In Violence and the Word, Professor Robert Cover describes law as “tak[ing] place in a field of pain and death.”1 International law and human rights adjudication, in particular, could not be more different. Human rights courts lack the power to compel adherence to their decisions through violence.2 They are designed for voluntary participation. This poses a problem for those who view compliance as the goal of law. But it is consistent with an alternative account of human rights adjudication as world building — the creation of a normative vision for transforming the status quo. The claim of this Note is that human rights courts can succeed without violence, and that the nonviolent character of human rights courts is perhaps best suited to their liberatory promise. When courts move people to act not out of fear of adverse consequences but from conviction, they can inspire lasting transformation. And human rights courts, unburdened with the restraint appropriate to the use of violence, can make greater moral demands.
This Note proceeds in four parts. Part I describes the problem of violence in human rights and situates the argument within scholarly debate. Part II explains how human rights courts lack coercive enforcement. Part III advances the idea of human rights adjudication as world building. Part IV considers the benefits of law without violence.
I. The Debate
In the wake of Russia’s invasion, Ukraine brought a suit against Russia before the International Court of Justice (ICJ) under the Genocide Convention.3 Ukraine argued that Russia had falsely accused it of genocide against the Russian-speaking population in Eastern Ukraine to justify the invasion.4 The court issued provisional measures ordering Russia to stop the war.5 But Russia ignored them, continuing a war that has claimed close to two hundred thousand lives.6 The ICJ has no tools to compel Russia or any other state to follow its judgments: it has no army of its own and cannot conscript domestic armies into its service or even impose sanctions. Under the United Nations (U.N.) Charter, parties may ask the Security Council for enforcement, but the Security Council has declined to play this role.7 Russia’s veto in the Security Council forecloses enforcement in this case,8 yet the pattern is broader. The Security Council has never used its powers to enforce an ICJ judgment.9 This would appear to be the spectacular failure of international law and human rights in particular. Without enforcement, powerful states, like Russia, can trample on the rights of the weak with deadly consequences. What, then, is the point of adjudicating human rights?
International law and international relations scholars answer a version of the question in various ways. Some, like former National Security Advisor John Bolton, respond in the Coverian vein that international law is not law at all.10 Realists, like Professors Jack Goldsmith and Eric Posner, argue that international law is weak because it cannot make states comply unless it is in their interest to do so.11 Human rights, from this perspective, fare even worse. Posner contends that human rights treaties are unenforceable by design and are responsible for the global failure to address human rights violations.12
Those who defend international law tend to argue that it can inspire compliance through less coercive means. The managerial approach of Professors Abram Chayes and Antonia Handler Chayes locates the effectiveness of international law in negotiation among treaty members and social pressures created by participation in a global community.13 Proponents of liberalism look for the internalization of international norms among populations within states, who encourage governments to comply.14 But effectiveness might be limited by the degree of states’ democratic accountability.15 Constructivists believe that institutions — including international law — can construct new meanings, changing the norms and culture of a state and, ultimately, its actions.16
This Note draws on constructivist ideas, especially those of Professors Jutta Brunnée and Stephen Toope — who understand international law as communication — and reject force and, more radically, power relations as the proper measure of law.17 Yet, Brunnée and Toope nevertheless embrace ideas of “adherence” and “legitimacy” that recall compliance.18 So too do constructivist theories of persuasion,19 derived in large part from managerialism.20 The trouble with centering compliance, however, is that it easily collapses into coercion. After all, the most foolproof way to achieve compliance is to force rogue states to follow the rules — through violence if necessary. This raises the question of whether human rights adjudication is serving a purpose other than compliance,21 and if so, whether stripping it of the power of violent enforcement is ever desirable. Here, Professors Natsu Taylor Saito and Robert Cover point to a response. Cover’s Nomos and Narrative suggests that law can “invite new worlds.”22 Saito builds on Cover to describe human rights law as creating “a vision of rights and remedies.”23
This Note argues that human rights adjudication is an act of world building. Courts identify the disjuncture between the world as it is and the world as it should be according to the law. Then, they articulate how the world can be transformed to close the gap. Adjudication is, thus, a “creative activity”24 grounded in a concern for individuals. The point is not, as in the managerial and liberal approaches, primarily compliance. Rather, it is to imagine what a superior world might look like. Communicating this gives satisfaction to victims, unsettles beliefs about the desirability of the status quo, and invites people to reimagine their worlds while becoming co-creators with the law of new ones. Instead of adherence to court-given norms, success in world building is the expansion of individuals’ moral imagination. But such conversion is not genuine if it is not free.25 And judges who do not deal in coercive enforcement have more space for creativity. They can ask more of states than if their judgments were enforceable through violence.
