Is the Legalization of Human Rights Really the Problem?: Genocide In the Guatemalan Historical Clarification Commission

Is the legalization of human rights really
the problem?
Genocide in the Guatemalan Historical Clarification

Richard Ashby Wilson

The legalization of human rights

The law essentially operates with a decontextualized concept of censure… the law works with a definition of violence which views the act in question outside the scope of any context in which it took place. For this reason, such definitions of law all too often convey the notion of the law as an expression of some transcendent force… Such explanations miss the crucial point, namely that law is an expression of power and ideology.

(Dennis Davis 1990:305)

At the same time as the globalization of human rights increased in pace and scope after the Cold War, there has been a growing sense of the shortcomings of human rights 1 for addressing legacies of mass atrocities. Critics have noted how human rights commissions have often failed to document past violence adequately (Buur 2001; Mamdani 1996; Mertus 2000; Ross 2003; Wilson 2001), and how establishing fundamental human rights in new constitutions has done little to address the pressing socio-economic needs of the population (Mamdani 2000; Panizza 1995; Shivji 1991,2000).

In analyzing why this is often the case, some observers have pointed to the legal character of human rights as the main source of their inadequacy (Davis 1990; Du Toit 1999; Minow 1998; Posel and Simpson 2003; Wilson 1997). The legalization of human rights, understood as the positivization of norms in international conventions and tribunals, national constitutions and domestic courts, exacerbates the tendency of human rights to overlook the wider political, social and cultural contexts that generate mass violations. This seems to be one of the most severe criticisms of human rights; they operate without sufficient awareness and understanding of the macro-historical context (e.g. apartheid, the Cold War, economic inequality) in which mass violations occur. Since they hold no theory of why violations happen in the first place, human rights institutions are powerless to prevent them in the future.

The critique of human rights entails a wide-ranging, political and philosophical reappraisal of ‘justice’, and this chapter will only deal with one set of criticisms of human rights and legality. In particular, it will deal with the charge that in countries emerging from an authoritarian political past, human rights concepts and institutions inevitably decontextualize events in their documentation of past abuses. If perpetrators are tried, the macro history of an era, be it Eastern European Stalinism or apartheid in South Africa, 2 is lost in a focus on the determination of guilt of single individuals. Even when human rights narratives operate outside of a court context, they can be characterized by a myopic legalism, where any moral impetus dissipates in a plethora of individual cases and legal minutiae. For instance, the human rights reports of non-governmental organizations often reduce a massive history of violations to a set of technical problems regarding the regulation and functioning of the legal system (Wilson 1997: Chapter 6). This critique raises not only questions of knowledge and official memory, but it implies an entire political project. Critics such as Mamdani (1996) argue that during transitions from authoritarianism, a Nuremberg-style pursuit for justice in a narrow sense (i.e. accountability of individual offenders) should be replaced with a quest for broad political justice, usually understood as a root-and-branch program of socio-economic redistribution.

The approach outlined above could be characterized as a ‘structural’ critique of human rights, which found its first expression in Karl Marx’s (1977) polemic on the ‘Jewish Question’. In this essay, Marx countered the arguments of Bruno Bauer, who demanded the same rights for European Jews as those enjoyed by Christians. Marx insisted that the emancipation of Jews was not just about granting them full human rights. This would not go far enough towards fulfilling ‘human’ or ‘practical emancipation’, since Jews and others would still belong to class societies that allowed private property. For Marx, the law is an integral component of a violent system of sanction in class societies, and rights are an ideological smokescreen, obscuring legal coercion under the mantle of individual freedom.

At one point in his essay, Marx asks, intriguingly, why are there human rights at all? He answers by distinguishing between citizenship rights, which emphasize our mutual obligations in a common political community, and human rights, which emphasize universal, transcendental individuals and their separation from other individuals. Far from being a blueprint for emancipation, human rights are a facade to hide social and economic inequalities. Human rights are the rights of the bourgeoisie, the rights of egoistic man, and the isolated individual who need not depend upon others. After the French Revolution, the Rights of Man took precedence over citizenship rights, laying the foundations for bourgeois society and the capitalist revolution in the nineteenth century.
In the twentieth century, elements of Marx’s critique have resurfaced in criticisms of the modern human rights regime as established at the Nuremberg trials. These trials established the important precedent in international law that individuals are responsible for crimes, not whole peoples, states or other collective actors such as the military. One adverse consequence of this was that a focus on individual crimes can conceal the structural causes of political violence. Courts investigate only that historical context which is necessary to understand individual act(s) and decide guilt or innocence, obscuring the political and economic contexts in which violations occurred. What mattered at Nuremberg were the actions of Hermann Göring, rather than the complex intersections of European anti-Semitism, the global economic depression, or German Romanticism. Further, an emphasis on the intentions of top elites can conceal the widespread nature of nationalist or racist beliefs and the extent of popular collaboration in mass violations. The focus on individual guilt can generate a partial history because it is an elite history and a perpetrator history, and excludes the experiences and voices of victims. 3

