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2019

Human Rights Conditions: What We Know and Why It Matters

David Weissbrodt
University of Minnesota Law School, [email protected]

Patrick Finnegan

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Article

Human Rights Conditions: What We Know and

Why it Matters'

David Weissbrodt* and Patrick Finnegan**

Abstract

It may be impossible to understand the cause of every

human rights violation. Causal research is a useful endeavor,
however, as it sheds light on the conditions that produce human
rights violations and compliance. Such knowledge can help
improve the effectiveness of human rights advocacy strategies to
target and influence these conditions. This survey examines four
broad themes: (A) Government Behavior and Structure; (B)

1. This article is partially adapted from Chapter 17, What Seem to be the
Causes of Human Rights Violations and How Might Knowledge as to Causation
be Used?, of DAVID WEISSBRODT ET AL., INTERNATIONAL HUMAN RIGHTS: LAW,
POLICY, AND PROCESS (4th ed. 2009).
* David Weissbrodt is a Regents Professor Emeritus at the University of
Minnesota Law School, as well as Director Emeritus of the University of
Minnesota Human Rights Center. He served as UN Special Rapporteur on the
Rights of Non-citizens from 2000-2003. A widely published scholar of
international human rights, his publications include: DAVID S. WEISSBRODT,
VULNERABLE AND MARGINALISED GROUPS AND HUMAN RIGHTS (Mary Rumsey
ed., 2011); DAVID WEISSBRODT & FIONNUALA Ni AOLAIN, INTERNATIONAL
HUMAN RIGHTS: LAW, POLICY, AND PROCESS (4th ed. 2009); DAVID
WEISSBRODT, THE HUMAN RIGHTS OF NON-CITIZENS (2008); DAVID
WEISSBRODT & CONNIE DE LA VEGA, INTERNATIONAL HUMAN RIGHTS LAW: AN
INTRODUCTION (2007); CTR. FOR HUM. RTS. CRIME PREVENTION & CRIM. JUST.
BRANCH, HUMAN RIGHTS AND PRE-TRIAL DETENTION: A HANDBOOK OF
INTERNATIONAL STANDARDS RELATING TO PRE-TRIAL DETENTION, U.N. Doc.
HR/P/PT/3, U.N. Sales No. E.94.XIV.6 (1994); as well as numerous additional
books, book chapters, and articles.
** Patrick Finnegan is a Research Assistant to Professor Weissbrodt;
freelance writer and consultant; and former Assistant Director of the University
of Minnesota Human Rights Center. He has considerable experience as a
contributing writer, editor, and researcher for various human rights
publications, including articles, book chapters, training manuals, and reports.
He holds a Masters of Public Policy from the Humphrey School of Public Affairs
at the University of Minnesota.

1
2 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

Armed Conflict; (C) Economic Factors; and (D) Psychological

Factors. The findings by scholars and practitioners are myriad
and complex, but some general trends are observable.
Democratic governments tend to better protect a broad range of
human rights, especially when paired with an independent
judiciary. Democratization may involve short-term disruption
but has long-term payoffs in respect for human rights.
Repression in weak states heightens the likelihood of civil wars.
Armed conflict, in turns, tends to generate the most grave
human rights abuses. Economic factors are deeply intertwined
with the full spectrum of human rights in two key ways: (1) the
distribution of resources (economic, social, and cultural rights);
and (2) economic structures and incentives that may encourage
repression. Individual psychological factors, such as the
tendency to obey authority, group identity, and exclusionary
ideologies can lead people to commit atrocities, especially in the
context of armed conflict.
Following this overview, the article discusses some of the
controversies and challenges in human rights research. These
issues include: differences in qualitative and quantitative
methods; surveillance bias in statistical work; and the difficulty
of comparative work. The article then explores theories of how
international human rights norms influence state behavior and
how this influence affects domestic conditions. The article
concludes by reiterating that causal research can improve
advocacy, and adds that it may serve a persuasive function as
well. Causal research can help human rights advocates make the
case for policies that contribute to the promotion and protection
of human rights. It can do so by establishing the credibility of
policy proposals, demonstrating that advocates understand the
problems they seek to address.
2019] HUMAN RIGHTS CONDITIONS 3

OUTLINE

I. INTRODUCTION.. ................
.................... 3
II. CAUSES OF HUMAN RIGHTS VIOLATIONS AND COMPLIANCE.. .5
A. GOVERNMENT BEHAVIOR AND STRUCTURE.. ............. 7
1. Early Studies.....................................7
2. The Decision to Repress. ........................... 10
3. Democracy and Democratization.. .................. 11
4. Judicial Independence and Transitional Justice..........14
5. Corruption......................................16
B. ARMED CONFLICT...........................18
1. State Capacity and Civil War. ...................... 18
2. External Effects and Influences. ................... 20
C. ECONOMIC FACTORS..............................21
1. The Economic, Social, and Cultural Rights Gap......22
2. Economic Factors and Repression.. ................. 25
3. Economic Inequality and Human Rights............28
D. PSYCHOLOGICAL FACTORS..........................31
1. Authority.......................................31
2. Group Identity. ................................... 35
3. Socialization. ................................... 38
III. CHALLENGES IN HUMAN RIGHTS RESEARCH............42
IV. INTERNATIONAL NORM DYNAMICS. .................... 47
A. INTERNATIONAL NORMS AND DOMESTIC POLITICS.............48
B. "ACCULTURATION" AND HUMAN RIGHTS.. ............. 50
V. CONCLUSION.......................................51

I. INTRODUCTION

International human rights have traditionally been the

domain of lawyers and political activists, but now constitute a
rapidly developing area spanning an array of disciplines and
professions, including anthropology, economics, law, political
science, public health, public policy, and sociology. Research on
what causes human rights violations and compliance is a
relatively recent development. It is a lively, expanding, and
contested area of inquiry, due in no small part to the complexity
of the subject matter.
Human rights abuses do not emanate from a single cause or
even a single set of causes. They can also be highly contextual;
4 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

factors that may relate to poor human rights compliance in some

countries may seem to have no consequence in others. One may
start by asking if there are really causes or merely innumerable
contributing factors to human rights violations. If this is the
case, is it worth it to do causal research at all? Can such an
endeavor produce helpful generalizations? If so, would it have
any practical use?
Despite these difficulties, the authors of the present article
believe the answer to these questions is "yes." Studying the
causes of human rights violations and compliance offers a wealth
of useful information. Social scientist James Scott faced a
similar dilemma in his study of the roots of resistance in settings
of political and social domination. He observed that, even after
all factors that might shed light on the matter had been
considered, it remained impossible to predict with precision
when or how collective acts of resistance will occur. He
concluded, nonetheless, that there is "a role for social analysis in
understanding this phenomenon." 2 A public health physician, for
example, may not be able to predict whether a particular
individual will fall ill, but he or she may be able to say something
useful about the conditions that may facilitate an epidemic, and
thereby develop solutions and preventive strategies. Strategies
that successfully change these conditions can reduce the risk of
infection for any given individual.
Public health interventions include short-term crisis
response and long-term preventive strategies. For example, in
response to a cholera outbreak, a humanitarian agency may
deploy medical teams to treat affected persons. In the long-term,
increasing access to clean drinking water and adequate
sanitation will eliminate some of the biggest risk factors for
waterborne diseases. Similarly, if human rights researchers can
identify key political, economic, and social conditions that lead
to human rights violations, they can develop and recommend
corrective solutions. For instance, short-term remedial measures
can include immediate political and legal action, such as
organizing peaceful protests or filing court cases in response to
specific violations. In the long-term, political and economic
pressure can be brought to bear on a state, both domestically and
internationally, to alter repressive patterns of behavior and
enact democratic reforms.

2. JAMES C. SCOTT, DOMINATION AND THE ARTS OF RESISTANCE: HIDDEN

TRANSCRIPTS 218 (1990).
2019] HUMAN RIGHTS CONDITIONS 5

While research on human rights conditions has advanced

considerably in recent years, much work remains to be done to
develop a fuller understanding. Scholars and practitioners have
used empirical methods to test different theories. A few areas,
such as government behavior and armed conflict, have been
studied more than others. Similarly the causes of certain types
of human rights abuses have received more attention than
others; scholars have examined violations of personal integrity
rights in far more detail than economic and social rights. This
article presents an overview of the most common causal theories
pertaining to human rights conditions, highlighting a number of
important studies and insights. It also identifies challenges and
gaps in the research. This article then discusses how
international human rights norms influence state behavior. It
concludes by arguing that causal research itself plays a role in
advancing the human rights movement. Although the article
draws on a variety of sources, it is not exhaustive owing to space
constraints. Interested readers are encouraged to further
explore the causal literature on human rights conditions to
enrich their understanding.

II. CAUSES OF HUMAN RIGHTS VIOLATIONS AND

COMPLIANCE

Various sources produce information on human rights

abuses, including governments, international governmental
organizations (IGOs), nongovernmental organizations (NGOs),
activists, journalists/media outlets, and scholars engaged in field
research, as well as firsthand accounts from victims, witnesses,
and perpetrators. Such information is commonly generated
through fact-finding inquiries undertaken by IGOs, NGOs, and
governments. Depending on its mandate, a fact-finding inquiry
may entail such activities as: long- or short-term investigations
(involving interviews and site visits); research; needs
assessments (e.g., for humanitarian, social, or other assistance);
trial observations; prison visits; visits to refugee camps; and
election observations.
Two of the most widely-used sources of information for
scholarly research on human rights violations are the U.S. State
Department's Country Reports on Human Rights Practices and
Amnesty International's Annual Reports. Based on these
reports, scholars developed two of the most commonly used
6 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

quantitative human rights indices, which are: (1) the Political

Terror Scale (PTS) and (2) the Cingranelli-Richards Human
Rights Dataset (CIRI).3 PTS and CIRI each have their own
numerical scales to rate abuse levels, with each level
representing a certain frequency or intensity of human rights
violations.
Since human rights cover many aspects of human existence,
however, not all categories of rights can be assessed in the same
way. PTS and CIRI mostly focus on abuses of personal integrity
rights, such as extrajudicial killings, disappearances, torture,
and arbitrary arrest. 4 Two other commonly used indices-the
Freedom in the World Reports and the Polity IV Project-are
used to measure civil and political rights based on analysis of a
country's government structure and practices.5 There are no
widely accepted standard measures for economic and social
rights compliance, which partially explains the relative lack of
research in this area. Although some scholars use economic
development data to gauge such rights, such as the Human
Development Index,6 these indicators do not necessarily offer
information on government efforts to comply with economic and
social rights obligations.7 In an effort to fill this gap, Fukuda-

3. See David L. Cingranelli, David L. Richards & K. Chad Clay, CIRI

HUMAN RIGHTS DATA PROJECT (2014), http://www.humanrightsdata.com/p/
data-documentation.html; Mark Gibney et al., THE POLITICAL TERROR SCALE
(2015), http://www.politicalterrorscale.org/Data/Data-Archive.html. It should
be noted that PTS has recently added Human Rights Watch reports as a third
source for country rankings, but this dataset is much less complete than the
U.S. State Department and Amnesty International reports.
4. CIRI also has some data on civil and political rights, as well as the
rights of women and workers. See CIRI HUMAN RIGHTS DATA PROJECT,
Frequently Asked Questions (2011), http://www.humanrightsdata.com/p/faq.
html.
5. See FREEDOM HOUSE, FREEDOM IN THE WORLD 2016 (2016),
https://freedomhouse.org/sites/default/files/FHFITWReport_2016.pdf; Monty
G. Marshall & Ted Robert Gurr, The Polity Project, CTR. FOR SYSTEMIC PEACE,
http://www.systemicpeace.org/polityproject.html (last visited Sept. 25, 2018).
Measures of democratic governance are often used as a proxy for civil and
political rights compliance. See Emilie M. Hafner-Burton & James Ron, Seeing
Double: Human Rights Impact through Qualitative and Quantitative Eyes, 61
WORLD POL. 360, 365 (2009). A useful resource for comparing constitutional
structures between countries is the Constitute Project. See Zachary Elkins et
al., CONSTITUTE PROJECT, https://www.constituteproject.org (last visited Jan.
21, 2019).
6. See U.N. Dev. Programme, Human Development Index (HDI),
http://hdr.undp.org/en/content/human-development-index-hdi (last visited Jan.
21, 2019).
7. Hafner-Burton & Ron, supra note 5, at 29, 387.
2019] HUMAN RIGHTS CONDITIONS 7

Parr et al. have created the Social and Economic Rights

Fulfillment (SERF) index, which "uses international
administrative and survey data" to establish a measure of how
well a country fulfills its economic and social rights obligations
relative to its available resources.8 Preliminary results from
SERF data analysis are discussed infra on pages 23-25.
The following four sections will cover, broadly speaking, the
most studied causes of human rights violations identified by
researchers and practitioners: (1) Government Behavior and
Structure; (2) Armed Conflict; (3) Economic Factors; and (4)
Psychological Factors. Although each section covers ostensibly
different subject matter, these categories are necessarily
artificial. Different causes of human rights abuses are often
deeply interconnected. Furthermore, certain human rights
abuses may themselves lead to additional violations.

A. GOVERNMENT BEHAVIOR AND STRUCTURE

Government behavior and structure are two of the most

obvious places to look for human rights violations. In the
international human rights system, states are the primary
bearers of responsibility for human rights conditions. As such,
government is one of the most thoroughly studied areas in the
research, especially as it pertains to personal integrity rights. To
make this subject matter easier to digest, this section is broken
down into five subtopics: (1) Early Studies; (2) The Decision to
Repress; (3) Democracy and Democratization; (4) Judicial
Independence and Transitional Justice; and (5) Corruption.

