By Courtney Hillebrecht and Alexandra Huneeus
By what measure can we best assess the work of international courts? Reflecting on The Judicialization of Peace,[1] Roberto Gargarella takes us to task for failing to make explicit a theory of democracy by which to understand the role that international courts played in the Colombian peace negotiations.[2] He then draws on his theory of deliberative democracy to demonstrate what such an assessment might look like, properly done.
We readily concede that decision-making based on democratic deliberation is among the most important political aspirations. But we just as readily disagree that the only or best way to study and evaluate the work of international courts is to read their judgments for what they say about democratic deliberation. Several considerations undercut Gargarella’s overall critique of our article, and reveal the limits to his preferred method of evaluating court interventions.
First is the distinction between is and ought—between descriptive and normative scholarship. It was not our intent to evaluate the roles taken by international courts in the peace process against a normative ideal. Rather, we set out to provide an accurate and nuanced description of the work of the International Criminal Court (“ICC”) and the Inter-American Court of Human Rights. Leading up to the accord, many argued that these international courts would impede peace by imposing a strong norm of criminal accountability that neither the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) rebels nor the Colombian military would accept. This concern, of course, lies at the core of the peace versus justice dilemma in transitional justice debates. Our fine-grained analysis of the ways that the two courts did engage in the peace debates showed the concern to be misplaced in this case. As we argued, “judicialization was not just a top-down process by which international courts enforce pre-set constraints on peace-making states.”[3] Rather, the courts’ impact was to provide a platform on which Colombian actors were able “to specify and reinterpret the content of Colombia’s international obligations, and thereby potentially usher in a new transnational regime of transitional justice.”[4]
Gargarella also asserts that we assume a theory of law in which law has a pre-fixed meaning that domestic political and judicial authorities either apply, or fail to apply.[5] But we had no such assumption. Rather, it was precisely our research question to understand how the law was working in action. Our finding, as the quote above shows, was that the way law worked in this case is more akin to Gargarella’s description of his preferred theory, in which norms “are collectively interpreted and re-interpreted by the different members of the legal community, in an ongoing, unfinished process.”[6]
Even if our object had been to evaluate the courts’ intervention in the peace process through the lens of deliberative democracy, Gargarella’s method would fall short. His method consists of analyzing the content of salient “final word” judgments of apex courts. That might work as a way to provide a critique of the reasoning of a discrete judgment (which we take to be Gargarella’s intent in his original critique of the Gelman v. Uruguay judgment).[7] But it is not the way to evaluate the actual impact of a courts’ intervention over a policy. One problem is that the method looks at only one dimension of court behavior—judgments—whereas courts communicate and interact through many different channels. In the article we specifically set out to study the roles taken by two international courts that had no case or controversy. The peace process was not, formally speaking, on their dockets. That is why there are no judgments to analyze. There are, however, recommendations, compliance reports, press releases, a corpus iuris, and even forms of intervention and interaction that leave no written record, such as diplomatic meetings, public ceremonies, and press conferences. None of these claim binding authority in the sense of a judgment. Formally speaking these pronouncements are perhaps more akin to weak-form review, but weaker.[8] Yet there is no question that they form part of the influence international courts exerted in the political debate.
The proposed method falls short, further, by failing to examine the way courts’ pronouncements are used in the political debate after the judgment and beyond the courtroom.[9] The point is not only that judges often do not have the final word in reality, but also that the effects a judgment has in the world can be different from those intended by the text. Even a decision such as Gelman that is not itself “sufficiently sensitive” to the democratic pedigree of the laws it is reviewing nonetheless might catalyze an important debate and have salubrious effects on democratic deliberation on the issue of amnesty (or not—it is an empirical question).[10] One would have to consider, for example, whether the judgment was implemented or ignored; whether the judgment went to congress for democratic deliberation; and whether it had other types of effects such as re-shaping public debate, re-setting agendas, providing talking points to civil society, fostering (or curtailing) further litigation, or reshaping default assumptions held by the public. In other words, it is one thing to evaluate the correctness of a judgment’s reasoning, and another to assess its effect on politics on the ground.[11] The most dynamic debate about Brown v. Board of Education, for example, turns not on the caliber of its reasoning or correctness of its holding, but on assessing the impact the judgment actually had on school desegregation, on social movements, and in reshaping social norms.[12]
Additionally, the proposed method falls short as a method of analysis of jurisprudence because it looks at judgments as discrete events, whereas courts return to the same issue iteratively. As Manuel Góngora notes, to assess the impact of the Colombian Constitutional Court on the peace process one would have to include in the analysis the forty-seven judgments it issued between 2016 and 2018 on the implementation of the peace accord.[13] It could be, for example, that the court curtails a deliberative process in one judgment but only as a tactic to create political space for more deliberation-friendly judgments later.[14] Or, a court could change its interpretation of the law. In the case of the Inter-American Court, it is interesting to note that its post-Gelman statements on amnesties have at times been more deferential to political processes.[15]
A final critique of Gargarella’s Comment pertains to the context of civil war. We agree that the Colombian peace negotiations did not conform to the conditions for democratic deliberation laid out by Gargarella. This was undeniably a negotiation between actors with limited democratic legitimacy. Indeed, one of them—the FARC—was not part of democratic governance at all. It may be, as Gargarella notes, that “democracy is not improved when deliberation is reduced to a procedure that is fundamentally structured by pressures and decisions of actors that have limited democratic legitimacy.”[16] But one might add that the chances for achieving the conditions for democratic deliberation are greatly improved once peace is achieved. This is the case even if the process through which peace is achieved is imperfect, as was the case here and in most peace processes ever to unfold. The question, then, is whether the role of international courts should be judged only in terms of their contribution to deliberative democracy, or also with regard to their role in helping achieve a peace that is stable and lasting. Is a robust democracy not the endpoint, rather than the grounds on which such a process can unfold? Yet another way of putting this is that peace is itself an important aspiration distinct from democratic deliberation. At the least, Gargarella ought to consider that an assessment of the judicial role in the Colombian peace process is subject to different considerations than that of a judicial intervention in the Uruguayan amnesty debates of 2011, when peace did not hang in the balance. At the level of normative assessment, it is also interesting to consider whether the role of the ICC and the Inter-American Court should be evaluated differently given the different commitments States undertake in submitting to their jurisdictions (particularly as democracy is a value that is deeply embedded in the Inter-American System, and peace is a value deeply embedded in the Rome Statute).
