Academic journal article Vanderbilt Journal of Transnational Law

Reverse-Rhetorical Entrapment: Naming and Shaming as a Two-Way Street

Academic journal article Vanderbilt Journal of Transnational Law

Reverse-Rhetorical Entrapment: Naming and Shaming as a Two-Way Street

Article excerpt

TABLE OF CONTENTS  I.   INTRODUCTION II.  HUMAN RIGHTS ADVOCACY: NAMING AND SHAMING III. HUMAN RIGHTS WATCH (HRW), THE UNITED STATES, AND      TORTURE: FROM NAMING AND SHAMING TO      CONSEQUENTIALIST ARGUMENTS      A. Shaming Torture Before 9/11: The Crimes         Speak for Themselves      B. 9/11, Torture, and Consequentialist         Justifications      C. After 9/11: HRW and Consequentialist         Argumentation IV.  CONCLUSION--NORMATIVE IMPLICATIONS 

I. INTRODUCTION

"Naming and shaming," the process of exposing, publicizing, and condemning human rights abuses, is one of the most important and common strategies used by human rights advocates. In an international political system where power is typically defined in terms of military strength and market size, advocacy groups draw on a mixture of moral and legal means to pressure governments to improve their human rights behavior. In general, the mere act of naming and shaming can promote human rights norms by reinforcing the shared understanding that some types of government conduct are beyond the pale. (1)

Naming and shaming may also work more specifically through a dynamic of "rhetorical entrapment." (2) Moral and legal censure pressure the targeted government to respond to criticisms about its conduct either by expressing public support for human rights norms or by signing human rights treaties. (3) Over time, advocacy groups use such instrumental concessions to press the targeted government further to stop its abusive practices, (4) Words that initially appear to be cheap gestures can, with the passing of time, have powerful effects.

Some scholars have offered compelling analyzes of naming and shaming, including cases involving Israel's human rights policies in the West Bank and Gaza Strip in the early 1990s (5) and Uganda's repressive policies in the mid-1980s. (6) Others warn that naming and shaming can be ineffective and even backfire, moving authoritarian regimes to shift to other more discrete forms of repression. (7) Many scholars argue that the efficacy of naming and shaming depends on a range of factors, such as the regime type of the targeted government, (8) the type of actors doing the naming and shaming, (9) and the presence of domestic human rights organizations in the targeted state, (10) Finally, some scholars have shifted attention away from efficacy altogether to understand better why human rights advocates choose to shame some governments but not others. They have analyzed the effect of factors such as media reports, (11) the presence of human rights organizations in the targeted state, (12) the gravity of the human rights situation, (13) previous reporting efforts, (14) and U.S. military assistance. (15) In all these inquiries, scholars have devoted almost no attention to the possibility that naming and shaming strategies are at times influenced by a government's rhetorical response. (16) The existing scholarship assumes that rhetorical entrapment is a one-way street.

This Article argues that, rather than being mere targets, governments can and do engage in "reverse rhetorical entrapment," thus shaping the strategies of human rights organizations. (17) Specifically, justifications for egregious conduct--at least when made by powerful governments (18)--may draw human rights advocates into consequentialist debates about the utility of specific rights-violating practices. Using the case of coercive interrogation in the United States, this Article show how Human Rights Watch (HRW) was entrapped by the consequentialist justifications of President George Bush's Administration. In explaining and defending its interrogation practices, the administration turned to the "war on terror" discourse that aimed to deflect and undermine human rights critiques. (19) For reasons of political practicality, HRW could not simply rely on moral and legal naming and shaming. Rather, it responded with its own consequentialist arguments about torture, focusing specifically on three outcomes: (20)(1) the unreliability of intelligence gathered through coercive interrogation, (2) the effect of U. …

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