Episode 11 - Hypocrisy and Human Rights - Resisting Accountability for Mass Atrocities
Episode 11 – Kate Cronin-Furman
[00:00:00] Dr. Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we talk to
some fascinating people, legal experts, academics and human rights
advocates to explore ideas about the future of human rights and
improving access to justice for all. I’m Dr. Miranda Melcher, a Senior
Legal Fellow at Just Access, and in this episode I speak with Dr. Kate
Cronin-Furman, who is an Associate Professor of Human Rights at the
University College of London, or UCL. In this episode, we focus on some
of the main findings of her book and discuss international justice in
practice. Her book was recently published by Cornell University Press in
2022 and is titled Hypocrisy and Human Rights – Resisting
Accountability for Mass Atrocities.
[00:00:57] Dr. Miranda Melcher: So before we dive into the details of your book, I was wondering if you could maybe start us off introducing yourself a little bit. Tell us how you got to this point in career?
[00:01:10] Kate Cronin-Furman: Yeah. So I’m a little bit of an accidental academic actually. I started out as a human rights lawyer and I came to that out of a desire to help achieve accountability for mass atrocities, and that was kind of my driving impetus in beginning my career. And in my first job out of law school I was working in Cambodia as they were setting up the tribunal to try the Khmer Rouge and, you know, I talk about this in the book actually, in the introduction, I think. I went along on some of the sort of junkets that the tribunal staff did to introduce themselves and their work to people who had been affected by Khmer Rouge atrocities.
[00:01:58] And in one of them we were out in a very rural area and people had come down from the hills to meet with the tribunal staff, and the tribunal staff did their whole sch spiel about like inculcating respect for the rule of law and combating impunity and then they asked for questions. And in the Q and A, you know, the affected community really just wanted to know like where everybody had been when this was happening to them 30 years previously.
[00:02:27] And it was this moment of intense disconnect and it was very demoralizing for me, as very junior lawyer who had come to do this work out of a belief in the idea that we were helping. So, I started kind of asking people, you know, what the theory of change behind the work we were doing was, what empirical evidence we had about how effective it was, and at the time there really wasn’t a lot published on that. It’s different now. If I were having this experience now I would have stuff to go read, but at that particular moment, there really wasn’t much. So after a little while of kind of wrestling with this, I decided I was gonna go and learned to do math and learned to do research.
[00:03:13] So I got the political science PhD where I focused my research on the politics of accountability for atrocities and that ultimately became this book project.
[00:03:29] Dr. Miranda Melcher: Very interesting how your personal experiences in this field led you down to ask really important questions and come up with some really interesting answers.
[00:03:38] And of course, Cambodia, I mean, given that background, of course you talk about Cambodia in the book. You also look at other situations and cases including the DRC, Myanmar and Sri Lanka, in detail and of course mentioned some others along the way as well, including Argentina, Chile, and Ethiopia.
[00:03:53] Obviously when it comes to any sort of research case selection is a huge part of what we do, from a dry methodological academic point of view, but also in terms of kind of getting your head round such a big topic. So I was wondering if you could tell us a bit about how you chose which countries to focus on.
[00:04:11] Were there any that you wanted to include and couldn’t? Take us through that.
[00:04:14] Kate Cronin-Furman: Yeah, this is such a great question. And I think it’s kind of especially a good question to ask me because as it turns out, the case that I probably now have the most personal connection to, which is Sri Lanka, is the one that I picked through the most rigorous social science case selection method. So Cambodia is in there because I have been there, in many ways it sort of motivated the questions that drove the project. Congo, DRC I had been working on since I was in my early twenties and, you know, was very invested in that case, so it was kind of a no-brainer for me to seek research funds to go there.
[00:04:55] But Sri Lanka, I chose based on kind of case selection methods as a second year grad student. I proposed my dissertation topic and, you know, had a sort of nascent theory about how states that really didn’t want to provide accountability, so when domestic politics are really stacked up against justice for mass atrocities, how they would respond to international pressure. And I expected, these kind of interactions, these engagements with the international community to be most complex and, you know, from an analytical perspective, interesting in cases where states were aid dependent, had longstanding ties to the international community so not like your pariah states. And I started my PhD in September of 2009. And of course, the Sri Lankan Civil War ended in an extremely bloody fashion in May of 2009.