In closing, it bears emphasizing that the quality of liberal democracy is a priority for study in our political time. Roberto Gargarella’s influential writings on constitutionalism take on a renewed importance in light of democratic decay and the rise of populist politics in recent times. But they do not provide the only or most relevant lens through which international court influence should be studied. The point is not that normative and empirical scholarship are too far apart to be in fruitful conversation. It is rather that such a conversation can only take place if each side truly takes into consideration the differences between the methods and ends that distinguish them.
Courtney Hillebrecht is Samuel Clark Waugh Professor of International Relations and Director of the Forsythe Family Program on Human Rights and Humanitarian Affairs at University of Nebraska. Alexandra Huneeus is Professor of Law and Director of the Global Legal Studies Center at University of Wisconsin Law School. The authors would like to thank Tatiana Alfonso, Manuel Góngora, and Pablo Rueda for insightful conversations on this debate.
[1] Courtney Hillebrecht, Alexandra Huneeus, with Sandra Borda, The Judicialization of Peace, 59 Harv. Int’l L.J. 279 (2018)
[2] Roberto Gargarella, Some Reservations Concerning the Judicialization of Peace, 59 Harv. Int’l L.J. Comment (Feb. 3, 2019), https://harvardilj.org/2019/02/reservations_peace/
[3] Hillebrecht and Huneeus, supra note 1, at 329.
[4] Id. at 281.
[5] Gargarella, supra note 2, at 15.
[6] Id. at 15-16. Admittedly we did describe the back and forth on the law as a type of “deliberation,” but we did not by this term refer to the Habermasian theory of deliberative democracy, but only to the term’s common dictionary definition of “a discussion and consideration by a group of persons of the reasons for and against a measure.” While we should have defined our use of the term, we believe it was clear that we were making a descriptive rather than normative argument. Further, we did at times use evaluative language without providing a baseline. Again, however, the thrust of the article was clearly to determine, empirically, whether and how the courts were having impact.
[7] Roberto Gargarella, No Place for Popular Sovereignty. Democracy, Rights, and Punishment in Gelman v. Uruguay, (Yale Law School SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers, 2013).
[8] Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2007).
[9] Socio-legal scholars refer to the effect that court decisions have on negotiations that occur outside the realm of litigation as “the shadow of the law.” See Robert H. Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce 88 Yale L.J. 950 (1979).
[10] Gargarella, supra note 2, at 10.
[11] Socio-legal scholars often refer to the distinction between what the law purports do and what it actually does as “the gap between law in the books and law in action.” See, e.g., Jon Gould and Scott Barclay, Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship, 8 Ann. Rev. of L. and Soc. Sci. 323 (2012) (reviewing scholarship that outlines the difference).
[12] See, e.g., Gerald Rosenburg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Michael Klarman, Brown v. Board of Education and the Civil Rights Movement (2004); Michael McCann, Reform Litigation on Trial, 17 L. Soc. Inquiry 715 (1992) (reviewing Gerald Rosenburg, The Hollow Hope: Can Courts Bring About Social Change? (1991)).
[13] Manuel Góngora, The Inter-Americanization of Transitional Justice: The Colombian Case from a Coevolutionary Perspective, paper presented at International Society of Public Law Annual Conference, ICON-S, July 1, 2019, (proposing a coevolutionary analysis of the involvement of courts in the design of Colombian transitional justice based on a dialogic, polycentric, and incremental view of their interactions).
[14] Which is only to say that courts are also strategic actors. See Lee Epstein and Jack Knight, Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead, 53 Pol. Res. Q. 625-661 (2000) (reviewing scholarship that views courts as strategic actors).
[15] Massacres of El Mozote and Nearby Places v. El Salvador, Preliminary Exceptions, Merits, Reparations
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 292 (Oct. 25, 2012).
[16] Gargarella, supra note 2, at 3.