Adjudication as world building advances the study of international law beyond compliance.26 It articulates a nonhierarchical and participatory model of law that relies on the nonviolent character of human rights adjudication and suggests why the absence of violent enforcement may be a feature rather than a bug of human rights courts.
II. No Force in Enforcement
International courts, particularly those adjudicating human rights, cannot use force to compel compliance with their judgments.27 The reason is fundamental to the global system, which has no centralized army or police.28 As Professors Goldsmith and Daryl Levinson put it, international law lacks “enforcement authority capable of coercing powerful political actors to comply with unpopular decisions.”29 This means that coercive enforcement, if any, is left to states that decide whether to lend their military or economic power, but almost never do.30 In practice, states that comply, comply voluntarily.
Returning to the International Court of Justice, Article 94(1) of the U.N. Charter requires all U.N. member states to comply with ICJ decisions.31 At the same time, ICJ jurisdiction is voluntary, meaning that the court can only hear cases against states if they give prior consent.32 Consent might reflect willingness to comply from the outset, but this is not always so. Take Russia, which ignored provisional measures in Ukraine’s Genocide Convention suit.33 Or the United States, which defied the judgment in a case about aiding paramilitary groups in Nicaragua.34 When states disobey the ICJ, what can be done?
Article 94(2) of the U.N. Charter permits ICJ litigants to seek Security Council action against the recalcitrant party.35 However, coercive enforcement might be limited. Some scholars argue that Article 94(2) provides for nonforcible measures only, such as economic sanctions.36 And even if the Security Council could authorize intervention to enforce an ICJ judgment, it cannot compel states to fight. Ultimately, questions about the enforcement power of the Security Council are academic since states have only asked the Security Council to enforce ICJ decisions five times, and the Security Council has never agreed to intervene.37
In practice, states can try to enforce ICJ judgments on their own. Winning states may use countermeasures, which would otherwise be violations of international law, but under Article 2(4) of the U.N. Charter, they may not resort to force.38 They may also request that the U.N. General Assembly ask member states to take diplomatic or economic measures.39 Yet, General Assembly resolutions are not legally binding.40 The United States incurred no additional liability when it ignored the Assembly’s repeated requests to comply with the ICJ’s Nicaragua judgment.41 Finally, states can independently choose to impose sanctions in response to an ICJ decision. In March 2022, the United States recognized Myanmar’s treatment of the Rohingya as genocide,42 a decision possibly influenced by the ICJ’s finding of genocidal risk.43 Four days later, the United States imposed additional sanctions on Myanmar officials, but did not reference the ICJ.44 Even when states take action that in effect contributes to the enforcement of an ICJ judgment, it is neither required by international law nor predictable. The contingent character of this enforcement is far removed from Cover’s model of law in Violence and the Word where “[j]udges are . . . inextricably linked to[] the acts they authorize,” creating a “bond between word and deed.”45
Similarly, regional human rights courts have no mechanisms for coercive enforcement, however dormant. For instance, the Council of Europe, the political body linked to the European Court of Human Rights (ECtHR), has no authority to impose economic penalties for noncompliance.46 Still less can it compel states through military force.47 The Council can only suspend or terminate a state’s membership, which releases states from the European Convention’s human rights obligations.48 Similarly, the Inter-American Court of Human Rights has no sticks to compel adherence. It requires domestic courts to construe domestic law in accordance with its jurisprudence.49 But domestic courts ultimately decide how much to privilege international law.
The approach of the European Union (EU) is notably different. When states ignore EU law, including decisions by the EU’s highest court, the Commission of the EU can punish states by withholding subsidies.50 For example, the Commission froze about 138 billion euros in COVID-19 recovery aid and sustainable development assistance to Poland and Hungary in response to, among other things, violations of LGBTQ rights.51 Human rights courts do not work this way. If Turkey and Ukraine persist in their failure to recognize same-sex unions in contravention of the ECtHR’s jurisprudence,52 the court will not stop the delivery of KN-95s or the provision of funding to pay for them.
