Political Repression. Linda Camp Keith
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increases the probability of political rights and protection against unreasonable searches and seizures. Cross’s effort to analyze the impact of judicial independence on human rights is commendable; however, his measure of judicial independence is the subjective rating devised by the late Charles Humana (1992) which provides no replicable operationalization of the concept of judicial independence. Additionally, the study is limited to a small, not fully representative sample of countries.
My previous work has built upon these early studies, expanding the analysis to the global set of countries across a twenty-year period and also expanding the set of constitutional provisions. Keith (2002a) examined ten constitutional provisions associated with internationally recognized human rights and found some evidence to support the optimistic perspective, and while the traditional freedoms associated with bills of rights (freedom of speech, religion, assembly, association, and press) were not found to improve state protection against personal integrity abuse, provisions for public and fair trials did significantly improve states’ behavior, even when controlling for the broad range of factors known to influence this type of behavior. In addition to the failure of the basic constitutional freedoms to influence human rights, neither the provision for the right to writ of habeas corpus nor a provision banning state torture influenced states’ human rights behavior. Keith’s (2002b) examination of the impact of seven provisions increased the likelihood that states would protect fundamental freedoms and rights; these included provision for separation of powers, guaranteed terms of office for judges, fiscal autonomy for the judiciary, and a ban against exceptional courts. However, again, the remaining provisions failed to produce the expected effect; these included the provision for exclusive judicial authority and finality in its decision-making process, along with the provision for enumerated qualifications for judges. Keith cautioned that her analysis is limited to formal provisions for judicial independence, which do not guarantee that the judiciary actually achieves the level of independence that would be necessary to stand against the regime in protecting fundamental rights. In this book I seek to address that need.
Prior to Howard and Carey (2004) there was not a systematic replicable measure of actual judicial independence available for all countries that went beyond formal provisions. A few studies have created subjective ratings for a significant albeit nonrandom set of countries; however, these evaluations are not replicable (for example, Johnson 1976; Cross 1999; La Porta et al. 2004). Howard and Carey created an indicator of de facto judicial independence based on assessments within the Department of State’s human rights country reports that measure the degree to which judiciaries function in practice independently of the executive and legislature, are free from corruption and bribery, and afford basic criminal due process protections to criminal defendants. Howard and Carey do find that across a ten-year period and the global set of countries the level of judicial independence does influence states’ provision of civil and political rights. While I applaud Howard and Carey’s standardsbased measure of judicial independence, I have concerns about the use of their measure in regard to our human rights analysis, because one of the measure’s three components considers whether the state “afford[s] basic criminal due process to criminal defendants” (287). This component seems at best indirectly related to consensus definitions of judicial independence, as we will see in Chapter 4. More importantly, my strong interest in exploring the potential influence of judicial independence on human rights leads us to be very sensitive to possible overlaps between operationalizations of independent variables linked to human rights and our primary human rights measures, the Political Terror Scale (Gibney and Dalton 1996), frequently referred to as a measure of the abuse of personal integrity, and Cingranelli and Richards’ measures of physical integrity (Cingranelli and Richards 1999). Both measures assess the degree of abusive or politically motivated state behavior, including imprisonment, torture, disappearance, and extrajudicial killings, which seem by their very nature to deny basic due process rights. Even if, arguably, the targets of the abuse are not in fact criminals, we are still measuring in our dependent variable the same forms of abuse, which encompass an abuse of procedural due process as well. Thus, we are left with the need for a more appropriate measure of de facto judicial independence, and in Chapter 4 I will present an alternative measurement that builds upon Howard and Carey’s work.
The mixed results described above have continued to appear in more recent work. Keith and Poe (2004) found that, as expected, certain provisions for states of emergencies, which have been promoted by international organizations such as the International Lawyers Association and the International Commission of Jurists, have unintended consequences and are associated with increased levels of human rights abuse during most types of internal threat, while under some circumstances other provisions have the intended effect. Our combined model (Keith, Tate, and Poe 2009) again found rather mixed effects for constitutional provisions for bills of rights, judicial independence, and states of emergency, with several provisions producing a beneficial effect, and many producing either no effect or a harmful effect.
Overall, then, recent empirical analyses suggest that there is some justification for the optimistic expectation that legal provisions for rights and judicial independence (both de jure and de facto) may increase the level of state human rights protections. However, confidence in the generalizability of these results is somewhat constrained by some of the limitations associated with these previous studies. First, none of these studies extend beyond 1996, which limits our understanding in regard to the most of the post-Cold War period. Second, the studies examine a wide range of human rights behavior, but typically each study examines only one type or measure of behavior, and thus the empirical tests are not as robust as they could be. Third, only Keith (2002b) and Howard and Carey (2004) examine the global set of countries. Fourth, most of the studies examine one set of constitutional provisions in isolation from the others. Fifth, the studies do not examine the full set of causal links or the paths of influence; for example, they do not explore the path from formal judicial independence to actual judicial independence to human rights protection, nor do they deal with issues of endogeneity. Finally, the studies lack an appropriate measure of judicial independence, at least in regard to core human rights, such as personal integrity abuse. In Chapters 4 through 6 I take steps to deal with these issues in a rigorous manner.
International or Transnational Influences
EXTERNAL THREATS/INTERNATIONAL WAR
As noted above, the expected nexus between international war and civil conflict was demonstrated by Stohl’s early work (1975, 1976) to the extent that international war increased the level of domestic violence. And at least one early study examined the effect of international wars on repression; Rasler’s (1986) study of the twentieth-century United States found evidence that administrations did indeed increase levels of repression during wars. Subsequently, large-N studies have confirmed the effect of participation in international wars on domestic political repression (Poe and Tate 1994; Poe, Tate, and Keith 1999; Cingranelli and Richards 1999a, 1999b), and over time international war has become a key component of the standard model of human rights behavior (Keith 1999, 2002; Richards 1999; Apodaca 2001; Davenport and Armstrong 2004; Abouharb and Cingranelli 2006, 2008; Landman 2005). It is interesting to note that the impact of international war is substantially lower than that of civil wars. For example, Poe, Tate, and Keith (1999) find the impact of participation in a civil war to be at least three times the impact of being a participant in an international war. This result is somewhat intuitive even though external threats such as interstate war are potentially more serious than civil wars; often civil wars are a greater threat to a regime because of the proximity and ability of the opposition to inflict damage, especially compared to some interstate wars, which may be fought far away from at least some of the belligerents’ states, such as in the Persian Gulf War or the war in Iraq. In Chapter 6 I continue our examination of a variety of threats, both external and internal, and their interactive effects, especially in regard to the independence of the judiciary.
BILATERAL,MULTILATERAL, AND GLOBAL ECONOMIC INFLUENCES
Bilateral