[00:06:03] So this was very much in the news at the time, I had never been there, I knew very few people who were from there, but I had the sense that this was the kind of case that was going to follow my theory or going to be a good testing ground for my theory. And I started applying for research funds to go there very early in my PhD. So, you know, I did my PhD in the US so it took six years, which is just kind of standard.
[00:06:27] So many years of applying for funds before I actually went anywhere to do any research. And as I waited for funding to come through, started meeting people, particularly from the victim community and educating myself about the case, and, you know, at this point it’s a case I’ve been very closely involved with for a decade, but really, you know, initially it was not something I had a connection to and it very much was theory driven, which, you know, kind of looking back is quite ironic, I think.
[00:06:56] Dr. Miranda Melcher: Funny how things turn out that way sometimes. Thinking then about theory and obviously the significant theoretical contributions of the book, tell us about quasi compliance as a theoretical model, maybe with some examples?
[00:07:12] Kate Cronin-Furman: Yeah. So, basically, you know, I use the term quasi compliance because I did initially train as a lawyer and we used the prefix quasi to denote something that is as if, right? So in-law, a quasi contract is when a judge rules that a contract didn’t actually exist but we’re gonna act as though one. So for me, quasi compliance is about a performance of as if and it’s something that states do in response to international human rights pressure when they absolutely do not want to do the thing they are being pressured to do.
[00:07:49] And indeed, probably domestically, politically, cannot do that thing without incurring, you know, serious risk, but they cannot afford to tell the international community to just like get lost. So they can’t ignore it, they can’t completely, you know, succumb to the pressure and do what they’re being asked. So they choose this sort of middle ground. And it’s essentially a gamble on kind of doing just enough, and initially this book was called Just Enough actually, doing just enough to escape punishment for non-compliance without actually meeting their human rights obligations. So that’s kind of the central theoretical model that I’m working with here.
[00:08:31] Dr. Miranda Melcher: I think that captures a lot of things and kind of very much paints a picture, both theoretically, but also practically what that might look like, kind of all the different things a leader might be trying to balance. Is there maybe a sort of small example that you could use to illustrate it for people who may not be as familiar?
[00:08:50] Kate Cronin-Furman: Yeah, I mean, my favorite example is actually one that is not from the context of human rights. I mean, I think the easiest way to illustrate is just like, you know, think about your kid or yourself as a kid being told to clean your room. Right? And like, you don’t wanna, I mean, some subset of children are probably very neat and are fine about it. Some subset of children are outright defiant and are just gonna be like, absolutely not come hell or high water. But most kids don’t wanna clean that room, but they also don’t wanna be punished for not doing it.
[00:09:18] So they’re gonna do something like, you know, shove the stuff under the bed. It’s not what the parents want them to do, but is it is a reaction to being told that they need to kind of meet this obligation. So, you know, I’m basically seeing the same thing in the international human rights arena.
[00:09:35] Because this book is mostly focused on the question of accountability for mass atrocities, I’ll give an example there. In 2003, 2004, as international attention to Darfour was building, there were calls that this needed to be referred to the International Criminal Court, and of course, ultimately it was. But before that referral happened, with all of this pressure mounting, Bashir’s government actually empaneled a commission of inquiry to investigate events and determine whether violations of international law were occurring. Now these commissioners were put under tremendous pressure to return a finding that was favorable to the government and indeed, they came back and said, yeah, maybe, you know, there’s a little bit of something going on, but it certainly doesn’t rise to the level of crimes against humanity or genocide.
[00:10:25] So that is the type of institution that I’m seeing across a wide variety of cases really. And again, it is in these instances where domestic politics really kind of stack against pursuing justice, but there’s quite a lot of international attention and pressure happening.
[00:10:43] Dr. Miranda Melcher: And one element, presumably of that international pressure, goes back to something you mentioned earlier in that one of the reasons why you thought Sri Lanka might be relevant to your theory, which is of course the idea of aid and especially aid dependency, which is quite a significant pressure on a lot of levels. So what do you see as the relationship between this quasi compliant sort of strategy and being in a condition of aid dependency?