The result is a kind of bloodless adjudication — separated if not fully removed from violence. Though court decisions are legally binding, states have the practical freedom to defy them. Thus, the choice of whether to follow the law is not based on threat of material loss, but rather on more intangible motivations that cannot be reduced to the carrot or the stick. Human rights adjudication does not, contra Cover in Violence in the Word, “take[] place in a field of pain and death.”53 Instead, it is “something less (or more) than law” according to Cover,54 or the positivist idea of law as a series of commands secured by sanction — the “evil . . . inflict[ed]” when commands are “disregarded.”55
Aggregate studies of compliance paint a mixed picture. Out of twenty-seven ICJ judgments on the merits creating duties of implementation, from the court’s inception to 2003, most were followed, and only four were defied.56 But the record for provisional measures is poor. Of the eleven cases in which provisional measures were ordered, states complied fully in only one, a 1986 border dispute between Burkina Faso and Mali.57 Compliance rates of human rights courts appear to be lower. A 2014 study estimated that states implement ECtHR judgments about thirty-seven percent of the time.58 And of all the Inter-American Court resolutions on compliance issued in 2012, the court found full compliance in only one case.59 Without enforcement through violence, some noncompliance is guaranteed, and it is often substantial.
This leads to a dilemma. If one assumes that the goal of human rights adjudication is compliance, then the prognosis is discouraging. A solution might involve assessing when states comply and why in order to develop strategies for nudging recalcitrant states in line. Much scholarship on the effectiveness of international law and human rights has centered on these questions.60 But if we acknowledge that the decentralized character of the global system precludes violent enforcement and, therefore, noncompliance is endemic to human rights courts, then from a compliance perspective, the status quo is fundamentally flawed.
III. Adjudication as World Building
There is, however, a different way to understand human rights adjudication, which is consistent with its nonviolent character and does not view compliance as the sole or primary measure of success. Under this view, the power of human rights courts instead derives from what they communicate.61 They create images of more just worlds that (1) give relief to victims by affirming that they are entitled to better treatment, (2) educate others about the abuse, and (3) serve as models for transformation. Instead of compelling change through fear of pain, human rights courts spark transformation by imagining alternative worlds and inviting people to take part in building them.
A. Justice for Victims
At about 4:00 AM on March 30, 1976, the Paraguayan police woke Dolly Filártiga and forced her to collect the mutilated body of her seventeen-year-old brother, Joelito.62 He had been whipped and burned to death with electric shocks63 by Americo Peña-Irala, the Inspector General of Police in Asunción, in retaliation for his father’s criticism of President Stroessner’s dictatorship.64 Joelito’s back was striped with rows of welts,65 and a wire had been forced into his penis to apply electric burns.66 When the Filártigas pressed criminal charges, their attorney was arrested and shackled, and Peña-Irala “threatened him with death.”67
Dolly fled to the United States.68 Three years after her brother’s murder, she filed a complaint against Peña-Irala under the Alien Tort Statute69 before the Eastern District of New York.70 She had discovered that Peña-Irala had come to the United States illegally, reported him to immigration authorities, and served him with process before he was deported.71 The Second Circuit allowed her suit to go forward, and the following year, the Eastern District entered a default judgment against Peña-Irala, finding him liable for torture and extrajudicial killing in violation of customary international law.72 The court granted Dolly and her father an award of more than ten million dollars.73
They did not receive any of it. Peña-Irala’s money in the United States ran out before the litigation was over, and because he had been deported to Paraguay, it was impossible for Dolly and her father to collect the judgment from his assets abroad. Because international law limits enforcement jurisdiction by a country’s borders,74 the Eastern District had no power over Peña-Irala in Paraguay. The court was, in Filártiga, bloodless, just like the ICJ or the Inter-American Court.
Yet, the Filártigas considered their suit against Peña-Irala to be a success.75 In a New York Times op-ed, Dolly wrote that what mattered most to her was that “truth . . . triumph[ed] over terror.”76 Through the suit, she “obtain[ed] a measure of justice”77 that would not have been possible in Paraguay. By granting judgment for the Filártigas and awarding multimillion-dollar damages in their favor, the district court gave formal recognition of the gravity of the harms inflicted on Joelito and his family. The Second Circuit affirmed that the right to be free from torture is jus cogens — a universal and inviolable rule of international law.78 Professor William Aceves explains: “For the Filártiga family, the lawsuit was never about money; it was about seeking justice for Joelito and keeping his memory alive.”79 This is so for most Alien Tort Statute plaintiffs because they “seldom expect to collect any money in a successful judgment.”80 For the majority of “victims of human rights abuses, the purpose of these lawsuits is not to seek financial compensation — it is to find justice.”81 They “allow people who were powerless . . . to now turn the tables on those who used to be powerful.”82 Courts do this by building an alternative world to the one in which victims’ suffering is inflicted and normalized. In Filártiga’s world, torture lost, and Dolly triumphed. The court’s radical promise was that this world was somehow more true than the one that allowed Joelito’s murder, and it did not need to make Peña-Irala suffer to prove it.
