by Ellen L. Lutz and Caitlin Reiger (eds). New York: Cambridge University Press, 2009. 352pp. Hardback. $99.99/£55.00. ISBN: 9780521491099. Paperback. $30.99/£16.99. ISBN: 9780521756709. eBook format. $24.00. ISBN: 9780511530296.
Reviewed by Moira K. Lynch, Department of Political Science, University of Minnesota. Email: lynch218 [at] umn.edu.
Ellen L. Lutz and Caitlin Reiger’s edited collection of case studies titled, PROSECUTING HEADS OF STATE, provides the first examination of the recent surge in domestic and international trials of former heads of state or government. Through engaging analyses of leaders’ trials in Latin America, Europe, Africa and Asia, this book illustrates the complex process of pursuing prosecutions, while simultaneously identifying common challenges and outcomes across cases. The findings of this book contribute to current debates within the transitional justice literature concerning how states choose accountability mechanisms and the impact of justice on stability and democratic governance. Through richly detailed narratives, the book also provides an important analysis of the tensions that lie at the interface of the international and domestic spheres.
PROSECUTING HEADS OF STATE aims to understand the increased number of criminal charges brought against heads of state or government since 1990. At the start of the book, the editors ask, “Is this a global phenomenon, or one of selective application?” (p.2) The chapters are organized first by region, charting prosecution trends in Europe and Latin America, followed by individual discussions of leaders’ prosecutions. The book closes with an examination of themes that link the cases together. While hundreds of military and government officials have been indicted for criminal activities, the book limits its attention to heads of state or government. These parameters were purposely chosen to ensure that the analysis of cases was limited to those “for which there was official intent to prosecute the accused” (p.3). The focus of the book is unique in that the charges discussed include both human rights abuse and corruption. An examination of both types of charges is useful in illustrating the important ways in which these crimes overlap and how the various movements against corruption and human rights violations have, in fact, coincided. One of the glaring findings of the book, noted by the editors in the introduction, and evidenced in the case studies, is that despite the promising surge in state leaders’ indictments, the actual time served by these individuals is, in the end, quite minimal. Out of ninety-nine indictments against sixty-seven heads of state or government, only seventeen served some form of sentence (p.14). One of the strengths of the book lies in the authors’ rich discussion of the key factors that can intervene to limit justice-seeking efforts.
The book begins with two chapters outlining regional prosecution trends in [*288] Europe and Latin America. While Latin America, specifically Argentina, is responsible for igniting the international trend to hold state actors accountable, European countries were some of the first to attempt such trials. Prosecution efforts during World War I ultimately failed. The use of trials in the region increased, however, after World War II with the commencement of Nazi trials in Nuremburg and formerly occupied countries. These prosecutions were followed by trials of military officials in Greece as the country transitioned from authoritarianism in the mid-1970s, trials at the end of the Cold War throughout Eastern Europe, the development of the first international court to indict a sitting head of state for war crimes and crimes against humanity, and a handful of recent corruption charges against state leaders, including Silvio Berlusconi and Jacques Chirac. One of the most illuminating aspects of this chapter, written by co-editor Ellen L. Lutz, is the revelation that, while the motivation to hold state leaders to account is robust in several European democracies, prosecutions remain greatly restricted by various counter-pressures. It is noteworthy that some of these pressures emanate from the very norms and institutions that uphold democratic governance. It becomes evident here and through later chapters that the barriers that confront efforts to hold state leaders accountable are not confined to politically unstable societies.
Naomi Roht-Arriaza’s chapter on prosecutions in Latin America documents an accountability trend distinct to the region: the diffusion of norms and strategies concerning justice for serious human rights violations. Despite the widespread implementation of amnesty laws, Argentina spearheaded a regional crusade of human rights activists and victims’ families that demanded military and government leaders be held accountable for their participation in systematic human rights abuses. Roht-Arriaza views the surge in investigations and prosecutions as a product of the distinct impact of international justice ideas and laws on the region. Corruption cases are also discussed in the chapter, though unlike human rights cases, few of these have progressed beyond the investigating stage. Roht-Arriaza closes the chapter with a concise and useful discussion of the central legal and political/structural obstacles to prosecutions in Latin America, including the issue of parliamentary immunity, the absence of an independent judiciary and the use of judicial processes by incoming governments for political gain. These same challenges present themselves in subsequent case studies in the book. Thus, in addition to providing a thorough and insightful examination of human rights abuse and corruption cases in Latin America, Roht-Arriaza’s analysis serves as a useful guide to understanding the trajectory of similar cases in other regions of the world.
The remaining chapters of the book include eight individual case studies of heads of state or government prosecuted for human rights abuses, corruption or both. Roht-Arriaza’s chapter on former Chilean dictator General Augusto Pinochet is one of the most informative discussions in the book in its depiction of the use of universal jurisdiction by Spanish courts and the relationship between international crimes and state leaders’ immunity. Through a detailed study of the multiple prosecution efforts [*289] directed at Pinochet, Roht-Arriaza paints a fascinating picture of how courts interpreted international law in relation to a state leader’s indictment and the ways in which understandings of presidential immunity evolved and shifted depending on the context and the nature of the crimes. The Pinochet case effectively reaffirmed that international crimes are not subject to immunity, with the exception of sitting heads of state. This chapter also highlights the significant role of transnational human rights activists in propelling prosecutions forward and it demonstrates that despite certain legal and political barriers, judicial processes based outside of a country can have a significant impact on the prospect for justice domestically.