[00:11:09] Kate Cronin-Furman: Basically, I expect that the more aid dependent a state is, the more robust the quasi compliant effort looks like. So, you know, you take a state like China which really can do what it wants, right? They’ve got a veto on the Security Council, their position is that they don’t need anyone for anything. Faced with human rights pressure, they have very little need to pay costs to respond to that, right? So, you know, we do get a little bit of a gesture in the direction of some window dressing, right?
[00:11:45] So, you know, they do show up to the UN Human Rights Council with their exhibition on how, you know, the camps that the Uyghurs are in are reeducation and aren’t they wonderful, et cetera. So we do see a little bit of a performance, but we don’t see anything that they’re really paying domestic political costs or intense resource costs to produce.
[00:12:05] However, I expect in the case of states that really rely on the international community for development aid, for military aid, that they’re gonna do a better job of faking it, right? And that they are gonna actually, you know, set up institutions. These institutions are not gonna go all the way towards actually, in the case of accountability for mass atrocities, they’re never gonna go all the way to imposing individual criminal liability on those most responsible for the most serious crimes, but they are gonna look closer to what the international community is asking for, the more aid dependent those regimes are.
[00:12:42] Dr. Miranda Melcher: So moving from the big state pressures and international level pressures, you also look at the impact of victim groups and what they’re asking for and the pressures that they’re putting on the government and you point to a causal connection between victim groups power and the attention that governments after atrocities pay to crimes that have happened. I’m wondering if you can maybe tell us a bit about that, and especially how marginalized groups play into that given that if we’re looking at mass atrocity, it’s often against so many different groups or different subsets of groups. To what extent do we see variation in victim groups powers and whether governments respond to it? Can you tell us a bit about this?
[00:13:26] Yeah, so, you know, I get into this in some detail in the book, cuz for me this is what sets the stage for quasi compliance, right? We need to know the domestic politics of accountability to know what position a regime is in with regard to what they can do, what they’ll be willing to do, et cetera.
[00:13:43] And I have a fairly simplistic, it’s hardly even a theory, a fairly simplistic assumption about this, which is that a government’s willingness to provide accountability and also how they’re gonna do it, what kind of resources they’re gonna expend, varies with the relative power of victim and perpetrator groups in society.
[00:14:05] So, we know that when perpetrators remain in command within the military, it is hard for a government that isn’t pursuing justice for atrocities. It’s very hard for them to do anything that threatens those people, because it’s risking their own tenure in power or potentially their own lives. And then on the victim side of things, if you are a democracy and you have a broad section of society has been affected by past crimes, I think this is a reasonable way to describe the situation, like after the Juntas fell, for instance, in Argentina, where we have a big subsection of society that’s been affected, there’s a democratic election, people voting for the new administration in power, have prioritized accountability for these crimes. Often we see new regimes coming in after transition, making it a plank in their platform, that they will pursue accountability. Those are the cases where governments are incentivized to do more and to do it more quickly. But when victims are marginalized, when they’re kind of like a small, discreet population that doesn’t carry a lot of political weight, it’s a very different situation.
[00:15:15] And particularly, the cases that I know well, Sri Lanka and Myanmar, when you have a marginalized group that a democratic majority really is prejudiced against, or does not believe that atrocities were committed against, those are kind of your hardest situations, right?
[00:15:36] That makes a lot of sense. And I think in some ways that’s, well, in a lot of ways I think that’s very clear, right? Trying to figure out what the different pieces are and how they measure up against each other. But one area that is perhaps less clear is the idea of transitional justice. In many ways it’s quite a complicated thing. And there’s very much one strand of thought that talks about pursuit of justice being separate to pursuit of thuth and that decisions might have to be made between prioritizing one over the other in the short term and the long term, depending on the context. But there’s also perhaps an argument that that’s a false dichotomy, that maybe those two things are different terms, but maybe not actually that different in practice.
[00:16:22] What do you think? When do you see a tension between pursuing justice and truth and how do we think about that?
[00:16:30] Kate Cronin-Furman: I think, in the abstract, these are different concepts that are related but not completely overlapping. Anyone who has litigated knows that a courtroom is not ideally suited to producing truth, right? That’s just not what the process produces. I think conceptually we know that these things are distinct. The way this conversation plays out in practice, when we’re talking about transitional justice, I think maybe elides the fact that truth and justice are part of a bigger hole.