Filártiga echoed in a presentation by the Boniface v. Viliena83 plaintiffs after they won $15.5 million under the Torture Victim Protection Act.84 Responding to a question about whether the judgment would ever be recovered,85 Nissandère Martyr, whose father lost a leg after being beaten by Mayor Viliena and his supporters,86 said: “We hoped that there would be justice, there was justice, [and] we achieved justice.”87 Martyr would seek to enforce the award, and the money was badly needed — some days during the fifteen-year litigation he and his coplaintiffs had nothing to eat. But money was not their goal.88 Nicole Phillips, the plaintiffs’ attorney, added that with the pervasiveness of gang violence in Haiti, death became normalized.89 The award mattered, even if it could not be recovered, because it “reminds Haitians their lives are valuable” and “worth as much as lives in Boston.”90
B. Education
Human rights courts also speak to bystanders in states responsible for harm who are unaware or indifferent to the abuses taking place. Judicial decisions make the abuse vivid and juxtapose it with alternative worlds. This educational function is particularly important in authoritarian states, where truth about the state is suppressed.91
According to Vadim Pak, then the director of the ECtHR’s Russia division, the process of adjudication, which required the court to articulate all sides of a contested issue and rigorously justify its conclusions, lent its findings of abuse greater credibility.92 And the discipline of law challenged the nihilism of state propaganda — the idea that even if the government lied, so did its critics.93
Pak believed that the court changed how Russians saw torture. Before cases like Mikheyev v. Russia,94 he explained, many believed that the use of torture against criminal suspects was justified.95 Aleksey Mikheyev, a traffic officer, was electrocuted by the ears to make him confess to rape and murder.96 The interrogators said that the shocks could cause his tongue to fall down his throat and threatened to shock his genitals.97 When the pain became unbearable, he jumped out of the police station’s window, breaking his spine.98 On the same day, the girl, whom Mikheyev was accused of killing, was found unharmed.99 Mikheyev became a paraplegic — “confined to bed,” unable to “urinate and empty his bowels” on his own.100 Russia was found responsible.101
The court told many similar stories, which, covered in Russian media,102 entered public imagination.103 In 2017, a Russian human rights group found body camera footage showing the torture of a prisoner by eighteen guards in a Yaroslavl penal colony.104 When it was leaked in the press, the reaction was powerful. A profile frame with the words “#TogetherAgainstTorture” circulated on social media.105 Criminal investigation followed. In 2020, eleven guards were convicted and received real — albeit short — sentences of three to four years in prison.106 A second leak revealing the torture of a Muslim prisoner, whose Quran was thrown on the floor, spurred the imprisonment of nine guards in 2022.107 Even President Putin (cynically) condemned the torture: prisoners “are our citizens, they are human beings, and they should be treated with humanity.”108
The European Court did not solve the problem of torture in Russia, nor could it have. But it may have sensitized Russians to the existence of the problem and helped to build the moral case for the abolition of torture. By giving the imprimatur of a court to the graphic realities of torture, Mikheyev and its progeny laid the groundwork for a domestic movement to improve conditions of interrogation and hold perpetrators accountable.109 Without the court, survivors may not have had the courage to tell the public what had happened to them, and the videos from Yaroslavl may have fallen on deaf ears. Mikheyev’s reception suggests human rights courts can work by empowering victims and bystanders within states to become agents of transformation.
