UNIVERSAL JURISDICTION AND THE PURSUIT OF JUSTICE FOR VICTIMS AND
SURVIVORS OF GENOCIDE
ASOCIALNETWORK ANALYSIS OF OECD STATES AND INTERNATIONAL NORM DIFFUSION
REBECCA DAWSON Master's Thesis
Spring 2020
Department of Peace and Conflict Research, Uppsala University Supervisor: Anders Themnér
Word Count: 21,412
Acknowledgments
Sincerest thanks to my advisor, Anders, for his support throughout this research and writing process, and to Rotary International, District 9570 and the Uppsala Rotary Peace Centre for the wonderful opportunity to live and study in Uppsala over the past two years. To my mum, Elke, and meine liebste Oma, thank you for always being there to listen, on the sunny days and the grey days. Finally, to my friends nearby and really far away who gave me encouragement, tea, brain bubbles and their time, thank you times twenty-one thousand four hundred and twelve. A little part of each of you is in this paper.
Abstract
Universal Jurisdiction (UJ) emerged as a norm in international post-conflict justice after the Nuremberg Trials and is based on the principle that the nature of certain crimes is of greater importance than the nationality of the perpetrator, the location of the crime or any direct connection to the prosecuting state. This paper discusses the spread of UJ, which has been wide-ranging and consistent since the 1950s, and seeks answers to the question – why do some states adopt universal jurisdiction legislation while others do not?
Through the novel use of Social Network Analysis (SNA) and application of diffusion theory (specifically emulation), the study tests the hypothesis that liberalist network ties influence a state’s willingness to adopt UJ legislation. This bivariate relationship is tested with a medium- n population of OECD states and the empirical results of the SNA reveal strong support for the hypothesis, findings that are determined to be statistically significant by the Pearson’s Chi- Square test. This study embodies an innovative methodological and theoretical approach to an important international post-conflict justice issue, and draws attention to the obstacles that often stand between victims and survivors of genocide and their day in court.
N.B The design of the Social Network Analysis maps and details in some tables mean that this paper is most optimally viewed in colour.
[U]niversal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.
The Princeton Principles on Universal Jurisdiction (2001, 28)
Table of Contents
Acronyms vi
Figures, Tables and Maps vii
1. Introduction 1
2. Universal Jurisdiction: An Overview 5
2.1 The Guatemalan Genocide Case 8
2.2 France and the Rwandan Génocidaires 10
3. Theory 12
3.1 The Theory of Diffusion 13
3.2 Emulation as a Mechanism of Diffusion 15
3.3 Understanding Norms and Normative Behaviour 16
3.4 The Life Cycle of a Norm 18
3.5 Conceptualising Normative Network Ties: Liberalist Networks 22
3.6 Conceptualising State Behaviour 23
3.7 Conceptualising Emulation 23
3.8 Causal Story and Hypothesis 24
4. Research Design 27
4.1 Case Selection 27
4.2 Methodology 28
4.3 Operationalisation of the Theoretical Framework 29
4.4 SNA and the Pearson’s Chi-Square Test 34
4.5 Time Period 35
4.6 A Note on Sources 36
5. SNA Empirics and Statistical Findings 38
6. Analysis of Results 44
6.1 Robustness Testing 44
6.2 Causal Hurdles 46
6.3 Observations, Variations and Alternate Explanations 47 6.4 Implications of the Research Decisions and Design 49
7. Conclusion 51
References 53
Compendium of Legislation: Universal Jurisdiction for Genocide 57 Appendices
Appendix A: OECD Member State Data 59
Appendix B: SNA Maps for the Independent Variable and Indicators 61
Appendix C: Chi-Square Calculations 63
Appendix D: Chi-Square Critical Values Table 66
Acronyms
ASEAN Association of Southeast Asian Nations ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia NATO North Atlantic Treaty Organisation
NGO Non-Governmental Organisation
OECD Organisation for Economic Co-operation and Development SNA Social Network Analysis
UJ Universal Jurisdiction
UJG Universal Jurisdiction for the crime of Genocide
UN United Nations
UNSC United Nations Security Council
Figures, Tables and Maps
Figure 1 ‘From theory to hypothesis’ 12
Figure 2 OECD States Adopting UJG 14
Figure 3 OECD States with UJG: S-Curve 14
Figure 4 ‘Norm life cycle’ model 20
Figure 5 Causal Chain 25
Figure 6 Operationalisation of the Variables 29
Figure 7 OECD States Adopting UJG with Tipping Point 35
Table 1 Thresholds for the Three IV Indicators 32
Table 2 Tabular Association of the Variables 34
Table 3 Value Table for the IV Indicators and DV 39
Table 4 Tabular Association of the Case States 41
Table 5 Shorter Time Period (1999 to 2008) Table Comparison 44 Table 6 Increased HRScore1999 (1.5) Table Comparison 45
Table 7 ‘Case State’ Value Table: IV and DV Data 59
Table 8 ‘Critical State’ Value Table: IV and DV Data 59 Table 9 Master Table: All State and All Indicator Information 60
Map 1 OECD States with Many Liberalist Network Ties in 1999 38 Map 2 Adoption of UJG amongst OECD States as of 2012 (with
1999 Liberalist Network Ties)
39
Map 3 OECD States and the Relationship between Liberalist Network Ties in 1999 and UJG in 2012
40
Map 4 Indicator 1 – LibDem1999 61
Map 5 Indicator 2 – HRScore1999 61
Map 6 Indicator 3 – UNMissions 62
Map 7 All Independent Variable Indicators 62
1: Introduction
In the contemporary age of conflict four core international crimes have emerged, acts of violence that redefined post-conflict justice and amongst other things, led to the establishment of the International Criminal Court (ICC). The crimes that the ICC was specifically created to prosecute – war crimes, torture, crimes against humanity and genocide – are widely considered to be of such an egregious nature that they necessitated a revaluation of legal conventions and prosecutorial norms globally.
This normative shift in conflict and justice began to gain momentum in the wake of WWII, when the Nuremberg Trials became the catalyst for contemporary international criminal law and set a precedent for individuals being answerable for war crimes1. An important post-war development that reflected the unparalleled nature of the violence and terror the Nazi regime and its supporters had been complicit in, and reflective of the agreement within the international community that certain types of perpetrators deserve punishment regardless of their own state’s willingness or ability to prosecute them.
