As institutions and individuals have worked to promote and protect human rights around the world, "fighting impunity" has become their rallying cry. The anti-impunity trend is rooted in the desire to hold those who commit human rights violations criminally responsible and has been an integral part of the human rights movement in the past century. Previously, amnesties were often offered to violators, either in recognition of complex political compromises or in the hopes of avoiding elongated and highly public battles that would force the reeling society to continually focus on its violent past rather than its more promising future. However, anti-impunity gained popularity exponentially, perhaps most strikingly in the establishment of the International Criminal Court in the summer of 1998. But does a dominant focus on the criminal prosecution of human rights violators actually create justice for those harmed? Or, is this stance an obstacle to achieving broader forms of justice and sustainable peace? In a new publication,
Anti-Impunity and the Human Rights Agenda, Dr. Zinaida Miller, along with her co-editors D.M. Davis and Karen Engle, demonstrate how this intense focus on criminal law in reference to human rights may not be an ideal solution.
Inspiration for the publication grew from early discussions at Harvard Law School's Institute for Global Law & Policy and an academic conference at the University of Texas School of Law, the home institution of Miller's co-editor Karen Engle. Colleagues gathered to discuss the relationships among impunity, justice, and human rights; which in turn, led to a dialogue on the trend of anti-impunity. At this gathering, the academics realized that strong critiques questioning whether or not criminal law is the proper gateway to justice in human rights cases were lacking in the field. These conversations inspired the editors to collect, extend and share a series of articles that would examine the timeline of the anti-impunity trend, review case studies throughout recent history, and offer alternatives. Dr. Miller, along with Engle and their colleague D.M. Davis would each write their own solo-authored chapter and together, craft a peer-edited introduction that would place the ideas of contributors in conversation with one another.
In line with the original motivation of their inquiry, the majority of the book presents a critical analysis of the culture of anti-impunity, rather than providing extensive lists of policy recommendations. Engle's work, which sets the stage for the book, argues that anti-impunity gained prominence in the Post-Cold War era as human rights law began to rely on criminal prosecutions as the ultimate human rights enforcement mechanism and as the international community struggled to come to grips with mass atrocities committed in former Yugoslavia and Rwanda. In its attempts to rebuild these areas and create satisfactory resolutions, the world followed a criminal law structure to bring violators to justice and ensure that all crimes were met with tangible forms of punishment. According to the book's authors, this approach can harm societies in two main ways: 1) by shifting preferences toward individualist, decontextualized, and dehistoricized models of crime and punishment and removing focus from distributional issues; and 2) by enforcing criminal law as the dominant approach over other tools, making criminal prosecution a necessity for most post-conflict nations. For Miller and her colleagues, these consequences of the anti-impunity trend ignore many of the aspects that allowed the violence to occur in the first place. Further, in Miller's words, it, "drowns out other voices," and potentially forces a definition of ideal justice onto the victims of these situations instead of generating solutions that truly address a victim's needs. The rhetoric surrounding the "fight against impunity" often implies or explicitly states that criminal prosecution will satisfy victims' desires for justice and therefore, bring peace to the afflicted society. Unfortunately, as the authors illustrate, this approach does not always generate peace, whether due to political trade-offs, inattention to root causes, or failure to attend to other needs and wishes of victims. The latter is particular problematic as victims may wish to avoid expensive trials and focus on basic necessities such as food and shelter, or to seek resolution to economic or social issues that fed the violence in the first place. In this sense, the anti-impunity trend limits an understanding of human rights violations to a scene with only two casts of characters, victims and perpetrators, restricting the avenues of justice that can be pursued.
Having now completed a project that was encouraged by a mutual desire for increased scholarship on this topic, the shift in the field toward further examination of international criminal law is pleasing for Miller. As she, Engle, and Davis discuss in their publication's introduction, previous criticisms of anti-impunity tended to focus on the efficiency or enforcement aspects of this ideological regime, rather than directly questioning the underlying concept itself. She noted that while there is still space for deeper critiques of the anti-impunity trend, the increase in critical conversation on the issue, particularly on the International Criminal Court, illustrates movement towards further evaluation of the currently dominant approach.
In the ever-changing field that is international relations, the cultivation of honest intellectual dialogue between students and their professors allows students to develop and examine critical arguments, a quality that Dr. Miller has taken from her academic scholarship on anti-impunity and transferred to the classroom. In her teaching, Miller says that she tries to raise all types of questions to create "an open space for contestation." Since she'll be teaching the School's International Criminal Law course in Fall 2017, this method may lead to discussions with Diplomacy students on the very topic of this publication. This is an exciting prospect for Dr. Miller as it provides a physical manifestation of book's purpose: to facilitate critical analysis, and to "unravel before reconstructing." Such a practice allows students to develop into analysts who possess the ability to intellectually challenge established systems in the hopes of yielding better ones.