Closer to home, Nicaragua’s ICJ case against the United States changed Americans’ perceptions about the desirability of military intervention in Central America. And — despite the Reagan Administration’s refusal to participate in the merits of the case or comply with the judgment — it helped to establish lasting peace in the region.110 The Sandinista government knew that as a small country, Nicaragua could not prevail against the United States by force.111 It was “only in the Hague that Nicaragua [could] face the United States on equal terms.”112
On the night before Nicaragua filed suit, the United States tried to withdraw from ICJ jurisdiction with respect to disputes with Central American states.113 The maneuver backfired. It made the Reagan Administration seem weak, as if it were running away from a case that the U.S. was certain to lose on the merits.114 American press “overwhelmingly” sided with Nicaragua.115 Cartoons mocked the administration, and one portrayed Reagan “thumbing his nose at the Court, while . . . international outlaws like Qadhafi and Khomeini called out ‘Ronnie, baby, welcome to the club!’”116
From there things got only worse for the United States. By a vote of 14–1 (with the American judge dissenting), the court issued provisional measures ordering the United States to cease all military activities threatening Nicaragua’s sovereignty.117 Then, Congress voted down aid to the Contras.118 By the time the case entered the merits phase, the Reagan Administration, fearful that it would lose, withdrew from the case and prospectively left the treaty giving the ICJ jurisdiction.119 Once again, the American public responded with “outrage.”120 Given the U.S. role in the formation of the ICJ, the about-face looked hypocritical — a result-oriented ploy inconsistent with the rule of law.121 As expected, Nicaragua defeated the United States on all counts.122
The Reagan Administration purported to ignore the judgment, but the tide of public opinion had turned. That year, a CIA contractor was shot down flying a plane over Nicaragua, exposing the Iran-Contra affair.123 Two years later, Congress voted down military aid to the Contras for the final time.124 With assurance of U.S. nonintervention, the President of Costa Rica was able to negotiate a peace agreement with Honduras and Nicaragua.125 The following year, the Sandinistas and Contras brokered what was for the most part a lasting peace.126
Although the Reagan Administration refused to comply with the judgment,127 Nicaragua ultimately came out the winner. The Sandinistas’ immediate goal — to stop the flow of congressional funds to the Contras — succeeded. What is more, the judgement “h[eld] up a mirror to America’s face and challeng[ed] its image of itself as a law-abiding nation proud of its role in creating, supporting and defending the international legal order.”128 The United States could no longer meddle in the affairs of Latin American states while wearing the mantle of international law. Nicaragua became a classic of public international law textbooks, and U.S. intervention, a textbook violation. This is perhaps the most enduring legacy of the case — it framed the history of intervention on the continent and stamped it with the judicial seal of illegality.
C. Models for Transformation
Human rights courts not only spotlight the disjuncture between states’ treaty commitments and the realities on the ground, but they can also articulate a positive vision for how states should be transformed to close the gap. No court has done more in this regard than the Inter-American Court of Human Rights, which has become known for its expansive and creative jurisprudence of remedies.129 By envisioning what must change to ensure that abuses do not happen again, the Inter-American Court creates models for social transformation.
An exemplary case is González v. Mexico130 — also known as the Cotton Field Case. González concerned the disappearance and murder of three young women “of humble origins”131 in Ciudad Juárez: Laura Berenice Ramos Monárrez, a seventeen-year-old high school student; Claudia Ivette González, a twenty-year-old worker at a maquiladora; and Esmeralda Herrera Monreal, a fifteen-year-old “domestic employee.”132 After the women’s disappearance was discovered, authorities made no effort to search for them,133 relying on sexist stereotypes to classify their disappearance as “not high risk” because of their sexual preferences and class.134 The police told Esmeralda’s mother that “if anything happened to [Esmeralda], it was because she was looking for it . . . . [A] good woman, stays at home.”135 Weeks to months after their disappearances were reported, the women’s mutilated bodies were found in a cotton field in Juárez.136 Their deaths formed a part of a broader pattern. Between 1993 and 2005, more than four thousand women from the city had disappeared.137 The Inter-American Court found Mexico responsible.138
González broke ground as the first decision of an international court to use the term “femicide.”139 It was also noteworthy for its remedies. In addition to pecuniary compensation for the women’s families, the court ordered measures of satisfaction including a ceremony with high-ranking officials acknowledging Mexico’s international responsibility, organized in consultation with the families, and broadcast on local and national radio and television;140 publication of the judgment in major newspapers;141 and erection of a monument in the field where the bodies were found, to “commemorate the women victims of gender-based murder in Ciudad Juárez . . . as a way of dignifying them and as a reminder of the context of violence they experienced.”142 These measures were directed toward the victims, but they also had a systemic purpose. To monumentalize Laura, Claudia, and Esmeralda was to reject the gender- and class-based dehumanization that had led to their murder and the murder of hundreds of women like them. And to give their mothers a voice in deciding how government officials would take responsibility was to invert the subordination that had made them feel powerless in the face of an indifferent and often hostile bureaucracy.