Beyond Nuremberg however, post-conflict justice has hit numerous roadblocks and the path for victims and survivors of mass atrocities has been fraught with obstacles and disappointments. None more so than in response to one-sided violence2, most significantly genocide, and while still a watershed moment in global cooperation and condemnation, the opinion amongst scholars is often that the 1948 United Nations’ (UN) Convention on the Prevention and Punishment of the Crime of Genocide has been ‘more honoured in the breach than in the practice.’ (Levene 2000, 306). Similarly, the ICC and other international tribunals (notably the ICTY and ICTR3) have achieved success in implementing transitional justice to an important extent, but gaps have appeared in the effectiveness of these legal institutions that necessitated a further evolution in post-conflict justice.
Helen Trouille’s work on France and Rwandan génocidaires (2016) paints a very accurate picture of the cracks that Universal Jurisdiction (UJ) began to fill, with the Pascal Simbikangwa
1 Hannah Arendt, referred to this shift as ‘the need to treat crimes against the comity of nations and crimes against the human status as distinct’ (quoted in Hovell 2018, 444).
2 Uppsala Data Conflict Programme (UCDP) defines one-sided violence as the ‘deliberate use of armed force by the government of a state or by a formally organised group against civilians which results in at least 25 deaths in a year.’
3 The International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).
case in particular4 illustrating the ways in which pursuing a perpetrator can quickly exhaust all conventional legal options. Simbikangwa’s arrest by French authorities came too late to be investigated by the ICTR, and if the ICTR would not try the case, neither could the ICC5. The final conventional option in these circumstances was to extradite him to Rwanda to face trial, but human rights principles prevent extradition to a country that has the death penalty6 so that route was closed to France too. These are the circumstances that led the French government to launch a criminal trial through its own national courts, a legal avenue that would not have been possible before the adoption of UJ provisions and a willingness to act upon them.
UJ has, for reasons the paper delves into, been predominantly driven by victim and survivor advocacy organisations and human rights NGOs. As Guatemalan genocide survivors were forced to seek justice beyond the reach of their own government (Ross, 2016) and European countries began to realise they were harbouring war criminals (Trouille, 2016;
Bouwknegt, 2018), what emerged was a ‘modest but indispensable niche for universal jurisdiction in the project of international law enforcement.’ (van der Wilt 2011, 1064).
Since its modern emergence in the 1950s7, UJ has slowly but surely gained momentum, fuelled by the principles that post-war justice is vital and that impunity for perpetrators should be deemed unacceptable. It reminds us that putting war criminals on trial is imperative not only for honouring victims but also facilitating the recovery of survivors and reconciliation of communities, and that too often conventional mechanisms of post-conflict justice fail. UJ allows states to indict and try non-nationals for crimes that have no direct connection to their own territory or citizens, thus taking on roles traditionally played by a perpetrator’s own state’s legal system (which can fail when the government is complicit in the crimes). Or in more recent history by the ICC and international criminal tribunals, which can suffer from limited mandates and institutional capacity as well as being hobbled by the need for perpetrating individuals and states to recognise their authority.
4 The Simbikangwa case was the first trial of a Rwandan perpetrator to be brought before a French court.
5 These two aspects of the case are discussed in more detail in Section 2.
6 Rwanda still had the death penalty at the time of the Simbikangwa case, though it has since been abolished.
7 Universal jurisdiction has its historical roots in the heyday of piracy, over two-hundred years ago, when legal authority was required to arrest and punish pirates who were technically stateless given that ‘the high seas were outside the jurisdiction of any state and belonged to all humanity’ (Reydams 2010, 342). However, the line separating piracy and international crimes is clear in that, rather than being committed by individuals operating outside of the law, torture, war crimes, genocide and crimes against humanity are ‘committed within the boundaries of sovereign states, and very often by definition, are committed by public officials or in the exercise of state policy. (Hovell 2018, 443).
UJ requires an assumption of self-appointed authority that divides the opinions of scholars and law-makers alike, with proponents lauding UJ’s potential for ‘closing the impunity gaps evident in national politics and bringing perpetrators of human rights abuses to justice’ and critics labelling it a ‘troublesome threat to national sovereignty’ (Ross 2016, 368).
Interestingly, despite the position of prominence that the prosecution of war criminals occupies in terms of post-conflict transitional justice, reconciliation and redress for victims, there are still states who have not adopted it. Iceland, for example, has no provision for UJ over any of the core international crimes, despite it being considered a world leader in human rights. Thus, beyond arguments of legitimacy, implementation and effectiveness (all of which have been extensively discussed, analysed and defended in the literature on UJ) the important ex-ante question is: why do some states adopt universal jurisdiction legislation while others do not?
An Amnesty International survey of UN member states found that there was a dramatic escalation in the adoption of UJ legislation towards the end of the 1990s, and of the four core international crimes, this paper choses to focus on genocide8. However, there is a gap in the research exploring why this relatively new legal norm began spreading that means it is primed for empirical analysis. This study aims to fill that gap through a novel and interdisciplinary research approach, hypothesising a relationship between a state’s network ties to its self- identified peers and a likelihood that it adopts their behaviour.
The paper does this by applying the theory of diffusion, through the mechanism of emulation, to examine the behaviour of 27 OECD states (identified from here on in as the ‘case states’) over a 13-year period. The study determines whether a ‘case state’s’ embeddedness in liberalist networks that prioritised democracy, human rights and support of international organisations (such as the UN) had a bearing on the likelihood of it adopting Universal Jurisdiction provisions for Genocide (UJG). The bivariate relationship hypothesised by the theory is that ‘case states’ adopted UJG because they had many liberalist network ties to other states who already had such provisions (labelled as ‘critical states’ in the paper for reasons explained in Section 3).
This theory of networks linking ‘case states’ to ‘critical states’ is something that Social Network Analysis (SNA) is ideal for exploring, and within the empirical analysis the ‘case states’ are explored using SNA to determine their categorisation in a variable association table
8 By 2012, 94 UN member states had UJ for genocide with at least 25 others providing their courts with UJ over ordinary crimes that ‘if committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, could amount to genocide’ (Amnesty International 2012, 13).
(according to whether they have liberalist network ties and/or UJG) . The results of this table are then used to calculate values for the Pearson’s Chi-Square test, to establish whether there is a statistically significant possibility that a relationship exists between the independent variable (IV) and dependent variable (DV) in the hypothesis. The study’s novel use of SNA finds that the majority of ‘case states’ (15 out of 16) that had many liberalist network ties to
‘critical states’ in 1999 adopted UJG by 2012. Conversely, of the ‘case states’ who had few or no liberalist network ties with ‘critical states’, 6 out of 11 did not adopt UJG. These results are substantiated by the chi-square test which determines that the probability of a relationship existing between the IV and DV meets a conventionally accepted standard of statistical significance.