[00:17:11] There is a set of things that victim communities need to make them whole. And different victims, different communities, different people, different people at different times, will have different opinions and ideas about what that is. So I think something that I have observed in practice is that when we are quite soon after atrocity is happening, the conversation is very broad based.
[00:17:43] And it’s, you know, how can we get truth? How can we get justice? How can we get reparations? How can we get guarantees of non recurrence? And as time goes by and impunity grows, now victims are told they need to choose among them. And that’s when we get into these conversations about, you know, are these intention, is this a false dichotomy, which one is more important, et cetera.
[00:18:09] But I think fundamentally, my perspective is that any of these things is an incomplete response to impunity and that the longer the timeline is, the kind of worse it gets in terms of what’s gonna be delivered at the end of the day.
[00:18:25] Dr. Miranda Melcher: So moving then from thinking about what’s happening within a state, right, between victims, perpetrators, the anti atrocity government or post atrocity government, to the international level, right? You come from a very interesting perspective of having written a book on this being an academic and having actually practiced a lot of this in the real world, so I was wondering if you could help us understand how to think about ratifications of the Rome statute in general, and also maybe in terms of this idea of quasi compliance?
[00:18:57] Kate Cronin-Furman: Yeah, I understand the rate of ratification of the Rome Statute as a general consensus on the obligation to provide accountability, meaning criminal liability for those most responsible for the most serious crimes under international law and it’s always that particular formulation, right? Obviously nothing in international law is self-executing, so the question of compliance and the rate at which mass atrocities are punished is a totally separate one. But yes, I think we have seen evidence that there is consensus in the international community on this point.
[00:19:37] This is a legal obligation as well as a moral obligation and I think it’s fair to say that it is customary international law at this point and is binding even on those states that have not ratified.
[00:19:50] Dr. Miranda Melcher: So what about naming and shaming? Is that, do you think an effective tool, when we talk about accountability for state perpetrators, or those who may be less state perpetrators, get away with things? Is that a way for victims to access justice?
[00:20:07] Kate Cronin-Furman: So I actually think the impact of naming and shaming is a much more complex and indirect route than the way we ordinarily teach it to students. The classical idea here is that if we publicly call out abusers, they will fear the reputational harm and ameliorate their actions. Right? That’s the kind of pure form here. That hinges on abusers caring more about their reputation than about the benefits they’re getting from whatever repression they’re currently engaged in, which is a big ask, right?
[00:20:45] You know, sometimes sure, but at least in the domains that I am familiar with, commission of mass atrocities, states are not undertaking that lightly, right? There are very strong investments, there are very strong incentives, so the risk of reputational damage is probably not much to offset that.
[00:21:07] But one of the things that I get into in the book is that all of this plays out in a really complex international environment and there are audiences for, I guess we call it human rights signaling, other than the actors those signals are being sent to. So I think naming and shaming, calling out bad acts is really important because of what it does to reinforce the international normative environment, how it might affect the incentive calculus of states that have not yet embarked upon a repressive program, so they don’t have those locked in incentives yet and arguably can be shifted, but in the classic formulation, does naming and shaming work to make state perpetrators change their behavior or pursue justice for atrocities? No, those direct kind of signals in my experience almost never yield in these really politically entrenched situations.
[00:22:06] Dr. Miranda Melcher: To make the situation even more complicated then, if naming and shaming is not really working against state actors and the path towards holding those states accountable is quite complex what about holding non-state actors – perpetrators accountable?
[00:22:23] Kate Cronin-Furman: I think it really depends which non-state perpetrators we might be talking about. So when we think about the reach of the International Criminal Court, for instance, most scholars that are studying this, et cetera, are thinking about it in terms of state actors and rebel groups, so non-state armed actors that have taken up arms against the state. So there’s that set of non-state perpetrators. We also obviously have our pro state militias. We have our criminal gangs, we have our multinational corporations who are often involved in human rights abuses.
[00:23:04] And I think for all of these the impact looks a little different. When we’re looking specifically at rebel groups, I think there are many ways in which they are state-like, or aspiring to be state-like, so we can think about them potentially in the same sorts of terms, with a little bit of adjustment.