In the past 10 years or so, a number of authors have taken the position that focusing on individual violations conceals the collective dimensions of conflict, racism and genocide (Davis 1990; Fitzpatrick 1987; Wilson 1997; Shivji 2000; Gledhill 2003). Mahmood Mamdani’s (2001) account of the Rwandan genocide in When Victims Become Killers is illustrative of this line of argument. Mamdani (2001:9) encourages us to see the Rwandan genocide not through the lens of human rights and international law, but through the ‘logic of colonialism’. This requires not an account of a the genocidal acts of individuals, but a historical analysis of earlier genocide of natives by Belgian settlers. According to Mamdani, the greatest crime of colonialism was the ‘race branding’ of Hutus and Tutsis. The colonial-era politicization of race in turn determined post-colonial politics, which were characterized by ethnically-based inequalities and repeated ethnic massacres, notably in 1959, and then again in 1994.

At the end of his account of the Rwandan genocide, Mamdani (ibid.:270–6) makes clear his opposition to a legal, Nuremberg model of identifying individual perpetrators and holding them accountable at the International Criminal Court in Arusha, Tanzania, on the grounds that this only gives a semblance of ‘justice’. Mamdani writes, ‘The prime requirement of political reconciliation is neither criminal justice nor social justice but political justice’ (ibid.:273). 4 The model most appropriate for understanding Rwanda is not the Holocaust and Nuremberg-style accountability, but apartheid South Africa. Pursuing political justice would not involve granting constitutional rights to individuals but transforming the racist and hierarchical structure of Rwandan society and government. This would mean reforming the institutions of power and authority in Rwandan society, and establishing some form of power-sharing between Hutus and Tutsis within a reformed state. In Mamdani’s vision, the role of human rights commissions after mass atrocities is to create the political will and a charter for such a political and economic transformation.

Truth commissions and non-legal versions of human rights

Many of the writers claiming that human rights adhere too closely to legal process have also supported the creation of human rights commissions that are less bound by legality. Non-legally constituted commissions of inquiry seemed particularly appropriate to the democratic transitions of the 1990s, where post-authoritarian regimes sought to build new state institutions and create a culture of human rights. Further, the retributive Nuremberg option was often not obtainable, due to the continued power and authority of the ancien régime, from Chile’s General Augusto Pinochet to former South African President Klerk.

In the context of a wave of transitions in Latin America, Eastern Europe and South Africa, scholars made various attempts to detach human rights from their legal moorings and redefine them as a generalized language of public morality. As such, they could serve in the post-authoritarian program of memorializing of the violent past and building a new culture of tolerance. Martha Minow (1998:144) is deeply skeptical of the law’s ability to respond to mass atrocities by educating the public on the past and inculcating shared moral values of tolerance and dignity. Pointing to the ‘inherent limitations of trials’, Minow marshals her critique of law in order to propose truth commissions as an alternative to trials:

If the goals are to gain public acknowledgement of the harms and accounts, as full as possible, of what happened, the trial is at best an imperfect means. For those two goals, a truth commission may actually be better suited.

(Minow 1998:58)

Truth commissions come in many forms, but can be generally defined as commissions of inquiry, usually established by post-conflict governments or the United Nations, with a mandate to write a report on past human rights violations. According to their supporters, truth commissions have prioritized narrative and relied more heavily on victims’ testimony. They are more likely to produce an authoritative account of an entire epoch which allows ‘the nation as a whole to heal’ (ibid.:61). Over the past ten years a whole industry has grown up around truth commissions, as much in academia as among nongovernmental organizations, and these ‘memory activists’ are united in their shared rejection of the courts as the sole or even primary place to investigate the context of past human rights violations. 5

After the first rush of interest, it has become evident that truth commissions have had mixed results. While the main function of truth commissions has been to produce a comprehensive report on mass atrocities, they have not demonstrated their superiority to trials as a mechanism for understanding the past. In part, argue some writers, this is because they too are overly-legalistic. The ‘structuralist’ criticisms of Marx, Mamdani and others seem borne out; human rights institutions are inherently unable to comprehend violations within a broad socio-economic context, and therefore to facilitate a new postwar project of ‘political justice’. Even a cursory look at the three most well-known and influential truth commissions in Argentina, Chile and South Africa demonstrates that these did not produce particularly rich accounts of the origins of conflict, nor delve very deeply into the structural context that generated political violence and repression.

In Argentina, the first civilian president after the fall of the military junta, Raul Alfonsín, established a National Commission on the Disappeared (CONADEP). Its 1984 report Never Again rejected contextualizing the violence so as not to provoke military reprisals. It did not attempt to write a political history of causes of the ‘Dirty War’ between 1976 and 1983, which was characterized by the torture of thousands and the disappearance of at least 12,000 persons. 6 The report adopted a narrow legalistic approach as it portrayed mass state repression as a straight-forward violation of law and a violation of individuals’ rights (Comisión Nacional Sobre la Desaparición de Personas 1984). By way of contextual explanation, it proposed a ‘doctrine of two demons’ of the extreme right and left, an approach seen as depoliticizing and historically inaccurate, never mind its questionable moral equalization of both parties. The authors of Never Again, however, felt they had no choice but to equalize the moral positions of the belligerents. Proper social analysis and moral evaluation would have meant engaging in, and perpetuating, the ideological antipathy between socialists and the military. In the context of Argentine military rebellions, the political constraints meant the Argentine truth commission carried out no investigation into the historical causes or the structural conditions that created conflict in the first place.