Moving forward to the structure of the paper, Section 2 encapsulates an overview of universal jurisdiction by providing an insight into its origins and spread, contextualising its importance as an international justice strategy, and framing UJG within it. Section 3 introduces the theoretical framework, including the central theory and mechanism; defines norms and normative behaviour; conceptualises the IV and DV, and presents the causal story and hypotheses. Section 4 explains each element of the research design and outlines important characteristics of the empirics. Section 5 presents the empirical data: applying the theoretical framework to the ‘case states’ through the creation of SNA maps and offering initial observations regarding the hypothesis from what can be observed in those maps, before conducting the statistical tests and presenting the immediate results. Section 6 analyses and interprets the empirical results in terms of the broader findings of the study and unpacks interesting variations, reflecting on the influence of empirical choices and research design and proposing alternate explanations and interpretations. Finally, Section 7 summarises the study, recaps its purpose, analyses its value and contribution to the fields of UJ research and diffusion theory, and proposes compelling ideas for future research.
2. Universal Jurisdiction: An Overview
In addition to the novel use of SNA, this study contributes to the fields of peace and conflict and transitional justice by examining the meaning of universal jurisdiction in the real world, how it emerged as a new tool in the belt of international justice, and why genocide is the most immutable of the crimes that it redresses.
The power and potential of UJ lies in how, conceptually and in practice, it is a departure from legal tradition. As defined in the Principles on Universal Jurisdiction, written by an interdisciplinary committee of scholars, academics and legal experts convened at Princeton University in 2001:
[U]niversal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction (28)
The Princeton Principles underscore UJ as a key strategy to ‘promote greater justice for victims of serious crimes under international law, close the gaps that have often led to impunity for the most serious of crimes and to ascertain the best forum for the trial’ (Trouille 2016, 215). This clarity of concept, as well as the delineation of challenges and limitations also addressed by the committee, mean that the Princeton Principles are a widely referenced and quoted a tool in the academic and practical realm of universal jurisdiction.
The importance of UJ becomes even more apparent when considering that the treaties and statutes that codify the global community’s condemnation of crimes such a genocide do not include explicit obligations for states to indict perpetrators. Meaning many war criminals are protected by loopholes in legal conventions that exist because ‘universal jurisdiction and customary international law are uneasy bedfellows’ (Hovell 2018, 433). It is not uncommon for perpetrators of war crimes to flee after a conflict ends and find safe haven in a new country, the most infamous example of this being the exodus of high-ranking Nazis leaving Europe for South America after WWII. What develops in these cases is complicity by the host state in those perpetrators’ circumvention of justice and ultimate impunity. Luc Reydams reflects that, for the longest time ‘such individuals would have been left in peace by the authorities of the asylum state for lack of interest, lack of capacity, lack of expertise, lack of a constituency, lack of political will, or a lack of legal basis in domestic law’ (2010, 348). This began to change in
the 1980s and 90s, however, as global discourse shifted towards the protection of human rights and the voice of survivors9.
To discuss universal jurisdiction is to discuss sovereignty and the contest between the two has a history as far back as medieval Europe according to Devika Hovell, who talks about the Pope and the Holy Roman Emperor being caught in a contest in which both alleged that their legacy as ‘supranational bodies descended from the Roman Empire’ bestowed upon them ‘the power to state what is lawful for the whole world.’ (444). She goes on to explain that:
The demise of the Holy Roman Empire and triumph of the modern state marked the end not of a competition between ‘universal’ jurisdiction and state sovereignty but, instead, of the recognition that state sovereignty was more effective at ensuring effective protection of the safety of the people. (444-445)
Thomas Hobbes, forefather of legal positivism and political philosophy, however, seemed to predict the resurrection of UJ as far back as 1651, when he wrote that the state imposed obligation for citizens to obey their territorial ruler would last ‘as long, and no longer, than the power lasteth, by which he is able to protect them’ (1996, 153). This is, of course, open to a myriad of interpretations but it is still a powerful foreshadowing from a great political mind of a time when a state will not only fail to protect its citizens but will play an active role in harming them.
The norms of international law and jurisdictional authority preceding UJ were more siloed, the most prominent of these being ‘territoriality’ and ‘nationality’ jurisdiction which cover crimes committed in the territory of a state or by a national. ‘Passive personality’ jurisdiction allows states to pursue indictment in a case where a national is the victim of a crime abroad, and
‘protective’ jurisdiction is employed when a state’s interests are under threat (Hovell 2018, 439). None of these, however, allow states to initiate legal proceedings against a non-national perpetrator, present in their territory, who has committed crimes abroad, even when those crimes were of such a heinous nature that they have been condemned in international treaty law by almost all of the UN member states10.
9 The Responsibility to Protect (R2P) doctrine that was created in the wake of the genocide in Rwanda in 1994 is a prime example of this shift.
10 The 1948 Genocide Convention has 152 signatories, while the 1998 Rome Statute (which established the ICC) has 139 (118 ratified).
At this juncture in the historical narrative, it is worth mentioning the trial of Nazi war criminals in Jerusalem11, as this is in many ways the most important post-Nuremberg catalyst of universal jurisdiction, due in essence to the very unique reasons for which the need for jurisdictional authority arose.
The temporal order of events that transplanted the pursuit of justice for victims and survivors of the Holocaust from Europe to Israel is possibly unique in world history.
Traditionally, the creation of states and rule of law follows a conventional path: (1) formation of state; (2) designation of nationals (typically the existing population of a territory); (3) crime committed by or against a national, (4) indictment of the perpetrator/s who committed the crime by this (their own) state. In the case of Israel however, this series of events occurred out of order, in that it went: (1) crimes were committed against the Jewish people during WWII; (2) creation of the state of Israel; (3) designation of collective nationality to the Jewish people as being of the state of Israel; (4) indictment by Israel of the perpetrator/s of crimes committed in Europe12. It therefore became clear in this case, that traditional territoriality or nationality jurisdiction would not be sufficient to pursue justice for Jewish victims and survivors of Nazi atrocities, resulting in Israel becoming the first state to codify modern universal jurisdiction in its federal legal legislation13. The crimes that were borne witness to, and punished, by Israel’s national courts demanded an evolution in the concept of jurisdiction that has resulted in many similar cases being pursued under the principle of UJ. The extraordinary reasons that UJ occupies a place of such prominence in Israel’s state legal structure are not the reasons other states adopted similar provisions though. Rather, its importance as the pioneer of modern UJ is in illustrating how prosecution processes, and the international legal system as a whole, are subject to evolution in circumstance and behaviour.
The Nazi war crime trials in Israel are not the only important examples of UJ, nor the only ones relevant for the theoretical argument in this study. Two others that warrant brief analysis are the Guatemalan genocide case and France’s prosecution of Rwandan génocidaires.