1. Early Studies

The traditional argument has been that democratic

governments respect rights more than authoritarian ones,
therefore efforts to democratize will reduce human rights
violations. Early studies on human rights violations supported
this theory. In one of the first studies of its kind, Mitchell and
McCormick tested several purported causes of human rights
violations using quantitative indicators. 9 They carried out their

8. SAKIKO FUKUDA-PARR ET AL., FULFILLING SOCIAL AND ECONOMIC

RIGHTS 15 (2015).
9. Neil J. Mitchell & James M. McCormick, Economic and Political
Explanations of Human Rights Violations, 40 WORLD POL. 476, 484-85 (1988).
8 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

study prior to the existence of PTS and CIRI, so Mitchell and

McCormick devised their own measures of violations based on
the Amnesty International World Report of 1985.10 They coded
123 countries for (1) torture and arbitrary killing; and (2)
political imprisonment." They tested several theories on
government behavior. For example, Chomsky and Herman,
among others, argued that the United States and other first
world countries fueled human rights violations in the third
world by supporting governments that repress to maintain
favorable investment conditions; in other words, countries with
more external capitalist interest will have higher levels of
repression. 12 Mitchell and McCormick did find that countries
with medium or high levels of trade with Western countries
experienced high levels of imprisonment and torture, but these
correlations diminished when controlled for a country's
population size.
In the late 1970s, Jeane Kirkpatrick, who later became U.S.
President Ronald Reagan's ambassador to the United Nations,
advanced a theory that communist "totalitarian" governments
are necessarily worse human rights abusers than "traditional"
authoritarian governments. 13 Mitchell and McCormick found
partial support for Kirkpatrick's assertion in terms of political
imprisonment, even when controlling for population and
income. 14 When examining torture, however, Mitchell and
McCormick found that traditional authoritarian governments
tortured more often than communist governments. 15 In the
aggregate, combining torture and imprisonment, Mitchell and
McCormick observed no significant difference between the two
regime types.
Howard and Donnelly argued that classically liberal
governments necessarily respect human rights more than
communitarian governments,16 since communitarian regimes

10. Id. at 484.

11. Id.
12. See NOAM CHOMSKY & EDWARD S. HERMAN, THE WASHINGTON
CONNECTION AND THIRD WORLD FASCISM (1979).
13. Jeane Kirkpatrick, Dictatorshipsand Double Standards, 68 COMMENT.
34-44 (1979).
14. Mitchell & McCormick, supra note 9, at 493-94.
15. Id. at 494-95.
16. Howard and Donnelly define "communitarian societies" as "those
[societies] that give ideological and practical priority to the community
(sometimes embodied in the state) over the individual." See Rhoda E. Howard
& Jack Donnelly, Human Dignity, Human Rights, and Political Regimes, 80
2019] HUMAN RIGHTS CONDITIONS 9

subordinate individual rights to a larger collectivity.1 7 Mitchell

and McCormick tested a "lighter" version of this theory-that
liberal governments tend to respect human rights more than
communitarian ones-and found the conclusion to be essentially
correct.18 Their data could not, however, confirm the stronger
formulation of the argument as expressed by Howard and
Donnelly. Mitchell and McCormick's study was certainly a
landmark for its time, but it did have a key limitation: it did not
employ historical data on human rights trends over time. 19 This
issue was addressed by subsequent scholarly work, including the
creation of PTS (and later on, CIRI), which assigned human
20
rights ratings on an annual basis.
In 1994, Poe and Tate published another seminal study that
focused on personal integrity rights abuses, including murder,
torture, disappearance, and political imprisonment. 21 Their data
included 153 countries for the years 1980-87. Their findings
supported some of the same conclusions of Mitchell and
McCormick's study. They found that democratic governance and
the presence of armed conflict were the two most significant
aspects of repression. 22 Levels of economic development and
population size had effects as well, but less dramatic than
democracy or warfare. Their analysis found no significant effects
emanating from population growth rates, British cultural
influence, or military control. In 1999, Poe, Tate, and Keith
followed up this study by revisiting their earlier model with a
larger PTS dataset, analyzing the human rights practices of over
150 countries between 1976 and 1993.23 Their findings
confirmed some of their earlier results, but contradicted others.
For example, they found clearly that military control of a country
was associated with higher levels of repression. 24 Similarly,
countries with a British colonial legacy experienced less

Am. POLIT. SCI. REV. 801, 808 (1986).

17. Id.
18. Mitchell & McCormick, supra note 9, at 496.
19. Id. at 484.
20. Cingranelli et al., supra note 3; Gibney et al., supra note 3.
21. See Steven C. Poe & C. Neal Tate, Repression of Human Rights to
PersonalIntegrity in the 1980s: A Global Analysis, 88 AvI. POL. SCI. REV. 853,
854 (1994).
22. Id. at 866.
23. Steven C. Poe et al., Repression of the Human Right to Personal
Integrity Revisited: A Global Cross-National Study Covering the Years 1976-
1993, 43 INT'L STUD. Q. 291, 292 (1999).
24. Id. at 305.
10 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

personal integrity abuse (relative to other countries). 25

Additionally, this second study's results suggested that economic
growth has a negative impact on repression, but that a one
percent annual population increase has a positive relationship
to human rights abuses. 26
Although Poe and Tate (and later Keith) studied similar
types of human rights violations to those abuses explored by
Mitchell and McCormick, they disagreed on a key point. As noted
supra, Mitchell and McCormick measured two categories of
violations: (1) political imprisonment; and (2) torture and
arbitrary killing. They justify making this distinction on the
grounds that torture and killing constitute a separate and
"qualitatively worse activity" than political imprisonment. 27
Secondly, Mitchell and McCormick argue that, empirically
speaking, "there is a considerable gulf between states with
political prisoners and those [states] that use torture and
killing." 28 Poe and Tate rejected that dichotomy in their 1994
study. They argued that torture, execution, disappearance, and
political imprisonment all manifest in a single dimension: the
willingness of a regime to harm citizens it sees as a threat. 29

2. The Decision to Repress

While more recent research confirms the essential finding

that authoritarian governments violate human rights more than
democratic ones, there is some nuance. In her review of social
sciences research on human rights, Hafner-Burton notes that
the process of democratization can lead to political instability,
which can result in human rights abuses. 30 Conversely, not all
authoritarian governments are equally repressive; personalist
or military dictatorships tend more toward severe violence than
single-party governments. 3 1 Even with this caveat, Sikkink
notes that there is a lack of convincing evidence that
governments transitioning to democracy perpetrate more abuses
than authoritarian governments. Furthermore, these "semi-

25. Id. at 291.

26. Id. at 307.
27. Mitchell & McCormick, supra note 9, at 484.
28. Id. at 484-85.
29. Poe et al., supra note 21, at 298.
30. Emilie M. Hafner-Burton, A Social Science of Human Rights, 51 J.
PEACE RES. 273, 275 (2014).
31. Id. at 275-76.
2019] HUMAN RIGHTS CONDITIONS 11

democracies" are far less prone to genocidal violence. 32

One of the most basic findings pertaining to why states
choose to repress is that they respond to threats-real or
perceived-to the established political order. Reviewing four
decades of literature on repressive behavior by national
governments, Davenport notes,

Considering different time periods and countries, as well

as a wide variety of measurements for both conflict and
repression, every statistical investigation of the subject
has found a positive influence. When challenges to the
status quo take place, authorities generally employ some
form of repressive action to counter or eliminate the
behavioral threat; in short, there appears to be a 'Law of
Coercive Responsiveness.' 33

While this notion may seem intuitive, the evidence shows

important details. Researchers have constructed more complex
models of government decision-making, where leaders engage in
cost-benefit analyses of repressive tactics, selecting repression
when they believe benefits exceed costs and success is likely. 34
As Sikkink writes, "According to the rational choice approach,
those in power choose to repress dissent when the costs of doing
so are lower than the costs of institutionalizing liberal
democracy." 35 In this framework, states are rational actors
concerned with the preservation and/or expansion of their
authority. The effects of repression on dissent, however, vary
greatly; sometimes repression succeeds in quelling opposition,
36
but other times it does not.

3. Democracy and Democratization

The process of democratization can play a key role in a

government's threat calculations. As Hafner-Burton notes,
"[d]emocratization can threaten incumbent leaders, who then
resort to abuses in order to hold on to power. Threatened leaders

32. KATHRYN SIKKINK, EVIDENCE FOR HOPE: HUMAN RIGHTS IN THE 21ST
CENTURY 193-94 (2017).
33. Christian Davenport, State Repression and Political Order, 10 ANN.
REV. POL. SCI. 1, 7 (2007).
34. Id. at 4.
35. SIKKINK, supra note 32, at 185.
36. Davenport, supra note 33, at 8.
12 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

can also encourage nationalism, which in turn can lead to

conflicts and abuse." 37 So, while a country may be transitioning
from authoritarian to democratic structures, proto-democratic
leaders often still view threats to their incumbency with an
authoritarian mentality. Scholars have given this transitional
repression the somewhat macabre designation of "more murder
in the middle." 38 Presidential elections in these circumstances
can result in leaders using political terror to assure their victory.
Some research suggests, however, that national legislative
elections are often accompanied by improved respect for human
rights, even in some authoritarian settings. 39
Researchers have observed that countries must deeply
internalize democratic norms to see major reductions in personal
integrity violations. 40 Once achieved, this "democratic threshold"
then leads to significant decreases in government repression. 41
For instance, the analysis of Bueno de Mesquita et al.
corroborated previous scholarship suggesting that, as
democratization progresses, established leaders feel threatened
and use repression to hold on to power. 42 Their study highlighted
multiparty electoral competition and constraints on executive
power as the most significant factors in achieving the democratic
threshold; elections without these crucial features may signify
poor human rights conditions. 43
Bueno de Mesquita et al. also suggest that democratization
must be a long-term enterprise in order to succeed. Early
democratic reforms yield little discernible immediate benefit,
but are necessary steps to reaching the democratic threshold:
"[T]he creation of a government that effectively protects human
rights can be a slow and frustrating process. It can be slow
because it requires a substantial number of institutional reforms
to be in place. And it can be frustrating because most of the
reforms that are necessary will not immediately lead to better
human rights protection. The payoff will only come after a
44
number of reforms are made."

37. Hafner-Burton, supra note 30, at 275.

38. Davenport, supra note 33, at 11.
39. Hafner-Burton, supra note 30, at 275-76.
40. Id. at 275.
41. See, e.g., Davenport, supra note 33, at 11.
42. Bruce Bueno de Mesquita et al., Thinking Inside the Box: A Closer Look
at Democracy and Human Rights, 49 INT'L STUD. Q. 439, 451 (2005).
43. Id. at 449-50.
44. Id. at 455.
2019] HUMAN RIGHTS CONDITIONS 13

Chronic personal integrity rights abuses, however, still

occur in some well-established democracies. 45 Improved
accountability measures for human rights in democratic
societies may lead the authorities to use methods of torture or
ill-treatment that leave less visible marks. In his detailed study
of torture and democracy, Rejali argues that "[p]ublic monitoring
leads institutions that favor painful coercion to . . . evade
detection, and, to the extent that public monitoring is not only
greater in democracies, but that public monitoring of human
rights is a core value in modern democracies, it is the case that
where we find democracies torturing today we will also be more
likely to find stealthy torture."4 6 Rejalil observes that monitoring
has even had an effect on non-democratic states. He cites several
historical examples of authoritarian governments choosing less
visible torture techniques when the target prisoners were
subject to more international scrutiny, especially with the
development of international human rights monitoring. 47
While Rejali readily concedes that the torture record of
democratic states is, as a whole, less severe than authoritarian
states, he explores why some democracies have legalized torture
or violated prohibitions on its practice. Once again, threat or the
perception of threat are key factors. During a time of crisis, for
example, well-established national security bureaucracies and
agencies can overwhelm democratic restraint, circumventing or
48
co-opting normal accountability mechanisms. On a more
individual level, Rejali theorizes that justice systems that value
and privilege confessions by persons accused of crimes may
incentivize law enforcement to resort to coercive techniques
against suspects. 49 Despite these findings, however, democratic
governance still appears to be a decisive factor in the
improvement of human right conditions. As Sikkink observes,
"[N]umerous studies on the causes of human rights violations
have made it clear that democracy is essential for human rights
to succeed, but not sufficient. While many democracies do not
have robust human rights practices, there are not any countries

45. Hafner-Burton & Ron, supra note 5, at 372. Hafner-Burton and Ron
estimate that just over 36% of the global population live in democracies where
major human rights abuses occur, although they acknowledge that India's
enormous population size accounts for most of this number.
46. DARIUS REJALI, TORTURE AND DEMOCRACY 8 (2007).
47. Id. at 12-13.
48. Id. at 46-49 (discussing French police and army actions in Algeria
during the 1950s).
49. Id. at 49-55.
14 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

with robust human rights practices that are not democracies."5 0

4. Judicial Independence and Transitional Justice

Various studies have attempted to disaggregate which

specific factors of government behavior and structure are most
significant to reducing personal integrity rights violations.
While the research has yielded useful insights into individual
characteristics of democracy, it also suggests that these
characteristics are most effective when packaged together as a
comprehensive set of reforms. For example, in 2009, Keith, Poe,
and Tate tested the effects of three key types of constitutional
provisions on state repression: (1) Individual freedoms
protections (free speech, assembly, etc.); (2) Independence of the
judiciary; and (3) Restrictions on the use of emergency
measures.5 1 Of the judicial independence variables examined,
those factors relating to the insulation of regular courts from
political interference proved most significant in reducing human
rights abuses. 52 The strongest findings in Keith, Poe, and Tate's
study, however, pertained to constitutional restrictions on the
use of emergency measures by government officials. 53 Especially
important were (1) the requirement of legislative approval
before a state of emergency can be declared; and (2) the
prohibition on the dissolution of the legislature during a state of
emergency. 54
Keith, Poe, and Tate found many constitutional provisions
on individual freedoms to be statistically insignificant by
themselves.5 5 They proved significant, however, when
aggregated. This finding suggests that constitutional rights
protections must operate in tandem to be effective, rather than
be adopted as single provisions in isolation. When Keith, Poe,
and Tate ran their statistical models over a ten-year period, the
results suggested a significant aggregate positive impact on
respect for personal integrity rights.5 6
Constitutional provisions for an independent judicial

