Mirrors of Justice: Law and Power in the Post-Cold War Era

mirrors of justice Mirrors of Justice is a groundbreaking study of the meanings of and possibilities for justice in the contemporary world. The book brings together a group of prominent and emerging scholars to reconsider the relationship of justice, international law, culture, power, and history through case studies of a wide range of justice processes. The book’s eighteen authors examine the ambiguities of justice in Europe, Africa, Latin America, Asia, the Middle East, and Melanesia through critical empirical and historical chapters. The introduction makes an important contribution to our understanding of the multiplicity of justice in the twenty-first century by providing an interdisciplinary theoretical framework that synthesizes the book’s chapters with leading-edge literatures on human rights, legal pluralism, and international law. Kamari Maxine Clarke is Professor of Anthropology at Yale University and Senior Research Scientist at the Yale Law School. She is the author, most recently, of Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa and Mapping Yoruba Networks: Power and Agency in the Making of Transnational Communities and coeditor of Globalization and Race: Transformations in the Cultural Politics of Blackness. Clarke has researched transnational religious movements in the United States and West Africa, international human rights and rule of law movements, and, over the past decade, the cultural politics of power and justice in the burgeoning realm of international tribunals. Mark Goodale is Associate Professor of Conflict Analysis and Anthropology at George Mason University and Series Editor of Stanford Studies in Human Rights. He is the author of Surrendering to Utopia: An Anthropology of Human Rights and Dilemmas of Modernity: Bolivian Encounters with Law and Liberalism and editor or coeditor of three other published volumes on legal anthropology, human rights, and critical methodologies. Since 1996, Goodale has conducted ethnographic, historical, and ethnohistorical research on sociolegal processes, law and identity, political reform, and the impact of international and transnational legality in Bolivia.

Mirrors of Justice law and power in the post–cold war era

Edited by

KAMARI MAXINE CLARKE Yale University

MARK GOODALE George Mason University

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo, Delhi, Dubai, Tokyo Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title: www.cambridge.org/9780521195379 © Cambridge University Press 2010 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Mirrors of justice : law and power in the post–Cold War era / edited by Kamari Maxine Clarke, Mark Goodale. p. cm. Includes bibliographical references and index. isbn 978-0-521-19537-9 (hardback) 1. Criminal justice, Administration of. 2. Criminal justice, Administration of – Social aspects. 3. Human rights. 4. Crimes against humanity. I. Clarke, Kamari Maxine, 1966– II. Goodale, Mark. III. Title. k5001.m57 2009 341.4 8–dc22 2009034832 isbn 978-0-521-19537-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Contents

page vii

Editor Biographies Contributors

ix

Acknowledgments

xi

Introduction: Understanding the Multiplicity of Justice Mark Goodale and Kamari Maxine Clarke 1

Beyond Compliance: Toward an Anthropological Understanding of International Justice Sally Engle Merry

part i 2

3

1

28

justice and the geographies of international law

Postcolonial Denial: Why the European Court of Human Rights Finds It So Difficult to Acknowledge Racism Marie-B´en´edicte Dembour

45

Proleptic Justice: The Threat of Investigation as a Deterrent to Human Rights Abuses in Cote ˆ d’Ivoire Mike McGovern

67

4

Global Governmentality: The Case of Transnational Adoption Signe Howell

5

Implementing the International Criminal Court Treaty in Africa: The Role of Nongovernmental Organizations and Government Agencies in Constitutional Reform Benson Chinedu Olugbuo

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106

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Contents

Measuring Justice: Internal Conflict over the World Bank’s Empirical Approach to Human Rights Galit A. Sarfaty

part ii 7

8

9

10

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justice, power, and narratives of everyday life

The Victim Deserving of Global Justice: Power, Caution, and Recovering Individuals Susan F. Hirsch

149

Recognition, Reciprocity, and Justice: Melanesian Reflections on the Rights of Relationships Joel Robbins

171

Irreconcilable Differences? Shari’ah, Human Rights, and Family Code Reform in Contemporary Morocco Amy Elizabeth Young

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The Production of “Forgiveness”: God, Justice, and State Failure in Post-War Sierra Leone Rosalind Shaw

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part iii

justice, memory, and the politics of history

11

Impunity and Paranoia: Writing Histories of Indonesian Violence Elizabeth F. Drexler

12

National Security, Weapons of Mass Destruction, and the Selective Pursuit of Justice at the Tokyo War Crimes Trial, 1946–1948 Jeanne Guillemin

13

Justice and the League of Nations Minority Regime Jane K. Cowan

14

Commissioning Truth, Constructing Silences: The Peruvian Truth Commission and the Other Truths of “Terrorists” Lisa J. Laplante and Kimberly Theidon

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Epilogue: The Words We Use: Justice, Human Rights, and the Sense of Injustice Laura Nader

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Index

333

Editor Biographies

Kamari Maxine Clarke is Professor of Anthropology at Yale University and Senior Research Scientist at the Yale Law School. Clarke has researched social and religious movements in the United States and West Africa, transnational legal movements, and, over the past decade, the cultural politics of power and justice in the burgeoning realm of international tribunals. Her current project explores the making of the International Criminal Court (ICC) and the related transformations over the international management of violence. She is the author of Mapping Yoruba Networks: Power and Agency in the Making of Transnational Networks (2004) and Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge UP, 2009) and coeditor of Globalization and Race: Transformations in the Cultural Politics of Blackness (2006). Mark Goodale is Associate Professor of Conflict Analysis and Anthropology at George Mason University and Series Editor of Stanford Studies in Human Rights. He is the author of Surrendering to Utopia: An Anthropology of Human Rights (2009) and Dilemmas of Modernity: Bolivian Encounters with Law and Liberalism (2009). He is currently preparing an edited volume titled Human Rights: Critical Dialogues, and he is the editor of Human Rights: An Anthropological Reader (2009) and coeditor of The Practice of Human Rights: Tracking Law Between the Global and the Local (Cambridge University Press, 2007). He also is writing a book on revolution, counterrevolution, and landscapes of political transformation in Bolivia.

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Contributors

Jane K. Cowan, Professor of Social Anthropology at the University of Sussex. Marie-B´en´edicte Dembour, Professor of Law and Anthropology at the University of Sussex. Elizabeth F. Drexler, Associate Professor of Anthropology at Michigan State University. Jeanne Guillemin, Senior Advisor at the MIT Security Studies Program, Center for International Studies. Susan F. Hirsch, Professor of Conflict Analysis and Resolution and of Anthropology at George Mason University. Signe Howell, Professor of Social Anthropology at the University of Oslo. Lisa J. Laplante, Visiting Assistant Professor of Law at Marquette University Law School and Deputy Director of the Praxis Institute for Social Justice. Mike McGovern, Assistant Professor of Anthropology at Yale University. Sally Engle Merry, Director of the Program on Law and Society and Professor of Anthropology at New York University. Laura Nader, Professor of Anthropology at the University of California, Berkeley. Benson Chinedu Olugbuo, Former Anglophone Africa Regional Coordinator, NGO Coalition for the International Criminal Court, and visiting lecturer in law at the University of Pretoria. Joel Robbins, Professor and Chair of Anthropology at the University of California, San Diego.

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Contributors

Galit A. Sarfaty, Assistant Professor of Legal Studies and Business Ethics at The Wharton School of the University of Pennsylvania. Rosalind Shaw, Associate Professor of Anthropology at Tufts University. Kimberly Theidon, Associate Professor of Anthropology at Harvard University and Executive Director of the Praxis Institute for Social Justice. Amy Elizabeth Young, Assistant Professor of Anthropology at Gettysburg College.

Acknowledgments

This volume examines the meanings of justice across diverse and often ambiguous legal, cultural, and discursive contexts. The metaphor of the mirror gives the book its conceptual moorings and serves as an ordering device in relation to the wide scope of case studies that are the book’s empirical foundation. In bringing together this provocative range of disciplinary interests, geographical foci, and epistemological orientations to the question of justice, we must acknowledge the many people and institutions whose various forms of support have been instrumental to the project. We would first like to thank our contributors, who met initially at Yale University in December 2006 for a two-day workshop during which first drafts of chapters were presented and discussed in front of an intelligently engaged audience of faculty, students, and members of the public. During this first meeting, which was cosponsored by Kamari Clarke’s Center for Transnational and Cultural Analysis and Jim Silk and Yale Law School’s Schell Center for Human Rights, the Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, provided the keynote address, with introductory remarks from then-Dean Harold Koh and Professor Owen Fiss of the Yale Law School. Moreno-Ocampo also was generous enough to meet informally with members of the workshop to discuss the challenges facing the ICC. Funding for this workshop was provided by the Edward J. and Dorothy Clarke Kempf Fund at the MacMillan Center for International and Area Studies and the Yale Department of Anthropology; for this we are grateful. The group then reconvened one year later as a double presidential panel at the 2007 American Anthropological Association annual meetings in Washington, DC. This provided a valuable opportunity for volume contributors to present versions of chapters to a critically engaged public audience at the same time that the book’s theoretical framework was being crystallized. For this opportunity, we would like to thank Faye Harrison, Program Chair for the 2007 meetings, and Setha Low, President of the AAA, both of whose commitment to the project was welcome and necessary. xi

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Acknowledgments

We must also acknowledge the critically constructive engagement of multiple sets of peer reviewers. Their collective insight and wisdom helped to shape the final direction of the volume, although the editors and chapter authors are ultimately responsible for both the book’s contributions and limitations. We are also indebted to our editor, the incomparable John Berger, whose support of innovative and interdisciplinary scholarship within the fields of law and society, international law, and comparative law continues to serve as a benchmark and source of inspiration. His editorial staff at Cambridge University Press ensured that the production process went off without a hitch. A special note of thanks must be given to our research assistants – Lucia Cantero, Tina Palivos, Terry St. Denis, and Adriana Salcedo – for their hard work and generous commitment of time during all phases of the book’s life. And of course we acknowledge the years of sustaining encounters with our students and colleagues at Yale University and George Mason University, which have necessarily shaped our thinking about the ambiguities of justice in the contemporary world. Finally, Mark would like to acknowledge the support of his family, Romana, Dara, and Isaiah, who continue to tolerate the long periods of absence and days and weeks of writing with good cheer and a sense of humor. Kamari thanks Ronald Crooks for his unwavering support and for the lesson that justice in its popular conception remains a fiction – yet a fiction that we aspire to keep as we hope of a better day. Kamari Maxine Clarke New Haven, Connecticut Mark Goodale Arlington, Virginia

Introduction Understanding the Multiplicity of Justice Mark Goodale and Kamari Maxine Clarke

Since the end of the Cold War twenty years ago, there has been a dramatic increase in the number of international and transnational institutions for which “justice” has become a central ideological ordering principle, an implicit goal, or, in the case of the International Criminal Court (ICC), a formal basis for institutional action. At the same time, there has been a corresponding rise in the prevalence and crosscultural resonance of justice as a framing discourse, a transnational normativity that gives shape to, but is not coextensive with, the modalities of international law, human rights, and preexisting cultural and moral imperatives. The problem, we might say, of justice is of course an old one indeed: Its complexities have formed the staple of debates within political philosophy for centuries if not millennia; within both theology and international law the centrality of justice has made it an iconic, if shifting, symbol that has at times come to represent the particular system itself. Justice has served as the illusive endpoint of any number of political and social teleologies, the utopian goal toward which movements of ideas and people have been hurled with sometimes tragic, sometimes heroic, consequences. More recently, however, the withering away of the logics of the bipolar postwar system provided an opening for the actual building and implementation of both international and transnational systems that had existed as either idea or unrealized possibility, including the international human rights system, the interrelated system of international criminal law, and the more diffuse networks of transnational actors that came to constitute what Eleanor Roosevelt, the chair of the commission that produced the 1948 Universal Declaration of Human Rights, called the “curious grapevine.” Most of the transcendent aspirations of the postwar settlement were almost immediately smothered by the constraints of realpolitik that characterized the Cold War. Even though the Manichean struggle between the nation-states of the North Atlantic Treaty Organization (NATO) and the Warsaw Pact actually brought together ideological and political configurations that superseded the individual nation-states that comprised them, the fact remained that great power sovereignty 1

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and supposedly antithetical national security interests formed the backdrop against which the trans- and postnational expressions of postwar optimism were rendered practically irrelevant (although not meaningless). Beginning in the 1990s, a series of historical and discursive moments marked a decisive shift in this postwar narrative. Following on the heels of the relatively abrupt implosion of the Soviet Union and the authoritarian regimes of the rest of the Warsaw Pact, the racist ancien r´egime of South Africa crumbled with similarly stunning speed. As the anthropologist Richard A. Wilson describes in his authoritative study of the early years of South Africa’s postapartheid transition, the efforts to build a “civic state” based on the revived language of human rights and universal justice were part of a wider historical movement. As he explains, “[t]he quest to build a ‘culture of human rights’ in South Africa . . . needs to be understood in the context of a sea-change in global politics, and the rise of human rights as the archetypal language of democratic transition . . . Since 1990, nearly all transitions from authoritarian rule have adopted the language of human rights and the political model of constitutionalism . . . ” (Wilson, 2001: 1). At the same time, but more ambiguously, the multiple languages of justice shaped the emergence of new national, international, and transnational regimes in ways that at times intersected with, but at other times diverged from, the more actualized – if still embryonic – “culture of human rights.” Justice coexisted on the post–Cold War’s global-discursive terrain as the normative partner of “human rights” even as it was fractured into any number of different conceptual, political, and ethical variations: local justice, popular justice, social justice, transitional justice, economic justice, and others. The empirical pluralizing of justice, however, did nothing to clarify important questions that had been exhaustively pursued by theorists from the pre-Socratics to Rawls: What, exactly, is justice? What is the relationship between justice and natural/human rights? Does justice reflect a particular social or moral orientation, or is it better understood as an ideal political good? Can we give a legitimate account of justice in the abstract at all? What is the relationship between justice and law? and so on. Instead, empirical reports from the post–Cold War’s discursive frontlines revealed these to be the wrong questions. As a response, political philosophers themselves began to explore the implications of justice as social practice and, in the process, offer an alternative to the traditional politico-epistemological dichotomy between the normative and the descriptive. Will Kymlicka, for example, drew on case studies from debates over the political and legal rights of First Nations and other minority Canadians to develop a theory of justice that is at least in part derived from the historical and political realities of multicultural Canada (see, e.g., Kymlicka, 1995, 2007). Likewise, the political philosopher Duncan Ivison (2002) offered a theory of “postcolonial liberalism” to illuminate the “mutual recrimination and misunderstanding” that characterize the contentious

Introduction

3

debates between indigenous and nonindigenous Australians. His argument is that a truly postcolonial Australia will be based on a new social contract that is constituted by what he calls “both ways” learning, in which indigenous notions that challenge existing and hegemonic assumptions about “public reason, citizenship, and justice” are fully integrated into a new political and cultural settlement. Drawing in part on the work of the political theorist William E. Connolly, Ivison explores the possibilities of what he calls the “conversation of justice, the framework within which claims of justice are made, and more importantly, recognized and understood by others . . . ” (2002: 46). This is not just another, perhaps Habermasian, account of justice, one that simply redirects the analytico-deductive lens from the Platonic ether to the (still abstract) constitutiveness of the public dialogic encounter. Rather, Ivison is genuinely concerned to anchor both the conceptual and political analysis of justice in the “particular [cultural] idiom” in which the meanings of justice emerge as part of a wider dynamic through which “claims and social movements are propelled (or not) ‘upwards’ . . . ” (2002: 46). Also, it was not only, or most importantly, political theorists who realized that the changing landscapes of the post–Cold War world demanded new approaches to the perennial problems of justice. The Chief Prosecutor of the ICC, Luis MorenoOcampo, sought the engagement of a range of academics and practitioners as he labored to establish a workable normative framework within which the Court could initiate and successfully prosecute cases in a manner that was sensitive to local cultural and political realities without sacrificing the Court’s essentially universalizing mission. As Moreno-Ocampo soon realized, what was needed was an ICC that was both committed to the prosecution of crimes that violated a universal sense of right – that is, “the most serious crimes of concern to the international community as a whole,” as Article 5 of the Rome Statute puts it – and responsive to the open, shifting, and often contestatory normative terrains in which the Court was forced to operate. In the end, the Chief Prosecutor found an opening in Article 53 of the Statute, which outlines the conditions under which the Court can decline to begin a prosecution. Among these conditions, the Article creates an ambiguous limiting condition around the “interests of justice.” Its ambiguity derives in equal measure from both parts of this provision: The Statute neither specifies what kind of interests the Court should consider, nor the kind of justice on whose behalf these unarticulated interests should be working. Whereas some commentators have analyzed Article 53 as an international legal form of prosecutorial discretion (see, e.g., Lovat, 2006), in fact – as the Chief Prosecutor himself recognizes (see Moreno-Ocampo, 2006) – its nuances and institutional potential are much greater. The provision “in the interests of justice” has developed through the opening of four investigations into events in Uganda, the Democratic Republic of Congo, the Central African Republic, and

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Darfur as a complicated mechanism through which the tensions can be potentially mediated between an abstract discursive universality and the actual contingencies and normative multiplicity that characterize the contexts in which the ICC must investigate and (eventually) prosecute its cases. This volume is in part a product of the efforts of the Chief Prosecutor to draw on a range of different perspectives to understand – and, for purposes of the ICC, operationalize – the multiplicity of justice as it is constituted and reconstituted discursively, legally, and politically within the emerging geographies of the post– Cold War. As the former state prosecutor from Argentina who had the most success in prosecuting members of the Argentine political and military establishment for crimes and corruption committed during the military dictatorship of 1976–1983, Moreno-Ocampo had previously pursued justice as both the enactment of formal public rituals of punishment and reparation, and the development of procedural mechanisms through which these public rituals took place. For a civil law prosecutor like Moreno-Ocampo, justice had always been a more ambiguous synonym for the rule of law: Are there transparent rules in place? Are they being followed? If not, is there a system for punishing transgressors and redressing victims? Is this system fairly and nondiscriminately mobilized? Finally, are there ways in which the system itself can be dispassionately evaluated and, if necessary, reformed? As the Chief Prosecutor of the ICC, Moreno-Ocampo discovered from early on that it was simply not possible to merely adapt this jurisprudential understanding of justice to the current and emerging sites of ICC engagement. As part of the collaborative process of reconceptualizing justice in light of the dilemmas and potentialities of a post–Cold War international criminal justice regime committed to prosecuting gross violations of human rights and, in the process, fostering – or, as it were, compelling – the formation of a particular transnational normative sensibility, the Chief Prosecutor turned to what he describes as the “global university” (Moreno-Ocampo, 2006). By this he does not necessarily mean actual institutions the profiles, student bodies, and influence of which extend beyond national boundaries or particular regional intellectual traditions. Rather, what he means is that any formal operationalization of a new understanding of justice by the Court must be preceded by a diffuse but systematically critical engagement, one that brings together scholars, practitioners, and even potential (or actual) litigants within a universitas, or integrated intellectual community, one bound together by its desire to bring the tools of reflection and critical inquiry to bear on problems that go to the heart of the Court’s emerging mission. As the particular sliver of this broader global university that is represented in this volume discovered, however, a paradox looms over any effort to reimagine the meanings of justice in terms of the growing body of empirical data on postconflict reconstruction projects, truth and reconciliation

Introduction

5

commissions, and the interplay between more established transnational normative regimes like human rights and patterns of local legal and moral practice. On the one hand, the evidence from the history of the post–Cold War demonstrates a growing acceptance – including by traditionally recalcitrant actors – of the relevance and legitimacy of international moral–legal regimes and a willingness by state actors to ratify and implement international norms at the national level. Moreover, this recent history also provides evidence of those more ambiguous collective shifts in moral consciousness that mark the globalization of a “culture of human rights.” Yet within this history, justice continues to serve as a signifier with more discursive resonance than meaning. It hovers always in the background, apparently framing, for example, the promotion of human rights as a sociopolitical goal, as a description of a still-unrealized global landscape in which universal human rights provide the set of superordinate norms that both define and circumscribe ideal human relationships. Also, because the recent emergence of an expanding global cultural sphere of human rights represents the historical actualization of at least a part of the post–Second World War’s utopian project, it is not difficult to find either the will or intellectual energy to likewise try and reestablish the meanings of justice and newly examine their normative potentialities. In other words, the kind of “global university” for which the ICC’s Chief Prosecutor has devoted so much of his own good will and energy is one that many scholars are eager to develop. On the other hand, many of the magistrorum et scholarium of this global university are committed to the reestablishment of justice on grounds that are at least partly suffused with the lessons of the empirical. Indeed, this has been the most important and radical dimension to the Chief Prosecutor’s desire to incorporate the academic voice into the ongoing development of the ICC’s vision: the emphasis on contributions from scholars and practitioners whose reflections on justice are anchored in the contradictions and contingencies of normative practice. It is no coincidence, therefore, that anthropologists comprise a majority of the contributors to the current volume. Anthropologists have been tracking the multiplicity of justice on the post–Cold War terrain with sensitivity and ethnographic care; nevertheless, we must emphasize that this book is not an assertion of disciplinary prerogative. In fact, it is the epistemological privileging of normative practice that makes the broader effort to reconceptualize justice so paradoxical. To draw out implications is to generalize, to go beyond the case studies that form the heart of this book. As we will see, much of what is to be learned here casts doubt on any overly abstracted notion of justice. The task, in other words, is to find a way beyond this paradox, to envision a framework for understanding justice that is theoretically substantive enough to serve as a basis for institutional action, but which does not do conceptual violence to what the growing

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body of ethnographic research on normative practices reveals to persons – like the Chief Prosecutor of the ICC – who take it seriously. In the next sections of this Introduction, we develop the book’s main theoretical claims. We use the metaphor of the mirror to explain the different ways in which justice must be understood in part reflectively, as a discursive category that both reproduces and shapes cultural, political, and ideological imperatives at the same time it distorts – or refracts – them. In demonstrating both the reflective properties of justice, the book’s chapters are subdivided along axes that show how the ethnographic and otherwise empirical encounter with justice’s multiplicity leads to three key points of conceptual emphasis: the importance of international law and legal practice – including human rights – in constituting a reflective understanding of justice; the interplay between international and transnational normative regimes for which justice is a primary objective, and the more localized processes from which the allimportant narratives of everyday life emerge; and, finally, the ways in which the new multiplicities of justice shed light on the importance of memory and the politics of history in the wake of the post–Cold War “sea-change in global politics” and the instances of profound disrupture that it engendered. MIRRORS OF JUSTICE

In her analysis of the “disjunctures between global law and local justice” (2006a), Sally Engle Merry captures the essential predicament for those interested in reconceptualizing the meanings of justice in light of what we have learned over the last twenty years from empirical studies of postconflict reconstruction processes, the emergence of human rights as “the archetypal language of democratic transition” (Wilson, 2001: 1), and the creation and functioning of an international legal system that is playing an increasingly important social role within many of the contemporary world’s most significant sites of collective trauma and reconciliation. As she explains, the presence of international legal and human rights institutions is structured by “a particular vision of social justice [that is] based on a neoliberal privileging of choice rather than alternatives that could be more community-based or focused on socialist or religious conceptions of justice. These gaps between global visions of justice and specific visions in local contexts create a fundamental dilemma . . .” (2006a: 103). Merry goes on to show in rich ethnographic detail the ways in which the particular normative visions that motivate the activities of international institutions and their transnational collaborators are “vernacularized” by legal and political actors in the course of ongoing battles over cultural or national identity, the control over economic resources, and efforts to redefine gender relations. To vernacularize in this sense does not mean to simply translate dominant international normative conceptions into local cultural and linguistic terms. Rather, as she develops more fully

Introduction

7

elsewhere (2006b), the encounter between international and transnational normativities and local legal and moral visions – an encounter that takes place in a discursive space she calls “the middle” (see also Goodale, 2007) – is essentially constitutive. What is produced, in the case of the vernacularization of a treaty like the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), is a new but necessarily contingent account of human rights that bears the traces of multiple, cross-cutting, and often disparate discursive influences, including international human rights law, the more allusive human rights advocacy of transnational actors, national human rights legislation, and the often intentionally essentialized self-representations associated with particular cultural traditions. In other words, the particular strand of human rights consciousness that is created in the course of, for example, the debate over Fiji’s first country report under CEDAW, is a discursive hybrid that is both greater and different than its parts. Moreover, the many different vernacularized normativities that Merry tracks within the ambiguous middle spaces in which the international and transnational discursive rubber meets the winding local road are both interconnected and dynamic. This means that the account of human rights that is produced within debates over the reform of personal laws in India resonates with the account of human rights produced at roughly the same time in Hong Kong through a campaign by national activists to revise a domestic violence law (Merry, 2006a). Each of these many interconnected accounts of human rights is also essentially dynamic: The meanings of their component parts shift and recombine depending on the issue for which human rights is mobilized; movements in the broader political economies within which different vernacularized accounts of human rights are embedded can diminish or amplify them; and, perhaps most important, the relationship between a particular account of human rights in the vernacular and other discursive hybrids that are constituted and reconstituted in the same social spaces also changes, so that – again, drawing from Merry – in China human rights and social justice coexist differently at different moments in China’s contested present. These lessons from the recent anthropology of human rights are significant for any efforts to try and understand the multiplicity of justice (see also Clarke, 2009; Dembour, 2006; Dembour and Kelly, 2007; Englund, 2006; Goodale, 2009; Goodale and Merry, 2007; Slyomovics, 2005; Speed, 2008; Tate, 2007; Wilson, 2001). First, if it is true that transnational normativities in the vernacular retain what Merry calls a set of “core” meanings even as they also are constituted within “culturally resonant packaging” (2006a: 137), it is also true that the expression of these core meanings in actual legal, political, and moral practice is fundamentally unpredictable. This lesson is indeed a basic one of intellectual histories of all kinds: As ideas enter the currents of history, and spread beyond those from which they originally emerged, they become decontextualized and then unpredictably recontextualized. The new

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context is not sui generis, however, but the meaning and resonance of ideas like “dignity,” “liberty,” and “autonomy” open up in practice in ways that show them to be variations on a core theme the essential meaning of which has been transformed. A powerful example of this unpredictability can be found in Harri Englund’s study of human rights in Malawi (2006). As he shows, transnational human rights nongovernmental organizations (NGOs) and their national partners made “freedom” a framing discourse within ongoing struggles to reform Malawi’s economy and deliver needed services to its poorest citizens. The problem was both that the commitment to freedom came to dominate public debate and thus took the place of actual political and economic reform, and also that the meaning of freedom was recontextualized within Malawi’s postcolonial history in ways that made it susceptible to strategic manipulation by the country’s ruling elite. Second, the study of human rights practices demonstrates how fundamentally important what we might call moral agents are in the process of vernacularizing transnational normativities. Despite the concerns by some scholars (e.g, Hern´andezTruyol, 2002) that the post–Cold War has been marked by a kind of “moral imperialism” as the foot soldiers of liberalism take their message of freedom and human dignity “where governments are not so anxious for it” (quoted in Korey, 1998), in fact it is the legions of peasant intellectuals, provincial rights activists, jailhouse lawyers, indigenous political leaders, and others who drive the process of vernacularization. This moral agency is complicated and often ambiguous, and its motives are as diverse as the agents themselves, but it gives the lie to persons who might view the normative geographies of the post–Cold War through conventional analyses of geopolitical power. Take, for example, Shannon Speed’s ethnography of the vernacularization of human rights in Chiapas (2008). Not only do indigenous Zapatista political and social leaders self-consciously draw from the swirl of prevailing collective rights discourses in ways that are both strategic and entirely self-aware, they also, in the process, articulate a self-consciously alternative theory of human rights, one in which rights are both derived from indigenous cultural practice (not transhuman universality) and legitimate only to the extent that they can be effectively exercised within actual political struggles. Finally, the anthropology of human rights provides a framework for understanding the vernacularization of transnational normativities comparatively: That is, what can be said about the post–Cold War’s normative terrains at the most general level? Despite the essential unpredictability of recontextualization, and even with local moral agents directing the process of vernacularization well beyond anything that could have been contemplated by the initially directive set of international and transnational actors, when we survey the contemporary global-normative landscape we must conclude that it is characterized by a circumscribed pluralism. By this we mean that an entirely different kind of “legal pluralism” has been forged over

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the last twenty years. This legal pluralism is not the one that anthropologists have documented and analyzed so thoroughly, in which multiple legal systems coexist for people in the same social (Moore, 1973, 1986) and ideational (Santos, 1987, 1995) spaces, whether because of a weakness of state institutions, because of the presence of preexisting “customary law,” or because it is in the nature of legal-as-normative systems within contemporary nation-states to eventually fragment into several “semiautonomous” fields of norm-making and enforcement. Rather, the globalization of human rights and other transnational normative discourses has begun to reconfigure the geographies of law by both compressing the gap between law and nonlegal normativities (especially morality), and horizontalizing the relationship between legal orders through the universalizing rhetorics of rights, equality, and, as this book reveals, justice (see also Clarke, 2009). If the vernacularization of these rhetorics creates, as we have argued, a kind of post–Cold War normative pluralism that exists in those middle spaces between the global and the local, it is a pluralism that is circumscribed by the demands of local moral agents as much as by the transnational norms from which they draw (Clarke, 2009). We must be clear that we are not arguing here that the normative landscapes of the post–Cold War are becoming homogenous or “flattened” in the way that globalization gurus like Jeffrey Sachs and Thomas Friedman (in their respective ways) have argued. As the comparative study of rights and justice in practice has demonstrated, the actual ways in which local political and social struggles can be articulated through the process of vernacularization are constricted by the limited range of logics present in transnational normative discourse; at the same time, the meanings of “human rights” and “justice” for local actors take on significance only in the course of actual political and social struggles, only through the process of vernacularization. A recent volume of case studies and critical analysis of the practice of human rights provides particularly compelling support for the idea of a circumscribed pluralism (Goodale and Merry, 2007). The chapters cover a wide geographical and discursive range, from the conflict between human rights and citizen security in contemporary Bolivia to debates over the role of human rights in the drafting of a new constitution in Swaziland. Yet what emerges from this empirical diversity is the fact that in the post–Cold War period patterns have emerged in the way grievances are articulated, collective memory is constructed, and moral identity is constituted (or contested) (Clarke, 2009). These are patterns that can only be discerned through what is contingent about each site of normative vernacularization, whether it is the interplay between Buddhist, western/secular, and nationalist conceptions of the person in Nepal (Leve, 2007), the tensions between human rights discourse and “indigenous culture” in Colombia (Jackson, 2007), or the apprehension (and misapprehension) by activists and victims of major new rights instruments like the 2000 United Nations (UN) Human Trafficking Protocol (Protocol To Prevent, Suppress And

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Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime; Warren, 2007). Each of these insights from the study of human rights practices – unpredictability, the importance of moral agency, and the emergence of a circumscribed pluralism – also can be gleaned from the chapters in the current volume and, more broadly, can be used to help us understand justice as distinct constellations of ideological, social, and political practices over the last twenty years. Nevertheless, as the chapters in the volume also demonstrate, there are key differences between justice and other transnational normative discourses in the post–Cold War, and it is in marking these differences that the volume’s most far-reaching implications are to be found. First, justice does not stand in a coequal relationship with human rights as one among several transnational normativities. This problem is one of the most frustrating for persons tracking these transnational discourses empirically: How do justice and human rights exist in relation to each other in comparative practice, and how is this relationship to be understood theoretically? Transnational actors often promote justice and human rights as if they were conjoined normative twins, as in “our NGO works around the world for the protection of basic human rights and justice,” but equally often, justice is offered as a vague characterization of some future end-state toward which the present realization of human rights protections under law and a corresponding diffusion of a “culture of human rights” are the desired means. We think that on this question the chapters in the volume demonstrate that justice is functioning discursively in most cases as an ever-receding and ever-shrouded social ideal, rather than as an alternative normative orientation characterized by a set of concrete expectations and practices. Second, the chapters in the volume underscore the ways in which as a discourse justice is formally contextual. This is obviously not to say that all discourse – normative or not, transnational or not – is not contextual in some sense, but justice is contextual in a way that human rights is not, and this difference further distinguishes the comparative emergence and praxis of justice over the last twenty years. Indeed, on this point, human rights must be seen as the exact opposite of justice. Human rights norms are formally universal: Their jurisprudential and social meanings are initially established and articulated through the identifiable body of international instruments produced through the international treaty drafting and ratification process; human rights norms are highly specific as to form (rights) and content (the right to life, bodily integrity, etc.); and, most importantly, human rights norms are meant to be immune from substantive interpretation based on historical, cultural, political, and other contingent factors. Even though, as we have seen, this formal universality is profoundly transfigured as it is globalized along the networks of transnational advocacy and then, most importantly, vernacularized in the course of ongoing social

Introduction

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and political struggles, it nevertheless functions as a universalizing anchor around which the vernacularization process take place. As the chapters in this volume reveal, justice must be both formally and vernacularly invested with meaning at each moment in its discursive trajectory, at each moment in which justice becomes a functioning frame of reference for social actors in practice. Even if we look to the much older, highly formal, jurisprudential account of justice – that is, justice as fairness, justice as the rule of law, justice as equitability – it is clear that justice must be understood less as a set of norms (however contested) that shape social action than as a rationale for social action, one that has become institutionalized and increasingly hegemonic over the last fifteen years. As Sally Engle Merry explains in her contribution at the beginning of this volume, despite this essential diffuseness, four distinct sources for contemporary ideas of justice can be identified: human rights (both as a body of law and as an ideology used by social movements); “local practices embedded in communities, families, and neighborhoods”; religion; and discourses of transnational governance. Merry argues that the key challenge is to understand the ways in which these “multiply inspired images of justice relate to institutions such as the human rights system or transnational justice institutions” within the dynamics of normative practice. Finally, and perhaps most important, recent ethnographies suggest that justice is normatively thin and functions something like an empty signifier, especially compared with human rights (Clarke, 2009; Merry, 2006). Human rights, by contrast, is relatively normatively thick in practice, even if human rights are often mobilized discursively by actors without reference to specific international or national human rights laws. Even if it is only the idea of human rights – and the moral universe it implies – that is signified by its social invocation, it is an idea with definite and preexisting content; indeed, as scholars like Hern´andez-Truyol have argued (2002), its discursive content is not just thick in this sense, but ideologically so (see also the other essays on moral imperialism in the Hern´andez-Truyol volume). The same cannot be said of justice, which arguably does not signify anything – normative or not – that can be specified in advance, even granting (as with human rights) that the content, and thus meaning, of all discourses undergoes a shift (and thus is, to a certain extent, constituted) in the act of signification.1 Instead, it is the invocation of justice itself that generates its meanings in processes of postconflict reconciliation, in debates over the role of human rights in the new Europe, and in the construction 1

It goes without saying that in making this claim we are not referring to the many ways in which justice has been conceived in (mostly western) political theory or international law, in which a Rawlsian theory of justice (for example) is not thinner, in this sense, than, say, a Dworkian theory of human rights. We are not concerned here with justice as an ever-present category of elite intellectual discourse, except to the extent that the ideas of justice that it produces have been taken up and become part of the more general praxis of justice in the post–Cold War period (which they certainly have).

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of the victim as a social and political category with new resonances in the post– Cold War. For each of these reasons, we think the metaphor of the mirror is a helpful device for capturing the presence of justice across the wide range of case studies in this volume. To focus on justice analytically is to focus on the political, moral, and ideological imperatives that the diverse invocations of justice reflect. Also, as with any mirror, the actual image that appears as (and in) justice depends on the angle of reflection, which here refers to the prevailing contexts in which wider political, moral, and ideological imperatives are embedded. If what appears in the mirror of justice is a reflection of imperatives within existing social and political struggles, this image – like all reflections – has an appearance that cannot be simply described through reference to its constituent parts. Justice, in this sense, is both the discursive processes through which political, moral, and ideological currents come together in a particular way in the presence (or absence) of particular international and transnational actors (and their rhetorical logics), and the image of these currents brought together in just this way at just this point in time. In using the metaphor of the mirror, we are partly inspired by Susan Coutin, Bill Maurer, and Barbara Yngvesson’s 2002 study of the “connections between the legitimate and the illegitimate within global processes” (2002: 802). They invoke the mirror to explain how contemporary processes of immigration, global finance, and intercountry adoption constitute in key ways “relationships and slippages between . . . forms of movement, personhood, and statehood,” and the importance of law and its instrumentalities in this constitutive process. What is most important about the mirror for the authors is the way it embodies both transparency and opaqueness, what they describe as the “double-edgedness of transparency and of opaqueness” (2002: 837). As they explain: In order to be transparent, an account (much like a mirror) must be permeable; it must hide nothing, becoming an invisible and insubstantial means to a pre-existing truth . . . Yet, to accomplish this feat, an account must be there, it must be complete, with no gaps, holes or silences. The completeness of accounts makes them both apparitional and all too real . . . As a result, [discursive] orders shimmer. They are and are not. (2002: 837)

As the chapters in this volume reveal, justice is also both “apparitional and all too real.” In political and social struggles too, justice is both there and not there; it shimmers, as we have argued, in the distance, as both an elusive endpoint and rationale for often tragically costly social action. In its discursive emptiness justice is also paradoxically complete, or, we might say, all too complete. Also, if justice can be usefully understood as a mirror in these ways, it is also true that there are as many mirrors as there are moments of invocation; in other words,

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despite the universalizing logics of transnational normative discourse more generally, we cannot speak of one “mirror of justice,” one reflective constellation of ideological, social, and political practices that is dominated and shaped by identifiable norms (however contested). Instead, the vernacularization that we saw at work in the translocalizing spaces in which human rights are appropriated and invested with meaning has with justice nothing to appropriate, no dominant set of superordinate norms with which to contend. To understand justice in this way is to explain – at least in part – why over the last twenty years justice and human rights have moved along starkly different discursive trajectories. Human rights discourse has become essentially politicized as the “western” norms that constitute it serve now the interests of the powerless, now the interests of the powerful (whether justified by imperial or antiimperial logics) as only one part of much broader and more ambiguous political and moral economies. Justice has remained more politically elusive in the postCold War, however; its “double-edgedness of transparency and of opaqueness” has rendered it both ever-presently powerful as a potential signifier, and resistant to the kind of instrumental appropriation that we see so clearly in the practice of human rights. This is not to say that the institutions that have emerged over the last twenty years to pursue justice are not essentially and crucially political, as we have seen with the ICC. This is different than to say that justice itself is essentially political in the way that human rights has become. Indeed, with justice there is nothing to politicize, no set of preexisting norms to become enmeshed in the swirl of ideological struggle. The chapters in the volume both reveal and, to a certain extent, reproduce these many different mirrors through case studies of specific contemporary moments in which the political, the moral, and the ideological were brought together within a particular angle of reflection. If we can call the image that subsequently appeared justice, this is not – as we will see – to say that the chapters demonstrate that in certain cases justice in some abstract (perhaps Greek) sense was done. Rather, if the chapters carry any lessons for those who would turn to them on the question of the possibilities of justice as such, it would be that the question itself, though perennially captivating, fundamentally misapprehends the nature of justice as a description of contextualized – though interconnected – discursive processes shimmering elusively in the post–Cold War sun. Also, even if the chronologies of some of the volume’s chapters begin well before 1989, the insights that the authors bring to them are informed by a post–Cold War sensibility, by the lessons to be drawn from the ethnographic study of justice over the last twenty years. The chapters are grouped together under three headings that correspond to three categories of imperatives that – collectively – are commonly reflected in the processes and images that we can call justice: those of international law (which includes the political institutions that are charged with implementing international law at different levels); those of the local, which includes the details of particular acts of moral agency, resistance to

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(or the defense of ) power, and the mundane intrusions of everyday life; and those of what we can broadly describe as “ideology,” which include the struggle over forms of history making and the politics of collective memory. To group the chapters around these three categories is not to argue that there are not other, equally important, imperatives that also appear as reflections in contemporary mirrors of justice. Given the historical, cultural, and thematic diversity of the volume’s chapters, however, we think that these groupings, taken together, present a fairly comprehensive account of how and why justice appears in certain places and times, however ephemerally. JUSTICE AND THE GEOGRAPHIES OF INTERNATIONAL LAW

Both the proliferation of justice mechanisms and institutions, and the spread of multiple contemporary discourse of justice, have been inextricably bound with the fortunes of international law in the post–Cold War period. Indeed, the importance of international law in the development of broader contemporary understandings and practices of justice can be traced to the war crimes trials that followed the end of the Second World War, in which politically charged and jurisprudentially ambiguous legal regimes were created to do the impossible: to give voice to the sense of outrage over the atrocities committed by the vanquished and thereby avoid what Robert Jackson, in his summation to the court at Nuremberg, called a “vast and unforgivable caricature of justice” (Jackson, 1946; see also Evans, 2006). The complicated linkages between international law and the multiplicity of justice are not just limited to international criminal law, however, even if the creation of the ICC in 2002 played a pivotal role in the (re)emergence of justice as a key discursive ordering principle for international institutions, victims, political leaders, militants, humanitarian activists, and many other post–Cold War social actors in search of a principle of legitimacy. Marie-B´en´edicte Dembour’s contribution explores yet another way in which international law shapes contemporary understandings of justice. If the process through which the 2005 Iraqi Constitution was conceived and ratified has become a symbol for the way in which the possibilities for justice through law can become fundamentally distorted, the European Court of Human Rights, by contrast, has come to be seen as a model for the progressive potential in an international rule of law (see, e.g., Summers, 2007). As Dembour shows, however, the rule of international law can obscure as much as it reveals, protects, and redresses. In this way, notions of justice are framed against a background in which a legal institution with almost universal legitimacy only selectively enforces provisions of its guiding charter – in this case, the European Convention on Human Rights. Dembour argues that, although racism is prevalent throughout contemporary Europe, and racial discrimination is prohibited in the Convention, the Court cannot act as a forum for redressing this

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particular violation because it mirrors a wider culture of denial in Europe, in which racism is both known and not known at the same time. Her analysis develops in rich descriptive and theoretical detail the origins and implications of what she calls the “postcolonial logic” through which the European Court of Human Rights – and thus international law itself – mirrors broader cultural and political imperatives. In Mike McGovern’s chapter, justice becomes a politically charged rationale through which competing interests in Cote ˆ d’Ivoire create a “noxious mix of legalistic wrangling, persistent intimidation, and occasional spasms of extreme violence to achieve their ends.” In his sophisticated analysis, McGovern demonstrates how the provision of, or threats to, justice cannot be understood in contemporary Cote ˆ d’Ivoire without understanding more broadly the recent political history of post– Cold War Africa. As he explains, Ivorian political elites on different sides of ongoing conflicts share a common concern with ensuring that their country is distinguished from others in West Africa in the current conjuncture, in which the ICC and transnational public discourse more generally construct the region as a place where “any type of abuse” takes place, “from sexual servitude to extracting labor from civilians in a mode that combatants themselves call slavery.” Here justice is associated with a broader discourse that opposes civilization to the savagery of the orientalized Dark Continent. It is not that real atrocities have not taken place within the civil and ethnic wars of contemporary West Africa; it is that these particular tragedies are reconstituted within a broader transnational cultural rhetoric that equates justice with an overcoming of certain implicit cultural and political inevitabilities that afflict the region. Yet according to McGovern, the praxis within Cote ˆ d’Ivoire that reflects these wider imperatives has real and measurable effects. As he says, “political legitimacy continues to be linked to keeping up the appearance of sophisticated ‘civilized’ behavior . . . Ivorian political actors may change their actions in response to the threat of prosecution for war crimes because they do not like to think of themselves as war criminals, and don’t want others to think of them that way either.” Social anthropologist Signe Howell moves the analysis of the relationship between international law and understandings of justice in yet another direction. She examines the two international legal conventions that regulate the dramatically expanding practice of transnational adoptions: the UN Convention on the Rights of the Child (1989) and the Hague Convention on Intercountry Adoption (1993). She explains that the conventions are the product of a particular, Western, desire to create an international legal regime in which both the rights and needs of different actors would be accommodated in light of the fact that the demand by Western parents for access to adoptable children from the Third World has proven insatiable. Through her comparative and critical analysis of the practice of transnational adoption between several donor and receiving countries (Ethiopia, India, China, and Romania), Howell arrives at a surprising and important conclusion: that actors in

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the receiving countries are primarily concerned with both the international legal rights of the children and their “best interests” (which are understood to encompass the economic, social, and psychological), whereas actors in the donor countries – especially the government officials who oversee the processes of adoption – are primarily concerned with the problem of justice, not in relation to the children or their new parents, but in relation to the political and economic terms that structure the interactions between the donor and receiving countries themselves. As she explains, “many [donor countries] are highly sensitive to what they regard as paternalism or neocolonialism. It must be borne in mind that transnational adoption is not development aid. Neither is it a humanitarian practice. Euro-Americans who wish to adopt a child from a poor country in the South do so out of the ‘selfish’ reason of wanting to become parents when biology has failed.” The disjunctures between understandings of justice and autonomy, and those between understandings of childhood, the family, and social relations, mean that donor and receiving actors respond to different sets of logics within a transnational practice that fundamentally involves the most vulnerable of humans at the most critical time in their lives. Benson Chinedu Olugbuo’s chapter offers both an insider’s perspective on the ways in which recent international legal processes have shaped multiple understandings and possibilities for justice, and an account that reflects the imperatives of policy making and institutional practice. Olugbuo, who is the Anglophone Africa Regional Coordinator for the Coalition for the International Criminal Court (and a visiting lecturer in human rights at the University of Pretoria), provides a detailed analysis of the particular difficulties that have accompanied the ICC’s efforts to both encourage nation-states to become states-parties, and to initiate prosecutions within African countries that have already become states-parties to the Rome Statute. In particular, Olugbuo examines the tensions inherent in what the ICC itself sees as the two categories of imperatives that shape it, which are the protection and maintenance of peace on the one hand, and, on the other hand, the prosecution of cases against individuals who have committed gross human rights violations as specified in the Statute. He argues that these tensions should prevent neither the ICC from becoming an essential international legal actor, nor countries from acceding to its mission to prosecute perpetrators of crimes the gravity of which transcends nation, culture, and the contingencies of political history. In a sense, his examination of the complexities within each of the Court’s investigations to date leads him to a pragmatic set of policy suggestions that reflect his belief that the multiplicity of understandings of justice is not a problem that can be finally resolved. As he says so directly and forcefully, “The way forward is for the ICC prosecutor to proceed with his prosecutions. He has a mandate and should not be required to make the essentially political judgment(s) of whether the prospects of an uncertain peace should take precedence over justice.” This position highlights a practitioner’s view of what

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“justice” is and demonstrates how definitions of “justice” are not only varied but also are political contortions. The final chapter in the volume’s first section, by the legal anthropologist Galit Sarfaty, likewise provides a fascinating inside account of the ways in which international law and institutions are ambiguously linked with emergent understandings of justice in contemporary transnational normative discourse. Sarfaty was granted access to conduct ethnographic research inside the World Bank at its headquarters in Washington, DC, during a time in which the Bank had begun a series of initiatives aimed at developing quantitative methods for measuring normativity in different parts of the world. Specifically, the Bank’s Legal Department was interested in examining the extent to which the establishment (or not) of human rights norms was correlated with justice indicators, a project that the Department described as the “Measuring Justice Initiative.” Yet, as Sarfaty’s chapter explains, the different departments of the World Bank are staffed by experts who share demonstrably divergent understandings of both the meaning and relevance of human rights and justice. A key divide uncovered by Sarfaty during her research is that between what she describes as “principle” and “pragmatism,” in which even among those World Bank staffers who hope to make human rights and justice central to the Bank’s mission, there exists a difference of perspective over whether such new foci should be driven by intrinsic or instrumental concerns. Even more consequential, the lawyers behind the Measuring Justice Initiative were forced to “economize” the human rights norms that the project intended to measure, which means that they were retranslated into conceptual terms that could be understood and technocratically processed within the wider culture of cost–benefit analysis that dominates the Bank. Sarfaty’s study demonstrates that contemporary understandings of justice are often shaped as much by discursive microdynamics within international institutions as they are by the formal operations of these institutions through international courts, development projects, or financial policy making. JUSTICE, POWER, AND NARRATIVES OF EVERYDAY LIFE

The chapters in the volume’s second part examine another set of imperatives that shape contemporary understandings of justice: those that are embedded in the practices and narratives of the everyday lives of ordinary social actors and nonelite local institutions that grapple with, vernacularize, and at times resist the dominant accounts of human rights and justice promoted by international and transnational actors. Here the ethnographic foundations of the volume are most directly and surprisingly revealed, because the close engagement with everyday encounters with the multiplicity of justice demonstrates both the importance of cultural, political, and ideological context and the ways in which different forms of power are

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fundamentally implicated in contemporary processes of justice making. As the chapters in this section demonstrate, however, it is not enough to simply counterpose the international or transnational to the local, as the scales of contemporary normative practice are both more interpenetrating and mutually constitutive. Nevertheless, even though the empirical study of what we might call the constitution of everyday justice highlights the extent to which cultural values and particular historical conjunctures complicate efforts to understand justice through several more general frameworks (theoretical, political, moral), the chapters in this section also underscore the ways in which contemporary local justice making is always refracted – at least in part – through broader frames of meaning and praxis. The first chapter in this section, by Susan Hirsch, is a metareflection on the relationship between the empirical/ethnographic and the normative within both theoretical studies of justice and, more important, contemporary efforts to use empirical insights to reform international law more broadly. She uses a critique of the recent writings of the law professor Marc Drumbl in particular (2005, 2007) to question the way in which empirical studies of justice processes are taken up by scholars and reformers and incorporated into often simplistic and overly dichotomous frameworks. In the case of Drumbl, Hirsch is skeptical of his efforts to draw from empirical studies of international criminal justice processes build toward a more comprehensive theory of victimhood, one that is derived from, as Hirsch puts it, phenomena “. . . labeled variously as local, culturally relevant, . . . and non-Western.” Although she is sympathetic with the impulse that seeks to broaden the range of viewpoints and sources of knowledge that feed into emerging theories of international law and criminal justice, she is ultimately pessimistic that such an expansive conversation is likely to replace the more politically restricted and discursively limited one that continues to dominate what she describes as “current international offerings.” Joel Robbins’s chapter is also a reflection on the relationship between the empirical and the normative within broader efforts to understand and perhaps clarify the multiplicity of justice, but his analysis of normativity in contemporary Papua New Guinea leads him to draw surprising and illuminating normative conclusions of his own. Robbins examines the relationship between rights and justice as these are conceived within local legal and moral practice in Papua New Guinea, and as these forms of local practice have been refracted within and in terms of a broader transnational normative discourse that – especially during the so-called Campo Girl case – has interconnected with them. As Robbins explains, Papua New Guineans conceive of justice within a complicated social ontology in which human beings are not understood to have fundamental individual rights as contemplated by dominant international legal instruments like the Universal Declaration of Human Rights. Instead, justice in the Papua New Guinea context can be understood to describe an ideal social outcome in which people perform and actualize a series of relationships; indeed, personhood itself is essentially social, because one’s individuality consists of

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respecting local norms that prescribe frameworks of relationality. After explaining the contours of relational justice in rich and insightful detail, however, Robbins turns back and uses what he admits are the comparatively obscure data from Papua New Guinea as a mirror into which he reflects the legacy of Western normative preoccupations, prejudices, and elisions. The image that he produces is one through which he detects an unacknowledged appreciation for the kind of relational justice that dominates normative practice in Papua New Guinea. At its core, Robbins’s chapter is a call to recognize the universality of relational justice. As he says, “. . . In the end, we may best be judged by the universals we cannot see or will not borrow from those who have seen them clearly and elaborated them fully, rather than by the ones that we find it easy to formulate and to value and that we therefore most aggressively promote.” In her chapter, Amy Young takes a fresh look at one of the most controversial and frequently analyzed problems within contemporary justice and human rights studies: the relationship between international legal norms and those derived from Shari’ah, or Islamic law. As she explains, the practice of Islamic law in Morocco – as contested and internally diverse as it is – is anchored in a robust discourse of justice. Young’s description of this discourse of justice is worth quoting at some length. As she explains, “In Islam . . . justice is seen as deriving from God; God is the guarantor of human rights and other forms of justice, through the material provisions of Shari’ah. This can be overstated, however, in that Islam also fully recognizes that justice must be carried out through human institutions and demands that Muslims work to achieve social justice.” Young carried out ethnographic research in the early 2000s around efforts to reform the Moroccan Family Code. The debates over these reforms involved international human rights activists, local religious leaders, Moroccan feminists, and the king of Morocco, who was himself a leading advocate for bringing national family law into compliance with the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). What resulted was something rare within contemporary sociolegal processes: a reform law that each of the sides claimed as one that reflected its own understanding of justice. As Young puts it, the “[new family code] is a compromise, a vague document that allows for a variety of projects and directions that must now be negotiated with the state, the courts, families, and communities.” In a sense, the vagueness and codified multiplicity of the 2004 reformed Moroccan Family Code reflects the broader multiplicity of prevailing contemporary understandings and projects of justice. As Young’s chapter demonstrates, far from being a problem to be resolved, the multiplicity of justice within ongoing sociopolitical processes is a potential source of reconciliation and compromise within pluralistic societies. The social anthropologist Rosalind Shaw, who has been a longtime ethnographic observer of truth and reconciliation and transitional justice processes in Sierra Leone, explores the emergence of contested understandings of justice in the aftermath of

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mass atrocities and profound social trauma. In the final chapter of this section, Shaw examines the ways in which three interconnected but distinct discourses have shaped both local and transnational understandings of the eleven-year civil war in northern Sierra Leone and its politically, culturally, and legally fraught aftermath: the discourses of justice, human rights, and peace. In particular, local politicians, victims, and ex-military actors, as well as different types of external commentators (academics, journalists, international humanitarian workers), have understood the aftermath of the civil war as one structured by an essential tension between the imperatives of justice and the imperatives of peace. Shaw argues that unlike rights, the discourses of justice and peace are differently but analogously indeterminate, which has meant that the construction of meaning in postconflict Sierra Leone has been especially marked by ambiguity, politicization, and ideological struggle. As she explains, “Given this fundamental indeterminacy of justice and its placement in binary opposition to a second floating signifier – ‘peace’ – the peace versus justice debate [in contemporary Sierra Leone] offers abundant possibilities for [examining] struggles over meaning . . .” Shaw concludes her analysis of the interplay of these contested indeterminacies in Sierra Leone with a profound insight: their coexistence in practice not “simply a case of ‘universal justice meets local values,’ but of how people live with the contradictions that already form part of justice interventions.” JUSTICE, MEMORY, AND THE POLITICS OF HISTORY

The concluding section of Mirrors of Justice features chapters that examine the ways in which contemporary multiplicities of justice are tightly linked to processes of public memory making, which unfold as political and ideological domains of struggle over both the authorized content and meaning of history itself. Indeed, as Richard A. Wilson (2001) demonstrated in his ethnographic account and critique of the South African Truth and Reconciliation Commission, the emergence of new understandings and appropriations of justice in the post–Cold War period has been coextensive with the emergence of both novel forms of normativized history and historiography. Even more, ethnographers like Wilson have demonstrated how the protagonists in struggles over meanings of justice within new forms of history making are often the very nonelite social actors who become the subjects of historiographical concern: victims of structural violence; soldiers; low-level government functionaries (those “willing executioners” embedded deep in the bowels of oppressive regimes); local humanitarian activists; court officials; and others. As the chapters in this final section reveal, however, the new conjunctures of justice making and history making are neither progressive nor reactionary as such; instead, the normativization of history/historiography takes place within a broader yet still contextual narrative, one that seeks to give “moral meaning” to “disasters such as Rwanda or Srebrenica” at

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the same time it provides the “promise of a radiant future,” as the international legal scholar Martti Koskenniemi has argued (2002: 34–35). The contribution by the anthropologist Elizabeth Drexler is also an exercise in critical historiography. Drexler examines the ways in which narratives of the past, and dominant studies of these narratives, have shaped understandings of mass violence in Indonesia. Her chapter explores the limits of any form of historical narrative to provide a final, authoritative accounting of past atrocities. In this sense her study questions the deeper assumption in Indonesia that justice for victims of past mass violence is to be found in a more accurate, objective, depoliticized approach to the study and reporting of the past. To understand contestations over different demands for justice through history, Drexler argues that we must take an essentially discursive perspective, one in which the imperatives of different actors and institutions in Indonesia shape and, at times, misshape, debates over legacies of violence. As she explains, “There is no neutral history, only a master narrative and counter-narratives that present alternative points of view. The key question is not about the scientific truthfulness of new histories, but about the uses made of history by the state and by opposition groups, as well as the role of conflict narratives in structuring various international mediations, state policies, and political interventions.” In her chapter, the security studies scholar Jeanne Guillemin examines the circumstances surrounding the establishment of the less heralded of the two war crimes trials following the Second World War, the Tokyo war crimes trial (which is formally known as the International Military Tribunal for the Far East – or IMTFE). Her study serves as a sobering reminder of the ways in which the purposes of even the most formal of international justice mechanisms can become overwhelmed by competing demands, in this case those of the national security of the United States, which was “fundamentally in control of the IMTFE.” As she explains, the moral outrage in the United States over Japanese atrocities committed during the war was, in a sense, undercut by a competing political and military push to ensure that U.S. national security was reinforced through the continued development of weapons of mass destruction – both biological and nuclear – that were capable of causing civilian death on an unprecedented scale. In particular, Guillemin draws out the lessons for today of the failure by the United States to prosecute the Japanese use of biological weapons, in part because the United States was itself interested in making biological weapons part of its national defense. Although the historical context was quite extraordinary, the implications for contemporary international justice institutions like the ICC are clear. As she concludes, “the U.S. failure to prosecute Japanese use of germ weapons . . . shows how national interests can undermine the pursuit of international justice, even in cases of systematic mass murder and torture.” Jane Cowan’s chapter is a reminder that, although debates over the meanings and implications of justice have been shaped in new ways since the end of the Cold

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War, the pluralizing and politicization of justice within broader international and transnational discourse had its roots in earlier historical moments. Yet even if the topic of her chapter is the Minorities Treaties that were part of the post–World War I settlement, her analysis is really one of critical historiography: She wants to reveal and recuperate voices that influenced debates at the time over what she describes as the “minority regime,” voices that understood the establishment of a legal minority rights system – and, indeed, the League of Nations itself – as part of a broader and innovative project of international justice. Her chapter is a critique of a broader move within different scholarly literatures to reevaluate and emphasize the importance of the interwar rights regime, which, as Cowan described, had previously been “acknowledged as a well-meaning but flawed predecessor that the post-Second World War regime of universal human rights made redundant.” She rejects the authoritative account of the interwar treaties system that describes it as the product of the imperatives of realpolitik pure and simple. Instead, her chapter is a call for giving the highly situated desires and projections of actors involved with the creation of the minority regime and its aftermath their discursive due. Indeed, she argues that the debates over the extent to which the Minorities Treaties were part of a broader justice-making project have significance well beyond the problem of justice itself. As she says, these debates created a “global publicsphere, and . . . animat[ed] the formation of a modern, global civil society in the early twentieth century.” The final chapter to examine the relationship between history making and justice making is one that examines yet another set of postconflict cultural and political processes that became structured by a set of discursive binaries, oppositions that gave the appearance of ideological clarity within the reality of what the authors describe as “the vast gray zone.” International lawyer Lisa Laplante and anthropologist Kimberly Theidon examine the ways in which the Peruvian Truth and Reconciliation Commission (PTRC) – one of the most contested and consequential TRCs in the post–Cold War period – engaged with members of the two revolutionary movements that had lost in their struggles to destroy a series of national governments. The PTRC was established in July 2001, just two months before the attacks of September 11, and it operated for the following two years within a polarized national political climate that was deeply affected by the broader international “war on terror.” Indeed, as Laplante and Theidon explain, the intensified preoccupation with “terrorism” profoundly shaped the ways in which “truth” was commissioned and particular forms of “silence” were constructed through the TRC. Like many of the volume’s authors who have studied empirically the complexities of postconflict reconstruction and collective attempts at healing, Laplante and Theidon come to the conclusion that any “justice” that does not embrace perpetrators as well as victims is a false and eventually insidious one. As they say, formal justice mechanisms – which they describe, revealingly, as “technologies of truth” – must acknowledge “political

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protagonism even while condemning the forms it may take. That recognition may be crucial to serving both the needs of history as well as those of justice: Understanding the motivations of the vanquished may contribute to the structural reforms that prevent future violence.” CONCLUSION: JUSTICE AND INJUSTICE IN THE CURRENT CONJUNCTURE The current conjuncture is one in which any study of justice must remain both fraught with ambiguity and charged with a poignant urgency. The wars in Iraq and Afghanistan (and the “war on terror” more generally) continue to be justified as part of a broader effort by the United States and its allies to bring particular forms and understandings of justice to the Middle East (see Mattei and Nader, 2008; Wilson, 2005). Also, the ICC continues to confront unanticipated political and ideological challenges, even as the Court expands its geographical scope and considers opening prosecutions in places like Colombia (Clarke, 2009; Allen, 2006). It is, in other words, critically important that the problems of justice be approached from a new set of perspectives, which is something Mirrors of Justice attempts to do. The volume offers both reflections on a wide range of current case studies and insights into how these empirical case studies allow us to conceptualize “justice” in the plural without having to offer yet another abstracted theory of justice. Indeed, as we have argued, perhaps the most important implication to be drawn from this volume is the fact that abstracted theories of justice as such have proven of so little explanatory value within the practices of contemporary justice making, those many different sites in which the meanings of justice are being debated, resisted, and appropriated. If the metaphor of the mirror has given us the ability to explain both the reflective and refractive properties of justice, it must be invoked here one last time and for one final purpose. If “justice” reflects and refracts different political, legal, and discursive imperatives in the current moment in new and often surprising ways, we must never lose sight of something else that can be detected shimmering illusively in the distance: justice’s opposites, those moments of injustice that remind us of the underlying and continuing stakes that form the backdrop to this and any other similar work of critical scholarship. Laura Nader – who has been a longtime student of the multiplicity of justice and an unrelenting critic and keen observer of the pretensions of the powerful and the “controlling processes” (Nader, 1997) that they employ – brings the volume to a close with an epilogue that reminds us that the kind of discursive framework we adopt here for understanding the meanings of justice is never only, or most importantly, an academic one. As she argues, categories of reference – words, translations, and the supposed ideas that words invoke – shape entire political economies. It is the

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job of the critical scholar, of course, to reveal this shaping process, but for Nader it is not enough to deconstruct “justice” by “break[ing] disciplinary boundaries, [and] borrow[ing] from whoever and whatever sharpens our understanding, [so as to] contribute to new ordering principles.” Rather, for scholars whose work confronts them with certain concrete and undeniable realities – of human suffering, of the abuses of powerful elites, and of the impulse to resist even in the face of violent oppression – the task is more complicated. Drawing from the underappreciated writings of the legal philosopher Edmond Cahn, Nader urges us to begin and end our inquiry with the problem of injustice, which can never be understood without considering what is “vibrant, fleshy, and individual” about the human experience itself. In other words, the ancient critical impulse to move from the concrete to the abstract does us no good here, because the dialectical problems of justice and injustice require the use of “the heart [as much as] the head,” the ability to project beyond both the “merely contemplative” and our “privileged position[s, which allow us] to bring a critical approach . . . [and] put familiar facts together in unfamiliar ways and thus provoke thought about fundamentals.” This is a prescription for a critical study of the multiplicity of justice that is anchored in the experiential as much as it is in an alternative theory of knowledge. The chapters in Mirrors of Justice are accordingly attuned to the need to never lose sight of what is most urgent within our domain of inquiry – the need for reflectivity and an appreciation for difference as it plays out in relations of power. Bibliography Allen, Tim. 2006. Trial Justice: The International Criminal Court and the Lord’s Resisistance Army. Zed Press. London. New York. Braithwaite, John. 1999. Restorative Justice: Assessing Optimistic and Pessimistic Accounts Crime and Justice: A Review of Research, vol. 25, edited by Michael Tonry. Chicago: University of Chicago Press. pp. 1–127. Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity. Princeton: Princeton University Press. Brown, Wendy. 2006. Internationalizing the Statecraft: The ICC, Religious Revivalism, and the Cultural Politics of Genocide, The Loyola of Los Angeles International and Comparative Law Review 28, issue 2. Brown, Wendy. 2007. The International Criminal Court: A path to international justice? In Dembour, M.-B. and Kelly, T. (eds.). Paths to International Justice: Social and Legal Perspectives. Cambridge University Press. Clarke, Kamari. M. 2009. Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. Cambridge University Press: New York. Comaroff, J. and Comaroff, J. 2004. Criminal justice, cultural justice: The limits of liberalism and the pragmatics of difference in the new South Africa. American Ethnologist 31: 188–204. Connolly, William E. 1991. Political Theory and Modernity. Indianapolis, IN: Wiley Press.

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Connolly, William E. 1993. The Terms of Political Discourse. Indianapolis, IN: Wiley Press. Connolly, William E. 2002. The Augustinian Imperative. Rowman & Littlefield Publishers. Coutin, Susan Bibler, Bill Maurer, and Barbara Yngvesson. 2002. In the mirror: The legitimation work of globalization. Law and Social Inquiry 27(4): 801–843. Daly, Kathleen. 1994. Gender, Crime and Punishment. New Haven, CT: Yale University Press. Dembour, Marie-B´en´edicte. 2006. Who Believes in Human Rights?: Reflections on the European Convention. Cambridge: Cambridge University Press. Dembour, Marie-B´en´edicte, and Tobias Kelly (eds.). 2007. Paths to International Justice: Social and Legal Perspectives. Cambridge: Cambridge University Press. Derrida, Jacques. 1992. Force of law. In Quaintance, M. (trans.) and Cornell, D., Rosenfeld, M., and Carlson D.G. (eds.). Deconstruction and the Possibility of Justice. New York: Routledge. pp. 3–67. Durkheim, Emile, and Bellah, Robert N. (ed.). 1973. Emile Durkheim: On Morality and Society, Selected Writings. Chicago: The University of Chicago Press. Ellickson, Robert C. 1991. Order without Law: How Neighbors Settle Disputes. Cambridge MA: Harvard University Press. Englund, Harri. 2006. Prisoners of Freedom: Human Rights and the African Poor. Berkeley: University of California Press. Evans, Malcom (ed.). 2006. International Law. Oxford: Oxford University Press. Goodale, Mark. 2007. Locating rights, envisioning law between the global and the local. In Goodale, M., and Merry, S.E. (eds.). The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge: Cambridge University Press. Goodale, Mark. 2009. Surrendering to Utopia: An Anthropology of Human Rights. Stanford: Stanford University Press. Goodale, Mark, and Sally Engle Merry (eds.). 2007. The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge: Cambridge University Press. Greenhouse, Carol. 1994. Law and Community in Three American Towns. Ithaca: Cornell University Press. Gruter, Margaret, and Paul Bohannan. 1983. Law, Biology and Culture: The Evolution of Law. Santa Barbara, CA: Ross-Erickson. Hern´andez-Truyol, Berta Esperanza (ed.). 2002. Moral Imperialism: A Critical Anthology. New York: NYU Press. Hirsch, Susan. In The Moment of Greatest Calamity: Terrorism, Grief and a Victim’s Quest for Justice. Princeton: Princeton University Press. Ivison, Duncan. 2002. Postcolonial Liberalism. Cambridge: Cambridge University Press. Jackson, Jean. 2007. Rights to indigenous culture in Colombia. In Goodale, M., and Merry, S.E. (eds.). The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge: Cambridge University Press. Jackson, Robert. 1946. Summation for the Prosecution, Nuremberg War Crimes Tribunal. Available at:http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Jacksonclose.htm Kennet, Miriam (ed.). 2005. Proceedings of the First Ever Green Economics Conference at Oxford University (April). Green Economics Institute. Kennet M., and V. Heinemann. 2006. Setting the scene. Important innovations in Green Economics. International Journal of Green Economics, Spring 2006 (Inderscience). Kennet, M., and Heinemann, V. (eds.). Vol. 1, Issues 1 and 2. Available at: http://www .inderscience.com/ijge.

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Korey, William. 1998. NGOs and the Universal Declaration on Human Rights: A Curious Grapevine. New York: St. Martin’s Press. Koskenniemi, Martti. 2002. Between Impunity and Show Trials. Max Planck Yearbook of United Nations Law, Volume 6. Amsterdam: Kluwer Law International. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Oxford University Press. Kymlicka, Will. 1998. Finding Our Way: Rethinking Ethnocultural Relations in Canada. Oxford: Oxford University Press. Kymlicka, Will. 2007. Multicultural Odysseys: Navigating the New International Politics of Diversity. New York: Oxford University Press. Leve, Lauren. 2007. Secularism is a human right!: Double-binds of Buddhism, democracy, and identity in Nepal. In Goodale, M., and Merry, S.E. (eds.). The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge: Cambridge University Press. Lovat, Henry M. 2006. Delineating the Interests of Justice: Prosecutorial Discretion and the Rome Statute of the International Criminal Court. bepress Legal Series.Working Paper 1435. Available at: law.bepress.com/expresso/eps/1435. Mattei, Ugo, and Laura Nader. 2008. Plunder: When the Rule of Law is Illegal. Oxford: Blackwell. McEleney, James C., and Barbara Lavin McEleney. 2005. Penology, Justice and Liberty: Are you a Man or a Mouse? Lanham, MD: University Press of America. Merry, Sally Engle. (2006a). Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press. Merry, Sally Engle. 2006b. Transnational human rights and local activism: Mapping the middle. American Anthropologist 108(1): 38–51. Moore, Sally Falk. 1973. Law and social change: The semi-autonomous field as an appropriate subject of study. Law and Society Review 7: 719. Moore, Sally Falk. 1986. Social Facts and Fabrications: Customary Law on Kilimanjaro, 1880–1980. Cambridge: Cambridge University Press. Moreno-Ocampo, Luis. 2006. Keynote address, Yale University, Justice in the Mirror Conference. Nader, Laura. 1997. Controlling processes: Tracing the dynamic components of power. Current Anthropology 38(5): 711–737. Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press. Roberts, Julian V. and Loretta Jane Stalans. 1997. Public Opinion, Crime, and Criminal Justice. Boulder, CO: Westview Press. Roosevelt, Kermit. 2006. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. New Haven, CT: Yale University Press. Roosevelt, Kermit. 2006. Conflict of Laws: Cases, Comments, Questions (West 7th ed.) (with David Currie, et al.) Roosevelt, Kermit. 2005. Constitutional Calcification: How the Law Becomes What the Court Does, 91 Virginia Law Review: 1649. Rosen, Lawrence. 2000. The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford: Oxford University Press. Sachs, Jeffrey, and Katharina Pistor. 1997. The Rule of Law and Economic Reform in Russia. Boulder, CO: Westview.

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Santos, Boaventura de Sousa. 1987. Law: A map of misreading; toward a postmodern conception of law. Journal of Law and Society 14: 279. Santos, Boaventura de Sousa. 1995. Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. New York: Routledge. Slyomovics, Susan. 2005. The Performance of Human Rights In Morocco. Philadelphia: University of Pennsylvania Press (Penn Studies in Human Rights). Speed, Shannon. 2008. Rights in Rebellion: Indigenous Struggle and Human Rights in Chiapas. Stanford: Stanford University Press. Summers, Sarah J. 2007. Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights. Oxford: Hart Publishing. Tate, Winifred. 2007. Counting the Dead: The Culture and Politics of Human Rights Activism in Colombia. Berkeley: University of California Press. Warren, Kay. 2007. The 2000 UN Human Trafficking Protocol: Rights, enforcement, vulnerabilities. In Goodale, M., and Merry, S.E. (eds.). The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge: Cambridge University Press. Wilson, Richard A. 2001. The Politics of Truth and Reconciliation in South Africa. Cambridge: Cambridge University Press. Wilson, Richard A. (ed.). 2005. Human Rights in the “War on Terror.” New York: Cambridge University Press.

1 Beyond Compliance Toward an Anthropological Understanding of International Justice∗ Sally Engle Merry In this volume, Mark Goodale and Kamari Clarke courageously tackle the question of the meanings of justice in a world that is exploding with interest in human rights and transitional justice. These initiatives are powered by the idea of justice, and compliance is deeply dependent on the normative support that the evocation of justice provides. Yet, as they point out, justice is an extremely vague and unspecified concept, however powerful. Most people agree that they want justice but have far greater difficulty deciding which dictator of what country should be tried and whether he should be killed for which offenses. It is, as Goodale and Clarke say, the very aspirational quality and substantive openness of the concept of justice that gives it its power. In this regard, the idea of justice differs sharply from that of human rights, which has an elaborate set of legal texts and procedures such as conventions, treaty bodies, complaint mechanisms, and civil society organizations that ferret out abuses and translate them into human rights terms that are recognizable to these international institutions. Human rights specify relatively clearly what justice is and what procedures will produce it. If we ponder the sources of ideas of justice, however, we realize that they are multiple and hardly all grounded in human rights. Responding to the challenge that Goodale and Clarke pose in the introduction, it seems that we are able to identify at least four discrete sources of justice ideas. Human rights is certainly one source, both as a body of law and as an ideology used by social movements. The latter represents the mobilization of human rights discourse unbounded by conventions and doctrines; it is a space of creativity and innovation. Out of the social movement mobilization of human rights, new human rights have emerged, such as women’s rights. This ideology of justice is legitimated by its grounding in transnational space and is constrained by the texts and practices of the human rights legal system. As a discourse of justice, however, it has been picked up in different ways in different places ∗

Parts of this chapter appeared in the Annual Review of Anthropology 2006 (35): 99–116.