The court also ordered guarantees of non-repetition that expressly called for forward-looking remedies, where the court described in detail how Mexican policy should be transformed. It required Mexico to harmonize procedures for investigating “the disappearance, sexual abuse and murder of women” with international obligations, and to adopt a gender-informed perspective.143 Responding to the mothers’ requests, the court asked Mexico to build a website tracking data about the women that disappeared in Chihuahua;144 create a database of personal information and tissue samples of all disappeared women in Mexico, their consenting next of kin, and unidentified bodies in Chihuahua, while protecting their personal information;145 and improve gender training for “police, prosecutors, judges, military officials, [and] public servants.”146 The court felt that the existing training, which focused on law, should be supplemented with training on how “stereotyped ideas and opinions” interfere with women’s exercise of human rights.147 Finally, the court ordered Mexico to create a gender education program for the public of Chihuahua.148 The goal — to eliminate the entrenched sexism that enabled gender-based killing to proliferate in Juárez and allowed the government to look the other way.
The creativity and precision of the González remedies are emblematic of the Inter-American Court’s commitment to world building as a response to harm. Take Contreras v. El Salvador,149 a case about the forced disappearance of children during the Salvadoran civil war. There, the court ordered not only legislation to “define the crime of forced disappearance” in domestic law,150 but also the naming of three schools after the plaintiffs in locations symbolic to harms they suffered,151 and the creation of a documentary to “be distributed as widely as possible among the victims, their representatives, and the country’s schools and universities.”152 Mack Chang v. Guatemala153 ordered the creation of a scholarship memorializing a slain anthropologist “to cover the complete cost of a year of study in anthropology at a prestigious national university.”154 And Olmedo-Bustos v. Chile155 required amendment of Chile’s constitution to expand freedom of expression.156
The almost legislative character of the Inter-American Court’s remedies may seem strange. On the one hand, the court’s orders can be criticized as overreach into states’ domestic spheres that interferes with self-government and autonomy. On the other, their specificity makes it more likely that states do not comply to the letter, reducing — on a compliance-centered view — the court’s legitimacy and power. Indeed, the Cotton Field monument Mexico erected in response to González was criticized for papering over a deeper problem. In the two years from the decision in González to the monument’s unveiling, the police had failed to adequately investigate the murders in contravention of the court’s orders,157 and the disappearance of young women in Juárez continued.158
To make sense of the Inter-American Court’s remedies is to recognize that they are not a blueprint for compliance, but rather a starting place for citizens to imagine how their societies could be more justly structured.159 Their precision serves not to dictate the details of a court-ordered scheme, and indeed the court lacks the power to do so. Instead, the detail paints a picture — with tantalizing verisimilitude — of an alternative to the status quo. Precision is needed to make the picture seem like an attainable and, ultimately, desirable model for change. But the model need not be copied to the letter for it to be successful. Rather, by picturing an alternative, the model expands people’s capacity to imagine just worlds.
Too little (or too much) compliance does not undermine the Inter-American Court because it is arguably designed to do something different. Instead of a hierarchical relationship — court orders → state is constrained to obey — the court considers the people within the state to be the agents of change. The court’s remedies, therefore, reflect an alternative relationship: the world built by the court inspires people to reimagine their countries → the people build their desired world.
Paradoxically, the outrage that the mothers in González felt at Mexico’s failure to adequately solve the problem of gender-based violence may have been a sign that the judgment was working. By the time that the Cotton Field monument was unveiled, they had transformed themselves from victims into holders of rights, and their personal tragedies inspired a movement to stop gender-based violence in Latin America and beyond.160 Today, activists from Austria161 to Pakistan162 use the language of femicide, enshrined in González, to demand life with dignity.