50. SIKKINK, supra note 32, at 194-95.

51. Linda Camp Keith et al., Is the Law a Mere Parchment Barrier to
Human Rights Abuse?, 71 J. POL. 644, 645 (2009).
52. Id. at 658.
53. Id. at 654.
54. Id.
55. Id. at 652.
56. Id. at 657.
2019] HUMAN RIGHTS CONDITIONS 15

branch of government have increasingly become a global norm

of state structure since the end of the Cold War. In addition to
Keith, Poe, and Tate, many theorists have identified an
independent judiciary as a critical component of democracy that
promotes respect for human rights. When the judiciary is
sufficiently empowered, the argument goes, it has a constraining
effect on state behavior by imposing material and reputational
costs for the use of repression.57 Other commentators caution,
however, that even institutionally independent courts may not
always issue rulings that are favorable to human rights. If a
given political environment is authoritarian in nature, even
independent courts may produce jurisprudence more consistent
with that prevailing ethos.5 8
In her detailed study of political repression and courts,
Keith tested the effects of de facto judicial independence on
personal integrity rights and civil liberties. Her findings suggest
that, in general, an independent judiciary does in fact reduce the
probability of state repression. 59 Crabtree and Fariss reached
the same general conclusion in a study using different statistical
models and some variable substitutions.6 0 Keith's study also
sheds light on the relationship between formal judicial
independence, as set forth in constitutions, and actual state
practice. She found that the largest predictor of current judicial
independence is past judicial independence, suggesting that a
state's political culture is a critical factor that self-reinforces
over time.6 1 Her analysis also found that the presence of formal,
constitutional provisions establishing judicial autonomy
generally have a positive effect on actual practice, but only when
accompanied by multiparty electoral competition and
constraints on executive power. 62 In this context, the courts may
function as an alternate venue through which governing factions
that lose power may continue to influence policy or protect
themselves from repression by successor governments. 63
Connected to the accountability rendered by independent

57. LINDA CAMP KEITH, POLITICAL REPRESSION: COURTS AND THE LAW 169
(2012).
58. Id. at 170-71.
59. Id. at 176, 188.
60. See Charles D. Crabtree & Christopher J. Fariss, Uncovering Patterns
Among Latent Variables: Human Rights and De Facto JudicialIndependence,
2:3 RES. POL. 1 (2015).
61. KEITH, supra note 57, at 159.
62. Id. at 165.
63. Id. at 186-87.
16 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

courts, evidence suggests that prosecuting perpetrators of past

human rights violations in countries transitioning to democracy
improves human rights practices. Kim and Sikkink have
demonstrated that transitional countries that undertook human
rights prosecutions experienced less repression over time than
those countries that did not. 64 In a subsequent study, Kim and
Sikkink probed this finding in further detail, using data on
human rights conditions in seventy-eight transitional countries
between 1980 and 2009.65 They explored the effects of human
rights trials, both in terms of process and verdicts. In general,
prosecutions that result in convictions have the greatest
mitigating effect on repression.6 6
Kim and Sikkink also found that the process of prosecution
(arrests, indictments, trials, etc.) served to reduce repression,
albeit to a lesser degree than conviction. Additionally, the effect
of human rights trials on repression is much higher for high-
level prosecutions (i.e., of high-ranking officials suspected of
grave abuses) than low-level prosecutions. High-level
convictions had an additional specific deterrence effect on
extrajudicial killings.67 While prosecutions that led to acquittals
did not decrease repression in the aggregate, they still appeared
to deter torture. It is not fully clear as to why, but Kim and
Sikkink venture that "it is possible that prosecution adds an
additional and necessary level of enforcement that challenges
the torturers' sense of secrecy and immunity . ."8

5. Corruption

Another significant factor in whether a government respects

human rights norms is corruption. It is a clear display of the
interdependence of civil and political rights, on the one hand,
and economic, social, and cultural rights, on the other. Official
corruption can have a significant effect on a government's
respect for its economic, social, and cultural rights obligations.

64. Hun Joon Kim & Kathryn Sikkink, Explaining the Deterrence Effect of
Human Rights Prosecutionsfor TransitionalCountries, 54 INT'L STUD. Q. 939
(2010).
65. Hun Joon Kim & Kathryn Sikkink, How Do Human Rights Prosecutions
Improve Human Rights After Transition?, 7 INTERDISC. J. HUm. RTS. 69, 74
(2012).
66. Id. at 71.
67. Id. at 85.
68. Id. at 83.
2019] HUMAN RIGHTS CONDITIONS 17

In its simplest form, the theft of public resources for the private
gain of corrupt officials detracts from a government's capacity to
invest in providing access to food, water, educational
opportunity, or adequate health infrastructure.
Corruption usually infringes on the right to equal protection
before the law, which is a bedrock principle of international
human rights. Corrupt practices exclude certain individuals and
groups from protections and access to public goods, while
providing preferential treatment for others, violating the
tenants of non-discrimination. 69 As Sepflveda Carmona and
Bacio-Terracino note, "Article 26 of the International Covenant
on Civil and Political Rights (ICCPR) prohibits discrimination in
law or in fact in any field regulated and protected by public
authorities, and its application is not limited to those rights
provided for in the ICCPR."70 Corruption has a particularly
detrimental effect on vulnerable groups, such as the poor, who
lack the financial means, or political influence, to obtain
favorable treatment.7 1
Corrupt acts can be direct human rights violations.
Sepflveda Carmona and Bacio-Terracino provide several
examples. For instance, if a judge is bribed to influence the
outcome of a case, it is a violation of fair trial rights. If someone
must bribe a doctor for treatment at a public hospital, his or her
right to adequate health is denied. Direct violations may also
result from a failure of government officials to exercise due
diligence to prevent other officials from perpetrating corrupt
acts. 72 Corruption may also lead indirectly to abuses, serving as
a necessary condition of human rights violations. For example,
border officials could be bribed by human traffickers to enable
cross-border movement of trafficked persons for sexual
exploitation. Although the officials may not be directly engaged
in the immediate act of trafficking, they are accessories, without
the participation of whom the violation could not occur.
Corruption may contribute to a broader socio-political context in
which human rights are easily disregarded. Take, for example,
a corrupt electoral process that leads to protests against election

69. Magdalena Septilveda Carmona & Julio Bacio-Terracino, Corruption

and Human Rights: Making the Connection, in CORRUPTION AND HUMAN
RIGHTS: INTERDISCIPLINARY PERSPECTIVES 25, 32 (Martine Boersma & Hans
Nelen eds., 2010).
70. Id. at 32.
71. Id. at 35-37, 39.
72. Id. at 29.
18 MINNESOTA JOURNAL OFINT'L LAW [Vol. 28:1

results that are then violently put down by the government. The
government in question may resort to arbitrary detention,
torture, and/or extrajudicial killings to suppress dissent.73

B. ARMED CONFLICT

Armed conflict is one of the best understood causes of

human rights violations. Whether international armed conflict
or-as is more often the case in the 21st century-non-
international armed conflict, wartime conditions enable the
most serious of human rights abuses to occur. The evidence
suggests a cyclical relationship: inasmuch as armed conflict
causes human rights violations, widespread human rights
abuses may also lead to armed conflict. As Hafner-Burton writes,
"Scholars now know with high certainty that one of the most
significant predictors of political terror is violent conflict. The
central insight about violent conflict is that it creates cycles of
human rights abuse that are difficult to interrupt."74

1. State Capacity and Civil War

During armed conflict, weak states may employ extreme

violence to assert or reassert dominance. They may also be
unable to exert disciplined command and control over their own
armed forces and proxies to stop them from abusing the
population. In some cases, states may lack the critical capacity
to stop insurgent or terrorist groups from committing human
rights violations. Englehart argues that state weakness is now
the more widespread problem, globally speaking, than the
excesses of powerful states.75 Many states have difficulty
exercising basic authority owing to a combination of factors, such
as colonial legacies of corruption or ethnic conflict, as well as
uneven development and inadequate infrastructure. 76 Although
states bear primary legal responsibility for human rights
conditions within their territory, weak or failed states lack the
capacity to restrain third party violators or even their own
agents. This lack of control can have dire consequences during

73. Id. at 29-30.

74. Hafner-Burton, supra note 30, at 274.
75. See, e.g., Neil A. Englehart, State Capacity, State Failure, and Human
Rights, 46 J. PEACE RES. 163, 163 (2009).
76. Id. at 165.
2019] HUMAN RIGHTS CONDITIONS 19

armed conflict as state security forces can abuse the population

with impunity and civilians may use the chaos of war to settle
grudges.77 In his empirical analysis, Englehart found that
increased state capacity correlates with more respect for
personal integrity rights, including a significant reduction in
extrajudicial killings.7 8
If state weakness itself can cause human rights violations,
it may also lead to armed conflict, which can generate further
abuses. As Rost observes:

[G]overnment-sponsored violations of the most basic

human rights to personal integrity are closely linked
with a high risk of civil war onset. Furthermore, state
weakness contributes to increasing the risk of civil war,
which is in line with most studies on civil war onset. As
the simulations [in this study] show, it is the combination
of state weakness and repression that pushes civil war
risk to its highest levels. 79

Low-level conflict in weak states can trigger a cycle of

human rights abuses that escalates into civil war. Perceiving a
threat to its power, a government may crack down on an
opposition group and on other civilians it believes to be affiliated.
This repression may provoke armed resistance against the
government. To compensate for their lack of power relative to
the state, rebel groups may resort to guerrilla tactics, possibly
relying on civilian support. Government forces may, in turn,
terrorize civilians in a bid to erode the rebels' strength.8 0 Rost
concludes that increasing government repression in weak states
can thus be a useful predictor of impending civil war.8 1
State weakness, political terror, and a cycle of violence often
produce gendered harms in situations of civil war. Rape, for
example, disproportionately affects women and girls in war
zones. While men and boys are more likely to be killed in war as
combatants (or potential combatants), women and girls tend to
suffer more acutely from less lethal violence like rape, as well as

77. Id. at 163, 169.

78. Id. at 171-74.
79. Nicolas Rost, Human Rights Violations, Weak States, and Civil War, 12
HuM. RTS. REV. 417, 436 (2011).
80. Id. at 418.
81. Id. at 436-37.
20 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

displacement and lack of medical care. 82 As Cohen argues, the

private crime of rape is common in many societies, but wartime
rape often has distinct characteristics, including public
commission of the act, often by multiple perpetrators, which can
have a terror effect on the population. 83

2. External Effects and Influences

Civil war can also influence human rights conditions outside

of the immediately affected state. Danneman and Ritter argue
that states near other states experiencing civil war will increase
domestic repression to preempt the spread of rebellion. 84 Civil
wars seldom remain contained within national borders and often
have spillover effects on neighboring nations.8 5 The authors'
analysis leads them to conclude that:

Generally, leaders are wary of civil strife in their

neighborhood spreading to their nation. To prevent
diffusion, they increase repression ... These findings
suggest leaders are concerned primarily with the
mechanical drivers of civil war diffusion that are tied to
geography, such as refugee flows and transnational rebel
groups, rather than cultural or political similarities .. .86

In this context, states undertake repression not to imitate

their neighbors, but to "avoid their fate."8 7 Danneman and Ritter
interpret the events of the "Arab Spring" of 2011 through their
model. When major dissent broke out in Tunisia and Egypt,
other Middle Eastern and North African governments engaged
in preemptive crackdowns, notably Algeria, Bahrain, Iran,
Libya, and Syria. The results of these repressive policies had
different effects: Whereas in Algeria and Iran, government
authority prevailed (at least in the short-term), brutal civil wars

82. Dara Kay Cohen, Explaining Rape during Civil War: Cross-National
Evidence (1980-2009), 107 Am. POL. SCI. REV. 461, 462 (2013).
83. Id. at 464.
84. See Nathan Danneman & Emily Hencken Ritter, Contagious Rebellion
and Preemptive Repression, 58 J. CONFLICT RESOL. 254, 255 (2014).
85. Id. at 255-56..
86. Id. at 272.
87. Id. at 254, 273.
2019] HUMAN RIGHTS CONDITIONS 21

erupted in Libya and Syria.88

A number of studies have found that international arms
transfers tend to exacerbate human rights violations in
repressive or conflict-afflicted states, and sometimes in states
that carry both these characteristics. 89 When the Cold War came
to an end, the arms market dynamic in the West, Eastern
Europe, and the former Soviet Union changed in notable ways;
many countries cut their defense budgets, decreasing domestic
demand and placing pressure on arms manufacturers to find
new markets through exports. The U.S. offered favorable loan
terms for arms purchases, encouraging its embassies around the
world to facilitate sales. In many former Eastern Bloc and Soviet
countries, surplus arms and military-focused infrastructure
encouraged aggressive marketing for arms exports. 90 The post-
Cold War weapons market fueled the often ethnically charged
armed conflicts of the 1990s and 2000s: "For example, it was not
only major suppliers such as the French, the Belgians, and the
Russians that sold arms and ammunition to Rwanda before the
genocide in 1994, but also a number of former communist
countries such as Romania, Bulgaria, the Czech Republic, and
Slovakia." 91

C. ECONOMIC FACTORS

Economic context is a vital piece of the human rights puzzle

and is deeply intertwined with political and social context.
Economic factors influence human rights conditions in two broad
ways: firstly, in the distribution of resources, which has the most
direct implications for economic and social rights. Major
inequalities or the misappropriation of public goods for private
gain can endanger human rights pertaining to basic needs, such
as food, water, shelter, and adequate health. States may fail to
make adequate efforts to provide for their population's basic
needs or may even deliberately deprive certain groups of

88. Id. at 270.

89. See, e.g., Shannon Lindsey Blanton, Instruments of Security or Tools of
Repression? Arms Imports and Human Rights Conditions in Developing
Countries, 36 J. PEACE RES. 233, 233-35 (1999); Cassady Craft & Joseph P.
Smalldone, The Arms Trade and the Incidence of Political Violence in Sub-
SaharanAfrica, 1967-97, 39 J. PEACE RES. 693, 704-06 (2002); Lerna K. Yanik,
Guns and Human Rights: Major Powers, Global Arms Transfers, and Human
Rights Violations, 28 HUM. RTS Q. 357, 357-61 (2006).
90. Yanik, supra note 89, at 380-84.
91. Id. at 384.
22 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

opportunities and resources. States may also fail to prevent

violations of economic, social, and cultural rights by third
parties, such as businesses. Secondly, economic structures and
incentives can encourage governments to repress their
populations, resulting in civil and political rights violations. For
example, a government seeking to attract international
investment by minimizing the cost of doing business may use
force to break up a strike over low wages.
As noted in the introduction of this piece, the literature on
the relationship between economic factors and repression is
more extensive than the study of economic, social, and cultural
rights. Although there have been some notable advances in
recent years, economic, social, and cultural rights remain, on the
whole, a less studied and emphasized topic. This deficiency
constitutes a key gap in the study of causes of human rights
violations.