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and made into something new, often stretching beyond the documents themselves through processes such as vernacularization, which reinterpret human rights doctrines in local terms (see Merry, 2006a). A second source of justice ideas is local practices embedded in communities, families, and neighborhoods. This is a bottom-up source, founded on the way things are done and the normative framework within which they take place. Some of these local justice ideologies have become global, but most remain embedded in particular histories and social situations. Popular justice, as the term has been used to describe neighborhood courts and tribunals, particularly arising in protest to state power, is a manifestation of this form of justice (see Merry, 1993). Religion is a third source of inspiration for justice ideologies because all religions include ideas of justice. Religious traditions intersect with national and international political visions in many ways, ranging from theocratic states and regional alliances in Islam, to quasi-governmental religious organizations such as the Holy See, to allegedly secular states the religious underpinning of which has shaped their political structure, as in the United States. These traditions are of course deeply variable among nations and regions, so that they do not produce coherent and consistent visions of justice across the entire expanse of any religious community. Instead, they blend with preexisting local ideas of justice, transforming both. A fourth inspiration for ideas of justice is the appeal of ideas of world governance, of ideologies claiming universality. Ronald Niezen (2004) argues that the idea of universality has exercised a powerful sway over visions of the world for millennia, often serving as the basis for utopian ideas of society. He argues that the idea of a universal system of justice is perennially appealing. The United Nations idea, the Universal Declaration of Human Rights, and the conception of this declaration as customary international law that is so widespread that it is accepted without sanction, grows out of this set of ideas. This conception of justice is far broader and more amorphous than that embedded in human rights conventions and declarations, yet it is the underlying ideology that gives these conventions their strength and power. This volume asks us to consider how such multiply inspired images of justice relate to institutions such as the human rights system or transnational justice institutions. Clearly, they provide its moral force but at the same time constitute the basis for the critique that these institutions fail to conform to their ideals. These institutions must work within the specific circumstances of violations and conflicts. Under these conditions, justice cannot exist simply as a disembodied, transcendent aspiration but is expressed through particular decisions and actions. It must be put into practice and, in so doing, it loses its powerful but vacuous qualities. Because justice in practice is inevitably plural and situated, it can be harnessed to a variety of projects, such as the International Criminal Court (ICC) and human rights conventions. However,

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the link is fragile. These justice conceptions must resonate with other conceptions of justice already in play in a particular situation if they are to generate compliance. Justice plays a critical role in one of the thorniest problems confronting international law: that of generating compliance. Critics of international law argue that because international law has no real enforcement mechanisms, it is not really law. Defenders locate pressures for compliance in a wide range of social arrangements and negotiation processes. Advocates of international law tend to take the defensive stance that international law is real law, with clear codes and formal institutions (see Levit, 2005). This chapter argues that the problem of compliance cannot be understood without considering concepts of justice. These concepts constitute the normative basis of international law. They play an important role in enhancing legitimacy and generating compliance within nation-states (see Tyler, 2006) and are even more important in international law. The absence of clear means of enforcement is often seen as a weakness of international law. Human rights law faces this criticism particularly strongly because it is generally intended to regulate state behavior toward its members, yet it has no way to compel states to conform. Given the structure of national sovereignty within which international law functions, there are substantial limitations on the capacity of any state to interfere in the internal operations of any other state. The violators it seeks to change are typically states, and states are protected from legal force by doctrines of sovereignty and nonintervention in their internal affairs. Thus, human rights law requires states to conform to its standards, but failure to conform is not met with legal consequences. The system depends on political and social pressure, economic sanctions, and international humiliation. Yet, as Louis Henkin (1979) once famously observed, most countries obey most features of international law most of the time. How is this possible? This chapter argues that understanding compliance requires attention to the range of practices, habits, and forms of consciousness that are part of the international law process, of which the idea of justice is one of the most important. Principles, conventions, documents, and procedures are organized to serve the ideal of promoting justice. When human rights ideas are appropriated by national and local organizations and individuals, they conform in some ways with preexisting conceptions of justice. To understand how international human rights law works in practice, and how it produces compliance, it is essential to understand how it intersects with other systems of international, national, and local justice. Of course, measuring compliance with human rights law is notoriously difficult. Many of the principles of human rights law are broad and difficult to operationalize, particularly those involving social and economic rights. Efforts to measure compliance with more specific rights are fraught with difficulties in specifying

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measurements and gathering accurate data (see Hathaway, 2002; Simmons, 2009). Indeed, the countries that are most likely to violate human rights are unlikely to keep accurate statistics about their compliance with human rights law. Even in the national legal system of the United States, law’s impact depends on cultural understandings, normative standards, and everyday practices. As social science research on law has demonstrated, most people most of the time do not go to court or confront the law; yet, insofar as they comply, they do so because of taken-for-granted assumptions about how the world should work (see Merry, 1990; Tyler, 2006). Much of law’s regulatory force operates in the domain of custom and habitus, even in contexts of enforcement mechanisms. Moreover, the impact of law cannot be assessed by compliance but by the way that legal requirements shift normative expectations. For example, the domestic violence movement in the United States has worked for thirty years to develop new laws and new forms of policing, prosecution, sentencing, and incarceration for batterers. Yet it has not ended domestic violence. It has, however, altered the normative terrain of domestic violence. No longer can male family heads assume that their violence is a private matter, beyond state scrutiny, to which police, courts, and neighbors are indifferent. Despite the failure to eliminate the practice, efforts to increase state regulation have shifted the meanings of domestic violence so that it is no longer a private affair restricted to the family. It is now clearly a concern of the state. The state, of course, does not always intervene strongly, and batterers are often treated with considerable lenience. Nevertheless, legal changes have produced significant cultural and social changes in conceptions of domestic violence and the privacy of the family in these situations. Such violence no longer seems an entirely private matter, not open to critique by neighbors or even family members, but a violation of a generally understood social norm. The success of this movement lies not in its production of obedience, but in the way it served to redefine normative standards and cultural expectations of male authority. It has created a new idea of justice in the family. Anthropological understandings of law, which stretch far beyond examining compliance, are helpful in unpacking the way international law works in practice. As some of the chapters in this book demonstrate, taking an anthropological approach to international law exposes the way it operates at symbolic and practical levels, as well as its enforcement. To focus on compliance alone is to miss law’s capacity to redefine the role of the state, to establish normative principles that are international standards, and to provide a language for political mobilization that gains power from its reference to internationally derived standards. It ignores the crucial link between law, as a system of formalized regulation, and justice, whether embedded in communities, institutions, or states. Ideas about justice play a critical role in the effectiveness of international law, shaping not only compliance, but also legal

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consciousness, norm change, modes of appropriation and internalization of principle, and forms of resistance. APPROACHES TO INTERNATIONAL LAW

International law differs from domestic law in that it is grounded in a system of sovereign nations. Each nation is accountable to its own domestic order and not to a larger international community beyond what it consents to do (Bederman, 2001: 50). Unlike state law systems, no central authority has the power to force sovereign states to comply with its decisions. Short of war, no country can force another to change its practices toward its own citizens. However, sovereignty is not a matter of absolute autonomy, although the degree to which it is constrained by international law is a matter of ongoing debate among international lawyers (see Kingsbury, 2003). In practice, within the present global order, sovereignty is increasingly circumscribed (see Chayes and Chayes, 1998; Slaughter, 2004). It is becoming contingent on compliance with a minimum of human rights principles toward a nation’s own residents. The expansion of a rights discourse and enthusiasm for the rule of law facilitated by the 1990 collapse of the USSR and the establishment of liberal political orders in parts of Eastern Europe – against the backdrop of destructive ethnonationalism in the former Yugoslavia – facilitated this understanding of sovereignty (see Cowan, 2001; Wilson, 1997: 2). South Africa is a prime example of a country whose systematic violations of human rights principles under the apartheid system made it an international pariah state. However, less powerful countries are more vulnerable to this pressure, while some of the most powerful, such as the United States, refuse to be bound by some aspects of international law. The United States, for example, typically complies with human rights conventions but refuses to ratify them (see Ignatieff, 2001; Koh, 2003). In the absence of a central authority, how does international law work? Where do these laws come from? How are they enforced? Some legal scholars argue that this is not real law because it lacks centralized judicial institutions, police, and the means to enforce compliance. One of the basic questions about international law is why countries obey it. Realists claim that states comply only when doing so is in their self-interest (see Dembour, 2006). Research on social movements and nongovernmental organizations (NGOs) shows that civil society plays a role in holding governments accountable. Violence by nonstate actors, such as paramilitaries or guerrilla movements, poses dilemmas for a system of international law premised on controlling the actions of states (Alston, 2005). International law scholars have developed at least three theories to explain compliance with international law: transnational legal processes, bottom-up lawmaking, and global legal pluralism. None of them explicitly foregrounds the cultural role of

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concepts of justice, although all implicitly recognize a critical link between normative orders and compliance. The transnational legal process approach argues that compliance with international law depends on normative change produced by social interactions among international legal actors. It is closely related to the work on international advocacy networks and coalitions in international relations that argues that these activities produce normative change over time. Transnational legal process joins both international and domestic law, public and private actors, state and nonstate actors, and the dynamic production of new rules – through interaction, interpretation, and practice – which then shape further interactions and induce state compliance (Koh, 1996: 184). Even if nations are simply pursuing their interests, they internalize shared norms through interaction. Within countries, interaction and discussion further internalize norms into domestic social and political processes (Koh, 1996: 204). Abram and Antonia Chayes propose a “managerial model,” arguing that nations obey international law because of management by national actors pursing a cooperative model of compliance through interactive processes of justification, discourse, and persuasion (Chayes and Chayes, 1998; see also Koh, 1997: 2635–7). States are motivated to comply not because of fear of sanctions but because of fear of loss of reputation. Compliance occurs through an iterative process of discourse among the parties, the treaties, and the wider public. Harold Hongju Koh builds on both the Chayes’ managerial model and Thomas Franck’s fairness model to explain compliance, although he finds them lacking in that both claim that compliance depends on choice. Instead, he advocates the idea of “transnational legal process”: . . . the complex process of institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems. Both the managerial and the fairness accounts fail to describe the pathways whereby a “managerial” discourse or “fair” international rule penetrates into a domestic legal system, thus becoming part of that nation’s internal value set. (Koh, 1997)

His primary concern is norm internalization, which he sees as key to compliance. Koh argues that there is an evolutionary process whereby repeated compliance gradually becomes habitual obedience, and that it is this process of interaction, interpretation, and internalization of international norms into domestic legal systems that explains why nations follow international law rather than only conforming when it is convenient (Koh, 1997: 2602–3). The practices and norms become internalized and therefore shape future behavior. Anne Marie Slaughter has similarly examined the processes by which international law operates in practice, focusing on the role of liberal states (2004; see also Hathaway, 2002). All of these theories place norm change at the center because compliance ultimately depends on commitment to norms, whether on the basis of

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perceived interest, voluntary choice, or internalization. Koh offers a case study of the 1985 effort by Reagan and others in the U.S. government to redefine the Anti-Ballistic Missile Treaty to enable the Star Wars program to develop. He notes that a variety of committed actors, political leaders, and NGOs mobilized against the change. In 1993, along with a shift in the presidency, came an end to this effort. He argues that this outcome was the product not only of rules and interests, but also of the ongoing interactions among actors over time along with their normative commitments (Koh, 1996). Studies of transnational advocacy networks in international relations, particularly by Keck and Sikkink (1998) and Sikkink, Risse, and Ropp (2002), similarly emphasize the centrality of normative change to the spread and effects of human rights. Some versions postulate a “norm cascade” when the process of adopting new international norms such as human rights becomes widespread in a country. However, this body of scholarship focuses on states, institutions, and social movements rather than on the legal consciousness of ordinary citizens. These scholars recognize that the power of human rights depends on extensive local normative change, but they do not explore how and when actors change their normative understandings and subjectivities to incorporate a notion of rights. Thus, although this approach incorporates a sophisticated analysis of social interactions, it pays relatively little attention to processes of meaning making and individual consciousness. Nor does it examine how these processes of norm change intersect with preexisting concepts of justice. Anthropological work on meaning and subjectivity and law and society research on legal consciousness both offer a deeper understanding of how, where, and under what conditions norm change takes place (see Ewick and Silbey, 1998; Goodale, 2002; McCann, 1994; Merry, 1990; Nielsen, 2006). Moreover, this work does not theorize the effects of inequalities in power on processes of norm change and compliance. For example, while shaming is a critical normative process that is central to the way international law operates, it is more effective against weaker countries than stronger ones. Furthermore, it is more effective when supplemented by political and economic pressure. When a group of rebels pulled off a coup against the elected government of Fiji in 2000, for example, the country faced serious economic and political sanctions. Among other consequences, Fiji was suspended from the Commonwealth, Australian tourists canceled trips and then boycotted the islands, and Australian longshoremen’s unions refused to unload ships from Fiji. For a small, economically dependent country like Fiji, these economic pressures were major concerns, in addition to the shaming. In 2006, the military executed another coup, throwing out the elected prime minister and driving out its Australian-born police chief. Australia again threatened to suspend its membership in the Commonwealth and to implement defense and travel bans against the Fijian military and any government it set up (ABC NewsOnline, 2006).

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The international community also threatened to suspend financial and technical assistance (Fiji Times, 2006). Clearly, a country’s vulnerability to such economic pressures depends on its economic and political strength. A second approach to international law examines the process of bottom-up lawmaking, which focuses on the production of law rather than its enforcement. It is bottom-up in the sense that more formal law emerges from the everyday practices by which problems are solved rather than being a form of lawmaking that comes from the poor and powerless. It is usually the cosmopolitan elites who generate the informal rules that become established over time. Bottom-up lawmaking differs from the common approach to understanding international law, which is a top-down story of a state’s treaty-based commitments or of an intergovernmental organization formed by treaty. Insofar as there is a discussion of process, it focuses on diplomats in luxurious sites fine-tuning the language of a treaty. Yet, as Janet Koven Levit (2005) argues, forms of international lawmaking also happen as practitioners figure out how to handle problems on a day-to-day basis. As they do so, they create and interpret rules, producing their own informal rules and practices. These ultimately become law, as much as law that is based on top-down treaties. Levit says that there are many situations in which practice-based ways of doing things gradually become law. In international law terminology, “soft law” becomes “hard law.” Soft law refers to a wide range of international instruments, communications, informal agreements, memoranda of understanding, codes of conduct, or “gentlemen’s agreements,” whereas hard law involves international rules and norms that are at least technically binding (Levit, 2005: 127). Levit looks at three little-known institutions in the world of international trade finance: one of these is the International Union of Credit and Investment Insurers (Berne Union), an NGO that regulates export credit insurance policies for its members, both public and private export credit insurers. Some of the rules developed by this organization have been adopted by formal international lawmaking institutions, transforming them into hard law. Yet, she notes that these rules never have been written about because the Berne Union rules have been accessible only to members (2005: 128). Indeed, she had a great deal of difficulty getting access to the organization herself, which resisted her inquiries. The members form a close-knit group and come from the same social class, although from several different nations, and routinely play golf and socialize among themselves. Clearly, processes of producing this law depend on close-knit social networks, which are important in members’ lives. The power of these laws rests in part on the need to maintain ongoing relationships. A third approach to international law developed by legal scholars is global legal pluralism. This model focuses on the multiplicity of international and national laws, legal institutions, and forms of dispute resolution and the interactions among them. Whereas the transnational legal process approach tells a story of increasing

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coherence and interconnections among laws as a result of these interactions, global legal pluralism focuses on the diversity and incompatibility of the systems. For some, this represents chaos, fragmentation, and a weak international judicial order; for others, it provides myriad opportunities for social movements that use some forms of law and resist others. For example, in Rajagopal’s study of the Narmada dam dispute in India, he describes how international actors and organizations, human rights laws, and the Indian Supreme Court were all involved in determining the outcome of the conflict over the building of a dam on the Narmada River (Rajagopal, 2005). This multiplicity of actors and normative systems provided greater space for mobilization and legal resistance than a more coherent and integrated system would have. Global legal pluralism builds on sociolegal and legal anthropological studies of situations of multiple regimes of law and applies it to international law. The concept, as used within anthropological scholarship, describes the multiple forms that law takes in different communities and the nature of the interactions among them. Legally plural situations have differing but coexisting conceptions of permissible actions, valid transactions, and ideas and procedures for dealing with conflict in the same social field (F. von Benda-Beckmann, 2002: 38; K. von Benda-Beckmann, 2001). They are typically organized around differing conceptions of justice. During colonialism, the colonial power typically added a new layer of law and justice conceptions over existing ones. On occasion, colonial law recognized earlier systems of law, such as the British colonial incorporation of Hindu, Muslim, and Christian personal law into the administration of the Indian empire. The systems often have incompatible standards and procedures, and it is not unusual for individuals to engage in forum shopping among them (K. von Benda Beckmann, 1981; 1984). Whereas some of the first work on legal pluralism imagined that relatively separate legal systems coexist, as they did in the dual legal systems common to British colonialism, Sally Falk Moore’s (1978) notion of the “semi-autonomous social field” argued that regulatory subgroups existed in industrial societies as well. Rather than seeing plural legal systems as circumscribed and bounded, she argued that they are semiautonomous, operating within other social fields but not entirely governed by them. Paul Schiff Berman (2002; 2005a; 2005b) suggests that legal pluralism offers a valuable framework for conflict-of-laws scholars in arenas as diverse as religious practices and internet jurisdiction (see also Perez, 2003; Santos, 1995). Thinking of such clashes as conflicts among various legal regimes has several benefits, he thinks. It leads scholars to trace the shape of communities that hold particular views, even when they cross national boundaries. It forces state-sanctioned courts to take account of nonstate normative commitments and treat them as law. It encourages respect for foreign judgments and laws. Berman (2006: 7) argues that legal pluralism acknowledges the multiple sources of law and claims to authority so characteristic

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of modern society, including that of states, international bodies, or nonstate entities. Finally, he advocates viewing these conflicts as a good thing, a way of celebrating difference, rather than as a step on the path to convergence and harmony among the world’s legal regimes. Instead of focusing on the emergence of “world law” as nation-state legal regimes converge, he advocates conflicts as a way of emphasizing the important differences among people. His theory of international law leaves open the possibility of a variety of linkages between international law and local conceptions of justice. Where Rajagopal and Berman see possibilities of creativity and resistance in the plurality of international law, others see a problem. They view global legal pluralism as a source of chaos and an assault on legitimacy. For international lawyers committed to a vision of increasing global coherence and order, the inconsistencies in the rulings of different tribunals and fora, the lack of a clear hierarchy, and the ambiguity of authority constitute a serious deficiency in international law. The multiplicity of tribunals with varying mandates and decisions weakens the force of international law. Koskenniemi and Leino describe the dismay over the fragmentation of international law expressed by leaders of the International Court of Justice, who are distressed at the proliferation of special tribunals not under their authority. This fragmentation reflects the different interest groups engaged in constructing international law (2002: 553, 578). As scholars of global legal pluralism, Koskenniemi and Leino see this proliferation of tribunals with overlapping jurisdictions and differing normative orders as a product of political pressures, not technical errors in the edifice of international law (2002: 561). For example, they argue that human rights and economic values represent two competing universal logics, conventionally seen as different. The World Trade Organization (WTO) and World Bank are engaged in promoting a regime of free trade, whereas human rights bodies are seeking to develop universalistic standards with a political orientation. In some ways, these two orders are quite separate in terms of ideology and institutional grounding. Yet, Koskenniemi and Leino argue that they are coming together as human rights bodies increasingly focus on economic rights and as the World Bank and other economic actors appropriate the language of human rights to describe their projects. This enables the World Bank to define human rights in ways compatible with its own ideologies, and at the same time acquire their legitimacy. Thus, political pressures have driven development and human rights ideologies together. However, Koskenniemi and Leino note that the risk is that, as human rights become broader, they move toward indeterminacy (2002: 569–570). The global legal pluralist model attends to both social interactions and to differences in the power of various legal regimes. Although it does not address questions of meaning and consciousness, it assumes that each legal regime bears a set of

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ideas about justice, rights, and process. Where it is portrayed in a static framework without sufficient attention to the interactions among systems and the way they are arranged in terms of relative power, the model fails to adequately describe the nature of international legal processes. However, a sociologically and culturally sophisticated version of global legal pluralism promises an effective analytic framework for understanding international law. INTERNATIONAL LAW AND VILLAGE LAW

There are some intriguing parallels between the way international law works and the law of villages without centralized rulemaking bodies and formal courts, the classic domain of legal anthropology. Both rely on custom, social pressure, collaboration, and negotiations among parties to develop rules and resolve conflicts (e.g., Nader, 1969; Nader and Todd, 1978; Redfield, 1967). In both, law is plural and intersects with other legal orders, whether that of nation-states or other organizations or forms of private governance (Nader, 1990). Each order constitutes a semiautonomous social field within a matrix of legal pluralism (Moore, 1978). Both depend heavily on reciprocity and the threat of ostracism, as did the Trobrianders in Malinowski’s account (1926). Gossip and scandal are as important in fostering compliance internationally as they are in small communities. Social pressure to appear civilized encourages countries to ratify international legal treaties (Hathaway, 2002; Koh, 1997) much as social pressure fosters conformity in small communities. Countries urge others to follow the multilateral treaties they ratify, but treaty monitoring depends largely on shame and social pressure (Bayefsky, 2001; Merry, 2003). As Madelaine Adelman observes, the procedures of monitoring compliance with human rights conventions, such as the Women’s Convention, is strikingly parallel to alternative dispute resolution (2008). The treaty body process relies on discussion and negotiation about actions in response to questions posed by a third party (the treaty committee), a focus on remedial activities rather than punishment, a general set of shared norms, pragmatic pressures to make small changes, and shaming and public exposure for failure to comply. These negotiations take place against a backdrop of justice, although they are not articulated except as embodied in the text of the treaty. Some international law principles are so widely accepted that they are known as customary law, jus cogens, much as informal law and custom form the basis of social ordering in small communities (e.g., Dale, 2007; Nader, 1969, 1990; Nader and Todd, 1978). Jus cogens norms are so well established that they are no longer enforced and do not depend on consent. The 1969 Vienna Convention that defines international agreements calls jus cogens norms those that are “accepted and recognized by the international community of States as a whole as a norm from which

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no derogation is permitted.”1 The Universal Declaration of Human Rights (UDHR) is now considered jus cogens. According to a 2003 opinion of the Inter-American Court of Human Rights, “the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws.”2 Jus cogens norms trump other norms of customary or treaty law. Laws become established as customary when states announce them and other states do not complain or object (Bederman, 2001: 20). Like law in small communities, international law rules are produced through a process of deliberation and consensus formation rather than imposition (see Riles, 2000; Merry, 2006a). Global conferences, commission meetings, and trade negotiations all produce resolutions, declarations, and policy statements. The conventions that make up international law are produced by multiparty discussion and negotiation among many countries. Much of international law consists of multilateral treaties, developed in collaboration and adopted by individual countries. To some extent, the legitimacy of these international norms is a product of this process of international negotiation and compromise and the development of an international consensus over time. As in Tswana disputes, rules are drawn from a repertoire of norms, general principles, and customs to resolve particular conflicts, the outcomes of which then influence the norms for future conflicts (Comaroff and Roberts, 1981). CONCLUSION

This brief overview of the question of compliance in international law suggests that the various theories all place importance on the role of local cultural practices and norms. Yet, they rarely discuss justice. Transnational legal processes are effective insofar as they produce norm change and conform to these new normative standards. Bottom-up lawmaking views hard international law as derived from legal practices, presumably developed within local standards of justice. Global legal pluralism acknowledges the diversity of normative systems and their coexistence in the international legal sphere. Yet none of these models explicitly addresses the significance of ideas of justice for legitimacy or compliance. Not one explores the sources of justice, as described at the beginning of this chapter, and their link to the normative orders in formation.

1

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Article 53, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331, quoted in Satterthwaite, 2005, p. 43. Inter-American Court of Human Rights, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03 (2003), para 101, cited in Satterthwaite, 2005, p. 43.

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Clearly, the questions this book is addressing are of critical importance yet deeply undertheorized. The chapters make an important contribution to understanding how law intersects with ideas of justice, particularly in the newly emerging domains of human rights and transitional justice. The collection foregrounds a critically important issue, one that warrants far more scholarly attention than it has yet received. References ABC Newsonline. 2006. Fijian military chief declares coup, Dec. 5. URL www.abc.net.au/ news/newsitems/200612/s1804858.htm. Adelman, Madelaine. 2008. The “Culture” of the global anti-gender violence social movement. American Anthropologist 110(4): 511–514. Alston, P. (ed.). 2005. Non-State Actors and Human Rights. Oxford, UK: Oxford University Press. Bayefsky, A.F. 2001. The UN Human Rights Treaty System: Universality at the Crossroads. Ardsley, NY: Transnational. Bederman, D.J. 2001. International Law Frameworks. New York: Foundation Press. Benda-Beckmann, Franz von. 2002. Who’s afraid of legal pluralism? Journal of Legal Pluralism 47: 37–82. Benda-Beckmann, Keebet von. 1981. Forum shopping and shopping forums: dispute processing in a Minangkabau village in West Sumatra. Journal of Legal Pluralism 19: 117–159. Benda-Beckmann, Keebet von. 1984. The Broken Stairways to Consensus: Village Justice and State Courts in Minangkabau. Dordrecht: Foris Publications. Benda-Beckmann, K. von. 2001. Transnational dimensions of legal pluralism. In Fikentscher, W. (ed.). Begegnung und Konflikt – eine kulturanthropologische Bestandsaufname. Muenchen: Verlag der Bayerischen Akademie der Wissenschaften. C.H. Beck Verlag. pp. 33–48. Berman, Paul Schiff. 2002. The globalization of jurisdiction. University of Pennsylvania Law Review 151: 311. Berman, Paul Schiff. 2005a. Redefining governmental interests in a global era. University of Pennsylvania Law Review 153: 1819. Berman, Paul Schiff. 2005b. From international law to law and globalization. Columbia Journal of Transnational Law 43(2): 485–556. Chayes, Abram and Antonia Handler Chayes. 1998. The New Sovereignty: Compliance with International Regulatory Agreements. Cambridge, MA: Harvard University Press. Comaroff, John and Simon, Roberts. 1981. Rules and Processes: The Cultural Logic of Dispute in an African Context. Chicago: University of Chicago Press. Cowan, J.K. 2001. Ambiguities of an emancipatory discourse: the making of a Macedonian minority in Greece. In Cowan, J., Dembour, M., Wilson, R. (eds.). Culture and Rights. Cambridge, UK: Cambridge University Press. pp. 152–177. Dale, John G. 2007. Transnational legal conflict between peasants and corporations in Burma: human rights and discursive ambivalence under the US Alien Tort Claims Act. In Goodale, Mark and Merry, Sally Engle (eds.). The Practice of Human Rights. Cambridge: Cambridge University Press. pp. 285–320. Dembour, M.B. 2006. Who Believes in Human Rights? Reflections on the European Convention. Cambridge, UK: Cambridge University Press.

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Ewick, Patricia and Susan Silbey. 1998. The Common Place of Law. Chicago: University of Chicago Press. Goodale, Mark. 2002. Legal ethnography in an era of globalization: The arrival of western human rights discourse to rural Bolivia. In Starr, J., and Goodale, M. (eds.). Practicing Ethnography in Law: New Dialogues, Enduring Methods. New York: Palgrave Macmillan. pp. 50–72. Hathaway, Oona. 2002. Do human rights treaties make a difference? Yale Law Journal 111: 1935–2042. Henkin, Louis. 1979. How Nations Behave. New York: Columbia University Press. Ignatieff, Michael. 2001. Human Rights as Politics and Idolatry. Princeton: Princeton University Press. Keck, Margaret E. and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca: Cornell University Press. Kingsbury, Benedict. 2003. The international legal order. In Cane, P. and Tushnet, M. (eds.). Oxford Handbook of Legal Studies. Oxford: Oxford University Press. pp. 271–291. Koh, Harold Hongju. 1996. Transnational legal process. Nebraska Law Review 75: 181–206. Koh, Harold Hongju. 1997. Why do nations obey international law? Yale Law Journal 106: 2599–2659. Koh, Harold Hongju. 2003. On American exceptionalism. Stanford Law Review 55: 1479– 1527. Koskenniemi, Martti and Paivi Leino. 2002. Fragmentation of international law? Postmodern anxieties. Leiden Journal of International Law 15: 553–579. Levit, Janet Koven. 2005. A bottom-up approach to international lawmaking: The tale of three trade finance instruments. Yale Journal of International Law 30: 125–209. Malinowski, B. 1926. Crime and Custom in Savage Society. London: Routledge & Kegan Paul. McCann, Michael. 1994. Rights at Work. Chicago: University of Chicago Press. Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago: University of Chicago Press. Merry, Sally Engle. 1993. Sorting out popular justice. In Merry, S.E. and Milner, N. (eds.). The Possibility of Popular Justice: A Case Study of American Community Mediation. Ann Arbor, MI: University of Michigan Press. Merry, Sally Engle. 2003. Constructing a global law – violence against women and the human rights system. Law and Social Inquiry 284: 941–979. Merry, Sally Engle. 2006a. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press. Moore, Sally Falk. 1978. The semi-autonomous social field. In Law as Process: An Anthropological Approach. New York: Routledge. Nader, L. 1969. Styles of court procedure: to make the balance. In Nader, L. (ed.). Law in Culture and Society. Berkeley: University of California Press. pp. 69–92. Nader, L., Todd, H.F. (eds.). 1978. The Disputing Process – Law in Ten Societies. New York: Columbia University Press. Nader, L. 1990. Harmony Ideology. Stanford, CA: Stanford University Press. Nielsen, Laura Beth. 2006. License to Harass: Law, Hierarchy, and Offensive Public Speech. Princeton: Princeton University Press. Niezen, Ronald. 2004. A World Beyond Difference: Cultural Identity in the Age of Globalization. London: Wiley-Blackwell.

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Perez, Oren. 2003. Normative creativity and global legal pluralism: Reflections on the democratic critique of transnational law. Indiana Journal of Global Legal Studies 10: 25–64. Rajagopal, Balakrishnan. 2005. The role of law in counter-hegemonic globalization and global legal pluralism: Lessons from the Narmada Valley struggle in India. Leiden Journal of International Law 18: 345–387. Redfield, R. 1967. Primitive law. In Bohannan, P. (ed.). Law and Warfare: Studies in the Anthropology of Conflict. Austin: University of Texas Press. pp. 3–25. Riles, Annelise. 2000. The Network Inside Out. Ann Arbor: University of Michigan Press. Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink (eds.). 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press. Santos, Boaventura de Sousa. 1995. Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. New York: Routledge. Simmons, Beth A. 2009. Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge, UK: Cambridge University Press. Slaughter, Anne-Marie. 2004. A New World Order. Princeton, NJ: Princeton University Press. Tyler, Tom. 2006. Why People Obey the Law. Second Ed. Princeton: Princeton University Press. Wilson, Richard A. 1997. Introduction: human rights, culture and context. In Wilson, R.A. (ed.). Human Rights, Culture and Context: Anthropological Perspectives. London: Pluto. pp. 1–28.

PART I JUSTICE AND THE GEOGRAPHIES OF INTERNATIONAL LAW

2 Postcolonial Denial Why the European Court of Human Rights Finds It So Difficult to Acknowledge Racism Marie-B´en´edicte Dembour The European Convention on Human Rights (hereafter, Convention) was signed in 1950 by Western European governments1 committed to prevent the repetition of the horrors and atrocities of World War II – not to mention the erection of a bulwark against communist Eastern Europe. Admittedly, justice was not originally at the forefront, and has indeed very much remained in the background, of discussions about the Convention system.2 Nonetheless an implicit narrative has always suggested that the protection of human rights is conducive to the realization of justice. This is clear, for example, in the Convention’s Preamble which specifically “reaffirmed” a “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world.” The Preamble referred to “like-minded” governments that shared “a common heritage of political traditions, ideals, freedom and the rule of law.” Not wanting the Convention to be mere words, the members established a system of judicial protection, which was a first in international law. The European Court of Human Rights (hereafter, Court) soon “earned a world-wide reputation for fairness, balance and intellectual rigour” (Harris et al., 1995: vii). This chapter challenges the implicit making of an equation between human rights law and justice by examining a specific area where the record of the Court is anything but strong, that of racial discrimination. In this area, those who have arguably been victims of human rights violations have not met justice at Strasbourg. I argue that this poor record is due to a structural failure best understood by reference to a European historical heritage which developed largely outside of justice concerns and which is unsurprisingly not mentioned in the Convention Preamble, that of empire. I further

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For the list of original signatories and subsequent history of ratifications, see Simpson (2001: 2). Forty-seven states are currently party to the Convention. Thus, for example, Simpson’s (2001) master study on the genesis of the Convention and its link to the end of empire has an entry for “justice” in its index which only refers to two specific situations rather than the general idea of justice.

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argue that the lack of acknowledgment of racial discrimination by the Court is a case of postcolonial denial that perpetuates injustice. To be fair, the Court has recently begun increasingly to find violations of the prohibition of racial discrimination inscribed in Article 14 of the Convention. However, it was unable to name (and therefore to denounce) racism for the first four decades of its existence. Justice requires acknowledgment. The longstanding (lack of) stance of the Court toward racism in cases that appear to be all about racism and – thus – calling for racism to be denounced, is therefore highly problematic; it demonstrates denial (i.e., the exact opposite of acknowledgment). In his seminal book States of Denial, Stanley Cohen (2001) explains that denial occurs when one refuses to acknowledge what one knows to be happening. Denial amounts to knowing and not knowing at the same time (Cohen, 2001: 25). This attitude, I argue, is displayed by the Court when it refuses to name racism when all the elements of a case before it suggest – presumably not just to me but also to the judges of the Court – that racism is what triggered the events that led to the suffering of the applicants – including, often, the death of kin at the hands of the police or a mob because of the color of their skin. The denial that characterizes the Court when it fails to name racism is largely unconscious. I have documented elsewhere the legal techniques that have fostered it, focusing on the technical details of the emerging case law to explain how the rule of law, for which the Council of Europe is renown, both encourages and benefits from the silencing of racism in Europe (Dembour, 2009). In this chapter, I take the analysis one step further and seek to explore why it is, at a deep social level, that the Court finds it so difficult to acknowledge racism. I argue that the denial of the Court is inscribed in a particular European history of orientalist and postcolonial relations. Making these links is the main aim of this chapter. What I also point out is that the Court’s denial is obviously in tune with social denial. In other words, the denial is a fact of European culture. Consequently, the responsibility for the corresponding lack of acknowledgment and justice does not lie more in the hands of the judges of the European Court of Human Rights than in those of all of us “bystanders” who populate the Council of Europe or come across its workings. Whereas the need for acknowledgment should be clear to all of us who are familiar with the case law, how to mete it out remains a difficult question. In the same way as it is easier to denounce injustice than to deliver justice, it is also far easier to recognize racism than to eradicate it. This may be why I found presenting and writing this chapter a dispiriting experience, the absurdity of which has not escaped me: I am calling for an acknowledgment that I know will not happen overnight and that indeed, according to my analysis, can hardly happen. My justification for persevering with publication is that a critical analysis that breaks away from the celebratory tone of most commentaries on the European Court of Human Rights

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may hopefully constitute a small step away from postcolonial injustice and toward justice, however elusive. A LATE AND HAPHAZARD CASE LAW POINTING TO A COURT OF DENIAL

For many years, there was a complete absence of case law on racial discrimination by the European Court of Human Rights. The Court adopted its very first judgment in 1961. Since then it has decided thousands of cases and found thousands of violations of the Convention. The first case in which the European Court of Human Rights found a state member of the Council of Europe in violation of the prohibition of racial discrimination inscribed in Article 14 of the Convention was decided by a Chamber of the Court on February 26, 2004, in a judgment later reviewed by a Grand Chamber on June 8, 2005 following an appeal by the defendant state.3 It is worth reviewing this momentous case, called Nachova v. Bulgaria, at some length.4 Nachova concerned the killing by the military police of two young men of Roma origin who had deserted their assignment in a building camp. The police had gone to their home to find them. The men were shot dead as they were escaping through the back garden. In line with previous case law, the European Court of Human Rights ruled that the use of lethal force had not been necessary and was contrary to Article 2 of the Convention which guarantees the right to life. In the Chamber’s 2004 judgment, the Court also concluded that there had been a violation of the prohibition of racial discrimination found in Article 14. This was a first in the history of the Court. This conclusion was reached on the basis of a number of elements that had been presented to the Court, including that: the shooting had taken place in an inhabited compound, involving a risk for life that might not have been taken had the population not been Roma; one of the (unarmed) fugitives was shot in the chest, rather than the back, suggesting he had turned around from the fence he was climbing to surrender; and someone who was present as the events unfolded reported that the Major had verbally abused him with the words “You damn Gypsies.” These facts were located within the context of a widespread abuse of the Roma population in Bulgaria and other eastern European countries, which was documented in a series of reports by institutions from within the European Union (EU) and the 3

4

Admittedly, violations of Article 14 regarding discrimination on grounds other than race were also relatively slow to come, the Court having for a long time asserted that the finding of a violation of another Article of the Convention made it unnecessary for it to examine other complaints (Susan Millns, personal communication, July 10, 2008). The judgments of the European Court of Human Rights are freely accessible on its Web site: www.echr.coe.int/echr; click “case law,” then double-click “HUDOC”; in the “case title” box, write the name of the case (e.g., Nachova) and click “search.”

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Council of Europe, as well as specialized bodies of the United Nations (UN) and nongovernmental organizations. Until this judgment, the Court5 had always said that applicants needed to prove an allegation of racial discrimination “beyond reasonable doubt.” In Nachova, the Chamber moved away from applying this test, which imposes such a strict standard of proof for facts in dispute that applicants have never been able to satisfy it in this area. The Court ruled instead that it could “draw negative inferences or shift the burden of proof to the respondent Government” when the authorities have failed to enquire whether there has been racial discrimination whenever such an enquiry would clearly have been warranted (para 169 of Nachova, February 26, 2004). This was the case here. Given that the Government was unable to prove to the Court that the killing had not been induced by discriminatory attitudes (para 172), the Court found that racial discrimination had occurred procedurally – as the authorities failed to investigate complaints by the applicants that racism had played a part in the events – and substantively – following the presumption that racial discrimination had indeed played a role in the events. Bulgaria appealed against this revolutionary judgment. On June 8, 2005, the Court, now sitting as a Grand Chamber, refused to shift the burden of proof to the respondent Government. As far as it was concerned, it had not been established that racist attitudes played a role in the deaths of the young men (para 158 of Nachova, June 8, 2005). Therefore, the Court found no violation of Article 14 in its substantive aspect. However, given that Bulgaria had failed to investigate whether the killings had been racially motivated, it accepted that a violation of Article 14 had occurred in its procedural aspect (para 168). The Court has now moved again compared to its restrictive approach in the Grand Chamber’s Nachova judgment. In the groundbreaking case of DH and Others v. Czech Republic decided by a Grand Chamber on November 13, 2007, the Court accepted that discrimination could be an objective fact established through statistical means irrespective of subjective intentions. The case concerned the placement of Roma children in special schools that followed a more basic curriculum than did ordinary schools. Data were submitted to the Court indicating that, although Roma represented only 5 percent of all primary school pupils at the time the application to Strasbourg was lodged, they made up more than 50 percent of the population of special schools (para 134 of the judgment), created after the First World War for children with special needs, including those suffering from a mental or social handicap. For the applicants, these figures suggested that, “whether through conscious design or reprehensible neglect, race or ethnicity had infected the process of 5

Obviously sitting in different formations not only over time but also (though sometimes less strikingly so) from one case to another, “the Court” is nonetheless always presented as a singular body, as Latour (2002) observes in respect of the French Conseil d’Etat.

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school assignment to a substantial – perhaps determining – extent” (para 135). The Court accepted that “the evidence submitted by the applicants can be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination” (para 195). Although the Court noted that, “unlike some countries, the Czech Republic has sought to tackle the problem” of providing schooling for Roma children (para 205), the legislation and practice nonetheless had “a disproportionately prejudicial effect on the Roma community” (para 209). The Court found a violation of Article 14. This endorsement of the concept of indirect discrimination is a potentially tremendous milestone, even if it remains to be seen at time of writing whether the case law will settle on the principles introduced by DH. I say this because the history of the case law is often one of one step forward, two steps backward. No outcome can ever be taken for granted, and it is often difficult to predict a verdict in advance – or to make sense of it afterward. For example, Ognyanova and Choban v. Bulgaria, decided on February 23, 2006, hardly appears to have followed Nachova’s lead of making it possible to find relatively easily a procedural violation of Article 14 on the grounds of race. Ognyanova concerned a young man who had jumped from the third floor of the police station where he was interrogated. It was not contested that a reasonable person would never have attempted to escape from a window located almost ten meters above ground. Moreover, the Court accepted that the numerous injuries recorded on the body were unlikely to have been solely the product of the fall, however spectacular (para 98). The Court found a number of violations of the Convention (with respect to Article 2, Article 3, Article 5 para 1, and Article 13). It found none with respect to Article 14, however, even in its procedural aspect. According to the Court, “the authorities did not have before them any concrete element capable of suggesting that the death of Mr Stefanov was the result of racial prejudice” (para 148); as a result, the duty to investigate possible racial motives was not triggered. The fact that Mr. Stefanov was Roma was not considered to be in itself conclusive. As he had been alone with police officers at the time of his fall, no one was there to testify about any racist abuse, including verbal, to which he might have been subjected. Ognyanova, adopted eight months after the Grand Chamber’s ruling in Nachova, is a regretful but also powerful reminder that the Court will not necessarily be easily persuaded to find a violation of even the procedural aspect of Article 14 in cases brought by Roma applicants against an Eastern European country. I personally find it difficult to believe that the fatal fall of Mr. Stefanov was in no way connected to his Roma identity and, thus, that Ognyanova (brought by his de facto spouse and mother) was not about racism. Similarly, I find it difficult to believe that the Court would not have seen the probable link between his fall and the racism against Roma prevalent in Bulgaria. But the Court chose not to name racism. This silence was in line with a long tradition by the Court not to acknowledge racism,

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a tradition against which its own judges eventually started to rebel (thus leading to Nachova and DH). In 2002, Judge Bonello expressed his profound indignation in a dissenting opinion to a judgment in which the Court had found no violation of Article 14 in a case brought forward by a Roma woman whose son had died following ill-treatment by the Bulgarian police. The Maltese judge observed: “leafing through the annals of the Court, an uninformed observer would be justified to conclude that, for over fifty years democratic Europe has been exempted of any suspicion of intolerance and xenophobia” (dissenting opinion of Judge Bonello in Anguelova v. Bulgaria, judgment of June 13, 2002). For Judge Bonello, the connection between the ill-treatment and the Roma identity of the victim was quite clear, and he voted for a violation of Article 14 of the Convention. Even though the rest of the Court found, unanimously, a violation of Articles 2 (right to life), 3 (prohibition of inhuman treatment), and 5 (right to liberty) in this case, one cannot help but wonder whether the applicant who lost her 17-year-old son felt that she had found justice at Strasbourg. The anthropologist Susan Hirsch has movingly described, based on her own experience of having lost her husband to a terrorist attack and followed the trial of some of those responsible, the need of victims to have their suffering, experience, and understanding/truth acknowledged (Hirsch, 2006; see also this volume ). The failure by the Strasbourg Court to name racism in Anguelova is significant even within a verdict of violation otherwise adopted unanimously. Of course, the reluctance of the Court to denounce racism as such can be attributed to uneasiness, in a world which has formally declared racism to be abhorrent, to have a state formally recognized as racist. This is nothing, however, but a form of denial. In States of Denial, Stanley Cohen grapples with the fact that people, but you could also say the Court, both know and at the same time do not know about suffering and atrocities. In his words, “[p]eople seem apathetic, passive, indifferent and unresponsive – and they find convenient rationalizations to explain themselves” (Cohen, 2001, x). In a case like Ognyanova, there is racism but the Court does not acknowledge it, and it finds a convenient rationalization (the lack of proof meting out its exacting standard) to explain itself. As Judge Bonello intimates even if he uses more polite words and backs his objections with a learned review of what other courts manage to do around the world, the Strasbourg Court shows itself to be apathetic, passive, indifferent, and unresponsive – to borrow Cohen’s words. I should immediately add that pointing the finger of responsibility to the Court is too easy, for we are all implicated, as soon as we know – but perhaps do not want to know and do something – about the case law. I should also add that the advances represented by Nachova and DH, although real and promising, should not give us an excuse for celebrating the fight of the Court against racism, for these two judgments do not mean that all is now well. I develop this point in the next two sections.

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THE ORIENTALISM OF THE FEW VERDICTS OF VIOLATION

Allegations of racism need not always be examined by the Court under Article 14. Racism has been talked about in judgments applying, for example, Article 3 (inhuman and degrading treatment), Article 6 (fair trial), Article 10 (freedom of expression), and Article 17 (abuse of a Convention right).6 For reasons of space, I do not discuss this case law in this chapter. Suffice it to say that the Court is, expectedly, firm in its rhetorical condemnation of racism. Whether its judgments match its words in effect is another issue (Dembour, 2009). Focusing here on the rulings adopted with respect to Article 14, one point is striking: any violation of the prohibition of racial discrimination that the European Court of Human Rights has found since 2004 has invariably involved Roma applicants and defendant states from “Eastern Europe.”7 This involvement is disconcerting and should alert us to the potentially orientalist character of the case law. Let me briefly trace the origin and the meaning of the orientalist critique before drawing out its relevance for the Strasbourg case law. The starting point of our discussion should of course be Edward Said’s Orientalism (1978). In this work, Said defined orientalism as “a Western style for domination, restructuring, and having authority over the Orient” (Said, 1978: 3). He denounced both the academic study and the more general, literary and cultural, construction of “the Orient” by the West. He saw this whole discourse as amounting to a “corporate institution for dealing with the Orient – dealing with it by making statements about

6

7

See, e.g., on Article 3, East African Asians case, Report of the European Commission of Human Rights of December 14, 1973; Abdulazis, Cabales and Balkandali v. the United Kingdom, Report of the European Commission of Human Rights of May 12, 1983 (as opposed to the judgment of the Court of May 28, 1985); and Cyprus v. Turkey, judgment of May 10, 2001; Moldovan and Others v. Romania, judgment of July 12, 2005. See, on Article 6, Gregory v. the United Kingdom, judgment of February 25, 1997; Remli v. France, judgment of April 23, 1996; and Sander v. the United Kingdom, judgment of May 9, 2000. See, on Article 10, Jersild v. Denmark, judgment of September 23, 2004; Seurot v. France, judgment of May 18, 2004; and Lindon, Otchakovsky-Laurens and July v. France, judgment of October 22, 2007. See, on Article 17, Norwood v. United Kingdom, declared inadmissible on November 16, 2004. See, apart from the cases mentioned in the main text, Bekos and Koutropoulos v. Greece, judgment of December 13, 2005 (violation of procedural limb of Article 14 combined with Article 3); Zelilof v. ˇ ci´c v. Croatia, Greece, judgment of May 24, 2007 (no violation of Article 14; violation of Article 3); Seˇ judgment of May 31, 2007 (violation of procedural limb of Article 14 combined with Article 3); Angelova and Iliev v. Bulgaria, judgment of May 26, 2007 (violation of procedural limb of Article 14 combined with Article 2); Cobzaru v. Romania, judgment of July 26, 2007 (violation of procedural limb of Article 14 combined with Article 3); Petropoulou-Tsakiris v. Greece, judgment of December 6, 2007 (violation of procedural limb of Article 14 combined with Article 3); Stoica v. Romania, judgment of March 4, 2008 (violation of substantive and procedural limbs of Article 14 combined with Article 3). See also, involving a Chechen rather than a Roma, Timishev v. Russia, judgment of December 13, 2005 (violation of Article 14 combined with Article 2 of Protocol 4, guaranteeing free movement).

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it, authorizing views of it, describing it, by teaching it, settling it, ruling over it” (Said, 1978: 3). The book dropped a bombshell on academic circles. It attracted numerous objections, both “distinguished and undistinguished” (Todorava, 1997: 9), but its effect was deep and unmistakable. Afterwards representation could never again appear as a neutral exercise. It became clear that the way “we” represent “the other” is imbued with relations of power, whether we are conscious of this or not. While discussing “the Orient,” Said was particularly concerned with the Middle East. His thesis was soon applied to different sites, including recently “Eastern Europe” (as we shall see, the quotation marks are very much necessary). In the Cold War, “Western Europeans” learned to locate “Eastern Europe” beyond the Iron curtain as the Europe that was under the domination of the USSR. Without second thought, it became a reflex to contrast “[t]he ‘openness,’ ‘democracy’ and ‘freedom’ of Western Europe . . . to the totalitarian systems of its (threatening) Other” (Haldrup et al., 2006: 174). The European Convention on Human Rights itself participated in the entranchment of the dichotomy between Eastern and Western Europe.8 This, however, should not obscure the fact that the dichotomy goes historically much further back than the Cold War. Wolff (1994) has convincingly traced its origins to the eighteenth century. As he says, it was “the Enlightenment, with its intellectual centers in Western Europe, that cultivated and appropriated to itself the new notion of ‘civilization,’ an eighteenth-century neologism, and civilization discovered its complement, within the same continent, in shadowed lands of backwardness, even barbarism” (Wolff, 1994: 4). For Wolff, Eastern Europe was clearly invented by Western Europe as its complementary half, through (in an explicit reference to Said) “an intellectual project of demi-Orientalization,” where Eastern Europe was conceptualized as “Europe but not Europe,” thus being paradoxically both included and excluded at the same time (Wolff, 1994: 7). Given its long pedigree, it is not surprising that the dichotomy survived the collapse of communism. This momentous event, signaling a new era, was first heralded as the promise of a “new [meaning unified] Europe.” But the old problem of an eastern association persisted (Burgess, 1997). This association led some countries, with Poland, the former Czechoslovakia, and Hungary at the forefront, to try to differentiate themselves from the truly Eastern (and/or the Balkans) and thus to revive in the 1990s the idea of Mitteleuropa/Central Europe (Delanty, 1995: 138; Hagen, 2003: 15). This effort in demonstrating Western credentials to facilitate the “return to Europe” may have been partly successful in that there is a sense in which the eastern border has moved further eastward. A “lace curtain” is now apparently said to separate the enlarged EU from its new eastern neighbors, including Ukraine and Belarus (Hagen, 2003: 17). However, things are more complicated than that, for 8

As the opening sentence of this article indeed indicates.

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“Eastern Europe” is variably defined depending on the context, with the one certainty the fact that regional constructs within Europe are not objective designations but complex sets of shifting cultural and political practices and ideas (Hagen, 2003: 2–3). While assuming different forms, the Eastern–Western dichotomy is wellentrenched in the thinking about Europe. For example, a recent academic article revisits the question – phrasing it in slightly different terms – of whether “the West is civic and the East is ethnic” in the way each region fosters national sentiments (Hjerm, 2003: 414);9 another study examines how the German media represent the new EU member states alongside three frames of rationality/irrationality, power/weakness, and civilization/barbarism and concludes that, in post EU enlargement, the West frightfully continues to attribute a lower place to the East in its own sense of evolutionary and moral hierarchy (Hudabiunigg, 2004). The latest conditions of accession to the EU strikingly followed a similarly orientalist logic, and an analysis of the European Court of Human Rights case law with respect to Poland has raised the issue of Eastern Europe being treated with condescension by Western Europe (Dembour and Mierzewska, 2004: 543). In this historical context of a triumphant West, which imagines itself as civilized and orderly by contrast to a (more) barbaric and untamed East, the disappointing case law of the European Court of Human Rights on racial discrimination acquires a new significance. It becomes troubling that the few verdicts of violation in this area concern Bulgaria, Romania, and other Eastern European countries.10 It is equally troubling that they concern Roma, a population which Western Europe tends to see as epitomizing all that is wrong with human rights in Eastern Europe – as if Gypsies had not long been suffering from discrimination in Western Europe and Roma from Eastern Europe were treated adequately in/by Western Europe.11 The point is neither to wish that the violations that have been found by the Court had not been found nor to deny the level of discrimination suffered by, especially, Roma. It should go without saying that what is needed is more – not fewer – verdicts of violations, including in cases where the disputed facts involve something less serious than death. This does not detract, however, from the fact that the case law is 9

10

11

The countries compared are Austria, Britain, Norway, Sweden, and the Netherlands on the one hand and Bulgaria, the Czech Republic, Hungary, Poland, and Slovenia on the other. Including, interestingly, a significant number of cases against Greece, whose place at the birth of Europe but also at the confluence of different influences is of course never easy to locate (Burgess 1997: 64). On the treatment of Gypsies in the United Kingdom, see Taylor, 2008. For a testimony of the degradation that Roma suffer at the hands of Western European authorities, see, e.g., Buckley v. the United Kingdom, judgment of September 25, 1996, especially the dissenting opinion of Judge Pettiti; the judgment of the House of Lords in Regina v. Immigration Officer at Prague airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants) [2004] UKHL 55; and ˇ Conka v. Belgium, ECHR judgment of February 5, 2002.

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suspiciously orientalist in its orientation, making Strasbourg justice singularly biased and deficient. To put it in another way, the point is to bemoan the absence of case law related to “the old democracies of western Europe.”12 It links up with a larger postcolonial critique, as I shall now argue. POSTCOLONIAL LOGIC

Applying a postcolonial critique to the case law reveals serious deficiencies within Strasbourg justice. Before I do this, I shall first, for the sake of clarity and as I did in the previous section for “orientalism,” briefly sketch the pedigree of the term “postcolonialism.” It is far more difficult to define the critique of postcolonialism than that of orientalism. It cannot be traced back to a particular work as orientalism can. Nonetheless, it is again to Said’s Orientalism to which most turn when looking for the start of its true development. The three towering figures of postcolonialism in its theoretical form are commonly recognized to be Edward Said, Gayatri Spivak, and Homi Bhabha (see, e.g., Gilbert-Moore, 1997), three scholars who share a Southern origin and a Western academic career in the United States or the United Kingdom. At the risk of reducing the body of work that they have been constantly developing in their lifetimes, it could be said that Said discovered orientalism, Spivak subalternity, and Bhabha hybridity – three concepts that are useful to grapple with the question of how the postcolonial subject can understand and overcome the condition of having been born into the abjection of colonialism. The amazing trajectory that the term “postcolonialism” has had means that it is now used in all kinds of ways across the humanities and the social sciences. It has been noted that it is not clear whether it refers “to texts or to practices, to psychological conditions or to concrete historical processes . . . or to the interaction of all these” (Mongia, 1997: 1). Not surprisingly, given the multiplicity of its meanings, the term has been heavily criticized. For Ellat Shohat, it is ineffective at denouncing the neocolonial condition of the Third World because it is used in an ahistorical and universalizing way with potentially depoliticizing implications (Shohat [1992] 1997: 321). Shohat remarks that the prefix “post” risks suggesting closure (i.e., that colonialism is an era that definitely belongs to the past) (Shohat [1992] 1997: 323; see also Frankenberg and Mani [1993] 1997: 349). She bemoans the term’s potential

12

However, a potentially promising avenue has been opened by the Court in Gaygusuz v. Austria, judgment of September 16, 1996; Niedzwiecki v. Germany, judgment of October 25, 2005; and Luczak v. Poland, judgment of November 17, 2007. In these three cases, the Court found the refusal by national authorities to treat foreign nationals in the same way as their own nationals for financial benefits and employment schemes discriminatory and contrary to Article 14.

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to apply equally to the (ex)colonizer and ex(colonized) and, thus, its taming effect (Shobat [1992] 1997: 326). As an illustration, she cites the nod of approval which the word “postcolonial” received in a CUNY studies committee which, by contrast, had resisted references to “third wordlist critique,” “geopolitics,” and “neocolonialism” (Shobat [1992] 1997: 321). Rejecting the term “postcolonial” because of the deficiencies highlighted does not seem to me necessary. Admittedly “there is [not] such a thing as ‘the’ ‘postcolonial’ in any simple sense” (Frankenberg and Mani, 1997: 362). However, as long as it is used within “rigorous politics of location,” as Ruth Frankenberg and Lata Mani admonish (Frankenberg and Mani, 1997: 362), it can be evocative and, in that sense, very effective. Let me therefore explain how I wish to use it in relation to the case law of the European Court of Human Rights. To do this, it is helpful to start by reviewing the case of Menson v. the United Kingdom which seems to me to beg – or even demand – a postcolonial critique. Menson is a decision related to (non-)admissibility that never led to a judgment on the merits (i.e., on the substance of the claims put forward by the applicant). A case must always be declared admissible before being examined on its merits. This is done by reference to specific criteria which include formal characteristics, such as not being anonymous and being brought in good time (set in the Convention at six months from the last relevant decision). Other criteria of admissibility refer to the substance of the complaint, which cannot be, in Convention language, “manifestly ill-founded.” The great majority (more than 95%) of complaints that are addressed to Strasbourg are declared inadmissible. Inadmissibility is most often declared by committees of three judges, whose decisions leave virtually no public trace (Dembour, 2006: 127–130).13 Complaints that have passed the first hurdle of not being declared inadmissible by a committee of three are passed to a Chamber of the Court, who can still declare, by majority, the application to be inadmissible, but whose decision on admissibility is then both recorded and reasoned (although much more briefly than a judgment on merits). This is what happened in Menson. On January 30, 2001, a Chamber of the Strasbourg Court declared Menson and Others v. United Kingdom inadmissible for being manifestly ill-founded. The applicants in this case were the siblings of Michael Menson, a black man who had been set on fire by racist assailants on the night of January 27–28, 1997. Menson died of his injuries two weeks later. He had explained to his siblings, who had repeatedly told this to the police, that he had been attacked by four white boys. However, the police failed to investigate the crime scene and to search for Menson’s attackers until two years later, after a complaint by his siblings to the Police Complaints 13

However, in response to an exponential increase in applications, single-judge formations have started to declare applications inadmissible since July 2009.

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Authority. This investigation led to the culprits being arrested and convicted. In turn, this arrest and conviction convinced the Strasbourg Court that the applicants’ complaint under the European Convention was manifestly ill-founded. As far as the Court was concerned, “the legal system of the respondent State ably demonstrated, in the final analysis and with reasonable expedition, its capacity to enforce the criminal law against those who unlawfully took the life of another, irrespective of the victim’s racial origin” (Menson decision, para 14). This statement, which misses the point of the complaint, denies the possibility, let alone the fact, that the delay in the enforcement mechanism by the British authorities might have been racist. Anyone familiar with the UK Race Relations field will have noticed the similarity of the events complained of in Menson with those that gave rise to the Stephen Lawrence Inquiry, which led to the publication of the Macpherson Report in February 1999. Stephen Lawrence was murdered, in a matter of seconds, at a bus stop in London on the night of April 22, 1993 by five or six white youths who took objection to the mere presence of the teenager, because he was black (Macpherson Report, 1999: paras 1.1 and 1.2). Famously, the Macpherson Report identified the existence of institutional racism in the United Kingdom, defining it as “the collective failure of an organization to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin” (Macpherson Report, 1999: para 6.34). The Report stressed that institutional racism can arise through unwitting prejudice, ignorance, thoughtlessness and racist, stereotyping (Macpherson Report, 1999: para 6.34). It noted how the fact that police officers of junior rank had not believed that the murder could simply and solely have been racially motivated delayed the collection of crucial evidence, some forever lost (Macpherson Report, 1999: para 6.21). Two years later, in Menson, the European Court of Human Rights did not examine whether institutional racism might have explained the delay in searching and convicting Michael’s assailants. By failing to examine this, the Court missed the opportunity, which the Macpherson Report took, of acknowledging racism.14 This principled denial of racism can be usefully analyzed in a postcolonial frame. This is so even though I do not know the exact history of Michael Menson’s family and whether they were originally from a British colony, for their precise origin is beside the point. Listen to Homi Bhabha elaborating on the words “dirty nigger” or even more simply “negro” with which Frantz Fanon famously opened an essay: Whenever these words are said in anger or in hate, whether of the Jew in that estaminet in Antwerp, or of the Palestinian on the West Bank, or the Zairian 14

The Court never condones past violations of human rights in the light of subsequent state practice. For example, the Court does not accept that a new piece of national legislation could make it unnecessary for it to declare a violation of the Convention that took place before the adoption of the legislation. Similarly, the adoption of the Macpherson Report in 1999 could not have been deemed by the Court to make it unnecessary for it to examine the events of 1997 complained of in Menson.

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student eking out a wretched existence selling fake fetishes on the Left Bank; whether they are said of the body of woman or the man of colour; whether they are quasi-officially spoken in South Africa or officially prohibited in London or New York, but inscribed nevertheless in the severe staging of the statistics of educational performance and crime, visa violations, immigration irregularities; whenever “Dirty nigger!” or, “Look, a Negro!” is not said at all, but you can see it in a gaze, or hear it in the solecism of a still silence; whenever and wherever I am when I hear a racist, or catch his look, I am reminded of Fanon’s evocatory essay “The fact of blackness” and its unforgettable opening lines. (Bhabha, 1994: 236)

What this passage makes clear is that a postcolonial perspective is warranted whenever a person is being looked at as an ex-colonized, whether or not this corresponds to a correct formal status. This, in particular, applies to the Menson family.15 It is equally important not to reserve a postcolonial perspective to societies that have been, at one stage in their history, formal colonial powers. Thus I felt entitled to rebut the objection of a Norwegian scholar who came to me after I had presented a draft of this chapter to say that my postcolonial argument did not hold as her country, Norway, was part of the Council of Europe but had never had colonies. It so happens that, a few months before, I had participated in a conference entitled “The Congo and the Nordic countries: Encounters and Images in the Shadow of Colonialism,”16 where the links between especially the Congo of Leopold II and the Scandinavian countries were abundantly documented. From my doctoral research on the colonial administration of the Belgian Congo, I already knew that Leopold had heavily relied on Scandinavians to fill military and administrative posts that did not tempt the Belgians. The conference (and its attending exhibition)17 explored these colonial links, now completely forgotten in the minds of not only my interlocutor but most of her compatriots who thus comfortably assume they had nothing to do with the colonial enterprises pursued by fellow European countries. Norwegians and other populations of the Council of Europe would do well, however, to acknowledge their colonial history, even when the state of which they are nationals was not in law a colonial power. To quote Bhabha again: The Western metropole must confront its postcolonial history, told by its influx of postwar migrants and refugees, as an indigenous or native narrative internal to its national identity; and the reason for this is made clear in the stammering, drunken 15

16 17

However, this is not to say that colonialism is restricted to relationships between whites and blacks, as the history of the United Kingdom toward Ireland and Cyprus, for example, reminds us. Held at Stockholm on February 2–4, 2006. “Traces of Congo: Congo in the Nordic Countries, the Nordic Countries in Congo”. The travelling exhibition opened on November 19, 2005 in Stockholm at the Museum of Ethnography, moved to Helsinki in May 2006, Copenhagen in November 2006, and Oslo in April 2007. See http://congo.natmus.dk/congospor-traces.htm (accessed July 18, 2008).

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These words can be extrapolated from the English to, at the very least, populations of the whole of Western Europe. In this chapter, I use the term “postcolonial” to bring to the fore our colonial past and its connection to our present (see also Kapur, 2005: chapter 1). The important word, to me, is not the prefix “post” but the adjective “colonial,” which we so much would like to forget, think we do not need to talk about any more, and most often act as if it had nothing to do with the way we are today. The European Court of Human Rights is, however, a postcolonial institution by excellence: It was established before decolonization, not to counteract the suffering of the colonized, but that of white victims (Mutua, 2002: 16). Perhaps, then, it is not surprising that the Court does not find itself well placed to deliver on society’s postcolonial weak points, which include racism toward the immigrant. This observation would explain not only that Menson was declared inadmissible but that a search of the case law for decisions and judgments related to complaints of racism by postcolonial applicants yields virtually no result. Presumably this is not because such complaints do not exist but because they are buried – either not being brought to Strasbourg at all because potential applicants are advised by their lawyers that there is no point in bringing them, or being declared inadmissible by committees of threes without leaving any trace (even when complaints related to other provisions of the Convention are declared admissible).18 It would be wrong to think that in such cases only the prospective applicants suffer a lack of justice when their case is not heard. Decisions such as Menson, which are symptomatic of a larger trend, affect all black people in Europe, and indeed, following Bhabha, all those who are treated as negroes, whether they are black or not, and going one step further, all those, including postcolonial whites, who want to live in an equal world. The fact that the Court is unlikely to see the link between colonialism, immigration, and racism is a tragedy. A postcolonial perspective is able to make sense of it, and denounce the Court’s disappointing case law on racial discrimination. THE DIFFICULTY, BUT ALSO RESPONSIBILITY, OF NAMING RACISM

It could be objected that my account earlier in text is simplistic. I have affirmed that racism was at the core of cases such as Ognyanova and Menson even though 18

See, e.g., Osman v. the United Kingdom, judgment of October 28, 1998; A. v. the United Kingdom, judgment of December 17, 2002.

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the Court chose not to acknowledge this. What evidence do I have for being so categorical in identifying racism? Do I know better than the Court? How can I dare to suggest transposing Cohen’s quotation and intimating that the Court is “apathetic, passive, indifferent and unresponsive” and finds “convenient rationalizations to explain itself”? What entitles me to do this, especially with respect to an area as sensitive and complex as racism? Am I not aware of how difficult it is to define and identify racism? The short answer to the last question is that of course I am, and in this section I shall indeed explain why racism is so elusive. I shall nonetheless conclude the section by arguing that such elusiveness does not detract from the responsibility of the European Court of Human Rights – and everybody else – to name racism. The elusiveness of contemporary racism is related to the decline of biological racism and the rise of cultural racism. The idea of the existence of a number of human races, which could be classified and hierarchically ordered, was given some scientific credence in the nineteenth century and applied with devastating consequences by the Nazi regime. It has fortunately been (mostly) discredited.19 However, the knowledge that there is only one human race has not signaled the end of racism; the truth of science has not been sufficient to undermine the truth of belief, which is not entirely surprising given that knowledge and belief are two distinct modes of judgment and valuation (Mbembe, 2004: 293). Racism has persisted, but it has tended to disguise itself by taking a cultural form (Stolcke, 1995). Cultural racism classifies people not on the basis of the color of their skin but by reference to their culture, viewed in essentialist terms (Moroccans are like this, Pakistanis like that, etc.). Thus, the logic of cultural racism elevates difference “into an absolute, fundamental, humanity-defining trait” (Grillo, 2003: 164). There is a sense in which cultural racism embraces, perhaps even celebrates, social diversity, although it does so only to warn that diversity endangers solidarity and to encourage people to keep with their own kind (Marks and Clapham, 2005: 289). Under cultural racism, segregation occurs spatially, rather than through the hierarchical logic of biological racism (Stolcke, 1995: 8). The historical sketch presented is somewhat reductive. “Old-fashioned” racism was not especially popular in the past nor is it especially unpopular today; “new racism” is developing in continuity with former expressions of cultural difference, so that it is not as new as it is generally presented (Leach, 2005). It nonetheless remains that the legal prohibition of racial discrimination that has followed the application and discredit of biological racism has pushed racism as it were underground.

19

As I was writing these lines, however, James Watson, 1962 Nobel Prize for medicine, opened up a row for allegedly suggesting that Africans were less intelligent than Westerners. See, e.g., The Times of October 19, 2007, http://www.timesonline.co.uk/tol/news/uk/article2694632.ece (accessed July 18, 2008).

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Only a stupid landlord would openly refuse today to rent an apartment to someone because he is black. Racism has become hidden and denied. Traces of it are actively suppressed so that, for example, officials are trained not to use racial language – which of course is no guarantee that a racist logic does not enter their thinking. Ralph Grillo (2005: 254) reports how councillors urged those persons wishing to write to protest against the proposed arrival of asylum-seekers in an English seaside suburb to “avoid a racist slant and keep to the Saltdean infrastructure and whether Saltdean could sustain a large influx of asylum-seekers with regard to our schools etc.” Concrete manifestations of racism are not only consciously suppressed, but a racist motivation is almost invariably denied. As sociologists have repeatedly documented, today racism is always something that happens elsewhere because of someone else (Barnes et al., 2001; Grillo, 2005; Pred, 1997; Van Dijk, 1993). One can assume that some people who follow a logic that is culturally racist have nonetheless sufficiently integrated the antiracist discourse to wish to dissociate themselves from racism, which is not necessarily difficult for them to achieve given that they may feel their concerns are socioeconomical. As Grillo’s (2005) account of the Saltdean controversy illustrates, even sociologists may find it impossible to discern with certainty the racist element of a situation. If so, isn’t it too much to ask a court of law to be categorical on the occurrence of racism? It could be argued that this is the more so for a court like the European Court of Human Rights, which faces the additional difficulty that the complaints it receives are always directed against a state. Given the opprobrium now attached to racism, one may expect the Court to be extremely careful before finding a state in violation of Article 14 of the Convention on racial grounds. Such caution could explain the long insistence by the Court that the violation had to be proved “beyond reasonable doubt,” which is the standard of proof used in criminal proceedings and which requires the judge to refrain from finding a violation if any doubt concerning the disputed facts subsists. One might further surmise that judicial proceedings are anyway not the best way to denounce and counteract racism, and that this job is better left to other, more policy-oriented institutions that do not need to ascertain facts in a judicial manner or to declare states in violation of human rights law. In my view, however, such lines of argument would have to be fiercely resisted for being nothing but a “convenient rationalization” (returning once more to Cohen’s words), explaining away – badly – the dearth of case law of the Court regarding racial discrimination. It was too easy for the Court to take refuge in “standard” rules of evidence to imply that it could not find racism. Legally, this position was not even correct given the malleability of the law – as shown by the opening of new and promising avenues in the original Chamber judgment in Nachova and the Grand Chamber judgment in DH. Taking the lead of these judgments, it is crucial that the Court now works with a presumption that racism has played a role in the events that are reported to

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it when social facts indicate that such a presumption may be warranted. As Pnina Werbner (2005: 6) has noted, “racist discourses are many and the political-cumhistorical contexts in which they arise unique, [but their outcomes] are familiar and repetitive – public humiliation, denial, enslavement, pogroms, ethnic cleaning, rape, murder, torture, destruction, expropriation, starvation, genocide.” When this type of outcome has occurred and a case is made that it may be connected to racism, it should be for the state to rebuke the presumption of racism. Returning once more to Ognyanova, it was wrong for the Court not to find a violation of Article 14 of the Convention in the face of an unexplained jump from a ten-meter-high window from a police station by a man who belongs to a group that is known to be routinely targeted by the police. If the Court is reluctant to declare a state racist given the opprobrium attached to racism today, it can play up the legal fact that, by declaring a violation of Article 14, it finds the state guilty of racial discrimination rather than racism. Admittedly the two are not very far apart from each other, given that racism is perhaps best understood as a “changing discourse that organizes and defines human attributes along racial lines that code in an exclusive way the definition of identity, entitlement and belonging” (Back et al., 2001: 6). Still, from the perspective of the state, to be rebuked for racial, rather than racist, discrimination is presumably preferable. If this helps, the Court can insist – as it has done in DH – that it is the racial effect (rather than the racist intent) of the state conduct that it condemns. Whichever avenue the Court chooses to take, the important thing is that it puts itself into a position to acknowledge racism, and to do so not only with respect to Roma victims who die at the hands of state authorities in Eastern Europe – however important this also is. Such a move by the Court is crucial given its central role in the European legal landscape, the human rights imagination, and the idea of justice. Any other course will mean that the Court continues to participate in the general denial of racism and to perpetuate the injustice that was at the core of the colonial enterprise. NO JUSTICE WITHOUT ACKNOWLEDGMENT

The editors of this volume rightly note that justice is normatively thin and generally accepted not to have a determined and definite content. They are also right to stress that most people would agree that justice is context-dependent. Despite this indeterminacy, it is possible to identify some elements that are necessary for a sense of justice to be able to emerge. Here I want to focus on one aspect: the need to recognize victims’ suffering. In this concluding section, I wish to make three simple points that I have already introduced above. First, a sense of lack of justice is bound to emerge for the individuals directly concerned whenever their suffering

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goes unrecognized. Second, lack of recognition does not exist only at an individual level; it also has social repercussions, for it is then society as a whole that allows itself to be in denial of what is happening. Third, working toward acknowledgment, without which a sense of justice cannot be developed, is a responsibility that befalls every one of us. Let me briefly discuss each of these points in turn. Even though I have not met and talked to them, I cannot help thinking that the applicants in Ognyanova and Anguelova will have been disappointed by the judgment of the Court in their cases. I suspect that the refusal by the Court to find a violation of Article 14 will have led them to feel that the Court did not touch the real reasons that led them to complain and, thus, did not quite deliver justice, despite the verdicts of violations reached in relation to other articles. Had it not been for the rampant racism against Roma in Bulgaria and elsewhere, the chances are that their son or partner would still be alive as I write and you read these lines. For those persons left behind, the loss is real and ongoing. My guess is that the denial that the fatal events were triggered by racism is difficult to bear. The Court’s lack of acknowledgment, and therefore denial of justice, goes beyond the individuals directly concerned. As we have seen, Nachova and DH are now the leading cases. As such, they are the cases that are mentioned in legal commentaries, in resounding texts that celebrate the achievements of the European Court of Human Rights (see, e.g., Marks and Clapham, 2005: 299–301). The result is that we allow ourselves collectively to forget about the multiple instances of racism that the Court has failed to acknowledge, including Ognyanova, Anguelova, and Menson, but also presumably a multitude of cases that have been and continue to be declared inadmissible by committees of threes. We know and, at the same time, are happy to ignore both the individual and the social significance of these cases. We all lose out, as opportunities for acknowledgment and justice are missed. A strong sense of discomfort should arise in us as we take cognizance of the failure by the Court to acknowledge racism. Let me quote Stanley Cohen when he recounts in the preface of his book the night when, aged twelve or thirteen, he came to wonder why he could slip into a warm bed – “flannel sheets, hot water bottle, thick eiderdown brought by my grandmother from Poland” – while the “Night Watch Boy,” an old Zulu hired by his South African middle-class family, “huddled over a charcoal fire, rubbing his hands to keep warm, the collar of his khaki overcoat turned up.” Cohen writes: “I suddenly started thinking about why he was out there and I was in here.” He explains that later, as a sociologist, he would think back about this early psychological unease and see it as “arising from a sense of knowing that something was deeply wrong, but also knowing that I could not live in a state of permanent awareness of this knowledge” (Cohen, 2001: ix). This leads him to identify the central questions of his book as follows: “what do we do with our knowledge about the suffering of others, and what does this knowledge do to us?” (Cohen, 2001: x). His answer is that

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it seems “self-evident that a common – perhaps universal or even ‘natural’ – reaction is to block out, shut off or repress this information. People react as if they do not know what they know. Or else the information is registered – there is no attempt to deny the facts – but its implications are ignored” (Cohen, 2001, emphasis added). Denial, thus, arises from the “need to be innocent of a troubling recognition” (Cohen, 2001: 25). Denial happens in the intimacy of personal lives (think alcoholism, family violence, relationship betrayal), on a state-orchestrated level (think of the elimination of political opponents, repression, crimes against humanity), in a diffuse and global way (think of poverty, famine, global warming, and – of course – racism). It affects all of us without exception. In Cohen’s powerful words, “[t]he world of suffering makes moral imbeciles of us all” (2001: 294). Being “just” a bystander is no excuse. As Zygmunt Bauman reflects in a piece entitled “From bystander to actor,” the bystander’s guilt is that of doing nothing, which is the sin of inaction (2003: 140). “And . . . we are all bystanders now: knowing that something needs to be done, but also knowing that we have done less than needs be and not necessarily what needed doing most” (2003: 143). This may be moral, rather than legal, guilt. It is guilt nonetheless. We are now all aware of the limitations of the case law of the European Court of Human Rights. I go on with my life as presumably you turn the page and read the next contribution in this volume. Of course, the question of how we could stop denying and start acknowledging racial discrimination is tremendously difficult. At the very least we need to keep the fundamental unease that Cohen brings to the surface in the face of the “perplexing state of knowing and not knowing at the same time” (2001: 25). CONCLUSION

The European Convention on Human Rights was signed as part of the post–World War II effort of ensuring that a regime such as the Nazi one would not be able to surface again in Europe; the Court was established to make it possible for violations of human rights to be acknowledged and acted against before an authoritarian regime would gain the ability to transform relatively small instances of arbitrariness and abuse into ever more systematic, generalized, and far-reaching patterns. The Court is therefore supposed to stand for acknowledgment. By contrast, I have argued that it is also part of the machinery that produces denial. This I have demonstrated not with respect to any area but one that goes to the very core of what Nazism denied and human rights law (supposedly) stands for: the equality of human beings. The idea that treating some human beings less well because of their apparent “race” could be in any way contemplated is utterly at odds with the human rights ideology. Having said this, the UN Universal Declaration of Human Rights, which

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is widely taken to express the core of human rights ideology, was adopted at a time when the legitimacy of colonialism and of an hierarchical ordering of races was still very much taken for granted in the West. Would this explain why four decades of Strasbourg case law have led to thousands of verdicts of violation of human rights law, but no finding, until recently, of racial discrimination? Would this explain the ease with which commentators can focus on a few judgments, involving Roma applicants and Eastern European states, which put the fight against racism in a good light, and then neglect all the instances in which Strasbourg justice has failed to name racism? Most importantly, how are we going to be able to achieve justice, not just at Strasbourg but in society at large? In the last sentence, I have refrained from talking, as I have done throughout most of this article, of justice “in this area” because I suspect that the race field of Article 14 only appears as a “separate area” to people who do not need to feel that the whole of their life is dominated by their racial identity. This in itself should remind us of the tall order that invoking justice calls for. ACKNOWLEDGMENTS

Thanks are due to Emily Haslam, her colleagues and students, Kenny Veitch, and Tobias Kelly, for suggesting important lines of arguments in response to an early work-in-progress presentation/draft; Jane Cowan, Paul Betts, and Sharron FitzGerald for providing precious bibliographical references; and Mark Goodale for useful suggestions. References Back, L., T. Crabbe, and J. Solomos. 2001. The Changing Face of Football: Racism, Identity and Multiculture in the English Game. Oxford: Berg. Barnes, Brendon, Ingrid Palmary, and Kevin Durrheim. 2001. The denial of racism: The role of humor, personal experience, and self-censorship. Journal of Language and Social Psychology 20: 321–338. Bauman, Zygmunt. 2003. From bystander to actor. Journal of Human Rights 2: 137–151. Bhabha, Homi. 1994. The Location of Culture. London: Routledge. Burgess, Adam. 1997. Divided Europe: The New Domination of the East. London: Pluto. Cohen, Stanley. 2001. States of Denial. Knowing about Atrocities and Suffering. Cambridge: Polity. Delanty, Gerard. 1995. Inventing Europe: Idea, Identity, Reality. Houndmills: Macmillan. Dembour, Marie-B´en´edicte. 2006. Who Believes in Human Rights? Reflections on the European Convention. Cambridge: Cambridge University Press. Dembour, Marie-B´en´edicte. 2009. In the name of the rule of law: The European Court of Human Rights’ silencing of racism. In Bhambra, G.K. and Shilliam, R. (eds.). Silencing Human Rights: Critical Engagements with a Contested Project. Palgrave. pp. 184–202. Dembour, Marie-B´en´edicte and Magda Mierzewska. 2004. Ten years on: The voluminous and interesting Polish case law. European Human Rights Law Review 5: 517–543.