Ronald Gamarra’s chapter on the indictment of Alberto Fujimori for both human rights and corruption crimes illustrates how investigations into the latter can pave the way for human rights abuse charges and that multiple accountability processes can operate together to sustain justice-seeking efforts. The investigation and trial of Fujimori was initiated by an indictment for corruption; however, the release of Peru’s Truth and Reconciliation Commission report revealed the extent to which the leader was also responsible for human rights abuses. In addition, Gamarra highlights an important development in international law regarding criminal accountability of former state leaders. The Chilean Supreme Court decision to permit the extradition of Fujimori to Peru signaled the power of state cooperation on judicial matters involving human rights violations. Accountability processes continue to be plagued by government refusals to extradite indicted leaders; however, the Fujimori case demonstrates the existing opportunities for domestic courts to counter this trend.
The next two chapters document the trials against former leaders, Joseph Ejercito Estrada of the Philippines, and Frederick Chiluba of Zambia, who were charged with large-scale corruption. A common thread between the two cases is the relative absence of the international community in efforts to hold the state leaders accountable. In a detailed and compelling account of the corruption legacy and entrenched culture of impunity within the Philippines’ history, Abby Wood demonstrates how despite weak institutionalization in a not yet consolidated democracy, a strong sector of civil society organized to battle corruption while the judiciary became increasingly independent and effective for the first time in decades. Paul Lewis’ chapter on the trials of Frederick Chiluba, former president of Zambia, similarly depicts how domestic factors, specifically the efforts of the Oasis movement, propelled actions leading to the removal of Chiluba’s presidential immunity and later, his arrest and trial. While international actors did not aid Chiluba’s trial initially, outside experts became involved in later stages when the legitimacy of the proceedings faltered. Both external facilitation and domestic efforts enabled the first prosecution in a free and fair domestic court of an African former head of state for serious crimes.
The remaining four case studies underscore the reality that efforts to hold heads of state accountable do not occur in a political vacuum. While links between justice efforts and the political motivations of those leading the cause [*290] are not surprising in domestic trials, these cases demonstrate that international justice processes are also not “neutral adjudications of right and wrong” (p.276). Lars Waldorf eloquently captures the complex context surrounding the trial of former Rwandan president, Pasteur Bizimungu. The charges against Bizimungu were highly criticized internally and by various governments and international human rights organizations as an effort by the Rwandan government to silence political opposition and deflect scrutiny of its own involvement in war crimes. Waldorf concludes that an international “justice cascade” appears to be absent in Rwanda and the surrounding region though there is evidence of a “trickle-down effect” (p.168) of justice norms within certain aspects of the Bizimungu trial. While some African countries may not be experiencing the impact of international justice norms as deeply as Latin America, Abdul Tejan-Cole’s account of the legal proceedings against former Liberian president Charles Taylor illustrates how the prosecution of a powerful leader in the region can provide an important precedent. Tejan-Cole argues that the Taylor trial signals to other African leaders and their publics that the legacy of impunity in the region has begun to unravel.
Emir Suljagić’s chapter on the trial of Slobodan Milošević provides a fascinating examination of how the depoliticization of an international trial acted to delegitimize the proceedings. Suljagić argues that the decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) to shy away from several pertinent political considerations, such as the lack of political will among citizens to prosecute war crimes and the limitations on the reach of the court given security concerns, resulted in a devastating missed opportunity to attain justice for the victims of the conflict. The trial of Saddam Hussein, documented in compelling detail by Miranda Sissons and Marieke Wierda, has also been considered by many to be a missed opportunity. The authors argue that the trial lacked legitimacy from the beginning due to the perception that the U.S. was attempting to control the process. The controversial role of the U.S. in Iraq also diminished much needed external support and resources in an environment of highly weak and unstable legal institutions, and a thirst for revenge sped up the trial process, excluding and silencing the voices of many of Hussein’s victims.
The book concludes with a chapter in which the editors assess several broad themes emerging from their data on the sixty-seven indictments of heads of state and government since 1990, regional surveys and the eight case studies. They assert that while there is clear evidence that trials of heads of state are influencing one another across regions of the world, it is not yet apparent that a “justice cascade” is a global phenomenon. An examination of trends in Asia and Africa, in addition to the chapters on prosecutions in Europe and Latin America, would have been a useful means to provide a more complete response to the book’s central question. One promising future inquiry, touched upon briefly in the book, would involve an investigation into why several Asian countries tend to take on cases involving corruption charges more often than cases of human rights abuse given this is not the trend in other regions. The editors’ [*291] speculation in the introduction concerning the decline in trials after 2002 and its possible link to a “war on terror” effect is also worth further investigation.
PROSECUTING HEADS OF STATE is a powerful analysis of the rise in trials of military and government leaders and its impact on conceptions of justice globally. This book is an important contribution to the human rights, transitional justice and international law literatures and its examination of an evolving international trend is an essential and timely resource.
© Copyright 2010 by the author, Moira K. Lynch.