11 Two notable examples being the 1961 trial of Adolf Eichmann and the 1986-8 trial of John Demjanjuk who was extradited from the United States to Israel to stand trial, and whose story has recently been made into a docuseries that focuses specifically on the UJ aspects of his case and the triad of jurisdictional claims that arose between the US, Israel and Germany.
12 N.B. It is important to note that these chronologies of events are NOT causal processes, they are simply a timeline of events describing when each occurs in relation to the others, not necessarily because of the preceding event. The ascending numbers are simply meant to indicate temporal order and in no way insinuate causality.
13 Israel adopted UJ provisions, specifically over the crimes of WWII against the Jewish people, in 1950. These provisions were codified in the Nazis and Nazi Collaborators (Punishment) Law.
2.1 The Guatemalan Genocide Case
The preeminent transnational case of the 1990s that paved the way for renewed conversations surrounding jurisdiction stemmed from the arrest of former Chilean dictator, General Augusto Pinochet, in the United Kingdom in 1998 on the authority of a warrant issued by Spain. This was a case so influential that it spawned the moniker the ‘Pinochet Effect’ (Roht-Arriaza 2005) as well as dozens of written works.
Of more importance to UJG specifically, however, is the case that was brought before the Spanish National Court against leaders of the Guatemalan government and military in the wake of the 36-year Guatemalan Civil War that ended in 1996. Guatemala’s state judicial system failed to hold the political and military leaders who authorised the genocide of between 100,000 and 140,000 indigenous Guatemalans14 to account, leaving the families and communities of victims to seek justice outside their country. Spain became involved when the ICC rejected the case15 and Guatemalan human rights activist and Nobel Peace laureate, Rigoberta Menchú Tum, filed a complaint in the National Court in Madrid in 1999. Her allegations implicated eight Guatemalan leaders, including the former President Efraín Ríos Montt, in ‘genocide, torture, terrorism, summary execution and unlawful detention’ (Ross 2016, 363). In her article on the case (often referred to as the Ríos Montt Case for short), Amy Ross chronicles the hurdles, set-backs and triumphs of the case, and highlights that the international community must ‘do more than simply ‘count’ human rights trials as a measure of progress’ when what is equally important is ‘to evaluate how, and where, these trials ‘count’’ (362).
In the years between 1999 and 2011 there were many milestones in the Guatemalan Genocide Case, with several incarnations of it put before the Spanish courts. The ins and outs of the case are best understood by reading Ross’ article, but it is worth highlighting that the 2005 ruling by a Spanish judge was an important moment in the UJ timeline. This was when the Spanish Constitutional Court endorsed the interpretation of the state’s UJ provisions allowing non-national plaintiffs to be heard by courts in Spain. Ross describes this ruling as a
‘revolution’, underscoring its significance by averring that in this watershed moment:
The entire terrain of human rights prosecutions was transformed, as the Spanish Constitutional Court found that Spain could prosecute cases based on the gravity of the crimes, rather than the geographic restrictions of having to prove a Spanish connection.
(368; emphasis added)
14An estimate given by James Waller in Chapter 6 of his book Becoming Evil, titled “Death of a Guatemalan Village” (2007, 191).
15A result of UN Security Council edicts that Amy Ross goes into in her article on the Ríos Montt Case (2016).
Furthermore, a promising side-effect of the nature of UJ prosecution is that it allows survivors and witnesses to be removed from potentially intimidating and/or triggering surroundings thereby providing them a neutral environment in which to remember and to speak. Ross was told by survivors that they ‘felt free to speak in Spain in a way that was impossible in Guatemala’ and that the judge had provided a protected space ‘for the narratives of violence they had lived with for almost thirty years’ (369-370). The power of this cannot be overstated and must not be overlooked when there is critical research into the re-traumatisation of survivors of mass atrocities who give testimony (Brounéus 2010) particularly given that the crimes UJ emerged to address are predominantly ordered and/or committed by perpetrators of great political or military standing. These individuals often continue to wield an considerable amount of power in post-conflict societies thereby allowing them to derail court proceedings or even plausibly threaten and intimidate witnesses if trials do indeed proceed. Facilitating a neutral space for witnesses to give testimony is a vital advantage of the UJ strategy.
So, while Pinochet may be the poster child of transnational justice, the Guatemalan Genocide Case is equally important for illustrating the critical need for a legal mechanism that supports victims and pursues justice for crimes that risk slipping through the cracks between state courts and international criminal tribunals. Unlike Rwanda, the Former Yugoslavia, Cambodia and Sierra Leone, Guatemalans did not receive any attention or justice from an international tribunal, and Ross states that ‘the need for a trial conducted in a national court exercising universal jurisdiction is directly linked to the failure of both the United Nations Security Council and the Guatemalan national justice system to prosecute the violence’ (Ross 2016, 373). The Guatemalan genocide case had an important impact on the viability of UJ as a legal strategy, and although it drew backlash (notably from the United States and China) against Spain’s government, the judges, and the idea of a global human rights response as a whole, it was also fortified by the fact that the case resonated so profoundly ‘in the Spanish body politic’
(366). By finding traction from tapping into Spain’s own collective memory of violence and impunity, the case highlighted the value of international justice mechanisms that transcend borders and give survivors a voice in a forum where they are truly listened to, away from the forces that sought to silence and oppress them.
2.2 France and the Rwandan Génocidaires
Moving on from Guatemala to examine the case of France and its treatment of Rwandan nationals accused of mass violence during the 1994 genocide, Helen Trouille offers further commentary on the cracks in the legal status quo that led to the need for universal jurisdiction.
In her article “France, Universal Jurisdiction and Rwandan génocidaires: The Simbikangwa Trial”, she examines the first genocide trial in France of a Rwandan defendant and in doing so probes France’s human rights record and critiques the narrow mandate of the ICC. The defendant, Pascal Simbikangwa, had been classed as a category one offender by Rwandan authorities meaning that he was not just a participant but was accused of orchestrating and organizing the violence (Trouille 2016, 197). Simbikangwa had left Rwanda in 1994, immediately after the cessation of conflict, and was living in Mayotte (a French island territory off the coast of Mozambique) when justice caught up with him in 2008. His case met all the criteria to be brought to the International Criminal Tribunal for Rwanda (ICTR), but his arrest took place after the Tribunal had begun to implement its ‘completion strategy’ when it was unable (but also unwilling) to open new investigations lest it fail to meet the demands placed upon it by the UN Security Council (UNSC).