IV. Is Nonviolent Law (Ever) Worth It?
There is, however, a cost to bloodless law. Since human rights courts do not have violence at their disposal, victims of human rights abuse cannot use court-sanctioned violence as a shield to protect themselves from further harm. Violence itself may be a cost of renouncing violence. Despite the ICJ’s order, Russia’s crimes in Ukraine continue and, despite González, rates of violence against women in Mexico remain high.163
Yet, the alternative, the attempt to secure compliance through violence — whether overt, like military intervention, or more subtle, like the denial of funds for COVID relief164 — is not a clearly more attractive choice. When states comply with human rights law not because the people within them believe it is right but because they fear the imposition of painful consequences, their compliance is likely to falter when the threat is gone. By contrast, the law of world building looks beyond compliance to motivate free agents of transformation. Separation from violence also allows law to embrace more capacious goals. In violence-backed law, the evils of violence, which Cover powerfully illustrates,165 counsel restraint in the substance of legal prohibition. World building, by contrast, is a boldly creative activity because, unlike in totalitarian utopia, if the builders disagree on the vision nobody will get hurt.
In a 408 C.E. letter, Augustine, a Christian theologian, urged the proconsul of Africa to spare heretics’ lives because execution would give them — at least from their perspective — the moral upper hand.166 He concluded that “when people are led through force alone and not through teaching even to . . . embrace a great good, the efforts expended prove burdensome rather than profitable.”167 The attempt to stamp out heretical ideas through violence would be futile, securing at most outward obedience because forced conversion would not be genuine.
Obedience secured through threat often dissipates when the threat is no longer present. After 9/11, the United States “embraced women’s rights and empowerment” as justification for military intervention in Afghanistan.168 With the Taliban ousted, women’s lives incrementally improved. Many girls were permitted to go to school, and women returned to work.169 But when American soldiers withdrew from Afghanistan, the Taliban, whom they had sought to repel through force, returned and reimposed the same draconian restrictions on the rights of women that were in place prior to the invasion.170 Violence could not fundamentally change the beliefs that led many Afghanis to embrace the Taliban. The effect, it appears, was quite the contrary.
Moral imagination, as Cover recognized, cannot be compelled. He observed that “pain and death destroy the world that ‘interpretation’ calls up”171 and that “meaning-creating activity is not naturally coextensive with . . . violence.”172 “[B]ecause law is the attempt to build future worlds, the essential tension in law,” when it is enforced by violence, “is between the elaboration of legal meaning and the exercise of or resistance to the violence of social control.”173 In other words, because violence destroys meaning, when law relies on violence, its capacity to build new worlds is inherently limited. Imagination requires freedom to depart from the world as it is. Such freedom allows a person to resist and transform their surroundings, sometimes even in the face of pain. Fear of punishment may outweigh a Russian soldier’s fear of Ukrainian guns.174 But conversion to recognize the evil of the war can inspire the soldier to refuse to fight despite the consequences.
Conversion happens, even in a dictatorship. On August 22, 2022, Senior Lieutenant Dmitry Vasilets — a patriotic twenty-seven-year-old enlistee, who had attended a military boarding school, graduated with honors from one of Moscow’s best military academies, and served in the Russian army for four-and-a-half years — submitted his resignation, and refused to return to Ukraine.175 Vasilets was a deeply committed soldier. He was known as a person who “followed any order without delay,” and during his years of service maintained a nearly perfect record.176 But after three months on the front, he “started to realize that something wasn’t right.”177 In May, two of his closest friends were killed.178 On a condolence visit to his friend’s parents in Buryatia, he learned about Buddhism and became a pacifist.179 He would later tell journalists:
And people don’t even know, because [the news] does not talk about it, how people are sitting there in the basements, shelled six times, how a grandfather is looking for a grandmother among the driveways who was killed by a bomb fragment. And it is not always possible to know whose shell it was, but human grief is the same.180
Vasilets was sentenced to two-and-a-half years in a penal settlement colony.181 He chose to be imprisoned rather than take part in a war in which he did not believe. While most have not been as vocal in their opposition, since the start of the war, more than three thousand Russian soldiers have been prosecuted for failure to fight.182
It is hard to know whether these individual acts of courage will have any effect on lives in Ukraine. Yet it would seem that Russia could not continue the war if enough soldiers, like Vasilets, refused to participate in it. Human rights courts can help people complicit in abuse envision such alternatives. This is not an easy solution. Vasilets remains in prison, and Russia’s war continues. Nor does it require Ukrainians to renounce their right to use violence in self-defense. But world building may offer one of the few ways to address the root cause of the war.