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Frankenberg, Ruth and Lata Mani. [1993] 1997. Crosscurrents, crosstalk: race, “Postcoloniality” and the politics of location. Cultural Studies, 292–310. Reproduced in P. Mongia (ed.). Contemporary Postcolonial Theory: A Reader. London: Arnold. pp. 347–364. Gilbert-Moore, Bart. 1997. Postcolonial Theory: Contexts, Practices, Politics. London: Verso. Grillo, Ralph. 2003. Cultural essentialism and cultural anxiety. Anthropological Theory 3: 157–173. Grillo, Ralph. 2005. Saltdean can’t cope: Protests against asylum-seekers in an English seaside suburb. Ethnic and Racial Studies 28: 235–260. Hagen, J. 2003. Redrawing the imagined map of Europe: The rise and fall of the “center.” Political Geography 22(5): 489–517. Haldrup, Michael, Lasse Koefoed, and Kirsten Simonsen. 2006. Practical Orientalism – Bodies, everyday life and the construction of otherness. Geogr. Ann. 88B(2): 173–184. Harris, D.J., M. O’Boyle and C. Warbrick. 1995. Law of the European Convention on Human Rights. London: Butterworths. Hirsch, Susan F. 2006. In the Moment of Greatest Calamity. Terrorism, Grief, and a Victim’s Quest for Justice. Princeton: Princeton University Press. Hjerm, Mikael. 2003. National sentiments in Eastern and Western Europe. Nationalities 31(4): 413–429. Hudabiunigg, Ingrid. 2004. The otherness of Eastern Europe. Journal of Multilingual and Multicultural Development 25(5 & 6): 369–388. Kapur, Ratna. 2005. Erotic Justice. Law and the New Politics of Postcolonialism. London: Glasshouse. Latour, Bruno. 2002. La Fabrique du Droit: Une Ethnographie du Conseil d’Etat. Paris: La D´ecouverte. Leach, Colin Wayne. 2005. Against the notion of a “New Racism.” Journal of Community and Applied Social Psychology 15(6): 432–445. Macpherson Report. 1999. The Stephen Lawrence Inquiry. Report of an Inquiry by Sir William Macpherson of Cluny. London: The Stationary Office. Marks, Susan and Andrew Clapham. 2005. International Human Rights Lexicon. Oxford: Oxford University Press. Mbembe, Achille. 2004. The imaginative roots of racism. In Bind´e, J. (ed.). The Future of Values. Oxford: Berghahn. pp. 293–297. Mongia, Padmini (ed.). 1997. Introduction. Contemporary Postcolonial Theory: A Reader. London: Arnold. pp. 1–18. Mutua, Makau. 2002. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press. Pred, Allan. 1997. Somebody else, somewhere else: Racisms, racialized spaces and the popular geographical imagination in Sweden. Antipode 29: 383–416. Said, Edward. 1978. Orientalism. London: Routledge and Kegan Paul. Shohat, Ella. [1992] 1997. Notes on the “Post-Colonial.” Social Text 31/32: 99–193, reproduced in Mongiat (ed.) Contemporary Postcolonial Theory: A Reader. London: Arnold. pp. 321– 334. Simpson, A.W. Brian. 2001. Human Rights and the End of Empire: Britain and the Genesis of the European Convention. Oxford: Oxford University Press. Stolcke, Verona. 1995. Talking culture: New boundaries, new rhetorics of exclusion in Europe. Current Anthropology 36: 1–24.

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Taylor, Becky. 2008. A Minority and the State. Travellers in Britain in the Twentieth Century. Manchester: Manchester University Press. Todorava, Maria. 1997. Imagining the Balkans. New York: Oxford University Press. Van Dijk, Teun A. 1993. Denying racism: Elite discourse and racism. In Van Dijk, T. (ed.). Racism and Migration in Western Europe. Oxford: Berg. Werbner, Pnina. 2005. Islamophobia: Incitement to religious hatred – legislating for a new fear? Anthropology Today 21: 5–9. Wolff, Larry. 1994. Inventing Eastern Europe: The Map of Civilization on the Mind of the Enlightenment. Stanford: Stanford University Press.

3 Proleptic Justice The Threat of Investigation as a Deterrent to Human Rights Abuses in Cˆote d’Ivoire Mike McGovern INTRODUCTION: JUSTICE, PATERNALISM, AND LEGITIMACY

In Cote ˆ d’Ivoire, between 2002 and 2006, diplomats and international jurists tried to use the threat of international prosecution in a politically instrumental manner. Attempts to lessen the abuse of civilians were at least partially successful. Although it is difficult to give a definitive explanation for such success, I argue in this essay that the main causes can be located in Ivorian conceptions of justice and their ability to influence political actors’ behavior, rather than the external threats brought to bear on those same actors. This is not to say that external and internal logics have not influenced each other, engaging in a kind of lengthy conversation. The commitment of Ivorians on both sides of the civil conflict to see themselves and be seen as legitimate political actors has helped to condition the forms of violence that have emerged in the Ivorian conflict at the same time that they have added to the efficacy of the threat of international prosecution for war crimes/crimes against humanity. The fact that blame for war crimes or atrocities could serve as one means of stripping political actors of local legitimacy increased the leverage such threats enjoyed, which raises the question of whether levels of violence might have been self-regulating even without external intervention. From 1960 to 1985, Cote ˆ d’Ivoire was West Africa’s economic Eldorado, rivaled only by Nigeria after it began producing oil. The reasons for the country’s apparent success are complex, and some observers criticized its neocolonial political economy and its one-party political machinery from the beginning.1 Still, the “Ivorian miracle” continued for 25 years, and many aspects of that success and perceptions of the country’s strength persisted for at least a decade longer, into the mid-1990s. The country became a Mecca for immigrants from neighboring countries, and also saw much 1

See Amin, Samir, 1967, Le D´eveloppement du Capitalisme en Cˆote d’Ivoire. Paris: Editions de Minuit; Zolberg, Aristide, 1964, One-party Government in the Ivory Coast. Princeton: Princeton University Press.

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internal migration toward the cities and the rich cocoa-producing forest regions. The benefits of the country’s economic boom were never shared equally, but everyone found a part. This satisfied a sense of justice that had a discernable shape: It created possibilities for personal advancement, which created inequalities between the system’s “winners” and “losers.” This inequality called for a reciprocal movement in the opposite direction, a form of redistributive justice that required the system’s “winners” to share their wealth and tipped the balance (however superficially) back toward equality. F´elix Houphou¨et-Boigny, Cote ˆ d’Ivoire’s president from independence in 1960 until 1993, showed a remarkable ability to juggle the competing claims that such a system set into motion. He played the role of national paterfamilias, creating wealth for himself and those around him, yet always seeing to it that all of his “children” found a place in the system, and that most of those who had not benefitted received some of his largesse. Ivorians did not accept their roles within this system naively: Many Ivorians, including the current president, Laurent Gbagbo, criticized this form of politics as mystificatory pageantry that obscured the fact that an overwhelming portion of the proceeds of the Ivorian economy went to a small number of Ivorians and their international (mostly French) associates. Still, the system created a significant degree of political legitimacy for Houphou¨et-Boigny and his Parti D´emocratique de la Cˆote d’Ivoire (PDCI) during the boom years, when ordinary West Africans2 knew themselves to be better off in Cote ˆ d’Ivoire than in any other country in the region. This situation began to change as a result of the steady economic decline that began in the mid-1980s. Two moments were formative in this trend. First was what Houphou¨et-Boigny called the “cocoa war.” In this “war,” Cote ˆ d’Ivoire, which produced some 40 percent of the world’s cocoa, pulled out of the world markets for two consecutive years to try to influence the sale price of cocoa, which had plummeted in 1985. Cote ˆ d’Ivoire was unsuccessful in its attempt, and had to come back to the market in 1989 after two years away, significantly chastened by the reality that it was in fact the buyers and not the sellers who had greatest influence in the pitiless market for tropical cash crops. If this point needed emphasis, France’s unilateral overnight devaluation of the francophone African CFA franc in 1994 only made it clearer. Although the devaluation made Ivorian cocoa more attractive for export, it doubled the price of all imports and halved the value of middle-class savings relative to other currencies. The “Ivorian miracle,” which had been held up as a model of successful postcolonial growth in the 1960s and 1970s, was turning sour. Between 1990 and 2006, Cote ˆ d’Ivoire slid 18 places on the United Nations (UN) Development Program’s Human Development Index. Tellingly, of the eighteen mostly African countries that 2

This group included Ivorian citizens and immigrants, who came to represent some 26 percent of the population.

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have passed it, seven are West African: Guinea, Senegal, Mauritania, Ghana, Togo, Nigeria, and Benin.3 Although Houphou¨et-Boigny had sown the seeds of disaster, they did not germinate until after his 1993 death. As the political–economic cake began to shrink, the strategies of Houphou¨et-Boigny’s successors turned to a politics of disqualification. The xenophobic ideology of Ivoirit´e was born, amalgamating categories of citizenship, ethnicity, and religion to effectively turn the northern half of the country as well as all immigrants into persons without political or civil rights.4 A bitter succession struggle between National Assembly President Henri Konan B´edi´e and Prime Minister Alassane Ouattara followed Houphou¨et-Boigny’s death in 1993 and led to the politics of Ivoirit´e under B´edi´e. The ideology was part nationalist response to economic hardship and part naked attempt by B´edi´e to disqualify his main competitor from running in the 1995 presidential elections.5 In 1999, middle-ranks officers staged a coup d’´etat, and few Ivorians mourned B´edi´e’s departure from the scene, especially when General Robert Gu´e¨ı, pushed to the front of the military junta, promised to “sweep clean” the political scene and then depart. In the end, he decided that he would prefer to stay, and used a handpicked constitutional court to exclude both Ouattara and B´edi´e’s proxy candidate, Emile Bombet. Facing only eternal opposition candidate Laurent Gbagbo in the October 2000 elections, Gu´e¨ı tried to claim victory, but popular uprisings forced him out, and Gbagbo in. Less than two years later, Gbagbo, who had refused to hold new elections with both B´edi´e and Ouattara participating, and who had continued playing the populist xenophobic card to marginalize “Northerners” including Ouattara, found his plans derailed just as B´edi´e’s and Gu´e¨ı’s had been: by a September 2002 coup d’´etat attempt turned rebellion. When it became clear to the rebels that they would not conquer Abidjan, they retreated to Bouak´e, the country’s second biggest city, and made it capital of the northern half of the country, creating a de facto partition. Although active fighting only lasted some two months, there were a number of subsequent outbursts of violence that saw large-scale killing. Citizens of the northern half of the country accepted the onerous rebel administration to a large extent because of a sense that they had been denied justice by the government in Abidjan. Over the course of 3

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The Human Development Index is hardly a perfect barometer of prosperity or happiness. Still, the fact that Mali and Burkina Faso were, and remained, well below Cote ˆ d’Ivoire on this scale helps to explain why most immigrants from those two countries have chosen not to return to their countries of origin, even though many Ivorians have made it clear that they are no longer welcome in Cote ˆ d’Ivoire. The key text in this attempt at intellectual legitimation was Tour´e et al., 1996, L’Ivoirit´e: Ou l’esprit du nouveau contrat social du Pr´esident Henri Konan Bedi´e. Abidjan: Presses Universitaires de Cote ˆ d’Ivoire. Ouattara is a Muslim from the country’s north, and at one time held a passport from neighboring Burkina Faso.

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the 1990s, they had increasingly been denied both opportunities to prosper within Cote ˆ d’Ivoire’s political economy and the crumbs of patrimonial redistribution. Even the promise of exercising influence through multiparty elections had turned out to be empty. It was at this point that international actors entered the scene. Because African neighbors, former colonial power France, and the UN all recognized the possibility that Cote ˆ d’Ivoire might turn toward large-scale violence, all three intervened early and with a relatively large number of peacekeeping troops. What took place between 2002 and 2006, the period explored in this essay, was an alternation of high-level diplomatic interventions, occasional moments of intense violence, and intense legal wrangling, both in the domestic and international spheres. This is a stereoscopic analysis, trying to understand the strategies and intentions of Ivorian political actors and of international actors and how the two worked on each other. They often met in that zone Sally Engle Merry has called the “middle ground,”6 but just as often they seem to have missed each other entirely. In the end, many of the international actors’ attempts to create political leverage through the discourse and institutions of international justice backfired. Still, after the first two months of sometimes intense fighting, violence was typically limited to brief outbreaks. What the international actors intervening in Cote ˆ d’Ivoire and quite likely most Ivorians had not counted on was that the Ivorian sense of justice developed during the Houphou¨et-Boigny period would assert itself, setting limits to what was acceptable, even in time of war, and thus raising the possibility of another kind of political disqualification that had nothing to do with national origins, ethnicity, or religion. This was the threat of sanction by moral disapprobation for grotesque violence, monopolization of economic or professional opportunities, and insufficient redistribution. HUMAN RIGHTS TALK IN A POLARIZED PUBLIC SPHERE

Even during the period between Cote ˆ d’Ivoire’s “calamitous” 2000 elections and the 2002 coup attempt, accusations of human rights abuses in Cote ˆ d’Ivoire operated much like talk about citizenship. Both were the common currency of political contestation in a highly polarized setting. Ivorians were and remain acutely aware of the usefulness of such accusations within an international sphere of talk about transparency, good governance, and the respect for human rights. There is also a large and engaged audience in Cote ˆ d’Ivoire for this kind of talk. Ivorians often talk about evidence of planned, brutal massacres as being as much a disqualification for a political actor or party as the identity politics surrounding citizenship rights that 6

Engle Merry, this volume.

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are more frequently highlighted in academic and press accounts. It is this nationallevel concern with civility that has allowed the threat of international prosecution to influence Ivorian political actors. Accusations of orchestrating atrocities have been leveled at all the political players in Cote ˆ d’Ivoire,7 and dogged the Gbagbo government from its start. The first accusation focused on violence surrounding the 2000 elections; a later one accused the Gbagbo Pr´esidence8 of overseeing a death squad that carried out political assassinations from 2002 onward. It is difficult to assess political responsibility for the election period violence, which included arbitrary arrest, beatings, torture, and the targeted use of rape and gang rape against “Northerners.”9 The most infamous result of this period’s violence was the charnier (mass grave) of Yopougon, one of Abidjan’s poor outer neighborhoods. Fifty-seven “Northern” men’s corpses were dumped in the grave after they were killed in retaliation for the death of a gendarme killed in clashes. This massacre took place on the day Gbagbo was sworn into office, thus it is difficult to say that his administration deserved the blame. The targeting of Muslims, immigrants, and “Northerners” more generally had as much to do with the culture of violence and impunity cultivated by the prior PDCI government and the military junta. Officials in the Gbagbo government have been eager to distance themselves from these events or any responsibility for them.10 Still, it is significant that the Gbagbo government was at pains to question the existence of events that they might well have simply admitted, but blamed on the outgoing administration. More damning for the Gbagbo government’s domestic and international legitimacy were accusations that the Pr´esidence was running a death squad to eliminate its perceived enemies. This death squad, allegedly organized before the September 2002 rebellion, was seen to have done its worst damage in the six months following the coup attempt. Victims included the putschiste President Gu´e¨ı, who was killed along with his immediate family at the beginning of the rebellion; well-known 7

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One of the founding grievances of Laurent Gbagbo and his Ivorian Popular Front (Front Populaire Ivoirien; FPI) is the massacre of hundreds or possibly several thousand Be´ t´e in 1970 in what has become known as the “Gu´ebi´e massacre,” carried out by the Houphou¨et-Boigny government to suppress a leftist opposition party and its B´et´e leader. See Dozon, 1985, La Soci´et´e B´et´e. Karthala, Paris. The term Pr´esidence is not easily translated into English, but refers to the office of the president, including its administrative staff. Also referenced are the presidential guard and all other security and intelligence staff that report directly to the president (reported to be large and very well-armed and trained in Cote ˆ d’Ivoire), and the autonomous budget of the President’s office, estimated at approximately $420 million per annum. See “D’ou` vient l’argent ? Cote ˆ d’Ivoire”, in Jeune Afrique, December 24, 2006. The events of this period are catalogued in The New Racism: The Political Manipulation of Ethnicity in Cote ˆ d’Ivoire. Human Rights Watch, August 2001. A member of Gbagbo’s inner circle once spent a half hour trying to convince me that the Malian truck driver who had claimed that he drove the truckload of corpses to the mass grave had admitted to having been paid off and that whole thing was a hoax.

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comedian and opposition activist Camara H; and Benoˆıt Dacoury-Tabley, the younger brother of Louis Dacoury-Tabley, the political number two of the Forces Nouvelles rebels. Gbagbo grew up with the two brothers, and Louis was for many years his right hand within the Front Populaire Ivoirien (FPI). Many Ivorians saw Benoˆıt’s murder as a gruesome settling of scores for his brother’s betrayal.11 These accusations were first made public via a leaked UN High Commissioner for Human Rights report written in early 2003. In February 2003, the UN High Commissioner for Human Rights publicly mentioned the possibility that the International Criminal Court (ICC) might try those responsible for the assassinations. At about the same time, the French Directorate-General for External Security (DGSE) intelligence agency wrote up a memo on the death squads, stating that there was an 80 percent probability that they were based in the Pr´esidence and operating under instructions from the President, his wife, or both. This went further than the UN Mission’s findings, but in the same direction.12 These reports were presented as facts in the French press, and French President Jacques Chirac added fuel to the fire in March 2003 by threatening that anyone supporting death squads could be brought before the ICC. President Gbagbo’s reaction was swift and audacious. First, he opened a court case for libel in France against Le Monde and La Croix, two of the publications that had reproduced these accusations, using the names of the presidential couple and two of the alleged henchmen involved. Second, he publicly requested that the UN Security Council (UNSC) refer the case of Cote ˆ d’Ivoire to the ICC so it could send “competent” investigators to the country, who would, he insisted, clear him. Then they could pursue the true war criminals – the rebels. This request, he said, “was motivated by the profound attachment of the legitimate authorities of Cote ˆ d’Ivoire to human rights and the strict observance of international human rights.”13 From September 2002, the Ivorian conflict gave rise to other accusations of human rights abuses and war crimes. In the aftermath of the capture of Vavoua and Daloa by pro-government forces and mercenaries, those civilians perceived to have supported the rebels, especially in Daloa, were allegedly executed.14 In Bouak´e, after a failed attempt by Gbagbo’s forces to recapture the city, which had already become the “capital” of the rebel-held territory, numerous accounts pointed to a 11

12

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There were others killed, including two high-profile French journalists, the correspondent of Radio France Int´ernationale, Jean H´el`ene, who was shot in the head by Ivorian police Sergeant Th´eodore S´ery Dago, and Guy Andr´e Kieffer, a specialist on cocoa markets. The UN report stated, “the death squads in Cote ˆ d’Ivoire seem to be constituted of elements close to the government, from the Presidential Guard and from a tribal militia of the same ethnicity – B´et´e – as President Laurent Gbagbo.” See also C. Seck, “L’ONU en p`ere fouettard” in Jeune Afrique, February 9, 2003. Communiqu´e, Gouvernement de la Cote ˆ d’Ivoire, March 13, 2003. See International Crisis Group, 2003, Cote ˆ d’Ivoire: The War Is Not Yet Over. Africa Report No. 27: 17, 30.

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rebel-orchestrated massacre of eighty gendarmes and their sons on October 6, 2002.15 From October to December 2002, smaller rebel groups widely believed to be proxies of Liberia’s then-President Charles Taylor committed numerous atrocities in the country’s far western towns of Man, Danan´e, and Toul´epleu. However much international human rights organizations might see themselves as practicing an impartial, value-neutral form of investigation and pursuit of redress for abuses, this is not how most actors in Cote ˆ d’Ivoire saw the usefulness of human rights talk. There are two major human rights groups in Cote ˆ d’Ivoire, one affiliated with Alassane Ouattara’s Rallye des R´epublicains (RDR) party, and the other with Laurent Gbagbo’s FPI. Each has appeared dedicated to pointing out or even amplifying the abuses committed by the other side, while often challenging claims made by the other organization, using accusations of human rights abuses as ammunition in the political struggle against their adversaries. In this polarized political field, human rights talk serves as one instrumental tool among others, each of which is used to disqualify one’s adversaries. President Gbagbo’s invitation of the ICC to open an investigation in 2002 was launched in that context – recruiting international allies in his attempt to do away with a bothersome set of opponents who would be exposed as illegitimate.16 Investigating another such incident, a UN Commission of Inquiry placed most of the blame for a March 2004 massacre of at least 120 would-be demonstrators on the Gbagbo government, yet also noted, “the political responsibility of those [opposition figures] who had planned the march,” who “must have realized it would be too risky,” and did not themselves participate. Another observer described the opposition’s macabre “desire to have another mass grave.”17 In the Ivorian press, there have been regular accusations that each side has sought to discredit the others by sacrificing the lives of its own supporters.18 The highly polarized nature of Ivorian politics and civil society is reproduced in its press. Journalistic coverage has been so inflammatory that UN Secretary General Kofi Annan several times warned of targeted sanctions or international prosecution of journalists found responsible for promoting violence and hatred. 15

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See “Le Grand d´eballage de Me Verg`es – Massacre des 80 gendarmes de Bouak´e, tueries de Du´ekou´e.” L’Inter, June 20, 2006. Gbagbo’s misrecognition of the fact that he might be putting himself at risk of future prosecution is similar to the same “mistake” made by Uganda’s Yoweri Museveni, who hoped to use the ICC to flush out LRA rebels after 20 years of using a military option had failed to yield results. In both cases, when they did realize that, in the view of international actors, they too (or their ruling party colleagues) might be guilty of abuses, they quickly became less positive about the ICC and called into question its neutrality. Interview with a humanitarian worker, Abidjan, April 2004. ´ Cf. “Le nombre de morts comme moyen d’accession au pouvoir d’Etat: R´esultat de la peur de comp´etir,” open letter published on Abidjan.net, and “B´edi´e cherche d´esesp´erement des corps.” Notre Voie, March 30, 2004.

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Both the polarized public sphere I have described here and the instrumental approach to human rights and law that operated in that field were direct extensions of the politics of disqualification described earlier. In this regard, the law – whether legalistic arguments about what constituted eligibility for presidential election or accusations of human rights abuses – was an ideal vehicle for eliminating one’s political opponents from competition. Ivorian politicians often take a highly arithmetic approach. Jean-Pierre Dozon’s article on the origins of Gbagbo’s xenophobic politics makes this clear19 : In Cote ˆ d’Ivoire’s first multiparty elections, Houphou¨etBoigny gave the vote to immigrants resident in Cote ˆ d’Ivoire, knowing that they would vote for him. Added to his existing constituency, they would guarantee him the election. Gbagbo is a socialist educated in France (and experienced in the realities of anti-immigrant racism) working within a more-or-less classic progressive paradigm. Still, he realized from 1990 that his only chance at election would be to eliminate the “supplementary” immigrant voters from his opponent’s balance sheet. In the period after Houphou¨et-Boigny’s death, it became equally essential for him to eliminate at least one of his opponents, and Ouattara was the obvious choice. THE ICC AND THE JUDICIALIZATION OF INTERNATIONAL POLITICS: “LA JUSTICE A SES RAISONS QUE LA RAISON ˆ PAS” POLITIQUE NE CONNAIT

The preceding section traced the instrumentalization of justice discourse in Cote ˆ d’Ivoire. Similar processes exist in Euro-American settings. Progressive critics of the human rights regime have voiced concern that the human rights and international justice regimes impinge on the sovereignty of weaker nations. In this view, international “justice” smuggles in Eurocentric assumptions about the person and society that solidify individualist notions of responsibility, property, and social relations that constitute the “common sense” of Euro-American capitalism.20 Thus, although the discourses of international law and justice might seem benign, they serve much the same role as the standardization of banking and property ownership laws that form the basis of the post–Cold War neoliberal “Washington Consensus.” In a curious parallel, a 2003 memo written by conservative legal scholar Jack Goldsmith for the U.S. Department of Defense described the work of the ICC as 19

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Dozon, J.P. 1997, “L’etranger et l’allochtone.” In Contamin, B., and Fote, H. M´emel (eds.). Le Mod`ele Ivoirien en Question: Crises, Ajustements, Recomposition. Paris: Karthala. For two trenchant Africanist critiques, see Shivji, I. 1989. The Concept of Human Rights in Africa. Dakar: CODESRIA; and An-Naim, A. 1992. Human Rights in Cross-Cultural Perspective: A Quest for Consensus. Philadelphia: University of Pennsylvania Press. See also many of the other chapters in this book and Clarke K., 2009, Fictions of Justice: The International Criminal Court and the Challenges of Legal Pluralism in Sub-Saharan Africa. New York: Cambridge University Press.

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representing the “judicialization of international politics.”21 There was a real threat, wrote Goldsmith, that the ICC might try American officials for crimes against humanity because of their actions in deciding policy in the American “War on Terror.” Neoconservative opponents of international legal regimes might seem to have little in common with academics whose analysis both critiques the taken-forgranted aspects of the culture of capitalism and defends the livelihoods and ways of life of people in out-of-the-way places. However, both sets of anxiety share a deeper structural kinship, which is concern that the “overreach” of judicial mechanisms like the ICC may in fact be a way of doing politics by other means. The issue is captured nicely in Louise Arbour’s phrase, quoted in the heading of this section. In discussing her decision to indict Slobodan Milosevic before the end of the Balkans war, she said she was fiercely criticized by those who predicted that her judicial actions would derail the political process. In any event, the war ended eight days after the indictment. She commented, “I don’t want to suggest that it was the indictment that ended the conflict, but one cannot predict the consequences of a judicial act, especially if it is an act that has its own integrity. Justice has its own logic independent of political logic.” Arbour’s position emphasizes the autonomy of the legal sphere against diplomatic colleagues who would put international justice at the service of political ends. She is cognizant of the fact that law is practiced in a political environment and has political consequences, but insists that the law not be subsumed under any instrumental logic that would treat it as an extension of politics. The Ivorian situation is unusual in that international actors took an interest in the situation, backing up their words with actions. Whatever the anxieties of conservatives or progressives may be about international government, this is not often the case. These interventions ranged from the deployment of peacekeeping troops to sending three different international commissions of inquiry in the space of one year to investigate alleged human rights abuses. Indeed, if one calculates the ratio of the number of peacekeepers deployed to war casualties,22 concern about events in Cote ˆ d’Ivoire would appear to have far outstripped that in any African conflict in which the UN has mounted a peacekeeping operation. This level of concern has been borne out in conversations I have had with diplomats involved with Cote ˆ d’Ivoire, who often stated that they “did not want to be blamed for another Rwanda.” However much desire there may have been to prevent further death and suffering in Cote ˆ d’Ivoire, and however “robust” (or overbearing, depending on one’s point of 21 22

Rosen, J. “The Conscience of a Conservative.” In The New York Times, September 6, 2007. This measure is admittedly crude, but comparisons between the 11,000 deployed in Cote ˆ d’Ivoire against the 15,000 deployed in the wake of the much deadlier Liberian conflict, or the 17,000 deployed in the Democratic Republic of Congo, where the war has been several orders of magnitude more deadly than Cote ˆ d’Ivoire’s, give some sense of the relatively high level of concern surrounding the Ivorian conflict.

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view) the interventions, the means available to outside actors to influence the actual politics on the ground remain few in number and limited in efficacy. Despite the impressive number of white Toyota Land Cruisers circulating around Abidjan and even UNSC resolutions passed, international engagement in Cote ˆ d’Ivoire, as in most other places, has been more a matter of being seen to be doing something than actually doing very much at all. The use (or threat) of human rights investigations was thus one part of the “gestural politics” of international diplomacy, and served two simultaneous purposes. First, it signaled international vigilance to prevent further large-scale killings. Second, it was an attempt to create leverage to be used to force the protagonists to exert the leadership necessary to address the underlying political issues “driving” the violence. The agonistic relationship between Ivorian elites and international actors intervening in the conflict raises an intriguing paradox: Both local actors in the Ivorian conflict and international actors seeking the means to limit the damage done by the conflict sought to turn the law to their own political ends. Each actor saw the possibilities of using international law as a way of circumventing politics as normally constituted, yet all seemed to recognize the inherent instability involved in trying to harness the law – which operates according to its own ideal of rendering an impartial and transcendental justice – to these instrumental ends. Much anthropological attention to the law emphasizes the slippages and shortcomings that ensure that this ideal of transcendental impartiality is never met. This demystificatory move, which reveals the sociopolitical and the political economic contexts of the law, presumes a na¨ıve audience. My argument in this chapter is that in fact all the (national and international) players on the Ivorian scene were thoroughly disabused from the start. The potential surprises for them would come from those moments when the ideal of neutrality and justice cited by Louise Arbour asserted itself against their attempts at manipulation, rather than vice versa. IVORIAN REACTIONS TO THE THREAT OF INTERNATIONAL PROSECUTION

There were several judicial processes engaged or discussed with regard to the Ivorian conflict between 2002 and 2006, the period studied in this chapter. One was a series of UN-sponsored Commissions of Inquiry that conducted research and put together reports on major atrocities first in December 2002/January 2003, next in April 2004, and finally in the period from June through October 2004. None of these three reports was ever officially released, but all three were leaked. The first Commission looked into abuses including the alleged presence of death squads attached to the Pr´esidence. The president dismissed it. Although the Assistant High Commissioner for Human Rights, Bertrand Ramcharan, chaired the commission,

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President Gbagbo dismissed it as “tourists,” and demanded a more serious team of “professionals” to pursue this issue. The next Commission of Inquiry arrived in Abidjan in April 2004, to ascertain the circumstances of the deaths of what were later counted as “at least 120” civilians killed by the government’s security forces, in conjunction with a variety of “parallel forces” including the Young Patriots and English-speaking (presumably Liberian) mercenaries. Those persons killed were government opponents who planned to stage a protest march. This Commission found that: What happened on 25 and 26 March was the indiscriminate killing of innocent civilians and the committing of massive human rights violations. The march became a pretext for what turned out to be a carefully planned and executed operation by the security forces, i.e., the police, the gendarmerie, the army, as well as special units and the so-called parallel forces, under the direction and responsibility of the highest authorities of the state. This conclusion is the result of accounts from eyewitnesses and survivors as well as corroborating evidence collected in Abidjan from 13 to 28 April 2004.23

Because the report was leaked almost immediately, it was never officially released. It suggested “the establishment of a mixed human rights court, with participation of international judges, mandated to prosecute all past human rights violations including those committed prior to 25 March 2004.” This recommendation, which clearly took the Sierra Leone hybrid tribunal as a model, saw such an institution as a way around the perceived polarization and politicization of the Ivorian judiciary. However, it failed to factor in the difference between the two situations: In Sierra Leone, the Kabbah government invited the Special Court for Sierra Leone (SCSL) as a means of pursuing what it expected would be victors’ justice. In Cote ˆ d’Ivoire, it was already clear that the standing government was likely to be considered one of the primary suspects of human rights abuses. Not surprisingly, the pro-Gbagbo press dismissed the Commission’s report as further work by the French government to use a puppet UN as a means in its propaganda war against the Gbagbo government. The third Commission of five international jurists (four African and one European) carried out its research between July and October 2004 on abuses and war crimes from the beginning of the war. The document they produced of 91 pages has never been publicly released, but it has served as one basis for UNSC decisions regarding Cote ˆ d’Ivoire ever since. The report was accompanied by an appendix with a list of names of those it considered personally responsible for abuses. This secret list, and the presumed dossiers organized around each individual on it, became the 23

Report of the Commission of Inquiry on the Events Connected with the March Planned for 25 March 2004 in Abidjan. Geneva: April 29, 2004, para 72.

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center of the delicate cat-and-mouse game as international actors attempted to force the key actors back toward peace negotiations. A second category of external intervention was the 2006 UNSC “naming and shaming” process in which three Ivorian citizens were placed on a travel ban and assets freeze list. There was little unanimity within the UNSC on applying such sanctions. Although France led the attempts to bring maximum diplomatic pressure to bear on the Ivorian protagonists, with robust support from the United Kingdom and less open but still strong support from the United States and Western European nations on the UNSC including Denmark and Greece, this approach was opposed by China, and to a lesser extent by Russia. The African members of the UNSC during this period (2004–2006) were in the middle, although they tended to quietly support the use of sanctions. The delays and concessions demanded by the Chinese in particular allowed the situation in Cote ˆ d’Ivoire to develop in an atmosphere of international threats the seriousness of which was always open to question. However, after Young Patriots attacked the headquarters of the UN peacekeeping mission in Abidjan as well as their base in Guiglo, in the Far West, the UNSC finally imposed the freezing of assets and travel ban sanctions on three figures: Charles Bl´e Goud´e and Eug`ene Dju´e, both of the pro-Gbagbo “Patriotic Galaxy,” as it is called in Cote ˆ d’Ivoire, and Martin Fofi´e Kouakou, the Forces Nouvelles Commander charged with command and control responsibility for the troops who allegedly carried out a June 2004 massacre in Korhogo that settled an internal split within the rebellion. When sanctions were threatened, Bl´e Goud´e often stated that he had no external bank accounts and that he didn’t mind if he never left Cote ˆ d’Ivoire again. His reaction (like that of Dju´e’s) after being put on the list was rather different. Both men came to the The United Nations Operation in Cote ˆ d’Ivoire (L’Op´eration des Nations Unies en Cote ˆ d’Ivoire; ONUCI) offices on a monthly basis to ask how they could be removed from the list.24 Moreover, their appearance on the travel ban list was followed almost immediately by a radical change in the rhetoric used in their public appearances. Soon after he appeared on the list, Bl´e Goud´e began appearing in public as the leader of “Peace Caravans” rather than whipping his listeners into a xenophobic frenzy and inciting them to violence, as he had done publicly on many occasions in the past. Similarly, the one member of the Forces Nouvelles to be sanctioned has also tried to have himself removed from the list, arguing that “the international community must take note of the fact that Ivorians themselves have decided to forgive one another.”25 The strength of these reactions has surprised even those diplomats who had argued for the use of sanctions in the first place. 24 25

Interview, senior diplomat in ONUCI mission, October 2006. Maiga Idrissa. “Lev´ee des sanctions internationales – Fofi´e d´efend son cas devant l’ONU.” Le Patriote, September 6, 2007.

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A third site of judicial intervention was that of the ICC’s opening a preliminary dossier on war crimes or crimes against humanity committed in the country. Cote ˆ d’Ivoire had signed but not ratified the Rome Treaty, so the only way the ICC could assert jurisdiction over crimes committed in the country was by UNSC referral. As President Gbagbo did in fact request such a referral in an act of spectacular brinksmanship, the way was at least potentially open. The ICC has “remained seized” of the situation in Cote ˆ d’Ivoire ever since, to use the usefully vague language of international law and diplomacy. Chief Prosecutor Luis Moreno-Ocampo has had more worrying situations to deal with, and Cote ˆ d’Ivoire has never risen to the level of an official dossier of the ICC. Still, a variety of international nongovernmental organizations26 have recommended an ICC investigation as a way of prosecuting those most responsible for these crimes. The UNSC has maintained a productive ambiguity around the matter, so far relying on its own “tools,” namely assets freezes, travel bans, an arms embargo, and the institution of a UN Panel of Experts to monitor it. However, the threat of ICC investigation continues to dangle like a sword of Damocles over all players in the country’s political elite. A fourth form of legal sanction brought to bear on the situation was through national courts, namely in Cote ˆ d’Ivoire and in France. I have already introduced the case for libel brought by the presidential couple against Le Monde and La Croix in the French courts. Others have tried to use these courts, too. The family of journalist Guy-Andr´e Kieffer, disappeared since April 16, 2004 and presumed to be dead, has brought a case against “X,” his murderer, setting into motion a process of investigation by the French legal system. Family members of the nine French soldiers killed by an Ivorian government bombardment of a French peacekeepers’ barracks in the rebel-held town of Bouak´e have brought a similar case against “X,” in their attempt to force the French government to shed light on that situation. On their side, the Ivorian government has threatened to bring cases against the French government for unilaterally taking the decision to destroy their fleet of two planes and some eight helicopters after the bombardment of the French barracks, and for a massacre of Ivorian civilians several days later, as the French troops fired on civilian crowds gathered outside the Hotel Ivoire where the French troops were gathered. By far the most interesting of these cases was the Gbagbo libel trial in Paris. In the initial May 2004 trial, the French courts awarded two of the officers accused of heading the death squads a symbolic one Euro indemnity for having been libeled, while rejecting their claim. The president and his wife immediately appealed, and in April 2006 won a 3,000 Euro payment and a requirement by the court that Le Monde retract the three articles specifically identifying the presidential couple as

26

Including International Crisis Group, Amnesty International, and Human Rights Watch.

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the source of the death squads’ orders. Again, in this case Ivorian political actors were keen to clear their names, both in national and international settings. The Gbagbos protested the unfairness of having been accused of giving orders to death squads, and invested significant energy and resources to clear their names. Finally, there was a fifth legal institution that acted indirectly on the way various actors saw themselves in relation to the law: the tribunal system set up to try persons who allegedly bore the greatest responsibility for war crimes and crimes against humanity in the wars/genocides that took place in former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. Most relevant to the Ivorian case was the SCSL, a hybrid national–international tribunal, established in January 2002 under the auspices of both the UNSC and the Sierra Leonean government. The SCSL operated alongside the Sierra Leonean Truth and Reconciliation Commission,27 a body that aimed to unearth testimony regarding the abuses committed during the war, but without prosecutorial powers. There are some indications that the example of the Sierra Leone court may have diminished abuses in Cote ˆ d’Ivoire. Here it is worth underlining the fact that a number of the rebel combatants, especially those who fought for the Taylorsponsored Movement for Justice and Peace and the Mouvement Patriotique du Grand Ouest, were of mixed nationalities, and had experience fighting in Sierra Leone, Liberia, or Guinea, and sometimes all three, before entering Cote ˆ d’Ivoire in 2002. In 2003, researchers from the International Crisis Group spoke with field commanders in the rebel-held north of Cote ˆ d’Ivoire. The commanders told them explicitly that they were careful to rein in their fighters because they were afraid of future prosecution by an SCSL-like tribunal. Although there is some divergence on the question of whether the notion of “human rights” has in fact spurred an increase or decrease in the number of human rights violations in West Africa’s wars,28 there is some evidence that it was something taken into account by Ivorian combatant field commanders. One factor in Cote ˆ d’Ivoire is that the time factor had come into 27 28

Shaw, this volume. Hoffman has argued that civilian defence force militia combatants from Sierra Leone became convinced that those who committed the worst atrocities in the Sierra Leone war were rewarded with better disarmament, demobilization and reintegration packages, and thus may have fought with less concern after joining the LURD in Liberia. On the other hand, some writers who spent considerable time with the LURD have emphasized the relatively greater care they took to impose discipline within their fighting ranks, including punishments (often summary execution) for abuses such as rape or extrajudicial killing of civilians (Brabazon, 2003, Heatherington, p.c. 9/07, Dufka, p.c. 9/07). Richards and Archibald (2002) also raise the question of the extent to which a “human rights discourse” is exogenous to Sierra Leone, using their fieldwork data to show that rural people discussed the war in terms of ideas about justice. They eschew the exogenous/endogenous distinction as misguided, using the example of discussions of African conversion to world religions as their model of a hybrid process in which there is a relation of mutual influence at play, with considerable scope for agency, appropriation, and reinvention by subaltern actors.

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play: Before the rebellion began in 2002, the SCSL was already established, and within two months of the Linas–Marcoussis Accord, such figures as Foday Sankoh, Sam “Maskita” Bockarie, and Charles Taylor had been indicted.29 No such active pursuit of war criminals was going on in the region during the Liberian and Sierra Leonean wars, so the Ivorian combatants fought in a qualitatively new setting of possible future indictment for their actions. It is difficult to separate decisions made with an eye toward future possible indictment from those made with the intention of solidifying a group’s (especially an insurgent group’s) legitimacy. As one researcher put it, describing the rebels’ approach, “Also, from the outset, they were always extremely aware of international opinion. You could say that from the first day, they played to an international audience, whereas Gbagbo played almost exclusively to his home contingent” (Marshall, 2007, personal communication). Nevertheless, the threat of being disqualified or rendered illegitimate, whether this meant imprisonment or simply (local or international) censure does appear to have played a role in Cote ˆ d’Ivoire in making some of the combatants “think twice” about committing atrocities or allowing atrocities to be committed under their command. In all of these instances, from the Gbagbos’ libel trials to Charles Bl´e Goud´e’s attempts to be removed from the targeted sanctions list, Ivorian political actors invested considerable time and effort into clearing their names. PUTTING JUSTICE REGIMES INTO THEIR REALPOLITIK CONTEXT: THE DOUBLE LANGUAGE OF INTERNATIONAL DIPLOMACY

So far, I have described the situation roughly as one in which the main players in the Ivorian conflict sought their own advantage by using domestic and international law instrumentally to achieve their ends, while a more-or-less exasperated international community attempted to use various sources of influence to push the process toward a peaceful resolution. This depiction is only partially accurate, and, in this section, I move to a different analytic frame to show the international context in which Ivorian politicians were operating. This frame suggests a rather different picture. The picture is indeed one of Ivorian politicians often acting in bad faith, but often with the direct or indirect connivance of the very international players who simultaneously portrayed themselves as the purveyors of an impartial, transcendental justice.

29

The indictments were issued on March 3, 2003, although the Taylor indictment was not made public until he was in peace talks with rebel factions in Accra Ghana in June 2003. On May 3, 2003, Bockarie, who had been fighting in Western Cote ˆ d’Ivoire with the Taylor-backed Movement for Justice and Peace (MJP) – a curious name for a rebel group in a francophone country – was killed by Taylor forces just inside Liberia.

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In his influential book Citizen and Subject, Mamdani (1996) makes a strong case for the long-term, deleterious effects of the legal dualism that applied a metropolitan code to expatriates and a small number of “assimilated” African citizens, and a different “customary” code to the vast majority of African subjects. For the sake of this chapter, what is most interesting in his chapter on customary law is his insightful critique of the “repugnancy clause,” a caveat saying that colonial law would recognize customary norms except when they were “repugnant to justice and morality.” This threshold of universal (i.e., European) decency was one of the few justifications for abrogating customary laws, but was, Mamdani argues, most often applied to ensure public order. In short, he argues, “It is not that Victorian notions of right and wrong played no part in setting practical limits to customary law. They did, in matters such as slavery, mutilation, polygamy, and bride-price; but they were subordinated to political considerations, and for that reason, they were always negotiable” (1996: 117). This description might well apply to the selective application of human rights norms by powerful bilateral and even multilateral actors who never put their ´ “raison d’Etat” entirely out of mind. The situation presented in prior sections of this chapter might suggest a kind of hydraulics of threat and reaction that prevails to rein in potentially unruly actors. The situation is in fact considerably more complex, and the argument must in turn become subtler. My contention is that threats of prosecution or even “naming and shaming” are two among many possible forms of signification available to international diplomats in the complex semiotics of international politics. In this regard, it is important to note that this is a type of semiosis filled with feints and dissimulations, in which even those persons speaking may sometimes get tripped up in the complexities of their own doubletalk. As one French diplomat based in Abidjan said to me, “I sometimes hear a statement coming out of the Quai d’Orsay.30 Now mind you, I am a trained diplomat, and in principle, I’m supposed to know how to untangle these messages and read between their lines. But I’m often as baffled as anyone – I have to call Paris, to find out what the statement really meant!”31 More often, the relationship between Cote ˆ d’Ivoire and France has been regulated by a neocolonial “entente” that was relatively well understood by all the key players, even if they were at pains to keep both ordinary Ivorians and ordinary French in ignorance of the system of reciprocal corruption that came to be known as la Franc¸afrique.32 The Franc¸africain “deal” brought together diplomacy, 30 31 32

The Quai is the seat of the French Ministry of Foreign Affairs. Interview with director of Service de Coop´eration et d’Action Culturelle, Abidjan, April 2004. The term, which can be understood to simply refer to relations between France and Africa, is also based on a pun reportedly coined by Cote ˆ d’Ivoire’s own Houphou¨et-Boigny: France a` fric or roughly “cash for France.” See Verschave, F., 2005, La Franc¸afrique: Le plus long scandale de la R´epublique. Paris: Stock.

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bilateral aid arrangements, business interests, and military power to the benefit of French individuals and companies, and African presidents such as Cote ˆ d’Ivoire’s Houphou¨et-Boigny, Gabon’s Omar Bongo, Togo’s Gnassingb´e Eyadema, and Cameroon’s Paul Biya. Far from the simple relationship of neocolonial control one might imagine, students of the Franc¸afrique network have emphasized the extent to which this influence went in both directions: French political parties on both the right and the left made regular trips to see leaders such as Houphou¨et-Boigny, whose “caisse de souverainet´e” (sovereignty fund) was an enormous slush fund filled by a tax levied on all Ivorian cocoa, and entirely unregulated by the Ivorian legislature or any other part of government. With the end of the Cold War and Franc¸ois Mitterand’s famous 1990 speech to assembled African heads of state at La Baule, this situation was meant to change. As copious research has shown, this has not in fact been the case, at least in any clear-cut or obvious way.33 A good example of such diplomatic ambiguity can be seen in France’s stance toward Laurent Gbagbo in 2000, and again during the 2003 Linas–Marcoussis negotiations. Gbagbo himself described the 2000 elections, marred by violence and exclusion of two of the major candidates, as “calamitous.” The European Union, the United States, and the Organization of African Unity all condemned the elections, and while happy that Gu´e¨ı had been forced out of office by popular protests, they called for new elections that would include all the major candidates. Gbagbo refused, and found backing from both France and the Economic Community of West African States (ECOWAS). Both France and ECOWAS seemingly wagered that new elections would risk instability, and thus supported Gbagbo. By 2003, France had changed direction, essentially insisting that Gbagbo form a new government that included those players who had been excluded (with their blessing) in 2000 – a situation that had led not to the hoped-for result of (authoritarian) stability, but toward civil war. By compounding their original contempt for democracy with a solution that rewarded rebels with almost immediate accession to the political perks they sought, the French found themselves disliked and rejected by all parties to the conflict, even while those parties continued to seek competitive advantages over one another by dealing with the French and appealing to French public opinion. A more contentious instance is that of the purported “yellow light” given to Gbagbo on the eve of his bombardments of sites in the rebel-held North in November 2004. This issue became explosive when one bombardment killed nine French 33

Two very recent examples of the continuation of French politics in Africa according to Franc¸africain logic have been the thumbs up given to Togo’s illegal succession process after the death of dictator Gnassingb´e Eyadema, and France’s recent deployment of troops to the Central African Republic (unknown to the French public or, even apparently, the National Assembly) to prop up the Bangui government yet again (Gauthier-Villars, D., “Continental Shift: Colonial-Era Ties to Africa Face a Reckoning in France.” Wall Street Journal, May 16, 2007).

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peacekeepers and an American, which then led to even greater bloodshed and damage in Abidjan in the week that followed. According to Pan-African newsweekly Jeune Afrique,34 the signal may have been sent in a suitably veiled yet still clear manner that France would allow Gbagbo to try to reconquer the North, possibly killing key members of the rebel leadership, and then returning to the negotiating table from a position that would allow the process to move forward, with one party clearly having the upper hand. Another version, suggested two years after the fact by French newsmagazine L’Express,35 noted an explicit “No” conveyed by French President Chirac to President Gbagbo in a telephone conversation the day before the bombardments began. However, that article goes on to describe the seemingly inexplicable decisions made by French military and intelligence that allowed the Eastern European mercenary pilots of the Ivorian jets who killed the French soldiers to escape. The families of the French soldiers killed in that bombardment are explicitly calling for an investigation of the responsibility of both the Gbagbo and Chirac administrations in the affair. These examples give some sense of the hybrid context in which African politicians exercise and mold power. They navigate local institutions and fields of signification that they partly shape. This shaping includes the instrumental use of a populist xenophobia, or the discourse of a “second decolonization,” a trope frequently used by Gbagbo and his FPI. At the same time, they navigate international institutions and fields that they have far less ability to determine. Still, this does not make them passive “playthings” of those systems, as evidenced both by various actors’ attempts to use the language of human rights to disqualify their opponents, and the attacks by pro-Gbagbo Young Patriots against both French and UN buildings and staffs. CONCLUSION: THE THREAT OF PROSECUTION AND THE POLITICAL IMAGINARY

The Ivorian war has not produced tens or hundreds of thousands of casualties like other major civil conflicts worldwide. Instead, it has been waged much more like South America’s “Dirty Wars” of the 1970s and 1980s. Both the standing government and the rebels who opposed it have worked hard to maintain the mantle of respectability while using a noxious mix of legalistic wrangling, persistent intimidation, and occasional spasms of extreme violence to achieve their ends. Despite claims to the contrary, if any of the parties to the Ivorian war had backing by major powers at the beginning of the war, this ceased to be true within less than a year. Within that same time frame, the region’s principal exporter of mayhem, 34 35

Soudan, F. et al. “La d´echirure,” Jeune Afrique, November 14, 2004. Hugeux, V, E. Pelletier, and R. Rosso, “Les tueurs envol´es de Bouak´e,” L’Express, May 18, 2006.

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Charles Taylor, had also left the scene. This exit left the conflict frozen into a situation of “neither peace nor war” in which many of the key players refocused their sights on the usefulness of a state of emergency as a smokescreen for illegal economic activity.36 Despite this dynamic, Cote ˆ d’Ivoire has never been like Liberia or the Democratic Republic of Congo, where such economic interests have taken on such internal momentum that they seem to justify any type of abuse visited upon civilians, from sexual servitude to extracting labor from civilians in a mode that combatants themselves call slavery. In Cote ˆ d’Ivoire, political legitimacy continues to be linked to keeping up the appearance of sophisticated “civilized” behavior. Ultimately, it is this concern that appears to provide the primary leverage that threats of international investigation and prosecution have in Cote ˆ d’Ivoire: Ivorian political actors may change their actions in response to the threat of prosecution for war crimes because they do not like to think of themselves as war criminals, and don’t want others to think of them that way either. I have argued that the sanctions ranging from travel bans to the threat of ICC prosecution in Cote ˆ d’Ivoire had demonstrable effects in diminishing the level of human rights abuses. Arguing a causal relation for a counterfactual – the cause of the relative absence of human rights abuses – is a tricky thing, all the more so when thinking about a complex political field in which many variables are at play. Can we be more specific about the causal relationship involved? One obvious answer is that the substantive interest in Cote ˆ d’Ivoire’s conflict, including the peacekeeping presence supplied first by ECOWAS, and then by France and the UN, came rapidly. In this regard, early intervention prevented the situation from reaching the level of intractable opposition hardened by the experience of rape, murder, and forced displacement. Another explanation is that the political imaginary37 of a nation plays an important role in determining how key actors in a conflict will react to outside intervention. Outside intervention is not simply a political/technocratic matter of meddling in the affairs of a sovereign state; it is also part of a field of signification in which institutions and individuals signal their judgments about things taking place in other countries. In a number of West Africa’s recent wars, including those in neighboring Liberia and Sierra Leone, such symbolic disapproval seems to have had little influence on the course of the wars or the actions of the combatants. Indeed, in Cote ˆ d’Ivoire, many atrocities have been blamed by both sides on Liberians, as if there were a consensus that Ivorians would have been incapable of such “barbarity.”

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The wider context of the war is described in McGovern, 2009, Making War in Cote ˆ d’Ivoire. Chicago: University of Chicago Press. The term was developed in political philosophy by Castoriadis in his, 1987, The Imaginary Institution of Society (Cambridge: MIT Press) and other writings.

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The situation in Cote ˆ d’Ivoire is rather different. Ivorians seem to care quite a lot about what the rest of the world thinks of them. The evidence for this is consistent: The attempts by Charles Bl´e Goud´e and Eugene Dju´e to get themselves removed from the UN travel ban list signals not only that they want to travel outside Cote ˆ d’Ivoire, but also that they dislike the symbolic disapprobation that it represents. This attitude is very different from that taken by many persons around Charles Taylor, who have treated their travel bans largely as yet another obstacle to be overcome in their everyday search for power, and thus more or less on the same level as the international requirement for end-user certificates on arms shipments, or the need to set up front companies to protect the identities of persons involved in transferring the illegal proceeds of warfare. In the end, sanction and the threat of sanctions may have “worked” in Cote ˆ d’Ivoire because of internal dynamics that would have come into play either with or without international intervention. I would tend to be skeptical of this position, however. Although impossible to prove, my own understanding of the Ivorian dynamic between 2002 and 2006 is that there was a dialogical relationship that involved two conversations at once: one among Ivorians, and another among various actors on the Ivorian scene and a series of key interlocutors, which ranged from African heads of state to UN officials. In this dialogical space, Ivorians found moments of tactical possibility, during which they could take advantage of international inattention, discord, or duplicitousness to forge ahead in sometimes violent fashion. They also found other moments during which they were reminded that it mattered to them how others, both within and outside Cote ˆ d’Ivoire, saw them. ACKNOWLEDGMENTS

Thanks first to Kamari Clarke and Mark Goodale for asking me to be part of the Mirrors of Justice conference and panel, as well as the resulting book. The process of exchanging with them and the other participants has been extremely rewarding. I thank all of the Ivorians, from ordinary people to President Gbagbo, who have spoken with me about Cote ˆ d’Ivoire, its history, societies, and politics, over the years. Thanks also to Nick Grono, with whom I exchanged at some length about the realpolitik considerations surrounding international tribunal maneuvering, and to Stephen Ellis, Francis Akind`es, Jean-Pierre Dozon, Gilles Yabi, Momar Coumba Diop, and Ruth Marshall, with whom I debated some of these ideas as events unfolded, and to Sasha Newell, Stephen Smith, Karen Morris, and Ruth Marshall, with whom I have discussed some points addressed here, after the facts. My gratitude and love go to my ever-patient family, Susan, Theo, and Delia.

4 Global Governmentality The Case of Transnational Adoption Signe Howell

PREAMBLE

In 52 b.c., Cicero proclaimed that “those who share Law must also share Justice; and those who share these are to be regarded as members of the same commonwealth” (1997: 24). This statement will form the backdrop to my presentation, which deals with international conventions about children and their rights and, more specifically, how they relate to the recent and burgeoning practice of transnational adoption from countries in the South to mainly involuntarily childless people in the North. To what extent these “global laws” can be said to represent the sense of justice of the citizens of the various signatory nation-states will be my overriding concern; how far and according to what principles can the boundaries of “the same commonwealth” be stretched? My argument will be that the values of these conventions reflect contemporary Western values and that this raises important questions about a globalization of Western rationality and morality, about legal pluralism, and about the meaning of justice. I shall consider if, in the application of the normative discourse of these conventions, we can witness what the editors of this volume call “circumscribed pluralism”; namely, a middle space between the local and the global, circumscribed by the demands of local moral agents as well as the global norms in relation to which they position themselves. The relationship between local and (posited) universal ideas and values is an old anthropological problem. It becomes particularly challenging when we are dealing with questions pertaining to family life and the legal codification of family practice for three main reasons. First, the semantic and moral constitution of parents, children, and families is both intensely personal and of broad social significance. Second, values and norms regarding these categories and the ensuing relationships vary greatly among different countries and invoke issues of personhood, kinship and relatedness, agency, rights, and responsibilities. Third, the movement of children across national borders in adoption gives rise to an asymmetric relationship between 87

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donor and receiving countries – the donors being, ironically, poor countries and poor people; the recipients powerful countries and (at least relatively) rich people. Despite being the main beneficiaries, the receiving countries of the North – albeit from humanitarian motives, namely to safeguard what they regard as the best interest of the child – have shaped the conventions according to which the transaction is performed. The understanding of justice that gave rise to the various international conventions on children and childhood derived from contemporary Euro-American values and largely disregarded those of other cultural traditions. Indeed, these values are posited as universal. As a result, yet another hierarchical relationship between North and South was established. Many countries in the South that send children in adoption to the North feel this as particularly provoking – indeed humiliating; it is they who provide the valued children, but the rules governing the process are defined by the receivers (Howell, 2006). In what follows, I shall explore some of the ramifications of this clash between understandings of rights, responsibilities, and justice and the sense of frustration and humiliation on the part of many donor countries, and explore how they resist or adjust to what they often regard as an imposition. However, in this as in so many other transnational encounters, there is no simple opposition between the “West and the rest.” No two donor countries react in the same way, and I argue that the degree to which they object to this superimposition of Western values must be interpreted in light of each historical context. GLOBAL GOVERNMENTALITY

Throughout the twentieth century, the state in Western Europe has increasingly involved itself in organizing the private lives of its citizens, manifesting what Foucault has termed governmentality. Foucault (1991) argues that the welfare of the population became of increasing concern to the emergent state from the eighteenth century onward. In a certain sense, the state became the moral guardian of its citizens. As an indirect mechanism of rule by state powers, governmentality is primarily concerned with “the conduct of conduct” – that is, with the ways in which human conduct is directed by calculated means (Gupta, 2001: 111). Governmentality has been on the agenda of the “advanced liberal democratic state” (Miller and Rose, 1990) for quite some time in most Western European countries and is usually thought about as exercised by national governments,1 but may also, I suggest, be discerned to operate 1

Some argue that in a “post-Fordist” world of neoliberalism and globalization of goods and services, the Foucauldian approach has lost its relevance (see Fraser, 2008). However, I would argue that the general thrust of his argument may be applied to the globalization of values as manifested in conventions, regulations, and the work of multilateral organizations. Fraser concludes something along similar lines.

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today on a global scale, especially as it is manifested within the fields of human rights and the ensuing normative edicts and regulations pertaining to the personal and private life of citizens globally. The promotion of international policies and legislation to ensure the quality of children’s lives, with the stated aim of providing “the best interest of the child,” is a prime example of global governmentality. With a particular focus on the practice of transnational adoption, an overall concern in this chapter is with questions pertaining to the indirect mechanisms of rule, “those that have enabled, or sought to enable, government at a distance” (Miller and Rose, 1990: 83), and in terms of the theme of this book, to trace some paths in which a desire for “justice” may be discerned to underlie – although never actually stated as such – two international conventions, the United Nations Convention on the Rights of the Child2 (UNCRC, 1989) and the Hague Convention on Intercountry Adoption (1993), the purpose of which is to frame the practice of transnational adoption within morally acceptable terms. As they are formulated, these conventions show little sign of justice being perceived as contextual (see Preamble). A related and important point is that, to carry out its perceived duties toward its citizens, the active involvement of the state in Western Europe in matters of family life is becoming more and more dependent upon expert knowledge. Thus, adoption has become a practice that is carried out in accordance with the expertise of a set of professionals who derive their knowledge from psychology (social workers, pedagogues, therapists, lawyers) – experts I term psycho-technocrats (Howell, 2006). In fact, I suggest that the commonly found expression “the adoption triangle,” made up of the biological and adoptive parents and the adoptees, should be expanded to the “adoption nexus” by adding the state as an actor. In the background note to the original symposium upon which this book is based, it is stated that: . . . [we] all are committed to exploring the complicated ambiguities of transnational legal and moral discursive practices as they are experienced by social actors in the course of ongoing struggles to make sense of and, at times, resist what Nancy Golbre has described as “structures of constraint” . . .

I suggest that these “structures of constraint” are closely linked to the concept of governmentality which I have found most relevant for the analysis of transnational adoption. According to Miller and Rose, governmentality is dependent upon a number of “technologies of government” that allow a normalization of conduct. This not 2

Article 1 provides the definition of a child: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”

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only involves grand concepts like nationhood or, indeed, justice, but requires for its success a number of “apparently humble and mundane mechanisms which appear to make it possible to govern: techniques of notation, computation and calculation; procedures of examinations and assessments, . . . surveys, statistics . . . professional specialisms3 . . . ” (1990: 82). This, I suggest, is precisely what takes place in the aftermath of the prescriptions of the two conventions: mechanisms are employed which are apparently “humble and mundane” – not to say self-evident from the point of view of the powerful nations of the North; interfering, overriding, and patronizing from the point of view of the largely powerless nations of the South. I shall look at some of the global and local implications of this phenomenon. Justice Interestingly, the term “justice” and the related one of “fairness” hardly occur in the most central and relevant documents. At the same time, justice and fairness may be understood to implicitly underpin and constitute much of human rights legislation and discourse, thus supporting Campbell’s argument(2008) that the “discourse on human rights is primarily a powerful moral discourse, albeit with significant implications for the proper form and content of law.” The term justice occurs only once in the Universal Declaration of Human Rights (UNDHR, 1948) – the document that formed the basis for subsequent conventions about rights – when it is stated at the start of the Preamble: “Whereas recognition of the inherent dignity and the equal and inalienable rights of the human family is the foundation of freedom, justice and peace in the world.” This assertion is reiterated in the Preamble to the UNCRC where it is stated: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Justice appears here as a meta-level concept, paired with freedom and peace. Justice – along with peace and freedom – are the ultimate aims; the granting of universally recognized human rights the main means to achieve them. Perhaps for that reason justice emerges as self-explanatory, and it is not mentioned again in either convention. The word “just” is mentioned twice in the UNDHR. First, Article 23 (1) states, “Everyone has the right to work, to free employment, to just and favourable conditions of work . . . ,” and Article 29 (2) states, “ . . . securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general 3

This is an important point, and one that may be linked to the way that Dean defines the concept by breaking it into “govern” and “mentality” – or mentalities of governing. This means that the concept of governmentality may not just be thought of as a tool for thinking about government and governing, but it also incorporates how and what people who are governed think about the way they are governed (1999: 16).

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welfare of a democratic society.” “Just” is not mentioned in the UNCRC, but Article 40 (iii) mentions the term “fair” when it is stated: “ . . . independent and impartial authority or judicial body in a fair hearing according to the law” (my emphases). Arguably, the wording of Article 2 of the UNCRC supports my argument that an implicit aim of achieving justice underlies the formulations of the Convention. Article 2 1. State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents’ or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or any other status. 2. State Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

The Hague Convention does not include the word “justice” at all. However, “the best interest of the child” and his and her “fundamental rights” appear throughout the text just as they do in the UNCRC – concepts whose meaning receive minimal discussion. Again, one may discern an implicit overarching preoccupation with justice – and that the state powers have a responsibility to ensure that children receive a just and fair life.4 In placing the responsibility for the correct execution of the Convention upon the state, and on insisting that all signatories establish a national body to ensure correct procedure, the two Conventions further demonstrate the pivotal role of the state in ensuring that this takes place. The Preamble to the Hague Convention makes the role of the state unequivocal: Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin, Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children, Article 1(b) To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected . . . 4

The word “justice” appears once, but with a very different meaning. “Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict” (my emphasis).

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The overarching principles of the rights and best interests of the child became coupled to those of agency and empowerment, giving rise to the so-called “3 Ps – provision, protection, participation” of discourses on child rights (Franklin, 2002). The first two are today viewed by many as paternalistic; the last and most recent, “participation,” puts the ball back in the children’s court. Children are now expected to take responsibility (become agents) to ensure that justice is achieved in line with the various rights granted them. Undoubtedly, the terms are normative and express predominant contemporary Western moral values. That this is so may be seen in the second official report to the UN Committee on the Rights of the Child by the Norwegian Ombudsman for Children. The concept of justice is not employed, but the text starts by affirming that “Recognition of the rights of the child requires a conception of childhood that recognizes children as independent individuals both in human and legal terms. Minors must be respected as genuine participants with a right to co-determination in all decisions relating to their interest” (2002: 4). As I shall show later in this chapter, this understanding does not correspond to that of several countries that release children for adoption transnationally. THE GROWTH OF TRANSNATIONAL ADOPTION

Since the late 1960s, transnational adoption has emerged as a global phenomenon. The last thirty years have witnessed a rapid increase in the number of infants and young children who are moved from the poor South (and more recently from the former Soviet bloc) to eagerly awaiting prospective parents in the rich North. Due to a sharp decline in infants being made available for adoption locally, involuntarily childless couples in Western Europe and North America who wish to create a family have to look to the developing world. An estimated 40,000 children were adopted annually during the early years of the twenty-first century, and the demand is steadily increasing (Selman, 2005). In per capita terms, Norway and Spain adopt more children than any other adopting country (Howell and Marre, 2006). Elsewhere I have described the practice of transnational adoption as a global movement of concepts and substances (Howell, 2003a, 2006). Substances in the form of children move from the South to the North, concepts in the form of valueladen conventions and regulations move in the opposite direction. Several kinds of relationship are activated in this process, from the international community of multi- and bilateral organizations to the relationship between adoption agencies in receiving countries and orphanages in donor countries. Each has its own raison d’´etre and each gives rise to its own set of values and interactions, but the relationships are all hierarchical and they are perceived by the different partners in different ways. For the purposes of this chapter, I shall concentrate on those relationships that involve state institutions only. First, there is the relationship between nation-states, acting as

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agents. Each nation-state has its own legal provisions that have to be accommodated before an adoption may be completed. Second, there are relationships between state and/or state-supervised institutions in the receiving and donor countries which are informed by the prescriptions of the international conventions. Third, there is a relationship between adoption agencies in receiving countries and the local institutions that look after children released for adoption in donor countries both of which work according to local national and international laws, laws that often are not fully in accordance with each other and may give rise to ambiguities and misunderstandings. Laws both reflect current values and seek to modify these values in a desired direction. Legislation in Scandinavia and other Western European countries on children and adoption, and the associated infrastructure, are the manifest expressions of national governmentality. Similarly, international conventions and guidelines and the establishment of a global infrastructure to supervise the implementation of these are the manifest expressions of global governmentality. Contemporary laws and conventions on children reflect psychologically informed discourses (cf. Rose, 1999), and the psycho-technocrats who work both nationally and internationally naturalize and legitimate practice on this basis. INTERNATIONAL CONVENTIONS

Nineteenth-century imperialism led to a diffusion of laws, courts, and other mechanisms for ensuring European control in the colonies. According to Merry, “[i]nternational law adds a new layer of legal pluralism to this legacy of colonialism” (2006: 109). Western and international laws exist in some contexts in parallel with local laws; in others, they seek to superimpose on them. Within the field of transnational adoption, it is clear that the liberal (wealthy) democratic nations of Europe together with the United States seek to exercise intellectual and moral domination over those nations that are less favored, but who have the “goods” (the children) so desired by Europeans and North Americans. A question that arises is to what extent it is possible to move so many adoptive children across kin, social, cultural, racial, and national boundaries without provoking sustained claims of abuse and injustice. The two international conventions exist precisely to prevent abuse, and ensure that the movement of children in transnational adoption be conducted in a morally acceptable way (see below) and according to a set of rules. As formulated in the conventions, the rules turned out to be based on Western values of childhood and family as these initially were expressed in national family and adoption laws. As such, the parties concerned might be better advised were they to regard conventions of rights as statements of values rather than “rights” in any usefully distinctive meaning of that term (cf. Campbell, 2008).

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As the goal is to bring abandoned children to involuntary childless Western couples, state authorities in receiving countries ensure that they control the transaction. The responsibility for overseeing that the edicts of the conventions are implemented in the countries that have signed and ratified them is placed in the hands of national public agencies in each country. However, the loci of control and monitoring of the implementation of the various edicts are located in the West: at The United Nations Children’s Fund (UNICEF) headquarters in New York in the case of the UNCRC and in The Hague in the case of the Convention on Intercountry Adoption; locations which, in a broad sense, coincide with those to which children are adopted. To achieve their goals, representatives from the Western countries employ a mixture of persuasion and compulsion. As such, their efforts may be characterized as a continuation of the “the white man’s burden” (Howell, 2003a). With the conventions metaphorically in their hands, Western adoption officials impose conditions before releasing funds or granting legitimacy to local institutions, they monitor practices, they arrange courses and seminars for local staff during which the “technologies of knowledge” are imparted, they flatter and cajole and invite senior government servants and orphanage personnel to visit their own country (all expenses paid). However, from the perspective of many donor countries, this attempt at control – however well-intentioned – is viewed with dismay. They smart under what they feel to be paternalistic and neocolonial attitudes, and experience the formalities and demands of the transaction to be an imposition. LEGAL PLURALISM AND THE QUEST FOR JUSTICE

Is the category of childhood general or generalizable? Certainly, the international conventions discussed here do not open for a discussion on this question, but several commentators have done so.5 Undoubtedly, the globalization of contemporary Western notions of childhood springs out of a genuine desire on the part of the wealthy nations to safeguard and improve the lives of unprotected children. However, according to one commentator, “all too often professionals, activists and policy 5

According to Ennew, Western thinking holds strongly that childhood should take place within a family and a private dwelling; children who do not conform to this literally fall outside – outside society, outside childhood (Ennew, 1995: Ch. 15). One of the most provocative issues to many persons engaged in work in connection with the Year of the Child was precisely the street children. Ennew argues that they represented the starkest challenge to the Western notion of modern childhood, which, she states, has been globalized through colonialism and later through “the imperialism of international aid” (ibid. 202, see also Boyden, 1997: Ch. 9; Burman, 1996; Stephens, 1995). Insofar as the two conventions discussed here seek to guide the practices not only of legislatures and courts, but also of parents, police, social welfare agencies, health care professionals, and others who work with and have responsibility for children, it may be characterized as a tool for effecting state control.

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makers get so caught up in the pain, distress and needs [of children] they work with that the answers to [this] question are either assumed or dismissed as irrelevant to practice” (Burman, 1996: 46). This point is worth bearing in mind when we examine the international treaties which, after all, were drafted to protect a category of humanity deemed incapable of protecting itself. It is also highly relevant for understanding the reactions by some countries at the receiving end of the treaties. Arguably, the global processes and the mechanisms of governmentality (both local and global) that are observable in transnational adoption are currently transforming childhood itself. To varying degrees, donor countries find themselves incapable of withstanding the pressure of the humanitarian zeal of representatives from receiving organizations. At the same time, others see much of relevance and do not object to accommodating the demands. Undoubtedly, all countries that give up abandoned or orphaned children for adoption overseas do so because they are unable, or unwilling, to provide for the children themselves. The countries that receive children do so because of an increasing demand from their own citizens who are unable to procreate biologically. All those involved experience an ambivalence, be it moral or political, regarding the practice. Because sending children abroad in adoption manifests an inability to look after their own children, many a donor country feels distressed about this, and regards it as shameful. Overseas adoption is therefore a practice that donor nation states themselves wish to control – and be seen to control. “Those who share law must also share justice,” said Cicero. This is the nub of the issue, and we are no closer to a solution to the challenge of multiple justice today than they were in Cicero’s time. To what extent, if at all, can justification about justice (and rights) succeed if it is not rooted in the shared meanings and values of a community? Concomitantly, if justification must always occur within the confines of a traditional system of beliefs, how is fundamental criticism possible? (Buchanan: 660). At what point – if at all – is it morally legitimate for the international community to step in and seek to alter existing practice in the name of justice and rights? One frequently heard argument is that in the “human rights system” (Merry, 2006), individuals, not only states, are considered to have rights. Contracting states have obligations to their citizens. Although this idea may be uncontroversial, it does not follow that all states agree or interpret it in the same way, nor does it prevent many states in the South from feeling that the inequality in wealth and power has meant that nations in the North shape the human rights system. Not all developing countries regard the values and rules of the two conventions with equanimity. This will be the focus of the rest of this chapter. Insofar as the two conventions about adoption seek to guide and control the practices not only of legislatures and courts, but also of parents, police, social welfare agencies, health care professionals, and others who work with and have responsibility

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for children, they may be characterized as tools for effecting state control over these individuals and bodies. A question that arises is to what extent the prescriptions of the conventions, those that are stated to safeguard the child’s best interest, ensure justice. And, if so, justice for whom? Although most people would answer: “for the child,” one is, nevertheless left with the question: “according to whose criteria?” There are other parties involved who may raise the question of justice for different reasons, such as the contracting states, the involuntarily childless prospective adoptive parents, the child’s biological relatives and, as they grow up, the adoptees themselves. Each may feel that justice is not being exercised according to their personal and cultural understanding. Their sense of justice may differ from that upon which the conventions are, however implicitly, based. In particular, to what extent can the prescriptions and proscriptions of the conventions be said to be just in terms of the relationship between the North and the South – the receivers and the donors – and to what extent are the cultural practices and legal provisions of donor countries overridden? This raises questions of legal pluralism, a recognition that several categories of law exist in most postcolonial societies (Vincent, 1996: 331–332), and distributive justice, a principle that specifies just distribution of benefits and burdens. In the present context, can we talk in terms of, and accept, the idea that legal provisions with regard to children (in particular, children in their relationship to significant adults) can be universally meaningful and relevant? The diversity of cultural understanding receives a nodding acknowledgment at the end of the Preamble of the UNCRC: “Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.” However, the implications are not pursued in the actual articles, nor in the subsequent monitoring reports. Discussions on the draft text of the Hague Convention started at the time when, after the collapse of the Soviet Empire, Romania was experiencing severe malpractices in the adoption of children to foreign couples. Undoubtedly, unscrupulous dealers in children operated a practice that can only be described as trafficking. Reports of this in Western European and North American media, coupled with information about appalling conditions in many orphanages and children’s homes, soon took on a sensationalist slant. The issues raised by the situation in Romania, and subsequently in Russia and other Eastern European countries, greatly influenced the tone and emphasis of the final text of the Hague Convention (Cantwell, 2002: 1). A need to establish legally binding standards, and a need for a system of supervision to ensure that these standards are observed, were the main reasons for initiating the Hague Convention (Parra Aranguren, 1994: 179). In fact, Romania has continued to be a thorn in the side of the authorities in Western Europe ever since, and the country’s desire to join the European Union (EU) was made conditional

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upon establishing an acceptable social welfare policy for children. Although relevant Romanian authorities and the population at large failed to understand the concern of their Western neighbors, the country was eager to join, and a moratorium on transnational adoption was imposed in 2001 while the authorities were given a chance to tidy up their provisions for orphans and abandoned children (Howell, 2006). In many countries, to give children in adoption to the wealthy countries in Europe and North America, many of which are previous colonial powers, is a highly sensitive political issue, and there is not always consensus inside the country regarding the practice. Disagreements exist as to whether a donor country should engage in transnational adoption at all, and, if they do so, what the most appropriate ways are to handle it – especially if they have not signed the Hague Convention. The international media attention paid to Madonna’s attempt to adopt a Malawian child in 2007 raised this sensitive issue afresh. The allegation by Malawi’s Human Rights Consultative Committee of 67 organizations that Madonna had “cut corners” by flouting Malawi’s adoption rules6 may be accounted for in terms of local ideological resistance to the practice. Commenting on the case in an article in the Weekly Forum for Social Justice in Africa, the writer makes an interesting argument to the effect that there is an imbalance in the regulations about transnational adoption. These regulations provide only for adopters being in the rich West, he says, and “there appears to be no provision for wealthy Malawians . . . to adopt and take a child out of England. For some, this imperial-Empire axis of the relationship is one of the main sources of their disquiet” (Bing-Pappoe, 2006: 4). After being in an 18-month interim custody, during which time the Malawi officials would check on her and her husband’s suitability as adoptive parents, and clarify the intention of the biological father, Madonna was granted final approval to adopt the boy on May 28, 2008. The case raised afresh debates about trafficking – a practice that the Hague Convention is at great pains to stop. Two ideological notions central to the Western understanding of rights and justice have emerged as pivotal in discourses about children and of transnational adoption; these are the moral and legal status of the autonomous individual and the slogan of the best interest of the child. By making the bounded individual child the sole focus of attention, a conceptual leap is made in the conventions from the individual to the universal (and the global), rendering relatedness and sociality irrelevant. Such formulations do not find a ready resonance in many donor countries. Although they claim democratic aspirations, they do not necessarily share the belief of the supremacy of the autonomous individual, but perceive personhood and community 6

Malawi has not signed the Hague Convention.

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as being constituted through relations. Rather, kinship is a determining factor for significant relatedness,7 and by extension, the exercise of justice is as much a matter of communality – or, indeed, of social hierarchy – as of individual rights. Moreover, most donor countries would argue that children’s needs should be subordinated to those of adults. Despite the many objections that were voiced by representatives from non-Western countries during the drafting of the conventions, most nation-states ended up signing and ratifying these treaties. In fact, the UNCRC has been ratified by all save three countries (the United States, East Timor, and Somalia), something that no other international treaty has achieved. This may be explained by the fact that the wellbeing of children (if not their rights) is not regarded as a controversial or political issue. What might constitute their well-being, on the other hand, is not always agreed upon, and this disagreement was reflected in the debates that took place during the drafting of the UNCRC, and even more so during the drafting of the Hague Convention, (Howell 2006; Parra-Aranguren, 1994). Whereas most receiving countries signed and ratified the Hague Convention shortly after its completion, donor countries have been less eager to do so, and many have not yet signed it. Disagreements over particularly objectionable formulations have been made explicitly, as in the African Charter on the Rights and Welfare of the Child (see below), or expressed covertly by including specifications in national child or adoption laws that do not tally with the demands of the conventions. One example of the latter is the new adoption law of Ethiopia, which does not adhere to the Hague Convention’s insistence on forbidding private adoptions. THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD

Reservations voiced by some African countries during the drafting of the UNCRC resulted in a charter that was intended to give voice to “African values” and to contrast them to some principles and assumptions of the UNCRC. Legesse, an African commentator, criticizes the Western “ . . . obsessive, concern with the dignity of the individual, his worth, personal autonomy and property” (in Van der Waal, 1994). The Organization of African Unity agreed in 1990 on the formulation of The African Charter on the Rights and Welfare of the Child (ACRWC; in response to the UNCRC) (see Ojo, 1990 for a discussion of the background of the Charter). It is a document that I interpret as an act of resistance against what is perceived as attempted 7

Kinship need not necessarily be predicated upon biological connectedness, however. It is the social and emotional process of kinning that creates kinship – not biology.