Given the nature of the defendant’s alleged crimes, the next avenue for justice in such a circumstance would have been the ICC. However, its mandate includes something called the
‘principle of complementarity’ which, for reasons Trouille delves into in her article, means that if the ICTR would not agree to try the case, the ICC could not either (202-203). The third and final option for French authorities after the ICTR and ICC proved unreceptive, was to extradite Simbikangwa back to Rwanda to face trial in that country’s national courts, but there were objective and subjective reasons why this was also not possible.
Objectively, extraditing a person to a state with the death penalty is considered a violation of their human rights, and it is France that would have been guilty of that violation, not Rwanda.
As well as that, subjectively, relations were already strained between the two states due to long brewing diplomatic tension with the Rwandan President, Paul Kagame, who accused France of playing an active role in the genocide16. France, in turn, had tried to indict President Kagame for complicity in the assassination of President Habyarimana (whose death is widely
16 President Kagame had accused France of supporting the Hutu government that was in power at the time of the genocide, and even suggested that it had trained forces that participated in the violence. Accusations France has consistently denied (Trouille 2016, 203-204).
considered as the catalyst of the genocide), even though Kagame was protected from criminal proceedings by diplomatic immunity.
Since the genocide in 1994, Simbikangwa and other Rwandan Nationals living in France and its territories had been beyond the reach of survivors’ seeking justice. Even after arrests were made, the conventional avenues of justice open to survivors closed one by one. In the words of former Legal Advisor to the UK Foreign Office, Sir Daniel Bethlehem, what came from this new reality was a need to redirect the rules of jurisdiction ‘beyond geography and towards purpose’ (quoted in Hovell 2018, 439).
In their 2019 paper “The Quiet Expansion of Universal Jurisdiction”, Langer and Eason argue against those who have heralded the steady decline in use and relevance of UJ (examples being de la Rasilla del Moral 2009; Reydams 2011 and; Ben-Ari 2015), claiming this isn’t actually the case. They found that the number of charges and trials has actually been steadily growing, as has the ‘geographical scope of universal jurisdiction litigation’ (Langer and Eason 2019, 779). Even while offering a detailed and substantiated appraisal of how it has been used and abused within international law17, Ben-Ari concludes by conceding that UJ is an ‘important concept and is here to stay’ and that it ‘could – and should – evolve into a cornerstone of the multilateral endeavour to end impunity and to bring justice to the victims of the most atrocious of crimes’ (Ben-Ari 2015, 197).
This section of the paper has endeavoured to offer context, as well as justification for why UJ is important to international peace, conflict and justice, and therefore acts as an important primer for the theoretical claim and hypothesis testing that makes up the heart of the paper. In the literature on universal jurisdiction, very little attention is given to discussing how it spread within the international community to become a widely accepted and adopted legal strategy. Additionally, as there exists no codified treaty mandate that compels states to adopt UJ18 and no penalty for a state that does not (i.e. economic or trade sanctions), there exists an absence of theoretical explanation for understanding which states are most likely to adopt UJG.
The how and the which being the two aspects of the spread of UJG that this paper focuses on.
17 Ben-Ari uses the term ‘lawfare’ in his paper “Universal Jurisdiction: Chronicle of a Death Foretold?” to describe how laws and legal institutions can be utilised to achieve strategic goals, especially by states to meet political or military ends, and which carries a connotation of ‘abuse, misuse and exploitation’ (2015, 167).
18 The 1948 Genocide Convention does not recognize or even mention universal jurisdiction, in fact records from the preparatory meetings for the Convention show that the majority of states were opposed to UJ (Hovell 2018, 445).
3. Theory
The theory section of this paper introduces the concept of norms and the theory of diffusion, the cogs upon which the mechanics of this study turn. Employing norm diffusion to explain the how that has been traditionally overlooked within literature on universal jurisdiction (which occupies itself primarily with the why) provides a prescriptive richness and a strong explanatory power for a theory that is ultimately very parsimonious. In fact, it is arguably the very simplicity of the theory of diffusion that makes it difficult to test and thus causes it to be often overlooked when explaining state behaviour.
Figure 1 is the paper’s theoretical argument demonstrated in a linear manner and introduces the independent (IV) and dependent (DV) variables. In essence, the model illustrates the theory from the literature on diffusion explaining how norms spread within the international community from networks to states. In particular, the theory will be used to illustrate how and why the type of states that a potential adopter of a norm is connected to in a normative network (‘critical states’) is of a greater importance than the number of states in that network (other
‘case states’).
Figure 1: ‘From theory to hypothesis’ (adapted from the model in Kellstedt and Whitten (2013, 9))
In Figure 1 we also find the blueprint for this section, drawing from the top half of the model and focussing on the conceptual pieces of the puzzle. The first half of Section 3 focuses on the foundations of diffusion theory, emulation as a mechanism and the creation and spread of
Independent Variable (concept)
Normative Network Ties
Dependent Variable (concept)
State Behaviour
Independent Variable (measured)
Liberalist Network Ties
Dependent Variable (measured)
Adoption of Universal Jurisdiction for
Genocide Hypothesis
Causal Theory Norm Diffusion through the
mechanism of Emulation
norms, while the second half conceptualises the key parts of the paper’s theoretical framework and introduces the causal story and hypotheses.
3.1 The Theory of Diffusion
At its roots (and for the purposes of this study), diffusion is defined as ‘the spread of something within a social system’ (Strang and Soule 1998, 266) that can be identified on a state level as
‘one government’s policy choices being influenced by the choices of other governments’
(Shipan and Volden 2012, 788). More conceptually, diffusion denotes the flow of a belief or behaviour from a source ‘paradigmatically via communication and influence’ to an adopter (Strang and Soule 1998, 266), and within the idiolect of research methods, ‘it has become conventional to define diffusion as a process of interdependent policy making where the analytical focus is squarely on ‘external determinants’, while domestic factors are often treated as control variables’ (Gilardi and Wasserfallen 2019, 1246). Strang and Soule claim that it can also be used to signify the increasing occurrence of something, the rudimentary idea that
‘[s]omething diffuses when more and more people do it’ (1998, 266), but that treating diffusion as an outcome ‘makes it uninteresting, since practices rise and fall in frequency for every possible reason’ (266). A common claim throughout the literature on diffusion.
An elemental text on the theory of diffusion is Fabrizio Gilardi’s work ‘Transnational diffusion: Norms, ideas and policies.’ Published in the 2012 Handbook of International Relations, his work investigates diffusion by asking a key question: ‘how are decisions in one country influenced by the international context, and especially by the ideas, norms, and policies displayed or even promoted by other countries and international organizations?’ (Gilardi 2012, 1). His study found that diffusion is a consequence of interdependence, and he agrees with Strang and Soule (1998) (as well as Elkins and Simmons (2005) and Boli et al. (1997)) that diffusion is ultimately a process rather than an outcome (Gilardi 2012, 3).
