Chapter 1 presents the main argument of Escaping Justice. Accounting for the demand for norm compliance and the domestic risks inherent in norm adoption, this chapter elaborates the ways in which governments strategically adapt transitional justice to advance state impunity. In making this argument I identify a growing global norm of accountability for human rights violations putting pressure on governments to hold perpetrators of wrongdoings to account. Adhering to international norms can carry domestic risks, particularly in cases where governments are culpable for wrongdoings. In responding to the risks of accountability, governments strategically adapt transitional justice to comply with international norms. I identify three strategies that governments use to advance impunity while seemingly complying with international norms, namely coercion, containment, and concession. These strategies are selected based on a government’s ability to control its norm response. The chapter closes with a discussion of the research methodology of the book and ethical considerations.

Northern Ireland typifies a highly constrained government. In this case, institutional constraints on the British government lead to a strategy of concession in which transition justice is offered to appease the demands of strong domestic constituencies without a genuine attempt to reckon with past wrongdoings by the British state. By engaging transitional justice for some emblematic cases and not others, the government further propagates the sectarian divisions that legitimate British control. The chapter begins with a discussion of the conflict in Northern Ireland and outlines the wrongdoings committed by the British state. I then evaluate the concessionary strategy that accommodates only certain demands for state accountability. Next is an evaluation of that strategy in practice through a focus on public inquiries and the Historical Enquiries Team. These mechanisms showcase the way certain events and experiences have been thoroughly investigated and adjudicated while other incidents have been obstructed or ignored. To explore the strategy beyond Northern Ireland, I examine transitional justice in the Central African Republic.

Uganda is a case of midrange institutional control in which transitional justice has been subsumed within existing state institutions through a strategy of containment. In this chapter I present the Ugandan government’s strategy wherein transitional justice is enmeshed within existing structures of power, which allows the government to monitor and control the risks of norm compliance. The chapter begins with a discussion of the history of armed conflict in Uganda, particularly the war against the Lord’s Resistance Army and the government’s abuse of Acholi civilians. I then examine the government’s adaptation of transitional justice to identify and evaluate the containment strategy in which the risks of accountability are managed by integrating transitional justice into government institutions controlled through patronage, functionally rendering impunity for the state. I explore the containment strategy through three components of transitional justice in Uganda: International Crimes Division, state-regulated customary justice practices, and the National Transitional Justice Policy. To explore the strategy beyond the case of Uganda, I examine transitional justice in Côte d’Ivoire.

In this introductory chapter I present the core tension in the study of transitional justice: the frequent failure of transitional justice to bring justice to victims of state violence. I question how governments escape justice in the age of accountability. The strategies through which a government adapts transitional justice to manage potentially risky demands for accountability have implications for who is held responsible for the atrocities of the past, a central factor for political order itself. This chapter engages the literature on norm compliance to situate my theory of strategic adaptation.

The findings of this book offer suggestions for future research as well as new directions for advocacy. The concluding chapter of the book presents a research agenda for understanding the strategic adaptation of international norms. The chapter also suggests policy prescriptions for those committed to advancing the accountability of states and holding government perpetrators of violence accountable for their actions.

Strategic use of international courts by weaker states becomes a mechanism by which African states have taken advantage of the ICC. This instrumental use of norms of international justice shows that the argument about justice cascade may not be as convincing as previously thought. The supposedly widespread adoption of norms of individual criminal accountability and prosecutions in the wake of massive violation of human rights may actually be symptomatic of an instrumental adoption. Chapter 7 analyzes other ICC situations (DRC, CAR, Mali, Sudan, Burundi, and the Philippines) and South Africa’s and The Gambia’s attempts to withdraw from the Court to highlight the ways in which these cases also support the arguments developed in this book’s analytical framework.

This chapter examines the formation of a new anti-impunity Transnational Legal Order (TLO), its institutionalization, and its consequences. Socio-legal scholarship and recent research on responses to the mass violence unfolding in the Darfur region of Sudan, beginning in 2003, provide insights into strengths and limits of the new anti-impunity TLO. Based on a comparative eight-country study, involving in depth interviews in four social fields (human rights, diplomacy, humanitarian aid, media) and an analysis of 3,387 media reports, I review judicial steps taken on Darfur, conditions supporting them, and their consequences, interpreting them in terms of the transnational legal ordering approach. The case of Darfur shows the anti-impunity TLO at work, displaying it as a force that delegitimizes mass violence. Yet, it also shows impediments to institutionalization in the form of hostile state actors, fields with potentially competing agendas, including diplomacy and humanitarian aid, internal contradictions, and lack of enforcement power. Nation-level forces filter cultural effects of intervention, resulting in diminished concordance between the international and the global realms and across nation states.

Many in the field of international relations have long viewed international law and regimes of international justice as epiphenomenal. But what explains the dramatic rise of international courts not only in terms of their numbers but also in terms of their relevance and the widening of their jurisdiction and competency? In other words, why would states, whether democratic or not, favor establishing or joining international regimes whose main purpose is to constrain their domestic sovereignty? Chapter 2 argues that a utilitarian frame explains states’ behavior in shaping, reshaping, and sometimes subverting norms of international justice, which they use strategically in pursuit of their interests. States – including those presumed to be weaker in the international system – use the ICC to advance their security and political interests. This argument provides a critique of the so-called justice cascade literature.

This chapter examines the obstacles to corporate accountability at the international level: unsettled international law regarding the binding and enforceable human rights obligations of business entities, the absence of international enforcement mechanisms to hold economic actors accountable, and the related lack of international pressure on states to deliver to victims of corporate complicity their rights to truth, justice, remedy, and guarantees of non-repetition.

It looks empirically at when and why international and foreign courts advanced corporate accountability and when they have not. Second, it discusses power and politics obstacles to the development of the key elements of international pressure: international enforcement mechanisms, binding human rights obligations in international law, and international accountability agency. It concludes with the argument that the absence of international pressure has not blocked corporate accountability. Instead, corporate accountability is underway via domestic processes in the Global South.