculate the

effects of doing so or because they are offered material inducements, such as foreign

aid, to make concessions. See Beth A. Simmons, From Ratification to Compliance:

Quantitative Evidence on the Spiral Model, in THE PERSISTENT POWER OF HUMAN

RIGHTS: FROM COMMITMENT TO COMPLIANCE 48–49 (Thomas Risse, Stephen C. Ropp &

Kathryn Sikkink eds., 2013).

5. See Anja Jetschke & Andrea Liese, The Power of Human Rights a Decade

After: From Euphoria to Contestation?, in PERSISTENT POWER OF HUMAN RIGHTS, supra

note 4, at 29–32 (citing Andras Laursen, Israel’s Supreme Court and International

Human Rights Law: The Judgment on ‘Moderate Political Pressure’, 69 NORDIC J. INT’L

L. 413 (2000)) (describing Laursen’s application of the “spiral model” to Israel’s human

rights policy).

6. See generally Hans Peter Schmitz, Transnational Activism and Political

Change in Kenya and Uganda, in THE PERSISTENT POWER OF HUMAN RIGHTS, supra

note 4, at 39–77 (examining the effects of naming and shaming in Kenya and Uganda).

7. See generally Emilie M. Hafner-Burton, Sticks and Stones: Naming and

Shaming the Human Rights Enforcement Problem, 62 INT’L ORG. 689, 692–93 (2008)

(arguing that naming and shaming can produce unintended consequences in which

governments turn to less visible forms of repression).