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imposition of Western values. The Charter starts by affirming its adherence to UNCRC, but also to The African Charter on Human and Peoples’ Rights. The charter does not diverge from most of the paragraphs of the UNCRC, but makes a strong argument for the need to take account of African practices and values and to regard children as integral members of their communities, not as isolated individuals. Although the UNCRC employs the language of universality, African critics insist that it frequently expresses values and assumptions directly attributable to a contemporary Western view. To balance this trend and to make the provisions more in line with “African values and practices,” the Preamble of the ACRWC states: “Taking into consideration the virtues of their cultural heritage, historical background and the values of the African civilization [sic] which should inspire and characterize their reflection on the concept of the rights and welfare of the child . . . “The Africans are critical of what they regard as the failure of the UNCRC to perceive children as constituted as persons through their relationship with others (their parents and members of the wider kin group) – in effect a critique of the posited ontological status of the autonomous individual. To balance the emphasis upon the rights of the child, the Charter places these rights within a discourse of obligations and duties, making children and their significant others partners in reciprocal relationships that extend beyond the family to the nation, and even to the African continent. For example, Article 31, entitled “Responsibility of the Child,” states: Every child shall have duties towards his family and society, the State and other legally recognized communities and the international community. The child . . . shall have the duty: a) to work for the cohesion of the family, to respect his parents, superiors and elders at all times and to assist them in case of need; b) to serve the national community by placing his physical and intellectual abilities at its service; and c) to preserve and strengthen social and national solidarity.

These notions are very different indeed from those contained in both the UNDHR and the UNCRC. As such, they demonstrate a local attempt to resist global enforcement of ideas and values concerning family, kinship, and personhood. Arguably, the ACRWC might be characterized as one example of what the editors of this volume describe as circumscribed pluralisms seeking, as it does, to “ . . . compress the gap between ‘law’ and non-legal normativities (especially morality) and horizontalizing the relationship . . . ” However, the African convention came into being as the result of anger, rather than as an expression of tolerance, or the quest for compromise.

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GLOBAL GOVERNMENTALITY: SOME REACTIONS FROM DONOR COUNTRIES

Through the active involvement of the international community in the shaping of child policy of sovereign states in the South, the concerns of state powers in the North have achieved a global dimension. I now want to consider the reaction to the two Conventions and to the procedures to which these have given rise in countries that send children in adoption to the West. I have noted many different reactions, ranging from incorporation, adaptation, resignation, resistance, to rejection. What seems to be the case is that strong reactions are provoked by a perceived sense of injustice in the demands of the conventions and/or the accompanying procedures. It is clear that the reaction of each country is far from identical, but that, nevertheless, the authorities in each display unease with the practice as formulated by the conventions. What is also clear is that the different countries react to some extent according to their own historical experiences of their relationship with the West, as well as the extent to which they feel to be in control of their national destiny – and, not least, have the economic resources to withstand pressure. Both capitalist and communist ideologies regard the significance of kinship as sociologically irrelevant – the former when compared with the supremacy of the individual, the latter with that of the community (ultimately the state). The ontological centrality of the individual is not relevant in many countries in Africa, Asia, and Latin America – from which Western nations adopt children. What I am interested in eliciting is the methods they employ to assert themselves against this ideological onslaught, from acceptance to open resistance or by the employment of a variety of “weapons of the weak” (Scott, 1985). I have studied four donor countries: Ethiopia, India, China, and Romania, and will briefly highlight some of my findings with regard to the first three. I have already briefly referred to the case of Romania. Ethiopia Ethiopia is extremely poor with minimal infrastructure and has been torn apart by civil wars and famine for several decades. Given these facts, the room for maneuver by the state is limited. Most commentators, whether local or foreign, agree that Ethiopia would barely survive as a modern nation-state were it not for the foreign aid that the country receives. Accompanying the aid are normative values. In such a cultural setting, where just to survive requires supreme efforts, the notion of children’s rights is not high on the agenda8 and has not been met with much local 8

Transnational adoption began in the early 1970s when thousands of children were orphaned or abandoned as a result of drought, famine, and severe and prolonged civil wars. The first orphanages

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understanding (Berre, 2004). It also means that the country is rendered extremely vulnerable and, in the words of a prominent journalist, “what poverty does is to discourage debate about Western values being imposed.” Similar sentiments were expressed by a senior officer at the government office handling child care and adoption (Ministry of Labour and Social Affairs; MOLSA) who told me that most issues that he has to deal with in his work emanate from Western donor concerns and values. Like the journalist, he said that the Western preoccupation with the individual and the nuclear family in development projects was not very relevant in the Ethiopian context. The fact that both the UNCRC and the Hague Convention base their recommendations upon the centrality of the individual child and the nuclear family makes it difficult for Ethiopians to continue to adhere to traditional values, he said. He added that Western targets for development are very idealistic, especially the stress that is continually placed on the best interest of the child, the meaning of which Ethiopians sometimes find difficult to understand.9 Nevertheless, he insisted that the underlying premises of the conventions are shared and that the objectives are good. There is little doubt that the idea of the autonomous individual and his or her rights is a major stumbling block for meaningful communication between EuroAmerican psycho-technocrats and Ethiopian civil servants and orphanage personnel. In a critical article entitled “On the rights of the child,” Retta, an Ethiopian lawyer who works for the Juvenile Justice Project Office, poses the question of whether the Ethiopians and non-Ethiopians who are engaged in development work in the country share the same understandings when they speak of the rights of children. His answer is that they probably do not, and he insists that the Ethiopians must not allow themselves to be brow-beaten into accepting what, after all, are values and notions more suited to the rich countries in Europe and North America. He argues that (rich) countries should accept “indigenous solutions . . . rather than imitate or import prescription” (Retta, 2001). He even questions the relevance of the basic principles and regulations of the UNCRC and other international conventions. To his own question “[a]re the best interests of the Ethiopian and the British and the American child the same?” he replies that institutions and legal provisions that are designed elsewhere are not necessarily suited for Ethiopia. Whereas Retta is outspoken, others may be more cautious, but do not necessarily disagree with his

9

were established at this time by the government, foreign nongovernmental organizations (NGOs), and missionaries. More recently, the explosive spread of HIV/AIDS in Ethiopia has led to thousands more children being orphaned. He was not going to disagree, however, because the resources of the Ethiopian government are very limited and, without the assistance they receive from the West, the situation in the country would be much worse. “At the same time, people will continue to practice as they have done for generations, and do whatever is suitable to our continent,” he concluded.

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resentment of the rich and powerful nations and organizations which, he says, think that poor nations are “necessarily backward and inferior [and hence] need to do a lot of ‘awareness raising’ endeavours” (Retta 2001: 10). Because of poverty, AIDS, and poor infrastructure, the Ethiopian state, much like the Romanian one discussed earlier in this chapter, does not have much room to maneuver. Senior public servants may sometimes be resentful, but, realizing their impotence, most are also pragmatic. India and China The situation in India is very different from that of both Romania and Ethiopia. Indian bureaucrats and professional social workers, as well as many local activists and NGOs, do not feel insecure in their relationship with the West; nor are they intimidated by what they regard as attempted Western control. At the most senior level in India that deals with adoption (Central Adoption Resource Agency, CARA), there is an explicit skepticism toward transnational adoption and a reluctance to sign the Hague Convention10 – not so much because of what it states, but because they resent being told to do something which they argue they had already practiced (Howell, 2006). Indian authorities have several means at their disposal to reduce the number of children being adopted overseas. One is to discourage transnational adoption by encouraging and favoring domestic adoption – or at any rate adoption by expatriate Indians. Another is to impose a large number of requirements and procedures which makes the process very lengthy and therefore discourages all but the most committed Western couple. The latter method is employed by many other donor countries also, if not to discourage applicants, at least to assert their sovereignty. Critics – inside as well as outside India – will argue that Indian attitudes mean that very few abandoned and institutionalized Indian children are given the opportunity for a new life. China, the largest provider of children to the West, recently ratified the Hague Convention in 2006. There does not seem to be a general resentment against the practice of transnational adoption as such, but there are signs to indicate that the ideological considerations that lie at the base of many provisions of the UNCRC and the Hague Convention are not fully understood by many of the Chinese who are actively involved in transnational adoption (e.g., meanings attributed to the child’s rights and

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India did sign it in 2004, two years after my interview with the Director of CARA. China also took its time, ratifying it in 2006. Ethiopia has not done so because they do not satisfy several requirements, such as allowing private adoption and not possessing a central authority to handle transnational adoption. Romania was one of the first countries to sign and ratify it, but clearly did not understand the meaning of many of the articles.

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best interest) (Howell, 2006). The Chinese bureaucracy is highly centralized and efficient. Like India, China is also beginning to encourage domestic adoption in favor of sending children abroad, and Chinese authorities assert themselves from time to time vis-`a-vis receiving countries by changing the rules of the procedure. For example, having become aware that they are one of the few countries to allow single women to adopt and, therefore, receive a large number of applications from single women, they decided in 2004 to impose a maximum limit on adoption to single applicants and required applicants to sign a statement to the effect that they are not lesbian. In 2007 China further tightened its demands regarding criteria for applicants and placed restrictions on the number of children given up for transnational adoption. CONCLUSION

Transnational adoption of children who are abandoned – for whatever reason – by their parents in their birth country will continue for the foreseeable future. The desire by involuntary childless couples and individuals in Western Europe and North America to have children and “become a normal family” (Howell, 2003b) shows no sign of abating and, with the decline of local infants being made available for adoption, these people have to look to countries in the rest of the world to satisfy the demand. The two conventions discussed in this chapter were drafted at the initiative of European nations to ensure that trafficking in children was prevented and that the “best interest of the child” was safeguarded – that justice was achieved. Much evidence points to differences between receiving and donor nations in their perception of the meaning of childhood and family life. Attitudes in donor countries toward transnational adoption also vary considerably. There is also much evidence to suggest that the receiving countries, by and large, are more concerned about the best interest and the rights of the adoptees than are donor countries. Donor countries, in contrast, are more concerned about the justice (or lack thereof) inherent in their relationship with the receiving countries. Many are highly sensitive to what they regard as paternalism or neocolonialism. It must be borne in mind that transnational adoption is not development aid; neither is it a humanitarian practice. Euro-Americans who wish to adopt a child from a poor country in the South do so out of the “selfish” reason of wanting to become parents when their own biology has failed. From a meta-political perspective, transnational adoption is a transaction that should benefit citizens of both nations. Justice should be seen to be done – to the adoptees, the adoptive parents, and the donor and receiving states. Nevertheless, because the directives of the two international conventions that constitute adoption procedures are formulated on the basis of contemporary Western understanding of

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childhood, family, and the best interest of the child, this is not a balanced relationship of equal partners – and hence it raises questions about fairness and justice. I want to end by making an obvious, but nevertheless important, point. Although the influence of Western jurisprudence and cultural values is observable in child and adoption laws in many countries in the South, it would be too simplistic to designate the changes that have been made as simply foreign, or Western. Although this may be so in some cases (e.g., Romania and Ethiopia), elsewhere the formulations may be Western in origin, but have been made – or are in the process of being made – subject to local interpretation, and as such may end up being Indian, Columbian, or whatever. The history of ideas has amply shown that ideas know no national boundaries and that discourses and practices change in response to new ideas as well as in response to changing political and economic situations, not just as a result of external pressure. For this to occur, however, the ideas and values must resonate in some way. As the example of the African Charter has shown most clearly, the idea of the autonomous individual child with his or her rights – independent of responsibilities and placed in isolation from all relationships – has, so far, failed to resonate with an African sense of justice. ACKNOWLEDGMENTS

My research on transnational adoption and the meaning of kinship in Norway began in 1999. It soon became apparent, however, that the practice could with benefit also be studied as a manifestation of global processes, and I joined the research project Transnational Flows of Concepts and Substances, initiated at my Department at the University of Oslo and funded by the Norwegian Research Council, 2001– 2003. From 2001 through 2004, I was a member of an EU-funded project, Public Understanding of Genetics in Europe, under Framework 5 and the Quality of Life and Living Resources Management Programme. References Berre, K. 2004. “For when the guests come”: The introduction of child participation in Northern Ethiopia. University of Oslo. Cand. Polit. Thesis in Social Anthropology. Bing-Pappoe, A. 2006. David and Madonna. Pambazuka News: Weekly Forum for Social Justice in Africa. November 10, 2006. Boyden, J. 1997. Childhood and the policy makers: A comparative perspective on the globalisation of childhood. In A. James and A. Prout (eds.). Constructing and reconstructing childhood. London: Falmer Press. Burman, E. 1996. Local, global or globalised? Child development and international child rights legislation. Childhood 3: 45–66. Campbell, T. 2008. A political philosophy of human rights. Lecture presented at Oxford, February 28, 2008.

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Cicero. 1997 [52 b.c.]. The laws. In M.R. Ishay (ed.). The Human Rights Reader: Major Political Essays, Speeches, and Documents from the Bible to the Present. London: Routledge. Ennew, J. 2002. Outside childhood. In Bob Franklin (ed.). The Handbook of Children’s Rights. London: Routledge. Franklin, Bob (ed.). 2002. The Handbook of Children’s Rights. London: Routledge. Fraser, N. 2003. From discipline to flexibilization? Re-reading Foucault in the shadow of globalization. In Constellations: An International Journal of Critical and Democratic Theory 10 (2) : 160–171. Foucault, M. 1991. Governmentality. In G. Burchell et al. (eds.). The Foucault Effect: Studies in Governmentality. Chicago: The University of Chicago Press. Gupta, A. 2001. Governing populations: The integrated child development services program in India. In T. Blom-Hansen and F. Stepputat (eds.). States of Imagination: Ethnographic Explorations of the Postcolonial State. Durham: Duke University Press. Howell, S. 2003a. The diffusion of moral values in a global perspective. In T. Hylland Eriksen (ed.). Transnational Flow of Concepts and Substances: Methodological issues. London: Pluto Press. Howell, S. 2003b. Kinning: The creation of life trajectories in transnational adoptive families. Journal of the Royal Anthropological Institute (incorporating Man) 9(3): 465–484. Howell, S. 2006. The Kinning of Foreigners: Transnational Adoption in a Global Perspective. Oxford & New York: Berghahn Books. Howell, S. and D. Marre. 2006. To kin a foreign child in Norway and Spain: Notions of resemblances and the achievement of belonging. Ethnos 4: 293–316. Merry, S. Engle. 2006. Anthropology and international law. Annual Review of Anthropology 35: 99–116. Miller, P. and N. Rose. 1990. Governing economic life. In G. Burchell et al. (eds.). The Foucault Effect: Studies in Governmentality. London: Harvester Press. Ojo, O. 1990. Understanding human rights in Africa. In Jan Berting et al. (eds.). Human Rights in a Pluralistic World: Individuals and Collectivities. London: Meckler Westport. Parra Aranguren, C. 1994. Explanatory report on the 1993 Hague Intercountry Adoption Convention. The Hague: Proceedings of the Seventeenth Session (1993) Tome II: Adoption. Retta, M, 2001. On the Rights of the Child. Addis Ababa: The Federal Supreme Court Juvenile Justice Programme 1: 1–9. Rose, N. 1999. Governing the Soul: The Shaping of the Private Self. London: Free Association Books. Scott, J. 1985. Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven: Yale University Press. Selman, Peter. 2005. Trends in Inter-country Adoption 1998–2003. School of Geography, Politics and Geography. Newcastle University. Stephens, S. 1995. Children and the Politics of Culture. Princeton: Princeton University Press. van der Waal, K. 1994. Collective human rights: a Western view. In J. Berting et al. (eds.). Human Rights in a Pluralistic World: Individuals and Collectivities. London: Meckler Westport. Vincent, J. 1996. Law. In A. Barnard and J. Spencer (eds.). Encyclopedia of Social and Cultural Anthropology. London: Routledge.

5 Implementing the International Criminal Court Treaty in Africa The Role of Nongovernmental Organizations and Government Agencies in Constitutional Reform Benson Chinedu Olugbuo

INTRODUCTION

The persistence of violent conflicts in Africa and the world in general have resulted not only in untold human and material losses but also in egregious human rights abuses. The need to bring the perpetrators to account led to the establishment of several international tribunals to prosecute those persons and groups accused of committing gross human rights abuses.1 The employment of the ICC as an international justice mechanism in achieving peace, ensuring justice, and ending ongoing conflicts in Africa is now a reality. However, there is also tension between international justice mechanisms and local means of resolving ongoing and protracted conflicts in relation to the activities of the ICC in its first four investigations on the continent. The ICC has jurisdiction to indict people accused of such international crimes as genocide, crimes against humanity, and war crimes. The Court has power to provide redress to victims and survivors of these crimes, and some argue that the mere presence of the ICC has a deterrent effect on future dictators and their collaborators.2 However, questions are being asked about whether the ICC alone can effectively end the conflicts or if other forms of transitional or restorative justice can be employed in achieving lasting peace and justice on the continent. The emergence of international criminal justice regimes in Africa marks a clear departure from the past when leaders on the continent were immune from 1

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For example, the United Nations Security Council’s (UNSC’s) Resolution 955 of November 8, 1994 that established the International Criminal Tribunal for Rwanda (ICTR), Resolution 1315 of August 14, 2000 that established the Special Court for Sierra Leone (SCSL). See also the Rome Statute of the International Criminal Court (ICC or “the Court”) U.N. Doc.A/CONF.183/99 of July 17, 1998, which entered into force on July 1, 2002 and resulted in the establishment of the ICC in The Hague. M. Ellis, The International Criminal Court and its Implication for Domestic Law and National Capacity Building (2002), 15 Florida Journal of International Law 215 at 223.

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prosecution or criminal responsibility. A combination of the ICTR, SCSL, and ICC will possibly signify an end to human rights violations without sanction on the continent.3 The first two, although in existence for a short period of time, have been able to hand down judgments that tend to support the view that, irrespective of the status of the perpetrators of these crimes, the international community is not prepared to allow impunity to reign with disregard for the respect for human dignity.4 The idea of the ICC, mooted in the nineteenth century, became a reality when 120 countries voted to adopt the ICC treaty in a United Nations (UN)-sponsored conference in Rome.5 The Court, with jurisdiction over genocide, war crimes, and crimes against humanity,6 is up and running with several issues to address at the same time.7 With 110 ratifications worldwide and 30 from Africa,8 one can easily argue that the stage is set for a subtle change in the administration of criminal justice on the continent. Another issue that seems to raise the stakes is the investigations currently ongoing in Central African Republic (CAR), DRC, Sudan, and Uganda for crimes that fall under the jurisdiction of the ICC.9 Within the framework of constitutional reform, several African countries are beginning to confront the realities of implementing the Rome Statute in domestic legislations. The implementation of the treaty of Rome has not been without problems as States Parties are confronted with several layers of allegiance including the technicalities of implementing the Treaty of Rome and constitutional provisions that are in conflict with the Rome Statute.10 There is also the 3

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5 6

7

8

9

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See S. Hanson, Africa and the International Criminal Court. Council of Foreign Relations: A Nonpartisan Resource for Information and Analysis, July 24, 2008. Available at: http://www.cfr.org/ publication/12048/africa_and_the_international_criminal_court.html (accessed July 1, 2009). See, for example, Procecutor v. Akayesu Case No. ICTR-96–4-T, Prosecutor v. Kambanda Case No. ICTR 97–23-S, para 16, and Prosecutor v. Musema Case No. ICTR-96–13-A. The Rome Statute of the ICC, U.N. Doc. A/CONF.183/99 (July 17, 1998). See Article 5(2) of the Rome Statute, which states that the Court shall exercise jurisdiction over the crime of aggression after a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision will be consistent with the relevant provisions of the Charter of the UN. Its first four investigations are in Africa to wit: Central Africa Republic, Democratic Republic of the Congo (DRC), Sudan, and Uganda. The African countries include Benin, Botswana, Burkina Faso, Burundi, Central African Republic (CAR), Chad, Comoros Island, Congo Brazzaville, DRC, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Madagascar, Mali, Malawi, Mauritius, Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa, Tanzania, Uganda, and Zambia. For more information on the cases, see The ICC, “Situations and cases” at: http://www.icc-cpi.int/ cases.html (accessed June 24, 2008). See, for example, Article 27 of the Rome Statute on the irrelevance of official capacity to ICC prosecution. However, several constitutions in Africa provides for the immunity of heads of state and government, for example, Article 65 of the Angola Constitution (1992), Section 57 of the Ghana Constitution (1992); Article 50 of the Lesotho Constitution (1993); Article 91 of the Malawi Constitution (1994); Section 46 of the Tanzania Constitution (1977); Section 308 of the Nigeria Constitution (1999); Section 98 of the Uganda Constitution (1995), and Article 132 of the Mozambique Constitution (1990).

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previous campaign of the U.S. government with the Bilateral Immunity Agreements (BIAs),11 seen as a campaign of illegality filled with financial inducements for states to grant U.S. citizens immunity from the activities of the ICC. This chapter takes a cursory look at the domestic implementation of the Rome Statute in Africa. I will also discuss the four situations from Africa currently before the ICC and in the process offer insights into some of the issues that have engaged both supporters and opponents of the Court. Implementation strategies in Kenya will be discussed while exploring the involvement of nongovernmental organizations (NGOs) and civil society organizations in the processes. The role of government agencies in the ratification and domestic implementation of the Rome Statute of the ICC and the Agreement on Privileges and Immunities of the Court will also be highlighted, and I will examine the problems and prospects of implementing the Treaty of Rome on the continent. This study hopes to lend credence to the argument that the collaboration between international NGOs and national governments in the adoption of the Rome Statute should be replicated at the local level in the ratification and domestic implementation of the treaty, as this will enable the parties involved to share experiences and develop synergies of cooperation. I will further argue that the principle of complementarity enshrined in the Treaty of Rome needs to be explored in dealing with situations in which there is a conflict between peace and justice and there is uncertainty over which one should take precedence. As the conflicts the ICC is investigating in Africa are ongoing, the dynamics of justice offer an opportunity for intellectual scrutiny in the quest for the resolution of these conflicts that have evaded any means of effective solution. THE ICC AND THE INTERESTS OF JUSTICE

In prosecuting persons who are responsible for war crimes and crimes against humanity, the issue of justice comes readily to mind. There is a need for justice for the accused person, justice for the victim, and justice for the society, which aptly describes the age-long natural justice aphorism that, justice should not only be done, but should manifestly and undoubtedly be seen to be done.12 However, 11

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The U.S. government proposed BIAs with States Parties and non-State Parties to the Rome Statute under Article 98(2) of the Rome Statute. The U.S. government is of the view that the BIAs are expressly provided for under the Rome Statute. The purport of the BIAs is to prevent the States concerned from transferring, through whatever procedure, without the consent of the United States, any “current or former Government officials, employers (including contractors), or military personnel or nationals” of the United States either to the ICC or to a third State or entity with the purpose of eventual transfer to the ICC. The scope of these agreements is intended to be broader than that provided by Security Council resolution 1422, in terms of the individuals to be included. R v. Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER 233).

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what really is justice? There have been several definitions, concepts, and theories of justice.13 John Rawls argues that “justice” in a democratic society refers to two principles, which must primarily apply to “the basic structure of society.” The first of these principles is that each person must have an equal right to the most extensive basic liberty compatible with a similar liberty for others. The second principle is that social and economic inequalities are to be arranged so that they are reasonably expected to be to everyone’s advantage and attached to positions and offices open to all.14 Alex Boraine, in his understanding of the difference between transitional justice and criminal justice, argues that transitional justice “is simply a convenient way of describing the search for a just society in the wake of undemocratic, often oppressive, and even violent, systems. Therefore, rather than detracting from criminal justice, ‘transitional justice’ offers a deeper, richer and broader vision of justice, which seeks to confront perpetrators, addresses the needs of victims and assists in the start of a process of reconciliation and transformation.”15 While agreeing with Boraine, Dani Nabudere pokes holes in Rawls’s theory by stating that, in transitional societies, “the principles that Rawls enunciates are non-existent” and further argues that, “applying the logic of the theory of justice that is befitting a liberal democratic society that Rawls has in mind out of its context, is the same thing as criminalising the politics in these illiberal societies.”16 It is arguable that the four countries that the ICC is currently investigating are transitional societies. However, another issue that needs to be addressed is whether amnesties and peace negotiations are complementary to criminal prosecutions and accommodating elements of justice. Some scholars are of the view that sweeping amnesties and peace negotiations are no longer viable options for ending civil strife or ensuring a peaceful change of government,17 whereas other authors argue that amnesties and peace negotiations

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See generally J. Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001); A. Sen, Development as Freedom (Oxford University Press, 1999); M. Nussbaum, Sex and Social Justice (Oxford University Press, 1999); N. Lacey, State Punishment (London: Routledge, 1988); and D. Moellendorf, Cosmopolitan Justice (Westview Press, 2002). See also J. Nolan, Redefining Criminal Courts: Problem-Solving and the Meaning of Justice, (2003), American Criminal Law Review 40; B. Barry, Theories of Justice (Berkeley: University of California Press, 1989); D. Schmidtz, Elements of Justice (New York: Cambridge University Press, 2006); R. Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974); T. Honderich, Punishment: The Supposed Justifications (London: Hutchinson & Co., 1969); and W. Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd ed. (Oxford: Oxford University Press, 2002). J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 60. A. Boraine and S. Valentine, Transitional Justice and Human Security (Cape Town: JICA and International Centre for Transitional Justice, 2006), 24. D. Nabudere, Comprehensive Research Report on Restorative Justice and International Humanitarian Law. May 2008 Ford Foundation and Marcus-Garvey Pan Afrikan-Institute Mbale, Uganda, 145. J. Stromseth, Pursuing Accountability for Atrocities After Conflict: What Impact on Building the Rule of Law (2007), 38 Georgetown Journal of International Law 251, 262; J. Fink, Deontological

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may be used as effective means of ensuring peace and justice.18 The silence of the Rome Statute on the issue of amnesty and peace negotiations has led some scholars to argue that the ICC may respect a national amnesty law and not initiate a prosecution.19 Several authors have written about the establishment of the ICC and its potential to end impunity and human rights abuses.20 Others have extensively discussed the conflict in Uganda and the prospects for peace.21 Whereas some scholars support the intervention of the ICC in ongoing conflicts in Africa,22 others would prefer a peaceful resolution of the conflict or an end to it before the involvement

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Retributivism and the Legal Practice of International Jurisprudence: The Case of the International Criminal Tribunal For Rwanda (2005), 49 Journal of African Law 101; D. Robinson, Serving the Interest of Justice: Amnesties, Truth Commissions and the International Criminal Court (2003), 14 European Journal of International Law 481, 489; A. O’Shea, Amnesty for Crime, in International Law and Practice (2002). See H. Cobban, Amnesty After Atrocity: Healing Nations after Genocide and War Crimes (Boulder, CO: Paradigm Publishers; 2007); R. Lipscomb, Restructuring the International Criminal Court Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan (2006), 106 Columbia Law Review 182, 195; J. Mendez, Accountability for Past Abuses (1997), 19 Human Rights Quarterly 255; C. Nino, Radical Evil on Trial (New Haven, CT: Yale University Press, 1996); A. Boraine, Truth and Reconciliation in South Africa: The Third Way, in R. Rotberg and D. Thompson (eds.), Truth and Justice: The Morality of Truth Commissions (New Jersey, Princeton University Press, 2000). See G. Hafner et al., A Response to the American View as Presented by Ruth Wedgwood (1999), 10 European Journal of International Law 108; N. Roth-Arriaza, Amnesty and International Criminal Court, in D. Shelton (ed.), International Crimes, Peace, and Human Rights – The role of the International Criminal Court (New York: Transnational, 2000); M. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court (1999), 32 Cornell International Law Journal 507, 516. See C. Bassiouni (ed.), The Statute of the International Criminal Court: A Documentary History (New York: Transitional Publishers, 1998); A. Cassese (ed.), The Rome Statute of the International Criminal Court: Commentary (New York: Oxford University Press; 2002); F. Lattanzi (ed.), The International Criminal Court, Comments on the Draft Statute (1998); S. Ratner and S. Jason, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd ed. (Oxford, England: Clarendon Press, 2001); D. Shelton (ed.), International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (New York: Transnational Publishers, 2000). See, for example, B. Afako, Lessons from Past Peace Initiatives, Monograph commissioned by the Civil Society Organisations for Peace in Northern Uganda (CSOPNU), November 2002; R. Doom and V. Koen, Kony’s Message: A New Koine? The Lord’s Resistance Army (LRA) in Northern Uganda (1999), 98 African Affairs 5–36; R. Gersony, The Anguish of Northern Uganda, submitted to the U.S. Embassy, Kampala and USAID mission, Kampala (August 1997). Available at http:// www.usaid.gov/regions/afr/conflictweb/reports/gersony/gersony_uganda.pdf (last accessed May 10, 2008). Human Rights Focus: The Hidden War: The Forgotten People, Human Rights and Peace Centre, Makerere University Faculty of Law, and Liu Institute for Global Issues (October 2003); G. Khadiagala, The Role of the Acholi Religious Leaders Peace Initiative (ARLPI) in Peace Building in Northern Uganda, in USAID report, The Effectiveness of Civil Society Initiatives in Controlling Violent Conflicts and Building Peace, March 2001. P. Akhavan, The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court (2005), 99 American Journal of International Law 403. See also D. Newman, The Rome Statute, Some Reservations Concerning Amnesties, and a Distributive Problem (2005), 20 American University Law Review 294, 338–339.

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of the ICC.23 There is also the perception in some quarters that the ICC is a western concept that may not be a solution to the myriad problems in Africa, as some people argue that the concentration of its cases in Africa is a sign of weakness of the institution compared with several human rights atrocities ongoing in several parts of the world.24 However, it is my submission that peace and justice are not mutually exclusive concepts as argued by former UN Secretary General Kofi Annan, who stated that, “justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives.”25 The Rome Statute provides for situations in which the prosecutor can take into consideration the interests of justice in initiating or dropping prosecutions of persons or groups accused of crimes under the Rome Statute.26 However, there are divided opinions on the meaning of the interests of justice as provided by the Treaty of Rome.27 The Office of the Prosecutor (OTP) has also sought to limit the application of the provision in ongoing investigations by stating that, the exercise of the Prosecutor’s discretion under Article 53(1)(c) and 53(2)(c) is exceptional in its nature . . . there is a presumption in favour of investigation or prosecution wherever the criteria established in Article 53(1)(a) and (b) or Article 23

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T. Clark, The Prosecutor of the International Criminal Court, Amnesties, and the “Interests of Justice”: Striking a Delicate Balance (2005), 4 Washington University Global Studies Law Review 389, 391; E. Daly, Transformative Justice: Charting a Path to Reconciliation (2002), 12 International Legal Perspective 73, 79. Z. Lomo, Why the International Criminal Court must withdraw Indictments against the Top LRA Leaders: A Legal Perspective, The Sunday Monitor, August 20, 2006. See also Z. Lomo, Behind the Violence: Causes, Consequences and the Search for Solutions to the War in Northern Uganda (Monogram, Institute of Security Studies, 2004). Report of the Secretary General to the UN Security Council, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies” S/2004/616 (August 23, 2004). See also D. Ambos, The Legal Framework of Transitional Justice (study prepared for the International Conference “Building a Future on Peace and Justice,” Nuremberg, June 25–27, 2007). Available at: http://www.peace-justiceconference.info/download/Ambos_NurembergStudy_070512.pdf (accessed January 10, 2008). See Article 53(2)(c), which provides that “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.” See R. Goldstone and N. Fritz, In the Interests of Justice and Independent Referral: The ICC Prosecutor’s Unprecedented Powers (2000), 13(3) Leiden Journal of International Law 655–667. H. Jallow, Prosecutorial Discretion and International Criminal Justice (2005), 3(1) Journal of International Criminal Justice 145–161. See also G. Jessica, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court (2002), 51(1) International & Comparative Law Quarterly 91–117.

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53(2)(a) and (b) have been met. Secondly, the criteria for its exercise will naturally be guided by the objects and purposes of the Statute – namely the prevention of serious crimes of concern to the international community through ending impunity. Thirdly, that there is a difference between the concepts of the interests of justice and the interests of peace and that the latter falls within the mandate of institutions other than the Office of the Prosecutor.28

This approach also has been supported by a number of international organizations that argue that the application of the interests of justice should be limited in scope in relation to the prosecutorial discretions of the prosecutor of the ICC.29 It is therefore evident from the discussions earlier in text that whereas the OTP and several human rights organizations see the interpretation of the interests of justice in a restrictive nature, others would want to expand its ambit to accommodate alternative means of dispute resolution. The next section discusses the implementation of the Treaty of Rome in Africa and examines the current investigations of the Court and, in the process, strikes a balance with regard to the effect of the activities of the ICC on the continent in the bid to end impunity and human rights atrocities prevalent in Africa. IMPLEMENTING THE ROME STATUTE AND PROSECUTING CRIMES IN AFRICA

As of July 2009, thirty States from Africa have ratified the Rome Statute, with South Africa, Kenya and Senegal having comprehensive implementing legislations.30 Several African States are currently grappling with the implementation of the Rome Statute into domestic legislation. With debilitating factors such as inadequate awareness of the ICC, lack of technical expertise to effectively implement the provisions of the Rome Statute, and lack of political will among several governments on the 28

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See OTP of the ICC, Policy Paper on the Interests of Justice, September 2007, at www.icc-cpi.int/ library/organs/otp/ICC-OTP-InterestsOfJustice.pdf (accessed July 3, 2008). See, for example, Open Letter to the Chief Prosecutor of the International Criminal Court: Comments on the Concept of the Interests of Justice, available at: http://www.iccnow.org/documents/ AI_LetterOTP_Interests_Aug05.pdf (accessed July 3, 2008). See also Human Rights Watch Policy Paper, “The Meaning of ‘The Interests of Justice’ in Article 53 of the Rome Statute” (June 2005), available at: http://www.iccnow.org/documents/HRWInterestsOfJusticeJun2005.pdf (accessed July 3, 2008). See Implementation of the South African Rome Statute of the International Criminal Court Act, No. 27 (adopted July 18, 2002) and “Senegal Loi 2007 05 du Fev 2007 Modifiant le Code de Procedure penal,” Journal Officiel Dela Republic du Senegal, March 10, 2007, p. 2384. See also Benson Olugbuo, Domestic Implementation of the Rome Statute of the ICC in Africa: An analysis of the South African Legislation (2004), 1 Eyes on the ICC at 192.

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continent, it becomes a difficult task to accomplish as events unfold. It is also a known fact that most governments across Africa give lip service to the domestic implementation of international instruments.31 Several African countries have produced draft implementation legislations, which have been circulated among stakeholders, whereas others with little or no progress are not willing to make public the draft bills for comments by civil society organizations (CSOs). The punishment of war crimes, crimes against humanity, and genocide, regardless of where they are committed, is essential if international law is to be respected and justice served. States need to ensure that their substantive and procedural laws and administrative, judicial, and investigative systems enable them to prosecute these offenses and to provide such assistance as might be necessary where proceedings are underway abroad. In addition to these legal and practical aspects of enforcement, there must be political will to bring alleged offenders to justice.32 Another issue that is affecting the domestic implementation of the Rome Statute in Africa is the role of the parliamentarians, as advocacy is needed to get the lawmakers to appreciate the importance of the Rome Statute and to pass enabling laws to give legal teeth to the legislation in national legal systems. Without the effective implementation of the Treaty of Rome, it may become difficult for the ICC to carry out its investigations and activities on the ground effectively. These shortcomings notwithstanding, the investigations in CAR, DRC, Sudan, and Uganda have made it paramount for Africa to reflect closely the relationship between the ICC and national criminal justice systems on the continent. The Rome Statute provides for the circumstances under which the ICC can exercise jurisdiction over crimes that fall under the provisions of the treaty.33 The referrals from CAR, DRC, and Uganda were by state governments whereas the Sudan referral was by the UN Security Council (UNSC) acting pursuant to a UN resolution,34 which mandated the referral of the Darfur conflict to the ICC.

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C. Odinkalu, “Back to the Future: The Imperative of Prioritising for the Protection of Human Rights in Africa” (2003), 47 Journal of African Law 1 at 24. A. Segal, “Punishing Violations of International Humanitarian Law at the National Level: A Guide for Common Law States.” International Committee of the Red Cross, Geneva, September (2001), 127. See Article 13, which provides that, “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.” UNSC Resolution 1593 (2005). Available at http://www.un.org/News/Press/docs/2005/sc8351.doc.htm (accessed June 20, 2008).

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Peace and Justice in Uganda The Government of Uganda (GoU) referred the case concerning the Lord’s Resistance Army (LRA) to the ICC in December 2003.35 On July 29, 2004, the Chief Prosecutor of the ICC, Luis Moreno-Ocampo, decided that there was a reasonable basis to open an investigation into the situation concerning northern Uganda, following the referral of the situation by Uganda in December 2003. The prosecutor stated that the decision to open an investigation was made after thorough analysis of available information to ensure that requirements of the Rome Statute were satisfied.36 The investigations were later followed by arrest warrants issued by the ICC against five top LRA leaders.37 However, the decision did not go over well with Ugandans, especially those in the north (mostly of the Acholi region) who argued that the referral was a clog in the wheel of progress as it tended to block the activities of the Amnesty Commission, which were part of a people-driven process.38 The ICC has been careful not to work against the peace processes in northern Uganda. During the time when Betty Bigombe was championing a peace process between the GoU and the LRA, before the the warrants of arrests were issued, the ICC had adopted a strategy of “low profile” during investigations. This low profile style of investigation the Court argued, was to avoid being seen to be working against the peace negotiations. However, when the Betty Bigombe peace talks broke down, the ICC issued its arrest warrants and embarked on full-blown sensitization workshops and outreach programs to educate the populace about its activities. These efforts of goodwill on the part of the Court notwithstanding, the communication damage was already done; some people now see the ICC as the greatest threat to peace and justice in northern Uganda.39 The lack of effective outreach in Uganda at the early stages of engagement cost the Court a lot of credibility, and it will definitely 35

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See ICC Press Release “President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC.” Available at: http://www.icc-cpi.int/pressrelease_details&id=16&l=en.html (accessed July 3, 2008). See ICC Press Release “Prosecutor of the International Criminal Court opens an investigation into Northern Uganda.” Available at: http://www.icc-cpi.int/pressrelease_details&id=33&l=en.html (accessed July 3, 2008). Arrest warrants were publicly announced and unsealed on October 14, 2005. The accused are Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. See generally Uganda Situation Timeline, available at: http://www.iccnow.org/documents/CICC_ UgandaSituationTimeline_Current5.pdf (accessed July 10, 2009). See J. Naber and R. Watson, “African Faith-based Communities: Advancing Justice and Reconciliation,” 2006. Faith and Ethics Network for the ICC and Centre for Justice and Reconciliation. Z. Lomo, “Why the ICC Must Withdraw Indictments against the Top LRA Leaders: A Legal Perspective.” The Sunday Monitor, August 20, 2006. See also Z. Lomo and L. Hovil, “Behind the Violence: Causes, Consequences and the Search for Solutions to the War in Northern Uganda.” Refugee Law Project Working Paper, February 2004.

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take some time for the people to fully appreciate its importance and the challenging task of bringing peace and justice to the troubled region of northern Uganda. In mid-2006, the government of Southern Sudan brokered a peace talk between the LRA and the GoU in Juba, Southern Sudan. Analysts have said that this peace process offers the best chance to end the conflict that has been raging for more than two decades.40 The peace negotiations have generated heated debates both within and outside Uganda as the LRA is insisting that the arrest warrants will be withdrawn before any comprehensive peace deal can be signed with the GoU. However, the latter has been equivocal on the issue of whether to grant amnesty to the LRA rebels as they also stated categorically that the arrest warrants would not be withdrawn during the tenure of the peace talks unless a comprehensive peace deal is signed with the LRA.41 It is my view that both the issuance and withdrawal of arrest warrants are judicial decisions beyond both the GoU and the prosecutor of the ICC, although the latter can initiate the process before the judges of the ICC.42 However, it should be noted that such a decision would not totally exculpate the LRA from responsibility of the crimes for which they are indicted before the ICC. Any amnesty granted to the LRA by the GoU can apply only within the borders of Uganda, and the LRA rebels may be arrested and handed over to the ICC when they step beyond the borders of Uganda. The GoU and the LRA signed a peace agreement on June 29, 2007. The agreement relates to key issues of accountability, reconciliation, compensation of victims, and gender issues. The spokesperson of the Government delegation team said that these issues would form a lineup of what will be acted on to constitute a reconciliation mechanism to replace the trial by the ICC. The Government and the LRA agreed on how to deal with individuals who have committed crimes during the war in the north. If the peace process is implemented, the LRA top leaders would not be handed over to the ICC.43 However, several activists have stated that peace negotiations should 40

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See generally K. Ssemogerere, “Juba Talks – Who Is Really Fooling Who?” The Monitor (Uganda), October 26, 2006; J. Ogik, “The Truth Is; There Isn’t Penalty Enough for LRA,” The Monitor (Uganda), October 24, 2006; V. Lasaga, “Folly of Macho Flight Into Juba,” The Monitor (Uganda), October 24, 2006; and K. Nyago, “LRA Behaviour Should Not Be Condoned,” The New Vision (Uganda), October 21, 2006. See The Agreement on Accountability and Reconciliation signed by the GoU and the LRA on June 29, 2007. See also K. Glassborow, “Peace Versus Justice in Uganda,” AR No.77, 27-Sep-06. Available at: http://www.iwpr.net/?p=acr&s=f&o=324160&apc_state=henh (accessed July 10, 2007); and N. Grono, Role of the International Criminal Court in African Peace Processes: Mutually Reinforcing or Mutually Exclusive? Institute for Public Policy Research, November 28 2006. Available at: http://www.crisisgroup.org/home/index.cfm?id=4552&l=1 (accessed July 10, 2009). See Article 58(4) of the Rome Statute, which provides that “[t]he warrant of arrest shall remain in effect until otherwise ordered by the Court.” The LRA and the Government of Uganda on February 19, 2008 signed the Annexure to the Agreement on Accountability and Reconciliation, which will establish the following: a) a Truth and Reconciliation

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not allow for impunity and that the arrest warrants should remain in force and not be compromised. It should be noted also that the LRA is insisting that they will not sign any final peace agreement leading to an end to the conflict in the northern region until the ICC drops the indictments against four of its leaders for war crimes and crimes against humanity. Human Rights Watch in a statement 44 said that provisions for trials in the June 29 agreement between Uganda and the LRA are welcome but that any national trials for the most serious crimes should include penalties in the event of convictions that reflect the gravity of the crimes. Punishments that are fair and fit the crime are critical. The ICC favors national trials where possible. Such trials, however, should meet the following substantial benchmarks: credible, independent, and impartial prosecution; adherence to international fair trial standards; and penalties that are appropriate and reflect the gravity of the crime. Despite positive developments recorded in the peace process, the inability of Joseph Kony to sign the final peace agreement may have dampened the likelihood of ending the conflict through negotiations, as reversion to military strategies seem imminent.45 The use of traditional methods of dispute resolution in resolving the Uganda conflict is an issue that will engage the international community for a long time. Several people have asked that the LRA be forgiven and instead of a western style criminal justice system, the perpetrators be allowed to go through the process of Mato Oput.46 Others have also argued on the dangers posed by the insistance on traditional

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Commission to inquire, among other things, into human rights violations committed during the conflict, giving particular attention to the experiences of women and children; b) a special division of the High Court of Uganda to try individuals who are alleged to have committed serious crimes during the northern Uganda conflict; and c) a unit for carrying out investigations and prosecutions in support of trials and other formal proceedings on the Uganda conflict. Human Rights Watch, “Uganda: New Accord Provides for War Crimes Trials,” February 2008. Available at: http://hrw.org/english/docs/2008/02/19/uganda18094.htm. See also Human Rights Watch, “Analysis of the Annex to the June 29 Agreement on Accountability and Reconciliation: Human Rights Watch’s Fourth Memorandum on Justice Issues and the Juba Talks,” February 2008. Available at: http://hrw.org/backgrounder/ij/uganda0208/. See also Human Rights Watch, “The June 29 Agreement on Accountability and Reconciliation and the Need for Adequate Penalties for the Most Serious Crimes: Human Rights Watch’s Second Memorandum on Justice Issues and the Juba Talks,” July 2007. Available at: http://hrw.org/backgrounder/ij/uganda0707/ (accessed July 14, 2008). In June 2008, approximately eight negotiators of the Ugandan LRA quit the stalled peace talks with the Ugandan government aimed at ending more than two decades of insurgency in northern Uganda. The negotiators blamed their leader, Joseph Kony, for thwarting the peace process. However, the Chief Peace Negotiator of the LRA stated that they were removed for rebelling against Kony. In a related development, the Ugandan government’s top negotiator urged the rebel leader to engage himself more directly in the stalled peace talks mediated and hosted by the southern Sudanese authority since mid-2006. Joseph Kony failed to sign the peace deal reached in March 2008, demanding withdrawal of warrants of arrest issued against top members of the LRA by the International Criminal Court. Mato Oput is the traditional reconciliation ritual carried out by traditional Acholi leaders in northern Uganda to subdue the bitter relationship between the warring parties; the essence of the process is nonviolent reconciliation. It is a cleansing ceremony intended to restore social harmony. Perpetrators

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justice mechanisms for LRA rebels. First, these people bear greatest responsibilities for crimes provided under the Rome Statute and should not be allowed to have immunity for their crimes. Second, Mato Oput is an Acholi ritual and cannot be said to represent the entirety of the northern regions affected by the LRA conflict. Third, during the Mato Oput process, the perpertrator acknowledges his or her crimes before the community before the ritual is performed to allow for integration into the community. In a study carried out in the Adjumani region of Uganda,47 the elders informed the participants that traditional methods of dispute resolution do not mediate on most of the crimes stipulated in the Rome Statute as they are heinous and touch on the essence of humanity as a whole. However, one cannot rule out the possibility of using traditional means of dispute resolution to deal with some of the crimes that do not fall within the mandate of ICC. Before such can be done, it is argued that the best option will be to use the domestic implementation of the Rome Statute as a vehicle in the recognition of traditional methods of dispute resolution. NGOs and Civil Society Organisations (CSOs) in Uganda have started discussions on the domestic implementation of the Rome Statute that will take into consideration the complementarity principle of the Rome Statute and the role of traditional institutions in achieving peace and justice. It is argued that if such a bill is presented before the Uganda Parliament and passed into law, it will go a long way to diffuse the tension currently raging between international criminal justice and alternative justice mechanisms in Uganda. The Democratic Republic of the Congo Referral Thomas Lubanga Dyilo was the President of the Union of Congolese Patriots, a militia purporting to further the interests of the Hema ethnic group in the Ituri region of northeastern Democratic Republic of the Congo (DRC). The group is

47

are forgiven for their wrongdoing by accepting responsibility for their transgressions, asking forgiveness, and offering compensation to victims. In the most important part of the ritual, two clans bring together the perpetrator’s and the victim’s family and the two parties share an acrid root drink concocted of a calabash. The drink symbolizes the two sides putting aside their bitterness and differences, thus explaining its literal meaning, which can be translated into “drinking the bitter root.” See S. SinclairDay, “Mato Oput: Bitter Amnesty Brew Northern Uganda Continues to Search for Justice.” Available at: http://africanaffairs.suite101.com/blog.cfm/mato_oput_bitter_amnesty_brew. C. Bongomin, “Nonviolence Resistance in Africa: Case Study of Reintegration and Healing in Uganda.” Available at: http://www.haguepeace.org/files/morePeaceLessons/Nonviolence%20Resistance%20in%20Africa% 20(Bongomin%20Uganda%20&%20Wien%20USA).pdf (accessed July 2, 2008). See also B. Afoko, “Reconciliation and Justice: ‘Mato oput’ and the Amnesty Act” (2002). Available at: http://www .c-r.org/our-work/accord/northern-uganda/reconciliation-justice.php (accessed July 2, 2008). See report of the Uganda Coalition for the International Criminal Court Regional Sensitization Workshops in Northern and Eastern Uganda; held in the Districts of Gulu, Kitgum, Lira and Soroti, March 24–31, 2006. (On file with author.)

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accused of carrying out several ethnic massacres, torture, and rape. In February 2005, DRC authorities arrested Lubanga and others following the killing of nine UN peacekeepers in Ituri.48 On March 17, 2006, Thomas Lubanga Dyilo was surrendered to the ICC at “N’ djili” International Airport, making it the first arrest by the ICC. The Congolese authorities benefited from the cooperation of the French Government and the UN mission in Congo (MONUC) in the transfer. Lubanga is currently detained at the Haaglanden Detention Centre at Scheveningen in The Hague49 and is alleged to have been involved in the commission of war crimes, namely enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities.50 According to the prosecutor of the ICC, “the confirmation hearing of Thomas Lubanga Dyilo marks a milestone in the building of an international criminal justice system. Regardless of the outcome of this particular case, it will send an indication in DRC and around the world that using children as soldiers is a very serious war crime that will be prosecuted.”51 Several human rights activists and international humanitarian agencies welcomed the arrest and confirmation of charges against Lubanga as the beginning of a process that will bring peace and justice to the troubled great lakes region of Africa. In June 2008, the Court ordered the release of Lubanga due to the inability of the OTP to make available to the defense team documents obtained from MONUC that could not be shown to the judges or the defense team without the consent of the UN.52 The Court was of the view that the prosecutor abused the provision of the Rome Statute and therefore cast doubt on the ability of the defendant to get justice as some of the documents in question may be exculpatory to the charges against Thomas Lubanga.53 In November 2008, Trial Chamber I decided to lift the stay of proceedings in the case of The Prosecutor v. Thomas Lubanga Dyilo that had been 48

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See Human Rights Watch, “DR Congo: ICC Hearing Could Pave Way for Court’s First Trial” http://hrw.org/english/docs/2006/11/08/congo14512.htm (accessed June 24, 2008). C. Hamedi, International Criminal Court Becomes a Reality for the DRC (May 2006), 32 ICC Monitor. See Office of the Prosecutor’s Press Release of March 17, 2006, “First arrest for the International Criminal Court” (accessed July 3, 2008). See also Article 8(2)(e)(vii) of the Rome Statute. ICC, “Statement of the Prosecutor of the International Criminal Court, Mr Luis MorenoOcampo to the Assembly of States Parties 23 November 2006.” Available at: http://www.icc-cpi.int/ library/organs/otp/LMO_20061123_en.pdf (accessed July 14, 2008). See K. Glassborow and L. Clifford, “Lubanga Trial Hangs in the Balance.” Available at: http://www .iwpr.net/?p=acr&s=f&o=345238&apc_state=henpacr (accessed June 17, 2008). M. Simons, “International Criminal Court Says It May Discard First Case,” The New York Times. Available at: http://www.nytimes.com/2008/06/17/world/europe/17hague.html?scp=2&sq=international+ criminal+court&st=nyt (accessed June 17, 2008). See also N. Mika, “Global court may release first suspect” (Reuters). Available at: http://www.reuters.com/article/worldNews/idUSL1621037020080616 (accessed June 16, 2008). See Article 54(3)(e) of the Rome Statute. See also International Criminal Bar, “Thomas Lubanga Dyilo: Trial Postponed Indefinitely due to Non-Disclosure of Exculpatory Evidence,” June 2008 Newsletter. Available at: http://85.17.104.100/bpi-icb/files/icb%20newsletter%20june.pdf (accessed July 10, 2008).

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imposed. The Chamber stated that the decision was based on the conviction that the reasons for imposing a halt “have fallen away.”54 On October 17, 2007, the Congolese authorities surrendered and transferred Germain Katanga, a Congolese national and alleged commander of the Patriotic Resistance Force in Ituri, to the ICC. Katanga, also known as «Simba,» is alleged to have committed six war crimes and three crimes against humanity in the territory of Ituri, in the DRC.55 Mathieu Ngudjolo Chui, a Congolese national and alleged former leader of the National Integrationist Front and a Colonel in the Armed Forces of the DRC, was also arrested on February 6, 2008 by the Congolese authorities and was transferred to the ICC. Chui is alleged to have committed crimes against humanity and war crimes as set out in Articles 7 and 8 of the Statute, committed in the territory of the DRC since July 2002.56 On April 28, 2008, upon request of the Prosecutor, Pre-Trial Chamber I unsealed the warrant of arrest against Bosco Ntanganda, former Deputy Chief of the General Staff of the Force Patriotique pour la Liberation du Congo and current alleged Chief of Staff of the Congr`es National pour la D´efense du People armed group, active in North Kivu in the DRC. The arrest warrant against Ntanganda is the fourth in the DRC situation after Lubanga, Katanga, and Ngudjolo. The ICC and the Darfur Conflict The Darfur conflict described by the U.S. government as genocide and by the International Commission of Inquiry and the African Union (AU) as crimes against humanity continues to rage on without any abatement in sight.57 The Sudanese government and allied janjaweed militias have been engaged in crimes against humanity, war crimes, and “ethnic cleansing” in Darfur as a means of conducting a counterinsurgency campaign against two rebel movements, the Sudan Liberation Army/Movement and the Justice and Equity Movement.58 Following the submission of the report of the International Commission on Inquiry on Darfur in September 54

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See ICC Press Release, “Stay of Proceedings in the Lubanga Case is Lifted – Trial Provisionally Scheduled for 26 January 2009.” Available at: http://www.icc-cpi.int/menus/icc/press% 20and%20media/press%20releases/press%20releases%20(2008)/stay%20of%20proceedings%20in% 20the%20lubanga%20case%20is%20lifted%20_%20trial%20provisionally%20scheduled%20for%2026% 20january%20200 (accessed July 12, 2009). See ICC Media Advisory at http://www.icc-cpi.int/press/pressreleases/284.html (accessed July 10, 2008). See also the Arrest Warrant at http://www.icc-cpi.int/library/cases/ICC-01–04-01–07-1_tEnglish.pdf (accessed July 10, 2008). See the ICC Media Advisory and the Arrest Warrant on the ICC Web site at http://www.icc-cpi .int/press/pressreleases/329.html (accessed July 10, 2008). See S. Agbakwa, Genocidal Politics and Racialisation of Intervention: From Rwanda to Darfur and Beyond (2005), 6(2) German Law Journal 513. See Human Rights Watch, “Lack of Conviction: The Special Criminal Court on the Events in Darfur.” Briefing Paper, June 2006, Number 1, p. 3.

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2004, the UNSC referred the Darfur conflict to the ICC in March 2005. On June 6, 2005, the ICC Prosecutor announced his intention to open an investigation into the events that took place in Darfur.59 As required by UN resolution60 referring the Darfur conflict to the ICC, the prosecutor is mandated to brief the UNSC on the operations and challenges of the Office of the Prosecutor (OTP) every six months. In the third report of the prosecutor of the ICC to the UNSC resolution, the prosecutor stated that, the continuing insecurity in Darfur is prohibitive of the effective investigations inside Darfur, particularly in light of the absence of a functioning and sustainable system for the protection of victims and witnesses. The investigative activities of the Office are therefore continuing outside Dafur. Since the last report to the UNSC, the OTP has conducted over 40 missions to more than 13 countries, collecting witness statements and other evidence, and concluded 7 new agreements and arrangements with international organisations and bodies regulating the provision of information for the investigation.61

It is argued that the Special National Criminal Court on the Events in Darfur (Darfur Special Court) established on June 7, 2005, cannot be said to effectively deal with the crimes under the Rome Statute. Evidence has shown that the crimes currently being tried by the Darfur Special Court are not the serious violations that have occurred in Darfur in the recent past. As of June 14, 2006, the prosecutor of the ICC argued that, the Special Court has conducted 6 trials of less than 30 suspects. The cases include 4 incidents of armed robbery, 1 incident of receipt of stolen goods, 2 cases of possession of firearms without licence, 1 case of intentional wounding, 2 cases of murder and I case of rape.62

He further stated that the president of the Special Court stated that no cases involving serious violations of international humanitarian law were ready for trial and six cases selected were in fact chosen from the case files lying before the ordinary Courts in Sudan. Despite several calls for the deployment of a UN mission to replace the AU Mission in Sudan, it appears that the Sudanese government finally agreed to a hybrid force of the UN and AU only recently after several months of delay and 59

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ICC, “The Prosecutor of the ICC opens Investigation in Darfur,” The Hague, June 6, 2005. Available at: http://www.icc-cpi.int/press/pressreleases/107.html (accessed July 4, 2008). UNSC Resolution 1593 (2005) S/RES/1593 2005. Available at: http://www.un.org/News/Press/docs/ 2005/sc8351.doc.htm (accessed July 4, 2008). OTP of the ICC, “Third Report of the Prosecutor of the International Criminal Court to the UN Pursuant to UNSCR 1593” (2005), June 14, 2006. Available at: http://www.icc-cpi.int/library/ cases/OTP_ReportUNSC_3-Darfur_English.pdf (accessed July 3, 2008). As above.

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procrastination. However, impunity and human rights atrocities in Darfur continue unabated.63 The ICC is also bogged down by security realities in Sudan. As at July 2009, the Court is yet to open a field office in Sudan and operates from a temporary field presence in Chad to access the refugee population from Sudan currently situated in Eastern Chad. On June 16, 2008, the UNSC unanimously adopted a presidential statement calling on Sudan and all other parties to the Darfur conflict to cooperate fully with the ICC, in accordance with UNSC Resolution 1593 that referred the situation in Darfur to the court in 2005.64 The statement was made in response to the presentation of the prosecutor to the SC made on June 5, 2008. The SC referred the situation in Darfur to the ICC prosecutor on March 31, 2005. On April 27, 2007, the court issued the first two arrest warrants for “Janjaweed” militia leader Ali Kushayb and Sudanese State Minister of Humanitarian Affairs Ahmed Harun for 51 counts of war crimes and crimes against humanity. In his previous reports to the SC since then, the prosecutor has informed the council of Sudan’s refusal to cooperate with the ICC.65 Since the referral, the Sudanese government has openly defied the Court and the international community. The Sudanese government has consistently refused to cooperate with the Court. In addition, Ali Kushayb, who had been imprisoned by Sudanese authorities on unrelated charges, was released in October 2007 for “lack of evidence.” Ahmad Harun, who was previously State Minister of the Interior responsible for the government’s Darfur Security Desk at the time of the crimes, was last year promoted to State Minister for Humanitarian Affairs in Darfur with direct authority over the victims of his alleged crimes. Most recently, Harun was tasked with the role of Sudanese government liaison with UNAMID, the UN–AU hybrid peacekeeping mission in Darfur.66

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See D. Kilner, “Ambush Kills Darfur Peacekeepers,” July 9, 2008. Voice of America News. Available at: http://www.voanews.com/english/2008–07-09-voa37.cfm (accessed July 14, 2008). See UNSC Presidential Statement Document No S/PRST/2008/2. Available at: http://www.un.org/ News/Press/docs//2008/sc9359.doc.htm (accessed July 10, 2008). See Human Rights Watch, “UN: Council Faults Sudan Inaction on War Crimes Suspects: Tells Khartoum to Cooperate With International Criminal Court,” Human Rights Watch Press Release, June 16, 2008. Available at: http://hrw.org/english/docs/2008/06/16/sudan19132.htm (accessed July 10, 2008). See also Darfur Consortium, “Darfur Consortium Welcomes Presidential Statement on Justice in Darfur 17 June 2008.” Available at: http://www.iccnow.org/documents/Darfur_ Consortium_Welcomes_Presidential_Statement_on_Justice_in_Darfur.pdf (accessed July 10, 2008). M. Besheer, “Security Council Demands Sudan Cooperation on Darfur Crimes,” Voice of America, June 16, 2008. Available at: http://www.voanews.com/english/2008–06-16-voa61.cfm (accessed July 10, 2008). See Coalition for an International Criminal Court (CICC) Media Advisory, “Security Council Unanimously Calls for Sudanese Cooperation with International Criminal Court.” Available at: www.iccnow.org/documents/PRST_for_Darfur_16_June_2008.pdf (accessed July 10, 2008). See also Human Rights First, “Security Council Takes Important Step ‘Towards Ensuring Justice

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In July 2008, the ICC Prosecutor Luis Moreno-Ocampo presented evidence to the Pre-Trial Chamber I accusing Sudanese President Omar Hassan Ahmad Al Bashir of committing the crimes of genocide, crimes against humanity, and war crimes in Darfur. The OTP argued that Al Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit, and Zaghawa groups, because of their ethnicity.67 The Pre-Trial Chamber I of the ICC in March 2009 issued a warrant for the arrest of Omar Hassan Ahmad Al Bashir for war crimes and crimes against humanity. He is suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan and for murdering, exterminating, raping, torturing, and forcibly transferring large numbers of civilians and pillaging their property. This warrant for arrest is the first ever issued for a sitting head of state by the ICC.68 Although several governments and intergovernmental organizations welcomed the indictment,69 the AU deeply regretted the indictment and restated its position that the indictment should be suspended by the SC to pave way for peace negotiations to be concluded70

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and Accountability’ in Darfur,” Human Rights First, July 16, 2008. Available at: http://www .humanrightsfirst.org/media/darfur/2008/statement/311/index.htm (accessed July 10, 2008); “UN News Centre ‘Security Council presses Sudan to cooperate in ending impunity for Darfur crimes,” June 16, 2008. Available at: http://www.un.org/apps/news/story.asp?NewsID=27040&Cr=darfur&Cr1=# (accessed July 10, 2008); J. Heilprin, “UN Council Raps Sudan over War Crimes Suspects,” June 16, 2008. Available at: http://www.iht.com/articles/ap/2008/06/16/news/UN-GEN-UNSudan.php (accessed July 10, 2008); and H, Couturier, “UN Urges Sudan Cooperation on Darfur,” (Agence France Presse), June 16, 2008. Available at: http://news.yahoo.com/s/afp/20080616/ wl_africa_afp/unsudandarfuricc (accessed July 10, 2008). See ICC Press Release, “ICC Prosecutor Presents Case against Sudanese President, Hassan Ahmad Al Bashir, for Genocide, Crimes against Humanity and War Crimes in Darfur.” The Hague, July 14, 2008. Available at: http://www.icc-cpi.int/press/pressreleases/406.html (accessed July 14, 2008). ICC Press Release, “ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan.” Available at: http://www.icc-cpi.int/NR/exeres/0EF62173–05ED-403A-80C8-F15EE1D25BB3.htm (accessed March 15, 2009). See CICC “Norway supports the International Criminal Court,” March 5, 2009. Available at: http://www.iccnow.org/documents/norway1.pdf (accessed March 15, 2009); EU Presidency, March 4, 2009, “EU Presidency Declaration following the ICC Decision Concerning the Arrest Warrant for President Al-Bashir.” Available at: http://www.iccnow.org/documents/EU_Pres_ Declaration_following_the_ICC_decision_concerning_thearrest_warrant_for_President_Al_Bashir_ (accessed March 15, 2009); Gordon Duguid, Acting Deputy Department Spokesman of the State Department, Daily Briefing, March 4, 2009. Available at: http://www.iccnow.org/documents/Africa.pdf (accessed March 15, 2009). AU, March 6, 2009, “The Chairman of the AU Commission Expresses Deep Concerns at the Decision of the Pre-Trial Chamber of the ICC.” Available at: http://iccnow.org/documents/AU_expresses_ Concern_over_ICC_arrest_warrant[1].pdf (accessed March 15, 2009). See also AU, March 5, 2009, “Communiqu´e of the 175th Meeting of the AU Peace and Security Council.” Available at: http://iccnow.org/documents/AU_PSC_press_release_on_ICC_arrest_warrant_03052009_eng.pdf (accessed March 15, 2009).

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whereas the Sudanese government has remained defiant and subsequently expelled international humanitarian organizations currently in Sudan.71 ICC Investigations in CAR In October 2002, former Army Chief of Staff Franc¸ois Boziz´e launched a coup against then-President Ange-F´elix Patass´e. This coup led to the overthrow of Patass´e’s government in March 2003. During the five-month armed conflict, Patass´e enlisted the support of militia from the DRC, and mercenaries from Chad and Libya, to defend the capital, Bangui, from rebel attacks. These troops are suspected to have committed widespread crimes in the capital and other regions, including summary executions, rape, and other sexual violence.72 In mid-2004, judicial authorities in CAR instituted criminal proceedings against Patass´e and several military commanders for crimes committed against the civilian population. Later, the Court of Appeals recommended referring the crimes to the ICC, which the government did. The highest court in CAR subsequently confirmed the Court of Appeals decision, citing the inability of the national judicial system to effectively investigate and prosecute the relevant crimes.73 On May 22, 2007, the ICC opened investigations on crimes and human rights abuses committed in CAR. The investigations specifically focused on rape as an instrument of war. According to the prosecutor of the ICC, “[r]ape is the most notorious issue here. There are killings, but there are four times more rapes than killings. We are talking about mass rapes, gang rapes, hundreds of cases that took place within a few days.”74 Several activists welcomed the opening of investigations arguing that it will serve as a deterrent to future human rights violators acting with impunity. Human rights organizations have also argued that both rebels and government forces committed several atrocities and raped numerous women during their operations. In the five-month period of conflict, at least 600 rape victims were

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“Braced for the aftershock; the worst crimes, the law and the UN Security Council.” The Economist, March 5, 2009. Available at: http://www.economist.com/world/international/displaystory .cfm?story_id=13240670&fsrc=rss (accessed March 15, 2009). Human Rights Watch, “Central African Republic: ICC Opens Investigations,” May 22, 2007. Available at: http://hrw.org/english/docs/2007/05/22/carepu15980.htm (accessed July 12, 2008). See The International Federation for Human Rights, “The Prosecutor of the International Criminal Court Opens an Investigation into Serious Crimes Committed in Central African Republic,” May 22, 2007 (accessed July 12, 2008). L. Polgreen and M. Simons, “Hague Court Inquiry Focuses on Rapes.” The New York Times, May 2007. Available at: http://www.nytimes.com/2007/05/23/world/africa/23car.html (accessed May 23, 2007). See also S. van den Berg, “ICC to Investigate Central African Republic War Crimes,” AgenceFrance Presse, May 2007. Available at: http://www.france24.com/france24Public/en/news/world/ 20070522-ICC-Central-African-Republic-sexual-violence.html (accessed July 10, 2008).

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identified during the investigations conducted by the ICC.75 This development notwithstanding, the prosecutor has been criticized for delaying for about two and a half years before opening investigations in CAR. However, the prosecutor stated that his office had to make sure there were no other overlapping investigations by local courts, and analysts had to assess the credibility of the crime reports reaching his office as initial investigations indicated that the mass rape was the result of an organized campaign.76 On May 23, 2008, ICC Pre-Trial Chamber III issued a sealed warrant of arrest for Jean-Pierre Bemba Gombo,77 which was unsealed on May 24, 2008. According to the release, the warrant of arrest contains two counts of crimes against humanity (rape and torture), as well as four counts of war crimes (rape, torture, outrages upon personal dignity [in particular, humiliating and degrading treatment], and pillaging a town or place).78 Bemba was arrested in Brussels, Belgium, and has been transferred to the ICC detention facilities in The Hague to face trials. The arrest and transfer of Bemba to The Hague is a clear message to dictators in Africa. His arrest also sent chills down the spines of several warlords in Africa who see the ICC as a threat to their lawless fiefdoms. The accused is currently awaiting confirmation of charges against him by the OTP as the Court79 recently requested the amendment of the charges against him as provided by the Rome Statute.80 The trial is expected to commence after the confirmation of charges. THE ROLE OF NGOS AND GOVERNMENT AGENCIES IN CONSTITUTIONAL REFORM

The Rome Statute is not meant to supplant national legal systems. Rather, it operates in tandem with them under the complimentarity principle of the Rome Statute, 75

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See the ICC Press Release, “Prosecutor Opens Investigation in the Central African Republic.” The Hague, May 22, 2007. ICC-OTP-PR-20070522–220_EN. Available at: http://www.icc-cpi.int/ press/pressreleases/248.html (accessed July 10, 2008). See also H. ten Wolde, “ICC Launches Central African Republic Investigation.” Reuters, May 2007. Available at: http://www.reuters.com/ article/homepageCrisis/idUSL22411917._CH_.2400 (accessed July 10, 2008). As above. See also M. Corder, “Court Probes Central African Republic.” Associated Press, May 2007. Available at: http://www.chron.com/disp/story.mpl/ap/world/4826395.html (accessed July 10, 2008). Jean-Pierre Bembe Gombo was the Vice President of DRC and Leader of the Opposition Party. See ICC Press Release, “Jean-Pierre Bemba Gombo arrested for crimes allegedly committed in the Central African Republic,” May 24, 2008. Available at: http://www.icc-cpi.int/press/pressreleases/ 370.html (accessed July 10, 2008). See also ICC OTP Press Release, “ICC Arrest Jean-Pierre Bemba – massive sexual crimes in Central African Republic will not go unpunished,” May 24, 2008. Available at: http://www.icc-cpi.int/press/pressreleases/371.html (accessed July 10, 2008). ICC Press Release: “The Judges Ask the Prosecutor to Submit an Amended Document Containing the Charges,” ICC-CPI-20090305-PR395. See Article 61(7)(c) of the Rome Statute.

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which provides, among other issues, that, “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”81 The importance of the domestic implementation of the Rome Statute cannot be overemphasized. It enables States to have mechanisms to hold accountable persons or groups responsible for heinous human rights violations. It also enables States to amend local and obsolete criminal law legislations to bring them into conformity with emerging trends in international criminal justice. The campaign takes a twoprong approach of ratification and domestic implementation of the Rome Statute into national legislations. However, experience has shown that the latter is a slow and steady campaign subject to several factors beyond the control of activists and human rights campaigners. If the ICC is to have the desired result of developing criminal justice systems in Africa, it is the role of NGOs and government agencies to ensure that synergies of cooperation are developed through the effective implementation of the provisions of the Treaty of Rome in national legislations. Several NGOs and CSOs have played important roles in the domestic implementation of the Rome Statute around the globe. Under the auspices of the NGO CICC,82 NGOs have been advocating for a free and fair independent ICC. The CICC also collaborates with national institutions to ensure effective mobilization of local NGOs, the public and government support in implementing the Treaty of Rome. An example of effective activism aimed toward the ratification and domestic implementation of the Rome Statute is the role of the Kenya National Commission on Human Rights (KNCHR). The former Kenyan President, Daniel Toroitich arap Moi, in May 1996, established the KNCHR as the Standing Committee on Human Rights. The Committee came by way of a Presidential Order. It was subsequently gazetted by President Moi’s government.83 In 2002, the Kenyan Parliament passed a bill to establish KNCHR.84 The KNCHR has embarked on several projects to promote and protect the rights of Kenyans. During October 27–30, 2004, the KNCHR organized a forum on the ICC and the African Court on Human and Peoples’ Rights.85 According to the KNCHR, the objectives of the forum were among other issues, 81 82

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See para 6 of the Preamble to the Rome Statute. The CICC was established in 1995 and is an international network of more than 2,500 organizations in 150 countries advocating for a fair, effective, and independent international criminal court. More than 95 percent of all NGOs involved in the ICC campaign carry out their work under the umbrella of the CICC. More information on the activities of the CICC can be accessed online at www.iccnow.org. See C. Idike, “Deflectionism or Activism? The Kenya National Commission on Human Rights in Focus.” 1(1) Essex Human Rights Review 40 at 46. See the Kenya National Commission on Human Rights Act, 2002, Kenya Gazette Supplement, Acts, 2003, assented October 24, 2002, came into force March 2003 (hereinafter “the Act”). The KNCHR organized the Forum on the International Criminal Court and the African Court on Human and Peoples’ Rights, October 27–30, 2004, at Mount Kenya Safari Club, Nanyuki, Kenya.

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to encourage and involve civil society participation in engaging with the Kenyan Government to ratify and implement these instruments because of their importance to the promotion and protection of human rights and to build the capacity of the KNCHR through learning from the experiences of other human rights commissions in other African countries and experts on the ICC regarding the ratification and implementation process on the ICC Statute and the Protocol to the African Court.86

The forum brought together representatives of the government, civil society, the media, and international NGOs, and experts on the ICC and the African Court on Human and Peoples’ Rights. Several of the presenters and discussants traced the establishment of the ICC and participation of African states in the process. It was also pointed out during the forum that Kenya was among the few African countries that refused to sign a BIA with the U.S. government and that the ratification and domestic implementation of the Rome Statute by Kenya will go a long way to show Kenya’s commitment to the ideals of human rights protection, promotion, and an end to dictatorships and rights abuses on the continent. The participants in the workshop explored the historical background and overview of the Rome Statute and concluded that the treaty offered great hope in bringing persons accused of crimes like genocide, crimes against humanity, and war crimes to trial. The effect of the BIA was discussed as it was agreed that the government of Kenya should not sign the agreement. Efforts were also made by participants to bring to the fore the paltry monetary losses that Kenya was to lose if the BIA was not entered into with the U.S. government. The forum ended with a call on the government of Kenya to urgently ratify the Rome Statute and for NGOs and CSOs to develop the capacity of its members to effectively engage the government on issues of human rights, rule of law, and democracy in Kenya.87 In January 2005, the CICC adopted Kenya for its universal ratification campaign. In a letter sent to President Mwai Kibaki, the CICC called on the government of Kenya to ratify the Rome Statute and not succumb to the pressure of the U.S. government to sign the BIA.88 The government of Kenya subsequently ratified the Rome Statute and deposited its instrument of ratification at the UN headquarters as the 98th State Party to the Rome Statute on March 15, 2005.89 The action followed the decision of the Kenyan Cabinet on February 17, 2005, in which approval was given 86 87

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See Report of the Forum hereinafter referred to as the Nanyuki Forum Report. See Nanyuki Declarations made at the end of the Forum on the International Criminal Court and the Africa Court in Kenya, 2004. See CICC Press Release, “Global Coalition Calls on Kenya to Ratify International Criminal Court Treaty.” See also KNHRC, “Ratification of International Criminal Court is an Essential Pillar for Securing the Rights of Kenya.” Available at: http://www.knchr.org/index.php?option=com_ content&task=view&id=23&Itemid=89 (accessed July 24, 2007). See CICC Press Release, “Kenya Brings ICC States Close to 100 Mark.” Available at: http://www .iccnow.org/documents/KenyaRatRS_15Mar05.pdf (accessed July 10, 2008).

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for the publication and tabling in the national assembly for debate and enactment by parliament, the Kenya International Crimes Bill 200590 as a sign of its commitment to the domestic implementation of the Rome Statute. In furtherance of its mandate, the KNCHR in collaboration with the Ministry of Justice and Constitutional Affairs organized a stakeholder’s workshop to analyze the International Crimes Bill 2005.91 The workshop brought together a group of experts on Kenyan Law and ICC implementation, to discuss and analyze the Kenya ICC Bill with the aim of contributing to the development of a final implementing legislation.92 The ratification and subsequent publication of the ICC crimes bill is an unprecedented move by any government in Africa in the domestic implementation of the Treaty of Rome. Following the publication of the ICC Bill 2005, stakeholders undertook extensive review of the bill and mandated a technical committee to finalize recommendations on changes to the bill for presentation to the Kenya Attorney General, Amos Wako, for further amendments. In its report, the KNCHR stated that most proposed recommendations were reflected in the International Crimes Bill 2008. The Bill was passed into law by the Kenyan Parliament and assented by the President in December 2008.93 PROBLEMS AND PROSPECTS OF IMPLEMENTING THE ROME STATUTE IN AFRICA

Although Africa has the highest number of ratifications in the world to date, it also has the least number of implementation laws. The reasons are not far-fetched. Several rulers in Africa pay lip service with regard to issues of human rights promotion and protection. There is also the issue of expertise and technical knowledge.94 According to Odinkalu, African States generally have a poor record of compliance with obligations under international human rights treaties. The reasons for this poor record are, on closer examination, much more complicated than a straightforward absence of will on 90 91 92

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Kenya Gazette Supplement No. 18 (Bill No. 7) of March 2005. [Hereinafter, the Kenya ICC Bill]. The workshop was held July 14–16, 2005, at Nyali Beach Resort, Mombassa. See the Report of the Stakeholder’s workshop to analyze the International Crimes Bill of March 24, 2005. See Kenya National Assembly, “10th Parliament, 2nd Session Bill Tracker 2009 As at Tuesday, 24th February 2009.” Available at http://www.bunge.go.ke/parliament/downloads/Tenth%20Parl% 201st%20Session/Bill%20Tracker%202008-2009.pdf (accessed July 12, 2009). See also KNCHR, “Assessment of the International Crimes Bill, 2006.” Report of the Kenya National Commission on Human and Peoples’ Rights. See generally, Assembly of States Parties, “Report of the Bureau on Ratification and Implementation of the Rome Statute and on Participation in the Assembly of States Parties.” ICC-ASP/5/26 Fifth session, The Hague, November 23 – December 1, 2006.