This process is illustrated when putting data into an S-curve graph, as seen below in Figure 3, which is a simple reformulation of the data in Figure 2 on the adoption of UJG amongst OECD member states. In Figure 3 the trajectory a norm travels can be traced from its emergence amongst a small portion of the population (the lower left) to its steady adoption (upwards trajectory) and finally its ceiling (top right) when it has been accepted by all potential adopters and the curve flattens out. This is also referred to as a ‘tipping’ model (Schelling 1978) and concerns, in many ways, the fundamentals of proportionality. Simmons and Elkins find that, when it comes to state behaviour, the ‘basic intuition in these models is that most governments
are highly sensitive to the number, or proportion, of other countries that have adopted a particular policy stance’ and thus S-curve distributions ‘capture the dynamics of global norms fairly well’ (2004, 174). For these very reasons this argument is relevant to the discussion of UJG since it is a prime example of a norm that was adopted by an state (Israel) out of necessity, designated by Simmons and Elkins as an example of the actors who ‘adopt the policy even if no one else is expected to do so’ (174). From that point in 1950, UJG spread in the manner of the S-curve model and plateauing once the number of adopting states had dramatically increased and consequently flattened out.
Looking at an S-curve model, Gilardi emphasises that ‘diffusion is the process that leads to the pattern of adoption, not the fact that at the end of the period all (or many) countries have adopted the policy’ (2012, 3). He argues that diffusion and interdependence have historically been treated as ‘a nuisance that researchers should try to control, but not an interesting phenomenon in itself’ (3) and thus relegated to being glossed over in the broader discussion of comparative politics (Caramani 2008) or omitted completely (Boix and Stokes 2007).
It is for this very reason that diffusion makes an innovative and interesting theoretical framework for examining the spread of international norms. Indeed, Gilardi and Wasserfallen declare this to be the most powerful way that diffusion can be used, by ‘changing the terms of the political debate, making some ideas taboo or, on the contrary, increasing their acceptance in the mainstream political discourse’ (2019, 1250). Such was the case along the hard-fought paths to suffrage and abolitionism and continues to occur in the campaign to end practices such as capital punishment.
When it comes to pivotal social change however, Gilardi asks an important question: is diffusion an observable phenomenon? This is imperative for a study whose objective is to
0 0.5 1 1.5 2 2.5 3 3.5
1940 1950 1960 1970 1980 1990 2000 2010 2020
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Year
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Figure 2: OECD States Adopting UJG Figure 3: OECD States with UJG: S-Curve
measure and test just such a phenomenon, and Gilardi finds justification that not only supports the argument that diffusion can be observed and tested, but that offers both a quantitative and qualitative explanation for how. He states in his research that through the use of analytical tools and null hypothesis testing ‘virtually all quantitative studies find that, at least to some extent, diffusion can be documented empirically’ while qualitative scholars often and effectively use process-tracing to ‘assemble enough pieces of information and convincing “smoking guns" to [also] support the hypothesis that diffusion takes place’ (Gilardi 2012, 11)19.
Furthering the appeal and versatility of the theory of diffusion beyond its explanatory value in both qualitative and quantitative research is its broad intersectional applicability across social science and political research. Another reason that it has been chosen as the theory in this study, as it serves as an interesting and valuable point from which to examine the spread of a norm that (as this paper hypothesises) has spread due to the desire of one state to imitate the behaviour of another with whom they share ideological similarities, a decision that has both political and sociological dimensions. This mechanism in state behaviour is called emulation, one of four that scholars have defined and explored within diffusion theory.
3.2 Emulation as a Mechanism of Diffusion
These four mechanisms that Gilardi and others have identified as influencing how and why states adopt new behaviours and policies are (1) learning, (2) competition, (3) coercion, and (4) emulation. In basic terms, learning is understood as a state making its decisions after observing the ‘success or failure of policies elsewhere’; competition is when a state makes a policy decision based on the ‘policies of other units with which they compete for resources’;
coercion is when a state acts under the ‘pressure of international organisations or powerful countries’ and; emulation is when a state adopts a policy based primarily on its ‘perceived appropriateness’ (Gilardi and Wasserfallen 2019, 1245). Of the four, emulation comes last whenever they are referenced in the literature, perhaps because it is the vaguest and consequently the most elusive in hypothesised and tested research. It is, however, arguably the most intriguing,
Also referred to as ‘imitation’ (Shipan and Volden 2012) and ‘mimicry’ (Strang and Soule 1998), emulation can be defined in simple terms as when ‘actors see others behaving in a certain way and copy those behaviours’ (Florini 1996, 378). In the context of the theoretical
19 In making these findings Gilardi references the qualitative work of Simmons and Elkins (2004) and the quantitative work of Weyland (2007) and Resende-Santos (2007).
argument in this study, it refers to one state emulating the legislative behaviour of another based on its ties to that state in terms of normative similarities, as well as something called the
“logic of appropriateness” (Gilardi 2012, 22). The logic of appropriateness represents a conceptual shift away from the more customary logic of consequences (which dictates the learning, competition and coercion mechanisms of diffusion) and involves an act by a state that is favourable to emerging or evolving global beliefs and behaviour rather than traditional policy principles and cost-benefit rationale. Gilardi calls this occurrence ‘normative suasion’, a process by which ‘actors can genuinely change their understanding of appropriateness through discursive interactions with others’ (22). The core claim is that a state will be more likely to adopt a norm when it has already been adopted by a state they share similar values with, and the likelihood of this is further increased by the appropriateness of the norm in relation to what the state knows and believes about the world. Scholars have claimed that emulation is empirically difficult to discern from learning and coercion (Maggetti and Gilardi 2016) but this could be because the relevant appropriateness of emulated policies is fostered by international organisations and agencies before being spread to states (Finnemore and Sikkink 1998; Park 2006; Bearce and Bondanella 2007). It is thereby a less commonly traced influence in the research on state behaviour.
Occasionally emulation occurs through a process of literal mimicry, for example, when Venezuela sought to emulate Mexico’s legislation on tax blacklisting and made two important (and objectively amusing) oversights. By copying and pasting the legislative material directly, Venezuela made itself accountable to the edicts of the Mexican parliament and constitution, and inadvertently blacklisted itself (Sharman 2010, 625). Most commonly, however, states emulate each other in substance only, which is why it is important to discuss the defining characteristics of norms and normative behaviour before delving into the conceptualisation of the variables in this study. This will help to put the theory of diffusion into the greater context of how and why individual, community, state and global beliefs and behaviours change over time and space.