1. The Economic, Social, and Cultural Rights Gap

Identifying violations of the rights contained in the

International Covenant on Economic, Social and Cultural Rights
(ICESCR) can be a difficult undertaking. Such assessment
involves evaluating state efforts to promote those rights, not
simply whether a state's economic performance is adequate.
Economic, social, and cultural rights are the subject of
progressive realization over time, often requiring sustained
engagement to meet everyone's basic needs and improve living
standards. Personal integrity abuses, however, can be curbed
more quickly, by governments refraining from certain practices,
such as arbitrary killing and torture. 92
Lack of agreement on the scope and application of economic,
social, and cultural rights may also contribute to the difficulty of
identifying violations, let alone causes. Amnesty International
has noted that "[r]emaining scepticism about economic, social
and cultural rights as enforceable rights is based on the
perception that their scope and content are unclear, and that it
is not appropriate for courts to interfere in these issues, as they
involve political decisions on allocation of resources." 93 Western
countries have traditionally placed less emphasis on these

92. Hafner-Burton & Ron, supra note 5, at 365.

93. AMNESTY INT'L, HUMAN RIGHTS FOR HUMAN DIGNITY: A PRIMER ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS 33 (2d ed. 2014),
https://www.amnesty.org/en/documents/pol34/001/2014/en/.
2019] HUMAN RIGHTS CONDITIONS 23

rights, instead backing the primacy of civil and political rights. 94

This reluctance has affected UN human rights mechanisms,
conferring less apparent value on economic, social, and cultural
rights, despite the 1993 Vienna Declaration's insistence on the
equality and indivisibility of all rights categories. 95 Although
human rights NGOs and the UN have developed models for
incorporating a human rights framework into government
budgeting, 96 these models are relatively new and it is not yet
clear what effects they will have.
Related to this research gap is the lack of international
jurisprudence on economic, social, and cultural rights relative to
civil and political rights. The Committee on Economic, Social
and Cultural Rights has generated a substantial body of General
Comments and country review materials. 97 It did not start
operating, however, until 1987, eleven years after the ICESCR
entered into force. 98 Furthermore, the Optional Protocol to the
ICESCR, establishing an individual complaint mechanism, only
entered into force in 2013.99 By contrast, the Human Rights
Committee began taking individual complaints and issuing
jurisprudence in 1976, the year the Civil and Political Covenant
and its first Optional Protocol entered into force. 100 As Forman
observes, "[C]ivil and political rights have had a several decades
head-start in terms of jurisprudential development, leading to
significant disparities in the depth of understanding between
the two sets of rights."10 1
Another complication in the promotion of economic, social,

94. See, e.g., Henry F. Carey, Economic, Social, and Cultural Rights, in
OXFORD RESEARCH ENCYCLOPEDIA OF INTERNATIONAL STUDIES (online ed.,
2017), http://internationalstudies.oxfordre.com/abstract/10.1093/acrefore/9780
190846626.001.0001/acrefore-9780190846626-e-161; Lisa Forman, Can
Minimum Core Obligations Survive a Reasonableness Standard of Review
under the Optional Protocol to the InternationalCovenant on Economic, Social
and Cultural Rights?, 47 OTTAWA L. REV. 561 (2016); Philip Alston, Human
Rights in the Populist Era, JUST SECURITY (Oct. 18, 2017),
https://www.justsecurity.org/46049/human-rights-populist-era/.
95. Carey, supra note 94, at 19.
96. See, e.g., FUNDAR-CENTRO DE ANALISIS E INVESTIGACION ET AL.,
DIGNITY COUNTS: A GUIDE TO USING BUDGET ANALYSIS TO ADVANCE HUMAN
RIGHTS (2004); U.N. OFF. HIGH COMMISSIONER FOR HUM. RTS. & INT'L BUDGET
PROJECT, REALIZING HUMAN RIGHTS THROUGH GOVERNMENT BUDGETS, U.N.
DOC. HR/PUB/17/3 (2017).
97. See, e.g., AMNESTY INT'L, supra note 93, at 27.
98. Forman, supra note 94, at 563.
99. Id.
100. Id.
101. Id.
24 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

and cultural rights is the uneasy relationship between the

human rights and development sectors. Efforts to incorporate
human rights principles into international development
programming have encountered a number of challenges. 102
Although "rights-based development" has become a popular
framework, many development projects still result in significant
human rights violations. In the case of the World Bank, major
abuses occurred despite the existence of institutional safeguards
designed to limit the negative consequences of Bank-sponsored
projects. 103 Vandenhole and Gready note that development
agencies and human rights organizations are traditionally seen
to have different relationships with the state. 104 Development
agencies generally view themselves as cooperative partners with
the state, while human rights organizations challenge the state
for its misconduct. 105 The organizational culture of development
agencies also poses a challenge. Technically-minded personnel
focused on quantifiable outcomes may resist adopting a
normative framework, such as human rights. Development
organizations may also lack clear internal accountability
standards for human rights. 106
Despite these persistent challenges, scholars and advocates
are beginning to explore economic, social, and cultural rights in
more depth. For example, as noted supra on pages 6-7, Fukuda-
Parr et al. developed the SERF index in an attempt to measure
states' fulfillment of economic and social rights obligations.
Comparing SERF data to other human rights indicators,
Fukuda-Parr et al. identified some key correlations. First, their
findings confirmed previous research noting a positive

102. In this context, the human rights-based approach pertains to

implementation of international development programs using human rights as
a guiding framework, which is distinct from the right to development as set
forth by the U.N. Declaration on the Right to Development (G.A. Res. 41/128)
and other instruments.
103. See, e.g., AMNESTY INT'L, supra note 93, at 32-33; Sasha Chavkin et al.,
How the World Bank Broke Its Promise to Protect the Poor, INT'L CONSORTIUM
INVESTIGATIVE JOURNALISTS (2015), http://www.icij.org/project/world-
bank/how-world-bank-broke-its-promise-protect-poor; HUMAN RIGHTS WATCH,
ABUSE-FREE DEVELOPMENT: HOW THE WORLD BANK SHOULD SAFEGUARD
AGAINST HUMAN RIGHTS VIOLATIONS (2013), https://www.hrw.org/sites/
default/files/reports/worldbankO7l3_ForUpload.pdf.
104. See, e.g., Wouter Vandenhole & Paul Gready, Failuresand Successes of
Human Rights-Based Approaches to Development: Towards a Change
Perspective, 32 NORDIC J. HUM. RTS. 291 (2014).
105. Id. at 295.
106. Id. at 300-02, 310.
2019] HUMAN RIGHTS CONDITIONS 25

association between democracy and good governance, on the one

hand, and better economic and social rights performance, on the
other. While some authoritarian governments may succeed in
fulfilling their economic and social rights responsibilities, they
are-on the whole-more likely to fail in doing so. 10 7
Additionally, countries with constitutional or other domestic
legal protections for socioeconomic rights performed better on
the SERF index than countries without such measures.1 0 8
Gender equality exhibited the strongest correlation with positive
SERF scores. This observation led Fukuda-Parr et al. to note
that "improved gender equality must necessarily be associated
with the fulfillment of social and economic rights: a society that
excludes half of its population cannot possibly be said to be
fulfilling the rights of all of its members." 109 Although these
scholars found no significant correlation between socioeconomic
rights and human rights treaty ratification, they acknowledged
that their "analysis is constrained by lack of sufficiently nuanced
data." 110 These preliminary findings from the SERF index data
are correlative, but not causal. They do, however, lay important
groundwork for further research.

2. Economic Factors and Repression

Research has yielded insight into the connections between

economic issues and repressive state behavior. In the early study
by Mitchell and McCormick, discussed supra on pages 7-10, the
authors tested what they called "the simple poverty thesis" 111
-
that is, that poorer countries experience more violations. They
found partial support for this theory, noting that there appeared
to be an income threshold at which countries experience a
dramatic decrease in torture and/or political imprisonment. 112
Schmitz and Sikkink summarize two essential points from the
"simple poverty" literature: First, resource scarcity constricts a
government's policy options, making repression a more
appealing choice to maintain power. Secondly, resource-

107. FUKUDA-PARR ET AL., supra note 8, at 131-33.

108. Id. at 140-1.
109. Id. at 147.
110. Id. at 143.
111. Theory advanced by former Secretary of State Robert McNamara, as
quoted in SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES
(1968).
112. See, e.g., McCormick & Mitchell, supra note 9, at 488.
26 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

strapped governments use less-efficient methods of repression,

requiring more frequent and intense application to maintain
control. 113 Some scholars believe the "simple poverty" approach
is incomplete, as it does not examine other factors, such as a
country's distribution of wealth (an issue explored infra on pages
28-31).114
The basis of a country's economy can influence its
government's conduct. For instance, evidence suggests that
states often repress their residents when their economies are
based on extractive industries. 115 DeMeritt and Young studied
the relationship between oil and/or natural gas wealth and
personal integrity rights. They undertook to test the
longstanding theory that countries that rely on fossil fuel for
income and less on their populations as a tax base would
experience more personal integrity rights violations. The
phenomenon occurs, the argument goes, because taxation
requires some form of popular consent, even if minimal; but oil,
natural gas, and other similar resources do not come with this
constraint. 116 Income from oil and gas may also discourage
leaders from developing a public goods infrastructure that would
facilitate the generation and collection of tax revenue, thereby
impeding economic development.11 7
DeMeritt and Young's statistical models yielded a positive
relationship between a state's reliance on oil or natural gas
revenue and its use of repression, even when controlled for a
variety of other potential factors, including higher levels of
democracy. DeMeritt and Young further note that "Since oil
increases repression and recent work has found that repression
increases the likelihood of civil war . . . oil should also have an
indirect impact on civil war onset."118 The authors offer the
caveat that their theory is one of general trends and probability:
"Not all states that repress have oil . . . . Likewise, not all states
with oil will repress [their populations]."119

113. Hans Peter Schmitz & Kathryn Sikkink, InternationalHuman Rights,

in HANDBOOK OF INTERNATIONAL RELATIONS 6 (Walter Carlsnaes et al. eds., 2d
ed. 2013).
114. Id. at 6.
115. Jacqueline H.R. DeMeritt & Joseph K. Young, A Political Economy of
Human Rights: Oil, Natural Gas, and State Incentives to Repress, 30 CONFLICT
MGMT. PEACE SCI. 99, 100, 102 (2013).
116. Id. at 99, 101.
117. Id. at 102.
118. Id. at 114.
119. Id. at 115.
2019] HUMAN RIGHTS CONDITIONS 27

A country's external economic relationships may also affect

its tendency to use coercive measures against its population.
There is substantial debate among scholars on whether free
trade and foreign direct investment improve or worsen human
rights conditions. 120 Many preferential trade agreements include
human rights provisions, but the effectiveness of these terms is
another source of debate; different studies have come to
contradictory conclusions. 121 Structural adjustment policies
advanced by the International Monetary Fund and the World
Bank have been a source of controversy since their introduction
in the 1980s. Structural adjustment required loan recipient
nations to adopt a series of measures designed to shrink and
decentralize governments, ostensibly to facilitate debt service
and economic growth, as well as reduce corruption. These
measures included cutting government social spending,
privatizing state-owned enterprises, and reducing trade
barriers.
In their detailed study of the relationship between human
rights and structural adjustment, Abouharb and Cingranelli
analyzed variables pertaining to 131 countries for the time
period of 1981 to 2003.122 They found that, on the whole, "World
Bank and IMF structural adjustment programs usually cause
increased hardship for the poor, greater civil conflict, and more
repression of human rights, resulting in a lower rate of economic
development." 123 Cuts in social spending and/or the
establishment of user fees for social services mandated by the
adjustment programs rendered access to critical goods and
services, such as healthcare and potable water, unaffordable for
the most needy. 124 The unpopularity of these austerity measures
has often led to protests in the past, which in turn resulted in an
increased likelihood of government repression. Indeed,
Abouharb and Cingranelli observed that "the longer the period
that countries have spent under structural adjustment