The Chilean National Commission for Truth and Reconciliation (NCTR), established in the aftermath of the dictatorship of General Augusto Pinochet, engaged in more interpretation than the Argentine truth commission report, but its scope was still highly restricted. The Commission’s 1993 report was characterized by a timid analysis. 7 In the methodology section, the report advanced an understanding of the conflict which bore all the equivocal hallmarks of the Argentine doctrine of ‘two demons’, since it portrayed the conflict in terms of the Cold War and the subsequent political polarization between a Soviet/Cuban-inspired Left and an anti-communist/US-aligned Right wing. Although the report depicted the international dimensions of the conflict, there was little attempt to explore the socio-economic origins of the conflict within Chile itself, nor to delineate any causal relationships between social relations, inequality and political violence. The Chilean Commission openly accepted a restricted role in analyzing the Allende era and Pinochet coup:

The ultimate course of this crisis is naturally very complex and is open to a number of interpretations. It is not the role of the Commission to judge such interpretation or delve further into them.

(NCTR 1993:vol. 1, 47)

And yet, of course, the Commission did opt for certain interpretations rather than others, and it made a perplexing counterfactual claim; the Commission’s report stated that without the military coup in 1973, Chile would have descended into anarchy, and the overthrow of President Salvador Allende prevented civil war. This is not only a highly speculative version of the past, but also one which implicitly justifies Pinochet’s bloody coup and 17 years of repression. The historian Greg Grandin (2004:57) comments, ‘History here fulfils its exculpatory potential’.

The 1998 report of the Truth and Reconciliation Commission (TRC) in South Africa was unique compared with its Latin American predecessors in that it named over 400 perpetrators who had committed gross human rights violations between 1960 and 1994. In this sense, the South African Commission was the most ‘legalistic’ of truth commissions so far since it was the only one which made individual accountability the center of its report. However, the TRC’s concern with individual guilt came at the cost of generating a far-reaching structural analysis of racism and apartheid. The Report ended up in the terrain of the courts rather than the domain of historians or social scientists. Instead of a structural analysis of why the apartheid era was characterized by massive human rights violations, the TRC produced a disjointed, perpetrator-led account. 8 Different types of evidence-statistics, testimony, archival material lay side by side, disconnected from any structured argument. Cases of violation were extracted from their wider social and historical context. Du Toit (1999) observes,

(Du Toit 1999:3)

In the place of a structural account of the apartheid era, the TRC opted for a moral denunciation of an evil system and the reconciliation of former enemies. Citizens of the ‘New South Africa’ were required to share not a political understanding of apartheid era violence, but moral indignation at apartheid’s crimes. This absence of any vision of socio-economic reform in the truth commission report is explicable insofar as it coincided with the efforts of the Mandela government to avoid capital flight from the country. A sense of the structural nature of individual violations, and in particular, societal racism and its relationship to state racism, would have required and/or pointed towards a shared political understanding of the past, and this was deemed more risky than a shared moral response. The South African Truth and Reconciliation Commission was a complex organization, being the most legalistic in its naming of perpetrators and also the most moralistic in its public pronouncements and public hearings. What it did not exemplify, according to Mamdani (1996) was the structural analysis of apartheid society required to bring about political justice for the African poor in the new post-apartheid era.

Even though truth commissions are represented by their supporters as human rights institutions released from the binds of legalism, these commissions have not necessarily led to more profound accounts of human rights violations than courts. This criticism seems to apply equally to truth commissions which are less legal in character (Argentina, Chile) and those which pursued limited accountability by naming names (South Africa). The crucial factor in the weaknesses of the reports seems not to be the legality or otherwise of the human rights commission, although this is important, but the political constraints on writing a structural account of violations and facilitating what Mamdani calls ‘political justice’. Whereas the structural critique of human rights sees over-legalization as the core of the problem, I would maintain that the limitations of human rights commissions result not only from legality per se, but also from two other conditions which we need to reflect upon more. The first is whether a human rights institution 9 is sponsored by an individual nation-state (as in Argentina, Chile or South Africa) or by the international community, usually under the auspices of the United Nations. The second variable relates to the legal concepts guiding an investigation, and whether the investigation is motivated by a concern for individual guilt, or a wider conception of criminal agency such as contained in the concepts of crimes against humanity and genocide.

Transnational human rights institutions

First, I will deal with the question of national political constraints on human rights. My argument, developed more extensively with respect to the South African Truth and Reconciliation Commission (Wilson 2001), is that national truth commissions have become so prevalent because they fulfill the need of new elites to institutionalize a post- authoritarian nation-building project. They construct a new official narrative of the violent past in order to build a new vision of the nation. They attempt to create a shared ‘collective memory’, in order to forge a shared concept of the collective future.