Separation from violence also enables law to make greater moral demands. Coverian law must be limited since every prohibition carries with it the latent threat of violence. And in deciding whether to impose Coverian law, the judge must weigh the benefits against the necessary evils of its enforcement. One of Cover’s key insights is that even good laws, when enforced, “signal and occasion the imposition of violence upon others.”183 Every law reflects a “balance of terror” even if the balance struck is ultimately desirable.184 But not all moral norms justify the infliction of violence. Compulsion of virtue beyond what is minimally necessary for society to function can seem cruel, a gratuitous interference into private life by the heavy hand of the state.185 For this and similar reasons, Thomas Aquinas concluded in the Summa Theologica that “human law does not prohibit everything that is forbidden by the natural law.”186 Rather, it ought to prohibit only those vices that “hurt . . . others, without the prohibition of which human society could not be maintained.”187 Nonviolent law, by contrast, does not need to be weighed against the infliction of pain. Its scales tip toward virtue because there is no Coverian “terror” on the other side of the balance. It is appropriate for the Inter-American Court to build detailed visions of remedies because it has no power to compel adherence to them.
Judgments backed by the threat of economic sanction may seem less severe than direct intervention, but they share the disadvantages of blunter expressions of violence. Imagine that the Inter-American Court of Human Rights, like the European Court of Justice, could enforce the remedies it prescribes by cutting COVID recovery aid.188 Or that the court could impose a trade embargo to prevent the sale of masks to states that ignore its judgments. With such forceful levers at their disposal, judges may — and Aquinas suggests ought to — think twice before building new worlds. Judges would have to ask themselves, for example, whether the enforcement of a highly specific program for gender education, as the court ordered in the Cotton Field Case, would be worth the infliction of economic pain. Or, as in Mack Chang, whether failure to name a scholarship after a victim of an extrajudicial killing would justify the withholding of aid, which could increase COVID deaths. It would seem perverse to punish states for the failure to film a documentary about the forced disappearance of children, as in Contreras, by putting children’s well-being during the pandemic in potential danger. Paradoxically, a more powerful human rights court would ask less of states and would, or should, limit the scope of its own remedies.
This then is the hidden power of nonviolent adjudication. By resolving the contradiction between law and violence189 in favor of law, human rights courts can, as the Inter-American Court does, nudge law closer to justice. Judges have the freedom to imagine just worlds, like prophets — as Max Weber might say190 — rather than central planners.
The question remains of when the benefits of world building outweigh the risk that abuses not violently checked will lead to further violence. Under international law, violence is available even if courts are not tasked with the role of wielding it.191 But it is an imperfect remedy. Obedience secured through threat is often fragile. And violence cannot address the root of the problem — the motivation driving perpetrators to harm. Ukraine need not wait for the Vasiletses of Russia to wake up.192 Yet, without them, it is hard to imagine a lasting peace.
Conclusion
This Note argues that human rights courts can succeed without violence. It is a bold claim. Some critical theorists point to the complex relationship between human rights law and colonial history to conclude that violence is embedded in human rights.193 Realists, by contrast, warn that human rights law is too weak.194 Both, perhaps, worry that without coercive enforcement international law enables the strong to oppress the weak.195 Most assume that compliance is the benchmark toward which international law should strive.196 This Note offers an alternative account of adjudication as world building that articulates how the nonviolent character of human rights courts is consistent with and perhaps best suited to their liberatory promise. Two lessons follow.
If the absence of violent enforcement is a feature and not a bug of human rights courts, then the preoccupation with improving compliance with judicial pronouncements may be misplaced. Instead, scholars and practitioners would be wise to focus their attention on strengthening the moral charisma of human rights courts or, in other words, on making the worlds they build seem desirable. This is not a question of making human rights courts less judicial — quite the contrary. The gravity of judicial proceedings, the pomp,197 the authority that derives from reasoning that aims toward neutrality, amplifies the power of human rights. Nor should human rights courts — acknowledging their lack of coercive power — soften the language of their judgments to suggestions instead of demands. Rather they should demand their imagined worlds boldly, while strategizing how the demand can best be framed to inspire people outside the walls of the court to take up its call.
There is also a lesson for domestic law. If human rights adjudication can, and does, work without violence, then alternatives to criminal law, like restorative and transformative justice,198 may not be as radical as they seem. International law, Professor Anne-Marie Slaughter argues, demands “faith in the power of law without force behind it.”199 Yet it is also a real-world model for how an alternative to Coverian law might succeed. If the power of law can be conceived apart from the threat of violence, and the global system has survived this long without a global police force, how different could we imagine domestic law to be?