120. For a useful summary, see Schmitz and Sikkink, supra note 113, at 6.
121. See, e.g., EMILIE M. HAFNER-BURTON, FORCED TO BE GOOD: WHY
TRADE AGREEMENTS BOOST HUMAN RIGHTS (2009); Tessa Khan, Unfair Trade?
Preferential Trade Agreements, Human Rights and Inequalities, 57 DEV. 423
(2014); Gabriele Spilker & Tobias Bdhmelt, The Impact of Preferential Trade
Agreements on Governmental Repression Revisited, 8 REV. INT. ORGAN. 343
(2013).
122. M. RODWAN ABOUHARB & DAVID L. CINGRANELLI, HUMAN RIGHTS AND
STRUCTURAL ADJUSTMENT 4 (2007).
123. Id.
124. Id. at 4, 11-12. 139-141.
28 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

agreements the worse are levels of government respect for

personal integrity rights." 125
These two scholars also observed, however, that structural
adjustment was associated with notable improvements in
democratic governance and some related civil and political
rights: "Governments involved with structural adjustment the
longest have better-developed democratic institutions. They
have elections that are freer and fairer. Their citizens have more
freedom to form and join organizations, and they have more
freedom of speech and press."1 2 6

3. Economic Inequality and Human Rights

The impact of economic inequality on human rights

conditions is an emerging area of focus. Amnesty International
recently noted that "Gross economic and social inequality is an
enduring reality in countries of all political colours, and all levels
of development. In the midst of plenty, many are still unable to
access even minimum levels of food, water, sanitation,
education, health care and housing." 127 While there are
currently no explicit human rights standards against major
economic disparities, some scholars and practitioners argue that
there is an "implicit obligation" to address income inequality. 128
As Aguilar and Saiz write, "Economic inequality is clearly a
human rights concern where it can be shown to be a cause or
consequence of human rights violations." 12 9 Two principal
reasons why major income disparities are a human rights issue
are: (1) the obligation of States Parties to the Covenant on
Economic, Social and Cultural Rights and other instruments to
promote socioeconomic rights "to the maximum of [their]
available resources;" 130 and (2) the principle of equality and the
prohibition on discrimination based on social status. 131

125. Id. at 137-41, 150, 181.

126. Id. at 5.
127. AMNESTY INT'L, supra note 93, at 13.
128. RADHIKA BALAKRISHNAN ET AL., RETHINKING ECONOMIC POLICY: THE
RADICAL POTENTIAL OF HuMAN RIGHTS 48 (2016).
129. Gaby Or6 Aguilar & Ignacio Saiz, Tackling Inequality as Injustice:Four
Challenges for the Human Rights Agenda, OPEN GLOBAL RTS. (Mar. 30, 2016),
https://www.openglobalrights.org/tackling-inequality-as-injustice-four-
challenges-for-h/.
130. G.A. Res. 2200A (XXI), art. 2(1), International Covenant on Economic,
Social and Cultural Rights (Dec. 16, 1966).
131. See Aguilar & Saiz, supra note 129, at 3.
2019] HUMAN RIGHTS CONDITIONS 29

In regard to available resources, corruption and the

misappropriation of government resources play a key role, as
discussed supra on pages 16-18. International tax law and
policy are another potential source of socioeconomic rights
violations. The simple formulation of this argument is that tax
evasion, including the use of tax havens, diminishes resources
that would otherwise be available to governments to fulfill such
rights obligations as adequate healthcare and education. In its
study of 500 tax treaties signed by African and Asian countries,
ActionAid concluded that low-income countries lose billions of
dollars annually owing to provisions on dividends and interest
payments. Specifically, "[t]reaties that lower-income countries
have with OECD countries ... take away more rights to tax than
those with non-OECD countries. Worryingly, the deals struck
with OECD countries are getting worse over time."1 32 As an
example, ActionAid cites a provision in tax treaties signed by
Bangladesh which causes the country to lose $85 million
annually. 133 This lost revenue could have paid for health services
for 3.4 million people. 134 The International Bar Association has
concluded that countries that facilitate tax evasion, either
domestically or abroad, could be in violation of their
international human rights obligations. 135
Evidence shows that major economic inequality is
associated with negative human rights conditions, especially
with regard to discriminatory social outcomes. 136 Human rights
scholars have turned to economic, sociological, and public health
studies for insight, matching the studies' conclusions with
international human rights obligations. Reviewing studies on
the effects of income inequality, Balakrishnan et al. found that
lower-income persons-and lower-income countries-
experienced worse health conditions and educational outcomes

132. ACTIONAID, MISTREATED: THE TAX TREATIES THAT ARE DEPRIVING THE
WORLD'S POOREST COUNTRIES OF VITAL REVENUE 4 (2016),
http://www.actionaid.org/publications/mistreated-tax-treaties-are-depriving-
worlds-poorest-countries-vital-revenue.
133. Id. at 3.
134. Id. at 3. Calculation based on Bangladesh's per capita health spending
rate at the time of the report's publishing.
135. INT'L BAR ASS'N, TAX ABUSES, POVERTY AND HUMAN RIGHTS: A REPORT
OF THE INTERNATIONAL BAR ASSOCIATION'S HUMAN RIGHTS INSTITUTE TASK
FORCE ON ILLICIT FINANCIAL FLOWS, POVERTY AND HUMAN RIGHTS 149 (2013),
https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=4ACF930-AOD1-
4784-8D09-F588DCDDFEA4.
136. BALAKRISHNAN ET AL., supra note 128, at 39-40.
30 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

relative to their higher income counterparts. 137 MacNaughton's

review of pertinent literature reached similar conclusions,
finding that, not only are health outcomes worse, but also that
violence and discrimination are more prevalent in highly-
unequal societies. 138 Analyzing data on inequality for UNICEF,
Ortiz and Cummins found that "unequal societies, in general,
are much more prone to political instability, or, in other words,
to be destabilized or overthrown by unconstitutional or forceful
means, which includes politically-motivated violence and
terrorism . . . ."139 Reaching a similar conclusion, the UN
Independent Expert on foreign debt and human rights noted
that "[I]f inequality entrenches social cleavages along regional,
religious, racial or ethnic lines, social instability and violent
internal conflict are more frequent." 140
Some theoretical arguments focus on the incentives of the
economic elite in highly-unequal societies. That is, a small elite
with disproportionate wealth is more likely to engage in human
rights abuses to protect their status. The incentive to repress
may be intensified if the elite face strong redistributive demands
from the general population. 141 Landman and Larizza tested a
hypothesis based on this theory: countries with greater
concentrations of income and/or landed wealth are more likely
to abuse civil and political rights. They concluded that "[b]road
patterns of concentration of resources (particularly income),
which some would see as violating the notion of the 'progressive
realization' of economic and social rights, are related to patterns
of abuse of personal integrity rights." 142 Although Landman and
Larizza found that higher levels of democracy and economic
development mitigate abuses to some degree, they concluded
that "[O]ur results demonstrate that politically inclusive

137. Id. at 32, 39-40.

138. Gillian MacNaughton, Beyond a Minimum Threshold: The Right to
Social Equality, in THE STATE OF ECONOMIC AND SOCIAL RIGHTS: A GLOBAL
OVERVIEW 271, 287-89 (Lanse Minkler ed., 2013).
139. Isabel Ortiz & Matthew Cummins, Global Inequality: Beyond the
Bottom Billion 35 (Apr. 2011) (Working Paper) (on file with the UNICEF Dept.
of Pol'y & Prac.), https://www.unicef.org/socialpolicy/files/Global Inequality
REVISED_-_5_July.pdf.
140. Human Rights Council, Rep. of the Indep. Expert on the Effects of
Foreign Debt and Other Related Int'l Fin. Obligations of St. on the Full
Enjoyment of Human Rights, Particularly Econ., Soc. and Cultural Rights, ¶
21, U.N. Doc. A/HRC/31/60 (2016).
141. Todd Landman & Marco Larizza, Inequality and Human Rights: Who
Controls What, When, and How, 53 INT'L STUD. Q. 715, 718-19 (2009).
142. Id. at 731.
2019] HUMAN RIGHTS CONDITIONS 31

institutions (in the form of democratic regimes) might not be

sufficient to prevent rights abuses. Governments also need to
pursue the realization of economically inclusive
institutions . . . ."143

D. PSYCHOLOGICAL FACTORS

The complex institutions and relationships that comprise

governments and the global economy can make it easy to forget
that each violation of human rights is a very personal event for
victims, perpetrators, and bystanders. By shifting one's focus to
the individual human beings involved in a given human rights
abuse, new kinds of questions emerge. What factors motivate
people to obey authority? What factors convince people to harm
others for political or social ends? How do governments or other
organizations use these factors to mobilize enough people to
carry out large-scale repression? Conversely, what motivates
people to overcome prejudice or resist violent behavior? Why do
people often support pluralistic worldviews, including universal
human rights?

1. Authority

Sociologist Max Weber once wrote that individuals conduct

their social affairs and relationships according to their
perception of "legitimate authority." 144 Individuals may accept
this authority for a variety of reasons. They may identify
personally with authority figures; they may feel a sense of duty
to a greater whole; they may share ideological or religious beliefs
with leaders; or they may obey an authority out of simple self-
interest. 145 In the generation following World War II and the
Holocaust, scholars of social psychology carried out studies to
test the conditions in which ostensibly ordinary, "good" people
might commit acts that violate their moral aversion to harming
others. The most well known of these studies are Milgram's
studies of obedience and Zimbardo's Stanford Prison
Experiment.
In 1961, social psychologist Stanley Milgram started a

143. Id.
144. MAX WEBER, BASIC CONCEPTS IN SOCIOLOGY 71 (H.P. Secher trans.,
1962).
145. Id. at 75.
32 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

series of experiments at Yale University designed to test

"destructive obedience." 146 These initial experiments involved
male subjects from a variety of occupations. 147 The subjects were
told that the purpose was to study the effects of physical
punishment on memory. Each test involved an experimenter,
one subject, and an accomplice (whom the subject believed to be
another subject). In a rigged drawing, the subject was assigned
to play the role of "teacher" and the accomplice was given the
role of "learner." The learner was connected to a shock generator
and the subject was instructed to conduct memory tests with the
learner. If the learner answered a question incorrectly, the
subject administered an electrical shock. For each error, the
experimenter directed the subject to increase the shock intensity
by one step, even when the voltage reached dangerous levels.
The subjects were only informed of the true nature of the
experiment afterwards. 148 The learner was an actor who was not
actually receiving any shocks. 149
Milgram repeated the same essential scenario with varying
proximity and levels of contact between subject and learner.
Throughout the tests, subjects exhibited considerable physical
signs of stress, at times verbally rejecting the experiment.
Subjects' protests, however, often did not affect their compliance
with the demands of the experimenter.1 5 0 Milgram expressed
surprise at the high level of obedience by subjects in the first
experiment.15 1 In 1974, Milgram repeated his experiments with
female subjects and obtained a rate of obedience nearly identical
to his first all-male experiments. 152
Milgram noted that obedience to the experimenter's
demands was lower when the learner and subject were closer
together.153 Milgram suggested several possible reasons for this
result. For example, the subject may feel less shame and guilt

146. See Stanley Milgram, Behavioral Study of Obedience, 67 J. ABNORMAL

& SOC. PSYCHOL. 371 (1963) [hereinafter Milgram, Behavioral Study]; Stanley
Milgram, Some Conditionsof Obedience and Disobedience to Authority, 10 HUM.
REL. 57 (1965) [hereinafter Milgram, Some Conditions].
147. Milgram, Behavioral Study, supra note 146, at 372; Milgram, Some
Conditions, supra note 146, at 59.
148. Milgram, BehavioralStudy, supra note 146, at 373-74; Milgram, Some
Conditions, supra note 146, at 59-60.
149. Milgram, BehavioralStudy, supra note 146, at 373.
150. Id. at 375-76.
151. Id. at 376.
152. Milgram, Some Conditions, supra note 146, at 71.
153. Milgram, BehavioralStudy, supra note 146, at 376.
2019] HUMAN RIGHTS CONDITIONS 33
154
about his action when he cannot see the victim. Milgram also
considered the scientific and institutional authority of the
experimenter to carry significant implications, writing, "if in this
study an anonymous experimenter could successfully command
adults to subdue a fifty-year-old man, and force on him painful
electric shocks against his protests, one can only wonder what
government, with its vastly greater authority and prestige, can
command of its subjects." 15 5
In 1971, Professor Philip Zimbardo at Stanford University
established a mock prison in which subjects were to be split into
guard and prisoner groups for a duration of two weeks. 15 6 The
goal of the experiment was to explore interpersonal dynamics in
a context of confinement. After six days, however, the exercise
was terminated as the guards degraded and brutalized the
prisoners. None of the participants in the study had shown any
particular signs of aggression or cruelty in their pre-experiment
assessments. As in the case of Milgram's studies, Zimbardo and
his colleagues had not predicted the level and intensity of
deteriorating conditions in the mock prison.
It should be noted that the nature and execution of
Milgram's and Zimbardo's experiments generated some
controversy among colleagues and observers. For example, in
her response to one of Milgram's early studies, Baumrind
criticized the initial deception of subjects as a fundamental
violation of trust that could harm them psychologically by
making them think they had injured someone. Furthermore, she
argued that the laboratory setting was not an appropriate venue
to truly test obedience to authority because subjects entered the
experiment with a pre-existing deference to and dependence on
the scientific knowledge of the experimenter. 157 The Stanford
Prison Experiment also raised serious ethical questions on the
treatment of subjects. Professor Zimbardo participated directly