[00:23:22] But if we’re talking about like criminal gangs, if we’re talking about corporate actors, then I think we’re in a very different world.
[00:23:29] Dr. Miranda Melcher: So, can anything be done aside from I guess activism to some degree to create reputational damage? Can third parties be held accountable?
[00:23:40] Kate Cronin-Furman: I am kind of out of my element here thinking about this, but I have recently been really impressed with some work that Freedom From Torture has done around, you know, I’m sure most listeners will be familiar with this, but the UK announced a policy of basically deporting asylum seekers to Rwanda, right? It’s ostensibly a safe third country agreement, but I think for most human rights lawyers and activists it amounts to an unlawful deportation. And what Freedom From Torture did was to target the airlines that were being asked to fly these asylum seekers out of the UK to Rwanda and basically raise the reputational costs for them, right?
[00:24:29] Because these are businesses that rely on a good reputation in the public eye. And you know, at one point they gave them an award for worst airline and they were incredibly effective at getting several airlines to back out of commitments to the UK government to do this. So I think we do have to think more creatively when we’re out of our comfortable classic mode, to shift the behavior of corporate actors.
[00:24:56] Dr. Miranda Melcher: Great example. Thank you.
[00:24:58] My final two questions are things that we ask everyone that we have really on the podcast because of your amazing expertise. A lot of the things that we’ve discussed here, and you go into wonderfully more detail in the book, are really complex problems, right?
[00:25:15] They’re not things that can be understood or thought about in one overly generalizable sentence, which is great, but are there things, sort of low hanging fruit, that you see as like, hm, okay, that actually is a clear thing that could be tweaked, not to obviously solve all of these problems, but things that your research and work have illuminated as perhaps lesser understood or lesser known ways forward?
[00:25:42] Kate Cronin-Furman: I think, thinking more about third party audiences for me has been a sort of encouraging direction to move in, because it is these cases where states aren’t locked in to a repressive pattern yet, where their behavior might actually be shifted, right? So I think for me, thinking about how to strengthen signals about consequences such that when states are choosing their actions, they can take that into account. That for me seems like a potentially productive space, right? And it’s not one that necessarily suggests that anyone needs to change their behavior, but it does suggest that we need to be a little more expansive and thinking about looking for the effects of behavior.
[00:26:36] You know, I always have this conversation with students where they’re like, why bother with any of this if it doesn’t work? And it’s like, yes, you are correct that many of these actions, many of these institutions do not yield the outcomes that they seek to produce, but that doesn’t mean they’re not having impact.
[00:26:53] What would the situation be if we weren’t adamantly calling for accountability in the aftermath of mass atrocities? And when we think about that counterfactual, we start to be able to see what those other impacts are. So even if you know it’s not yielding the outcome that we’re trying to achieve, we can see what else it might be doing.
[00:27:15] Dr. Miranda Melcher: Very useful to think through. And I can imagine sort of what happens when you challenge your students to think about that. Probably some very interesting conversations. But we are wrapping up our conversation here, and I only have one final question.
[00:27:28] The book is out, people can read it. Is there anything you might be working on now or next, that you’d like people to be aware of? Whether or not it’s a book?
[00:27:37] Kate Cronin-Furman: I am actually working on another book, which is looking specifically at contestation over evidence of atrocities. So what happens when states are denying that they’re committing atrocities and what work do those denials do on the international stage? How does it impact the collection of evidence, so documentation of mass atrocities? I think one thing that really emerged for me from the research for this first book, was that in many of these cases, victim communities have to do the hard work of documentation themselves.
[00:28:13] So when states restrict access to the places where atrocities have occurred, it falls to the victims to do this work themselves. And it’s phenomenally dangerous for them, because, you know, states will commit kind of secondary repression in order to prevent information getting out. So, I think as a result of many of those conversations that I had with victim communities in the research for that first book, I’m now looking more closely at what are the information pathways by which evidence gets to the international community, how do states try to prevent that, how do they respond to it? So that’s what I’m working on at the moment.
[00:28:49] Dr. Miranda Melcher: Thank you, Kate, for exploring your research practice and some of the main findings of your book with us, as well as your thoughts on transitional and international justice.
[00:29:05] Stay tuned for future just access interviews and do get in touch with us if you have any suggestions for people or topics we should cover.