Courtney Hillebrecht on Saving the International Justice Regime

This Q&A was conducted and edited for clarity by Alexandra Yao.

We spoke with Associate Professor Courtney Hillebrecht about her new book, Saving the International Justice Regime: Beyond Backlash against International Courts, published by Cambridge University Press in September 2021. Professor Hillebrecht is the Samuel Clark Waugh Distinguished Professor of International Relations at the University of Nebraska-Lincoln and she specializes in human rights and international law. Her book analyzes the role and function of backlash in the international justice regime by posing and answering three questions: (1) What is backlash? (2) Why do states and elites engage in backlash against international human rights and criminal courts? (3) What can stakeholders and supporters of international justice do to push back against backlash?

How did you become interested in this topic?

I’ve long been interested in international human rights and criminal courts.  I began my academic career asking questions about why states create these judicial bodies and why they comply with their rulings and judgments. I published my first book, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (Cambridge UP) in 2014. Up until that point, the academic and policy conversation around international human rights and criminal adjudication had largely been based around questions of compliance and cooperation – how, when, and why do states comply with these institutions?  

The conversation in both academic and policy circles began to shift in the mid-2010s, and the term “backlash” began to appear in scholarly writing, as well as in the courts’ own publications and in the broader media. This conversation about backlash, however, was disparate and largely rooted in singular incidents of “bad behavior.” There were diffuse and disjointed definitions of backlash, varied understandings of what counted as backlash, and ambiguity about what states and stakeholders should do about it. This broader conversation left me asking three main questions: (1) what is backlash; (2) why do states and political elites engage in backlash against international courts; and (3) what can stakeholders and supporters do to push back against backlash? This book is the result of trying to answer those three questions. 

What is the overarching argument of your book?

The overarching argument of Saving the International Justice Regime is three-fold. First, it argues that backlash against international human rights and criminal courts is a sustained attack on their authority. It is not simply “bad behavior” but rather actions, both ostentatious and covert, taken by states and political elites to undermine the tribunals’ structural, adjudicative, and moral authority.   

Second, backlash against international courts is a function of the structure of international courts and their abiding dependency on states; underlying normative discontent that is obscured by high ratification and participation rates; and the domestic consequences of international human rights adjudication. Broadly, Saving the International Justice Regime posits that the causes, manifestations, and consequences of backlash against international human rights and criminal courts are multi-causal and multidimensional.  

Third, I hope readers will come away from Saving the International Justice Regime understanding that backlash is not pre-determined or teleological. Just as backlash against international courts is a function of the structural nature of international adjudication, normative debate, and domestic politics, so, too, must the fight against backlash be rooted in these dimensions. Above all, however, I hope that readers come away from this book appreciating that even though the international justice regime is supremely flawed, it is worth saving.  

What new avenues of research do you see your book opening up?

This book is designed to motivate an array of new research agendas. In the concluding chapter, I identify four new avenues of research that can follow from this work: (1) further theoretical development linking backlash to the better-documented phenomenon of compliance, cooperation, and enforcement; (2) research that leans into the manifold manifestations of backlash and investigates why some forms of backlash overlap; (3) examinations into the timing and sequencing of backlash; and (4) more consideration of the tribunals’ response to backlash politics.  

In addition to those potential avenues for future research, a much-needed area of further investigation is understanding which interventions work in the fight against backlash, why and under which conditions. 

What implications do backlash politics have on the future of human rights advocacy in international courts?

Backlash politics has shaped—and will continue to shape—human rights advocacy at international courts. One potential form of backlash, which I do not explore in this book but consider in other work, is state and elite attacks on human rights defenders who litigate before international courts. In these incidences, backlash politics can have grave consequences for human rights advocates. 

Many of the bureaucratic, budgetary, and doctrinal challenges that I do discuss in the book are aimed at limiting civil society participation in international adjudication. Activists and advocates have learned to circumnavigate these hurdles, all while pushing for institutional reforms that safeguard the role of civil society within the international justice regime. 

While civil society has proven resilient and adaptive in the face of backlash, there are continued opportunities for advocates and justice supporters to bolster the international justice regime. Supporters and advocates can do three things: (1) flip the narrative about international courts; (2) improve the functioning of these courts; and (3) reaffirm the major accountability norm. This is not easy work, but it is crucial for protecting the international justice regime and the activists that work within it.

What effect will backlash politics have on the role of domestic courts as enforcement authorities on behalf of international bodies?

Backlash against international courts only reinforces the importance of domestic courts as sites of implementation and compliance, both of international human rights courts’ rulings as well as broader norms of accountability, human rights, and justice. Those states that are most likely to engage in backlash politics have domestic judicial systems that are ill-equipped to hold executives accountable for their human rights and humanitarian commitments. Stronger domestic courts serve as domestic accountability mechanisms and fill in the enforcement gaps left behind by international courts, which are only exacerbated by backlash politics.

What is a recent, concrete example of backlash and its consequences – perhaps something you would have predicted from your book?  

One recent example that comes to mind is Israel’s refusal to cooperate with the ICC on the Office of the Prosecutor’s investigation into possible war crimes in the West Bank. Refusing to cooperate with the Office of the Prosecutor highlights both the structural dependency that international courts have on domestic partners as well as long-standing normative discontent that negatively affects the ICC’s moral standing and ability to fulfill its adjudicative mandate. This example also highlights governments’ and elites’ fear of the domestic consequences of international justice. If Israel were to acknowledge the Palestinian case at the ICC, it would implicitly be acknowledging the authority of the ICC, and in doing so, empower domestic opponents to further challenge the status quo.  

On a more positive note, can backlash have positive effects on human rights governance? Or, can you give an example of a case where an international court successfully resisted the harms of backlash? 

In the book, I refer to the case of financial and bureaucratic maneuvering against the Inter-American Commission on Human Rights that left the Commission in a dire financial situation, unable to fulfill its mandate. This backlash mobilized a wide array of actors, from states to advocates, to bolster the Inter-American Commission on Human Rights. In this case, and more broadly, backlash against international courts can have a positive effect on human rights governance by serving as a wake-up call; by throwing the deficiencies of the institutions into sharp-relief; by encouraging supporters to more clearly articulate the value of international justice; and by forcing institutional reform to forge strong, more resilient judicial institutions.  

Above Photo: Courtney Hillebrecht speaks during a human rights panel in Othmer Hall at UNL. (Hannah DePriest)