154. Id. at 62-65.

155. Id. at 75.
156. See Philip Zimbardo, On the Ethics of Intervention in Human
Psychological Research: With Special Reference to the Stanford Prison
Experiment, 2 COGNITION 243 (1973).
157. See Diana Baumrind, Some Thoughts on Ethics of Research: After
Reading Milgram's "Behavioral Study of Obedience", 19 AM. PSYCHOLOGIST
421-23 (1964). Milgram dismissed Baumrind's concerns, asserting that subjects
showed no signs of trauma in follow-up. Furthermore, Milgram argued that the
laboratory environment was appropriate precisely because it was a context in
which deference to authority occurred, much like a military setting. See also
Stanley Milgram, Issues in the Study of Obedience: A Reply to Baumrind, 19
Am. PSYCHOLOGIST 848 (1964).
34 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

in the experiment as Prison Superintendant. In this role, he

urged the guards to create an environment that stripped
prisoners of their individuality and made them feel powerless:
"[T]o the extent that the guards did become brutal, it could be
argued that this was due more to the intervention of
Zimbardo ... than to their inherent psychology." 15 8
The central theme emerging from the work of both Milgram
and Zimbardo is that the role or position of individuals in a
hierarchical power structure will determine their behavior and
can lead to brutality in deference to authority. This "group role"
argument has been challenged as incomplete by proponents of
social identity theory. Rather than behavior being dictated
purely by institutional position, Haslam and Reicher argue that
"people do not take on group roles uncritically but do so only
after they have internalised them as part of a social identity that
is shared with other people." 159 In reviewing Zimbardo's writings
on the Stanford Prison Experiment, Haslam and Reicher contest
his account of a situation in which the assigned roles of guard
and prisoner inevitably led to cruelty. They argue that Zimbardo
glossed over instances in which the guards resisted
encouragement to be brutal. Furthermore, as noted supra,
Zimbardo himself assumed the role of Superintendent of the
mock prison and issued instructions to the guards, influencing
significantly the behavior of his own subjects. 16 0 As a result of
this intervention, Haslam and Reicher argue that the Stanford
Prison Experiment "provides limited insight into the way in
which tyranny emerges as part of a social process that develops
over time."11

158. Alex Haslam & Steve Reicher, A Tale of Two Prison Experiments:
Beyond a Role-based Explanation of Tyranny, 9 PSYCHOL. REV. 2 (2003).
Elaborating further on Zimbardo's influence, Haslam and Reicher wrote,
On the one hand, the quashing of the prisoners' resistance and their
subsequent passivity owes much to the fact that Zimbardo encouraged
the prisoners to believe that they could not leave the prison. On the
other, any brutality displayed by the guards can be seen to have
followed directly from the instructions that Zimbardo provided . . . . Id.
159. Id. at 3.
160. Id. at 2. After reprinting of some of Zimbardo's instructions to the
guards, Haslam and Reicher add, "Note that Zimbardo clearly sanctions
oppressive treatment of the prisoners and, on top of this, he entreats the guards
to act in terms of the group of which he is the leader ('we're going to take away
their individuality', 'we'll have all the power'). At the very least, the leadership
of Zimbardo represents a serious confound in the study, which calls into
question the internal validity of his analysis."
161. Id. at 5.
2019] HUMAN RIGHTS CONDITIONS 35

In the early 2000s, Haslam and Reicher carried out another

prison experiment similar to Zimbardo's, but with some key
differences. 162 First, they took no formal role in the mock prison.
Another significant difference was the possibility of social
mobility at the outset-i.e., a prisoner could become a guard.
Later on, they found that when social mobility was eliminated,
the prisoners developed a stronger sense of shared social
identity. When an industrial relations specialist was introduced
into the prisoner group, the prisoners challenged the existing
power structure, which eventually led to the negotiated
establishment of a more equitable commune. Faced with
difficulties in maintaining order, however, many subjects
favored reverting to a hierarchical structure toward the end of
the experiment. This development did not emerge from role-
based behavior, Haslam and Reicher argued, but rather from the
subversion of roles caused by the emergence of evolving identity-
based group dynamics over the course of the study. 163

2. Group Identity

People naturally tend to divide the world into groups, based

on even minimal similarities. 164 Staub studied this tendency and
its effects. 165 He refers to the idea of preferring similar people as
establishing "ingroups." Staub writes that "People have a need
to maintain their understanding of the world, or to create new
understanding ... .They need to defend their personal and
societal self-concepts, and under extreme conditions to defend
their survival. Many of these needs can be satisfied by
experiencing a sense of identity with a group of people . . . ."166
People see others as similar and part of their "ingroup" or,
conversely, as members of an "outgroup." Socialization
contributes to the differentiation between groups and to the
devaluation of individuals belonging to "outgroups." 167 In
extreme cases, outgroups are characterized as sub-human or

162. The experiment was filmed and broadcast as a documentary for the
BBC. BBC, The Experiment, YOUTUBE (July 18, 2016),
https://www.youtube.com/watch?v=frMMrkJVnUQ.
163. Haslam and Reicher, supra note 158, at 4.
164. See Ervin Staub, The Psychology of Perpetratorsand Bystanders, 6 POL.
PSYCHOL. 61 (1985).
165. Id.
166. Id. at 80.
167. Id. at 65.
36 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

even vermin.
McDoom identifies a key source of prejudicial attitudes as
fear resulting from a perceived threat. 168 Such threats can be
material (e.g., threats to wealth, power, or security) or symbolic
(e.g., threats to values, beliefs, or group norms). He identifies
four key psycho-social aspects of group conflict: (1) "Boundary
activation"-as the threat grows, ingroup and outgroup
distinctions increase in importance; (2) "Outgroup negativity"-
as the threat increases, so does the devaluation of the outgroup;
(3) "Outgroup homogenization"-members of the outgroup are
no longer viewed as individuals; and (4) "Ingroup solidarity"-
the demand for ingroup loyalty increases with the level of
threat.169
Although these conditions are necessary for intergroup
violence, they are not sufficient. Rather, "while group emotions
lead to polarized attitudes, it is material or structural
opportunities that mediate whether these emotions are
expressed as violence."1 70 In other words, it is when the
devaluation of the outgroup is paired with certain structural and
social conditions-such as economic desperation or concentrated
authority-that it can lead to mass violence. As Staub argues,
difficult life conditions get blamed on outgroups, making them
the embodiment of threat to ingroups. 171 Outgroups thus serve
as convenient scapegoats for the misfortunes of ingroups.
Outgroups are made to seem dangerous and therefore become
legitimate targets of violence in the name of defending the
ingroup.
The ways in which this dynamic played out in Nazi
Germany are well-documented. 172 The somewhat more-recent
Rwandan genocide also offers a salient example. In colonial
Rwanda, the Belgian administration cemented a historical,
psychological split between the Hutu and the Tutsi ethnic
groups. Starting in 1931, for example, Rwandan identity cards
identified the ethnicity of the bearer, a practice which continued

168. See Omar Shahabudin McDoom, The Psychology of Threat in Intergroup

Conflict: Emotions, Rationality, and Opportunity in the Rwandan Genocide, 37
INT'L. SEC. 119, 129, 154 (2012).
169. Id. at 122, 131.
170. Id. at 121.
171. Staub, supra note 164, at 63.
172. See, e.g., ROBERT JAY LIFTON, THE NAZI DOCTORS: MEDICAL KILLING
AND THE PSYCHOLOGY OF GENOCIDE (1986); ERVIN STAUB, THE ROOTS OF EVIL:
THE ORIGINS OF GENOCIDE AND OTHER GROUP VIOLENCE (1989); Staub, supra
note 164, at 63.
2019] HUMAN RIGHTS CONDITIONS 37

through independence and up until the genocide in 1994. The

Belgian administration also cultivated the belief that the Tutsi
were a superior race to the Hutu, descended from an ancient
conquering tribe. As such, members of the Tutsi minority were
more often placed in positions of prestige or authority in the
colonial era. Conversely, Hutus, despite making up the
overwhelming majority of the population, were largely excluded
from socio-economic opportunities and authority.
At the time of independence, however, the Tutsis lost this
privileged colonial-era status and subsequent Hutu nationalist
governments stripped them of power. As Hatzfeld wrote,
"Having conflated the once-privileged Tutsi aristocrat with the
hardworking Tutsi peasant, the populist Hutu administration
depicted all Tutsis as scheming, treacherous speculators and
parasites in an overpopulated country."1 73 Throughout the post-
independence period, Tutsis were subject to periodic massacres
and discriminatory laws. 174 In 1990, the outbreak of civil war
intensified anti-Tutsi sentiment: "[W]hile the attacking Tutsi
rebels were gaining ground, speeches at Rwandan political
meetings, notably at rallies held by the party of President
Habyarimana and his ministers, consisted almost entirely of
threats made against Tutsis."1 7 5 After Habyarimana's
assassination in April 1994, Hutu extremists executed a plan to
eliminate the Tutsi population altogether, deploying security
forces to coordinate mass murder among the populace.
Estimates vary, but 800,000 killed is an oft-quoted number. 176
Hutu extremists also hunted down and killed many Hutus who
sheltered or otherwise aided Tutsis during the civil war.
McDoom identifies critical aspects of ethnic identity in
Rwanda leading up to the genocide, namely: (1) The social
construction of "Hutu" and "Tutsi" identity over time; and (2)

173. JEAN HATZFELD, MACHETE SEASON: THE KILLERS IN RWANDA SPEAK 54

(Linda Coverdale trans., Picador 2006) (2003).
174. Id. at 54-56.
175. Id. at 55.
176. Numbers tend to vary, with low estimates at 500,000 and larger ones
at 1,000,000; accurate estimation has proven difficult for a variety of reasons,
mainly stemming from (1) a lack of data and (2) the questionable accuracy of
existing data. Many major sources tend to settle on the 800,000 figure. See, e.g.,
The World Still Failingto Act Despite Rwanda Genocide Shame, AMNESTY INT'L
(Apr. 4, 2014), https://www.amnesty.org/en/latest/news/2014/04/world-still-
failing-act-despite-rwanda-genocide-shame/; Jina Moore, Rwanda Accuses
France of Complicity in 1994 Genocide, N.Y. TIMES (Dec. 13, 2017),
https://www.nytimes.com/2017/12/13/world/africa/rwanda-france-
genocide.html.
38 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

The use of ethnicity by political elites as a political and social

device. It was not until the civil war and the assassination of the
president-i.e., an elevated situation of threat-that group
division in Rwanda led to extermination-level violence.17 7
Propaganda played a crucial role in solidifying ingroup and
outgroup identity before and during the genocide. Radio
broadcasts labeled Tutsis as "cockroaches," characterizing them
as an inhuman infestation.
The concept of purity is an important element of the twisted
logic of genocidal violence. By ridding society of the outgroup,
the ingroup eliminates a key source of its misfortune and thus
"purifies" itself. Dawes explains this mentality: "If a culture can
successfully cultivate all-or-nothing, polar thinking, it can divide
the world into the pure and impure. The impure deserve injury
not only because their impurity is inherently disgusting, but also
because it threatens to contaminate the community of the
pure."1 78 In this sense, the outgroup is dehumanized to brutal
effect; eradicating it becomes a medical act-like disinfecting a
wound or administering an antidote-to promote the health of
the ingroup. As Lifton observed in regard to the Holocaust, "Nazi
perpetrators had to see their victims as posing absolute danger,
as 'infecting' the 'German national body,' and as (in the last three
words of Hitler's testament) 'deadly Jewish poison' . . . .[T]he
general danger of 'inner Judaization' and 'racial pollution' was
perceived as a fundamental threat to German biological and
biosocial continuity and immortality."1 79 Similarly, Hatzfeld
remarked on how purity during the Rwandan genocide was
construed in agricultural terms: "In the rural land of Rwanda,
genocide was meant to purify the earth, to cleanse it of its
cockroach farmers."1o

3. Socialization

Ingrouping and outgrouping are essential components in the

production of perpetrators of mass atrocity. In many cases,
scholars have noted that perpetrators are not only socialized to
accept extreme violence, but also to view themselves as
defenders of the ingroup. In his book on Japanese war criminals

177. McDoom, supra note 168, at 135-36.

178. JAMES DAWES, EVIL MEN 63 (2013).
179. ROBERT JAY LIFTON, THE NAZI DOCTORS: MEDICAL KILLING AND THE
PSYCHOLOGY OF GENOCIDE 476-77 (1986).
180. HATZFELD, supra note 173, at 70.
2019] HUMAN RIGHTS CONDITIONS 39

convicted following World War II, Dawes sums up how scholars

understand the use of group identity to methodically construct
the roles, institutions, and conceptions of the other that drive
mass violence:

Today, most scholars trace genocidal behavior to

organizational identity, social context, and national
ideologies, rather than individual personalities ....

So what do political movements need to make the

monsters they need?

First, everybody agrees, you must put them in a

group ....

Group membership can promote not only

deindividuation, in which the moral self is
psychologically submerged [in a collective], but also what
might be called intra-individuation, in which the moral
self is psychically subdivided . . . In other words, with
deindividuation your relationship to yourself is mediated
through your collectivized identity; with intra-
individuation your relationship to others is mediated
through your specialized social role. The other becomes
an abstraction ....

The existence of roles demanding antisocial behavior, of

course, is not enough. Such roles are usually self-
limiting. Law provides minimal authorization, and
personality provides maximal resistance. Both say: Go
only this far. To make war criminals ... you need the
opposite combination: maximal authorization and
minimal personality.