3.3 Understanding Norms and Normative Behaviour
Norm is defined by the Oxford English Dictionary as a ‘standard or pattern of social behaviour that is accepted in or expected of a group’ (OED Online), a definition that concisely conceptualises the relevance of norms in this study. Norms can be transferred both vertically or horizontally between groups such as families, communities, organisations and institutions.
Vertical here refers to the unchanging reproduction of norms as they are passed down through connected generations, insinuating that there are no outside influences and that beliefs and behaviours often continue to flow downwards through time, uninterrupted and unchallenged.
Horizontal norm reproduction, however, often comes from rapid social change and in reacting to that change, groups are heavily influenced by external factors that interrupt the vertical
‘flow’ and redirect it. According to Ann Florini, three principle conditions inform the horizontal reproduction of norms, a process during which the traditional status quo is challenged rather than perpetuated. Those conditions are:
(1) large-scale turnover of decision makers, as in revolutions; (2) clear failure of the behavioural norms of the previous “generation” to the extent that the previous way of doing things becomes virtually impossible; or (3) the emergence of a new issues area in which prevailing norms are not yet well established and thus there is little scope for vertical reproduction because most states do not have much in the way of relevant existing norms to be reproduced’ (1996, 378)
Krook and True agree with the essence of Florini’s conditions, positing that ‘new norms surface when there is a conflict between the theory and practice of an existing norm, exposing its limits in relation to its definition or continued ‘fit’ with the broader normative environment’ (2010, 112). This helps to explain the emergence of UJ in particular, as it draws attention to the gap between acknowledgment by the international community that some crimes are serious enough to be considered acts of mass atrocity and the ability of states to pursue justice for victims and survivors when traditional legal avenues (e.g. the ICC or the legal system of the perpetrator/s own country) fail them.
The constructivist narrative of state norms confers a central role to international politics, arguing that ‘norms form structures that shape interactions among states and non-state actors, although originating in the initiatives of purposive actors’ (104). Krook and True also importantly contend that ‘norms diffuse precisely because – rather than despite the fact – they may encompass different meanings, fit in with a variety of contexts, and be subject to framing by diverse actors (105). This is why they are called norms and not rules or commands. Norms inform the decision-making and behaviour of state and non-state actors through language rather than treaty mandates or similar international instruments and often begin as the enterprise of a norm entrepreneur.
A norm entrepreneur ‘sets out to change the behaviour of others’ and in doing so plays a key role in ‘legitimizing or delegitimizing behaviour and thus changing norms’ (Florini 1996, 375) and when it comes to changing state behaviour, they do not have to be a powerful state
themselves. Norm entrepreneurs capable of instigating change are often NGOs (such as Amnesty International and the Red Cross who have been integral in the promotion of UJ), international organisations (such as the World Health Organisation or NATO), or they can also be particularly visible and outspoken individuals (good examples of which are Martin Luther King Junior, and more recently, Greta Thunberg). What all norm entrepreneurs have in common is that they are often very vocal about social and political change.
Amitav Acharya references ‘the campaign against land mines, ban on chemical weapons, protection of whales, struggle against racism, intervention against genocide, and promotion of human rights’ as six examples of universal norms that have led to significant normative change (2004, 242). Phenomena that Ethan Nadelmann identifies as ‘global prohibition regimes’
(1990) that spread norms related to collective outrage and are comparable to moral proselytism20. This means that resistance to such normative changes, as has occurred in the face of the apartheid regime or the ivory trade for example, could be treated as illegitimate or immoral given the fact that the ‘underlying assumption is that certain activities must be banned not necessarily because individual occurrences threaten international society and order but because each occurrence is an evil in and of itself’ (525)21.
3.4 The Life Cycle of a Norm
Each of the social movements Acharya and Nadelmann reference have caused normative shifts that can be considered universal because of the waves of change they triggered around the world. In discussing their influence, Acharya draws attention to the important concepts of framing and grafting through which norms diffuse and become localised, factors that are vital given that the success or failure of a norm within a new population has a lot to do with time and space. For example, election monitoring by outside observers could not have gained traction when state sovereignty was at the height of its influence as an international norm. It was not until debates on democracy and human rights began to dominate the global discourse that the notion of sovereignty could be successfully challenged (Krook and True 2010, 111).
The concept of framing was developed by Erving Goffman and is used to conceptualise the process of articulating and amplifying the matter being diffused (referenced in Morgera and
20 Proselytization is best defined as ‘persuading others to emulate one’s behaviour’ (Florini 1996, 378).
21 Nadelmann also includes the movements to fight human trafficking, slavery, terrorism, sex trafficking and the illegal drug trade under this umbrella of evil activities (1990, 479).
Parks 2014, 12). It is a very important stage of the diffusion process as it serves to manipulate and interpret a norm so that it is able to ‘fit a new social context’ (13), thereby being a vital factor in determining if a norm becomes widely adopted.
The second important factor in norm diffusion is grafting, which helps explain how and why ideas are transmitted from global to local actors, inviting outwardly foreign ideas to develop ‘significant congruence with local beliefs and practices’ (Acharya 2004, 245). Acharya explains the importance of localisation in the context of post-apartheid South Africa in that the antiapartheid movement was fortified by its interlinkages with the global norms that had taken hold opposing institutionalised racism. Unlike the success of the campaign to end apartheid in South Africa however, emerging norms of human rights and humanitarian intervention did not successfully graft in response to the Burmese military rule of Myanmar in the 1990s. Acharya found that this is because the ASEAN22 context ‘did not specify democratic political system as a criterion for membership’ (262-263) resulting in foreign ideals of democracy and human rights failing to find congruence with the prevailing regional norms.
When discussing localisation, it is important to reiterate that norms are not static. They are not construed unvaryingly across states, and furthermore, they do not remain standardised once adopted. In her paper on international norms, Florini describes them as waxing and waning over time (1996, 367) which is an apt description of not only the practical implementation but also the phenomena of popularity, or ‘du jour’ quality, of global norms. Scholars make reference to this as the norm diffusion equivalent of ‘keeping up with the Joneses’ (Shipan and Volden 2012, 791; Strang and Soule 1998, 274). For example, the 1960s were dominated by the discourse of nuclear war, the 1980s drew the world’s collective attention poverty and famine in Africa, the 2000s saw the world’s political focus shift to the threat of terrorism, and today’s global community demands action on climate change.