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their part to take these norms seriously, although this is clearly a factor. It is conceivable that far from being involved in deliberately subverting the relevant instruments, many of the states genuinely lack the skills, personnel and resources required to comply with the complex web of obligations and norms undertaken by them through these treaties.95

Most African governments are also concerned with the implications of implementing the Rome Statute vis-`a-vis their obligations under the BIAs signed with the U.S. government. The campaign by the United States to decrease aid to some African countries that are States Parties to the Rome Statute and not signatories to the BIAs have put some governments in a dilemma as to whether to support the Court at the risk of losing financial aid from the United States.96 It is hoped that African governments will further the interest of human rights by cooperating with the Court as required by the treaty and international obligations. One of the key commitments of the Strategic Plan of the AU is the ratification of the ICC convention by all countries in Africa.97 However, it is surprising to note that to date, there is no department in the AU saddled with this responsibility. This may explain why the Memorandum of Understanding between the ICC and the AU is yet to be signed after several negotiations between the parties. The AU has an important role to play in the ratification and domestic implementation of the Rome Statute in Africa. As the first four cases of the Court are in Africa, the need for cooperation between the Court and member states of the AU is of utmost importance. The ICC lacks police and army of its own and will therefore depend on the support and assistance of member states to effectively carry out its obligations. Another issue that has not been fully explored is the completion of work on the definition of the crime of aggression. Some states like Ethiopia that participated in the discussions on the crime of aggression may indirectly be waiting for the definition of the crime of aggression as this may affect the activities of the Ethiopian government in Somalia and Eritrea. The domestic implementation of international instruments is most times not on the priority list of the governments in Africa.98 Most governments prefer to 95 96

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See C. Odinkalu, note 31 above. See D. Cotton, “The Power of the Weak State: Domestic Determinants Concerning Africa’s Response to U.S. Article 98.” Available at: http://etd.gsu.edu/theses/available/etd-07222005–233020/unrestricted/ cotton_deborah_h_200505_ma.pdf (accessed April 5, 2008). See AU, “Strategic Plan of the Commission of the African Union Volume 3: 2004–2007 Plan of Action,” May 2004. Available at: http://www.africa-union.org/AU%20summit%202004/ Volume3%20%20Strategic%20Plan%20final.pdf (accessed May 3, 2008). Before the end of the Obasanjo administration in Nigeria, the government submitted a list of bills to the National Assembly to be passed into law before the end of May 2007. Curiously, domestication of international instruments ratified by the country was on the last part of the list.

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sponsor fiscal bills for budget- and finance-related issues, and without concerted efforts from NGOs and the populace, governments tend to ignore or even forget the responsibility to enact laws that will further entrench their international obligations in the domestic arena. In some instances, international criminal justice is not seen as a priority among the issues that several countries are contending with to foster democracy and good governance. THE WAY FORWARD

The ICC investigations in Africa have opened a new vista in the promotion and protection of human rights on the continent. They also have brought challenges that will test the credibility and sustainability of the Court. These challenges include the reliance of the ICC on States Parties to effect arrests of suspects, the inability of the Court to effectively deter potential criminals from continuing with their acts, the debate between peace and justice, and the slow pace of implementation in several parts of the world. The Court is also confronted with the fact that some of the world’s superpowers like United States and China are not States Parties and that currently the concentration of the Court’s cases are in Africa. The ICC needs the support and assistance of states, the UN, and international multilateral organizations to achieve desired results. That is why the need for universal ratification is of utmost importance in the minds of supporters. Several commentators have criticized the Court for its activities in northern Uganda and other African countries. However, it is important to note that all three referrals regarding human rights abuses, in CAR, DRC, and Uganda, are self-referrals, and the Darfur situation was through a UNSC resolution. It is my argument that peace and justice are complementary and not mutually exclusive. Effective peace cannot be achieved if impunity is allowed a field day on the continent. The Uganda situation is an example of how peace and justice can work together to achieve a positive goal. Requesting the withdrawal of the arrest warrants before the conclusion of the peace deal between the rebels and the GoU may become counterproductive, as the LRA is not known to keep its promises. According to Adam O’Brian, the ICC is not the main obstacle. Premature preoccupation with the ICC neglects the positive impact the court has had, minimises the multitude of complex challenges that must be addressed before the issue of prosecutions comes into play, and masks the mechanisms to reconcile the interests of peace and justice. [ . . . ] If the parties get to the stage where an agreement is signed, then hard decisions will need to be made about balancing the needs of peace and accountability. [ . . . ] Since

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the ICC is an independent legal institution with a mandate to prosecute, not make political decisions, the burden of making the decision to suspend the investigation should be shouldered by the UN Security Council.99

The way forward is for the ICC prosecutor to proceed with his prosecutions. He has a mandate and should not be required to make the essentially political judgment of whether the prospects of an uncertain peace should take precedence over justice.100 The protection of victims and their ability to participate in the proceedings of the Court should be given priority. The ICC also should accelerate its outreach activities in DRC to reach the populace expectant of its ability to end the intransigent conflict.101 Achieving compliance with the directive of the Court in the Darfur situation will also need the support and assistance of the UN and neighboring states in the region. The Sudanese government is responsible for maintaining lives and properties in its region. Where it fails to do so and becomes an accomplice in the human rights abuses committed against the populace, the ICC should be allowed to investigate and prosecute persons and groups responsible for the crimes committed in Darfur. The presentation of the case of genocide, war crimes, and crimes against humanity against the President of Sudan marks a turning point in the activities of the ICC in Africa, and it is hoped that this will signal a new hope for the people of Darfur in the cessation of hostilities and the prosecution of persons who bear responsibilities of the crimes currently ongoing in Sudan. 99 A.

O’Brian, “ICC – UN Security Council is Key.” The Monitor (Kampala), October 31, 2006. Grono, “What Comes First, Peace or Justice?” International Herald Tribune, October 27, 2006. Available at: http://www.iht.com/articles/2006/10/26/opinion/edgrono.php (accessed June 24, 2008). 101 See Human Rights Watch, “Courting History: The Landmark International Criminal Court’s First Years,” July 2008. Available at: http://hrw.org/reports/2008/icc0708/icc0708web.pdf (accessed July 14, 2008).

100 N.

6 Measuring Justice Internal Conflict over the World Bank’s Empirical Approach to Human Rights Galit A. Sarfaty How can we measure justice? Are there tensions between an instrumental and an intrinsic conception of justice? These questions are currently being debated within the World Bank, an international development agency founded in 1946 under a mandate of poverty reduction. On May 15–16, 2006, members of the Bank’s Legal Department led a workshop on developing justice indicators that examined these questions. The participants included thirty Bank employees, the Nordic-Baltic Foreign Ministries, and experts from four continents. The Bank organized the workshop in preparation for a new trust fund on justice and human rights, aimed at the “practical” promotion of human rights considerations at the institution. One of the objectives of the workshop was to “consider ‘what measuring justice means,’ including both the objective of and methodologies for doing so.”1 The Measuring Justice Initiative, which attempts to quantify the performance of the justice sector in developing countries, is part of a larger trend in the Bank to empirically measure normative concepts. My research focuses on the institution’s empirical treatment of human rights and its support for an instrumentalist interpretation of the concept. One example of this recent approach is the Bank’s Human Rights Indicators Project, a parallel initiative to Measuring Justice, which began in 2005 and is also based in the Legal Department. This project aims to develop a methodology and operational tools to measure and assess human rights and integrate them into development processes. It is an effort to demystify human rights for employees, particularly some economists, who remain skeptical of their value for the Bank’s work. Yet if one were to examine this project in isolation, one would overlook the multiplicity of human rights interpretations among employees. Whereas some promote 1

Report of the Justice and Human Rights Initiative, Workshop on Developing Justice Indicators, Oslo (May 15–16, 2006).

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human rights as instrumental goals toward achieving poverty reduction, others define them as legal obligations or as moral imperatives. Meanwhile, there is a sizable minority of staff who interpret them as political considerations that are beyond the Bank’s mandate. Why is the Bank exhibiting such divergent approaches to human rights? I argue that the “interpretive pluralism” over human rights reveals contradictions within the Bank’s bureaucratic culture and, in particular, a tension between principles and pragmatism. This chapter seeks to analyze the internal conflicts that led to the current empirical approach by presenting a genealogy of human rights at the Bank. My analysis is based on ethnographic fieldwork at the World Bank headquarters in Washington, DC over a period of two years, including the summers of 2002 and 2004 and the 2005–2006 academic year. I demonstrate that human rights has been a taboo topic within parts of the institution, but the type and extent of the taboo has changed over time and in different contexts. Moreover, when the concept of human rights has been incorporated into Bank discourses and practices, it has often been in a partial or inconsistent manner. Before I proceed to discuss the human rights taboo, I would like to clarify how human rights can relate to the work of the Bank. The institution may be implicated in human rights in at least three possible activities: (i) the Bank’s lending of money to governments that violate human rights; (ii) its direct or indirect violation of human rights through its projects (e.g., the forcible displacement of indigenous peoples resulting from a Bank-financed dam project); and (iii) the Bank’s promotion of human rights through its work (e.g., designing projects with specific human rights objectives). Human rights here include economic, social, and cultural rights, as well as civil and political rights. THE HUMAN RIGHTS TABOO AND ITS HISTORICAL ORIGINS

There has been and continues to be a taboo on human rights in the Bank’s policies and much of its practice. Despite years of internal and external pressure and the institution’s adoption of a number of social and environmental policies, the Bank has no overarching operational policy or guidelines on human rights.2 Moreover, the Bank has not adopted a rights-based approach to development as have many other agencies, including the United Nations Development Program (UNDP), the United Nations Children’s Fund, and the UK’s Department for International Development. Human rights concerns are not systematically incorporated into the decision making of staff or consistently taken into consideration in projects, although there are some 2

Although there are no operational policies that directly concern human rights, the Indigenous Peoples Policy does briefly refer to the human rights of indigenous peoples.

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exceptions.3 Existing incorporation is mostly ad hoc and up to the discretion of employees. The marginality of human rights in official policies stands in contrast to the Bank’s rhetoric, including official reports and public speeches by its leadership in support of the issue. Not only have human rights not been incorporated into the Bank’s official policies, but they are also not openly discussed within many parts of the institution. Many employees consider it taboo to discuss the topic in conversation and to include references to it in project documents. The Bank is an environment of tabooed topics, which become part of the everyday consciousness of employees and encoded in their daily routines. Employees have been socialized to adopt a set of attitudes and beliefs about human rights and its relationship to the Bank. The taboo against talking about human rights is part of a larger taboo against explicitly addressing ethical issues in general. Even though employees clearly face moral or ethical dilemmas in their work, they are usually not encouraged to speak about them publicly. Many employees often refrain from discussing rights and wrongs and instead prefer to talk about trade-offs. According to a senior official, much of the Bank’s work revolves around an ethos of technical excellence and objectivity. When this official met with staff about ethical issues, she found that “people [felt] that they are expected to do things or asked to do things in countries which they’re not necessarily comfortable with.”4 She further mentioned that the Bank’s institutional culture with regard to ethics contrasts to that of the Office of the United Nations High Commissioner for Refugees (UNHCR), where she briefly worked. At the UNHCR, ethical and moral issues were constantly on the agenda and discussed openly among staff.5 What are the origins of the human rights taboo? Employees that I interviewed most often cited legal restrictions in the Bank’s Articles of Agreement as the primary reason for why they do not discuss human rights or explicitly cite them in project documents. The restrictions arise from provisions in Article IV, Section 10 and Article III, Section 5(b).6 Article IV, Section 10 prohibits political activity and permits only economic considerations in decision making: The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighted impartially in order to achieve the purposes stated in Article I. 3

4 5 6

For instance, some Bank documents have referred to human rights, and employees do indirectly work on human rights, particularly economic, social, and cultural rights (as I discuss later in this chapter). Interview with official, Office of the President, World Bank, in Washington, DC (May 15, 2006). Ibid. Articles of Agreement of the International Bank for Reconstruction and Development, July 22, 1944.

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Article III, Section 5(b) limits the factors that the Bank can consider in the granting of loans and restricts political considerations: The Bank shall make arrangements to ensure that the proceeds of any loan are used only for the purposes for which the loan was granted, with due attention to considerations of economy and efficiency and without regard to political or other non-economic influences or considerations.

These provisions have stymied the Bank’s explicit promotion of human rights, particularly civil and political rights, which have been interpreted as political considerations or interferences in the political affairs of member countries. Bank officials have historically viewed economic, social, and cultural rights as less problematic because they are considered to be more consistent with the Bank’s mandate. Another reason for the taboo has been political constraints arising from the Bank’s Board of Executive Directors, which is deeply divided over the issue of human rights. Some member countries like China and Saudi Arabia are highly opposed to an explicit human rights agenda that would include the protection of civil and political rights (which they view as a reflection of Western values). Other countries like India and Brazil (middle-income countries that are responsible for a substantial portion of the Bank’s revenue) fear that a focus on human rights would increase transaction costs for loans. Their view is that if the institution used human rights protection as a conditionality on lending, it would adversely affect many borrower countries with poor human rights records while not impacting similarly situated donor countries. Some countries also caution that a human rights conditionality would significantly hinder the Bank’s poverty reduction goals and turn the institution into a policeman for the developing world. There are a number of other related reasons that employees cite for why they do not address human rights. They include (i) human rights work is beyond the Bank’s mission of poverty reduction, and other organizations like the UN have the mandate and expertise to work on this issue; and (ii) human rights and a rights-based approach to development are difficult to operationalize because they are too abstract and vague. The strongest enforcers of the taboo have historically been lawyers in the Legal Department, although there is often self-policing among employees. Because Bank lawyers are responsible for interpreting and applying the Articles of Agreement, they have been the most cautious in referring to human rights in project documents. As recently as 2004, when the Social Development Unit wrote its strategy paper, the Legal Department required the deletion of any reference to “human rights.” The authors of the strategy paper had to resort to using less “political” words like inclusion, cohesion, and accountability (World Bank, 2005). It is therefore surprising that certain members of the Legal Department are currently spearheading initiatives

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on human rights, including the Measuring Justice Initiative and the Human Rights Indicators Project. According to the Deputy General Counsel, the Legal Department felt a particular burden to take up the human rights agenda because it had been policing Bank discourse on the topic for so many years.7 THE TABOO’S EVOLUTION

Internal and external pressure over the past two decades has influenced the Bank to reexamine its approach to human rights although not to significantly alter it. Nongovernmental organizations (NGOs) like Human Rights Watch, the Bank Information Center, and Oxfam International have pressured the institution to adopt a more holistic approach to development and recognize that issues like human rights are directly related to the Bank’s economic aims. They have joined internal advocates, academics, and human rights experts like Mary Robinson, former UN High Commissioner on Human Rights, in stressing the interdependence between human rights and development. Moreover, the Bank has recently felt pressure from some private financial institutions that have adopted a more progressive stance on human rights out of a concern for their public image and the reputational risk of committing human rights abuses. In 1995, James Wolfensohn became President of the Bank and ushered in an era of more open dialogue on human rights. According to Wolfensohn, it took approximately three to four years to educate staff that human rights was an important issue within the context of the Bank’s work.8 Under his leadership, the Bank published its first official report on human rights, which recognized the institution’s role in promoting and protecting human rights but stopped short of stating that it had an international legal obligation to do so (World Bank, 1998). Since the report’s publication in 1998, Bank documents and speeches have periodically mentioned human rights, although the Bank’s Board of Executive Directors has continued to oppose its official incorporation into institutional policy.9 As official rhetoric has adjusted over time, the type and extent of the human rights taboo has changed as well. As I will further describe later in this chapter, there have been various manifestations of this change within the institution.

7

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Interview with Deputy General Counsel, Legal Department, World Bank, in Washington, DC (May 25, 2006). Interview with James Wolfensohn, former President, World Bank, in New York, NY (June 14, 2007). See Department for International Development, Strategies for Achieving the International Development Targets: Human Rights for Poor People 16 (2000) (concluding that “the reluctance of some of [the Bank’s] shareholders . . . to incorporate human rights into its development work could constrain its poverty reduction strategies”).

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Selective Application of the Taboo (by Topic and Country) The taboo against working on and speaking about human rights has not applied equally to all rights, sectors, and countries. Historically, the institution has more openly engaged in economic, social, and cultural rights, as opposed to civil and political rights. Many Bank projects and programs directly target the realization of these rights, such as the rights to education and health. Civil and political rights have not been recognized as part of the Bank’s work because they have been interpreted as beyond its mandate and not directly related to its mission of poverty reduction. Although the Bank has begun to pay attention to such issues as legal and judicial reform and corruption, it still refuses to fund police, prosecutors, and prisons. A justice reform project typically only provides funding for the training of judges and administrative support for courts, but not for the criminal justice sector. The inability to fund police and prisons has become a huge impediment for Bank project managers working in such countries as the Sudan, where support for these components is critical in any development initiative.10 As a result, other donors like the UNDP have taken a leadership role in administering criminal justice projects in these countries. The Bank has addressed human rights more openly with regard to particular rights-holders, including indigenous peoples and women. For instance, its Indigenous Peoples Policy is its only operational policy that explicitly uses the term “human rights”: It aims to ensure that “the development process fosters full respect for the dignity, human rights, and cultural uniqueness” of indigenous peoples. The Bank does not have a similar policy to address the rights of other vulnerable peoples, such as ethnic minorities, although some of its projects have targeted distinct minorities like the Roma in Eastern Europe or Afro-descendants in Latin America. In the area of gender equality, the Bank has applied a rights-based approach as delineated in its 2001 report, Engendering Development – Through Gender Equality in Rights, Resources, and Voice. In addition, its Country Policy and Institutional Assessments (a rating system for determining resource allocation to the poorest borrower countries) includes ratification of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) as a criterion for assessment. Moreover, Bank employees selectively apply the taboo on projects in certain countries but not others. For example, they avoid using the term or taking a rights-based approach in influential countries that have voiced strong opposition, like China and Saudi Arabia. Given that these countries are considered important borrowers from the Bank and a significant source of its revenue, employees working on projects in these countries are often pressured to avoid explicit references to human rights for 10

Interview with official, Legal Department, World Bank, in Washington, DC (May 1, 2006).

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fear of angering government officials. They know that these countries could easily seek funding from the private sector if they became dissatisfied with the Bank. Let us compare the approaches used for two Bank projects related to HIV/AIDS control, prevention, and/or treatment: the Tuberculosis and HIV/AIDS Control Project in the Russian Federation (approved on April 3, 2003) and the HIV/AIDS Prevention and Control Project in St. Lucia in the Caribbean (approved on July 6, 2004). There is a significant disparity between how, and the extent to which, each project explicitly frames HIV/AIDS as a human rights issue. According to the UN Commission for Human Rights’ international guidelines on HIV/AIDS and Human Rights (1997), the realization of rights by people living with HIV/AIDS requires protection against stigma and discrimination with regard to access to health, education, and social services.11 The St. Lucia project includes components on reducing stigma and discrimination as well as legal reforms for ensuring universal civil, economic, and social rights. The Russia project, in contrast, emphasizes prevention and control, and also provides treatment for persons infected. There are no components on stigma and discrimination nor any explicit recognition of the need to ensure universal civil, economic, or social rights, as is mentioned in the St. Lucia project. The decision not to frame HIV/AIDS in human rights terms in the Russia project is in large part due to politics in the borrower country. The Russian government is more cautious about human rights and HIV/AIDS, which are viewed as sensitive, politically charged topics. Even if the St. Lucian government took the same view, Russia holds much more influence than St. Lucia over Bank project design because it is a major borrower from the Bank and one that the Bank does not want to upset.12 Thus, staff members have applied divergent human rights approaches based on the country in which they are working. An employee that I interviewed who is sympathetic to the rights-based approach nonetheless did not apply it when implementing projects in very low-income countries: In a country like Haiti where the budget is so small, it wouldn’t be very helpful to talk to them about a broad human rights approach to everything they need to do. And then this poor government . . . would say, “Oh, what do I do first?” And we’d give them a list of 600 things, and they’d throw in the towel and what would we do then? So based on what their budget is and where we think they have capacity and where there’s some ownership and communities around [certain issues], that’s where you move forward first and hopefully produce results that then gives them 11

12

International Guidelines on HIV/AIDS and Human Rights, UNHCR res. 1997/33, UN Doc. E/CN.4/1997/150 (1997). For a more detailed comparison of the two projects’ treatment of HIV/AIDS as a human rights issue, see Sarfaty, 2007.

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a bit more legitimacy and credibility, and you push a bit further . . . So we had to sit down and decide what is the trade-off between focusing on infrastructure and education in Haiti before health.13

Determining how to make such a trade-off is difficult for many employees and leads to inconsistent implementation of projects across countries. Explicit Exceptions to the Taboo There are settings in the Bank where the human rights taboo does not apply at all. Internal critics have made space within the institution where controversial topics like human rights can be discussed and alliances can be forged with external advocates. The most prominent example is the Friday Morning Group (FMG), which serves as a tolerant venue, or an “oasis” in the words of one member, for the exchange of new ideas.14 Since 1979, this small group of staff has met every Friday to candidly discuss the values of development work. Participants and outside speakers are asked to talk about the ethical values that motivate their work, and how they relate to the values supported by the Bank. The group is considered “a rare ‘safe space,’ a place where there is respectful support for ideas and gentle or not so gentle challenges and questions” (Cadario and Marshall, 2006). Many issues that were once considered controversial and became mainstream in the Bank over time were first introduced at the FMG. Examples of such topics include the environment, corruption, debt relief, and indigenous peoples.15 Employees have also discussed ethical dilemmas in projects, such as the controversial China–Western Poverty Reduction Project in 2004 that led to protests by human rights NGOs on behalf of the people of Tibet. At the time of the protests, the FMG scheduled a discussion between a Bank director from the East Asia region and representatives from the International Campaign for Tibet and two other NGOs. In this respect, the FMG has encouraged an open exchange of views regarding important human rights issues facing staff. Another alternative outlet that has recently sprung up within the institution is the Critical Development Thinking (CDT) Group, which is composed of young Bank employees and external activists who share a commitment to social justice and seek to bring critical perspectives into their work. In addition to organizing discussions and debates on alternative approaches to development, the CDT Group met with 13

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Interview with official, Civil Society Team, Latin America and Caribbean Region, World Bank, in Washington, DC (May 23, 2006). Interview with official, Operations Evaluation Department, World Bank, in Washington, DC (November 16, 2005). Interview with official, Global Development Learning Network, World Bank Institute, in Washington, DC (November 10, 2005).

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former Bank President Paul Wolfowitz and established a regular channel with his office to share recommendations on promoting accountability. To take action on priority topics like human rights, ethics, and social justice, the CDT Group has cooperated with NGOs like the Bank Information Center and has invited speakers from social movements like the landless workers movement in Brazil. In doing so, members of the CDT Group are seeking external alliances to bring up concerns like human rights that are still taboo within many parts of the institution. Variations of the Taboo Although there may be a taboo among many employees on explicitly invoking human rights, the taboo has not extended to implicit human rights work. Some Bank officials are committed to human rights principles but frame their work in alternative terms. Scholars have referred to this practice as “rhetorical repackaging” (Uvin, 2004). In addition, there are officials who adhere to the capabilities approach, which shares many of the same concerns as the human rights approach such as human freedom and dignity.16 To capture some of the meanings behind human rights without using the term, Bank employees have referred to other principles like social development, participation, inclusion, social accountability, transparency, good governance, and empowerment. These terms are considered “bywords” that, as one employee explained, are simply “different filters on the same lens.”17 Many employees prefer them to rights language because they are considered less political, more easily defined, more receptive to measurement, and more negotiable to trade-offs. As a result, “you avoid all the internal obstacles as well as our Board’s obstacles, and you could still do the same job.”18 Yet, these bywords do not carry the same legal and rhetorical weight as human rights. One Bank lawyer that I spoke to expressed misgivings about “how much violence you do to the concept of human rights by going very far under other banners and other discourses.” He was frustrated over “the lack of recognition [among Bank staff] of the limits of doing human rights work but calling it something else.”19 Thus, one way that the taboo has changed over the past few years is that some

16

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19

However, according to Amartya Sen, human rights is a much broader framework than the capabilities approach because it includes due process rights (e.g., fair treatment) that are not considered to be capabilities. (Interview with Amartya Sen, Professor of Economics, Harvard University, in Washington, DC, May 23, 2006). See also Sen, 2004, 336. Interview with official, Operations Evaluation Department, World Bank, in Washington, DC (November 16, 2005). Interview with official, Civil Society Team, Latin America and Caribbean Region, World Bank, in Washington, DC (May 23, 2006). Interview with official, Legal Department, World Bank, in Washington, DC (January 17, 2006).

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employees are adhering to human rights principles but framing them in alternative terms. The question remains whether this type of framing dilutes the substance of human rights. Another variation of the taboo is employees’ support for particular interpretations of human rights and avoidance of others. The recent human rights efforts by members of the Legal Department reveal a preference for an instrumental interpretation over an intrinsic interpretation of human rights, which is grounded in the international human rights legal framework and defines human rights as legally binding duties on states. The preference for an instrumental interpretation arises from the dominance of economists and an economic way of thinking within the institution. A senior economist observed: Things really happen in the Bank when an economic case could be made for them. You put it in economic language. This is how corruption came in. It sort of became acceptable internally to talk about corruption when people could show with cross-country regressions that it’s related to lower growth. Similarly, [that’s what happened with] some of these governance indicators related to democracy, and transparency of law, and social capital. People needed [empirical evidence] to say that okay, it’s alright for us to work on this. So one obstacle would be to try and articulate rights issues in the way that economists could understand.20

Because of the need to appeal to economists in the Bank, the lawyers leading the current initiatives have favored an instrumental framework, which provides a functionalist rationale for promoting human rights (as a means to an end) and measures their value based on whether they enhance development effectiveness and make good business sense. Some employees perceive this approach as easier to operationalize because it is more flexible to the resource constraints that development practitioners face in borrower countries. The current Measuring Justice Initiative and Human Rights Indicators Project reflect this empirical approach to value-normative concepts. A TENSION BETWEEN PRINCIPLES AND PRAGMATISM AT THE WORLD BANK

The selective application of the human rights taboo and the variations on and exceptions to it suggest that the Bank’s approach to human rights is not uniform. How are we to understand the conflicting approaches within the institution and the evolution of the taboo over time? I contend that there are contradictions within 20

Interview with official, Development Research Group, World Bank, in Washington, DC (March 14, 2006).

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the Bank’s organizational culture that reflect a tension between principles and pragmatism (i.e., a tension between pursuing normative, intangible values and goals, and finding a practical way to solve problems), which may involve trade-offs between competing principles. The tension between principles and pragmatism is apparent in the internal struggles among Bank lawyers and within lawyers themselves over how to define and frame human rights. Many lawyers have welcomed an economic framing as the only entry point to bringing human rights into the institution. However, they are also concerned that human rights be used “in the right way,” referring to a legalistic interpretation.21 Because they view concepts like human rights and justice as abstract and somewhat ambiguous, they are attempting to empirically measure them so as to better operationalize them in projects. Such an approach is aimed at getting economists on board by instrumentalizing human rights and valuing them for their contribution to poverty reduction rather than for their intrinsic value. As one Bank lawyer declared, “The mainstream way of convincing and persuading people is an economistic way of seeing things. Unfortunately, all the other disciplines, like social development for example, are forced to use that language to make their case. And I think that’s unfair in a way. It’s raising the bar for their arguments to be accepted. [But] that’s really the dominant way of doing business [at the Bank].”22 Given their legal training, lawyers have worried over whether they are compromising on the substance of human rights. They recognize that there are risks in taking an overly technical approach to rights that uses empirical tools like indicators and checklists. They insist that it “is essential . . . that efforts to integrate human rights in development practice not compromise those key characteristics [of legal obligations and duties] in the process, and risk the impoverishment of rights discourse and the undermining of core values and objectives that human rights were conceived to realize” (Decker et al., 2005: 49). In an environment like the Bank where nearly everything seems to be subject to cost–benefit analysis, many employees are troubled by principles that appear to be non-negotiable and not subject to trade-offs. There are costs to trying to commensurate seemingly incommensurable values. In her analysis of the struggle between the Yavapai Indian community and the Bureau of Reclamation over a dam in Arizona, Wendy Espeland explains that the Bureau’s attempt to translate land into instrumental terms led to political resistance by the Yavapai (who viewed land as an incommensurable value) and a reinterpretation of their collective identity (1998: 40). In the context of the Bank, the conflict over economizing human rights 21

22

Interview with Deputy General Counsel, Legal Department, World Bank, in Washington, DC (May 25, 2006). Interview with official, Legal Department, World Bank, in Washington, DC (May 1, 2006).

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is leading to a reevaluation of professional identities (particularly among lawyers) as well as the institution’s own identity. The tension between principles and pragmatism that arises over human rights is part of a larger conflict over the Bank’s identity. Although the Bank’s explicit mission is poverty reduction, it is a vague goal that is vulnerable to multiple interpretations. As the Bank has taken on issues like the environment and judicial reform, internal and external critics have accused it of “mission creep,” which refers to the shifting of activities away from an organization’s original mandate (Einhorn, 2001: 22). One could distinguish between the Bank’s explicit mandate and multiple implicit mandates, which cover a range of poverty reduction–related issues. There are internal battles over what constitutes the Bank’s true mission and what topics deserve to be funded more than others. For example, when Bank managers have resisted issues like human rights (particularly civil and political rights), they have defined them as outside the Bank’s mandate and thus unsuitable for the organization’s work program. Other issues that are viewed as implicitly related to the Bank’s core mission, such as gender and social development, are given fewer resources. As a result, advocates for these issues have attempted to frame them as more pragmatic and measurable, in line with the mainstream economic development goals of the Bank. For example, Bank sociologists and anthropologists in the late 1990s and early 2000s aimed to package the concept of social capital within an economic framework to give it legitimacy. Yet in doing so, many of them struggled with the tension between principles and pragmatism. They tried to design a concept that “could readily engage in conversations with the economic arguments underpinning much of the Bank’s activity” (Bebbington et al., 2004: 42). They believed that if social capital could be quantified and discussed econometrically, it could bridge the gap between social development specialists and economists. Yet, as with the debate over how to frame human rights, several non-economists critiqued this approach. They argued that converting social capital into a quantifiable asset “independent of the broader political economy does unacceptable violence to any concept of social relationships” (Bebbington et al., 2004: 46). Would mainstreaming such concepts as social capital within an economic framework dilute them and cause irreparable damage? If so, is this an acceptable cost because it may be the only way to introduce social issues into an economist-dominated institution like the Bank? Here we see the risks of translating human rights too far into the existing power structure. As Sally Merry observes, if human rights “are translated so fully that they blend into existing power relationships completely, they lose their potential for social change” (Merry, 2006: 135–136). This risk is part of the dilemma of human rights framing and “vernacularization” strategies: They will not induce radical, long-term change if they do not challenge existing power structures and are too compatible with dominant ways of thinking (Merry, 2006: 136, 222). Yet they also need to resonate

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with local cultural understandings to appear legitimate and become part of local rights consciousness (Merry, 2006: 137, 222). This dilemma raises a number of important questions: Can human rights be so extensively vernacularized that they lose their essential core, or even contradict their fundamental meanings? Must human rights retain a connection to a legal regime (and be linked to state obligations deriving from international law) to truly qualify as “human rights” and not another concept like “empowerment”? My research suggests that the human rights vernacularization process is a continuous renegotiation of meanings among actors that constantly struggle for power. In this way, human rights can function as an adaptable technology rather than just a fixed set of principles. INTERPRETIVE PLURALISM OVER HUMAN RIGHTS

In the introduction to this volume, Kamari Clarke and Mark Goodale seek to understand “the multiplicity of justice as it is constituted and reconstituted discursively, legally, and politically” (Introduction, this volume). This chapter similarly uncovers the plural nature of the human rights framework and problematizes the relationship between human rights and law. The fragmented character of human rights is due to its multiple and sometimes contradictory roles (e.g., as a tool of empowerment for weak, dispossessed individuals; as a unifying goal for social movements; and as a symbol of the U.S.-led neoliberal project). As Austin Sarat and Thomas Kearns argue, “the allure of human rights persists because they can, and do, mean many things at once . . . They both constitute us as subjects and provide a language through which we can resist that constitution and forge new identities” (Sarat and Kearns, 2001: 6–7). Human rights can be a double-edged sword because they can simultaneously be enabling and constraining (see Cowan, 2006). Many anthropologists have adopted a discursive approach to human rights that “radically decenters international human rights law” and assumes that “social practice is, in part, constitutive of the idea of human rights itself” (Goodale, 2007: 8; see also Baxi, 2002). They have analyzed the paradoxical nature of rights discourse, as in the colonial context where the discourse’s dual registers of primordial sovereignty and radical individualism are simultaneously operating (Comaroff, 1995). They have also studied the impact of human rights on local social and political contexts, whether in a community or an international institution. Such studies have addressed the interaction and possible conflicts between human rights discourse and other global normative discourses, such as those of justice or human dignity (Rajagopal, 2007: 280). What have been underemphasized in existing studies are the power dynamics between the human rights discourse and other discourses and, most importantly, between human rights interpretations themselves. Multiple discourses and their

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related agendas (including gender, corruption, and the environment, to name but a few) have entered the Bank over the past two decades. Depending on which employee you ask, these discourses may operate in tension with the Bank’s dominant discourse of economic development. Whether these discourses are commensurable or not, and how they interact, depends on how they are interpreted. According to my research, their interpretation in turn is related to the professional and social norms of employees. Are the discourses of human rights and development reconcilable? An economist, lawyer, and sociologist may respond differently, based on their professional training and their respective definitions of human rights and development. Moreover, a civil society advocate or an Executive Director on the Bank’s Board may hold distinct interpretations as well. My research focuses on the interpretive pluralism over human rights among bureaucrats and, in particular, the conflict between the intrinsic and instrumental interpretations that closely correspond to different professionals (e.g., lawyers and economists, respectively). The power relationship between interpretations depends on the institutional and social context where human rights are being situated. As I described in this chapter, the lawyers leading the Bank’s Measuring Justice Initiative are attempting to operationalize a human rights agenda by applying an instrumental interpretation that resonates with the economists and economic thinking that are dominant within the institution. Thus human rights norms are being “economized,” or framed for economists, to fit with the Bank’s organizational culture. This study demonstrates that the conditions under which human rights are translated and diffused within an institution are shaped by the discursive politics among bureaucratic experts. ACKNOWLEDGMENTS

I would like to thank John Comaroff, Kamari Clarke, Mark Goodale, Joseph Masco, Sally Merry, and Adam Saunders for their invaluable comments, and my colleagues at the World Bank for their cooperation and support. References Baxi, Upendra. 2002. The Future of Human Rights. Oxford: Oxford University Press. Bebbington, Anthony, Scott Guggenheim, Elizabeth Olson, and Michael Woolcock. 2004. Exploring social capital debates at the World Bank. The Journal of Development Studies 40: 33–64. Cadario, Paul, and Katherine Marshall. 2006. What on Earth is the Friday Morning Group? World Bank Group Staff Connections Intranet. Comaroff, John L. 1995. The discourse of rights in Colonial South Africa: Subjectivity, sovereignty, modernity. In Sarat, A. and Kearns, T.R. (eds.). Identities, Politics, and Rights. Ann Arbor: University of Michigan Press. pp. 193–236.

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Cowan, Jane. 2006. Culture and rights after culture and rights. American Anthropologist 108: 9–24. Decker, Klaus, Siobh´an McInerney-Lankford, and Caroline Sage. 2005. Human Rights and Equitable Development: “Ideals,” Issues, and Implications. Background paper for World Bank 2006. Einhorn, Jessica. 2001. The World Bank’s mission creep. Foreign Affairs 80: 22–31. Espeland, Wendy. 1998. The Struggle for Water: Politics, Rationality, and Identity in the American Southwest. Chicago: The University of Chicago Press. Goodale, Mark. 2007. Introduction: Locating rights, envisioning law between the global and the local. In Goodale, M. and Merry, S.E. (eds.). The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge, UK: Cambridge University Press. pp. 1–38. Merry, Sally Engle. 2006. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: The University of Chicago Press. Rajagopal, Balakrishnan. 2007. Introduction: Encountering ambivalence. In Goodale, M. and Merry, S.E. (eds.). The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge, UK: Cambridge University Press. pp. 273–284. Sarat, Austin, and Thomas R. Kearns. 2001. The unsettled status of human rights: An introduction. In Sarat, A. and Kearns, T.R. (eds.). Human Rights: Concepts, Contests, Contingencies. Ann Arbor: University of Michigan Press. pp. 1–24. Sarfaty, Galit A. 2007. Doing good business or just doing good: competing human rights frameworks at the World Bank. In Morgan, B. (ed.). The Intersection of Rights and Regulation: New Directions in Sociolegal Scholarship. Aldershot: Ashgate Press. pp. 93–106. Sen, Amartya. 2004. Elements of a Theory of Human Rights. Philosophy & Public Affairs 32: 315–356. Uvin, Peter. 2004. Human Rights and Development. Bloomfield, CT: Kumarian Press. World Bank. 1998. Development and Human Rights: The Role of the World Bank. Washington, DC: The World Bank. World Bank. 2001. Engendering Development: Through Gender Equality in Rights, Resources and Voice. Washington, DC: The World Bank. World Bank. 2005. Empowering People by Transforming Institutions. Washington, DC: The World Bank.

PART II JUSTICE, POWER, AND NARRATIVES OF EVERYDAY LIFE

7 The Victim Deserving of Global Justice Power, Caution, and Recovering Individuals Susan F. Hirsch

INTRODUCTION

Since the late 1990s, victims of mass atrocity have been led to believe that they can expect to be included to a greater extent than previously in international criminal prosecutions of those accused of harming them through genocide, crimes against humanity, and war crimes. Most notably, the new International Criminal Court (ICC), established by the Rome Statute in 1998, is mandated to address victims’ interests in ways that go beyond previous responses to the world’s gravest crimes, such as those undertaken through the ad hoc tribunals after the conflicts in the former Yugoslavia (International Criminal Tribunal for the former Yugoslavia; ICTY) and Rwanda (International Criminal Tribunal for Rwanda; ICTR). The ICC’s approach to victims has been labeled “innovative,” and a New York Times Magazine cover story touted Luis Moreno-Ocampo, the ICC’s first Chief Prosecutor, as a beacon of hope for victims in the Darfur region of Sudan and of other conflicts involving mass violence. In public presentations, the ICC Chief Prosecutor routinely includes pictures of victims (e.g., a maimed child lying in a hospital bed in northern Uganda) to make the point that certain individuals deserve justice from the global community. By drawing on such images, he and other supporters of the ICC highlight the significance of his decision to bring what he refers to as “global justice” into this particular conflict and also the assumption that the ICC is obligated and committed to delivering justice to victims. The development of the ICC (and international criminal justice, more generally) has proceeded hand in hand with a broadening of perspectives on what kinds of institutions and procedures might best provide justice to victims of mass violence. Occupying the same time frame as the ICC’s establishment has been the proliferation of other judicial and quasi-judicial efforts, such as ad hoc tribunals, truth and reconciliation commissions, official apologies, memorials, and lustration. Victims, who are enabled to participate more directly in some of these processes than in 149

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criminal prosecutions, have also been at the forefront of calls for restitution, reconciliation, truth tellings, and “local” or “culturally specific” justice as responses to violence (see, e.g., Hayner 2002; Minow 1998). Support for alternatives to formal judicial proceedings from some sectors turns on the assumption that certain of the processes mentioned offer victims a more satisfying approach to justice than retributive proceedings. The active pursuit of responses to mass atrocity that fulfill victims’ interests explicitly has influenced the development of international criminal law’s approach to victims by, for instance, insisting that attention to victims be expanded beyond their treatment in earlier tribunals, yet the perception remains that responses to mass atrocity other than international retributive proceedings would more closely address victims’ interests. A significant emerging perspective is that victims might miss out on effective and satisfying experiences of justice, if they actually pursue or receive the global variety. That perspective drives a normative project that has as its goal the reform of international responses to mass atrocity. One prominent type of reform effort foregrounds victims’ interests – particularly the interests of those individuals most harmed by the conflict rather than bystanders or the rest of the world community – in determining the forms of justice most appropriate after mass atrocity. The charge that international criminal justice falls short of satisfying victims is only one among a wide range of criticisms of these new initiatives. In one sense, invoking victims’ justice needs as a critique of the current approaches in international law makes a pragmatic claim that acknowledges the importance of satisfying victims who might then forego the pursuit of revenge and, in another sense, makes a moral claim that carries weight, particularly to a public audience. Scholars, legal professionals, victims’ advocates, and the institutions that they represent routinely ask whether the ICC is living up to its promises to victims. The motivations behind this question reflect the different perspectives of, for example, scholars engaged in developing an international law closely resembling domestic processes, or nongovernmental organizations (NGOs) seeking to expand victims’ rights, or critics of the ICC looking for flaws, among other widely varying positions. Those persons or groups who raise the questions are not necessarily advocates for victims, but their emphasis on service to victims as a metric of the success of international justice is an important intervention into the discourses about justice that are the subject of this volume. The increasing visibility of a discourse of global justice built around the interests of victims offers further evidence of both the moral weight of victim as a subject position and the new availability to a variety of political projects of the figure of the victim deserving of global justice. This chapter directs attention to the emergence of a discourse that advocates for international justice to address more explicitly victims’ interests and needs. As outlined in this volume’s Introduction, this discourse operates amid other discourses

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of justice that have their own dynamic interactions. For instance, attempts to develop universally applicable approaches to justice are repeatedly countered by calls for local justice options, that is, by efforts toward the vernacularization of justice. Claims for justice made by and on behalf of victims offer a related discourse that invokes a figure with tremendous symbolic power and moral resonance. At the same time, justice options that foreground victims’ interests tend to embrace vernacular, rather than universal, forms of justice. Thus efforts to reform global justice by invoking victims’ interests direct attention to justice that is labeled variously as local, culturally relevant, representative of the context of the violence, and non-Western, and is generally contrasted to the liberal legalism assumed to underlie the ICC and other international options. Building an approach to justice around victims’ interests and in relation to local prerogatives is compelling in moral terms (and for other reasons), yet, as argued later in this chapter, it is deeply problematic as the grounding for a theory of justice after mass atrocity and other crimes warranting the attention of the global community. Accordingly, this chapter offers a critical perspective on the project of situating the figure of the victim deserving of global justice at the center of debates over what form justice can and should take. This next section describes the role of the victim deserving of global justice in recent efforts to reform international responses to mass atrocity. It is important to appreciate the role that this new figure is coming to play in relation to new institutions and discourses of justice. One prominent reformer advocates that the international community embrace the vernacularization of justice in seeking remedies after mass atrocity. This approach would necessitate amassing information about the local justice options available in particular contexts and also about victims’ justice interests specifically. A central message of this chapter is to caution those reformers who would turn to anthropological and other social science evidence of local justice or victims’ interests as they engage in the normative project of making global justice more responsive to victims. This message is further justified through a case study of debates over victims’ interests in the conflict in northern Uganda. The perspective that victims are more interested in local justice and benefit more from it than international forms was expressed during heated exchanges in the months after the government of Uganda referred the conflict in that country’s northern region to the ICC. In that highly political moment, various factions championed versions of local justice, national justice, and international justice as offering the best response to a long and violent conflict. My analysis of a critical period in this debate reveals the wide range of claims made about victims and their justice interests and thus highlights the difficulty of determining victims’ justice interests. As well it directs attention to fundamental problems behind the empirical project of assessing local justice mechanisms. Specifically, given current approaches to justice, the international community is not well positioned to assess claims made about the

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cultural authenticity and/or efficacy of practices described as local justice. Even the seemingly straightforward call to ask the victims what they want runs into the epistemological problem of generating empirical research on individuals whose shifting subjectivity is an all too common experience. Thus, as argued in the conclusion, normative projects toward law reform might not easily find empirical support for the vernacularization of justice. Accordingly, the concluding section raises the question of whether what is needed to develop international responses to mass atrocity is deeper interrogation of victims’ interests, including in local justice, as envisioned by some reformers, or a much broader inquiry into the notion of justice as proposed by the editors of this volume. THE VICTIM DESERVING OF GLOBAL JUSTICE

The victim deserving of global justice is a contested figure still under construction almost a decade after passage of the Rome Statute, which explicitly recognized victims’ needs and interests.1 Even so, that emergent figure plays a key role in debates over responses to mass atrocity. Many iterations of the debates over whether existing remedies for mass atrocity are appropriate or efficacious express concern for victims and the particular interests they represent. Commentators question whether survivors of mass atrocity, those harmed, and the families of those harmed and killed appreciate, recognize, benefit from, or endorse one or another remedy, including international justice. In many instances the assertion or assumption is made that victims have specific interests (including in justice) following conflict and that the right remedy – whether legal, extralegal, or something yet unanticipated – will satisfy those needs. Very often the concern with victims’ interests is broadened to the notion of societal recovery, sometimes framed as reconciliation or peaceful coexistence. Commentators writing about international institutions routinely charge that the current international legal mechanisms are not serving victims’ needs or fulfilling their interests with respect to justice and recovery whether narrowly or broadly conceived. Their arguments vary but often implicate the remoteness – in time, place, and manner – of international justice from the site of the violence. To be fair, concerns that international legal remedies fail victims are rarely the primary charge of critics, because of the indeterminate nature of “victims’ rights” under international law and most domestic legal regimes. Recent scholarship from a variety of perspectives has raised other serious foundational questions about existing

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The Rome Statute (Rome Statute of the International Criminal Court, 2002), which member nations of the Assembly of States Parties (ASP) ratified in sufficient numbers to establish the International Criminal Court, allows for victims’ needs and interests to be addressed by the Court in ways that go beyond previous initiatives in international criminal justice.

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forms of global justice as a response to the world’s gravest crimes (see, e.g., Arsanjani and Reisman, 2005; Drumbl, 2007; Garkawe, 2003; Glickman, 2004). Some of the most thoughtful critique centers on the problematic relationship between international law and national sovereignty (see, e.g., Clarke, 2007, 2009; Fiss, 2007). Debates over the kind of justice that victims might prefer or require serve as a reminder that the establishment and early development of new global institutions is intertwined with the constitution of new global subjects. For this reason alone the figure of the victim deserving of global justice warrants scholarly attention, as do the processes – in terms of law, social relations, and scholarship – through which it is shaped. The constitution of a new subject through those new options has implications for specifying the productivity, in a Foucauldian sense, of an emergent institution of justice. Moreover, scrutiny of the contestations around this new subject can reveal the multiple discursive forms operating in relation to global justice and the convergences and contradictions among them. Notwithstanding the academic imperative of exploring a new justice institution, a purported moral imperative to do so lies at the root of recent critical perspectives on current approaches to global justice that highlight victims’ needs and interests. In the view of law professor Mark Drumbl, a lack of attention to victims in the construction of international legal remedies justifies his call for a radical assessment and reconstruction of existing institutions (Drumbl, 2007). In the provocative volume, Atrocity, Punishment, and International Law, and in earlier articles, Drumbl maintains that institutions of international law lack victimologies to inform their development. In calling for more adequate theories to support international remedies, Drumbl notes that those modeled on domestic criminal law fall short in several ways. For one, they fail to address the collective nature of the act of mass atrocity and the particular harms it causes. More appropriate approaches would reject the focus on individual perpetrators that is the hallmark of the liberal legalism underlying international law. As a second, related, failing, liberal legalist approaches do not address the culturally specific understandings of and needs for justice that the wide range of victims might express.2 Drumbl contends that, for reasons of efficacy and morality, those victims actually harmed should have a voice in determining the extent of international law’s role as a remedy after mass violence. This perspective leads him, and many others, to urge a reconsideration of international law that would “incorporate local voices, foster capacity, and integrate indigenous approaches to justice (whether legal or extralegal)” (Drumbl, 2007: 125). He envisions identifying a horizontal plane of justice options, any one of which could replace international 2

Mark Drumbl advises that “International criminal law interventions would do well to engage with those practices that actually reflect the customs, procedures, and mores of those individuals affected by violence (as perpetrators and victims)” (Drumbl, 2005: 549).

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prosecutions depending on the context, although he notes that each would have to comply with basic principles of international human rights conventions. The options would not, however, have to meet the higher bar of paralleling the rules, procedures, and practices of the ICC, which is entailed by the notion of complementarity articulated in the Rome Statute. That higher standard would require incorporating the same liberal legalist logic underlying institutions of international law that Drumbl questions as hegemonic. Drumbl’s insistence that “communitarian, distributive, and cross-cultural approaches” be incorporated into the justice options offered after mass atrocity reflects a contention shared by others that victims are ill-served by international institutions that take a narrow approach to their choices for justice (see, e.g., Orentlicher, 2007). In sanctioning the vernacularization of remedies for mass atrocity, the victimology that Drumbl calls for would assess a wide range of phenomena that might meet victims’ interests following mass conflict to determine which have a bearing on justice and what institutions might provide them or suitable substitutes. Thus, Drumbl’s victimology would survey many possible responses and, in offering the possibility that some would be acceptable, would likely challenge or push aside the current hegemonic role occupied by the liberal legalism of international law. This methodology could validate any number of postconflict interventions or remedies as appropriately undertaken in the name of global justice, such as, for example, community-based truth-telling ceremonies. The project of developing more adequate theories on which to build the normative project described requires considerable empirical information. For instance, persons or groups engaged in weighing justice options would need descriptions of local justice practices and their effects. As well, information about the needs and interests of victims would be integral to the reform projects. Requests for such information – especially the details of traditional or local practices designed to yield reconciliation, healing, truth, or justice – are often made with the expectation that it will be provided by anthropologists and other social scientists. Empirical evidence plays a crucial role in theorizing victims’ needs and interests, but the relation between developing a better or more useful victimology and obtaining information about victims has received little attention. The next section directs attention to several challenges to obtaining empirical research on victims and their justice interests by presenting an analysis focused on the conflict in northern Uganda. The difficulty of surmounting these challenges justifies my call for a cautious approach to centering a normative project on the interests of victims of mass atrocity. My intent is not to depict social science, particularly anthropology, as offering empirical examples (or questions about them) that render the world so complex that no reformist action seems possible. Rather, my critique is intended to stimulate debate over the relationship between normative and empirical

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projects as they relate to global justice and also to encourage the broader perspective on justice outlined in this volume. ADVOCATING FOR VICTIMS: THE NORTHERN UGANDA CONFLICT

Many reformers claim – with or without evidence – that victims of mass violence are more satisfied by and thus more interested in local remedies (whether justice or something else) than in international justice. This claim is made especially when violence has occurred in a less developed nation, where the population is assumed to be unfamiliar with Western-modeled legal institutions or more skeptical of systems that represent colonial legacies or current political hegemons. Scholars and practitioners concerned with conflict zones have intensified their study of victims’ justice options and preferences, particularly the range of remedies following mass atrocity and their efficacy. Such empirical evidence of victims’ justice interests could further the development of the victimology proposed by Drumbl and the kinds of vernacularization of justice after mass atrocity endorsed by various reformers. Yet my analysis of the example from northern Uganda raises questions about the status of knowledge produced about victims and their interests in local justice after mass atrocity. As demonstrated later in this chapter, the quest for empirical examples of local justice mechanisms is difficult for reasons ranging from epistemological to conceptual to logistical to ethical to problems of “translation” in its many senses. By exposing these vexing concerns, I mean to cast doubt on whether the quest for such evidence would ultimately serve the ends of developing a victimology more useful to the project of reforming international justice. Assessing Local Justice Options In late 2003, Uganda’s president, Yoweri Museveni, informed the ICC that his government was unable to prosecute those individuals responsible for extensive violence in the two-decade-long civil war and requested that the Chief Prosecutor initiate an investigation. The war had pitted Museveni’s government (and previous Uganda governments) against the Lord’s Resistance Army (LRA) (and previous incarnations). The LRA rebel group stood accused not only of battling against government forces but also terrorizing the local population throughout northern Uganda and the region. Accusations against them included kidnapping, rape, murder, use of child soldiers, and property destruction, among other crimes. The violence displaced thousands who had fled to camps that were rife with disease and despair. Among the ethnic groups living in the ravaged northern region, the Acholi was particularly hard hit not only by LRA rebels aggressively seeking their loyalty but also by virtue

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of long-term Ugandan government neglect of the region. Over many years, Acholi children were kidnapped and indoctrinated by LRA rebels who forced them into military and/or sexual servitude. Numerous attempts at peace negotiations had failed to produce an agreement, and earlier amnesties of LRA leaders – designed to end the conflict – were rescinded when violence broke out again. On July 29, 2004, the ICC Chief Prosecutor agreed to launch a formal investigation of the situation. In the fall of 2005, the ICC ended speculation by unsealing indictments for five LRA commanders, including LRA leader Joseph Kony. Around the time of the investigation and indictments, many NGO representatives, court personnel, legal commentators, media workers, politicians, and scholars took positions on ICC involvement in the conflict (e.g., Uganda’s Refugee Law Project, Human Rights Watch [HRW]). The fever pitch of discourse that they produced advanced a variety of arguments relating to, among other issues, jurisdiction (whether, e.g., local, national, or international law applied or should apply), criticism of the Ugandan president and/or the ICC prosecutor for playing politics, support for peace talks or for amnesties as against prosecution, and recognition that victims might be invested in local or traditional approaches to justice (for background, see Allen, 2006). Given the high stakes of a first ICC investigation and indictments, those persons who entered the international debate did not always feel compelled to have any direct connection to or knowledge of the local context, yet few held back from making strong recommendations. The sense of urgency grew after rumors of pending indictments became widespread in mid-2005. Many individuals and groups that contributed to the public discourse raised questions about whether international law should have any role at all in the Uganda situation (see, e.g., Kaiza, 2005). Some who rejected the ICC’s involvement urged the Chief Prosecutor to allow the ongoing peace process to follow its course. Those concerned with establishing the ICC and securing its reputation feared that the case was both too complex (with accusations of atrocity on both sides) and too marginal (a forgotten conflict in Africa) to be effective as the new court’s first (cf. Branch, 2007).3 Anxiety over bolstering the ICC’s legitimacy prompted some to point out that the inability of the Ugandan government or the ICC to capture the alleged perpetrators meant that the indictments would likely never result in prosecution. Because the indictments targeted the leadership of the LRA and not any members of the Ugandan government or the Ugandan People’s Defense Forces (UPDF), some deemed the

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Contrary to the general view that the Uganda case has mired the ICC in complex politics, Branch argues that the case was a perfect first endeavor for the ICC as it was a referral from a nation that had earned the respect of the United States and the World Bank and also put pressure on Sudan, a target of American approbation.

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investigation and indictments to be an unacceptably partisan approach to a conflict marked by atrocities attributable to all sides. Conflict resolution professionals urged the ICC prosecutor to foreground the need for peace, security, and stability in the region and, if necessary, to subordinate seeking accountability or at least to postpone the pursuit. For example, in a briefing arranged by U.S. Senate staffers in June 2005, Dr. Joyce Neu argued that the United States should place support in an ongoing peace process led by Ugandan mediator Betty Bigombe (Neu, 2005). (For background, see Lomo and Hovil, 2004; Quinn, 2004). In her view, the possibility of indictments had already repositioned amnesties as an option, especially for Joseph Kony (the LRA’s head) and other rebel leaders and, if approached appropriately, made the time ripe for a negotiated ceasefire. Speaking to the press several months later, Bigombe herself criticized the indictments as interfering with the negotiations that many believed had come close to achieving an agreement in late 2004. Other criticism came from the Uganda Amnesty Commission whose members worried that prosecuting the top commanders would not bring “reconciliation among the divided Acholi people” (IRIN, 2005). This perspective was countered by a minority – mostly positioned outside East Africa – who argued that only international legal intervention would end the long conflict (see, e.g., Payam, 2003). In a debate that played out through articles, reports, and briefings – sometimes hastily put together in an effort to sway an impending decision – the justice interests of victims were frequently invoked as grounds for supporting or opposing international prosecution (see, e.g., HRW, 2005; Southwick, 2005). For instance, Ugandan religious leaders issued statements that argued for an emphasis on peace and reconciliation to assist the local population to recover from the devastating violence. In March 2005, traditional Acholi leaders traveled to The Hague to make these claims directly to the ICC Chief Prosecutor, who issued a press release acknowledging their discussions. Yet some among their delegation later insisted that they supported ICC prosecution (Nalugo, 2005). Local organizations and international NGOs were prominently involved in promoting attention to local practices of conflict resolution and reconciliation and to the reemerging system of traditional political leaders needed to support and implement them (See, e.g., CRS, 2005; Liu Institute for Global Issues, UBC, 2005). The Acholi leaders’ discussions at the ICC included an endorsement of the practice of Mato Oput, a method of reconciliation between parties involved in serious crimes, such as homicide, and connected to Acholi religious practice. The ritualized activities that constitute Mato Oput include several ceremonies – some involving the exchange and consumption of various kinds of food – that effect reconciliation between individuals and clans after an intentional or unintentional killing (for background, see, e.g., Allen, 2006; Clarke, 2009; Dolan, 2000; Liu

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Institute for Global Issues UBC, 2005; Pain and Madit, 1997). Such rituals, which emphasize restorative justice and reconciliation across families and communities, were portrayed as a more effective means of achieving locally relevant goals, such as reintegrating child soldiers, as compared with retributive justice. The latter was seen as likely to prolong conflict and to offer little in terms of the social healing that might help Acholi society recover after the long years of violence. The point that victims would benefit more from these practices was made repeatedly (see, e.g., Southwick 2005). Many news articles and other commentaries mentioned local reconciliation practices in contrast to the ICC’s possible involvement and recommended that the ICC step back to allow traditional approaches to proceed. As the ICC’s involvement in the conflict increased throughout 2005, the debate over the role of local practices became heated. The defense of local practices garnered critics, especially from the international law arena, who disputed the relevance of local remedies for individuals accused of crimes against humanity. Across the discussions any individual practice, such as Mato Oput, was represented in quite different ways – as if reflected in a series of fun-house mirrors that exaggerated its purported positive or negative qualities. For instance, local practices of reconciliation were depicted as well-respected responses to conflict dating from “time immemorial” and with strong roots in Acholi culture. An article depicted Mato Oput as an “age-old rite” based on a “deep African tradition of forgiveness” (Victims of Uganda Atrocities Follow a Path of Forgiveness, 2005). By contrast, some commentators criticized Mato Oput and similar practices as recent inventions – long severed from Acholi cultural practice – that were being forced onto a population by leaders with questionable motives. Still others wondered whether victims might be ill-served by local practices based on “irrational” approaches to justice as compared with retributive options, including the “modern” practices of the Ugandan justice system. Such contrasting views not only were produced in the news media, but also reflected divisions among local and foreign scholars and consultants with expertise in the region. Issued in September 2005 by the Liu Institute, a comprehensive report about Mato Oput and other local remedies reviewed the various perspectives (Liu Institute for Global Issues, UBC, 2005). The Liu report, based on many interviews conducted in Uganda, raised an important practical concern about whether Mato Oput could be used to achieve justice after mass atrocity when the practice had been previously deployed as a response to much more limited (albeit serious) infractions and thus whether the practice itself, or those implementing it, were flexible enough to address these new purposes. The report reiterated claims made in earlier analyses of Mato Oput and related practices (Pain and Madit, 1997), including a controversial set of accusations about the possibility of manipulation of traditional practices by local political and religious leaders seeking power and influence (Dolan, 2000). This concern was also raised in a 2005 report by anthropologist Tim Allen, who charged

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that such neotraditions could tend to benefit some classes of Acholi over others (Allen, 2005).4 (See also discussions in Allen, 2006; Branch, 2007). At the same time as it recounted criticism from various sides, the Liu report offered clear evidence that Mato Oput and other rituals were being used successfully in several regions to reconcile previously antagonistic groups and to reintegrate former child soldiers. My point in briefly highlighting the various positions in the complex debate over the role of local reconciliation methods in northern Uganda is that depictions of the practices and evaluations of their efficacy were routinely tailored to serve perspectives that may have had more to do with staking out positions in the politics of ICC involvement in the region than in appreciating and representing the practices in all their complexity. Tim Allen’s examination of the ICC’s role in the Uganda conflict also offers evidence that a volatile political discussion might encourage skewing the description of a cultural practice in ways that could serve particular positions or ends (Allen, 2006). As well, Mato Oput and the other Acholi reconciliation practices were themselves transforming during this period (and in the years just before), as they were put to use to address a new kind of conflict and subjected to criticism of various sorts. The debate – with its array of depictions – prompts the question of how assumptions about culture and cultural practices figure into assessments of options for justice. The use of phrases like “time immemorial” and “deep cultural roots” suggests that local practices gain standing in the array of postconflict justice options through claims to a rather simple version of cultural authenticity, specifically a long and seemingly unbroken connection to use of the practice in the past. Accordingly, evidence that connects Mato Oput to “traditional Acholi culture” might be just the sort of data sought by Mark Drumbl and others in efforts to foster a conversation to determine whether local approaches should replace international justice. As the work of Tim Allen suggests, however, the evidence offered by anthropologists might position Mato Oput and other practices less as cultural survivals than as neotraditions with a relatively short history and more tenuous connection to the group’s previous practices. Despite an incontrovertible connection to earlier Acholi practices, their status as reinventions could make them, by definition, appear as much constructed in the modern moment as the ICC or other international options. I present this argument not as a critique of the utility of these practices in effecting postconflict reconciliation in northern Uganda, but rather to raise a concern about how such practices might be viewed in an international context where justice options are weighed against one another. Questions raised about the cultural authenticity of a particular practice might expose it as an effort at political manipulation that should be rejected rather than substituted for international justice. In the pressure to determine 4

Relatedly, in private conversations commentators questioned whether the ascension of local leaders in charge of these practices reversed some gains made in gender relations in Ugandan society.

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viable postconflict options, naming such practices as the shifting and transforming neotraditions that they likely are – which is what most anthropologists would be hard pressed not to do – risks deauthorizing them as appropriate substitutes for an international justice apparently ready for application. At the same time, a general appeal to the cultural salience to victims might weigh heavily against any charges of inauthenticity. The 2005 debate over Mato Oput, which continues at this writing, brought forward information and images that were more complicated and problematic than anticipated by those who would seek evidence of interest in local justice mechanisms to determine whether the ICC should cede jurisdiction in a particular conflict. The possibility of getting caught in a debate over whether a practice is authentic or constructed poses a barrier. Relatedly, the complex explanations and contextualizations that anthropology or other social science research might provide could easily undermine international recognition of a practice and thus cast doubt on the ability of a local population to manage its justice interests. The example begs the question of how, when, where, and from whom to gather evidence of local practices, not to mention assessments of their efficacy, whether in relation to victims and their preferences or to a society’s needs more generally. Vigilance in evaluating justice options is especially important when the local attachment of certain practices is used as a primary justification for their suitability in contrast to “foreign” international justice. In the years following the indictments in the northern Uganda conflict, many scholars have continued to sort out the complex politics of victims’ interests in international justice and various remedies available (see, e.g., Allen, 2006; Clarke, 2007, 2009; Huyse and Salter, 2008; Little, 2007; Office of High Commissioner for Human Rights, 2007). A longer view allows for reflection on an earlier moment when the heated debate resulted in perspectives perhaps more sharply drawn and articulated than would be the case after some passage of time and some clarification of strategies. This reflection leads me to two points. First, the year 2005 was a crucial moment in the northern Uganda conflict itself and in relation to options for its resolution and aftermath. In that highly politicized moment, partisan action and representations were, perhaps, the standard operating procedure. Second, the Uganda situation was the first ICC investigation leading to arrest warrants; thus, those commentators who weighed in went well beyond specialists in the region or local actors, and the political stakes were higher than they might be in subsequent cases when more issues and procedures have become established. The debate generated in such a context reflects the fierce advocacy of the moment, when evidence fails to be marshaled in ways that can easily lead to conclusions about appropriate justice mechanisms. What appears clear, however, is that the discourse offers little room for a complex view of culture, power, politics, authenticity, and the evolution of justice mechanisms and similarly little opportunity for asserting that local procedures be

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given a chance to acquire the legitimacy that will credential them as substitutes for international justice in the future. Confronting Conceptual Challenges The focus on identifying local remedies that might serve the justice interests of victims runs into several conceptual problems that are perhaps even more daunting for researchers than those described. The first problem concerns the nature of victims. In complex conflicts, even placing individuals into the categories of “victim” or “perpetrator” poses a challenge. In situations where acts of violence were committed by people on all sides of the conflict, it is no simple task to determine who warrants the label of victim, especially as a legal designation. The controversy over the appropriate treatment of child soldiers as victims or perpetrators provides a vivid example. With respect to the situations in the Democratic Republic of Congo (DRC) and in northern Uganda, child soldiers – some of whom have now reached adulthood – occupy an ambiguous status, given their often direct roles in the violence that brought on the international prosecution. In her volume titled Fictions of Justice, which focuses in part on the ICC’s intervention in these two situations, Kamari Clarke offers an insightful discussion of the complexities of “child soldier” as a multivalent subject position and its centrality to the constitution of the ICC and its mission. Clarke shows how the charges leveled at one defendant for his actions in the DRC position child soldiers as the alleged victims of the crime (i.e., the war crime of conscripting children). In initial proceedings, prosecutors made use of the figure of these victims, calling on their anonymous voices to establish that the defendant presided over situations of misery. In this way, as Clarke argues, victims were specters in the legal proceeding, moving in and out as needed. Moreover, Clarke deftly develops the important argument that the particular ways in which these victims are created through the legal process absolve them of any responsibility for the violence in the DRC, despite their central role. As she argues, this process of removing certain subjects from claims of responsibility represents a fundamental reworking of the power dynamics not only among persons and groups embroiled in the conflict but among the members of the global community as well (Clarke, 2009). A second conceptual problem centers on the tension between victims of mass atrocity as individuals and also as group members. Given Drumbl’s point that the collective nature of the crimes at issue has yet to be adequately addressed, the tendency of scholars, practitioners, and legal commentators to conceptualize victims as primarily one or the other warrants attention. Although Drumbl intends to emphasize the group nature of the harm, evidence used to argue for one approach or another to postconflict remedies (e.g., justice) is rarely explicit about whether

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individuals or groups are the primary target for implementing remedies or assessing their effect. At the same time, these remedies routinely privilege either individuals or groups. A similar difficulty of treating “perpetrators” as individuals or groups also emerges repeatedly.5 A third conceptual problem has to do with the assumed role of “recovery” in assessments of whether justice or some other response effectively serves victims. Various remedies are routinely, although often implicitly, evaluated (by victims and others) for their advancement of victims’ recovery after violence. Whether and how this approach is undertaken by victims themselves or by those designing remedies, and whether it should be, raises the broader conceptual question of the assumed relation between justice and recovery and the status of that relation in any victimology. This issue is explored in more depth in the next subsection. The implication of all these conceptual weaknesses is that evaluations of particular local justice remedies likely turn on whether they further individual and/or group recovery (the latter often referred to as reconciliation), without being explicit about the nature of the recipient or the form of the recovery. As contrasted with reconciliation, individual recovery, which is often assumed to be psychophysical in nature, may require quite different interventions, and thus the two may have altogether distinct relationships to the provision of justice. Building on these and related concerns, the next subsection offers additional caution to those advocates for legal reform who are searching for empirical evidence to justify normative projects built around assumptions about victims’ recovery.

Recovering Victims in Legal Processes As described, in the public discourse about justice options in northern Uganda, contributors made assertions about victims’ interests in obtaining justice either internationally or locally. In that situation and others, the frequent call to “ask the victims what they want” with respect to justice and other remedies after mass atrocity, rather than to rely on advocates for them, reinforces the notion that victims should occupy a central role in determining responses to harm. It also raises concerns about how this

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In a situation of genocide, persons harmed are targeted because of their membership in a collectivity (e.g., an ethnic or racial group) and the rationale of perpetrators tends to be linked to their own sense of group membership, usually oppositional. Criminal law approaches modeled on the approach to individual criminal violence in domestic courts fail to address the group nature of the crime. Moreover, the prosecution of only those few individuals deemed most responsible through the rubric of liberal legalism, rather than holding accountable the large range of individuals who may have carried out the harms, results in an “externalization of justice” (Drumbl, 2007: 125). The focus on “command responsibility,” which targets the top level of perpetrators, similarly avoids addressing and condemning the group dynamics behind the violence (see also, Clarke 2009).

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kind of information might be obtained. Organizations that appeared best positioned to hear such preferences expressed by victims themselves could be and were accused of acting to further their own agendas. For instance, representatives from human rights organizations were long involved in assessing the extent of the violence in the northern Uganda conflict and advocating for redress through recognizable human rights processes. Humanitarian organizations had been similarly positioned to have direct knowledge of victims’ plights, although as a policy matter they generally restricted their advocacy to living conditions and security, rather than justice issues. As the ICC undertook its investigations and mandated outreach in northern Uganda, its personnel also began to hear from victims themselves. When local civil society organizations attempted to provide a voice to victims, they presented a variety of different views. Thus, those following developments eagerly awaited the results of several large-scale surveys conducted around 2005, as these offered the chance to move past what seemed to be more partisan attempts to illuminate victims’ interests. The International Center for Transitional Justice (ICTJ) together with the Human Rights Center at the University of California-Berkeley surveyed individuals across many regions of Uganda in mid-2005 (ICTJ and HRC, 2005). Among their findings was the claim that 76 percent of those surveyed expressed an interest in holding LRA leaders accountable. Attention to regional and ethnic variation in the responses of victims lent nuance to conclusions that were widely circulated and presented at conferences, included ones attended by ICC personnel. Overall, the survey results were interpreted as indicating significant support by victims for ICC indictments and prosecutions, a finding that surprised some participants in the larger debate over ICC involvement. Seemingly in reaction to the ICTJ survey, and other polls that purported to represent the real interests of victims, a Human Rights Watch document urged caution, noting that: should polling be used to help determine the justice interests of victims, an effort must be made to accurately determine such victims’ justice interests. The prosecutor, in considering these interests, must be careful to rely upon reasonably accurate polling methods, or groups that accurately represent victims’ interests, and not potentially politically motivated sources (Human Rights Watch, 2005: 20).

The HRW fear that victims’ interests might be subject to manipulation is the sort of concern appropriately applied to any survey research. Taken together with the discussion in the previous section of how traditional reconciliation practices were represented, the image of social science research carried out in the politicized atmosphere of a conflict setting fails to inspire much confidence. “For whom is the pollster working?” becomes an important question that disavowals of political manipulation may not easily satisfy. Not all research in such settings is conducted

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with an already determined conclusion derived from a political position but, in such an atmosphere, staying above suspicion is difficult despite the safeguards built into the methodology. For persons who might participate in a deliberative process about local and international justice options designed to determine which might be most appropriate, evidence of the interests of victims could play a key role and yet be the subject of great contention. Even if the charges of partisanship could be surmounted by a well-crafted survey conducted under the auspices of an independent entity, more challenging barriers to learning the truth of what victims want also threaten to render any findings inconclusive. The faith shown by HRW that a poll of victims, if done correctly, could reflect victims’ “true interests” fails to grasp the complexity of the power dynamics in the encounters between victims and all those actors mentioned earlier who produce knowledge about them. Researchers, humanitarian and human rights workers, legal personnel, and journalists actively shape understandings of justice held by victims through their interactions with them, and some, especially the courts, operate to constitute victims as members of that particular category. Given this role performed by NGOs, ICC personnel, and so many others, how do any of these actors presume to assess the “interests of victims”? Put another way, various processes through which knowledge about victims is produced in fact fashion harmed individuals (and sometimes bystanders and others) as “victims” and at the same time shape their perspectives on justice and other responses to mass atrocity. Specifying victims’ justice interests – through a survey or other instrument – is rendered difficult by the fact that victims are subjects under construction not only through their encounters with violence and but also after violence by persons and groups who would assist them. Relatedly, victims are expected to be subjects who are in the process of transforming; ideally, their transformation should take the form of “recovery” from the effects of trauma and harm. Occupying the category victim most often means enacting that shifting subjectivity in a context that is, by international acclamation and in reality, also in transition. In such circumstances, the request in one moment in time to articulate one’s interests as a victim arguably produces a quite tenuous truth. As well, any intervention built around such data risks becoming normative, notwithstanding that, in a rapidly shifting context, it might be irrelevant at best, or harmful. My writing about my own experience as a victim of a terror attack narrates the changing role that justice played in my transformation after experiencing mass violence (Hirsch, 2006). Engagement with the legal system, even the anticipation of indictments and a trial, became linked to my own recovery (Hirsch, 2007). From my experience, my interests as a victim – including in justice and the forms it might take – shifted in relation to numerous factors, including in response to prosecutors, NGO personnel, journalists, and others connected with justice options. Among the

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lessons I draw from my experience is that victims’ interests can readily shift, and be shifted, and yet my intent is not to disempower victims by suggesting that their views are neither knowable nor dependable. Rather, I mean to direct attention to how victims’ assumed transformation through such processes as participating in discussions of justice options, or research on them, has implications for methodologies of knowledge production about victims and their interests. Mere discussion of the potential role of justice – local or international – as a response to mass violence sets up expectations that become part of victims’ complex experience after violence. In gathering from victims information thought to be useful for determining whether local remedies can substitute for international justice, researchers face the challenge of taking adequate account of victims’ shifting subjectivity and to position themselves and their conclusions accordingly. Given victims’ shifting subject positions and the potential that their interests shift as well, two ethical issues loom large. Researchers must ask themselves whether it is possible to conduct ethical research on victims without accounting for or guarding against the effects of the research encounter on victims’ processes of recovery. Researchers are routinely urged to avoid retraumatizing victims whose very recounting of a story of violence might constitute an additional harm. I suggest that along with this very serious concern is the equally difficult, and more proactive, burden of taking responsibility for contributing to victims’ transformation through providing them information that might shape their interests and recovery. Given the newness of the ICC and other international interventions, and the lack of knowledge about local practices, is it even possible for researchers to take adequate account of what it means to acquaint victims with justice options that might contribute – negatively or positively – to their transformation after violence? That the research encounter operates on a fine line between contributing to recovery or effecting retraumatization (or some other options) might in itself offer a strong caution (albeit on ethical grounds) to persons who seek certainty about victims’ views. As I argue elsewhere, in deciding to undertake such work with victims, researchers must weigh the value of the potential findings against the many ethical concerns of working with a victimized population (retraumatization being but one) and also their own capacity as individuals to handle appropriately victims’ accounts of mass atrocity (Hirsch, 2007). Speculations and assumptions about the therapeutic role of certain forms of justice on victims’ recovery are routinely built into what is on offer for victims and what is often claimed for them and sometimes by them (Danieli, 2009). As argued earlier, empirical and ethical challenges make sorting through beliefs and claims about the potential impact of various justice options on victims extremely difficult in the aftermath of mass atrocity. These challenges might be less daunting when research is undertaken after justice options have already been pursued. A review of such studies

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is beyond the scope of this chapter.6 In the future, researchers will no doubt engage in longitudinal studies of victims after mass violence and experiences with justice and other remedies. The challenge will be to develop indicators of recovery and other effects of the wide range of options.7 Such scholarship might help answer the question of whether local, national, or global justice best addresses victims’ interests or recovery, if those are agreed-on goals. Depending on the findings, the view that victims are served more effectively by local justice might be affirmed or seriously questioned. CONCLUSION

Any comprehensive victimology useful to the development of international law would need to sort out the complex relationship between the provision of various forms of justice (or other remedies) and the recovery of victims as individuals and groups. Yet the ethical and epistemological challenges raised in this chapter support approaching this project with caution. Neither Drumbl nor other reformers should be certain about what they will learn from pursuing the views of victims, however noble and appropriate that project might seem. Moreover, there are enough examples to question the premise that local justice provides the best approach to addressing victims’ needs and interests. Any reform of international justice must proceed with less certain claims about victims’ desires for local justice, and more equivocal evidence. Data in this rather unwieldy and inconclusive form might be appropriate to the project of developing an expansive victimology that could be more useful to victims seeking to take charge of their own recovery than to researchers and legal personnel looking for a clear path to the development and provision of global

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Mention of a few findings highlights their potential for illuminating the connection between justice and recovery or other effects on victims. For instance, O’Connell makes the point that very little is known about what trials do for victims of torture and other human rights violations, particularly with regard to psychological effects. In assessing the literature on “how trials of perpetrators of human rights violations psychologically affect victims of those abuses,” he asks specifically, “do the victims feel better – less unhappy, less uneasy, less helpless?” (O’Connell, 2005). Despite the many assumptions, the meager evidence, including O’Connell’s interviews with therapists and others who have worked closely with victims, lead him to conclude that, by and large, trials do produce positive effects for victims, especially when individuals who participate in the trials are considered separately from those who do not. He notes that trials fail to have a positive effect when they are prolonged or highly adversarial. Overall, O’Connell believes that the modest positive outcome could be improved. Eric Stover’s volume on victims’ views of their experiences serving as witnesses at the ICTY indicates that perspectives on the “justice” achieved varied widely as did the effects on individual recovery of participating in a justice proceeding (Stover, 2005). The literature in procedural justice would predict that victims’ assessments would be shaped by their expectations and their perceptions of fairness, although exploring these across cultural boundaries would offer additional comparative perspectives.

