Alternative Sanctions and Social Norms in International Law: The Case of Abu Ghraib
Gopalan, Sandeep (2007) Alternative Sanctions and Social Norms in International Law: The Case of Abu Ghraib. Michigan State Law Review . pp. 785-839.
This Article examines the use of alternative sanctions in international law using the exemplar of the abuses at Abu Ghraib. It argues that social sanctions like shaming have a powerful role to play in enforcing international law norms. When properly deployed, shaming activity by the international community can serve to influence the offending state to take corrective action and fill the enforcement gap in international law. This is the lesson from Abu Ghraib. There is evidence that the abuses so vividly depicted in the now infamous photographs were not an aberration, but had occurred for a considerable time despite complaints. It took a shaming campaign for expressions of regret and corrective action to ensue. The campaign forced U.S. citizens to come to terms with the fact that their government was acting in violation of internalized international norms (againsttorture). The coincidence of international law norms with internalized domestic norms facilitated expeditious corrective action. This Article will attempt to explore linkages between shaming sanctions and the violation of international law norms in the Abu Ghraib case. Part II provides a brief sketch of the scholarly treatment of shame sanctions in some areas of the law and their role in strengthening social norms. In Part III, this Article elaborates on the relationship between norms and the law and addresses the costs of enforcing social sanctions. It draws on insights from behavioral economics and examines relevant experimental evidence. Part IV focuses on the deployment of shaming in targeting the abuses at Abu Ghraib. Part V presents some tentative general conclusions on the role of alternative sanctions in international law and tries to craft a basic architecture for the deployment of these sanctions.
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