The wax and wane of global attention reflects the rise and fall of international discourse and it also explains the emergence and evolution of norms as states seek theoretical clarity, as well as the trial and error process as they begin to take norms in their abstract form and mould them into concrete policy objectives (Krook and True 2010, 117). The way in which this transformation happens is referred to as the life cycle of ‘norm dynamics’ and it follows a three-stage process that was introduced in great detail by Finnemore and Sikkink in their 1998
22 ASEAN is the economically and politically interconnected Association of Southeast Asian Nations
article “International Norm Dynamics and Political Change”. The stages of emergence, cascade and internalization, as well as the all-important ‘tipping’ point, are illustrated in Figure 4 below.
Figure 4: ‘Norm life cycle’ model (taken from Finnemore and Sikkink 1998, 896)
The emergence of a norm can be recognised when ‘new rules of appropriate behaviour are put on the radar by norm entrepreneurs with the support of organizational platforms’ (Gilardi 2012, 23), often international organisations such as the International Committee of the Red Cross (with regards to humanitarian best practice) or any of the multitude of UN agencies. Once a norm has emerged, if it begins to be successfully adopted by actors (identified as ‘states’ from here on in, for the sake of the paper’s theory), it will eventually reach the second stage.
A norm begins to cascade when critical mass in the number of states with the potential for adopting it has been reached23, and it begins to be ‘promoted in a socialization process that rewards conformity and punishes noncompliance’ (23). Finnemore and Sikkink find that the norm cascade occurs amongst states for ‘reasons that relate to their identities as members of an international society’ (1998, 902) and James Fearon agrees, arguing in his own research that because a state’s identity consists of its membership to particular categories (social and political most commonly), membership is signalled by states adopting and following the norms of those categories (1997). Importantly:
Recognition that state identity fundamentally shapes state behaviour, and that state identity is, in turn, shaped by the cultural-institutional context within which states act, has been an important contribution of recent norms research (Finnemore and Sikkink 1998, 902)
The third and final stage in the life cycle of a norm is internalisation, which has been achieved when (if the cascade process is strong enough) norms become ‘so deeply accepted that they end up being taken for granted as the only appropriate type of behaviour’ (Gilardi 2012, 23).
For example, it has become profoundly rare and unacceptable for anyone in today’s day and age to advocate for the practice of slavery, a topic that has become taboo with any individual or organisation that supporting it considered backward at best and deeply racist at worst. The example of slavery reveals the successful completion of a norm diffusion life cycle wherein a
23 Finnemore and Sikkink find that, empirically, the tipping point of critical mass ‘rarely occurs before one-third of the total states in the system adopt the norm’ (1998, 901).
once commonplace practice has been rejected and tabooed, and abolitionism has become internalised (and socialised) into international behaviour.
In addition to the norm life cycle, the most important contribution of Finnemore and Sikkink’s research is that they specify that mass is not the only essential factor in norm diffusion, with equal importance being the involvement of ‘critical states’. By this, the authors mean that it not only matters how many states adopt an emerging norm, but which states adopt it. What makes a state critical differs from norm to norm, but amongst the criteria is that they are considered as such ‘because they have a certain moral stature’ and without whose approval ‘the achievement of the substantive norm goal is compromised’ (Finnemore and Sikkink 1998, 901). The factor of ‘critical states’ is at the core of the theoretical argument of this study and is of great importance to the hypothesis testing and the decision to use Social Network Analysis. As has been demonstrated in the theory so far, normative networks matter and states, because they are connected within these networks to others with which they share important similarities, will want to emulate ‘critical states’ and their behaviour. This is the dynamic at the centre of the adoption of UJG because ideological influence of certain networks inspires moral behaviour, and a state’s receptiveness to a strategy that allows them to legally pursue the perpetrators of crimes committed in another country holds intrinsic moral value. The prosecution of foreign nationals for crimes committed outside a state’s territorial jurisdiction taps into a logic of appropriateness that prescribes extraordinary measures for perpetrators of extraordinary crimes.
Referring back to the Nazi war crime trials in Jerusalem, Israel did not write and adopt the provisions that allowed such legal processes because it expected other states to do the same.
It did those things out of necessity for the pursuit of justice for Jewish victims and survivors.
A certain logic exists, then, that the states that followed by adopting provisions of their own did so because of an equal desire to ensure that war criminals not be allowed to evade punishment for their crimes. This leads neatly into the concept of the ‘burden of proof’ that the theory of diffusion does well to underscore, especially with regards to state behaviour. The burden of proof dictates that as ‘the norm dynamic unfolds, the burden shifts to actors who do not want the policy to be introduced, who need to work harder to make their case than those who support it’ (Gilardi 2012, 23-4). In other words, towards the end of its life cycle, ‘it is opponents, and no longer proponents, who need to engage in “norm contestation”’ (24), a notion that is integral to the norm diffusion surrounding the jurisdictional authority over perpetrators of genocide because of the obviously problematic stance of a state willing to
support impunity. The onus ostensibly falls to the states who have not adopted UJG to defend their position, rather than the norm-adopting states to advocate for its value, and as such the receptiveness of a state to adopting such provisions becomes easier to understand.
Remembering that ‘critical states’ are recognisable because of their moral stature, reasons for the spread of norms that reflect such morality is convincing.
Having discussed the history and underpinnings of the theory of diffusion, the mechanism of emulation as well as norms and normative behaviour, it is now important to relate this research to the conceptualisation of the independent and dependent variables of the study. As presented in Figure 1 at the top of the section, those are the Normative Network Ties (IV) and State Behaviour (DV).
3.5 Conceptualising Normative Network Ties: Liberalist Networks
To understand the independent variable of the study it is important to define the concept of
‘normative’, what is meant by ‘network ties’ and what it means to be categorised as ‘liberalist’.
Behavioural norms begin to gain traction when they are ‘associated with other widely accepted normative ideas’ (Krook and True 2010, 111), with the theoretical argument in this study being that there is an increased likelihood of this happening when actors are connected to each other in ideological, political and/or cultural (a.k.a. ‘normative’) categories. Categories create default networks (as two states that share similarities are inexorably connected on some level), and this is important as they help identify normative network ties, with each separate categorical connection constituting a single ‘tie’ between two states. Historically, the most valuable category for studying the behaviour of states has been geographical because beliefs and behaviours most commonly spread horizontally across physical borders from one state to its neighbours. However, as international relations has evolved, and those ties are no longer constrained by physical proximity.
When discussing universal jurisdiction over international crimes, it is inherent that states need to care about those crimes, and the ones that will be leading the way in these legislative reforms are arguably those who are connected to networks centered around liberalist ideals. ‘Liberalist’
refers to the ideology of ‘liberalism,’ which is defined as ‘[s]upport for or advocacy of individual rights, civil liberties, and reform tending towards individual freedom, democracy, or social equality; a political and social philosophy based on these principles’ (OED Online).
States that observe the ideology of liberalism are often identifiable by their high-level of