But making monsters isn't only a matter of conditioning;

it's also a matter of narrative. Commonly among
unrepentant war criminals, you will see a grandiose self-
pity that helps them to preserve a sense of self: I bore the
burden of having to do these things. [Psychiatrist] Robert
Jay Lifton saw this narrative template in the Nazi
doctors at Auschwitz . . . Such self-absolution, in
Germany and elsewhere, is made possible by the stories
of historical mission and utopian possibility provided by
40 MINNESOTA JOURNAL OFINT'L LAW [Vol. 28:1

charismatic leaders. 181

Gibson and Haritos-Fatouros' landmark study of torturers

in the Greek Army (1967-74) paints a telling picture of the
complex interplay of obedience to authority and group
identity. 182 Torture did not come naturally to Greek military
recruits, but was a product of forced obedience to authority and
desensitization to violence. Before being drafted into the
military, the men that Gibson and Haritos-Fatouros studied had
no record of violence. Trainers used brutality toward the recruits
themselves to accustom them gradually to casual violence. 183 To
encourage obedience, the men were physically beaten, verbally
abused, and forced to swear loyalty to the military
government. 184 Next, trainers forced the men to watch while
prisoners were tortured. 185 Finally, the recruits participated in
and administered beatings and other methods of torture to
prisoners.1 86
When soldiers followed orders, including carrying out
torture, their commanders would relax the rules of conduct to
positively reinforce soldiers' behavior.1 87 Disobedience, however,
brought harassment, punishment, and intimidation. 188 Strict
obedience and desensitization were closely tied to the production
of group identity among soldiers in the Greek Army Police Corps
(ESA), the elite military unit on which the study focused. "While
being harassed and beaten by their officers," Gibson and
Haritous-Fatouros wrote, "servicemen were repeatedly told how
fortunate they were to have joined the ESA, the . . . most
important support of the regime ... .In-group language helped
the men to develop elitist attitudes . .. .Gradually, the recruits
came to speak of all people who were not in their group, parents
189
and families included, as belonging to the 'outside world."'
In her study of wartime sexual violence, mentioned supra on

181. DAWES, supra note 178, at 46, 52-56.

182. See Janice T. Gibson & Mika Haritos-Fatouros, The Education of a
Torturer, 20 PSYCHOL. TODAY 50 (1986).
183. Id. at 52, 56-57.
184. Id. at 52.
185. Id. at 56-57.
186. Id. at 57.
187. Id. at 56.
188. Id. at 57 (noting that Gibson and Haritos-Fatouros interviewed many
U.S. service members and found that similar training methods were used both
in the Marines Corps and in the Green Berets).
189. Id. at 52, 56.
2019] HUMAN RIGHTS CONDITIONS 41

pages 19-20, Cohen uncovered a similar dynamic. She explored

why some militaries and insurgent groups chronically rape but
others do not. While identifying state weakness and "lootable
resources" as significant contributing factors, Cohen found
strong evidence suggesting that the recruiting mechanism used
by armed groups is a decisive factor in whether their agents will
commit rape. 190 Specifically, her study found that members of
groups that used extreme forms of forcible recruitment tended
to rape far more often than groups using less coercive
methods. 191 In these situations, rape becomes a way to promote
social cohesion among abducted recruits with no preexisting
social ties to each other. Participation in violent and public acts
together, such as gang rape, is used to form such ties. 192 Cohen
concludes, "Reports of abduction by armed groups may serve as
an early warning sign of an escalating threat of wartime rape.
Such a threat may be especially acute under conditions of state
collapse and the presence of lootable resources."1 93
While exclusionary ideologies provide the foundation for
atrocities, their mass perpetration involves their conversion into
routine. Hannah Arendt's famous coverage of the 1961 trial of
Nazi leader Adolf Eichmann explores this issue. Eichmann
coordinated logistics for mass deportations of Jews and others to
Nazi death camps during the Second World War. Despite his
participation in the Holocaust, Eichmann did not strike Arendt
as particularly cruel or remarkable in any other way. In his
bureaucratic role, he represented what Arendt referred to as
"the banality of evil," meaning that the commission of mass
atrocities (and Eichmann's role therein) became a routinized
daily affair, accompanied by its own euphemistic language: "This
'objective' attitude-talking about concentration camps in terms
of 'administration' and about extermination camps in terms of
'economy'-was typical of the S.S. mentality and something that
Eichmann, at the trial, was still very proud of."194
Although some later scholarship calls into question
Eichmann's "ordinariness," 195 Arendt's discussion of the

190. Cohen, supra note 82, at 471.

191. Id. at 469, 476.
192. Id. at 464-66.
193. Id. at 476.
194. HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE
BANALITY OF EVIL 62-63 (1963).
195. See, e.g., DAVID CESARANI, BECOMING EICHMANN: RETHINKING THE
LIFE, CRIMES, AND TRIAL OF A "DESK MURDERER" (2006); BETTINA STANGNETH,
EICHMANN BEFORE JERUSALEM: THE UNEXAMINED LIFE OF A MASS MURDERER
42 MINNESOTA JOURNAL OFINT'L LAW [Vol. 28:1

routinization of atrocity still carries validity. In Hatzfeld's

interviews with perpetrators of the Rwandan genocide, for
example, one man, Ignace, described how his gang became numb
to the horrors they inflicted: "At the beginning we were too fired
up to think. Later on we were too used to it. In our condition, it
meant nothing to us to think we were busy cutting our neighbors
down to the last one. It became a goes-without-saying." 196 The
use of institutions to normalize this violence is a key factor as
well. As Dawes observes, "[F]or violence to be extensive over
space and durable over time, it needs many concentric rings of
support ... .You need the workers and bureaucrats who
maintain the institutions that produce the violence."1 97 Many of
Hatzfeld's interviewees explained how low-level officials
organized locals into gangs and set the routine for killing. 198 One
perpetrator, Pancrace, described it as follows: "[W]e went up to
the soccer field around nine or ten o'clock. The leaders would
grumble about latecomers, and we would go off on the attack.
Rule number one was to kill. There was no rule number two. It
was an organization without complications."1 99

III. CHALLENGES IN HUMAN RIGHTS RESEARCH

Studies of human rights have been generally one of two

types: qualitative or quantitative. Although there are studies
that combine the two types, real differences often exist between
scholars who focus more on one set of methods or another. 200
Qualitative research tends to focus on either case studies of
particular countries or human rights situations (and in some
cases both). Quantitative studies use statistical methods to
study trends in human rights violations over time and to
calculate probabilities. Hafner-Burton and Ron have noted that,
in general, qualitative case studies tend toward more positive
assessments of the effectiveness of international human rights
instruments, while statistical studies are less optimistic. They
suggest that these distinctions are attributable not only to
methodological differences, but also to disparate core
assumptions, noting that "the gap between qualitative and

(Ruth Martin trans., Vintage 2014) (2011).

196. HATZFELD, supra note 173, at 47.
197. DAWES, supra note 178, at 71.
198. HATZFELD, supra note 173, at 10-16.
199. Id. at 10.
200. Hafner-Burton & Ron, supra note 5, at 363, 391.
2019] HUMAN RIGHTS CONDITIONS 43

quantitative researchers is so wide that many liken it to a

1
religious or cultural divide." 20
Quantitative analysis is viewed by some scholars and
practitioners as a way to develop standardized measures of
human rights. 202 Public audiences often view numbers as
objectively truthful and endow statistics with greater authority
than more subjective statements. Statistical measurements,
however, usually come with qualifications. As Human Rights
Watch analyst Brian Root explains, "When human rights
organizations publish figures, even with caveats on limitations,
the public will often interpret these figures as facts." 203 Root
cautions that "What must be asked of any dataset is, 'Why were
204
data recorded, and why would other data have been missed?"'
In the human rights context, then, quantitative indicators may
offer a less complete picture than might generally be assumed.
Sikkink discusses how one key function of human rights work is
to render "invisible harms" (such as torture or domestic violence)
visible, which poses a key challenge: "Most invisible harms are
'invisible by design'-that is, the perpetrators take steps to avoid
detection. Because of that [issue], we can't measure these human
rights violations, only reports of them. For example, when
academics are coding Amnesty International reports, they
produce a data set of Amnesty International alleged violations,
20
'not a census of actual violations.' 5
When drawing causal conclusions about human rights,
scholars and practitioners should beware of information effects,
defined as "patterns in the data stemming from the process of
information collection and interpretation, rather than the
process that actually gives rise to human rights violations or
their mitigation." 206 In regard to quantitative indices, these
information effects can bias the results of statistical analysis.
For example, the U.S. State Department and Amnesty
International may have difficulty obtaining verifiable

201. Id. at 363.

202. Yasmine Ergas, Human Rights Impact: Developing an Agenda for
Interdisciplinary, International Research, 1 J. HUM. RTS. PRACT. 459, 461
(2009).
203. Brian Root, Statistics and Data in Human Rights Research, 107 AM.
SOC'Y INT'L L. PROC. 65, 66 (2013).
204. Id.
205. SIKKINK, supra note 32, at 159.
206. Ann Marie Clark & Kathryn Sikkink, Information Effects and Human
Rights Data:Is the Good News about Increased Human Rights Information Bad
News for Human Rights Measures, 35 HUM. RTS. Q. 539, 540 (2013).
44 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

information from a country where major human rights abuses

are occurring. This lack of information will affect the resulting
reports, which will, in turn, affect how researchers code human
rights conditions for a particular country into the PTS or CIRI
scales.
When the tools and methods for gathering information
improve over time, this change can produce inconsistencies in
the source material for statistical studies. Better reporting
capacity can result in an "information paradox"-that is,
something can appear to occur more often or with more intensity
over time if it is monitored more effectively than before. 207 In an
epidemiological context, for example, the introduction of a more
accurate method for diagnosing a given disease may result in
more documented cases and, accordingly, an increase in the
reported infection rate. At face value, the data would give the
impression of a worsening health situation. It may simply be,
however, that current conditions are no different than previous
conditions, or perhaps have even improved. If this scenario is
true, then all that has really changed is the enhanced capability
to diagnose cases of the disease. Similarly, if local NGOs in a
given country augment their capacity to collect information on
human rights abuses by, for instance, hiring more staff to
conduct more frequent fact-finding interviews, the NGOs may
uncover more violations than previously known. This
observation may be due to better reporting by the NGOs and
may not necessarily be indicative of a deteriorating situation.
NGOs may then unintentionally depict a worsening human
rights situation in their publicity and outreach.
"Attention bias" can have a similar effect: if the human
rights situation in a given country becomes grave, it may attract
more focus from human rights advocates and journalists than
before the crisis. Even after the crisis abates, the subsequent
elevated scrutiny may uncover more human rights violations
than were observed-or observable-before. 208 Clark and
Sikkink noted that even when real improvements occur,
countries rated at high levels of repression in PTS and CIRI tend
209
to keep those ratings over time.
Changes in the nature of the source material itself may also
affect the reliability of statistical analysis. For example, a

207. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND

BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 194 (1998).
208. Clark & Sikkink, supra note 206, at 558.
209. Hafner-Burton & Ron, supra note 5, at 382-83.
2019] HUMAN RIGHTS CONDITIONS 45

congressional audit of U.S. State Department reports from the

early 1980s found that the reports were more lenient toward
U.S.-allied violators in several countries as a result of pressure
from the Reagan administration. The reports became less biased
as time passed, however, which also affected PTS and CIRI
coding. 210 Standards of what constitute "severe violations" have
also changed; what may have counted as a moderate human
rights violation in the 1970s may be viewed as severe by current
standards. These and other information effects may lead
quantitative indices like PTS and CIRI to reflect a more
pessimistic view of human rights conditions than may be
warranted. 2 11
This latter factor may be at work in studies of repression
associated with the democratization process, as discussed supra
on pages 11-14. In some notable cases, there is an apparent
disjuncture in the data between state behavior and state
structure. Ron and Hafner-Burton observe that "political
democracy and the human rights behavior of individual states
are not identical, and the quantitative measures of each are not
highly correlated." 2 12 They note that this phenomenon may be
partially explained by information effects: "There may . .. be
more reportsof abuse from countries that are in fact less abusive,
since the less repressive countries often have a freer press."2 13
As Sikkink writes, "Increased information and higher standards
are both good news for human rights victims, but they can be
bad news for data sets and measurement, which try to compare
numbers about human rights over time."2 14
It should also be remembered that the conclusions of
quantitative studies are general and probabilistic in nature,
rather than true in every instance. Quantitative studies may
identify the degree to which social or politicalfactor A influences
the likelihood of human rights violation B, but it does not follow
that violation B will always occur when factor A is present.
Qualitative evidence and analysis can often detect contextual
improvements in human rights conditions in ways that
statistical methods may miss. For example, Clark and Sikkink
found that the CIRI ratings for Guatemala were the same in
1982-83 as in 1990. Other evidence, however, including the

210. Clark & Sikkink, supra note 206, at 553.

211. Id. at 543, 568.
212. Hafner-Burton & Ron, supra note 5, at 383.
213. Id.
214. SIKKINK, supra note 32, at 168.
46 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

Guatemalan Truth Commission (1997-99) report, indicates that

lethal government repression peaked in 1982-83. In 1982, there
were well over 17,000 deaths and disappearances, compared to
598 in 1990. So while personal integrity violations still occurred
in Guatemala in 1990, they were less severe and widespread
than in the early 1980s.215
Even taking these information effects into account,
however, quantitative studies can still yield instructive and
useful results that enhance understanding of human rights
conditions. Qualitative studies can provide crucial context,
nuance, understanding, and additional evidence that may not be
adequately captured by statistics. Qualitative studies vary
greatly in scope and focus, however. They often lack
standardized methods of observation and analysis, making
comparative work more difficult. 2 16 Comparative work can be
difficult between statistical studies also, depending on what
information gaps exist in the data sets in question. For example,
some governments may be able and willing to collect better data
than others. This more complete information may make it
appear that human rights violations are more prevalent in those
countries. The problem may be worse in other countries that do
not collect relevant figures-or at least not as thoroughly-but
the lack of data makes it difficult to demonstrate by statistical
means.217
Both qualitative and quantitative methods of study have
advantages and limitations. As Sikkink observes, "Some data is
better than no data, but not all sources of data are equal." 2 18 An
accurate view of a given human rights situation is more likely to
emerge from using a variety of information sources and analysis
tools. While recent developments in causal research on human
rights are positive and illuminating, there are still gaps to fill.
As discussed supra on pages 22-25, research on violations of
economic and social rights lags significantly behind studies on
civil and political rights. Economic and social rights cover some
of the most basic human needs and require further serious study
and analysis.