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justice. For instance, data reflective of the complexity of power and culture in local negotiations over justice options could serve as the basis for developing outreach to victims – that is, programs that would operate alongside or independently of judicial proceedings. Such programs would need to confront the challenge of telling victims some hard and contradictory truths about the role of law in the aftermath of mass atrocity: International justice can be extraordinarily liberating for victims; international justice can disappoint victims; and the options before a victim at one moment may look very different after the passage of time. In short, an adequate victimology would need to be honest with victims about the available remedies, their changing nature, and their limitations. Such a victimology of mass atrocity would encourage ICC and NGO personnel, conflict resolution practitioners, and researchers to communicate as broadly as possible about justice in their interactions with victims of mass atrocity – that is, to engage in discussions that admit the limits of international retributive justice, as well as its promises – and to remain open to altering their own perspectives on what justice might be, become, or accomplish. Admittedly, the kind of victimology just described might be helpful to victims but offer less guidance toward answering the larger question before the international community: What kind of justice is appropriate after mass atrocity? This is an extraordinary moment in which to attempt to answer that question. Those individuals promoting the reform of international justice such as Mark Drumbl have been joined by accountability hard-liners such as Diane Orentlicher to call for a reassessment of retributive justice, exemplified by the ICC, through the perspective of victims (Orentlicher, 2007). At the same time, local forms of justice are coming in for heightened scrutiny. Lars Waldorf uses the example of Gacaca courts in Rwanda to argue that “national justice and less formal local justice may be no more successful than international criminal justice in promoting accountability, reconciliation, victim satisfaction, collective memory, and democratic deliberation” (Waldorf, 2006). A detailed assessment of examples of local justice in several African contexts denounces the “myth-making” that has elevated some practices and the “hype” that made them the darlings of the international community (Huyse and Salter, 2008). The contradictory movements toward and against both local and international justice might reflect the belief and reality that, after an experience of mass atrocity, no form of justice is satisfying for victims or anyone else. But perhaps the softening of formerly hard-line positions means that the moment is ripe for a new global inquiry into justice and the forms it can and should take after mass atrocity. By highlighting debates over justice, this volume opens a space for that inquiry and offers an approach to justice that moves beyond simple dichotomies – such as local and global, retributive and restorative, or philosophical and legal – that have stood in the way of productive discussions in the past.

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The discourse of justice that puts victims’ justice interests at the center is an important intervention into the wide range of discourses about justice identified in this volume’s Introduction. It is an especially tantalizing approach. At times, the mirror of justice trained on the aftermath of mass atrocity reflects clear images of victims whose faces vividly convey that they deserve justice. Yet, however morally appealing and symbolically powerful the project of making claims in the name of victims might be, their images are no more a solid base than are other reflections for grounding a normative project of justice that the world community might embrace. In this chapter I have expressed my skepticism of a discourse that grounds global justice in the interests of harmed victims and thereby privileges expressions of their needs. A broader deliberation about justice – one that involves a larger constituency of the world community and includes victims from both hot and cold conflicts – might have a chance of breaking the hegemony of the current international offerings and similarly avoiding the parochialism of local options. Most of the standard discourses of justice fail to provide an adequate grounding for that conversation. Not the least of the accomplishments of the current volume is the provision of a metaphor germane to the task of imagining justice in new ways. This volume’s effort to depict justice as always shimmering beyond the reality of particular courts, claims, or persons reminds us that seeking justice might require shedding long-held beliefs and commitments. For instance, the image of justice as shimmering challenges the certainty with which normative projects are developed or grounded on empirical research and encourages reflection on the interrelation of the normative and empirical in discourses about justice and in any efforts made in the name of justice. ACKNOWLEDGMENTS

I thank the volume editors and the participants in the workshop held at Yale University that led to the publication of this volume. Special thanks go to Dr. Kamari Clarke for her insights and for continuing our conversation on these issues. I am grateful for the efforts of my research assistant Martha Mutisi. References Akhavan, Payam. 2003. The International Criminal Court in Context: Mediating the Global and Local in the Age of Accountability. Review essay. The American Journal of International Law 97, no. 3: 712–721. Allen, Tim. 2005. War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention. Crisis States Research Centre Development Studies Institute, London School of Economics. Allen, Tim. 2006. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London and New York: Zed Books.

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Arsanjani, Mahnoush H., and Michael W. Reisman. 2005. The law-in-action of the International Criminal Court. The American Journal of International Law 99(2): 385–403. Branch, Adam. 2007. Uganda’s civil war and the politics of ICC intervention. Ethics & International Affairs 21(2): 179–198. Catholic Relief Services (CRS). 2005. Northern Uganda: The Forgotten War. Baltimore: CRS. Clarke, Kamari Maxine. 2009. Fictions of Justice: The International Criminal Court and the Challenges of Legal Pluralism in Sub-Saharan Africa. New York: Cambridge University Press. Clarke, Kamari Maxine. 2007. Global justice, local controversies: the International Criminal Court and the sovereignty of victims. In Dembour, M. and Kelly, T. (eds.). Paths to International Justice. Cambridge: Cambridge University Press. Danieli, Yael. 2009. Massive trauma and the healing role of reparative justice. In Ferstman, C., Goetz, M., and Stephens, A. Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making. Leiden and Boston: Martinus Nijhoff. Dolan, Chris. 2000. Inventing Traditional Leadership? A Critical Assessment of Denis Pain’s “The Bending of the Spears.” COPE Working Paper: ACORD. Drumbl, Mark A. 2005. Collective violence and individual punishment. Northwestern University Law Review 99: 539–610. Drumbl, Mark A. 2007. Atrocity, Punishment, and International Law. Cambridge: Cambridge University Press. Fiss, Owen. 2007. Within reach of the state: Prosecuting atrocities in Africa. The Boston Review September/October: 7–9. Garkawe, Sam. 2003. Victims and the International Criminal Court: Three major issues. International Criminal Law Review 3(4): 345–367. Glickman, S. 2004. Victims’ justice: Legitimizing the sentencing regime of the international criminal court. Columbia Journal of Transnational Law 43(1): 229–268. Hayner, Priscilla. 2002. Unspeakable Truths: Facing the Challenge of Truth Commissions. New York: Routledge. Hirsch, Susan F. 2006. In the Moment of Greatest Calamity: Terrorism, Grief, and a Victim’s Quest for Justice. Princeton: Princeton University Press. Hirsch, Susan F. 2007. Therapy, revenge, or justice? Transformative ethnography after tragedy. PoLAR: Political and Legal Anthropology Review 30(1): 151–179. Human Rights Watch (HRW). 2005. ICC Takes Decisive Step for Justice in Uganda [cited October 14, 2005]. From http://www.hrw.org/node/70189. Human Rights Watch (HRW). 2005. The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute. New York: HRW. Huyse, Luc, and Mark Salter. 2008. Traditional Justice and Reconciliation after Violent Conflict. Stockholm: International Institute for Democracy and Electoral Assistance. International Center for Transitional Justice (ICTJ) and Human Rights Center – UC Berkeley (HRC). 2005. Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda. Kaiza, David. 2005. Engaging ICC Will Worsen the Conflict in Northern Uganda. The East African, April 26, 2005. Little, J. Alex. 2007. Balancing accountability and victim autonomy at the International Criminal Court. Georgetown Journal of International Law 38: 363.

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Liu Institute for Global Issues (UBC, Vancouver); Gulu District NGO Forum, Ker Kwaro Acholi. 2005. Roco Wat I Acoli: Restoring Relationships in Acholi-Land: Traditional Approaches to Justice and Reintegration. Vancouver. Lomo, Zachary, and Lucy Hovil. 2004. Behind the Violence: The War in Northern Uganda. Vol. 99, Institute for Security Studies (ISS) Monograph. South Africa: ISS. Minow, Martha. 1998. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon. Nalugo, Mercy. 2005. North Leaders Urge ICC to Prosecute Kony. The Monitor, April 18. Neu, Joyce. 2005. Briefing on the conflict in Uganda: Hope for a negotiated solution. Washington, DC: University of San Diego. O’Connell, Jamie. 2005. Gambling with the psyche: Does prosecuting human rights violators console their victims? Harvard International Law Journal 46: 295–345. Office of High Commissioner for Human Rights (OHCR). 2007. Making Peace Our Own: Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda. United Nations. Orentlicher, Diane F. 2007. “Settling accounts” revisited: Reconciling global norms with local agency. International Journal of Transitional Justice 1: 10–22. Pain, Dennis, and Kacoke Madit. 1997. “The Bending of Spears”: Producing Consensus for Peace and Development in Northern Uganda. London: International Alert. Quinn, Joanna. 2004. Constraints: The un-doing of the Uganda truth commission. Human Rights Quarterly 26: 401–427. Rome Statute of the International Criminal Court. July 1, 2002. Southwick, Katherine. 2005. When Peace and Justice Clash. International Herald Tribune. Stover, Eric. 2005. The Witnesses: War Crimes and the Promise of Justice in the Hague. Pennsylvania Studies in Human Rights. Philadelphia: University of Pennsylvania Press. United Nations: Integrated Regional Information Network (IRIN). 2005. Uganda: ICC indictments to affect northern peace efforts. IRIN [cited October 10, 2005]. http://www .globalsecurity.org/military/library/news/2005/10/mil-051010-irin02.htm. “Victims of Uganda Atrocities Follow a Path of Forgiveness.” The New York Times, April 18, 2005. Waldorf, Lars. 2006. Mass justice for mass atrocity: Rethinking local justice as transitional justice. Temple Law Review 79: 1–87.

8 Recognition, Reciprocity, and Justice Melanesian Reflections on the Rights of Relationships Joel Robbins

I have not in the past had any impulse to take up issues of justice or rights in my anthropological work. My lack of interest on this score did not follow from an absence of personal concern about these matters, but was rather rooted in my sense that it is difficult if not impossible to talk about universally binding norms of justice without losing the distinctive tenor of the specifically anthropological voice. That voice, traditionally attuned to cultural differences and the integrity of local standards, tends to abandon what I take to be its better self in conversations on universal values. This need not always be the case. Indeed, I take the controversial American Anthropological Association Executive Board Statement on Human Rights to be an admirable attempt to speak to the issue of universal human rights in a uniquely anthropological way (Executive Board, 1947). The fact that this statement is held in little esteem today by anthropologists, however, and that it is held in even lesser regard by individuals outside the discipline, indicates that its confident, even brave (given the immediate postwar context of its composition), relativism has had little positive impact on broad discussions of the nature of justice and rights in the academy or beyond (cf. Goodale, 2006: 1–2; Merry, 2003). It appears, then, that the kind of openness to the value of relativism as a position from which to think about social possibilities and to keep a critical eye on our own settled pieties that stands at the foundation of my understanding of anthropology as a discipline has proven a nonstarter in the world of justice and rights – and this is why I have until this point shied away from addressing these topics. Having said all this, it is also true that the global importance of discourses of justice and rights, and of the institutions that are founded upon them, has made these topics impossible for anthropologists to ignore. Yet if they cannot speak to them in my version of the anthropological voice, what options are left? Faced with this question, an initial moved favored by many anthropologists is to off-load the relativism/universalism issue as quickly as possible. Wilson’s (1997) call “to go beyond the dualism of universalism/relativism” has been widely heeded. After 171

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anthropologists have accomplished this, there at two primary directions in which they tend to go: toward ethnography or toward advocacy (Goodale, 2006: 3–4). These directions are not by any means mutually exclusive, and many anthropologists explore both of them at once. Analytically it makes sense to separate them out in our discussion, however, for they have different strengths and weaknesses when it comes to producing anthropological work that can speak powerfully to people interested in justice and rights within and beyond the discipline. The ethnographic approach studies the way notions of universal rights and canons of justice are operating in the myriad cultural locales to which they and their institutional carriers have been introduced. This approach is perhaps the most popular, and it fits well the general trend in contemporary anthropology of studying the “localization,” “vernacularization,” or “indigenization” of global modernity. Anthropologists have become quite skilled at producing analyses of such processes by which global cultural features find their way into local conceptual and practical schemes, and thus studies of human rights carried out under the aegis of this approach are generally sophisticated and valuable. In being primarily descriptive – that is, in being oriented to documenting how justice and rights behave in particular contexts, rather than to changing those contexts or questioning the value of global discourses of justice and rights – this approach also puts one safely to the side of relativist mine fields. As Wilson (2006: 78) puts it, “This approach puts us beyond the logically coherent, although empirically implausible, theories of universalism and relativism to examine . . . what people say they do with human rights and what they actually do with human rights in specific fields of political contestation.” What this descriptive approach produces then is a fine version of normal science anthropology – although one senses that it does little to rock the boat of Western discourses of justice and rights (cf. Strathern, 2005: 132). Speed (2006), also anxious to get beyond the universalism/relativism problematic, tells us of another place we might go, one beyond the safe homeland of straight ethnographic analysis. As she puts it, “The paralysis in human rights research provoked by the universalism-relativism debate might be overcome by projects that merge political action and research” (p. 74). We can, that is to say, become advocates for currently popular notions of rights and justice, and aim to facilitate their application in the communities we study. We can do this by engaging directly in political struggle over issues of justice and rights, which is Speed’s preferred approach, or, drawing on the kind of research carried out under the ethnographic rubric I laid out above, we can help to smooth the way for other people’s and organizations’ application of currently popular notions of justice and rights by providing cultural context and indicating places where understanding may be difficult or unfortunate unintended consequences likely. This approach is a bit less popular than the first, at least as reflected in the literature, although one likes to think that many anthropologists do

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advocate for the rights of those they work with when meaningful opportunities to do so arise (Cowan, 2006: 11). It shares with the ethnographic approach the weakness that it is unlikely to facilitate much by way of the rethinking of global human rights and justice discourses – it works within them, tinkering here and trimming there to smooth their fit with various situations on the ground – but it does not much question their foundations or the blind spots they produce. Having reviewed the two primary options that exist beyond the universalism/ relativism problematic, it is difficult not to conclude that after anthropology enters that space beyond it loses much of its critical potential. It can work from there to support excellent descriptive research, and it can contribute significantly to efforts to apply global norms of justice and rights to novel cultural contexts. And perhaps this is enough. But I continue to hope for an anthropology that hits a bit harder – that unsettles global discourses rather than just describing their diffusion or helping them adapt to their new homes. If, however, the relativist gambit has already proven a nonstarter – as I noted at the outset, it is hard to get an audience even within anthropology, much less outside of it, for a full-blown relativist critique of global discourses of human rights and justice – then what kind of critical vocation might be open to anthropologists in this arena? What I want to suggest is that maybe the best way forward is not to drop the universalism/relativism problematic like a hot potato, but rather to set aside relativism and play the universalist game. By “play the universalist game,” I mean to suggest that perhaps anthropologists should not shy away from speaking for (and not just about) universal norms. The hitch is that to do so without losing what I have called the specifically anthropological voice, we would need to speak not for currently powerful and widely diffused universal norms, but rather for what we might take to be underappreciated “candidate universals,” universals that currently have little purchase in metropolitan debates but that are worthy of further consideration. We would find these candidate universals in the societies we study, and develop arguments for why they might be understood to be universally binding. Put in the metaphorical terms of the title of this volume, this approach proclaims that if we are going to let other cultures provide a mirror of justice, let us allow them to serve as full-length mirrors, ones capable of reflecting back an image as large (i.e., universal) as the dominant kinds of justice that stand before them. Were we to adopt the approach of finding and promoting candidate universals, we would be able to do more than what the editors in their Introduction (p. 5, this volume) refer to as using “‘local’ legal and moral practice” to complicate the universalist models that ground so much Western discourse around rights and justice. We could also contribute directly to ‘thickening’ (again referring to the Introduction) these discourses by adding ingredients imported from elsewhere. Anthropologists would then provide knowledge of important things beyond the local contingencies

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that need to be managed in the application of universal formulas, and might find themselves better able to contribute to agendas around transnational justice. The move to promoting candidate universals would also free anthropologists from fighting certain relativist fights that, as much as I might think they are worthy, I have already noted tend to be losing battles at present. That is to say, to make arguments about candidate universals, we would not need, in relativist fashion, to attack currently popular universals as parochial – they require their own justifications, but we would not need to undo those justifications to promote the candidate universals upon which we choose to focus. If a proposed candidate universal ever came to be widely accepted, its application might limit the scope of application of some already existing universals, but that would happen as part of the kind of broader political processes that as we know are well beyond anthropological control. As far as our work is concerned, we could limit ourselves to the constructive task of suggesting potential universals currently unrecognized or unelaborated in global debates. For this reason, we would not find ourselves mired in relativism, but we would still fulfill the anthropological mandate to treat difference in a serious, challenging way. The remainder of this chapter is an experiment in promoting as a candidate universal a kind of justice that I will argue is widely recognized in the cultures of Melanesia. What makes this kind of justice unusual in terms of globally diffused models of justice and rights is that it treats relationships, rather than individuals or groups, as the most important bearer of rights. Specific relationships have a right to be realized and to flourish, and legal processes and protestations of injustice dwell on the injuries done to, or the unmet needs of, relationships. I begin in what follows by further elaborating this Melanesian model of justice in general terms and then proceed to present three cases of this model in practice. Having elaborated the model in Melanesian terms, I turn in the final section to showing how its basic contours resonate with recent Western models of justice based on the notion of recognition. I make this final move to increase the chances that readers will be able to imagine the rights of relationships as a legitimate candidate for universal status on the basis of arguments that are more familiar at home – and also to show how these more familiar arguments garner further plausibility and point by virtue of having been shown to be in close accord with how people in some places live their lives. RELATIONSHIPS IN MELANESIA

The idea that Melanesians understand justice most fundamentally as something that pertains to relationships – rather than to individuals or groups – builds on a great deal of rich anthropological work that has been carried out in the region, particularly in Papua New Guinea (PNG), its most populous country. Although this work rarely

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tackles issues of justice head on, it lays a groundwork from which it is not difficult to take that step. The groundwork I have in mind is what I will call the “relationalist position” in Melanesian anthropology. Although it exists in several versions, it is not difficult to present a basic outline of the relational position, and that is what I do in what follows (see Strathern, 2005: 120). The relationalist position has three key features. The first feature is the claim that creating, realizing (in a sense to be discussed further later in this chapter), and maintaining relationships is the thing Melanesians most value – it is what the bulk of their actions either proximately or ultimately aim to accomplish. People find their lives most satisfying when they are actively engaged in as many relationships as possible and when these relationships are all in good order. To call relationships the key value among Melanesians is to suggest that they play a role equivalent to that played by the individual in Western societies (where people are expected to most want to create, realize, and maintain their individual selves), or by wider social groups in what are sometimes called collectivist or holist societies (where producing a healthy state in the group as a whole is most valued). The second component of the relationalist position is the claim that, for Melanesians, the project of making, realizing, and maintaining relationships is inescapable, or “natural.” This is so because people understand themselves to be made out of the relationships of kinship, marriage, and nurture that produced them. They are born with the obligations that these relationships carry, and they form new relationships (which carry their own obligations) in order to meet them. For example, a woman might marry in part to generate the bridewealth that will help her brother marry. Or in a matrilineal moiety system, a man may nurture his children (who belong to their mother’s group) as a way of repaying the nurture his father (who would also have belonged to his mother’s group) gave to him. One way to capture the inevitability of relatedness for Melanesians is to speak of social relatedness as something they take to be “innate” – as something that is always already there from birth for all persons and is thus a fundamental aspect of life that needs to be attended to, just as the individual self is assumed to be innate in the Western conceptions that underwrite our notions of human rights (Wagner, 1981). Another influential formulation of this idea is Strathern’s point that, in Melanesia, persons are microcosms of relationships (1988: 131). They are born as images or containers of the relationships that made them. Much of the social process of people’s lives consists in realizing these various already existing relationships by attending to them, and by making new relationships that at once allow people to further realize those relationships that went into their constitution and to establish a wider social world in which to move. It is because so many of the relationships that a person will have in life – with kin and affines – already exist at birth that it is important to speak of realizing relationships as well as maintaining and creating them. Overall,

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Melanesian people live their lives as a set of linked projects of realizing, creating, and maintaining relationships. Among these ways of attending to relationships, the task of realizing relationships is fundamental for the current point, for it brings to the fore the sense in which relationships are always there for Melanesians, and the fact that it is only out of relationships that persons emerge. The third component of the relationalist position is the observation that the way Melanesians most often tend to their relationships is by giving things to or exchanging things with one another. With this point about the importance of gift giving and exchange, we are on ground more familiar to most anthropologists. From Malinowski’s (1961) discipline-forming fieldwork on Kula exchange in the Massim region of PNG, and from Mauss’s (1990) use of Malinowski’s material in constructing his influential argument about the fundamental place of reciprocity in human affairs, most anthropologists have recognized Melanesia as a place where gift giving and exchange are prominent aspects of social life. Crucial to the relationalist position is the point that what all these gifts and exchanges mean to accomplish is the realization, creation, and maintenance of relationships. The relationship realizing, creating, and maintaining aspects of exchange are most obvious in everyday life. Throughout a normal day, most Melanesians will give foodstuffs and other small goods to people who themselves own and give to others those same kinds of goods every day, and everyone will consume food and other small goods they have been given, even though they produce those same things on a regular basis themselves. In daily life, then, people are constantly living off their relationships even though there is no material need for them to do so. Why do they bother? Because the gift giving involved, even as it does not supply anyone with things they do not already have, nourishes the relationships in which people see their life as grounded. In many Melanesian societies, people refer to eating food one has produced oneself, rather than giving it away and eating food given to oneself by others, as “eating for nothing.” This kind of eating, they say, is bad because it does no relational work. Alongside the constant give and take of everyday life (to borrow the title of Schieffelin, 1990), the role of material transfers in realizing, making, and maintaining relationships in Melanesia is also evident in various kinds of formal exchange. In most Melanesian societies, key life-cycle moments are accompanied by ritualized exchanges of material goods that highlight the relationships that went into the creation of the persons involved and that sometimes establish new relationships. Thus marriages, deaths, initiations, and other important transitions in people’s lives tend to involve major public exchanges. Even more strikingly, in many parts of Melanesia there are exchange rituals that are carried out primarily for their own sake, simply to realize the myriad relationships that they involve and to advance the fame of their most successful participants (here one thinks of pig kills and elaborate pig exchange

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rituals in the PNG Highlands, and of the Kula ring). All of these formal exchanges put on public display the relationships at the foundation of people’s lives. I have reviewed this basic material about the prevalence of both informal and formal gift giving and exchange in Melanesian social life in general terms, leaving more detailed examples for later. For present purposes, the key point is not just that gift giving and exchange are very much the stuff of social process in Melanesia, but that they are bound to the value of realizing, creating, and maintaining relationships, many of which are inescapable parts of the lives of the participants. This point is slightly less familiar than the descriptive account of gift giving and exchange I have just presented, but a crucial aspect of the relationalist position is the way it has recontextualized such well-known descriptive material about exchange within a more general statement of the centrality of relationships in Melanesian life. Having laid out the relationalist account of Melanesian social life, the next section of this chapter shows how Melanesians can be seen to draw on relationalist values and ideas in formulating their notions of justice.1 JUSTICE AND THE RIGHTS OF RELATIONSHIPS

As I noted earlier, anthropologists who have forwarded the relationalist position have not often explicitly taken up the topic of justice. Yet it is not hard to move from their work to how we might understand the models of justice that operate in relational systems. To make this move, I present data from three different Highland PNG societies that help to delineate such a model. If the model of relational justice I will present were to be reduced to a slogan, it would be: “relationships themselves have rights to exist and thrive, and these rights in many (or even all) cases outweigh the claims individuals make on their own behalf.” The grounds for such a claim are present in the value system I described in the previous section, but 1

The account I have given of the relationalist position is of necessity pitched in quite general terms, but it rests on many detailed ethnographic and theoretical discussions. As I have put the relationalist position together here, it accords with no one person’s previous work (including my own). My own work toward this position has focused particularly on the idea of the realization, creation, and maintenance of relationships as a value. In the work in which I have developed this position, I also provide many references to other works that I do not cite here for fear of overburdening the text with citations (Robbins, 1994, 2004). For the second feature of the relationalist position – the idea that it is relationships that are innate or inescapable, rather than the individual or the group – key references include Wagner (1977, 1981) and Strathern (1988). On the third feature – the prevalence of gift giving and exchange and their bearing on relationships – the literature is huge. I have been particularly influenced by the work of Gregory (1982) in this regard, and his bibliography is a good guide to further work. Strathern’s (2005) recent chapter on the “compo girl” case, discussed in detail later in this chapter, has had an especially strong influence on the position I have taken in this chapter. It is also an excellent place to find a brief, clear presentation of her version of what I am calling the relationalist position.

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demonstrating how these claims are phrased in real cases will make their substance more apparent. Urapmin Courts The Urapmin are a group of approximately 390 people living in the West Sepik Province of PNG with whom I carried out research in the early 1990s. Much smaller than the other groups I will discuss, they are also the most remote. Only contacted by Westerners in the late 1940s, the Urapmin continue to live largely outside of the market economy, relying on shifting cultivation and hunting for their livelihood. The remote nature of their situation bears on the legal system of their community. Many disputes in Urapmin are still settled via traditional means, yet the Urapmin also recognize that the PNG state possesses its own legal institutions. The most prominent of these for the Urapmin is the local “village court,” which is an informal court presided over by the locally elected government “Councilor.” The Councilor serves as the intermediary between the local community and the District Office, some six hours walk to the east. As part of his intermediary role, the Councilor also serves as the magistrate of the local court in Urapmin. When people have been involved in a dispute of any kind, traditional dispute resolution involves them reaching a settlement by exchanging at the same time exactly equivalent things with each other.2 The items exchanged can be string bags (locally made by women from bark twine), bows, traditional shell money, and state currency. No matter what is exchanged, people will receive back something equivalent to what they have given: A person who gives a bow will receive back one of the same size and condition, for example, or someone who gives 200 kina (a unit of state currency) will receive back the same amount, and ideally in bills of the same denominations. Despite the fact that each party to the exchange ends up with essentially the same items they started with, it is often difficult for people to assemble the things to be exchanged. Persons who are in dispute may not own such items themselves and may have to borrow them (only to return immediately the equivalent objects they receive for them). For this reason, dispute resolution exchanges can involve a good deal of work. The work involved makes it all the more evident that, as some younger Urapmin put it, in monetary terms these exchanges produce no “profit.” Yet all Urapmin recognize that these exchanges are quite productive in 2

If someone has shamed or angered another person, he/she will sometimes give the aggrieved party a one-way gift to “buy” his/her anger or shame. These are generally private exchanges that deal with minor problems in close relationships. If a dispute is of any magnitude, both sides will always be understood to have shamed and angered the other and regardless of who perpetrated the first offense (which will often be unclear) both parties will be judged to have violated the relationship and hence mutual equivalent exchange will be called for.

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relational terms. After disputants have participated in dispute resolution exchange, they are required to treat one another as if they had never been at odds, and they are enjoined to refrain from bringing up the issues at the center of the dispute in the future. These requirements are backed not only by strong normative expectations as to how people should behave in the aftermath of dispute resolution exchanges, but also by a vague but palpable sense that people who violate them open themselves up to illness or other misfortune. In my experience, having watched many disputes end in this way, such equivalent exchanges are effective. In their wake, people really do resume normal relations and the problems between them fade from sight. We might assume that dispute resolution exchanges work because people only agree to participate in one of them when they are ready to put behind them the problems it will address. It is important to note, however, that this is not how the Urapmin talk about dispute resolution exchanges – they simply note that, after they have taken place, the relationship between the people involved has been restored to working order. What is important for our purposes of understanding Urapmin ideas of justice then is that dispute resolution exchange serves as the appropriate way of resolving conflicts. It is thus these dispute resolution exchanges that most pointedly display traditional Urapmin notions of justice both to community members themselves and to us. The kind of justice they present, I want to suggest, is a relational one. To understand how this is so, it is necessary to begin by recognizing that as members of a society of 390 people in which there are strong sanctions against marrying outside the community, Urapmin are related as kin or affines to everyone with whom they have significant interaction. Thus all disputes damage preexisting relationships, or at least potential relationships, and resolving disputes always serves to repair relationships or to restore the possibility of realizing them. In Urapmin, dispute resolution is never primarily about recognizing the rights of one party that has been wronged and then letting both parties walk away from each other without further mutual involvement. Rather, it is about restoring a relationship so that it can continue existing or come to be more fully realized in the future. The focus on the relationship rather than the parties to it is built into the design of the exchange itself, for by virtue of its insistence on a strict equivalence between things exchanged it assures that neither party can gain any material or other advantage by participating in it. The only entity that stands to gain by the exchange is the relationship itself (the individuals involved may benefit by having their relationships back in working order, as may others who have their own relationships with the principles, but this is only a secondary effect of the exchange, not in any sense its purpose). The exchange rites are in this respect performances of pure relationality in its simplest form. As such, they serve to restart, as it were, more complex relationships that have gone awry., But they do no more than that by way of realizing justice,

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and so they point to an understanding in which justice consists precisely in giving relationships their due. The relational nature of Urapmin people’s notion of justice becomes even more evident when we look at their understanding of the introduced institution of the village court. In Urapmin reckoning, village courts are supposed to assign guilt to a single individual or set of individuals and to require parties who are guilty to make one-way payments, called “compensation,” to the parties whom they have offended. Even as people understand such one-way payments to be the preferred outcome of village court cases, when it comes to finally rendering decisions in such cases, the Councilor tends to doubt that judgments ordering only one side to pay compensation are likely to end hostilities. Instead, he works to have the decisions he renders in village court approach calling for equivalent exchange by insisting that all parties involved exchange compensation payments with one another. As he asserted in the midst of one case that he found exasperating because, I think, he felt that one party was in fact as nearly a blameless victim as one can be in Urapmin, “On the side of government law it just says that [one of you] pays. If you go to the District Office they will tell you that. But I know that in my jurisdiction . . . [you] will not be in agreement with this, so both of you will pay.” Sometimes the Councilor will have one party pay more to the other than it receives in return, and this is perhaps something of a shift toward more individually oriented models of justice. But the shift is far from complete. The insistence on molding village court decisions into the form of reciprocal exchange indicates that giving relationships (rather than individuals) their due remains the primary goal of Urapmin justice. Sex Work in Huli The Huli are a group of 90,000 people living in the Southern Highlands province. Although subsistence gardening is still central to the lives of most Huli families, male out-migration to work for wages reaches extremely high levels (up to 45% of males between the ages of 20 and 39 are sometimes gone – Wardlow, 2006: 59), and the cash economy is an important part of Huli life. Wardlow (2006) has written a superb ethnography of those Huli women, known as “passenger women,” who leave home and have sex with many partners, often for money. Drawing on Wardlow’s account, I will argue in this section that passenger women see their turn to sex work as a protest against the failure of their families to ensure that justice has been upheld for the relationships that constitute them, particularly the relationships surrounding marriage.3 3

Wardlow (2004) compellingly uses her data to complicate scholarly uses of the term “sex work,” but I will retain that term here, as she sometimes does herself, for ease of exposition.

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In Huli, marriages are completed by a bridewealth gift of pigs, often as many as thirty, given by the side of the groom to the side of the bride. Bridewealth payments are at the very center of the Huli relational world (Wardlow, 2006: 167). Because bridewealth involves so many pigs, men who want to marry have to realize or further draw on many of their preexisting relationships to gather the needed amount. When the daughters that result from their marriages get married in turn, these men will pay back the people who helped them with the pigs they receive for her. At the same time, the payment of bridewealth legitimates the marriage, insuring that the children that result will be firmly fixed in the relational webs of their parents and creating important affinal relations between the kin of the groom and those of the bride. Finally, when a woman marries and her father is able to pay back the people who helped with his bridewealth payment, her brothers are able to ask others for help assembling bridewealth payments of their own, hence further realizing and extending their own relational world and that of their kin. Touching on so many relationships, bridewealth is central to the lives of everyone in Huli. But for women, it has a special meaning. Both Huli men and women say that “women are for bridewealth,” suggesting that generating bridewealth through marriage is a key moment in a woman’s life (p. 151). As Wardlow (p. 25) puts it, “women’s sense of self-value is shaped by bridewealth, and it is difficult for most women to imagine legitimate female personhood outside the bridewealth system.” A crucial finding of Wardlow’s study is that women become sex workers when they feel that people to whom they are related – and men in particular – do not work to maintain them or their sisters within the bridewealth system by demanding that appropriate exchanges be made for them. These neglected exchanges take several forms. If a woman has premarital sexual relations with a man or is sexually assaulted, her father or brothers should demand either that the man involved marry her and pay bridewealth, or that he make a lesser payment that will supplement the potentially smaller bridewealth she will command when she marries someone else. After a woman is married and her father and brothers have distributed her bridewealth, they should also continue to honor their relationships to her, supporting her if her husband is violent or irresponsible toward her. A husband, for his part, should treat marriage as an important relationship in its own right, nourishing it with a steady stream of gifts to his wife and children. These days, with men out-migrating to find work and with cash having become more important for making all kinds of purchases, men often fail to honor the demands of the bridewealth system at one or more of these points. Fathers and brothers, who are either absent or do not feel they can muster enough of a fighting force to press their claims, sometimes do not demand compensation for premarital sexual relations or attacks. Nor do they always support their daughters against their husbands, leading many women to accuse them of “treating them like a market,”

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which is to say selling them like a good that one has no interest in after it has been paid for. The increasing substitution of cash for pigs in bridewealth payments, women feel, only exacerbates this problem because debts established with cash tend to create less lasting relationships than those established with pigs and hence allow a woman’s bridewealth to sink from people’s memory too quickly. Furthermore, husbands who are familiar with the cash economy, and often away themselves, sometimes treat their wives as if they are things which they have purchased with cash, rather than persons with whom they are constituted in a relationship. They give little, demand much, and when their wives complain they protest that they have paid for them and can thus treat them how they want. Often, it seems, they resort to violence, which is made even worse for the woman involved when, as mentioned above, their fathers and brothers do not come to their aid. Women who have been disappointed in one or more of these ways become enraged, and it is such rage, they say, that leads some of them to take up sex work. The logic of this move is as follows: If the men in their lives refuse to maintain the relational productivity of women’s sexuality and reproductive power within the bridewealth system, they will remove it from that system altogether and put it to use in enriching themselves. The men who turn their backs on the system are already pursuing their own individual pleasures at the expense of their relationships with their daughters, sisters, and wives, so when the women who stand in such relationships to them deploy their sexuality to similar ends, it is a case of turnabout as fair play. Note, however, that this turnabout is not a simple abandonment of the bridewealth system, for it only makes sense in relation to that system. As Wardlow (p. 150) notes, when women become sex workers, they do so because they are angry at the “failure of their kin to pursue traditional justice.” That justice, as should be clear at this point, is a justice that consists in realizing, creating, and maintaining specific relationships tied to the bridewealth system: those of parents and children, siblings, affines, and spouses. The crucial place of relationships in this model of justice is driven home by Wardlow’s observation that, although women become angry when they are attacked sexually or in other ways, it is when their kin fail to make the relationships involved right by demanding recompense for the damage done to those relationships by the attack that this anger turns to the kind of rage that leads women to become sex workers (p. 147). The institution of sex work, then, is some women’s response to their inability to secure relational justice in a world more and more defined by the market and its individualist models of the good life. The “Compo Girl” Case This case involves people from the Minj area of the Whagi region of PNG. Unlike my accounts of the other cases, this one is not gleaned from the detailed work of a single

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ethnographer. Instead, it is drawn from a number of discussions by anthropologists and others that followed on newspaper reporting about the case and discussions about it among some members of the middle class in PNG.4 Like the Urapmin village court, this case illustrates how relational and more individualist notions of justice can clash in contemporary legal settings. An eighteen-year-old woman named Miriam is at the center of the case, which unfolded in 1996. Her father, Willingal, had been killed by the police while protecting a known criminal (killed at the same time) who was a member of his patrilineal clan. In response to Willingal’s death, his mother’s clan demanded a “head payment” or compensation settlement for him from his own clan (i.e., the clan of his father), as is customary among Whagi groups. Their claim was based on the charge that Willingal’s clan had failed to nurture and protect him in such a way as to prevent his death, and they asked for 24 pigs, 20,000 kina (equivalent to USD 16,000 at the time), and a woman in marriage (Banks, 2001: 118; Strathern, 2005: 112). Miriam was the one unmarried woman of marriageable age in Willingal’s clan, and so it was decided that she should go in marriage to her father’s mother’s group as part of the settlement. Miriam was not, she would later report, wholly opposed to being married in this way. In fact, she initially agreed to the terms of the head payment, although primarily “out of concern for her younger sisters and other younger clanswomen, who might be sought if she refused” (Gewertz and Errington, 1999: 125–126). Even so, she did resent the timing of the proposed marriage, as she wanted to finish the correspondence course she was taking and, if she achieved high enough grades, go on to attend secretarial school. She sought to further her education because she did not, as she put it, “want to be a villager living on subsistence farming” (quoted from court documents in Gewertz and Errington, 1999: 130). She also rejected the idea that she might be married to any young man in her father’s mother’s group, rather than being told in advance the identity of her prospective spouse. These misgivings prompted her to tell her story to one of the national newspapers, “hoping that somebody might help” (Gewertz and Errington, 1999: 130). Having read one of the news stories that followed, stories that in the argot of headline writers figured Miriam as the “Compo Girl” (from “compensation”), Justice Injia of the National Court decided that he did want to help and initiated inquiries into the case “on the grounds that the National Court has the jurisdiction to itself bring action for the enforcement of constitutional/human rights” (Strathern, 2005: 190). 4

The two richest anthropological accounts can be found in Gewertz and Errington (1999: Ch. 6) and Strathern (2005). Other published discussions include Josephides (2003) and Cowan (2006). Banks (2001), a legal scholar, offers both an interesting comparative analysis and the best bibliography of newspaper articles pertaining to the case. O’Hanlon and Frankland (1986) supply important ethnographic background on the nature of social relationships of kinship and marriage in the Whagi region. My account draws on most of these sources, but follows Strathern’s analysis most closely.

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Very shortly thereafter, a human rights nongovernmental organization (NGO) located in the PNG capital petitioned the court to prevent the two groups from enforcing their settlement, committing to represent Miriam on the grounds that the head payment violated her “fundamental human rights” (Gewertz and Errington, 1999: 112). Among the affidavits that Justice Injia had available to him in deciding the case was one prepared by John Muke, an archaeologist, professor of anthropology at the University of Papua New Guinea, and a member of Willingal’s clan. Dr. Muke’s detailed account provided the relational context in which the head payment was locally understood. I have not been able to consult his report, so I will draw on Strathern’s (2005: 113–114) summary of the gist of it. Women move in marriage between clans and as they do so they create ties between them. When a women marries, her work and fertility bring benefit primarily to her husband’s clan (to which the children she bears belong and with whose member’s she lives) rather than her own. For this reason, it is appropriate that “compensation” be paid to a woman’s clan when she marries (i.e., bridewealth and other payments). These payments ensure that the wife’s clan will provide nurture and ongoing spiritual support to her offspring, both of which are necessary if they are to thrive (see also O’Hanlon and Frankland, 1986: 185). Through the exchanges made between the clans, relationships between them and their members are built up – relationships most fully embodied in the offspring of the original marriage. As Strathern (2005: 114) notes “[w]hen blood is shed, these ties are severed, and that in itself is an injury. The patrilineal kin who had been the ones to benefit immediately from the deceased’s existence must find recompense for the maternal kin . . . ” (Strathern, 2005: 114). In the analytic terms I have been developing, Muke’s discussion is clearly phrased in terms of relationalist models of justice: It is the relationship between the two intermarried clans that has been injured by Willingal’s death, and the head payment is meant to do justice to that relationship by acknowledging the loss and reaffirming/reestablishing the tie.5 By all accounts, Judge Injia fully recognized the significance of the head payment with regard to such relational matters, noting that it reflected “complex underlying social values associated with inter-tribal marriage in a complicated network of relationships” (quoted in Gewertz and Errington, 1999: 130;

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As is often true, in this case Willingal’s parents’ marriage is not the only strand in the relationship between the two clans involved, and the head payment is understood to address other aspects of that relationship as well (Gewertz and Errington, 1999: 129–130). The relational model of justice at the heart of the institution of head payment remains evident, however, no matter how complex individual cases of its practice become.

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see also Strathern, 2005: 114). Yet in the end he found for the human rights NGO on all counts, declaring that when the “customs and customary practices” of a group “conflict with the National Laws, they must give way to our national laws” (cited in Gewertz and Errington, 1999: 131). “[N]o matter how painful it may be to the small ethnic society concerned,” he added, “such bad custom [as sending women in marriage as part of death compensation] must give way to the dictates of our modern national laws” (quoted in Strathern, 2005: 114). The judge’s conclusion was presumably not reached lightly because, as Banks (2001: 106) notes, it is the first one in PNG “in which a specific custom of a particular group has been declared unlawful, unconstitutional, and has been prohibited by the Court.” The Compo Girl case brings out in particularly stark terms the differences between individualist and relational models of justice. Justice Injia’s ruling recognizes the arguments of both sides and sets them out in some detail, and then upholds the individualist model. Aside from Josephides (2003), who on the basis of her argument for the universality of individual rights agrees wholeheartedly with his judgment, anthropologists have not been quick to take sides explicitly on the ruling itself. None have applauded it, but neither have they claimed outright that it should have gone the other way. They have, though, wondered about its effects. Gewertz and Errington examine the difficulties that Miriam is likely to have in achieving the kind of town life she aspires to – difficulties that are already in evidence by her resort to distance education classes to make up for poor performance in her previous schooling. More implicitly, Strathern (2005: 129) hints at trouble ahead when she quotes Miriam’s report to the press of her worry that “[h]er people [will] think the court has given her ‘freedom’ from a traditional obligation and this could take away her tribal support.” The statement toward which both these observations tend is that it is hard to live in contemporary PNG without relationships, but that is an empirical point, not a normative one about justice. More central to Strathern’s evaluation of the decision is a careful account of what it occludes. The judge, she argues, works with an opposition between modernity and tradition, and in the terms of this opposition kinship belongs to tradition (p. 115). When he and others adopt these terms, they lose sight of the “obligations in which someone such as Miriam finds herself enmeshed” (p. 15). More to the point, they fail to acknowledge “people’s reflections on the fact of relationship and on what happens when kin ties between people become translated into expectations about acts and behavior” (p. 15). In short, the relational aspects of human life fade from their view. By the end of her discussion, it becomes clear that, for Strathern, everyone everywhere is “someone such as Miriam” when it comes to having relationships that place obligations on them: “Miriam’s case may offer local examples but they are examples of a thoroughly trans-local fact” (p. 132). By remaining deaf to what

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is front and center in the way PNG people approach these facts, Strathern argues that we “lose out” on intellectual resources that are in short supply in our own tradition: resources that highlight the relational aspects of human life and the bearing they have on conceptions of justice (p. 133, see also p. 115). My own experiment in promoting relational justice as a candidate universal grows out of this point, and I return to addressing the issue of universality directly in the next section. CONCLUSION: GOING UNIVERSAL WITH RELATIONAL JUSTICE

The PNG material has indicated the contours of a relational model of justice and offered a glimpse of one way such a model can look in practice. The anthropological warrant for approaching relational justice by way of a discussion of PNG is well stated in the following remark by Dumont (1980: xxxix), the great anthropological comparativist: “each sort of representation must be grasped where it is fully accentuated and elaborated, where it rises to predominance and not where it is kept, by the prevalence of other representations, in a rudimentary or residual state.” Relational ideas have been elaborated fully in PNG, where they, rather than the individualist ideas so prominent in the West, predominate. Because PNG offers a more vivid image of such ideas than our own tradition can provide, it makes sense to go there to find a baseline model of relational justice. My goal, however, is not just to describe relational justice. It is also to suggest that the relational issues so evident in Melanesian approaches to justice can reasonably claim to reveal a candidate universal – the fundamental importance of relationships in human life – that should be among the things on the table in all conversations about justice. To make this claim convincing to people interested in political and legal theory in the West, it is not enough to show that relational justice provides a complex and workable approach to social life in PNG. What is also needed is some way of showing that it addresses concerns that have always been there in the Western tradition, even if they are relatively neglected. For if we cannot find such concerns in our own tradition, we are unlikely to be swayed by the notion that they are universal. I would submit that one can find relational ideas in many parts of the Western tradition and that they have had a particularly strong role to play in the development of the human sciences. If such ideas do in fact point to something universally important, one would expect nothing less. I do not have the space to present a broad range of examples of Western relational thinking here – gathering up fragments of what is admittedly only a minority tradition in Western thought. Instead, I briefly discuss the “recognition-theoretic” approach to critical theory recently developed by Axel Honneth, taking it as a strong exemplar of a relationalist position that both has

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universalist ambitions and aims to contribute to contemporary discourse on justice in the West.6 Drawing primarily on Hegel, G.H. Mead, and the object relations tradition of psychoanalysis, Honneth has fashioned an approach to justice, and critical theory more broadly, that is based on the claim that human beings require specific kinds of relationships if they are to thrive as persons, or even to become persons in the first place. The kinds of relationships that they require are those of reciprocal recognition, in which others whom they value as persons also value them as such, and in valuing them reflect to them some of their key characteristics (Honneth, 1996). Without such relationships, human beings fail to develop. For this reason, the provision of such relationships is a crucial aspect of justice. As Honneth (Fraser and Honneth, 2003: 174) puts it: “[t]he justice or well-being of a society is proportionate to its ability to secure conditions of mutual recognition under which personal identity-formation, hence individual self-realization, can proceed adequately.” Beyond the obvious emphasis on relationships as crucial to justice, there are several aspects of Honneth’s account of recognition that accord well with the model of relationalism I have drawn from Melanesia. First, Honneth does not settle for the broad claim that relationships of recognition in general are important for the development of the self. He goes beyond this observation to argue that a number of different kinds of relationships of recognition are necessary for the development of the person. Borrowing from Hegel (and others), he distinguishes at least three kinds of relationships that are crucial: those of love, in which a person’s needs and feelings are recognized; those of respect, in which a person’s possession of autonomy and universal abilities for moral reason are recognized in the idiom of rights; and those of esteem, in which a person’s particular characteristics are recognized for their contribution to the social good by those with whom the person shares values (Honneth, 1996: ch. 5). Although they differ in substance, PNG relational models also stress that various kinds of relationships exist and that each makes its own contributions and demands. This point was left implicit in my discussions earlier in this chapter of PNG material, but it is there in the distinctions I deployed between lineage, kinship, and affinal relations. Put side by side with the PNG model, Honneth’s inclusion of different kinds of relationships of recognition gives his model a greater realism than those that focus almost wholly on relationships of political recognition.

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I do not take up other prominent theorists of recognition, such as Fraser and Taylor, in what follows. I leave their work aside partly for reasons of space, but more importantly because I see Honneth as developing a more fully relational model than others working in this area. I have elsewhere discussed theories of recognition more broadly in relation to PNG material, and have in particular made more than I do here of the Hegelian origin of this tradition of argument (Robbins, 2003, 2009).

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A second aspect of Honneth’s model that accords well with the one drawn from the Melanesian material is that he stresses that relationships of recognition must be mutual to be effective (e.g., 1996: 59, 107–108). In Melanesia, this same stress is present in the insistence that relationships of exchange be reciprocal, either formally or informally over time. Indeed, it is fair to argue that the Melanesian emphasis on exchange brings out the requirement of reciprocity in relationships of recognition in a particularly explicit way and might serve to enhance accounts such as Honneth’s on this point (see also Robbins, 2009.). A final (and perhaps most important) conjunction between Honneth’s model and the one drawn from Melanesia is the claim that both make to be able to distinguish relationships that are going well from ones that are going badly. On the basis of his theory of recognition, Honneth (1996: 106–107) is able to define “relational disorders that can be assessed within the categories of mutual recognition” and to generate “a defensible ideal of interaction” (see also ch. 6). So too in Melanesia, a key plank of relationalist thinking is a confidence in knowing when relationships are good and what demands relationships can legitimately make on their way to attaining their full value. Reciprocity, once again, tends to be key in this regard in PNG understandings, but the more important overall point is that Honneth has rightly captured the centrality of distinguishing between good and bad relationships to models of relational justice. The overlap between Honneth’s recognition-theoretic model of justice and the relational ones drawn from PNG should help render plausible the idea that the notion of the rights of relationships qualifies as a candidate universal. At the same time, it is also important to note that Honneth’s theory falls short of the fully relational model found in PNG because in the end his primary concern is not with relationships themselves, but rather with the “relations” people have with themselves and the selfrealization such relations make possible (1996: 144, 172, and see quotation above from Fraser and Honneth, 2003). Honneth carries out his sophisticated analysis of relationships not because they are important in themselves, but because they are necessary for individual self-realization. Such a move is perhaps mandatory in a tradition in which individuals are the primary unit of value, and Honneth should be given credit for accomplishing the difficult task of seeing the importance of relationships from within such a tradition. But it should be noted that in PNG it is relationships that make claims, and they are construed as doing so on their own behalf, rather than on behalf of the persons who are party to them. There, it is not so much people who have rights to relationships, but the other way around. This point about the limits of Honneth’s model in relational terms is important, for it helps to make clear why anthropology has an important role to play in the search for candidate universals. It is by looking carefully at other traditions, ones in which different representations have come to predominate, that we can best construe

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what universals might exist beyond the ken of those even the most creative of our critical thinkers can currently imagine. Supplying such candidate universals could perhaps provide a new element of the anthropological vocation – or perhaps not so new, only reclaimed. Mauss is arguably the strongest voice at the origin of the relational position I have drawn on in formulating the rights of relationships as a candidate universal. He once wrote that “a civilization must be defined more by its deficiencies, its shortcomings, its refusal to borrow, than from what it has borrowed, the points it shares with others” (quoted in Fournier, 2006: 269–270). Let us say that we live in a time when no one wants to hear the relativist message that other people do things differently and have the right to keep doing so, even on such crucial matters as justice. Let us add that it is also a time in which charting how Western ideas of justice can make a place for themselves in various local situations does little to push anthropology or justice thinking in new directions. If both of these observations are true of our time, then perhaps anthropologists should enter the fray on matters of justice with an eye toward keeping Mauss’s point before the public: In the end, we may best be judged by the universals we cannot see or will not borrow from those who have seen them clearly and elaborated them fully, rather than by the ones that we find it easy to formulate and to value and that we therefore most aggressively promote. References Banks, Cyndi. 2001. Women, justice, and custom: The discourse of “Good Custom” and “Bad Custom” in Papua New Guinea and Canada. International Journal of Comparative Sociology 42(1–2): 101–122. Cowan, Jane K. 2006. Culture and rights after culture and rights. American Anthropologist 108(1): 9–24. Dumont, Louis. 1980. Homo Hierarchicus: The Caste System and its Implications. M. Sainsbury, L. Dumont, and B. Gulati (trans.). Chicago: University of Chicago Press. Executive Board. 1947. Statement of human rights. American Anthropologist 49(4): 539–543. Fournier, Marcel. 2006. Marcel Mauss: A Biography. J.M. Todd, transl. Princeton: Princeton University Press. Fraser, Nancy, and Axel Honneth. 2003. Redistribution or Recognition: A PoliticalPhilosophical Exchange. London: Verso. Gewertz, Deborah B., and Frederick K. Errington. 1999. Emerging Class in Papua New Guinea: The Telling of Difference. Cambridge: Cambridge University Press. Goodale, Mark. 2006. Introduction to “Anthropology and Human Rights in a New Key” American Anthropologist 108(1): 1–8. Gregory, C.A. 1982. Gifts and Commodities. London: Academic Press. Honneth, Axel. 1996. The Struggle for Recognition: The Moral Grammar of Social Conflicts. J. Anderson (trans.). Cambridge: The MIT Press. Josephides, Lisette. 2003. The rights of being human. In Wilson, R.A. and Mitchell, J.P. (eds.). Human Rights in Global Perspective: Anthropological Studies of Rights, Claims and Entitlements. London: Routledge. pp. 229–250.

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Malinowski, Bronislaw. 1961 (1922). Argonauts of the Western Pacific: An Account of Native Enterprise and Adventure in the Archipelagoes of Melanesian New Guinea. New York: Dutton. Mauss, Marcel. 1990 (1925). The Gift: The Form and Reason for Exchange in Archaic Societies. W.D. Halls, transl. London: Routledge. Merry, Sally Engle. 2003. Human rights law and the demonization of culture (and anthropology along the way). PoLAR 26(1): 55–70. O’Hanlon, Michael, and Linda Frankland. 1986. With a skull in the netbag: Prescriptive marriage and matrilateral relations in the New Guinea Highlands. Oceania 56(3): 181–198. Robbins, Joel. 1994. Equality as a value: Ideology in Dumont, Melanesia and the West. Social Analysis 36: 21–70. Robbins, Joel. 2003. Properties of nature, properties of culture: Possession, recognition, and the substance of politics in a Papua New Guinea society. Journal of the Finnish Anthropological Society (Suomen Antropologi) 28(1): 9–28. Robbins, Joel. 2004. Becoming Sinners: Christianity and Moral Torment in a Papua New Guinea Society. Berkeley: University of California Press. Robbins, Joel. 2009. Rethinking gifts and commodities: Reciprocity, recognition, and the morality of exchange. In Browne K. and Milgram L. (eds.). Economy and Morality: Anthropological Approaches. Lanham, MD: Altamira. pp. 43–58. Schieffelin, Bambi B. 1990. The Give and Take of Everyday Life: Language Socialization of Kaluli Children. New York: Cambridge University Press. Speed, Shannon. 2006. At the crossroads of human rights and anthropology: Toward a critically engaged activist research. American Anthropologist 108(1): 66–76. Strathern, Marilyn. 1988. The Gender of the Gift: Problems with Women and Problems with Society in Melanesia. Berkeley: University of California Press. Strathern, Marilyn. 2005. Kinship, Law and the Unexpected: Relatives are Always a Surprise. Cambridge: Cambridge University Press. Wagner, Roy. 1977. Analogic kinship: A Daribi example. American Ethnologist 4(4): 623–642. Wagner, Roy. 1981 (1975). The Invention of Culture. Chicago: University of Chicago Press. Wardlow, Holly. 2004. Anger, economy, and female agency: Problematizing “Prostitution” and “Sex Work” in Papua New Guinea. Signs 29(4): 1017–1040. Wardlow, Holly. 2006. Wayward Women: Sexuality and Agency in a New Guinea Society. Berkeley: University of California Press. Wilson, Richard A. 1997. Human rights, culture and context: An introduction. In Wilson, R.A. (ed.). Human Rights, Culture and Context: Anthropological Perspectives. London: Pluto. pp. 1–27. Wilson, Richard A. 2006. Afterword to “Anthropology and Human Rights in a New Key”: The social life of human rights. American Anthropologist 108(1): 77–83.

9 Irreconcilable Differences? Shari’ah, Human Rights, and Family Code Reform in Contemporary Morocco Amy Elizabeth Young In a highly critical article, Naz K. Modirzadeh (2006) challenges the international human rights community’s refusal to address Shari’ah, or Islamic law, when it appears to foster violations of international human rights norms. According to her, this strategy is characterized by a caveat fidelis in almost all Human Rights Watch and Amnesty International reports focusing on Muslim societies, stating that international human rights NGOs (INGOs) take no position on religious law in the region and, for the most part, avoid the fact that many human rights violations in the region are rooted in some form or interpretation of Shari’ah. For most Muslims, she argues, “The question of ‘Islam and human rights’ is not, in fact, whether or not there is a conflict but, rather, how such a conflict is to be addressed”; the fact that INGOs refuse to address this conflict between two competing legal regimes is “bad for activists, bad for Islamic law, and bad for human rights” (2–3). In an equally persuasive manner, Anthony Chase (2006) argues for the necessity of pursuing human rights in Muslim-majority Arab states outside of the framework of Islam: “[P]laying on Islamic turf is not only a transparent, losing strategy, . . . but, more dangerously, it also de-legitimizes non-Islamic norms in predominantly Muslim societies and implicitly accepts their marginalization” (Chase, 2006: 22). For him, human rights violations grow out of political, economic, and social phenomena rather than out of Islam; therefore, addressing and preventing violations must involve political, economic, and social solutions rather than reference to religion. As against Modirzadeh’s argument, addressing the conflict between Islam and human rights can only (or at least best) involve promoting the international human rights regime rather than attempting to reconcile it to Shari’ah. Where these authors agree is in their call for well-contextualized empirical data on human rights activism and discourse in, respectively, Muslim or Arab societies. This chapter provides such an example and contributes to the debate by discussing a major human rights issue in contemporary Morocco: women’s rights, more specifically the

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2004 reform of the Family Code (mudawwanat al-usra, hereafter “Mudawwana”).1 In the following section, I will briefly discuss the meanings of Shari’ah and how different notions of justice are embedded in discourses around women’s rights generally within Muslim contexts. Then I will examine the Moroccan reform, focusing on one particular provision and the debates that surrounded it. Using this case study, I will then return to the opposing positions of Modirzadeh and Chase to answer the following questions: How can the examination of complex arguments around human rights and legal change aid the work of human rights actors? To what extent can human rights be addressed outside the framework of Shari’ah in Muslim societies? Is it possible and useful for a legal text such as the Mudawwana to be written in a way that makes space for competing notions of justice (secular vs. religious)? SHARI’AH, HUMAN RIGHTS, AND JUSTICE: IRRECONCILABLE DIFFERENCES?

In an attempt to address a complex issue, I would like to point to two aspects of Shari’ah most relevant to this discussion. First, the word “Shari’ah” simultaneously refers to the ideal path (shari’ah) that Allah has given for all believers to follow and is used a catch-all term for a compilation of centuries of jurisprudential writings and decisions (fiqh) that have led to different legal codes in various Muslim communities. In Islam, there are multiple sources of textual authority. The first is the Qur’an, believed to be the divine word of God as revealed to the Prophet Mohammed and shared by him with the Muslim community. The second is the Sunna, which is the compilation of sayings and deeds of the Prophet Mohammed. Whereas the Qur’an is unassailable as the direct word of God, the Sunna is acknowledged as being slightly more open to interpretation because it was reported by humans; and Mohammed, the best exemplar of Muslim values, was human and therefore not infallible. The third textual source of authority is jurisprudence, which represents attempts by Muslim thinkers and jurists – very human indeed – to translate the Qur’an and Sunna into practical laws and rulings for the Muslims of their respective periods. As Ann Elizabeth Mayer writes, “Islamic law has traditionally been a jurists’ law” (1995: 95). These rulings are often contradictory, and various “schools” of jurisprudence prevail in different parts of the Muslim world.2 Finally, what is today 1

2

Although referred to as the Family Code in Morocco, the more general term for this set of laws in the Muslim world is “personal status code.” Mudawwana is actually a general term for “code” in Arabic, but in Morocco only the Family Code is referred to as the Mudawwana. Sunni Islamic jurisprudence emerged in the eighth century around a number of great and pious imams, or leaders of the community; four “schools” (mathahab; sing., mathhab) – the Hanafi, Maliki, Shafi’i, and Hanbali – survived over time. The Jafari school emerged as the most important for the Shi’i community. The Maliki school applies in most of North Africa.

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called Shari’ah also includes a congeries of customary law, colonial law, European law, and attempts at modernization of legal codes by states; each Muslim society therefore has its own unique version of Shari’ah. This variance is evident in the reactions of Muslim-majority states to the United Nations (UN) Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), instituted in 1979 and ratified by individual states in successive decades. States were allowed to enter reservations about particular provisions of CEDAW that conflicted with their own state laws. Although all Muslim-majority states invoked Shari’ah as the reason for the reservations they entered, according to Juliet Combe, “there was no unanimity among Muslim countries concerning the reservations, and no article was met with reservations by only Muslim countries” (2001: 77). In terms of its symbolic value, however, Shari’ah is often invoked as an authentically Muslim body of laws that stands in contradistinction to any attempt to transform Muslim societies by colonial powers, cultural imperialism, hegemonic notions of human rights, and other perceived external agents of change. For many societies, family law is the only, or at least the most important, body of laws that still has a foundation in Shari’ah. In Morocco, for example, most legal codes are European derived except for the Mudawwana. Attempts to change family law have therefore met with great resistance and claims that the family is the last holdout of authentic Muslim culture and practice. The international human rights regime, from this perspective, is yet another form of cultural imperialism aimed at destroying Islam from within; and Muslim-majority states that sign on to UN conventions ask for exemptions from provisions deemed to be in conflict with Shari’ah. The international human rights regime has been conceived as a project of developing laws that are universal in resonance, scope, and application. The effort to institute CEDAW, for example, was a recognition – developed transnationally, by representatives of women’s NGOs from around the world, in partnership with the UN – that women everywhere are subject to inequalities that must be addressed and corrected by states. Although the forms of inequality may be vastly different in different settings, CEDAW affirms that women have a fundamental right to equality no matter in which nation-state they reside. Universalism as a shaping discourse (see Goodale, 2006) is necessary here – although it is necessary, of course, to keep in mind feminist and other critiques of the so-called universality of international human rights. Ironically, those individuals and groups who critique the universality of human rights often produce their own universalisms. The Islamic Council, for example, criticized the International Declaration of Human Rights as being too based on individualism and rights, rather than communalism and responsibilities, and therefore inapplicable to the Muslim community; so they wrote the Universal Islamic Declaration of Human Rights in 1981, beginning with the statement, “Islam gave to mankind an ideal code of human rights fourteen centuries ago” (Islamic

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Council, 1981). This declaration was conceived as universal for Muslims, although of course there are significant divides within that category along socioeconomic, ethnic, gender, sectarian, and other lines. Similarly, family law plays the role of a kind of universal CEDAW, delineating rights and responsibilities of Muslim women – although the actual lives of women vary considerably across different societies and circumstances. Both universalisms rely on notions of justice that are left unspecified and unexplained yet are seen as the material, legal means of promoting or ensuring justice. CEDAW never uses the word “justice” but relies heavily on “dignity,” “rights,” “equality,” and other terms that point to CEDAW’s vision of justice for women. In Islam, according to the religious scholar Muhammad Amara, justice is the preeminent value but should be seen more broadly as a “compulsory religious duty imposed upon mankind” rather than as a specific right or set of rights (1996: 50). In Islam as in other religions, justice is seen as deriving from God; God is the guarantor of human rights and other forms of justice, through the material provisions of Shari’ah. This can be overstated, however, in that Islam also fully recognizes that justice must be carried out through human institutions and demands that Muslims work to achieve social justice. In both conceptions, today, this justice is demanded and expected from the state, whether as the elected representative of the people’s wishes or the self-named authority that can speak for God. Although there is a range of discourses about the role of family law in delineating rights and responsibilities of family members in Morocco (as elsewhere across the Muslim world), debate generally rests on two major paradigms that fit with the above notions of justice: equality versus complementarity between males and females. For one group, self-referred “modernists” including women’s rights and human rights organizations and left-leaning political parties, the family should be ordered legally around a principle of equality. These groups tend to base their arguments in the language of CEDAW, the Preamble of which explicitly speaks of the need to end “traditional” roles and responsibilities of men and women that are based on sex and act as obstacles to equality. The word “equality” is ubiquitous in the slogans and programs of the Moroccan women’s rights movement: A coalition working toward legal change in 2002–2003 called itself “Springtime of Equality”; the 2002 brochures of the Democratic League of Women’s Rights (LDDF) called for “Justice and Equality for a Harmonious Family”; a 2005 guide produced by the North African network Collectif 95 Maghreb-Egalit´e, titled Guide to Equality in the Family in the Maghreb, “treats equality as simultaneously a frame of reference, an evolving social practice, and an action plan” (ADFM, 2004: 1). In making reference to religion, women’s rights activists often point out that the Qur’an affirms the equality of all believers before God; other religious texts and jurisprudential arguments are secondary to this fundamental principle of equality and must be contextualized in

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the historical, economic, political, and social contexts of the time during which they were revealed or written. In their public discourse and publications, Islamist groups3 have drawn a distinction between equality as similarity and as complementarity. The Organization for the Renewal of Female Consciousness, a women’s association attached to the Islamist political party, the Party of Justice and Development (PJD), affirms that equality between men and women is based on the unity of their human origins, providing an equilibrium in their perceptive and productive capacities that should not be confused with similarity: “Complementarity is a distinct characteristic of human existence, and the human being cannot hope to attain a perfect social and intellectual existence alone, which is why God distinguished human equilibrium with the complementary duality on which relationships between men and women are based” (Organization for the Renewal of Female Consciousness, 1997: 5). As noted by multiple authors in the current volume, human rights can be conceptualized as a concrete set of steps that reflect more illusory concepts of justice. As we know, however, the proof of the justice is in the taste of the human rights – the actual laws or rights established will reflect particular notions of justice. If these notions of justice are ultimately religious ones for Muslims (including women’s rights activists who see equality as growing out of the fundamental status of believers before God), then is it possible to speak of human rights outside the frame of religion? And if the international human rights regime is ultimately based on secular conceptions of justice, then is it possible to reconcile human rights with Islamic conceptions of justice? In the following section, I describe the 2004 reform of the Mudawwana in Morocco, which I argue has allowed space for multiple conceptions of justice by establishing a set of laws that bring individuals and families into direct negotiation with each other and the courts. THE 2004 MUDAWWANA REFORM IN MOROCCO

I performed ethnographic fieldwork in 2002–2003 among associations and individuals involved in a movement the primary goal of which was reform of the Mudawwana. The Mudawwana at that time was based on a notion of complementary roles for males and females with the following relationship at its core: A husband was legally required to support his wife financially and, in exchange for this support, his wife was legally required to obey him. The women’s rights associations with which I worked 3

By Islamists, I refer to two major groups: the Party of Justice and Development (PJD), which is a legal political party; and the Justice and Spirituality Movement (JSM), a quasi-legal association. Both seek a political and social order based on Islamic principles, but the PJD is explicitly pro-monarch and committed to working within the political system. They often – but not always – combine forces for shared political purposes.

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called for reform of the Mudawwana around a core of equality, removing this discriminatory relationship and the other provisions that derived from it. Toward the end of my fieldwork, in October 2003, King Mohammed VI made a historic speech announcing his proposal for a vast and revolutionary reform of the Mudawwana. By February 2004, Parliament debated and approved the proposed reform within the general parameters set by the king, after making certain modifications, and the Ministry of Justice implemented the new Mudawwana. It included major reforms, first and foremost instituting the principle of equality, naming husbands and wives equal heads of household without requiring obedience from wives and changing much of the language of the Mudawwana to reflect a greater degree of (although not complete) equality between males and females. Other changes granted broader rights to divorce for women, placed restrictions on male rights to polygyny and repudiation, elevated the legal age of marriage to 18 for both boys and girls, and removed the requirement that females contract their marriage through a male guardian or representative. Numerous reasons can be given for this reform, including: the king’s attempts to court favor with (and respond to pressure from) Western governments and aid agencies; the state’s need to thwart the growing power of Islamists and bolster the power of moderate and left-leaning parties and civil society members; and the hard work for more than a decade of a strong and determined women’s rights movement (Clark and Young, 2008; Sadiqi and Ennaji, 2006; Young, 2005). The reality is almost certainly a complex combination of them all. The reform can be understood only as part of a longer process. The original Mudawwana was implemented in 1957, the year after independence from France, and subject only to minor changes until an increasingly influential women’s rights movement collected one million signatures in 1992 petitioning King Hassan II for reform. The resultant 1993 reform did not meet the movement’s demands, but nevertheless had vast significance: It was now clear to Moroccans that family law, although based on interpretations of Shari’ah, was not necessarily sacred and could be debated, changed, and even updated to make it more congruent with the realities of contemporary Morocco. That the idea of the Mudawwana as Shari’ah was still important became evident in 1999, however, when the socialist government proposed the Plan of Action for the Integration of Women in Development, basically a laundry list of Mudawwana reforms that the women’s rights movement had been demanding. The Plan of Action’s reforms were justified entirely in secular language, referencing CEDAW and other international human rights documents. It was immediately rejected by Islamists; the female spokesperson of the prominent quasi-legal association, the Justice and Spirituality Movement (JSM), was quoted as saying, “We oppose the fact that this plan is dictated by the World Bank and other ill-intentioned Western institutions.”4 In the following spring of 2000, Islamists sponsored a march 4

Available at http://www.nadiayassine.net/en/page/10297.htm (consulted July 2009).

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against the Plan that attracted some ten times the participants, perhaps as many as a million, of an earlier march in support of it. The newly enthroned King Mohammed VI took a step back from his support of the Plan of Action and formed a consultative commission comprising religious leaders, political leaders, academic professionals, and women’s rights and human rights activists; and, after three years, he made his decision about reform. One can see that, more than a debate over whether women should have “rights,” this was a debate over the very nature of law itself and the extent to which the Mudawwana should be a reflection of universal human rights and/or Shari’ah. King Mohammed VI seemed to believe that the rights of women could be reconciled with Shari’ah in the Mudawwana; its preamble states: His Majesty . . . insisted upon [the Commission’s] fidelity to the provisions of Sharia and Islamic principles of tolerance, and encouraged the use of ijtihad [juridical reasoning] to deduce laws and precepts, while taking into consideration the spirit of our modern era and the imperatives of development, in accordance with the Kingdom’s commitment to internationally recognized human rights.5

I returned to Morocco in December 2006 and January 2007 to determine to what extent the new Mudawwana had been implemented. Implementation had been obstructed by material factors, such as insufficient staff to handle judicial cases quickly and efficiently and lack of retraining for judges and other officials; legal factors, such as the presence of loopholes that allow the law to be practiced much as it was before; and societal factors, such as lack of awareness of the new laws on the part of many women and men. The discourses and controversies surrounding reform and implementation can be seen in a close look at the debate around the wilaya provision, one of the most significant reforms in the eyes of women’s rights activists. Before the 2004 reform, the wilaya provision stated that any female, regardless of age or situation, must have her marriage contracted through (and therefore with the permission of) a male wali, normally her father but possibly any other male family member.6,7 Women’s rights activists considered this a great inequality: Males could marry independently, 5

6

7

All excerpts from the 2004 Mudawwana are from an unofficial translation by the Moroccan office of the American NGO Global Rights, which I compared to the original Arabic and French versions to my satisfaction. See http://www.globalrights.org (consulted July 2009). This term is difficult to translate into English because we lack a similar legal concept. It is usually translated “tutorship” or “guardianship,” but persons in favor of the wilaya provision object to these terms because they give the sense that the wali – the tutor or guardian – has power over the female when, from their perspective, the wali is merely a representative who fulfills the female’s wishes. Persons opposed to the wilaya provision would argue that the law has in fact allowed the wali to have material power over the female. Because of this contention over terminology, I will use wilaya and wali, untranslated, throughout the remainder of this chapter. Due to pressure by women’s rights activists, there was a cosmetic change to the law in 1993: It was written that an orphaned female had the right either to contract her own marriage directly or to designate a wali.

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without the involvement of a wali, after the age of 15. It was also a sign for activists of how the law and society infantilized women: Even a professional woman, age 50, with university degrees and her own income (which, not coincidentally, was the profile of many of the women’s rights movement’s most outspoken proponents of reform), was forced to contract her marriage through a wali and could not easily go against his decision if he refused. Moreover, it left room for abuse: fathers marrying off their daughters against their will to men they did not want, or tricking their daughters and marrying them off by proxy. Although the complexities of women’s issues always provoked public debate, there has been a general consensus against this particular reform. A 2006 report by the Moroccan Commission on Planning shows that 73.4 percent of respondents (including 75.4% of men and 71.2% of women) are against the removal of the wilaya as a requirement for marriage. For many, the wilaya provision is protective of women by ensuring that their youth and the blindness of love will not lead them to make bad decisions rooted in a disrespect of parental authority. This protection is especially important in a society in which women in general are financially dependent on men and sometimes far away from their own families and the help they offer, and where the consequences of a bad choice in marriage are so potentially disastrous. The tensions over this issue are well encapsulated in the example of one of my interviewees, Aisha.8 When I met her, she was divorced and working as the director of a new domestic violence shelter for a prominent women’s rights association in Rabat – the one that had helped her win her divorce. Her husband had abused and almost killed her because she refused to prostitute herself to bring extra income into the household. She had fallen in love with him at the young age of 18, and initially her father had refused to allow her to marry him, claiming he could see that the man had a bad character. Broken-hearted, over time she was able to convince her father, and the marriage proceeded. Her father died before her marriage became violent; when she sought help from her eldest brother, he refused to intervene because she had gone against their father’s wishes in her choice to marry this abusive man. I will never forget the moment I asked her if her story showed the necessity of the wilaya provision. She paused, and a number of emotions flitted across her face before she finally shook her head and told me that no, it was more important for a woman to be able to choose for herself. Aisha’s statement shows the success of the “translation” process whereby women are taught by activists to speak of their personal experiences through a discourse of rights (see Merry, 2006b). Her hesitation also suggests the continuing attraction of family norms that can protect the individual from the consequences of individual choice. The Parliamentary debate over the wording of Article 25 in the 2004 reform shows the perspectives of various political factions. The “Socialist Left Group” (led 8

Interview with author, December 13, 2003, Rabat, Morocco.

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by the major leftist party, the Socialist Union of Popular Forces, USFP) proposed the following wording: “The woman of legal majority may choose to conclude her marriage herself or delegate this right to a person of her choice” (Nouvelles 16). Note that choice is the first notion presented, and the act of concluding the marriage herself is the first of two possible choices. Also, significantly, she may delegate this right to a “person” of her choice, with the sex and relation of this person left unspecified. The “Justice and Development Group” (led by the Islamist PJD), in contrast, proposed the following: “The woman of legal majority may, according to her will, delegate to her father or one of her close relatives the right to conclude her marriage” (Nouvelles 16). In this wording, choice is implied in the word “may” rather than made explicit; indeed, the only choice that appears possible is that between the father or another male relative as wali. Both of these proposals were rejected in the final version because they were said to contradict the spirit of Article 24, which states, “Wilaya is the woman’s right, which she exercises upon reaching majority according to her choice and interests.” The final wording of Article 25 was thus: “The woman of legal majority may conclude her marriage contract herself or delegate this power to her father or one of her relatives.” The PJD abstained from voting on this particular provision, although party members voted unanimously in favor of the overall reform. Clearly, both notions of justice as equality and complementarity are upheld. Women’s rights activists claim victory because the reform levels out inequalities between males and females by removing the wali’s oversight as a requirement of marriage and rendering the wilaya a woman’s choice or right. Furthermore, the reform mitigates the infantilization of women. Although activists acknowledge that the practice of the wilaya is unlikely to change in any widespread form, it is important to them that women have the legal backing to oppose their families, if necessary, and to stand up for themselves and their own choices. As society changes and women become more independent of their families, the law will support women who desire to contract their own marriages. Islamists also claim victory because the reform allows the continuation of the wilaya, which will no doubt be little affected by the reform; women will in reality feel they have little choice but to use their father or another male relative as wali. This provision allows cultural and religious norms to continue and maintains the complementary family system in which fathers have dominance over daughters and men make decisions for women. As one prominent PJD member explained, the PJD was satisfied with the end result because it represented a “middle way” between the 1999 Plan of Action for the Integration of Women in Development, which would have abolished the wilaya altogether, and the retention of the “special status” of the wilaya that the PJD preferred.9

9

Interview with author, January 5, 2007, Rabat, Morocco.

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Another notion of justice emerges in this debate, and that is a concern over the economic dependence of women on men and how best to protect them from the consequences of a bad marriage. This issue is, of course, related to the idea of paternal protection of a daughter, but it represents its own category of justice as well, as it suggests that Moroccans’ belief in this notion of complementary rights and responsibilities in the family rests on economic and social realities rather than on some timeless, decontextualized notion of justice. This economic aspect is important because one of the major arguments for equality in the Mudawwana is that the complementary notion of the family (which is based on female economic dependence on males) should not apply in a contemporary context, when women (including wives and daughters) are increasingly earning money outside of the home and are contributing to the household and are even, in some instances, the primary income earners in a household. In considering the debate about competing notions of justice, it is important to keep in mind that, for Moroccans, economic realities are a significant issue. The wilaya reform, unlike most of the others, is, practically speaking, unenforceable. There is no way for the court to determine whether a female has been forced to “choose” a wali to conclude her marriage contract, unless she makes this force clear, taking advantage of laws allowing her to end a fraudulent or forced marriage. Furthermore, there is no way to collect statistics on whether women are choosing the wali less often or why. Then why is it seen as such a key issue and a victory for each paradigm of family roles and responsibilities? Because it is an excellent example of how legal reform can allow both notions of justice to coexist, neutralizing the discursive divide on justice and allowing space for Moroccans themselves – individuals and families – to decide how best to proceed. The reform is nevertheless a significant change in that it allows women to have greater power in making decisions or participating in decisions made before the court. In other provisions as well – including those around marriage, divorce, and child custody – women are present in these decision-making processes, and even physically present in the courtroom, in ways that they were not before. SHARI’AH AND HUMAN RIGHTS: RECONCILABLE DIFFERENCES?

Thus, rather than being reconciled, Shari’ah and international human rights norms can more accurately be described as resting together in the same legal document, reflecting multiple notions of justice. The overall conceptualization of the new Mudawwana is such that both Shari’ah and the international human rights regime are referenced as holding utmost importance, and key individual articles are worded vaguely enough that political factions representing divergent perspectives can claim that the new Mudawwana reflects a victory for their own point of view. Both

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women’s rights activists and Islamists know well what legal anthropologists have long attempted to teach their audiences: that the implementation of law is not an end in itself but rather part of a process of building legal principles into the minds and practices of people and institutions within a society, as Merry succinctly writes: “[L]aw’s power to shape society depends . . . on becoming embedded in everyday social practices, shaping the rules people carry in their heads” (2006a: 3). Before the 2004 reform was even announced, my informants in women’s rights associations were insisting that reform would be only the beginning of a long process of “changing mentalities” such that individuals would begin to practice the principles of equality themselves – for example, each family would support its daughter’s right to contract her own marriage regardless of whether the wilaya provision remained in the Mudawwana. Yet data collected by the Democratic Association of Women’s Rights (ADFM) in 1999 showed that Moroccan public opinion on equality is clearly in favor of maintaining the traditional roles imparted to each [gender]. This shows an idealized vision of the family, social relations, and division of tasks founded on a traditional representation of the roles of each member of the family, in conformity with the patriarchal model. The family relations appear strongly hierarchical, with a strict separation of roles. The father is represented as head of the family and therefore responsible for providing the material needs of the household. The mother herself is responsible for the smooth running of the household, the accomplishment of housework, and the education of children. (ADFM, 2004: 9)

Now that the actual implementation of the new Mudawwana appears to be more fraught than previously imagined, women’s right activists claim that it could be as many as twenty years before the institutions for supporting the new law are fully developed, much less before mentalities begin to change. They nevertheless consider the reform to be a major victory because it provides a legal and discursive foundation for this change of mentalities and legal assurances for women who are aware of their rights and can seek legal forms of justice. Similarly, Islamists also have a larger vision for the family that they claim has little relationship to the implementation – or lack thereof – of the Mudawwana. As the above mentioned PJD leader informed me: There is a dynamic with changing the law, a way of thinking, seeing the world. In countries like Morocco, these [reforms] are changes but not the crucial step – rather it is the willingness to work within society, family, building solutions to their problems and daily lives. So some of the Mudawwana is just theoretical . . . So our question is not polygamy or the age of marriage, but how to build strong families – this the Mudawwana didn’t deal with.

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He went on to name problems that harm women that the Mudawwana does not even attempt to address, such as violence against women, sexual harassment, and sex tourism/prostitution. (To clarify, the women’s rights movement also addresses these issues but believes that they fall under the purview of the Penal and Labor Codes rather than the Family Code.) At the same time, the Moroccan state can boast that it has produced a document that accomplishes three difficult goals: it upholds international human rights and women’s rights norms, underlines the important role of Shari’ah in a Muslim society, and represents a somewhat democratic process that allowed for discussion and debate of complex issues concerning women and the family. It is now up to Moroccans (with, of course, guidance by various political and social actors) to decide how to weight the importance of these different accomplishments and how to reconcile their ambivalent feelings toward Shari’ah and international human rights norms for themselves. In other words, everyone is happy – for now. The 2004 reform is a compromise, a vague document that allows for a variety of projects and directions that must now be negotiated among the state, the courts, families, and communities. In this sense, ironically, the new Mudawwana is more like Shari’ah than ever before. Shari’ah was never intended to be a hard and fast list of laws that must be followed; rather, it was a body of rulings that allowed for negotiation between different parties in front of a knowledgeable jurist who could guide them (Esposito, 2001; Mir-Hosseini, 2000). Marriage and divorce were intended to be decided by husbands and wives and their families rather than by the court, which was merely there to ensure that the parties were dealing with each other justly. Justice lay in the community and in relationships between people and groups. Exciting recent scholarship on medieval court records in a variety of Muslim communities finds that women sued for justice in family and business life and almost always obtained it (Nashat and Tucker, 1999; Sonbol, 1996). It was with the rise of the modern state (helped along by the colonial powers) during the last two centuries, with its insistence on the codification of laws and the institutionalization of justice, that family law reached a level of rigidity that often works against women. CONCLUSIONS

Returning to the views of Modirzadeh and Chase referenced at the beginning of this chapter, regarding whether human rights actors should engage with Shari’ah, I would like to contribute to that debate by drawing three conclusions from the example of the 2004 Mudawwana reform. First, a close look at the complex factors surrounding a particular issue emphasizes the deep ambivalences that can exist within a society toward both Shari’ah and international human rights norms. What

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if, rather than taking a definitive stance on Shari’ah, INGOs and other human rights actors attempt to understand complexities, represent their own point of view, support local efforts to promote the international human rights regime, and allow space for debate over the relationship between Shari’ah and international law? Such an attempt would resolve the major obstacle that Modirzadeh describes for INGOs: that they do not know how to address Shari’ah. The discussion in this chapter shows the importance of the idea of Shari’ah in the legal and political discourse of Morocco and also in the “mentalities” and practices of Moroccans. A 2006 report by the Moroccan Ministry of Planning on social attitudes toward the new Mudawwana and women’s issues more generally shows that Moroccans are greatly supportive of equal educational opportunities for women (92.2% of respondents, including 89.9% of men and 94.5% of women) and women’s right to paid work (73.7% of respondents, including 59.7% of men and 87.3% of women), and they are willing to vote for female candidates for public office (75.2% of respondents, including 63% of men and 87.2% of women).10 The results are more mixed, however, on issues in which Shari’ah and human rights norms may be in conflict, such as the wilaya provision. Yet these same statistics show that Moroccans are not blindly devoted to Shari’ah or to the complementary notion of family rights and responsibilities. For example, because men are responsible for financial maintenance of the family, most jurists (including those of the Maliki school of Morocco) do not require wives to share their own money – from work or inheritance – with their family. The 2006 report, however, shows that, nevertheless, 77.5 percent of Moroccan men and 84.7 percent of women feel that women should not have the right to dispose freely of their own revenue, that they should contribute it to household expenses. Human rights actors cannot simply push all this complexity and ambivalence aside and advocate only for the prevalence of international human rights norms, especially on the issues of women’s rights and family law. They would do better to acknowledge it, address it, and allow the examination of multiple perspectives on legal reform. This approach would also allow INGOs to determine which issues would be a more appropriate focus for them; perhaps less contentious issues, after being determined, could be prioritized. Second, human rights actors can play a role in producing legal change that allows for Shari’ah and international human rights norms to coexist. This strategy is more useful than either ignoring or declaring war on Shari’ah, which has indeed

10

“La femme Marocaine sous le regard de son environnement social,” published by the High Commission of Planning in September 2006. The study included 3,700 households, surveying 6,378 individuals, of which 47.3 percent were male and 52.7 percent female; responses were broken out according to sex, age, marital status, educational level, occupation, urban or rural residence, and socioeconomic class (based on type and location of dwelling).

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marginalized the human rights community in some settings, just as Chase fears. What is crucial here is for human rights actors to note that contention is not only over competing forms of human rights but also over complex and sometimes interwoven notions of justice. For many or most Moroccans, and other Muslims as well, these notions of justice come ultimately from religious values; even women’s rights activists who push for secular notions of human rights in Morocco do so because their view of justice is based on the notion that all believers are equal before God. Islamist leaders in Morocco have shown that their adverse reaction to the 1999 Plan of Action was not necessarily due to the fact that they despise the idea of women’s rights but, rather, that they wish for these rights to be expressed through Islamic rather than secular values. With the removal of the notion that secular and Islamic approaches to human rights issues are inimical to one another and the notions of justice that inspire them, a space can be created for human rights actors from different political factions to work together in greater cooperation and understanding. Removing the “either Shari’ah or human rights” dichotomy also will moderate the discourse of persons who advocate the most extreme applications of Shari’ah, by forcing them to account for their propositions that come most egregiously into conflict with international human rights norms. Finally, engaging Shari’ah and its complexity – or at least supporting individuals who are already doing so – ultimately will advance the international human rights cause. Numerous scholars and activists (including those called “Islamic feminists” or “Quranic feminists”) are pushing for new interpretations of Shari’ah that restore equity between men and women (e.g., An-Na’im, 1990; Safi, 2003). They are convinced that international human rights, for the most part, can be supported by the Qur’an and the example of the Prophet Mohammed; they would agree with Modirzadeh’s statement that “it would seem that any religion committed to divine justice, mercy, charity, and goodwill toward others may be broadly consistent with human rights principles” (2006, 2). From this perspective, it is actually centuries of interpretation by male jurists, and state interference, that have produced and institutionalized gender inequality. The movement for ijtihad, or reasoned interpretation, and reform with the Muslim community, is the most likely source of discourse and legal change that can reconcile the international human rights regime and Shari’ah and convince states to better protect the human rights of all citizens. Again, reporting on complexity and allowing a space for multiple perspectives to be discussed support this effort by helping to convince both Muslims and the international community that Shari’ah allows numerous possibilities of interpretation. In this process, women’s voices in particular are crucial, both in developing new perspectives on old interpretations of Shari’ah and in determining what women actually consider to be human rights abuses against them – rather than continuing to allow male policy makers and human rights advocates to do so alone (Bunch, 1995).

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I suggest that “religion” is something of a red herring, even for individuals who claim it as their first concern. Although, in Morocco, clear religious arguments were made during Parliamentary debate in favor of abolishing the wilaya provision, Islamists were nevertheless in favor of retaining it.11 Why? Because, as former judge Omar Mounir writes, familial practices are centered around the “super-privilege” of an elder male over the females and junior males of his family (2005: 25). When invoking “religion,” individuals and groups are often actually making arguments about “culture,” especially when they believe that culture to be under threat by Western cultural imperialism in the form of so-called human rights that would shift the balance of power within the family. It is no surprise that “culture” is used as a bulwark against legal change and compliance with international human rights norms in numerous settings, as shown so successfully by Merry (2006a) in her description of state reactions to CEDAW. What may be a surprise is that the use of cultural arguments is just as prevalent in Muslim-majority settings, where analysts and human rights actors tend to take “religion” at its word and shy away from deconstructing it. I believe that this is the heart of Modirzadeh’s critique. When in other contexts religion is set against human rights or women’s rights, human rights actors are willing to consider that the invocation of “religion” is actually a cover for fears of cultural change or the loss of state or family authority over individuals. When Muslims invoke “religion” or “Shari’ah,” however, actors are intimidated and easily back down or avoid discussion altogether. Again, by addressing the complexity of human rights issues, including an examination of the religious arguments around them, human rights actors could provide the great service of deconstructing discourse that erroneously sets Shari’ah against international human rights and, as Chase worries, marginalizes the latter. Examining resistance to changing the wilaya provision in Morocco, for example, shows that an issue that appears, on the surface, to be about a religious notion of complementary rights and responsibilities is also about the loss of cultural privileges held by males within families and concerns about the economic dependence of women in contemporary Moroccan society. 11

The arguments raised in Parliament derive from the Qur’an, the Sunna, and the reasoning of classical jurists of the Hanafi, Hanbali, and Maliki schools (Nouvelles 14–15). First, the Quran: “[D]o not stop them from marrying other men if it is agreed between them honorably” (excerpt from 2:232). Abu Hanifa indicated that a woman has the faculty to marry independently and to give this mandate to another person to conclude the marriage act. Ibn Qudama, a Hanbali jurist, also indicated that, because a woman has the right to dispose of her wealth, she has the right to dispose of herself. The Maliki jurist Al Baji reports a story of the Prophet Mohammed concerning Khaoula (sic: this should read “Khansaa”) bint Khaddam, who told the Prophet that her father had given her in marriage to his nephew, whom she hated. The Prophet told her, “Consent to what your father has done.” She replied, “But I do not love him.” Wherefore the Prophet answered, “Do what you want.” Khaoula (sic) retorted, “I consented to my father’s decision, but I wanted men to know that they have nothing to do with women’s affairs.”

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To address complexity and open up these spaces for consideration of arguments about Shari’ah will take a major commitment on the part of human rights actors and, as Modirzadeh demonstrates in her article, a major change in approach. In a world in which catchwords such as “burka,” “stoning,” “executions,” “polygamy,” and so on, have come to connote Shari’ah, a switch to looking at the complexities of Shari’ah and its place in Muslim discourses on human rights will likely damage the ability of INGOs to raise money in the West, shock members into signing petitions and taking action, and force governments to change through “naming and shaming.” It will also certainly mean that human rights actors must face disappointment when what they consider to be inequalities are upheld in this process of exploring complexity and allowing multiple voices (as in the case of the wilaya, which will no doubt continue as before in Morocco). If international human rights norms are to make major inroads into the political and legal structures of the Muslim world, however, international and local human rights actors must play a role in this process through supporting efforts to understand complex legal and cultural issues and to produce laws that speak to Muslims who want human rights and justice. The members of each society can take it from there, as Moroccans will now do. Time and experience will tell how the 2004 Mudawwana reform will translate into changed practices and “mentalities,” but the legal principles are in place to support human rights and justice for women, in the senses intended by both Islam and the international human rights regime. References Amara, Muhammad. 1996. Islam and Human Rights: Requisite Necessities rather than Mere Rights. Mimoun Mokhtari (trans.) and Lahcen Haddad (rev.). Rabat, Morocco: Islamic, Educational, Scientific and Cultural Organization. An-Na’im, Abdullahi Ahmed. 1990. Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law. Syracuse: Syracuse University Press. Association D´emocratique des Femmes du Maroc (ADFM). 2004. L’Egalit´e entre les Hommes et les Femmes: Point de vue de la population marocaine (self-published). Bunch, Charlotte. 1995. Transforming human rights from a feminist perspective. In Women’s Rights, Human Rights: International Feminist Perspectives. New York: Routledge. pp. 11–48. Chase, Anthony. 2006. Introduction: Human rights and agency in the Arab world. In Chase, A. and Amzawy, A. (eds.). Human Rights in the Arab World. Philadelphia: University of Pennsylvania Press. Clark, Janine A. and Amy E. Young. 2008. Islamism and family law reform in Morocco and Jordan. Mediterranean Politics 13(3): 333–52. Combe, Juliet. 2001. La Condition de la Femme Marocaine. Paris: L’Harmattan. Esposito, John L. 2001. Women in Muslim Family Law, Second Ed. Syracuse, NY: Syracuse University Press. Goodale, Mark. 2006. Ethical theory as social practice. American Anthropologist 108(1): 25–37.

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High Commission of Planning (Haut Commissariat du Plan), Royaume du Maroc. (September 2006). La Femme Marocaine sous le Regard de Son Environnement Social. Islamic Council, The Universal Islamic Declaration of Human Rights. 1981. Available at: http://www.alhewar.com/ISLAMDECL.html (accessed July 2009). Mayer, Ann Elizabeth. 1995. Islam and Human Rights: Tradition and Politics, Second Ed. Boulder and San Francisco: Westview Press. Merry, Sally Engle. 2006a. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press. Merry, Sally Engle. 2006b. Transnational human rights and local activism: Mapping the middle. American Anthropologist 108(1): 38–51. Mir-Hosseini, Ziba. 2000. Marriage on Trial: A Study of Islamic Family Law, Second Ed. London and New York: I.B. Tauris Publishers. Modirzadeh, Naz K. 2006. Taking Islamic law seriously: INGOs and the battle for Muslim hearts and minds. Harvard Human Rights Journal 19: 1–35. Mounir, Omar. 2005. Le Nouveau Droit de la Famille au Maroc: Essai Analytique. Casablanca: Cheminements. Nashat, Guity and Judith E. Tucker. 1999. Women in the Middle East and North Africa: Restoring Women to History. Bloomington and Indianapolis, IN: Indiana University Press. Nouvelles et principales dispositions de la Loi 03–70 portant Code de la Famille telles qu’elles ont e´ t´e adopt´ees par le Parlement (2004). Moroccan government document. My translations. Accessed July 2009 from http://www.consulatdumaroc.ca/moudawana_fr.pdf. Organization for the Renewal of Female Consciousness (Organisation du Renouveau de la Conscience Feminine). 1997. Concepte et Pacte (self-published). Sadiqi, Fatima and Moha Ennaji. Spring 2006. The feminization of public space: Women’s activism, the family law, and social change in Morocco. Journal of Middle Eastern Women’s Studies 2: 86–114. Safi, Omid (ed.). 2003. Progressive Muslims: On Justice, Gender, and Pluralism. Oxford: Oneworld. Sonbol, Amira El Azhary. 1996. Women, the Family, and Divorce Laws in Islamic History. Syracuse, NY: Syracuse University Press. Wadud, Amina. 1999. Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective. New York: Oxford University Press. Young, Amy. 2005. Convincing Women: Global Rights, Local Families, and the Moroccan Women’s Rights Movement. PhD diss., Harvard University.

10 The Production of “Forgiveness” God, Justice, and State Failure in Post-War Sierra Leone Rosalind Shaw

While the United States is fighting a rearguard action to limit the jurisdiction of the new International Criminal Court over American citizens, it is bankrolling a Special Court to deal with atrocities in Sierra Leone which is far from universally popular there . . . So far there has been little public enthusiasm for the Court. The Sierra Leonean people have shown themselves to be amazingly forgiving, but they are also very fatalistic . . . They undoubtedly feel that there should be some accounting for these terrible tragedies, but in the spirit of peace and reconciliation many feel that it is for God or Allah to determine retribution. . . . The Court has been set up with the best of intentions. But is it right to pursue the prosecutions in Sierra Leone at this time, when the wounds of the conflict are still so raw and the peace so fragile? . . . Do those involved realise that this is not just the exercise of justice, but something which has profound political and security implications? If the Special Court goes ahead it must be managed most carefully by officials, the government and the international community, otherwise the peace could be seriously undermined and even broken. (Peter Penfold, Guardian Unlimited, October 20, 2002) Are Sierra Leoneans so fatalistic as to believe that justice for those responsible for the violence that they have lived with for the last decade can only be administered by God? . . . What kind of restitution does someone who has had their hands chopped off hope for and expect? What justice is there for children who have watched their parents and siblings being mutilated and killed or, worse still, who themselves were forced to participate? . . . There is no easy way forward. But Sierra Leoneans may prove more pragmatic than fatalistic. A solution that many support is to forgive those who committed the atrocities but not those who masterminded them . . . [T]he Special Court will prosecute those who bear greatest responsibility for what happened. The . . . Truth and Reconciliation Commission [will] promote healing by making a historical record of who committed the violence. For two such institutions to operate at the same time is something that has never been attempted before in a country emerging from conflict . . . People’s feelings are often contradictory as they seek to come to terms with the terrible things that happened to them or the terrible 208

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things that they did . . . Yet whether in the diamond-rich area of Kono or the former rebel stronghold of Makeni, people are eager to meet Special Court Prosecutor David Crane, hoping to learn how he is going about doing his job and who he plans to indict . . . [E]ven the fatalists harbor a fear that as long as those who caused the mayhem are free to continue with business as usual the risk is even greater that the peace could be broken . . . (Robin Vincent, Guardian Unlimited, November 3, 2002)

In late 2002, nine months after the official end of Sierra Leone’s eleven-year civil war and the establishment of the Special Court for Sierra Leone, a brief “peace versus justice” debate appeared in the UK’s Guardian newspaper. At issue, as in most recent versions of this debate, was the question of whether the exercise of postconflict justice mechanisms such as the Special Court creates peace and stability, or, on the contrary, whether a stable peace forms a necessary condition for the exercise of justice in the first place. In addition to these matters of conditions and consequences, the protagonists anticipated the current controversy concerning the International Criminal Court’s (ICC’s) intervention in Northern Uganda by linking their arguments to cultural traits and local priorities. For Peter Penfold, former British High Commissioner to Sierra Leone, a career diplomat who played a controversial role in the restoration of that country’s elected government,1 the Special Court both threatened to reignite political tensions and worked at crosspurposes with local cultural and religious qualities of “forgiveness” and “fatalism.” Robin Vincent, who had just arrived in Sierra Leone as Registrar of the Special Court following a long career in justice administration, responded both with standard ruleof-law claims (victims’ needs for justice; the role of prosecutions as a bulwark against cycles of violence) and a different reading of Sierra Leonean attitudes as polarized and contradictory. In this chapter, I wish both to interrogate the claims of these two figures concerning Sierra Leonean “forgiveness” and “fatalism,” and to explore statements about violence, forgiveness, and redress among survivors of some of the worst violence of the war in northern Sierra Leone. I argue that these statements, which form part of a widespread response to the Special Court’s intervention to prosecute “those who bear the greatest responsibility” for the atrocities of the war, may be understood as an alternative justice discourse challenging that of the Special Court – but, contra Penfold, neither as a straightforward argument for pardon and absolution, nor as the 1

As the former British High Commissioner, Penfold had worked closely with Sierra Leone’s President Kabbah. When a coup by the Armed Forces Ruling Council (AFRC) junta in 1997 forced Kabbah into exile and brought the Revolutionary United Front rebels to Freetown, Penfold helped broker an arms deal with the British mercenary firm, Sandline International, to restore Kabbah’s government. Penfold was removed from his position because of this deal, but was treated as a hero in Sierra Leone (see Gberie, 2005).

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product of a Sierra Leonean culture of forgiveness. These statements, in addition, exemplify how “justice” discourses differ from “rights” discourses in their more contextual character (Clarke and Goodale, this volume), and thereby direct us to rethink the terms in which the peace versus justice debate has so far been conducted. PEACE AND CULTURE VERSUS JUSTICE?

That a “peace versus justice” discussion should be entangled in an argument about cultural traits exemplifies what the editors of the current volume describe as the normative “emptiness” of the concept of justice. As Kamari Clarke and Mark Goodale observe in their Introduction to this volume, “[J]ustice” is contextual in a way that “human rights” is not . . . Human rights norms are formally universal: Their jurisprudential and social meanings are initially established and articulated through the identifiable body of international instruments produced through the international treaty drafting and ratification process (p. 10). But “justice” must be both formally and vernacularly invested with meaning at each moment in its discursive trajectory, at each moment in which “justice” becomes a functioning discourse for social actors in practice . . . [I]t is the invocation of “justice” itself that generates its meanings in processes of postconflict reconciliation. (p. 11)

Given this fundamental indeterminacy of justice and its placement in binary opposition to a second floating signifier – “peace” – the peace versus justice debate offers abundant possibilities for struggles over meaning, morphing across time and place in diverse historical and political contexts. At the end of the Cold War, for example, “purist” desires for a single form of justice – criminal prosecution – among human rights activists and nongovernmental organizations (NGOs) were often outweighed by “pragmatist” preferences for limited amnesty among diplomats and governmental agencies for the purpose of promoting a single form of peace: political stability (Feher, 1999). These conflicting strategies found an unstable compromise in truth commissions, most notably in South Africa’s Truth and Reconciliation Commission (TRC), which offered perpetrators amnesty in exchange for testimony. Through Archbishop Tutu’s championing of the TRC, this compromise was explicitly linked with claims concerning “African” cultural values of reconciliation (Wilson, 2001). But rather than resolving the struggle over prosecution versus amnesty, truth commissions simply generated a new version of it – the truth versus justice debate – that argued the respective opportunity costs of prosecutions and truth-seeking mechanisms (see, e.g., Hayner, 2001; Rotberg and Thompson, 2000). By the turn of the millennium, moreover, the international ad hoc tribunals for the former Yugoslavia and Rwanda had generated the conditions to create the ICC and made it possible

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for Kofi Annan as the United Nation’s (UN) Secretary-General to demand, through repeated public statements, the prohibition of amnesty for violations of international humanitarian law (e.g., United Nations, 1999, 2003). As these processes replaced the compromises of truth commissions with a new international legal landscape oriented toward the norms of Nuremberg, the assumption that “justice” had to be traded for “truth” was brought into question. For many international legal experts, Sierra Leone represented a “laboratory” in which they could resolve this issue. They viewed the Special Court’s concurrent operation with Sierra Leone’s TRC as an “experiment” to answer the question of whether mechanisms of truth and justice could work together (e.g., Schabas, 2004). The results were not promising for those who believed that these two mechanisms could work in harmony, however. For their part, the Sierra Leoneans who comprised the “subjects” of this experiment often expressed concern that both the Special Court and the TRC might reactivate the violence (Shaw, 2005, 2007). Because of widespread ex-combatant fears that the TRC was a covert conduit for the Special Court, moreover, many former combatants went into hiding when the TRC Hearings arrived (Shaw, 2005, 2007). TRC staff often found it difficult to persuade ex-combatants to give statements or to testify before the Commission; for this reason, several staff complained to me that “the Special Court is killing the TRC.” The dysfunctional private relationship between these two justice mechanisms finally erupted into public view when the Special Court refused to allow former Defense Minister and Civil Defence Forces militia leader Sam Hinga Norman, whom it held in custody, to testify before the TRC (Boister, 2004). Undeterred by the controversy this refusal unleashed, by the ex-combatant exodus from towns hosting the TRC District Hearings, and by the TRC’s Final Report, which implies that the Special Court may promote instability in the region (Vol. 3b, Ch. 6, paras 5–12), former Chief Prosecutor David Crane affirmed that “the Sierra Leone model is the right model. A plus B equals C. Truth plus justice equals sustainable peace” (Nichols, 2005). Crane’s view has prevailed: It has now become accepted that criminal prosecutions complement rather than undermine truth-seeking mechanisms (see also Schabas, 2004, 2006). Again, instead of resolving the truth versus justice debate, the Sierra Leone experiment simply reconfigured this argument into the current peace versus justice debate, as heralded by the Penfold/Vincent exchange. This debate has not, however, returned us to the competing claims of “purists” and “pragmatists” at the end of the Cold War. First, the UN’s prohibition of amnesty and the ICC’s Rome Statute have made purism the norm, creating new “international standards” that require the prosecution of perpetrators and narrow the range of available postconflict options. Second, the major challenge to this norm has come not only from pragmatist governmental interests in securing peace through amnesty, but also from the priorities of

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local survivors (and their spokespersons – who may, of course, pursue different interests from those of “ordinary” survivors [Allen, 2006]). Both in the Penfold/Vincent exchange over Sierra Leonean forgiveness, and in northern Uganda, where this challenge from survivors is sometimes framed as a standoff between the ICC and Acholi cultural traits, “peace versus justice” has become “culture versus justice.” All of these shifting versions of the peace versus justice debate may, in fact, be viewed as arguments over competing understandings of justice itself. International legal actors and human rights activists have effectively sought since the Cold War’s end to fix this fundamentally contextual concept in place and time by defining it primarily as criminal prosecution, thereby eclipsing other meanings. Some scholars, however, have responded by seeking to restore the broad mutability of “justice,” rejecting the peace versus justice opposition by defining justice as encompassing much more than prosecution alone. Thus Rama Mani (2002, 2005) “remarries” peace and justice by first splitting justice into several refractions – “rectificatory justice” (redress for violations), “legal justice” (the rule of law), and “distributive justice” (the removal of structural violence) – and then recombining them to promote “positive” (just, long term) peace. Like Mani, Helena Cobban places emphasis on distributive justice, arguing that when today’s legal elites define “the norms of Nuremberg” narrowly as a duty to prosecute, they ignore the broader political approach of which the Nuremberg trials formed part, characterized by moderation, rehabilitation, and reconstruction (2007: 205–207). Also, far from forming a homogeneous bloc, transitional justice policy makers themselves often debate (and disagree over) whether justice should be defined primarily in terms of criminal justice and truth-seeking mechanisms or should also include social and economic justice (e.g, Arbour, 2006; Boraine, 2004; de Greiff, 2006). In the cultural turn of the peace versus justice debate, protagonists again contest attempts to limit justice to criminal prosecution, but often do so by tying their invocations of justice to essentialized concepts of culture. For Archbishop Desmond Tutu, South Africa’s TRC did not merely compromise justice in pursuit of truth, but embodied an alternative “restorative” justice that he identified as “ubuntu,” “a central feature of the African Weltanschauung,” in which “[m]y humanity is caught up, is inextricably bound up, in yours” (1999: 31; see Wilson, 2001). Current Acholi leaders likewise challenge the ICC’s attempts to define justice exclusively as prosecution, arguing that Acholi techniques of reconciliation and reintegration are, at the same time, techniques of justice and accountability (see Allen, 2006; Baines, 2007). Some leaders – especially those of Christian groups – have identified these techniques with cultural values of forgiveness. “It has become a kind of ‘received wisdom,’” writes Tim Allen, “that the Acholi people have a special capacity to forgive, and that local understandings of justice are based upon reintegration of offending people into society” (Allen, 2005: 4–5; Allen, 2007). Such

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arguments about “African” – or Acholi, or Sierra Leonean – forgiveness as cultural qualities are easily countered by critiques in terms of cultural essentialism and the “invention of tradition” (Hobsbawm and Ranger, 1983). Richard Wilson points out, for instance, that “[c]ourts administered by Africans have often applied the death penalty for certain categories of persons . . . in numerous and successive historical contexts. (2001: 11). Tim Allen likewise characterizes arguments about the benign nature of African justice as “dangerously romantic,” observing that “accusations of witchcraft . . . are common among African populations, and retribution can be extreme” (2007: 161). These critiques of cultural invention and essentialism are formally correct. Yet by debunking cultural arguments so irrevocably, such critiques often have the unintended consequence of foreclosing our exploration of local challenges to the normative equation of justice with “prosecution” – challenges that often lie behind claims about cultural forms of justice. Although I too will critically unpack Penfold’s and Vincent’s claims about Sierra Leonean forgiveness and fatalism in the next section, I also wish to look beyond them by examining the kinds of survivors’ statements that form the basis of their claims. What hangs in the balance for survivors of violence when they talk about forgiving perpetrators and leaving things to God? What conditions on the ground do they seek to address, and what tensions, contradictions, and histories inform their expressions of forgiveness? In this chapter, I seek to explore these questions in northern Sierra Leone, and argue that such expressions may be viewed as a competing discourse of justice – but one that goes beyond simple desires for the absolution of perpetrators. This discourse, I suggest, reveals a great deal both about priorities for rebuilding lives in a failed state, and about historical experiences that shape what justice means now. HISTORICIZING FORGIVENESS, FATALISM, AND JUSTICE

If Penfold’s claims about forgiving Sierra Leoneans replicate romantic images of African justice elsewhere, his arguments about fatalism invoke a more pejorative set of representations. Widespread colonial discourses of religious fatalism served both as a moral reproof against populations that refused to submit to colonial projects, and as a convenient rationalization for the failure of such projects (Hall, 2000: 239). During the colonial era, fatalism was not only used in conjunction with such terms as “superstition,” “ignorance,” “irrationality,” “backwardness,” “apathy,” “laziness,” and “irresponsibility,” but was also medicalized as a form of mental debilitation (Keller, 2007: 123–124). Updated versions of this discourse now thrive in some strands of development, public health, and political science thought, where fatalism is viewed as an atavistic cultural pathology that blocks selfdetermination, entrepreneurship, democratization, and other forms of neoliberal

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progress (e.g., Bista, 1991; Calderisi, 2006 Harrison, 2006; see Macfarlane, 1994). Although Penfold gives fatalism in Sierra Leone a benign resonance by associating it with forgiveness and political pragmatism, his usage nevertheless draws upon colonial discourses by suggesting a culturally determined inertia. Vincent, for his part, reproduces such discourses by casting fatalism in terms of a lack – a fear-based and disempowering acceptance of perpetrators’ impunity. Responses deemed fatalistic are, in his argument, antithetical to pragmatism and suffused with a strong hint of irrationality (“Are Sierra Leoneans so fatalistic . . . ?” “[E]ven the fatalists . . . ” [emphasis added]). For Vincent, moreover, fatalism must eventually succumb to the Special Court’s superior logic of legal accountability: “even the fatalists harbor a fear that as long as those who caused the mayhem are free to continue with business as usual the risk is even greater that the peace could be broken . . . ” (2002). To argue against the concept of deterministic cultural traits of “Sierra Leonean forgiveness and fatalism” is not to deny the prominence of ideas of fate and forgiveness in Sierra Leone, however. For Muslims, Christians, and those who use indigenous ritual practice,2 trusting in God, submitting oneself to his will, and either gratefully acknowledging or patiently enduring what he sends you form a moral imperative. Expressions in Sierra Leonean languages make these normative sentiments part of an everyday spoken reality: if God gree (Krio: “if God agrees”); ah tell God tenki (Krio: “I tell God ‘thank you’”); God de (Krio: “God is there”); bepi K-uru o-sel o (Temne: “If God smiles”); i thantho K-uru (Temne: “I thank God”). Also, although forgiveness constitutes an important marker of specifically Christian values and identity in Sierra Leone, practices of “begging” (apologizing to) one’s senior and being blessed in return form ubiquitous moral practices that crosscut religious and ethnic groups. As important as they are, however, ideals of forgiveness and of surrender to God do not provide exclusive normative scripts for responding to violence. Equally central values of reciprocity translate into a different script – rights of retribution for past injuries – that were explicitly invoked by combatants from all sides in Sierra Leone’s civil war (Archibald and Richards, 2002; Jackson, 2005: 366–370; Murphy, 2003). These contrasting strategies, which Jackson terms “acceptance mode” and “grievance mode” (2005: 370), “leave open, at all times, the possibility of choosing how one will react to evil” (2005: 367). A third strategy, deriving not from social and religious values but from fear and the exigencies of survival, was 2

Although the CIA’s The World Factbook tell us that Sierra Leone is 60 percent Muslim, 10 percent Christian, and 30 percent “indigenous beliefs” (https://www.cia.gov/library/publications/the-worldfactbook/geos/sl.html), such figures convey neither the fluidity of these categories nor the extent of cultural borrowing among them. Many Sierra Leoneans consider themselves both Muslim and Christian, and actively participate in local ritual practices such as cult association rituals, divination, and sacrifice. For growing numbers of Pentecostal Christians and Islamist Muslims, however, “Christian” and “Muslim” form mutually exclusive identities.

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that of preemptive violence. On many occasions during the war, desperate civilians summarily killed captives fleeing from the rebels out of the (often justified) fear that they could be spies gathering intelligence for a future attack. Ideas about special qualities of forgiveness are, in any case, difficult to reconcile with Sierra Leone’s history. As in most parts of Africa, this was not a sequestered past in which stable, enduring African qualities developed in isolation from the rest of the world. Sierra Leone was part of the expanding Atlantic system from the sixteenth to the early nineteenth century, during which slaves – acquired through raiding and warfare, and through the conviction of people as witches, murderers, adulterers, and thieves – were exchanged for foreign commodities, becoming an important means of income for chiefs in the Sierra Leone hinterland. Applications of law were shaped by the slave trade during those three centuries, which saw a multiplication of divination techniques adapted to detect and convict witches, murderers, adulterers, and thieves – the penalty for whom was either physical death or social death through sale as a human commodity who would disappear into the Atlantic trade (Shaw, 2002). In the early nineteenth century, after the British prohibited the Atlantic slave trade, they established the first British colony in West Africa in Freetown, a settlement of freed slaves. Gradually expanding their control over the Sierra Leone hinterland, they imposed a Protectorate at the end of the nineteenth century, violently suppressing local resistance. They introduced a two-tier legal system, established a new role for chiefs as agents of the colonial government, and prohibited the internal sale of slaves. Yet the cash crops that the British wanted – and that provided an income on which chiefs, again, had come to rely – required slave labor for their production and transport. Chiefs, unable to continue buying, selling, and seizing slaves in raids, found an alternative source of labor (and direct income) through their new position in the colonial legal and administrative system, in which they were empowered to extract extortionate court fees, fines, and labor levies (Dorjahn, 1960: 130–135). In Temne-speaking parts of northern Sierra Leone, this practice was known as “eating the chiefdom” (Dorjahn, 1960: 111). Chiefs continued to “eat their chiefdoms” throughout the twentieth century, imposing arbitrary and excessive fines on young men in particular – the same population that had been targeted for capture and sale during the Atlantic trade. Not only did chiefs and senior men in general monopolize land and wives, but because of chiefs’ control of customary law young men also feared losing the product of their labor through fines (Archibald and Richards, 2002: 343–350; Richards, 2005: 578–579). In Steven Archibald and Paul Richards’ research (2002) on the rural roots of Sierra Leone’s civil war at the end of the twentieth century, many young ex-combatants cited this lack of opportunity, and the unjust system of customary law that sustains it, as having given them an incentive to improve their situation by fighting with an armed group. Far from embodying a

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culture of forgiveness and restoration, then, local justice – long driven by successive extractive processes that connected the rural Sierra Leone hinterland to transregional circulations – became one of the roots of the civil war. THE VIOLENCE OF TRANSITIONAL JUSTICE

Nor are the Chiefs’ courts the only justice institutions associated with violence. Young men’s concerns over customary law form part of a broader set of popular responses to state projects of justice and democracy in rural Sierra Leone – especially court cases, competitive elections, and censuses and surveys – as inherently violent. Mariane Ferme (1998) has observed that not only were these practices of the “modern” state introduced historically through violent conditions, but they also resemble warfare itself in the sharp divisions they created between winners and losers, generating deep resentments and the potential for future violence. Thus Ferme writes: “the practices sometimes associated with the peaceful control of an open society . . . are perceived as violent because they are governed by a logic of ‘winner-takes-all’ which is considered a factor of social fragmentation and polarization” (1998: 2). Sierra Leone’s eleven-year civil war was, at least in part, a product of such polarization. Another of the war’s many roots was Foday Sankoh’s seven-year imprisonment in Freetown’s Pademba Road Prison in 1971 for being a minor player in an attempted coup against the highly corrupt former president Siaka Stevens. Sankoh’s bitterness at his incarceration in Pademba Road is widely represented as having fueled his founding of the Revolutionary United Front (RUF) and his insurgency in Sierra Leone twenty years later. For many people in rural Sierra Leone, then, the civil war itself provides a model of the potentially violent consequences of the state’s procedures of retributive justice. Given that the TRC and the Special Court followed so quickly on the heels of a long war that is often viewed as a product of Sankoh’s resentment of his prosecution and imprisonment, these justice mechanisms were especially alarming. With little reason to be confident in any formal justice project promoted by the state, many people worried that, whatever their official mandates, the TRC and the Special Court would themselves become mechanisms of retaliation and revenge activated through practices of truth telling, adversarial legal processes, public blame, prosecutions, and punishments. When my research assistant, Moses Khanu, and I conducted interviews in 2004 in rural Northern Sierra Leone, most people responded to our questions about justice by equating justice with revenge, especially when referring to the Special Court. Both the Special Court and, to a lesser extent, the TRC were widely perceived as offering the potential to perpetuate rather than end cycles of retaliation, bitterness, and vengeance, which could easily jump back into the realm of physical violence, either now or far in the future.

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When the TRC and Special Court began their operations in 2002, people who wished to distance themselves from these mechanisms often expressed this through the phrase “forgive and forget.” Many of them traced their use of this expression to former President Tejan Kabbah, who gave a speech just before he signed the Lom´e Peace Accord on July 7, 1999, in which he called on Sierra Leoneans to “forgive and forget” to achieve national reconciliation.3 Over the next few years, the expression “forgive and forget” became part of a popular language of reconciliation that validated widespread practices of social forgetting as a means of social reconstruction (Shaw, 2005, 2007). Not everyone shared this language of forgetting, however. Many people – especially amputees for whom forgetting was not possible, as well as individuals who were educated, and individuals associated with churches, NGOs, and human rights activism – turned this expression around, saying “I can forgive, but I cannot forget,” but they too often promoted forgiveness as a vehicle for reconciliation. Almost everyone in Sierra Leone has been affected by the war’s appalling violence. Most people, in addition, live in conditions of extreme economic deprivation and chronic insecurity. When people who have survived some of the worst instances of violence talk about forgiveness, what do they mean? In the next section, I examine this question through survivors’ responses in two towns in Bombali District, Northern Sierra Leone, that suffered devastating attacks during the war. “I HAVE NOT YET SEEN PA KABBAH”: GOD AND FORGIVENESS IN GBENDEMBU AND MATEBOI

In 1998, the former Armed Forces Ruling Council (AFRC) junta and their RUF allies launched what they termed “Operation No Living Thing” in Sierra Leone’s rural provinces. Earlier that year, Economic Community of West African States Monitoring Group (ECOMOG) forces had driven them out of Freetown, where they had embarked upon a reign of terror after seizing control through a coup the previous May. Operation No Living Thing was retaliation for their expulsion. During the first part of 1998, according to Human Rights Watch, “[m]any thousands of Sierra Leonean civilians [were] raped; deliberately mutilated, often by amputation; or killed outright . . . between February and June . . . alone” (1998, Summary). Mateboi, in the west of Bombali District, was attacked and burned by the RUF on June 17, 1998. Ironically, people from nearby towns had fled to Mateboi for safety because the progovernment Civil Defense Forces (CDF) had announced that they were protecting it. When a group of RUF rebels discovered some of Mateboi’s residents hiding in a bush camp outside the town, they lined up everyone they could capture and carried 3

“Joy at Sierra Leone Peace,” BBC News, July 7, 1999. http://news.bbc.co.uk/2/hi/africa/388631.stm.

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out their “signature” atrocity: cutting off hands. The second town, Gbendembu, in the center of Bombali, was attacked on November 9, 1998. A prominent elder, Pa Pawa Fornah, and ten members of his extended family were massacred when rebels4 pretending to be ECOMOG troops ordered Pa Pawa and his family out of their houses, marched them outside the town’s Wesleyan church, and shot them. To understand the impact of violations such as these, they cannot be viewed in terms of single events alone, however atrocious: They must be located in the context of systemic and continuing forms of structural violence. By the time my research assistant, Moses Khanu, and I interviewed survivors in these two towns in 2004, six years had elapsed since the attacks of 1998. The war had been officially over for more than two years, but in Sierra Leone, which repeatedly ranks last or second-to-last in the UN’s Human Development index, rebuilding lives, property, and webs of patronage in neglected rural northern towns and villages proved a near-impossible feat. In Mateboi, the charred shells of houses still ran the length of the town’s main street. Some of the town’s surviving amputees had, as they put it, “lost control” of their children or their wives, and struggled for food and shelter with the support of family members and neighbors who were themselves struggling. In Gbendembu, poor relatives of Pa Pawa had not been able to recover from the loss of this “big man” who had provided them material support. Several of these survivors told their stories as part of a nationwide post-TRC project to promote local reconciliation events funded by the UN Development Program (UNDP) and administered by the Inter-Religious Council of Sierra Leone.5 These events, like the TRC, promoted reconciliation following truth-telling: Survivors were invited to testify publicly about their experiences of violence and bereavement. After the testimonies, prayers – both Muslim and Christian – were held for the dead, and cement memorial markers were installed at massacre sites. Moses Khanu observed these one-day reconciliation programs for Gbendembu and Mateboi in (respectively) May and June 2004.6 He and I then interviewed survivors – some of whom had taken part in the program, others of whom had not – a few weeks later, in July and August 2004, about their understandings of justice and their attitudes toward the Special Court. At that time, the Special Court was in the early stages of its prosecutions, whereas the TRC had concluded its hearings the year before. Like most people I knew in postwar Sierra Leone, almost everyone to whom we spoke in these towns urged forgiveness. Rather than manifestations of a stable and enduring Sierra Leonean quality of mercy, however, their expressions of forgiveness were a

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Survivors of this attack were unable to identify them as ex-AFRC or RUF, and referred to them simply as “rebels.” Outreach was limited, however: Only four such events took place in Bombali District. The program for Mateboi was combined with that for the nearby town of Ma-Alimamy.

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response to postconflict conditions and interventions – most notably, the Special Court, the TRC, and the reconciliation project itself. Instead of simply absolving individuals who had violated them, their forgiveness was configured by tensions generated by these conditions and interventions. When the group of combatants shot Pa Pawa and his family in Gbendembu, they missed a young mother named Fatu Sesay, who fell to the ground with the others and faked death. Fatu and her young child survived, together with an infant she rescued – at great personal risk – by pulling him from the back of his dead mother. When Moses asked her what she thought about the Special Court trying the leaders of the war, she responded: I don’t like the Special Court. God can better punish these people. I don’t know what will happen later after the trial. Maybe other people will take up arms again and fight, and war is not good. We don’t want to go back to where we have come from . . . We have forgiven those who have done us wrong and we will continue to pray that war will never come into this country any more. War is no good at all. Let God push it far, far away. By the grace of God, today I have forgiven those who did these terrible things to me personally, and other people in Gbendembu. We have forgotten about the war, and may we no longer think about it. I don’t want to think about war any more.

Kande Fornah, Pa Pawa’s nephew, also emphasized forgiveness as a means of avoiding the recurrence of violence, but in addition he gave a strong sense of the relationship between human forgiveness and deferred, divine retributive justice for the unknown perpetrators: Kande Fornah (KF): Before now, I thought they should be killed as they did to others . . . But now that the war is over and we want peace, we must forgive them. In fact, we have forgiven them already. We have forgiven them but we are waiting for God’s judgment to come. I believe God will bring each and every one of us to justice. If you do bad, you get the pay you have worked for. If it’s good, it’s good pay you will receive. So there is no way we can do [anything] as human beings but to forgive them . . . We can forgive but it is difficult to forget since each time we see the [mass] grave we will recall what was done to us during the war. But the only thing we will never do is to think about revenge . . . It is left with God to take his action against those who did bad to others. We don’t have the power to fight back, but God will do so . . . Moses Khanu (MK): How do you see the Special Court? KF: The Special Court is not bad, although it comes too early. My strong advice is that the Special Court must be careful that it does not bring another war . . . MK: How will it bring another war?

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KF: When there is no fair trial and the family of those victimized may take up arms and fight back. And when this happens, it will not be good for this country again. We are tired of seeing blood. Let the Special Court not bring blood again to this country.

When Kande Fonah said, “We don’t have the power to fight back, but God will do so,” he echoed a response that I heard repeatedly when I asked survivors what justice they wanted for persons who had violated them or their families. Again and again they responded, “I have no power, so I leave it to God.” When Moses or I asked what they would want if they had power, they would again respond, “If I had power, I would still leave it to God, for the sake of peace.” Like Kande Fonah, they located forgiveness both in their own personal marginality and in their sense of the capacity of courts to create divisiveness, humiliation, and acrimony, and thereby incubate cycles of revenge. Church members (as were those in Pa Pawa’s family) often added another layer to forgiveness, locating it within Christian norms of mercy and redemption. Marie Fornah, Pa Pawa’s adult daughter, is the Women’s Leader in Gbendembu’s Wesleyan Church: We are waiting on God’s true judgment. He will surely pass judgment on those who did this to us. To be sincere, I have found it difficult to forgive and forget about this. But I have forgotten the ills done to the family. In fact, I have no alternative but to forgive and forget. I don’t have power and I don’t know who did this to the family. So who would I hold responsible? So you see, there is no way but to forget about the whole problem. We shall continue to wait upon the Lord. Jesus himself said we must forgive others so that we may be forgiven. If I do not forgive, I have not done what Christ wants me to do. But the idea of forgetting is difficult. I will forgive but it is not easy to forget.

Yet Marie’s Christian ideals seem to heighten rather than to overcome the sense of ambivalence and contradiction behind her expressions of forgiveness, in which forgiving and forgetting are at once impossible to achieve and impossible to refuse. For those who received amputations in the bush camp outside Mateboi, forgetting has not been an option, not only because terrible violence has permanently dismembered their bodies, but also because of the additional obstacles they face on a daily basis just to survive – let alone reconstruct their lives. “It is difficult to forgive and forget,” said Sallu Sesay. “We can forgive, but to forget is difficult. Sometimes you may want to do something to make a living but since I am a double amputee, I will feel the pain of not having hands to do any work.” While they received their amputations they were told, like many others, that they were being given a message or a “letter” to take to President Tejan Kabbah. “I never knew,” said Sallu, “that this was a letter I will carry throughout my life.” Sallu and his brother had traveled from

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their town, Ma-Alimamy, to the bush camp near Mateboi when the CDF declared the town “safe.” Betrayed by these promises of protection, he and other amputees from the Mateboi attack have subsequently felt abandoned by the government in the name of which they were mutilated: Since the war, they told us, neither the government nor any NGOs had come to offer assistance.7 “I am still carrying the letter I was asked to carry,” Sallu said, “but I have not found Pa Kabba. In fact, I don’t know him.” “If we had been helped,” said another double amputee, Bai Kabbia, told us, “it would have helped us to forget the pain. It is really painful to remember what has been done to us. I know I will never get my hands again. But if life is good for me, I will live a happy life. But as for now, I am still crying.” Some amputees, such as Adama Munu, made the contradictions of forgiveness especially apparent. Adama, who also survived a double amputation at the bush camp outside Mateboi, raged against the necessity for forgiveness even as she embraced it: Today, I am in pain. I don’t know who did this to me and I don’t have power . . . How can I take revenge without hands? How can I take revenge when I want peace for my country? I will not do anything that will bring trouble in this war. If all of us who suffered during the war are to take revenge, there will be another big war. There is nothing more I can do but to forgive and get on with my life.

Others, such as Sallu, find forgiveness just as impossible as forgetting. He had been in Makeni during the TRC’s Bombali District Hearings in 2003, but wished neither to give a statement nor to attend the hearings. Although the TRC asserted that truth telling, or “blo main” (“blow mind”) before the Commission would lead to reconciliation, or “kol at” (“cool heart”), Sallu was skeptical about exactly who was helping whom: “Many NGOs are making plenty of money out of our testimonies,” he claimed.8 Let down by promises of protection during the war and failed by the state and the international community since the war, Sallu had given up hope, and sometimes thought about drinking poison. He drew comfort only from the support of his relatives and neighbors, and from their assurances to him that God would deliver justice to his unknown assailants: “One thing I believe is that those who did this to me will one day face judgment. I leave my case to God.” He later added, however, “If I see the person, I will fall upon him.” Concerned about this angry wish for physical retaliation, Sallu’s brother Alfa interjected: “But you said you left your case to God? “ Sallu, in response, spelled out the disempowerment behind his faith in divine retribution: “I don’t have power; that’s why I leave my case to God.” 7

8

Although several programs provide amputees with housing, skills training, and other assistance, most programs require beneficiaries to move to locations in which they may not have kin to provide a crucial support network. Although NGOs did not, in fact, make money from the TRC, Sallu’s comment captures well the commodification of victim testimonies – especially amputee testimonies – in postwar Sierra Leone.

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JUSTICE IN A FAILED STATE?

Sallu’s desire for retaliation was not as far removed as it might seem from other survivors’ expressions of forgiveness. Like Fatu, Kande, Marie, and Adama, almost everyone who spoke about forgiveness reconfigured it in different terms from those with which the English word is most usually associated – to excuse, to absolve, to wipe away blame. Although some survivors did advocate for these erasures of the past, they also located forgiveness within multiple continuing forms of structural violence in the present: powerlessness, exclusion, poverty, marginality, insecurity (Pinto, 2008). These conditions make forgiveness, to use Begona Aretxaga’s term, a “choiceless decision” (1997: 61) that embodies an acute disjuncture between institutional demands for justice and everyday requirements of living. Forgiveness of this kind does not denote the absence of culpability but rather its expansion to implicate a much broader set of actors and institutions (Pinto, 2008) – the failure of the state, the failure of government, the failure of the legal system, the failure of education, the failure of development, and the failure of the international community. Writing about strategies toward violence in postwar Sierra Leone, Michael Jackson argues that forgiveness “was less a choice grounded in moral or intellectual belief, than a pragmatic assessment of what was most expedient if one was to salvage one’s life and livelihood – a matter of what one could and could not do” (2005: 368). Expressions of forgiveness, then, do not necessarily represent an ideological opposition to retributive justice, but a complex layering of shifting, situational alternatives that may change over time.9 We might term this a pragmatic pluralism in which people select, in different contexts and historical conditions, which of several strategies will best allow them to survive and to rebuild their lives. As Sverker Finnstrom ¨ (In press) argues for Northern Uganda, layered, contextually variable responses of this kind, in which the door to alternate possibilities is never closed, cannot be reduced to the current either/or debates concerning retributive or restorative justice – or, indeed, to the either/or structure of survey questions that seek to quantify attitudes about peace and justice. Pluralist responses to violence such as these are all too easily misread in terms of “confusion” or “contradiction.” Although it is true that forgiveness in these kinds of contexts represents pragmatism rather than “a choice grounded in moral or intellectual belief” (Jackson, 2005), we also need to remember that in Sierra Leone expressions of forgiveness are almost always accompanied by statements that place it squarely within a moral universe – statements that Penfold glossed as “fatalism”: “I leave my case to God.” Statements like: “It is left with God to take his action against those who did bad to others” are not simply statements of passive resignation but performative utterances. These words 9

As the war recedes in time, a recent study appears to reveal more support for the Special Court and the TRC than I found in 2003 and 2004 (Kelsall and Sawyer, 2007).

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call on God to send hake, a term used in several Sierra Leonean languages to denote the sudden exposure of and punishment for a terrible wrongdoing. To say “I forgive them” and “I have no power” is to claim the moral agency of the blameless victim, to acknowledge the limitations of human action, and to call out powerfully for divine redress. God’s justice transcends human revenge and – unlike the Special Court – closes perpetuating cycles of resentment and retribution. Calls for forgiveness turn out to be alternative ways of articulating justice in this failed state. These calls, some people say, are being answered. Of the thirteen people indicted by the Special Court for war crimes and crimes against humanity, three have died: RUF leaders Foday Sankoh and Sam Bockarie, and, most recently, CDF leader Hinga Norman. The Special Court does not have the death penalty, but, as several people told me: “God’s court, no appeal.” CONCLUSION

When Robin Vincent asked, in the Penfold/Vincent exchange with which I began, “What justice is there for children who have watched their parents and siblings being mutilated and killed?” he implicitly defined “justice” in terms of the kinds of accountability produced by the Special Court and the TRC. During these national and international justice interventions in Sierra Leone, I argue, popular calls for forgiveness and anxieties over punishment and truth telling articulate an understanding of justice that contradicts such transitional justice truisms as “truth plus justice equals sustainable peace.” Although widespread Sierra Leonean expressions of forgiveness are not reducible to essentialized claims about “African forgiveness,” debunking such claims forms only the beginning rather than the end of this study. Neither, in addition, is this simply a case of “universal justice meets local values,” but of how people live with the contradictions that already form part of justice interventions. People who have to rebuild their postconflict lives in conditions of state collapse, institutional failure, and chronic insecurity make “choiceless decisions” that often put them at odds with the certainties of transitional justice mandates, registering only as “fatalism,” confusion, ignorance, irrationality, illiteracy, incomprehensibility, noncompliance. Just as forgiveness turns out to imply not the absence of culpability, but its expansion, taking seriously Sierra Leonean survivors’ responses to justice interventions implies an expansion of justice beyond prosecution and truth seeking alone. References Allen, Tim. 2005. War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention. Independent report. Crisis States Research Centre, London School of Economics and Political Science. http://www.crisisstates.com/ publications/phase1papers.htm#special.

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Allen, Tim. 2006. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books. Allen, Tim. 2007. The International Criminal Court and the invention of traditional justice in Northern Uganda. Politique Africaine 107: 147–166. Arbour, Louise. 2006. Economic and Social Justice for Societies in Transition. Annual Lecture on Transitional Justice, New York University School of Law. http://www.chrgj.org/ publications/wp.html. Archibald, Steven, and Paul Richards. 2002. Converts to human rights: Popular debate about war and justice in rural central Sierra Leone. Africa 72: 339–367. Aretxaga, Begona. ˜ 1997. Shattering Silence: Women, Nationalism, and Political Subjectivity in Northern Ireland. Princeton: Princeton University Press. Baines, Erin K. 2007. The haunting of Alice: Local approaches to justice and reconciliation in Northern Uganda. International Journal of Transitional Justice 1: 91–114. Bista, Dor Bahadur. 1991. Fatalism and Development: Nepal’s Struggle for Modernization. Hyderabad, India: Orient Longman. Boister, N.B. 2004. Failing to get to the heart of the matter in Sierra Leone? The Truth Commission is denied unrestricted access to Chief Hinga Norman. Journal of International Criminal Justice 2: 1100–1117. Boraine, Alex. 2004. Transitional Justice as an Emerging Field. Presented at the symposium, Repairing the Past: Reparations and Transitions to Democracy. International Development Research Center, Ottawa, Canada, March 11. Calderisi, Robert. 2006. The Trouble with Africa: Why Foreign Aid Isn’t Working. Basingstoke, UK: Palgrave Macmillan. Clarke, Kamari Maxine, and Mark Goodale. 2009. “Understanding the Multiplicity of Justice,” Introduction to current volume. Cobban, Helena. 2007. Amnesty After Atrocity? Healing Nations after Genocide and War Crimes. Boulder, CO: Paradigm. de Greiff, Pablo. (ed.). 2006. The Handbook of Reparations. Oxford: Oxford University Press. Dorjahn, Vernon. 1960. The Changing Political System of the Temne. Africa 30: 110–140. Feher, Michel. 1999. Terms of reconciliation. In Hesse, C. and Post, R. (eds.). Human Rights in Political Transitions: Gettysburg to Bosnia. New York: Zone Books. pp. 325–338. Ferme, Mariane C. 1998. The violence of numbers: Consensus, competition, and the negotiation of disputes in Sierra Leone. Cahiers d’Etudes Africaines 150–152 xxxviii-2–4: 555–580. Finnstrom, ¨ Sverker. In press. Reconciliation grown bitter? War, retribution and ritual action in northern Uganda. In Shaw, R., and Waldorf, L., with Hazan, P. (eds.). Localizing Transitional Justice: Justice Interventions and Local Priorities after Mass Violence. Stanford, CA: Stanford University Press. Gberie, Lansana. 2005. An Interview with Peter Penfold. African Affairs 104: 117–125. Hall, Catherine. 2000. Cultures of Empire: Colonizers in Britain and the Empire in the Nineteenth Century. Oxford: Taylor & Francis. Harrison, Lawrence E. 2006. The Central Liberal Truth: How Politics Can Change a Culture and Save It from Itself. New York: Oxford University Press. Hayner, Priscilla B. 2001. Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge. Hobsbawm, Eric, and Terence Ranger (eds.). 1983. The Invention of Tradition. Cambridge: Cambridge University Press.

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Human Rights Watch. 1998. Sowing Terror: Atrocities Against Civilians in Sierra Leone. Vol. 10, No. 3 (A). Available at: http://www.hrw.org/reports98/sierra/. Jackson, Michael. 2005. Storytelling events, violence, and the appearance of the past. Anthropological Quarterly 78: 355–375. Keller, Richard C. 2007. Colonial Madness: Psychiatry in French North Africa. Chicago: University of Chicago Press. Kelsall, Tim, and Sawyer, Edward. 2007. Truth vs. Justice? Popular Views on the Truth and Reconciliation Commission and the Special Court For Sierra Leone. The Online Journal of Peace and Conflict Resolution 7. Available at: http://www.trinstitute.org/ojpcr/. Macfarlane, Alan. 1994. Fatalism and development in Nepal. In Hutt, M. (ed.). Nepal in the Nineties. Delhi: Oxford University Press. Mani, Rama. 2002. Beyond Retribution: Seeking Justice in the Shadows of War. Cambridge: Polity Press. Mani, Rama. 2005. Balancing Peace with Justice in the Aftermath of Violent Conflict. Development 48: 25–34. Murphy, William. 2003. Military patrimonialism and child soldier clientalism in the Liberian and Sierra Leonean civil wars. African Studies Review 46: 61–87. Nichols, Hans. 2005. Truth Challenges Justice in Freetown. Global Policy Forum. http://www.globalpolicy.org/intljustice/tribunals/sierra/2005/0105freetown.htm. Penfold, Peter. 2002. Will Justice Help Peace in Sierra Leone? Guardian, October 20. Available at: http://www.guardian.co.uk/world/2002/oct/20/sierraleone.theworldtodayessays. Pinto, Sarah. 2008. Where There Is No Midwife: Birth and Death in Rural India. Oxford: Berghahn Books. Richards, Paul. 2005. To fight or to farm? Agrarian dimensions of the Mano River conflicts (Liberia and Sierra Leone). African Affairs 104: 571–590. Rotberg, Robert, and Thompson, Dennis (eds.). 2000. Truth v. Justice: The Morality of Truth Commissions. Princeton: Princeton University Press. Schabas, William A. 2004. A synergistic relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone. Criminal Law Forum 15: 3–54. Schabas, William A. 2006. The Sierra Leone Truth and Reconciliation Commission. In RohtArriaza, N. and Mariezcurrena, J. (eds.). Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Cambridge: Cambridge University Press. pp. 43–68. Shaw, Rosalind. 2002. Memories of the Slave Trade: Ritual and the Historical Imagination in Sierra Leone. Chicago: University of Chicago Press. Shaw, Rosalind. 2005. Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone. United States Institute of Peace Special Report #130. Washington, DC. Available at: USIP Press. http://www.usip.org/pubs/specialreports/sr130.html. Shaw, Rosalind. 2007. Memory frictions: Localizing truth and reconciliation in Sierra Leone. International Journal of Transitional Justice 1: 183–207. Truth and Reconciliation Commission (TRC) of Sierra Leone. 2005. Final Report. Accessed at: http://trcsierraleone.org/drwebsite/publish/index.shtml. Tutu, Desmond. 1999. No Future Without Forgiveness. New York: Doubleday. United Nations. 1999. Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, UN Doc. S/1999/836, 30 July 1999, para. 7. Available at: http://www.un.org/Docs/sc/reports/1999/sgrep99.htm. United Nations. 2003. International Criminal Court judges embody “our collective conscience” says Secretary-General to inaugural meeting in The Hague.” Press Release

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SG/SM/8628, L/3027, March 11, 2003. Available at: http://www.un.org/news/Press/docs/ 2003/sgsm8628.doc.htm. Vincent, Robin. 2002. Punishment and Forgiveness in Sierra Leone. Guardian, November 3. Available at: http://www.guardian.co.uk/world/2002/nov/03/westafrica.sierraleone. Wilson, Richard A. 2001. The Politics of Truth and Reconciliation in South Africa. Cambridge: Cambridge University Press.

PART III JUSTICE, MEMORY, AND THE POLITICS OF HISTORY

11 Impunity and Paranoia Writing Histories of Indonesian Violence Elizabeth F. Drexler

Historical narratives play important roles in institutions designed to address the legacies of mass violence. Truth commissions are explicitly designed to provide public and official contexts for narrating the unspeakable and locating responsibility for crimes against humanity. The assumption that “revealing is healing” (Adam and Adam, 2001) underlies many strategies for addressing the legacies of massive violence: Expressing or exposing previously denied, secreted, or silenced truths about state violence is said to provide victims with dignity and closure (du Toit, 2000; Hayner, 2001; Minow, 1998; Popkin and Rhot–Arriaza, 1995),1 as well as to reconcile former enemies and resolve the lingering community-level conflicts that follow violent regimes and armed resistance movements. Trials and international tribunals that identify perpetrators and hold them judicially accountable also produce and authorize new narratives about past atrocities, assigning responsibility for creating conditions that made massive violations of human rights possible. Providing a secure foundation for the rule of law, many advocates agree, requires a comprehensive accounting for the past. Lively legal and academic debate has turned on the role of war crimes trials in documenting systematic atrocities, creating historical memory, and raising public awareness of offenses against human rights (Douglas 2001; Osiel 1997), as distinct from adhering strictly to the requirements of the judicial process for determining culpability (Arendt, 1964; Buruma, 1994). Both tasks are essential, but it is difficult to accomplish both in a single body while upholding notions of historical documentation and institutional responsibility, on the one hand, and standards of 1

Anthropological studies have challenged therapeutic models of narration and healing (Hamber and Wilson, 2002; Honwana, 2006) and noted that public narrations of victims’ stories may have the effect of taking stories out of victims’ control, rather than prioritizing victims’ experience (Ross, 2003). Anthropologists have also demonstrated that legal language and institutions may constrain narration and decontextualize suffering experienced by victims (Hastrup, 2003; Wilson, 1997).

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due process and individual rights, on the other (Landsman, 2005).2 Despite their significant differences, all these strategies share the underlying premise that getting the historical narrative right contributes to working through the past, by punishing the right perpetrators and aligning social power with legal truths and/or by officially acknowledging victims’ truths and realigning social relationships. This chapter examines the roles of historical narratives in contexts where neither tribunals nor truth commissions have addressed the legacy of massive violence. Indonesia’s protracted transition from authoritarian rule has been marked by legal impunity for the architects and perpetrators of human rights violations and by social paranoia, the pervasive distrust of state institutions and corrosive mistrust of neighbors that flows from intimate, albeit incomplete knowledge about acts of violence in which many social bodies and local actors were complicit.3 What can historical narratives do in such situations to rectify continuing injustices, provide a foundation for public accountability, and enable all parties to step back from conflict and negotiate their differences through law and politics rather than violence? What happens if historical narratives are constructed so that they reinforce conflicts and even reproduce or extend them? How can a cycle that not only generates violence but also turns diverse, discontinuous forms of dissent into entrenched enemies of the nation-state be interrupted by offering different historical narratives? On June 29, 2007, Indonesia’s president, Susilo Bambang Yudhoyono, sat on a stage in Ambon listening to the governor’s opening remarks on National Family Day, promoting Indonesia’s birth control program. The traditional dancers with wooden swords (parang khas Maluku) appeared at first to be part of a choreographed welcoming event. But, suddenly, what was to be a celebration of the glorious cultural diversity of the nation-state became the setting for unfurling the flag of the Republic of the South Malukus (RMS), a challenge to the Unitary State of the Republic of Indonesia (NKRI).4 The RMS was originally declared in April 1950 by predominantly Christian soldiers from the Malukus who had fought against the Japanese alongside the colonial forces (The Royal Netherlands East Indies Army (Koninklijk Nederlands Indisch Leger; KNIL) to express their dissatisfaction with the Dutch recognition of Indonesian sovereignty in December 1949 and their dissent from the principle that Indonesia was a unitary nation-state rather than a federation. In 1951, the Netherlands allowed ex-KNIL and their families to immigrate (boyongan), and about 12,000 Malukuans went to the Netherlands. The new nation’s military

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It is equally important to consider how narrative logics shape the judicial process and how trials themselves authorize certain narratives and marginalize or silence others (Drexler, 2006a). For a history and critical analysis of conflict narratives regarding Aceh, see Drexler, 2008. NKRI is the term used by the military and others to underline that Indonesia is a unitary state, not a federation.

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forces and nationalist negotiators swiftly resolved the threat posed by the small group of dissident Malukuans that remained. During the 1970s, various isolated actions were conducted in the name of, or attributed to, the RMS, but according to most accounts the issue disappeared. Between 1999 and 2004, conflict that appeared to be between groups defined as Muslim and Christian devastated Ambon, the main island of the Maluku group. An apparently insignificant incident triggered a major blowup, which spread rapidly along lines of religious difference and threatened to involve other regions. As in other conflicts that occurred in Indonesia at this time, analysts and commentators suggested that people had been provoked and instigated by shadowy forces, ranging from separatist conspirators to the Indonesian military itself.5 Then RMS reappeared, in one media account as graffiti on a burned-out building: “this is the RMS” (“Mimpi Republik Para Bidak,” 2007). Media commentators were quick to cast the Ambon event as a slap in the face of the president. At the same time, they wondered out loud how such a demonstration could have occurred so close to the head of state, who was guarded by concentric rings of security and intelligence agents. Accusations and counter-accusations followed, culminating in the departure of the province’s chief of security and an unsuccessful attempt by the national security forces to identity the subversives who had planned the protest. As in so many eruptions of conflict in Indonesia, whether symbolic or violent, nothing was resolved, but the fear that the unitary nation-state was threatened by a separatist group was perpetuated. In Jakarta, on July 6, 2007, I attended a live radio talk show addressing the question, “When will the Maluku conflict end?” A panel of four experts discussed the antecedents and repercussions of the dramatic incident in Ambon at the DPD (Regional Representatives Council) of the MPR, Indonesia’s Parliament.6 What I had heard and read about this demonstration, which symbolically evoked a historical narrative of conflict, reminded me of the complex relationship between history and violence in another region long regarded as a threat to Indonesia’s unitary state, Aceh. The sociologist on the panel invited me to the discussion when I explained my interest, which lay not so much in this particular issue as in the processes through which similar conflicts are interpreted and addressed. Because the meeting was held at the DPD, I expected a discussion among policy makers, not a radio broadcast. The security guards led me to a glass-walled studio, where approximately nineteen 5

6

Characterizing this as a religious conflict obscures subtle dynamics of local politics and contestations within Islam. See Aragon, 2008; Duncan, 2008; and Sidel, 2008. The panelists were Mr. M. Ichsan Loulembah, coordinator for the Caucus of the Conflict Regions (DPD RI); Mr. Thamrin Eli, a public figure in Maluku; Prof. Dr. Richard Zacharias Leirissa, MA, historian at the Indonesian Institute of Research Sciences (LIPI); and Prof. Dr. Tamrin Amal Tomagola, MA, sociologist, University of Indonesia.

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other people, almost all with cameras and press cards, were assembled. The program began with the panelists speaking about what had happened and who should be investigated. Because there were protocols and procedures for official presidential visits outside of Jakarta, determining responsibility should not have been difficult. In discussing the background of the RMS, the historian, himself from Maluku, asserted that the recent reappearance of the RMS was an intelligence operation. How else could the group’s leader, who had been arrested, get out of jail and go to the United States? (Dr. Alex Manuputty left for the United States in 2002–2003 after being charged with subversion.) At the same time, the historian argued that this demonstration expressed dissatisfaction with the injustices, especially economic inequities, suffered by the Malukus. Another panelist countered that it could not be both an intelligence operation and an expression of popular grievances. The sociologist suggested that elements of the intelligence apparatus might well have exploited these frustrations to serve their own interests. He emphasized that the investigations should not focus only on the people, but also on the state. His comments were based on many years of observing the conflict in the Malukus. Five years before, he had noted that the shift between vertical conflicts (state violence, or conflict between state and society) and horizontal conflicts (communal violence, in this case based on religious differences) allowed the military to employ a repressive approach, ostensibly to guarantee security. Other panelists demurred, saying that the risk was too great for the state apparatus, especially if the only goal was to embarrass the president. Moving from this difficult issue, the panelists talked about the lack of attention from the center to this province and the prevalence of economic injustices. It is important to note that in Indonesian, demanding justice for economic and political grievances is expressed by the same word as holding a trial. The panelists also pointed to a difference in the nationalism and patriotism of the older and younger generations. The younger generation did not remember what happened in the past – either the cruelty of the resistance movement (the symbols of which they now adopted) or the nationalist spirit that brought the nation together. In explaining why protestors employed the name RMS if they wanted justice, one panelist stated that this was a “brand” that would garner international attention and was the most effective way to remind the center (Jakarta) of Malukuans’ grievances. Others agreed that RMS was a brand devoid of ideology. In conclusion, the historian said that the history of the RMS had to be written “scientifically” so that people knew what actually happened and that the story could not be used as a “myth.” Despite the panelists’ calls for facts, their interpretations were structured by logics and assumptions that did not arise from, or perhaps even pertain directly to, the disparate events that had occurred in the Malukus in 1950, 1999– 2004, and mid-2007. Similar interpretations have been offered in many discussions I have heard that seek to locate responsibility for “provocations” in a context of deep

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public suspicion and profound legal impunity. The Indonesian military has a long history of violence directed toward a myriad of threats to the state, the power of which it exaggerates and perhaps even helps to generate. It justifies not only violent repression but its fundamental role as the guardian of the nation through historical narratives that configure all dissent as armed separatism. What do we make of a call for scientific history in response to a demand for justice in the present expressed through the “brand” of historical resistance? This chapter does not attempt to construct a scientific history of the RMS, but rather to reflect on the politics of history and struggles for justice in contexts of impunity and paranoia. Historical narratives figure both in demands for justice and accountability regarding past violations of human rights and in the state’s narrative of threats to its very existence that justify military repression. The state has crafted official histories that assign responsibility for instability and disorder to various ideologies that can be continuously renewed as flexible threats. Critics have demanded a “straightening” of these histories to establish different accounts that assign responsibility for abuses to groups and institutions that go beyond specific perpetrators who can be held responsible within the legal system. What work does history do in these cases? How and by whom is it mobilized? What forums are available for writing history in postauthoritarian contexts? What is the relationship between historical narratives, which at best offer “truth,” and justice, which demands accountability? The historian’s call for a “scientific history,” rather than a trial or criminal investigation, to lay the basis for a change in conditions may seem strange at first, but it voices a deep understanding of the uses of historical myth and the obstacles in the way of justice in the Indonesian situation. It also resonates with the premises of transitional strategies advocated in other national and international settings. His call represents an innovative response to the particular conjunction of history and violence in Indonesia. Legal and other institutions have entirely failed to address the state’s use of violence while producing historical narratives of violence between popular factions, thereby positioning the military state as the source of security rather than addressing its commission and promotion of political violence. Here I do not construct an alternative history, but reflect on the roles of historical narratives amid the impunity and social paranoia that have marked Indonesia’s postauthoritarian transition. As I have shown elsewhere, the evidence that would enable an observer to resolve questions about past provocations simply does not – and often cannot – exist in the historical record (Drexler, 2006a, 2006b, 2008). The indeterminacy of the situation, in which next to nothing can be known and proven, results in a multiplicity of situated views, rather than undisputable conclusions. I am concerned with the work that historical narratives do in the present, particularly as they produce particular “truth” effects. For instance, in my examination of the Aceh conflict, I suggest that different historical narratives would have authorized international,

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national, and local actors to make different decisions than they did. The point is not to construct alternative narratives about the past, but rather to examine how potential alternative futures were foreclosed by inaccurate or partisan narratives of the past (Drexler, 2006a). For more than three decades, Indonesia’s New Order regime (1966–1998) designed and implemented policies and operations to secure a chronically insecure state. Indeed, state security strategies actually generated and extended insecurity. The state was not held accountable for renewing insecurity, or even for failing to maintain a monopoly on force and subordinate coercion to the rule of law. The massive killing of suspected members of one of Southeast Asia’s largest legal communist parties in the context of a global Cold War inaugurated Soeharto’s rise to power, which was maintained through a combination of economic development and political repression. The founding myth of the New Order – that the army had saved the Republic from an attempted communist coup – was inscribed through policies, propaganda, and public events during the decades of Soeharto’s rule that emphasized the martyrdom of the generals and the barbarity of the communists.7 Latent dangers, organizations without shapes, masterminds, provocateurs, puppet masters, and other mysterious figures recalled this sense of danger that imperiled the state and disrupted order. The massive numbers of suspected communists killed insured that no one was untouched, although these extrajudicial acts rarely figured in public discourse during the New Order. State policies systematically discriminated against all persons who could be associated with suspected communists. Ideology was not a matter of belief, but of contagion. Constant hypervigilance turned all dissenters into subversives and targeted them for capture, torture, and assassination or co-optation. Order and economic miracles were secured by a powerful military with an institutionalized political and governance role. Ghosts of the past, imagined enemies, and indeterminate threats were constantly renewed to justify military repression. After Soeharto’s fall, alternative historical accounts based on the testimony of witnesses and the discovery of documents scandalized the founding myth that the army had saved the nation from a communist coup (e.g., Katopo, 1999; Latief, 1999). However, the conviction that the suspected communists constituted a danger that had to 7

For the official history of the supposed communist coup attempt, see Notosusanto, Nugroho, and Saleh (1968). Official versions of the “incident” disseminated in film (see Sen, 1994), textbooks, and museums (McGregor, 2003) emphasized the brutality of the communists, especially the allegation that members of Gerwani, a mass-based women’s movement considered part of the then-legal Indonesian Communist Party, danced naked to arouse the generals who were then killed, castrated (a claim that was refuted in Anderson, 1987, based on examination of the official autopsy report) and otherwise mutilated, and left in a hole. Post-Soeharto scholarship demonstrated that the women depicted in official photographs as Gerwani were prostitutes who were arrested, tortured, and forced to pose for the photos (Stanley, 1999). The earliest critical analysis of the coup is found in Anderson and McVey (1971). For the most recent English-language account, see Roosa (2006).

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be violently repressed persisted in most public discourses.8 This sense of insecurity was unabated even when historical evidence suggested possible conspiracies within the elite to engineer a coup and justify a military response. The logic of the insecure state produced social paranoia. Although paralyzing fear would be a normal response to state terror, I use paranoia to refer to an excess of knowledge – direct experiences with, and information about, specific acts of violence that affected people personally, but about which they could do nothing – and a social inability to distinguish truth and falsity. The social process for rendering judgments of what is true or real and what is not has been disrupted. Spectral threats produced deadly violence. Violence that only the state was powerful enough to orchestrate metamorphosed into violence that appeared to be “horizontal,” between groups of citizens rather than implemented by the state. Despite a number of calls for justice, investigations, and tribunals, the regime was not held accountable for the violence that it occasionally acknowledged was committed by its own security forces or for its hidden but more pervasive role in producing its own enemies. Official investigations and some trials created institutional settings for narrating the past, but the “masterminds” have almost never appeared before the court. The people whom most observers felt to be responsible, many of whom were relatively high-ranking officials, have never been punished, and there is an overwhelming sense that justice has not been done. Despite the widespread impression that violence has been provoked or orchestrated by powerful groups, it often takes on a life of its own. Much is known, and more is suspected, about elements of the security forces that armed opponents of the state or fueled antagonisms between local groups. The discourse of “provokator” reiterates the idea that conflicts did not just erupt but that an agent took an action to ignite long-simmering resentment or to generate a new threat, justifying actions to protect the state and avert conflict among citizens. At the same time, there is almost no investigation or legal process that explains how these provocations worked or who their masterminds were. As the news and other media broadcast scenes of violence, the sense that chaos looms produces widespread anxiety about the fate of the nation and the unity in diversity that years of state propaganda celebrated. Conspiracy theories and rumors abound, but no conclusive investigations or trials ever established definitively that there was or was not a conspiracy or a “puppet master.” Denials and disavowals are partial, but the sense of danger is real and dictates future actions. Widespread suspicions, public secrets, and personal knowledge have no legal consequences. There is no authoritative history or legal process to dispel rumors and myths. Indeed, that which is known not to be true has the most dramatic effects. A bewildering amount of violence was perpetrated by citizens, even if they were provoked by the state. Although people were well aware that 8

Heryanto’s analysis of “fatally belonging” (2006) sheds light on this complex dynamic.