215. Clark & Sikkink, supra note 206, at 557-58.

216. Hafner-Burton & Ron, supra note 5, at 382.
217. See SIKKINK, supra note 32, at 157 (demonstrating this issue with UN
data on global sexual violence).
218. Id. at 178.
2019] HUMAN RIGHTS CONDITIONS 47

IV. INTERNATIONAL NORM DYNAMICS

After examining principal causes of human rights violations

and compliance, it is useful to examine how governments
internalize international human rights norms. This issue is a
political one as much as it is a legal one. It is one thing for a
government to sign and ratify a treaty and quite another to make
a sincere effort to uphold treaty obligations. Indeed, the
traditional "international relations" model posits one
government of a sovereign nation-state negotiating in some way
with one or more other governments. These governments
interact mainly on security or trade issues between them.
Concern over the internal affairs of another country is not a
significant factor in this traditional model. Yet the modern
backdrop is more complicated. In the decades following World
War II, international leaders increasingly challenged the notion
that governments have exclusive sovereignty over what happens
within their borders. Since then, most countries in the world
have signed on to at least one human rights treaty, signaling a
public agreement to have their internal conduct scrutinized by
external actors. The relatively recent proliferation of human
rights NGOs and other non-state actors has prompted a body of
scholarship which attempts to discern how these international
norms influence state behavior.
In their seminal work, ACTIVISTS BEYOND BORDERS:
ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998),
Margaret Keck and Kathyrn Sikkink described the growth and
impact of transnational NGO coalitions on state and
intergovernmental decision-making. 219 Using the examples of
human rights in Latin America, environmental policy, and
violence against women, the authors describe how advocacy
networks define new global issues and effect change. Human
rights advocates do so by winning commitments from key
individuals in governments and monitoring the implementation
of those commitments. Keck and Sikkink's "Boomerang Pattern"
theory showed how such changes may occur: an NGO in state A
will work with an NGO in state B (or an international NGO) to
change state B's foreign policy with the objective of pressuring
state A to change its domestic practices. Subsequent research
has delved further into the nuances of how states internalize

219. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND

BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS ch. 1 (1998).
48 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

international norms.

A. INTERNATIONAL NORMS AND DOMESTIC POLITICS

In her pioneering study, MOBILIZING FOR HUMAN RIGHTS:

INTERNATIONAL LAW IN DOMESTIC POLITICS (2009), Beth
Simmons explored the answer to the question: "Why would a
government decide to make a commitment to its peers
internationally to behave in certain ways toward its own
citizens?" 220 Different states may join human rights treaties for
different reasons. Often, a state's decision to ratify (or not) is the
product of its political preferences-that is, the ratifying state
genuinely supports the content of the treaty and can bind itself
with relatively low costs for compliance. For example, "States
with strong democratic participation and civil liberties tend to
support treaties that reflect those . . . ideals . . . . Autocratic
regimes have little natural preference for committing
221
themselves to provide expanded rights to their people."
For many states, this conclusion is intuitive enough, but the
picture becomes more complex when governments with
seemingly no predilection for a given treaty's content ratify it
anyway. Simmons labels such governments as "false positives,"
which she defines as "states that ratify international human
rights agreements but apparently without any intention of
trying to come into compliance with their obligations." 222 False
positives appear to be making short-term calculations to deflect
international criticism by signing a treaty, but ratification often
223
has unanticipated-and unintended-domestic consequences.
These domestic effects are particularly strong in countries
where the political system is in a state of flux-that is, neither a
224
strong democracy nor a stable authoritarian government.
Treaties offer domestic advocates an additional legal and
political basis on which to make demands on their
government. 225 Discussing her findings on ratification of the
International Covenant on Civil and Political Rights (ICCPR),
Simmons observed that "[G]overnments' willingness to reduce

220. BETH A. SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL

LAW IN DOMESTIC POLITICS 351 (2009).
221. Id. at 353-54.
222. Id. at 354.
223. Id. at 355.
224. Id. at 360.
225. Id. at 361.
2019] HUMAN RIGHTS CONDITIONS 49

interference in the free practice of religion was associated with

ratification of the ICCPR, but this effect was especially strong in
this large, heterogeneous set of [transitional] countries. Even
more striking, only in these partially democratic or transitioning
countries did the ICCPR have any effect on provisions for a civil
liberty as important as fair trials. Similarly, the [Convention
Against Torture] has had a significantly bigger positive impact
in countries in which democracy has had a tenuous foothold." 226
Simmons notes that ratification also requires states to report to
treating monitoring bodies, to which domestic rights advocates
can submit shadow reports challenging their government's
version of events. 227
International human rights norms influence states in
deeper and subtler ways beyond decisions on treaty ratification.
Elkins, Ginsburg, and Simmons found that the Universal
Declaration of Human Rights and subsequent treaties informed
many of the substantive rights obligations contained in national
constitutions around the world. 228 They observed that certain
core human rights provisions are the most ubiquitous, including
freedoms of expression, religion, and association. 229 Privacy
rights and prohibitions on slavery are also widespread. 230 Not all
constitutions reflect international norms comprehensively,
although the average number of rights contained in
constitutions has increased over time along with the
development of international human rights treaties. 23 1
A large number of constitutions crafted in the years
immediately following 1948 incorporate many provisions of the
Universal Declaration of Human Rights. The Covenant on Civil
and Political Rights and the Convention Against Torture
exhibited similar influence in the time periods surrounding their
drafting or, and sometimes including, entry into force.
"Constitution writers working under the umbrella of
international rights treaties are more likely to pattern their
documents after the international instruments," write Elkins et
al., "but they are even more likely to do so if their country has

226. Id. at 360.

227. Id. at 364.
228. See Zachary Elkins et al., Getting to Rights: Treaty Ratification,
ConstitutionalConvergence, and Human Rights Practice,54 HARV. INT'L L.J. 61
(2013).
229. Id. at 73.
230. Id. at 73-74.
231. Id. at 71.
50 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

ratified the instrument. These findings are consistent with a

view in which international instruments provide a focal set of
norms for constitution makers." 232 The authors argue that
ratification and constitutionalization of rights provisions
improve domestic human rights practices by increasing the
likelihood of enforcement. 233 They found this observation
especially applies where there is greater opportunity for
domestic political action. 234

B. "ACCULTURATION" AND HUMAN RIGHTS

Evidence also suggests that states are motivated to adopt

human rights norms in part because other countries do so, which
Goodman and Jinks call "acculturation." 235 They define
acculturation as "the general process by which actors adopt the
beliefs and behavior patterns of the surrounding culture. More
specifically, this mechanism induces behavioral changes by
pressures to assimilate-some imposed by other actors and some
imposed by the self." 236 This process is distinct from persuasion
in that it operates less explicitly and focuses on the relationship
between norm adopters and other actors, not the content of the
norm itself.2 37 On a global level, states adopt international
norms, including human rights, partly in response to a sort of
macro-level peer pressure-e.g., a state endorses a human rights
norm adopted by other countries with which the state shares
intergovernmental organization membership. Conversely, states
that are more isolated are more likely to eschew global norms. 238
One example of acculturation arises when a country adopts
a norm for which it does not necessarily have a functional
need. 239 An example of this phenomenon is the global norm of
constitutional governance structure. As Goodman and Jinks
write,

232. Id. at 91-92.

233. Id. at 92.
234. Id. at 64.
235. See RYAN GOODMAN & DEREK JINKS, SOCIALIZING STATES: PROMOTING
HUMAN RIGHTS THROUGH INTERNATIONAL LAW (2013).
236. Id. at 4.
237. Id. at 26.
238. Id. at 46-47, 68-69. One caveat that Goodman and Jinks add is that
acculturation can diffuse both "good" norms, like human rights, and "bad"
norms, such as repressive tactics. Acculturation is a causal process, not an
outcome. Id. at 74, 137.
239. Id. at 43.
2019] HUMAN RIGHTS CONDITIONS 51

A quick survey of the globe shows that national

constitutions exhibit remarkable isomorphism across a
range of rights-related dimensions . . . . Some current
states . . . resemble early Westphalian states more than
they resemble their twenty-first-century counterparts.
Yet almost all current states still elect to have a written
constitution . . . . Nearly every constitution adopted since
the Universal Declaration of Human Rights ... has
contained some set of rights provisions. 2 40

Kathryn Sikkink's groundbreaking study of transitional

justice norms provides a compelling example of regional
acculturation and the interaction between international norms
2 41
and domestic politics. Sikkink charts the spread of the
increasingly prevalent norm that government leaders
responsible for grave human rights violations should be held
criminally accountable for their actions. She observes that Latin
American countries have conducted the bulk of domestic human
rights trials, carrying out 55% of such trials between 1979 and
2009.242 It was Argentina's prosecution of ex-junta leaders in the
1980s that inspired numerous other domestic prosecutions.
Sikkink writes,

[W]hy were the Argentines more successful in diffusing

their model [of transitional justice] than the Greeks or
the Portuguese had been? First, Argentina was operating
in a region where dozens of other countries were
undergoing transition at the same time . . . . Second, the
Argentine human rights movement had inserted itself
more firmly within the consolidating international
movement. 243

V. CONCLUSION

Valuable perspectives on human rights causality come from

a variety of academic disciplines and practical expertise. The
present article has covered many studies, methodological tools,
and sources of data by which to measure and evaluate human

240. Id. at 60-61.

241. See generally KATHRYN SIKKINK, THE JUSTICE CASCADE: How HUMAN
RIGHTS PROSECUTIONS ARE CHANGING WORLD POLITICS (2011).
242. Id. at 21-22.
243. Id. at 88.
52 MINNESOTA JOURNAL OF INT'L LAW [Vol. 28:1

rights conditions. No one study, tool, or dataset is a panacea.

Practitioners and scholars should avail themselves of a large
analytical "toolbox." They should also be discerning, considering
which methods and sources of evidence are most appropriate to
help answer their research questions. Uncritically accepting the
findings of one type of study over others risks blinding scholars
and practitioners to other valuable knowledge. When one only
2 44
has a hammer, everything looks like a nail.
It is worth now revisiting one of this article's introductory
questions: why should scholars and practitioners study the
causes of human rights violations? What is the use in doing so?
To address a complex problem with any success, one must first
understand it. As the introduction argues, knowing the causes
of rights violations can improve responses to and help prevent
such abuses, as well as improve the effectiveness of existing
mechanisms and efforts. Understanding causation shines light
on the conditions in which human rights compliance can thrive.
For example, countries with independent judiciaries tend to
experience less repression, especially when combined with
multiparty elections and limitations on executive power. In this
context, courts can serve as a bulwark against repression by
imposing legal and reputational costs on political authorities
who use excessive force. With this understanding in mind,
human rights leaders can support efforts to strengthen a
country's judicial institutions. Possible actions and policies to
achieve this end include: enacting constitutional protections for
judicial independence and authority; training judges in human
rights norms; mobilizing public pressure on political leaders to
respect court decisions; ensuring all parties to a case have
adequate legal representation; and investing in sufficient
courtroom facilities.
Causal research can inform future investigations and
enhance predictive capabilities, such as the detection of warning
signs of a potential human rights crisis. For example, if a
national leader compares a certain ethnic group within his or
her country to vermin, human rights advocates can identify this
dehumanizing language as a warning sign of a potential violence
toward members of that group. With this understanding,
advocates can examine what additional structural factors-such
as competition for scarce resources-may lead to an outbreak of
mass violence. Human rights leaders can mobilize international

244. ABRAHAM H. MASLOW, THE PSYCHOLOGY OF SCIENCE 15-16 (1966).

2019] HUMAN RIGHTS CONDITIONS 53

pressure to push the government to stop using dehumanizing

language and rescind discriminatory policies. In the long-term,
advocates can encourage governments to address larger
structural factors through equitable socio-economic policies.
While understanding causation is an integral part of
successful human rights advocacy, causal research can also
serve a persuasive function. In the past few years, populist,
nationalist, and authoritarian political forces in the United
States, Europe, the Philippines, and elsewhere, pose a renewed
direct challenge human rights. In the U.S., for example,
President Donald Trump was elected on a nationalist, anti-
immigrant platform, receiving public support from white
supremacist leaders. As a result of such developments, the
human rights movement is put in the position of having to
defend its basic principles in a credible way. As Philip Alston
observed in his recent article on human rights and populism,
"[W]e need to acknowledge the need to devote more time and
effort to being persuasive and convincing, rather than simply
annunciating our principles as though they were self-evidently
correct and applicable." 245
Causal research can help human rights advocates make the
case for policies that contribute to the promotion and protection
of human rights. The ability to explain the conditions in which
abuses thrive can also aid in persuading stakeholders that
human rights advocates' policy proposals are credible. These
explanations may also convey a sense that human rights
violations are solvable or at least manageable problems. This
essential message, that human rights conditions can and should
improve, may sustain the human rights movement in the face of
formidable challenges.

245. Alston, supra note 94.