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the state apparatus had instigated or encouraged violence between communities, the same forces were called upon to resolve conflicts that appeared uncontrollable. Accountability was difficult and almost never pursued legally. The Indonesian state security apparatus has a history of provoking violence. The pattern of transforming vertical conflicts to horizontal conflicts was especially pronounced in the period after the fall of Soeharto, although the practices have their antecedents in New Order violence. After conflicts were horizontalized, accountability was no longer the issue, and legal institutions demonstrated the impunity of the powerful without proving their innocence. The process of horizontalization required particular decisions and actions by individuals and institutions. In several post-Soeharto instances, state violence was horizontalized as armed separatism (Aceh), civil war (East Timor), and communal conflict, based on religion (Maluku/ Ambon), ethnicity (Kalimantan), or vengeance (Banyuwangi).9 In Aceh, the cycle spun out of control and an imagined enemy came to life as actual armed separatist rebels.10 In 1999, before there was a visible separatist movement, when most people feared that the rebel movement existed as a justification for state security forces to repress innocent citizens, indeterminate violence was ascribed to the “provokator” and demands were made for a legal process of accountability, both for the provokator and for the state forces who had committed massive human rights violations during the period of “military operations” to find the supposed rebels from 1989 through 1998. Now, ten years later, there has been no legal process, and any historical reckoning is feared as a possible cause of violence. The existence of the imagined enemy complicated the matter of accountability for past and ongoing violence. Rather than having a conflict over differing versions of the past, the separatist enemy and the state antagonist converged in agreeing to their long history, retrojecting the threat of separatism into the past and justifying the state operations that produced the grievances that facilitated the popularization of the movement for independence. Faced with the threat of existing armed separatists, political elites supported a state of military emergency rather than a process of accountability for past state violence and economic redistribution to resolve the grievances that made separatism compelling to an increasingly large section of the population. Although the separatists appeared to have a popular following and a long history, the military in fact had contributed to their strength and very existence at different points in the conflict. These facts that were deliberately obscured by the existing rebel movement and by the

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On East Timor, see Drexler, 2006b; on Kalimantan see Peluso, 2006 and Davidson, 2003; on Banyuwangi, see Sidel, 2006 and Siegel, 2006. The process by which spectral threats became actual separatists relied on the figure of the provokator and other indeterminate agents who performed violent acts, as well as only partially concealed overlaps between the military forces and their armed opponents. For detailed analysis, see Drexler, 2008.

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convergent history on the basis of which it was granted international recognition. The military state of emergency was not lifted until an internationally brokered peace agreement in the wake of the deadly Indian Ocean tsunami that claimed more than 160,000 victims in Aceh. The former separatists won local elections, causing further anxiety and resistance from the central government to the power sharing and democratic processes mandated by the agreement. The agreement also requires Human Rights Tribunals and a Truth and Reconciliation Commission. Two years after the agreement, neither has been constituted. Many people with whom I spoke Aceh in 2007 agree that there must be a process of accountability, but the same people fear that a Truth Commission would open old wounds and destroy the fragile peace. In East Timor, state violence was facilitated and implemented throughout the Indonesian occupation (1975–1999) by double agents, informers, and other local operations assistants. The branch system insured that the tentacles of Indonesian power and violence penetrated society. When Soeharto’s successor announced that there would be a referendum for Timorese to vote on remaining within Indonesia with special autonomy or becoming independent, militias were organized, trained, and armed by the Indonesian Armed Forces (TNI) to intimidate voters before the referendum and to create the appearance of civil war in the aftermath of the announcement of the results. Violence in East Timor has been examined through a number of transitional institutions. In Jakarta, an ad hoc human rights tribunal failed to hold high-ranking TNI accountable for their role in arming and training militias; the resulting narrative described a civil war between two factions of Timorese, those favoring integration with Indonesia and the others favoring independence. A UN-supported “hybrid” tribunal incorporated international staff to investigate ten priority cases of crimes against humanity as well as numerous other cases of violence perpetrated in conjunction with the referendum. High-ranking TNI members were not extradited to Timor for trial, even though a number were indicted for their involvement in violence. The trials that did occur attracted very little public attention, failed to fulfill popular demands for justice, and held only low- or middle-ranking Timorese officials accountable for their role in the 1999 violence. The Commission for Truth and Reception (CAVR), also UN supported and partially internationally staffed, crafted the most complex narrative describing patterns of violence and political conflict between Timorese that were manipulated by the occupying forces from 1974 to 1999. The commission’s final report made strong recommendations to the government that there must be a process of justice. Subsequently, a UN commission of experts reviewed the hybrid tribunals and determined that justice has not been done. In response to international pressure in 2004, the governments of Indonesia and East Timor designed a Commission for Truth and Friendship (CTF) that seeks to provide amnesty for high-ranking perpetrators along with a narrative of what happened that

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satisfies both sides as they move forward in harmony. The UN and many Timorese and Indonesian nongovernmental organizations (NGOs) have criticized this body. The CTF hearings held in Indonesia were used to remind Indonesians that there was a conflict among groups of Timorese and that the TNI was unable to prevent violence from erupting. The 2006 conflict in Timor has reinforced the perception that there is a deep horizontal conflict between factions of Timorese without considering the ways in which thirty years of state intelligence and military operations exaggerated, manipulated, exploited, reinforced, and perhaps even produced those divisions. There have been very few institutional forums for addressing the past in Maluku. A few individuals who were not affiliated with the state apparatus have been tried for their roles in the religious violence. However, media reports have documented discrepancies in the treatment of Christians and Muslims, pointing to the difficulty of using the existing justice system to address the problem. Indeed, the courts seem to be a means of furthering the inequalities between groups. In the national media, the role of the provokators disappeared in the actuality of violence between communities clearly demarcated by religion. NGO activists from Maluku whom I met at a national meeting in Banda Aceh in July 2007 told me that local people had begun to resist the provocations and had realized that the conflict benefited certain parties. The issue of the RMS has been linked to the religious violence, but it recasts a much more volatile communal conflict and set of economic grievances into the frame of separatism. The institutional and official processes, or lack thereof, for addressing the past influence the kinds of historical narratives that become dominant. Although tribunals create and inscribe historical memory, the Malukuan historian asked not for a trial but for scientific history. The idea that history might circumvent the process of provocations by changing public consciousness is compelling, but history seems no more capable than law of resolving paranoia. In this context, paranoia is not excessive or misplaced fear. Although state violence in Indonesia has created situations in particular times and places where certain individuals had good reason to fear for their lives, social paranoia describes a common condition in which it is impossible to distinguish truth and falsity and the institutions that are charged with making such distinctions, especially law, no longer function. Just as legal processes, or their absence, have produced inaccurate historical narratives, distorted historical narratives have produced dangerous laws and treacherous gaps in what judicial processes are conducted. Is the answer then to write scientific histories that derive their authority from a position outside politics and yet play an important political role? It is tempting to think that historical narratives can overcome an overwhelming lack of political will to hold perpetrators accountable and might disarm provocations on the ground by clarifying how groups with grievances can be drawn into reactions

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that serve the purposes of the state rather than further their own ends. Searching for smoking guns and incontrovertible historical evidence seems compelling when governments practice deception and propagate violence covertly. Most transitional justice strategies are linked to producing historical narratives to work through past violations and ground future institutions. The Malukuan historian sought a “scientific” history that stood above politics so that it could not be used as myth. Historians and archaeologists of knowledge have demonstrated that scientific analysis and the construction of social-scientifically based historical narratives are political processes, and the authority of both scientific and historical analysis is generated in acts that are steeped in power relations (Latour, 1987; Trouillot, 1997). What the historian seems to call for is not so much a “neutral” history as a narrative that counters the dominant version promulgated by persons/groups in power.11 Although some international agencies that specialize in conflict mediation are reluctant to recognize this stubborn fact, expertise is never neutral or beyond politics. Although it may be impossible to write the scientific history that the historian asked for, it is important to reflect on why a counter-narrative might be his best hope. In a context where legal institutions have endorsed impunity and historical narratives have justified state violence, a call to scientific history for resolution is both innovative and complicated. A scientific history would draw its authority from sources and methods that stand outside prevailing power relations and current structures of conflict, and it might demonstrate the principles that are foundational to the rule of law and a legitimate system of governance. The distinction between truth and falsity would be based on what is known and knowable and on agreed standards of evidence. Equally important, it would be aligned with people’s excess knowledge, the state’s public secrets, and memories that persist on the ground. The mass graves that have been unearthed, the testimonies of victims that have been collected, and the confessions of double agents who swear they were coerced into betraying their friends as well as their enemies would not be reburied, silenced, and denied. At the same time, ungrounded suspicions could be laid to rest. Since Nuremberg, one premise of international tribunals has been that compiling a complete historical record even when the perpetrators are dead or otherwise unavailable for trial and punishment is a way of doing justice. My research and analysis suggests otherwise. No historical narrative provides justice; it only lays – or undermines – the foundations 11

If such a history could be written, how would it be disseminated? In the spirit of reform after Soeharto’s fall (1998), school textbooks were revised to reflect a different version of the supposed coup attempt. By the time the texts were produced, political conditions had shifted and the new books were banned. The historian might have been thinking of this when he said that he was not planning to write the history, but had suggested to several Australian and European scholars that it needed to be done, perhaps hoping that international authors would have more authority and less interference from national political struggles.

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for a state and society in which actions have knowable causes and predictable consequences. In Indonesia, the reigning historical narrative has had profound consequences in citizens’ everyday lives. The “master narrative” of the state saved from communist and separatist subversion by the armed forces serves as a rationale for myriad forms of surveillance and repression. For instance, to work as a civil servant or in vital industries, individuals had to obtain a “clean environment letter” certifying that for four generations there had been no (suspected) communists in their family. Ariel Heryanto (2006) traces how the master narrative worked in society and how individuals became complicit in the state’s mechanisms of information and control. Equally significant, the dominant construction of the history of Indonesia distorts all popularly generated reform initiatives, positioning them as enemies within that constitute a threat to the state regardless of their actual programs and pushing them into armed conflict with the military. The importance of history in Indonesia as a justification for various state policies and practices – indeed, the relationship of history to the state’s sense of its own insecurity – provides a good reason why citizens might wish to replace the regime’s grounding historical narrative with a more accurate one that does not serve the state’s purposes. At the same time, the political importance of history suggests that it may well be impossible to write a history that is recognized as scientific rather than the servant of the state. Entrenched interests are unlikely to tolerate, much less accept, an alternative version of history that undercuts the prevailing myths. Writing historical counter-narratives that include aspects of the past that have been officially denied and connect actions and reactions accurately is likely to encounter the same problems that have stymied legal efforts. Political interests limit, obstruct, and distort investigative and adjudicatory processes, ruling some matters out of order, exempting the most powerful perpetrators from prosecution, and generating narratives that place blame for whatever events are acknowledged to have occurred on the lowestlevel victims. The problems of history, like those that bedevil the law, point to the fact that postauthoritarian institutions lack social legitimacy or moral authority. Nearly a decade after Soeharto’s fall, many patterns of the past have continued. The democratization that does exist has come in the form of multiple parties and the ability to broadcast rumors and suspicions more clearly in the public space. There are competing versions of stories, and although some have unfair advantages, the other versions are available, if only momentarily. Political competition has led to a situation in which elites often make various accusations of each other in the media, and some suspicions of elite involvement in activities portrayed as subversive are confirmed by these campaigns of innuendo. Yet the legal system is unable to rule definitely on what is true, promoting social paranoia that undermines solidarity as well as allowing political violence to be generated in the shadows. Most cases – whether of pervasive

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corruption or the systematic violation of human rights – never make it to court. The problems of law and history are similar: Even if persons involved in provocations were to turn against the state and testify, on the basis of their own involvement, to how the system worked, the state is so fractured politically and judicial institutions have such little independence and credibility that the charges would be dismissed as politicized. The weakness of the legal system is so widely known that so far, no one has come forward to seek a hearing in that forum. Documents have been compiled, and some have been leaked to the press or NGOs to generate popular demands for judicial action. On a few occasions, in particularly egregious cases, witnesses have been asked to testify to various state crimes, but most perpetrators have not appeared, and some have even disappeared before their court appearances.12 Without a functioning court to hear evidence and make judgments, there is no way of establishing the truth. In other cases, where persons involved in historical events (such as in 1965) have published memoirs detailing their involvement, they have been ruled as non-evidence. Thus, although the idea of writing a scientific history to replace the narratives currently used to locate threats and establish the state’s insecurity is understandable, it is also impossible, for the same reasons that it has been impossible to have legal accountability. There is no neutral history, only a master narrative and counter-narratives that present alternative points of view. The key question is not about the scientific truthfulness of new histories, but about the uses made of history by the state and by opposition groups, as well as the role of conflict narratives in structuring various international mediations, state policies, and political interventions. Writing a history of conflicts in the Malukus so that RMS cannot be used as a label for the central state to discriminate against an entire group and for the security forces to repress particular people would be a laudable undertaking. However, approaching the problem with the idea that what is required is a history of the RMS demonstrates that the historian is caught up in the logic of the insecure state that has structured political life and public discourse in Indonesia for the last three decades. The problem is not the RMS, whether it exists and whether it has any connection with previous forms of popular protest in the Malukus. RMS is simply the latest manifestation of a chronic pathology of the Indonesian state, which sees itself as constantly endangered and reads all critique as separatism and attack on the unitary nation-state. If history is to provide any justice or accountability, which it cannot do in the absence of a functioning legal system, it is the critical analysis of the misuse of history to enshrine a viewpoint within which justice and accountability are inconceivable. This critical analysis requires not correcting the “facts” of the past, or putting scientific authority behind specific truth claims, but rather examining how policies 12

For instance, in the Bantaqiah joint civilian military connexitas tribunal described in Drexler, 2008.

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and decisions have been based on historical narratives that in many cases were known at the time to be inaccurate. Parties that appear to be opposed actually have converged in suppressing the same historical discontinuities – for example, the chronological gaps, ideological differences, and organizational disjunctions between disparate forms of dissent in specific regions. Why is it in the interest of both the protestors and the security forces to assert a historical continuity between current grievances and historically different grievances? Why do these opposed groups, as well as the media and political commentators, collude in an account of a historical trajectory that bears no resemblance to the crisis on the ground, which in many cases has to do with a lack of political and economic representation in an overly centralized state? If the situation in Aceh is any guide, relationships between regions and the center are fraught with conflicts in large part because of the inequitable distribution of the profits generated by resource extraction and the absence of locally meaningful political mechanisms for demanding a say in decision-making processes regarding a whole range of issues from rural development to Islamic law. The signs of the times in the Malukus suggest that economic grievances play a major role in the current dissent, although the policies that have recently exacerbated inequalities are rationalized by a desire to assert central control over warring local populations. What interests are served when popular protests are metamorphosed into a carefully choreographed dance between mysterious armed separatists and the chronically threatened state and then horizontalized into factional conflict on the ground? Whose interests are served? Why do opposition elements accept the invitation to the table that posits them as enemies of the state and transforms them into political forces for referenda on independence rather than seeking recognition as citizen groups with a political economic and/or human rights agenda? When the process of constituting and producing an actual threat from a logic of insecurity is validated by both sides, giving any accurate historical account and instituting legal accountability are both rendered impossible. Most transitional justice strategies are predicated on the existence of identifiable perpetrators and distinct victims who occupy distinct positions as both groups and individuals. In cases where violence is “provoked” or where state violence is implemented through informers and other double agents or where strategies are based on perpetual threat, no side has an interest in justice as accountability. Justice is demanded, but not through the court. International standards and mechanisms of accountability that would be outside of the loop of insecurity become pulled into it as the demands of the aggrieved are constituted as a threat to national sovereignty. The experience in Indonesia, so strikingly underlined by the East Timor situation, is that the international community will not hold the state forces accountable and justice will remain a national problem, in a system where courts are corrupt and ineffective.

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Both historical truth and legal justice require testimony of individuals best placed to speak to how the process worked or how events unfolded. The national court system has no system for protecting victims or offering immunity to witnesses. The impression that testimony circulating in the court will boomerang against the person testifying has been borne out by events. In most cases, persons whose testimony would be most critical to establishing how the process of horizontalization worked are the masterminds who designed these strategies and the field commanders who implemented them. The high-level generals and officials who planned such operations have no reason to disclose the system; there is no threat of prosecution, and when conflicts are successfully horizontalized their role is no longer the issue. Furthermore, persons designing the system are not themselves immune to it; as one intelligence officer explained to Ariel Heryanto, state agents start to believe that the enemies they produce are real (Heryanto, 2006: 140–141). The lower-level commanders and foot soldiers who carried out such operations knew only as much as they were told; some were drawn from or placed in positions that entailed risk to their families and associates if they either failed to carry out orders or testified as to what actually occurred afterwards. Both persons who plan and implement these operations from within the state apparatus and persons who are outside it, who might or might not know that the same forces are colluding and playing both sides, risk implicating themselves in positions that will not be protected by the narratives that secure impunity (i.e., of a threatened state fighting dangerous separatists). In Aceh, separatists who were supposedly struggling for national liberation are now in a position of political power and enjoy international NGO endorsement. Far away from tribunals that may propose new narratives that could become the basis for moving forward in a different direction, testifying may entail consequences for particular betrayals and crimes perpetrated against neighbors. Finally, in the unlikely event that high-ranking perpetrators disclosed the system of fabricating enemies, it is most likely that the charges would be declared political. In other words, if there were sufficient evidence to demonstrate how the state produced its own enemies, it is quite likely that individuals providing evidence would be discredited and their testimony would be declared politically motivated. No court or institution would be able to guarantee that the evidence that was admitted and credited was true and the evidence that was dismissed or disproved was false. Tracing how conflicts that retroactively appear as inevitable and intractable were structured to be insoluble and perpetual may lay the groundwork for acts of resistance that do not strengthen the state and that do not perpetuate the cycle of suspicion, violence, impunity, and paranoia. Demonstrating which policies and decisions produced the enemies that took on a life of their own would also illuminate issues and arenas in which alternative policy solutions could be pursued. Finally, given the

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complex relationships between historical narratives and legal decisions, a different kind of history would point to ways of creating new forms of liability. If, for example, the full spectrum of cases were examined in a systematic, comprehensive way, then it would be clear that the historical analysis was not biased toward one or another “side” in spiraling conflicts. If the historical record could stay put in the past rather than being pulled into current politics, it would be possible to ascertain what interests were served and what groups colluded to produce and reproduce these conflicts over time. Perhaps our historian could even demonstrate that the process is happening now, even if protagonists and observers want to say that in Maluku it is political. I am sympathetic to the historian’s hope that a scientific history would interrupt cycles of violence and provocation in Maluku, but I think that writing a scientific (i.e., objective or neutral) history is impossible. Indeed, I think that the specific history of Indonesia demonstrates that such a hypothetical account, were it possible, would not be able to achieve the concrete, political effects that the historian imagines it would. Nevertheless, it is valuable to examine the use of historical narratives in this conflict to attain a perspective that does not serve individuals who perpetuate conflict by structuring and reconstructing it according to this peculiarly pathological dynamic. In many societies, institutions that are not formal make the official histories effective by propagating these narratives for popular consumption. What might be called the institutions of memory13 have a peculiar force that derives not from either academic disciplines nor institutions of justice but from their mobilization of images and past events around which sentiments are gathered and condensed. In these places and forms, memories that are separate from, or potentially subversive of, the master narrative are often reinterpreted and inserted into the dominant ideological constructions. A critical history would map out how society is complicit in making false histories that have real consequences. Understanding how this process works also would provide the opportunity to construct alternative histories, to make the current historical counter-narratives more effective, or to move the whole discussion out of the realm of conspiracy theory. The argument usually advanced by persons who do not share Indonesians’ social paranoia and have no special knowledge of “the dark pattern” of collaboration between the state and its supposed enemies is that the notion of conspiracy attributes a competence that the TNI does not possess and it is too neat, too sweeping, and too coordinated to explain the messy, contradictory, and often convoluted events and connections through which violent conflict has been generated and regenerated. The main problem, or at least the problem that can be addressed by civil society, I suggest, lies not with how the state security forces 13

As opposed to sites of memory, institutions of memory emphasize the processes of producing cultural and political memory. See Bryant and Drexler, n.d.

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operate but how the nonstate side meets it, takes it up, and comes to live on its own out of the control of the mastermind. The dominant historical narratives of Indonesia are, indeed, currently being contested. The prevailing story tends to deepen and spread the feeling of insecurity by dramatizing an exaggerated or purely fabricated threat to the nation from which Soeharto and his friends rescued Indonesia. This history is one of national belonging consolidated through enemies within. Some scholars and activists are trying to publicize an alternative version of the national narrative, a history of tolerance and pluralism that brought the nation together before the imposition of the New Order. The problem that haunts this project is that digging deeper into the nationalist history may well disclose events that do not conform to this model of mutual accommodation and recognition of differences: that transforming all forms of dissent into cultural difference removed key questions from political debate. The history of peaceable pluralism may turn out to be as mythic as the New Order version. Persons who would construct a more comprehensive and truthful history face the same dilemmas as those who would pursue justice and the validation of human rights through legal institutions. If the historical process though which the state made its own internal enemies to justify the political role of the military were recorded and narrated, would that knowledge only make people more paranoid because the state continues to insist on its truth claims and confronts supposed enemies who commit acts of actual or symbolic violence? If the political violence that was committed in the name of securing the state were documented and weighed in a public forum that had the legitimacy that the legal system does not but lacked the force to make its conclusions effective, would that only fuel the mutual distrust and fear of repression that so often poisons Indonesian politics? Nevertheless, beginning the process of constructing counter narratives and constituting alternative forums for discerning justice holds value. Both critical historical analysis and comprehensive documentation and assessment of past injustices posit notions of political action and concepts of human rights that pose a direct challenge to the prevailing regime. Rather than pronouncing the Indonesian state chronically insecure and the polity terminally impaired by trauma and paranoia, historians and advocates of justice may unveil and interrupt the pattern in which supposed opposition forces collaborate with the military state in reproducing the conditions for violence. References Adam, Heribert, and Kanya Adam. 2001. The Politics of Memory in Divided Societies. In James, W. and Vijver L. v.d. (eds.). After the TRC: Reflections on Truth and Reconciliation in South Africa. Athens, OH: Ohio University Press. pp. 32–51. Anderson, Benedict. 1987. How did the generals die? Indonesia 43 (April): 109–135.

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Anderson, Benedict, and Ruth Thomas McVey (with Frederick P. Bunnell). 1971. A preliminary analysis of the October 1, 1965, coup in Indonesia. Ithaca, NY: Cornell Modern Indonesia Project. Aragon, Lorraine V. 2008. Reconsidering displacement and internally displaced persons from Poso. In Hedman, E.E. (ed.). Conflict, Violence and Displacement in Indonesia. Ithaca, NY: Cornell Southeast Asia Program. pp. 173–206. Arendt, Hannah. 1964. Eichmann in Jerusalem: Report on the Banality of Evil. New York: Penguin. Bryant, Rebecca and Drexler, Elizabeth F. Nd. After Violence: Institutions of Truth and Memory. Philadelphia: University of Pennsylvania Press (under contract). Buruma, Ian. 1994. The Wages of Guilt: Memories of War in Germany and Japan. New York: Farrar, Strauss and Giroux. Davidson, J. S. 2003. The politics of violence on an Indonesian periphery. South East Asia Research 11 (1). Douglas, Lawrence. 2001. Memory of Judgment: Making Law and History in the Trials of the Holocaust. New Haven, CT: Yale University Press. Drexler, Elizabeth F. 2006a. History and liability in Aceh, Indonesia: Single bad guys and convergent narratives. American Ethnologist 33(3): 313–326. Drexler, Elizabeth F. 2006b. Transitional institutions and the corruption of truth, memory and justice. Paper presented to the seminar “Institutions of Truth and Memory: Resolving the Legacies of Mass Violence,” May 18–25, 2006, Rockefeller Brothers Study Center Workshop, Bellagio, Italy. Drexler, Elizabeth F. 2008. Aceh, Indonesia: Securing the Insecure State. Philadelphia: University of Pennsylvania Press. du Toit, Andre. 2000. The moral foundations of the South African TRC: Truth as acknowledgment and justice as recognition. In Rotberg, R.I. and Thompson, D. (eds.). Truth v. Justice: The Morality of Truth Commissions. Princeton: Princeton University Press. pp. 122–140. Duncan, Christopher R. 2008. Where do we go from here? The politics of ending displacement in post-conflict North Maluku. In Hedman, E.E. (ed.). Conflict, Violence and Displacement in Indonesia. Ithaca, NY: Cornell Southeast Asia Program, pp. 207–230. Hamber, Brian and Richard Wilson. 2002. Symbolic Closure through Memory, Reparation and Revenge in Post-Conflict Societies. Journal of Human Rights 1, no. 1: 35–53. Hastrup, Kirsten. 2003. Violence, Suffering and Human Rights. Anthropological Theory 3, no. 3: 309–23. Hayner, Priscilla B. 2001. Unspeakable Truths: Confronting State Terror and Atrocity. How Truth Commissions around the World are Challenging the Past and Shaping the Future. New York: Routledge. Heryanto, Ariel. 2006. State Terrorism and Political Identity in Indonesia: Fatally Belonging. London: Routledge. Honwana, Alcinda. 2006. Child Soldiers in Africa. Philadephia: University of Pennsylvania Press. James, Wilmot, and Linda van de Vijver. 2000. After the TRC: Reflections on Truth and Reconciliation in South Africa. Athens, OH: Ohio University Press; Cape Town: David Phillip. Katopo, Aristides (ed.). 1999. Menyingkap Kabut HALIM 1965. Jakarta: Sinar Harapan. Landsman, Stephen. 2005. Crimes of the Holocaust: The Law Confronts Hard Cases. Philadelphia: University of Pennsylvania Press.

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Latour, Bruno. 1987. Science in Action: How to Follow Scientists and Engineers through Society. Cambridge, MA: Harvard University Press. Latief, A. 1999. Pledoi Kol Soeharto Terlibat G 30. Jakarta: ISAI. McGregor, Katharine E. 2003. Representing the Indonesian past: The National Monument History Museum from Guided Democracy to the New Order. Indonesia 75 (April): 91–122. “Mimpi Republik Para Bidak,” Gatra, July 11, 2007, 25. Minow, Martha. 1998. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon Press. Notosusanto, Nugroho, and Ismail Saleh. 1968. The Coup Attempt of the “September 30 Movement” in Indonesia. Jakarta: Pembinging Masa. Osiel, Mark. 1997. Mass Atrocity, Collective Memory, and the Law. New Brunswick, NJ: Transaction. Peluso, Nancy Lee. 2006. Passing the red bowl: Creating community through violence in West Kalimantan, Indonesia. In Coppel, C. (ed.). Violent Conflict in Indonesia. New York: Routledge. Popkin, Margaret, and Naomi Roht-Arriaza. 1995. Truth as justice: Investigatory commissions in Latin America. Law and Social Inquiry 20(1): 79–116. Roosa, John. 2006. Pretext for Mass Murder: The September 30th Movement and Suharto’s ´ in Indonesia. Madison: University of Wisconsin Press. Coup d’Etat Ross, Fiona. 2003. Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa. London: Pluto Press. Rotberg, Robert I. 2000. Truth commissions and the provision of truth, justice and reconciliation. In Rotberg, R.I. and Thompson, D. (eds.). Truth v. Justice: The Morality of Truth Commissions. Princeton: Princeton University Press. pp. 3–21. Sen, Krishna. 1994. Indonesian Cinema: Framing the New Order. London: Zed Books. Sidel, John T. 2006. Riots, Pogroms, Jihad: Religious Violence in Indonesia. Ithaca, NY: Cornell University Press. Sidel, John T. 2008. The manifold meanings of displacement: Explaining inter-religious violence, 1999–2001. In Hedman, E.E. (ed.). Conflict, Violence and Displacement in Indonesia. Ithaca, NY: Cornell Southeast Asia Program, pp. 29–60. Siegel, James T. 2006. Naming the Witch. Stanford, CA: Stanford University Press. Stanley. 1999. Penggambaran Gerwani Sebagai Kumpulan Pembunuh dan Setan (Fitnah dan Fakta Penghancuran Organisasi Perempuan Terkemuka). Paper presented at seminar, “Tragedi Nasional 1965,” Masyarakat Sejarawan Indonesia, Serpong, September 8. Trouillot, Michel-Rolph. 1997. Silencing the Past. Boston, MA: Beacon Press. Wilson, Richard A. 1997. Human Rights: Culture and Context. London: Pluto Press.

12 National Security, Weapons of Mass Destruction, and the Selective Pursuit of Justice at the Tokyo War Crimes Trial, 1946–1948 Jeanne Guillemin

The Allied victory in 1945 produced two innovative but not necessarily compatible constructions of justice. The first was the agreement among the Allies (United States, Great Britain, the Soviet Union, and France) to jointly prosecute the individual leaders of the defeated Axis powers for waging aggressive war and committing crimes against humanity, particularly the mass murder and torture of civilians. This consensus generated the initial Nuremberg trial (1945–1946) and then the International Military Tribunal for the Far East (IMTFE), also known as the Tokyo war crimes trial. The second Allied consensus was that Germany and Japan had to be militarily occupied, purged of fascism (which was already defeated in Italy), and made incapable of threatening world peace. As early as 1946, as part of its grand strategy, the United States envisioned the reinvention of both these defeated enemies as bulwarks of free-market democracy against the geopolitical threat of the Soviet Union, west and east. For Japan, the postwar nation-building project entailed radical constitutional reform and cultural change.1 Less attention has been paid to how the U.S. Cold War national security objectives – founded on the legitimacy of its weapons of mass destruction (WMD) – ultimately corrupted the IMTFE by excluding evidence of mass murder with germ weapons and by failing to indict the responsible Japanese leaders for these crimes. In contemporary times, American political indifference to genocide and torture in the Balkans and Africa has been analyzed as part of its historical reluctance to intervene in international conflict.2 After the terrorist attacks of 9/11, the U.S. revision of its national security objectives led it to military engagement in Afghanistan and

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John Dower, Embracing Defeat: Japan in the Aftermath of World War II (New York: W.W. Norton, 1999); Ian Buruma, Inventing Japan, 1853–1964 (New York: Random House, 2003). Samantha Powers, “A Problem From Hell”: America and the Age of Genocide (New York: Basic Books, 2002).

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Iraq and to the resumption of its old superpower role of occupying power and nation builder. These interventions in the name of its global “war on terror” consequently raised doubts about U.S. adherence to international laws against torture and its possible disregard of responsibility for wartime civilian casualties.3 Although it took place in a different historical and cultural context, the U.S. derailing of justice at the IMTFE provides a strong argument for political dispassion and transparency in war crimes prosecution, without which indifference to vulnerable civilians is all too likely to occur. The U.S. use of nuclear weapons on Japan was the major moral dilemma that troubled the IMTFE. Some believed that the August 1945 apocalyptic murder of hundreds of thousands of Japanese civilians robbed Americans of the right to pass judgment on Japanese atrocities. Still, the subject of the bombings of Hiroshima and Nagasaki was summarily banned from the Tokyo trial.4 Furthermore, the U.S. identification of national security with its future WMD advantage led its leaders – General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), the Joint Chiefs of Staff (JCS) and even higher civilian authorities – to covertly suppress the immorality of the Japanese germ weapons atrocities in order to claim the criminal evidence as vital national security data. The fact that the ten other nations participating in the trial process (Australia, Canada, China, India, the Philippines, the Netherlands, and New Zealand, as well as the other three major powers) allowed this transgression points to the problem of America’s sheer political weight, which can coerce both allies and enemies. It demonstrates how a superpower in charge of military occupation and political reform can practice selective justice, avoiding war crimes prosecution that would restrict its military options or incriminate its leaders. The two major war crimes tribunals, first in Nuremberg and then in Tokyo, were staged as public purges of the defeated regimes. At Nuremberg, beginning in November 1945, the four Allied judges and their staffs worked diligently together, so that by mid-October 1946, the Third Reich’s major criminals were judged and their sentences carried out, before contention between the Soviet Union and the West could erode the process.5 In contrast, the later start of the Tokyo war crimes trial (in May 1946) and the unique features of SCAP and the role of military intelligence in the occupation 3

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Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York: NY Review of Books, 2004); M.H. Hicks, H. Dardajan, G.G. Serd´an et al., “The Weapons That Kill Civilians—Deaths of Children and Noncombatants in Iraq, 2003–2008,” New England Journal of Medicine, 2009 360 (16): 1585–1588. George F. Blewett, “Victor’s Injustice: The Tokyo War Crimes Trial.” American Perspective 1950, Vol. 4, No.3: 282–292. Telford Taylor, The Anatomy of the Nuremberg Trials (New York: Knopf, 1992), 611.

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undermined justice from the beginning. The IMTFE exemplifies the problem of “victor’s justice,” and not only for its biases against the defendants or its procedural irregularities.6 The Tokyo war crimes trial provides a classic example of the dilemma that arises when a liberal state’s commitment to universal principles of law conflicts with its perceived vital interests.7 For the United States, fundamentally in control of the IMTFE, the conflict between achieving both justice and its national security goals was particularly acute. The indictments against Japanese war criminals drew on American public outrage over the bombing of Pearl Harbor, extreme brutality toward prisoners of war (POWs) and other captives, and well-known instances of mass murder, such as the 1937 “Rape of Nanking.”8 At the same time, American national security was being defined in terms of fortifying its WMD advantage against the perceived threat of the Soviet Union. The technological capacity to kill masses of civilians, demonstrated by the U.S. nuclear bombings of Japan and, before that, by the incendiary bombings of German and Japanese cities, was envisioned as the legitimate counter-threat to Soviet world dominance, if not the future of war. Almost unknown to the public and many high government officials was the extensive U.S. wartime stake in biological weapons (BW), shared with Great Britain and Canada, and the postwar revival of that commitment by the Western powers, including France.9 In September 1945, the defeated Japanese had little to tell Americans about nuclear or chemical weapons, areas where German expertise proved militarily valuable. Unlike the Germans, though, the Japanese army had been extraordinarily active in BW development and use; its leaders, in fact, had engaged in patently criminal activities – forced human experimentation and the actual use of germ weapons in war. The United States was immediately interested. Here was a class of weapons with strategic potential on a par with nuclear weapons, BW advocates in Washington argued. Although the 1925 Geneva Protocol banned the use of chemical and biological weapons, the United States (like Japan) had never ratified the treaty and therefore had broad latitude to pursue a full offensive capability, not just the 6

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Richard H. Minear, Victors’ Justice; The Tokyo War Crimes Trial (Princeton, NJ: Princeton University Press, 1971); Jackson Nyamuya Maogoto, War Crimes and Realpolitik (Boulder, CO: Lynne Rienner, 2004), 100–105; Yuma Totani, The Tokyo War Crimes Trial: Historiography, Misunderstandings, and Revisions (Japan) (Dissertation, University of California, Berkeley, 2005), 421–434, describes younger Japanese scholars who have criticized the IMTFE for the crimes it failed to prosecute, e.g., biological weapons use, exploitation of Korean laborers, and the forced prostitution of “comfort women.” Gary Jonathan Bass, Stay the Hand of Vengeance. The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2000), 3–36. See Documents on the Rape of Nanking (Ann Arbor, MI: University of Michigan Press, 1999), Timothy Brook, ed. Jeanne Guillemin, Biological Weapons: From State-sponsored Programs to Contemporary Bioterrorism (Berkeley, CA: University of California Press, 2005).

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means of retaliation in kind allowed by the Protocol. As the IMTFE progressed, American officials at all ranks acted to suppress information about Japan’s germ weapons program and to protect Japanese BW scientists and other responsible officials from prosecution. This U.S. maneuver was far from secret. The IMTFE included judges and prosecutors from eleven nations who worked in relatively close contact for more than two years. During the war, China had informed most of them – and certainly U.S. and UK officials at the highest levels – about Japanese biological attacks. Even before the war’s end, U.S. intelligence sources were confirming these allegations. How, then, were Chinese BW victims erased from the historical record and justice on their behalf derailed? The explanation begins with the triumphal legitimacy accorded nuclear weapons, which, by occupation policy, not even the survivors of Hiroshima and Nagasaki were permitted to criticize.10 U.S. national security objectives required the secret strengthening of its BW arsenal as another WMD advantage over the Soviets in the event of a future global conflict.11 Without that drive, the now infamous Japanese BW war crimes would almost certainly have been revealed and judged at the IMTFE. THE ALLIED PROSECUTION OF WAR CRIMES

Allied intentions to prosecute the leaders of the Axis powers were fixed long before victory was assured or plans for occupation defined. After Germany invaded the Soviet Union in 1941, Soviet officials demanded legal retribution and, through unilateral and bilateral ententes, “pounded away at the theme of the criminality of the Third Reich’s acts of aggression and record of accompanying atrocities against military and civilian personnel of the target states.”12 The United States and UK proposal for a United Nations Commission for the Investigation of War Crimes dates from October 1942, and other international agreements affirmed the Allies’ intention to bring war criminals to justice.13 10 11 12

13

Dower, Embracing Defeat, 410–412. Guillemin, Biological Weapons, 95–96. George Ginsburg, “Moscow and International Legal Cooperation in the Pursuit of War Criminals,” Review of Central and East European Law 1995 21, No.1: 1–40. For example, on October 30, 1943, the United States, the Soviet Union, the UK, and China signed the Moscow Agreement stating that fascist leaders and army generals would be arrested and brought to justice. At the Cairo Conference, the UK, China, and the United States issued a declaration (on December 1, 1943) that “the purpose of this war is to stop and punish Japanese aggression.” On July 26, 1945, in the 5th article of the Potsdam Declaration, the United States, the UK, and the Soviet Union affirmed that “stern justice shall be meted out to all war criminals including those who have visited cruelties upon our prisoners.” In the Instrument of Japanese Surrender of September 2, 1945, conditions regarding the arrest and treatment of war criminals were stipulated.

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On August 8, 1945, two days after the United States dropped an atomic bomb on Hiroshima, the Allies signed the London Agreement mandating the prosecution of war criminals by the International Military Tribunal and outlining the tribunal’s constitution, jurisdiction, and functions. The London Charter, based on rules for U.S. military commissions, became a model for the many local tribunals that followed and, in the following year, in revised form, for the IMTFE in Tokyo. The Charter’s general premise was that the Axis governments had each criminally conspired to make aggressive war in a time of peace and that, rather than meriting state protection, their leaders as individuals bore responsibility for conventional war crimes and for crimes against humanity.14 First in Nuremberg and then in Tokyo, the Allies declared themselves determined to bring the top tier of the most guilty individuals to justice. From the American perspective, the goal for both trials was a speedy resolution so that the audience at home would feel vindicated and the work of nation building could proceed unimpeded by the shameful past. Unknown to most of the public, certain national security exemptions from war crimes prosecution were allowed. For example, the Joint Chiefs of Staff (JCS) 1067 directive for German occupation ordered U.S. authorities to arrest Nazi war criminals and those who abetted them, but it stipulated that individuals who might be useful for “intelligence or other military reasons” could be exempted from prosecution.15 American officials struck covert deals with Nazi Germany’s weapons scientists for technical information in exchange for amnesty and immigration; some became employed in the U.S. defense industry.16 This same exemption applied in postwar Japan, where it was arbitrated through the JCS and the State-War-Navy Coordinating Committee (SWNCC), a political–military group of considerable authority created in 1944. In July 1946, SWNCC directive 216/1 allowed local military commanders to withhold intelligence information that might “jeopardize or prejudice U.S. relations with a foreign government.” In approving this directive, the JCS put SWNCC in charge of adjudicating all intelligence requests, whether from the military or the Department of State. SWNCC was therefore the gatekeeper in reviewing any U.S. immunity bargain with Japanese BW scientists.17 14

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R. John Pritchard, “The International Military Tribunal for the Far East and its Contemporary Resonances: A General Preface to the Collection” in R. John Pritchard (ed.), The Tokyo Major War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East (Lewiston, NY: Edwin Mellen Press, 1998), vol. 1, xvii-lxviii. Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (New York: Greenwood Press, 1989), 19. Linda Hunt, Secret Agenda: The United States Government, Nazi Scientists, and Project Paperclip, 1944–1990 (New York: St. Martin’s Press, 1991). Thomas Haycraft, Plague, Politics, and Policy: The Decision to Grant Immunity to Suspected Japanese Biological Warfare War Criminals, Master’s thesis submitted to the U.S. Joint Military Intelligence College, August 1999, 49–50.

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Although the United States dominated the prosecution of Nazi leaders in Nuremberg, Americans exerted nearly complete control of the IMTFE. In Japan, General Douglas MacArthur (SCAP, also the acronym for his command organization) was in full charge of both the occupation and all war crimes tribunals, major and minor, in the Far East. In December 1945, he directed military commissions to begin trials for second-level war crimes, most of which were held at Yokohama. In January 1946, after detailed review, MacArthur officially approved the charter for the IMTFE, which allowed him, among other privileges, the right to change sentences decided by the court. In addition, key figures at the IMTFE were MacArthur loyalists. For example, the American criminal lawyer Joseph Keenan, a Democratic party insider, was the chief prosecutor in charge of the International Prosecution Section (IPS). A great admirer of MacArthur, Keenan worked closely with him during the trial. In addition, MacArthur appointed Sir William Webb, an Australian jurist who had served on prior Pacific war crimes tribunals, to be the tribunal president. Although early on Webb disagreed with the Americans on the immunity granted Emperor Hirohito, he strongly supported MacArthur’s authority and ruled with an iron hand over his judges, the prosecutors, and defense lawyers. MASS MURDER AND GENERAL ISHII’S PROGRAM

Mass killings by Nazis, particularly of Jews, were central at the Nuremberg trials, where prosecutors aimed to establish the historical truth of the state-organized murders of millions. In his December 1946 opening statement at the Nuremberg Doctors Trial, General Telford Taylor, U.S. chief counsel, characterized the victims of Nazi atrocities as “the nameless dead” who would be rescued by the court’s authority to judge proof and deliver justice.18 In Tokyo, the implementation of humanitarian law was more complex. Most of the nations represented at the Tokyo tribunal had reasons to seek justice in the name of victims of Japanese brutality, whether these were POWs, civilian captives, or the servicemen killed at Pearl Harbor. Retribution for the treatment of POWs was a priority in tribunals held in the Pacific Theater, where the Allied POW death rate was more than 25 percent, compared to 4 percent in Europe.19 As another example, the Japanese execution of eight captured U.S. 18

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Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10. Nuremberg, October 1946 – April 1949. Washington, DC: Government Printing Office, 1949–1953. Opening Statement of the Prosecution by Brigadier General Telford Taylor, December 9, 1946, 27–38 and 67–73, 27. Peter Williams and David Wallace, in Unit 731. The Japanese Army’s Secret of Secrets (London: Hodder & Stoughton, 1989), suggest that when P.O.W. abuse was linked to the Japanese BW program, information about this, too, was suppressed (178–179).

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airmen from the 1942 Doolittle bombing raid on Tokyo (conducted in retribution for the 1941 Pearl Harbor attack) figured strongly in American press coverage of the trial.20 Of all the nations officially represented at the IMTFE, China had the strongest case against the Japanese for aggressive invasion and mass murder. Japan’s occupation of Manchuria in 1931 began fourteen years of continual armed attacks against Chinese cities and towns and the wanton destruction of villages. The most notorious attack, well known outside China, was the December 1937 Japanese capture of Nanking (Nanjing), followed by a six-week period of murder, rape, and looting that resulted in an estimated 300,000 Chinese deaths and widespread suffering.21 Japan’s BW program was secretly based in occupied Manchuria (called Manchukuo by the Japanese) and led by General Ishii Shiro. Its officials perpetrated a less-well-known series of atrocities that lasted thirteen years, from spring 1932 to the summer of 1945.22 Code named Unit 731, the program’s center was a walled compound with more than 70 buildings – including officer housing, a Buddhist temple, a brothel, prison blocks, laboratories, an air field, and three crematoria – on six square kilometers near the city of Harbin. Its other major division, Unit 100, was in Changchun, also in Manchuria. After the start of the China War in 1937, a dozen or so satellite facilities were created in Nanking (Nanjing), Singapore, Shanghai, and elsewhere in China, French Indochina, and Burma. At Unit 731 and at Unit 100, Japanese scientists experimented with anthrax, plague, cholera, typhus, and other diseases, using thousands of Chinese captives (and also some Soviet, White Russian, and Mongolian prisoners) apprehended by the Japanese Kwantung Army and its military police (the Kempeitai).23 The Japanese BW program scientists forcibly infected captives with a range of pathogens and also infected captive men and women with syphilis to test cures for the Japanese army.24 In addition to using human vivisection to observe the progress of infection, they used captives in field tests of explosive germ bombs, in experiments on adaptation to freezing, and in simulations of extreme high altitude. Japanese policy was to execute any survivors of these various experiments. A postwar estimate by one of the Japanese BW scientists was that at Unit 731 approximately 3,000 20

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Philip R. Piccigallo, The Japanese on Trial: Allied War Crime Operations in the East (Austin: University of Texas Press, 1979), 71. Joshua A. Fogel, The Nanjing Massacre in History and Historiography (Berkeley, CA: University of California Press, 2000); John Rabe, The Good Man of Nanking. The Diaries of John Rabe. John E. Woods, trans. (New York: Knopf, 1998). Sheldon H. Harris, Factories of Death: Japanese Biological Warfare 1932–45 and the American Coverup (New York: Routledge, 1994; revised edition, 2002), 27–38. After the war, accusations of Japanese experiments on Allied prisoners arose but still lack substantive evidence. Harris, Factories, 151–162. Hal Gold, Unit 731 Testimony (Rutland, VT: Tuttle Publishing, 1996), 159–166.

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human subjects were killed in medical experiments in the period from 1940 to the war’s end.25 JAPAN’S USE OF BW

General Ishii’s first experience with directing the Kwantung Army’s use of BW was in 1939, against Soviet forces at the frontier shared by Manchuria, Mongolia, and the Soviet Union, in a battle often referred to as the Nomonhan Incident. After the Japanese defeat on August 30, Ishii organized a contingent of saboteurs to infect Soviet troops with typhus, paratyphus, cholera, and dysentery. Although the outcome was inconclusive, General Ishii enjoyed increased involvement in Kwantung Army campaigns, led by its new commander-in-chief, General Umezu Yoshijiro.26 In 1940, over the course of five months, Ishii directed disease attacks on the Chinese port city of Ningpo and the surrounding area. Using planes for air drops and spies to infiltrate enemy settlements, the Kwantung Army spread plague-infected fleas, reportedly making 1,000 people ill and causing 100 deaths. The Japanese also sought to infect the area’s water sources with typhoid and cholera germs. The disease outbreaks caused alarm, particularly because plague was not endemic to the area. But subterfuge made it difficult to attribute the attacks to the Japanese, as was General Ishii’s intention. In the summer and fall of 1941, using the same crude methods, General Ishii directed more plague attacks on central China, in Chekiang (Zhejiang) Province, Hunan Province, and Honan Province. Alerted to the suspicious outbreaks, Peter Z. King, director general of China’s National Health Administration, assembled a report of the attacks, starting with Ningpo. This report became the basis for China’s 1942 allegation that Japan had engaged in biological warfare.27 The attack on the city of Changteh (Changde), a commercial center of 50,000 people in Hunan Province already besieged by Japanese air attacks, was relatively well documented at the time, featured in the King report, and corroborated after the war by former Japanese BW scientists.28 The possible link between a November 4 air drop and the outbreak that began about a week later was investigated by Dr. Robert H. Pollitzer from the Chinese National Health Administration who had spent nearly twenty years studying plague in China. Arriving on the scene soon after the 25

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Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing Bacteriological Weapons (Moscow: Foreign Languages Publishing House, 1950), 430–434. For a summary of recently available diaries and testimony, see Harris, Factories of Death, 99–107. Peter Z. King, “Japanese Attempt at Bacterial Warfare in China,” report forwarded to Professor H.K. Meyer, from A.W. Welsh, December 15, 1942, Appendix 1, HRS 14, Sheldon H. Harris Collection, University of California, Berkeley. Materials on the Trial, 24.

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epidemic began, Pollitzer noted that nearly all cases occurred in neighborhoods where suspicious grain and cotton had been air-dropped in profusion and where he found flea-infected rats, dead and alive, where none had been reported before. He pointed out that plague was not endemic in Hunan Province. Pollitzer reasoned that plague-infected fleas were the intended vectors, that the Japanese had added grain to attract rats as hosts to spread the disease, but that the infected fleas might have bitten humans directly because the first cases appeared fairly soon, a week to eleven days after the plane flew over. Pollitzer concluded that “the recent plague outbreak in Changteh was in causal connection with the aerial attack of November 4th.”29 He repeated his observations in an April 1942 medical journal article, co-authored with Dr. Robert Lim, head of the Chinese Red Cross.30 Dr. Won Kwei Chen, head of the Department of Laboratory Medicine of the Emergency Medical Service Training School in Kweiyang (Guiyang), verified that plague was indeed the disease that eventually affected hundreds. Dr. Chen’s autopsy of a 28-year-old man who had fallen ill on November 23 confirmed the clinical diagnosis. Six other fatal cases were confirmed by bacteriological cultures. Working with limited laboratory resources, Dr. Chen was able to document five more suspected cases, for which tests revealed bacilli resembling those of plague. In early 1942, the Chinese government distributed the King report to the United States, the UK, and eight other embassies in Chungking. The document was then circulated among Allied officials and infectious disease experts, whose reactions were generally dismissive.31 The report was ultimately forwarded to the Allies’ Pacific War Council, but the Americans and British were averse to raising public suspicions of Japanese biological warfare. At the time, both governments had begun their own covert BW development. In July 1942, UK program scientists were in Scotland testing anthrax bombs for possible strategic use against Germany.32 The United States, having laid the groundwork for an immense BW program, was intent on keeping the public from knowing about it and would eventually guard the venture with secrecy equal to that surrounding the Manhattan Project.33 The Chinese allegations elicited no rebuke of Japan by the Allies or any threat of retribution similar to those broadcast in wartime by Churchill and Roosevelt to warn 29 30

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King, “Japanese Attempt,” 3. “Bacterial Warfare” Medical Record 155(8): 269, April 15, 1942. Pollitzer later wrote the classic monograph Plague (Geneva: World Health Organization (WHO), 1954). Theodor Rosebury, Peace or Pestilence (New York: McGraw-Hill, 1949), 109–110. Rosebury, in 1942 a division head at Camp Detrick, thought the accusations had some credibility, but describes George Merck, in charge of U.S. BW efforts, as dismissing them entirely. Brian Balmer, Britain and Biological Warfare: Expert Advice and Science Policy, 1930–65 (New York: Palgrave, 2001), 41. Leo P. Brophy, Wyndham B. Miles, and Rexmond C. Cochrane, The Chemical Warfare Service: From Laboratory to Field (Washington, DC: Office of the Chief of Military History, U.S. Army, 1959), 103.

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Japan against using chemical weapons against Soviet troops.34 General Ishii was soon rewarded with what would be his greatest opportunity, organizing biological attacks as part of the 1942 Japanese scorched-earth campaign against Chekiang Province, in the region southwest of Hangzhou, along the Zhejiang-Jiangxi Railway. To conduct the April 1942 Doolittle air raid on Tokyo, the United States had relied on air bases in that area; after the raid, U.S. pilots who had crashed-landed there found refuge with local Chinese inhabitants. That summer, the Japanese forces destroyed railway lines and air bases in Chekiang and, to punish the Chinese for their assistance to the American pilots, they razed entire villages and terrorized other communities and towns with public executions of “traitors.” An estimated 250,000 Chinese civilians in Chekiang were killed by the 1942 bombings, artillery attacks, and mass killings.35 To add BW to this campaign, General Umezu enlisted the aid of General Ishii and 300 of his trained staff. The Tama Detachment, as it was called, assisted in the spread of cholera, dysentery, typhoid, plague, anthrax, glanders, and paratyphoid to infect first the civilian population and, later, the Chinese Nationalist ground troops as they entered the area. Although it was difficult to distinguish the impact of germ warfare on civilians from that of conventional weapons, deaths from these disease attacks have been reckoned as many thousands.36 Interviews conducted in 2002 with Chinese survivors suggest that, across a wide area, 60,000 persons were infected with anthrax and glanders alone.37 Despite precautionary measures, Japan’s own troops suffered an estimated 10,000 casualties and almost 2,000 deaths from exposure to BW, particularly cholera.38 Although Ishii had more plans for germ warfare, these accidental casualties apparently caused his demotion and, as far as is known, he directed no other BW attacks. THE CHINA BRIEF

The IPS staff in Tokyo seems to have ignored Japanese BW until early March 1946, when Colonel Thomas H. Morrow, a principal assistant to Joseph Keenan, raised the issue. Morrow was struck by two articles in the military broadsheet Stars and Stripes that leaked news of an interrogation of General Ishii and also referred to the King

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36 37 38

Both Winston Churchill and Franklin Roosevelt warned the Japanese against using chemical weapons on the Soviet Union, threats generally credited with stopping Japan’s chemical program and attacks in China. Frederic J. Brown, Chemical Warfare (New Brunswick, NJ: Transaction Books, 2001), 246–266. Carroll V. Glines, The Doolittle Raid: America’s Daring First Strike Against Japan (Atglen, PA: Schiffer Military/Aviation History, 1991), 150–153. Williams and Wallace, Unit 731, 69; Harris, Factories of Death, 147. Li Xiofang, Blood-weeping Accusations: Records of Anthrax Victims (Beijing: CCP Press, 2005). Materials on the Trial, 309, 353–355.

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report. On Keenan’s recommendation, Morrow immediately contacted the Tokyo office of Military Intelligence (G-2), where, in the presence of one of its officers, he met with Lt. Colonel Arvo Thompson, a veterinarian from Camp Detrick, the Maryland center for the U.S. BW program, who was then interviewing Japanese BW scientists, including General Ishii. At that time, Ishii was claiming that the Japanese program was purely defensive. Morrow apparently learned nothing from his visit that would assist the IPS.39 The actual responsibility for finding evidence of Japanese atrocities in China went to David Nelson Sutton, a lawyer educated at the University of Virginia who was tasked to work with C.C. Hsiang, the lead Chinese prosecutor. On March 12, as part of an IPS contingent that included Colonel Morrow, Sutton traveled to China to review documents and interview potential witnesses for the tribunal. His main focus was on the Nanking massacre, for which he was easily able to find a dozen articulate Western and Chinese witnesses he felt confident would do well in testifying. Within the month, he arranged to have them flown to Tokyo. Sutton also attempted to find evidence of Japanese BW attacks, but was unsatisfied with the results. In China, he met with Dr. Peter King, received a Chinese National Health Administration–certified copy of King’s 1942 plague report, and obtained affidavits from Dr. Pollitzer and Dr. Chen about the plague attack on Changteh. Sutton remained unconvinced, however, that there was solid, trial-worthy evidence. He wanted to recruit, for example, an eyewitness to the Japanese overflight at Changteh, an American Presbyterian hospital supervisor, E.J. Bannon, rather than any Chinese victims or physician witnesses or, for that matter, Dr. Pollitzer, who was Austrian by birth. Bannon had signed a statement for the King report describing unhulled grain and wheat found on city streets and roofs of houses, which, on the morning of November 4, he saw being dropped from a low-flying enemy plane, after which plague victims from that very area began arriving at his hospital.”40 But by April 1946, Mr. Bannon had gone back to the United States, to an unknown address. After returning to Tokyo on April 12, Sutton wrote his summary brief on behalf of China.41 He focused first on the 1937 Nanking atrocities, for which there was credible eye-witness testimony and even film footage of the aftermath. He then outlined the Japanese-promoted opium trade in China, for which witnesses and Japanese government documents offered proof of widespread social degradation. Sutton next cited hundreds of other documented instances of violence against Chinese towns and villages – with conventional weapons only – as “a Japanese pattern of warfare.” 39

40 41

To Mr. Joseph B. Keenan, Chief of Counsel, from Col. Thomas H. Morrow, Report Assignment “B,” March 8, 1946, GHQ, SCAP, IPS, US National Archives. King, “On the Attempt,” 9. David Nelson Sutton Collection, University of Richmond Law School Library, Special Collections, Folder 22.

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On April 25, Sutton submitted a special report to Keenan on his investigation of the allegations of Japanese BW in China.42 In his cover letter, Sutton concluded, “As the case now stands, in my opinion the evidence is not sufficient to justify the charge of bacteria warfare.” Communicating his opinion to General Headquarters (GHQ), he nonetheless recommended that it might find Mr. Bannon. G-2 followed up by quickly locating the missing supervisor in California and sending Arvo Thompson to interview him in Pasadena on April 22. Thompson, a loyal employee of the U.S. BW program since its inception, was hardly a disinterested party. In 1946, largely dismantled, the program had an uncertain future. To criminalize the Japanese BW program activities could tar the U.S. enterprise in the public mind and end it, along with Thompson’s career. Reporting on the Bannon interview, Thompson focused on incertitude. For example, although Bannon was “convinced” that the Japanese plane had dropped material with fleas and caused the Changteh plague outbreak, Thompson apparently pushed him on the question of certainty, reporting that Bannon “did admit that the evidence regarding the incident was not conclusive but was strongly circumstantial.” In offering his evaluation of the interview, Thompson emphasized this element of doubt: The evidence connecting the Changteh plague outbreak with the plane incident, supposedly a Japanese attempt at biological warfare, is strongly circumstantial but not conclusive. The possibility of origin of the Changteh plague outbreak by natural spread from other endemic areas, as a result of disorganization of normal trade and travel routes by war, has not been conclusively eliminated.43

Raising the possibility of “trade-and-travel” contagion as an alternative to a Japanese germ attack was entirely Thompson’s addition. By Thompson’s own report, Bannon did not believe that travel could explain the transmission of plague to Changteh because the nearest source of plague in 1941 was Ningbo (an earlier Ishii target), approximately 700 miles away. Bannon stated to Thompson that “persons ill from the disease would have died en route before arrival due to the length of time required for such a journey.” In the King report, Dr. Pollitzer, an internationally respected authority on plague, had weighed the possibility of transmission by trade or travel and concluded that, given Changteh’s relative isolation, that source of disease spread was highly unlikely. During that spring of 1946, G-2 was accumulating letters and verbal accusations against General Ishii from his former BW scientists, material perhaps not shared with Sutton. In May, though, GHQ forwarded to him the transcript of an interview 42 43

“Report From China. Bacteria Warfare.” Sutton Collection, Folder 13. Arvo T. Thompson, “Interrogation of Mr. E. J. Bannon Regarding Plague Incident in Changteh, China.” April 22, 1946. Memo to Chief, Special Projects Division, Office of the Chief, Chemical Warfare Service, Washington 25, DC. Sutton Collection, Folder 17.

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that had been conducted with a military officer, Hatara Osamu, formerly with Ishii’s program in Nanking, known as the “Ei” 1644 Force.44 Hatara verbally described his work and drew a map of the Nanking enclave, where plague-infected fleas were cultivated for attacks on Chinese habitations. He also described the 1942 BW attacks on Chekiang, recounting that many Japanese soldiers entering the area had been inadvertently infected and that a “great number of Chinese inhabitants also suffered from the epidemics.”45 Sutton decided to discount this interview and not to call E.J. Bannon as a witness, perhaps because of the elements of doubt that Thompson had conveyed. In July, Sutton led the presentation of the China case without reference to BW-related war crimes. Nor, as the weeks of case presentation progressed, did C.C. Hsiang raise the issue. Nor did either prosecutor mention the Japanese use of chemical weapons, which, in 1937 and 1938, China had reported to the League of Nations, with pleas for international sanctions.46 During this time, Sutton was almost surely aware of evidence of Ishii’s 1942 biological warfare attacks. In an apparently unintentional slip, on July 29, he briefly referred in court to Ishii’s Tama Detachment and its deadly consequences for civilians. When tribunal president Webb challenged him to support this allegation, Sutton hastily retreated, saying, “We do not at this time anticipate introducing additional evidence on this subject.”47 Lawyers for the defense reacted with outrage and denial. The prosecutors for China never raised the subject again. China’s complicity with the American national security agenda was clearly influenced by American supremacy and geopolitics. The United States was supporting Chiang Kai-shek and Chinese nationalists in an uncertain civil war with the communists. The nationalists’ hopes of victory depended on American backing.48 The Chinese, with Sutton’s guidance, opted for the prosecution of Japanese leaders who had been involved at high levels in perpetrating atrocities that did not involve the use of biological or chemical weapons against the Chinese. This strategy proved successful, inasmuch as “ . . . those condemned for war crimes had been more deeply involved in China than in the Pacific phase of the war.”49 Of the seven defendants 44 45 46

47 48 49

Sutton Collection, File 11. “Testimony regarding crimes committed by a Japanese Force.” Sutton Collection, Folder 17. “Chinese Communication to the League of Nations on the Use of Gas and Dumdum Bullets by the Japanese” (October 13, 1937), Japanese Aggression and the League of Nations 1937 (Geneva: Press Bureau of the Chinese Delegation), 63–66; “Communication from H.E. Dr. V.K. Wellington Koo to the League” (September 16, 1938), Japanese Aggression and the League of Nations 1938 (Geneva: Press Bureau of the Chinese Delegation), 24–30. Williams and Wallace, Unit 731, 176. Piccigallo, The Japanese on Trial, 170–173. Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (New York: William Morrow, 1987), 383.

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sentenced to death, five had been high officials in the Kwantung Army in occupied Manchuria and another had been Chief of Staff of the Japanese Central China Army during the Nanking massacre. The American’s closest partner in BW development, the United Kingdom, was likely aware of the evidence of Japanese biological warfare activities. Perhaps Canada and Australia, junior partners in U.S. and UK postwar germ weapons development, were also privy to this information. None of these nations, though, openly defied the U.S. suppression of evidence. The government of the Philippines, enthusiastically supportive of MacArthur and of the U.S. use of nuclear weapons against Japan, appears to have been ignorant of Japanese BW crimes. The judges from France, India, the Netherlands, and New Zealand each had quarrels with IMTFE procedures and principles. Judge Pal of India was known to be virulently critical of the American use of the atom bomb.50 These judges, their staffs, and their prosecutors in Tokyo, however, seem to have been out of the loop when it came to the American immunity bargain with the Japanese BW scientists or they chose to turn a blind eye on these unusual, politically sensitive war crimes. SOVIET SILENCE

After China, the Soviet Union was best positioned at the IMTFE to introduce evidence of Japanese BW. In August 1945, the Soviet military had invaded Manchuria and, after investigating the wreckage the Japanese had left of Unit 731, captured two dozen Japanese persons affiliated with the program. The Soviet delegation arrived late at the IMTFE and gave every indication that they accepted their marginal role in the trial. With the use of the atomic bomb, the United States had eliminated the need for Soviet troops to help defeat Japan and also the Soviet claim to occupation. After the Chinese had avoided the issue of Japanese BW in July and August, the Soviet Union still had the option to make its own separate complaint when it made its case in October. The Soviets had successfully argued to have General Umezu, who had risen to become Chief of the Army General Staff, added to the list of defendants; other high officials in the dock, especially those who had served in Manchuria, would certainly have known of General Ishii’s BW program. In truth, the Soviets had suffered little at the hands of Japan; perhaps it was looking for a grievance. In September, the Soviets gave GHQ signed affidavits of incriminating interviews of two of their captive Japanese BW scientists. The affidavits, which were soon translated and shared with David Sutton, were the first eye-witness accounts of grotesque forced human experimentation and of disease attacks on Chinese civilians. 50

Radhabinod Pal, International Military Tribunal for the Far East: Dissentient Judgment of Justice (Calcutta: Sanyal, 1953), 2 vols.

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In the first interview, Major Karazawa Tomio described being in Hanchow (Hankow) with General Ishii in 1940 and producing 70 kilograms of typhoid virus culture and 50 kilograms of cholera virus culture, while another BW division produced 5 kilograms of plague-infected fleas, all for use against the southern, Chinese-occupied area. When plague broke out in Ningpo and its surrounding area, Karazawa testified, it was proven that the plague attack tactics were “effective.”51 The second interview, with Major General Kawashima Kiyoshi, described, among other details, three methods used to spread plague using infected fleas: dropping them from planes, dropping bombs containing live fleas, and having guerrillas spread the fleas directly on the ground. On October 21, the Soviet lead prosecutor S.A. Golunsky concluded a weak case against the Japanese for planning aggressive war against the Soviet Union.52 He had avoided any controversy, whether about the immunity granted Emperor Hirohito, the wartime complicity of Japanese financial and industrial combines (zaibatsu), or Japanese germ weapons. As the Americans were aware, the Soviets could still in the months ahead introduce new evidence and interrogate defendants. That fall and winter, the Soviet prosecutors remained eager to interview General Ishii and other Japanese BW scientists with whom the Americans had established contact, with the explanation that they were concerned about Soviet victims of Japanese BW. GHQ delayed permission for months, while CWS officials continued to interview former Japanese BW scientists, gaining information and ascertaining their feelings about the United States.53 On January 7, 1947, the IPS informed G-2 that a Soviet prosecutor at the IMTFE, General A. N. Vasiliev, was demanding to speak with the Japanese BW scientists.54 The climate at SCAP and GHQ was one of increasing suspicion about Soviet intentions to gain a weapons advantage.55 Should Vasiliev decide to confront General Umezu or other defendants about Japanese BW activities, the American military would cease to be in exclusive control of this extraordinary BW information, on which G-2 placed great value.56 Soon any important facts about the Japanese BW program were beyond the reach of IPS prosecutors. March 5, 1947 marked a critical juncture. On that day, the JCS decided to put G-2 in charge of all information from the Japanese BW scientists, 51 52 53

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Sutton Collection, Folder 17. The Soviet case was called “an embarrassment.” Brackman, The Other Nuremberg, 220–222. “Interrogation of Dr. Kiyoshi Ota, re: bacteriological warfare” GHQ, U.S. Army Forces, Pacific, Office of the Chief Chemical Officer, December 2, 1946, RG 319 ACSI, MFB, WNA. Memorandum, “USSR Request to Interrogate,” March 27, 1947, GHQ, Military Intelligence Section, Far East Command, National Security Archive, George Washington University, Chemical and Biological Warfare Collection. Williams and Wallace, Unit 731, 184–185. Summary of Information, Subject Ishii, Shiro, January 10, 1947, Document 41, U.S. Army Intelligence and Security Command Archive, Fort Meade, Maryland.

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mandating “the utmost secrecy . . . in order to protect the interests of the United States and to guard against embarrassment.”57 The nature of the embarrassment referred to was unclear; the data were horrifying enough to raise moral concerns about Japan’s future and possibly about the Emperor, who was rumored to have approved the BW program. G-2 informed SCAP’s Legal Section, which had accumulated a large file on Japanese BW, that its independent investigation of Ishii must be closed and that no prosecution of him would be possible without G-2 concurrence.58 In a March 20 communiqu´e, the U.S. JCS finally agreed to let Soviet prosecutors interrogate Japanese scientists, but only after American military experts had thoroughly interviewed Ishii and his former colleagues. On April 1, 1947, Dr. Norbert Fell, a Detrick division chief, arrived in Tokyo to conduct those intensive interviews. Soviet interrogations of the Japanese scientists finally took place in late May, after Fell’s interviews were completed. The Soviet prosecutors probably learned little; the scientists had struck their bargain with the Americans. Rather than introduce the evidence they had at the IMTFE, the Soviets kept their silence, waiting until late 1949 to conduct a separate trial of their Japanese BW captives and thereby preserving the opportunity to attack the United States for its “moral depravity” in ignoring these crimes.59 THE IMMUNITY BARGAIN

On April 29, 1947, in the course of interviewing several Japanese scientists, Norbert Fell was told by their spokesman, Naito Ryiochi, that: “We are afraid some of us will be prosecuted as war criminals. We do not know how much [other BW scientists] will be willing to give us. If you can give us documentary immunity, probably we can get everything.” By then, Fell knew enough about the program’s human experiments and disease attacks to understand their concern. According to the official transcript of the meeting, “The Japanese were assured that war crimes were not involved, and Dr Fell checked the outline submitted earlier and instructed [them] on those points on which more information was needed.”60 Presumably General MacArthur authorized Fell to give this assurance of immunity. On May 5, MacArthur radioed a memo to Washington stating that the 57

58 59 60

SWNCC 351/1, March 5, 1947. Record Group 3331, Box 1434.20, Case 330, U.S. National Archives. The “embarrassment” referred to here may have been public reaction to Japanese BW atrocities, which might have been known to the Emperor, or to the U.S. failure to make such information public. Haycraft, Plague, Politics, and Policy, 58–59. Materials on the Trial. Norbert E. Fell, Chief, Field Division, to Assistant Chief of Staff, G-2, GHQ, Far East Command; through Technical Director, Camp Detrick, June 24, 1947, memo on meetings on April 26, 27, and 30 and May 1, 1947, 2.

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Japanese scientists would be exempt from prosecution at the trial. MacArthur’s statement, along with a report from Fell also advising immunity, divided members of SWNCC.61 Its subcommittee on BW was strongly in favor of immunity; a dominant member of it was Alden Waitt, commander of the Chemical Corps (which included BW), who was anticipating a Cold War revival. Richard A. Feary, SWNCC representative from the Department of State, warned of a public outcry should such a bargain become official and broadcast outside intelligence circles. At the time, seven defendants at the Doctors Trial in Nuremberg were on trial for forced human experiments strangely similar to those performed for years by Ishii and his BW scientists. To protect the Japanese BW war criminals from prosecution would make the United States complicit in obstructing justice, as SWNCC was aware. In August 1947, the SWNCC subcommittee articulated its rationale for an immunity bargain: “The value to the U.S. of Japanese BW data is of such importance to national security as to far outweigh the value accruing from ‘war crimes’ prosecution.”62 The prosecution of anyone for BW-related war crimes, the argument went, risked revealing important weapons information to the Soviet Union. The implication was that BW had a strategic potential that could rival that of nuclear weapons. The JCS directive 1067 might be used – or not. That summer, SWNCC made no decision about an immunity bargain. Government reorganization perhaps influenced this silence. The U.S. National Security Act of July 1947 abolished the War and Navy Departments and merged Army, Navy, and Army Air Forces into the Department of Defense. SWNCC was renamed the State-Army-Navy-Air Force Coordinating Committee (SANACC), and some of its responsibilities were shifted to the National Security Council. The Act also created the Central Intelligence Agency. The Truman Doctrine, America’s new policy for containing communism, was in place. In Tokyo, as the trial shifted to defense arguments, the pressure to guarantee immunity for the Japanese BW scientists diminished. In October 1947, two Detrick pathologists, Edwin V. Hill and Joseph Victor, recommenced interviews with Ishii and others, eliciting actual documents and details. Hill and Victor acquired human case data, including pathological material, in some abundance. Making no moral judgments, they reported that the data were disorganized and the experiments on which they were based were well below scientific standards.63 The human 61 62

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Haycraft, Plague, Politics, and Policy, 62–68. SFE 188/2, State-War-Navy Coordinating Committee for the Far East, August 1, 1947, RG 153, MFB, U.S. National Archives. Edwin V. Hill, M.D. to Gen. Alden C. Waitt, Chief Chemical Corps, Pentagon, Washington, DC (APO December 12, 1947).

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experiments on inhalational anthrax, for example, were too crudely executed to clarify human dose response, which the American program needed to estimate bomb fill requirements. The Japanese also handed over information on twelve “field trials” – that is, their germ attacks on Chinese cities and towns. These, too, were disappointing in their lack of technological sophistication. The Japanese had not developed a successful germ bomb or spray generator. Their lone technological accomplishment, which the United States incorporated into its vector research, was a method for infecting masses of fleas with plague. During this period, the fortunes of the CWS, renamed the Chemical Corps, greatly improved. President Harry Truman withdrew the 1925 Geneva Protocol from consideration for advise and consent by the Senate. For twenty years, this international ban against the use of chemical and biological weapons had languished, an old hostage to isolationist policies and the combined forces of the chemical industry lobby and the U.S. chemical warfare program. As the Cold War intensified, the United States maintained its prerogative to build up its chemical and biological arsenals for offensive purposes. In a March 4, 1948 memo, SANACC finally noted that, because the taking of evidence at the IMTFE had ended, the Japanese immunity bargain was a fait accompli.64 On March 11, the committee sent a cable to General MacArthur that Detrick officials were satisfied with the information received from the Japanese scientists and that he should just resubmit his request for immunity. There the paper trail appears to end. The ultimate source of federal authority for this approval – which should have been at the Cabinet or White House level – remains undetermined. THE CONSEQUENCES OF THE IMTFE SUPPRESSION OF JAPANESE BW CRIMES

The Tokyo trial ended on November 4, 1948. Twenty-eight defendants were tried. Seven death sentences and sixteen life sentences were handed down, with one exemption allowed for insanity. General Umezu, who had signed the instrument of surrender in 1945, was given a life sentence and died in jail two years later. Even before the Tokyo trial ended, U.S. policy toward Japan had shifted from demilitarization and democratization to the development of Japan as a dependent client state vital to its military containment policies in the Far East.65 To counteract the ascendancy of Soviet and Chinese communism, U.S. interests in the Far 64 65

Williams and Wallace, Unit 731, 215–217; Harris, Factories of Death, 219–221. Dower, Embracing Defeat, 526–527.

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East demanded an economically robust, democratic Japan which could give industrial support, as it did during the Korean War, but remain constitutionally pacifist. Universal principles of law and justice were bent to serve this agenda. Shortly after the IMTFE’s conclusion, hundreds of Japanese in prison awaiting war crimes prosecution were released and the prison sentences of many convicted criminals were commuted. The BW immunity bargain had presaged this turn of events, which little benefited democracy or law in Japan or helped Japan to reckon fully with its history of war crimes. Hundreds of scientists who had over the years worked for General Ishii freely pursued careers in public health, medicine, medical education, and business, perhaps causing harm to the health care sector. For example, the widespread scandals regarding unsafe drugs and vaccines which for years rocked Japan’s Ministry of Health and Welfare have been tied to the postwar corruption of that agency by former Unit 731 officials.66 Silent during the IMTFE, in December 1949, the Soviet Union put twelve of its Japanese BW program captives on trial for war crimes and called another twelve as witnesses.67 The site of the trial was the Soviet city of Khabarovsk, not far from Harbin, where the Soviets were joined by representatives from their newly victorious ally, the People’s Republic of China. Despite Moscow’s open publication of long excerpts from the court transcript (including translations into English and French), the United States and the UK attacked the Kharbarovsk proceedings as a fraudulent Soviet “show trial.”68 In Japan, news of the trial was overshadowed by street protests demanding the Soviets’ return of tens of thousands of Japanese POWs. The Soviet evidence for Japanese biological war crimes was first-rate and damning; had the Soviets’ prosecutors put their Japanese BW scientists on the stand in Tokyo, they would have at the least made it more difficult for other nations to justify this class of WMD. Unfortunately, the Kharbarovsk trial, lacking international validation, failed to bring justice to Chinese victims, shake Japan out of its collective amnesia about the atrocities, or to limit the BW options of the United States and its allies or, in later years, of the Soviet Union. Revelations of Japan’s BW crimes emerged most vigorously after 1969, when President Nixon decided to abolish the U.S. offensive BW program, but Japan’s censorship of its records remained adamant. In the 1990s, the end of the Cold War and changes in the relationship between China and Japan brought a renewed consciousness of Japan’s past BW crimes. Beginning in 2001, two court cases against the Japanese government were brought by the Chinese survivors and families of 66 67 68

Harris, Factories of Death, 350. Materials on the Trial. Williams and Wallace, Unit 731, 227–232.

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victims. Although both cases ended without compensation or apology from the Japanese government, the courts admitted wrongdoing and the legal process gave the crimes world attention and a new level of credibility, through the evidence presented by victims and their lawyers.69 In 1972 the Biological and Toxin Weapons Convention (BTWC) banned BW programs and the possession of germ weapons, although the treaty lacked effective means of enforcement. In 1975 the United States and Japan ratified the Geneva Protocol. With the end of the Cold War came the end of the Soviet BW program that, in defiance of the BTWC, had secretly expanded in the 1970s. Smaller nations, though, most notably Israel and Iraq, had sought the same WMD capability, with destabilizing repercussions for the Middle East and global politics, ultimately lending momentum to the 2003 American invasion of Iraq. In 1947, U.S. leaders little thought that they were pioneering the way for smaller, weaker nations to develop germ weapons or that, following 9/11 and the anthrax letter attacks shortly after, the threat of bioterrorism would become a major U.S. national security issue. Although the norms against BW are strong, the international restraints against them remain insufficient, given the proliferation of biotechnologies that could have malevolent as well as beneficient uses. After the end of the Cold War, faced with the complexities of globalization, U.S. government leaders shied away from opportunities for international treaties and cooperation, with the exception of joint U.S.– Russian agreements to reduce nuclear weapons stockpiles and, in 1993, the signing of the Chemical Weapons Convention (CWC). Unlike the Biological Weapons Convention, the CWC includes effective provisions for enforcing the ban on state programs, namely, a standing organization in The Hague, teams of expert inspectors, verification procedures, and other means to promote international transparency. In that last decade of the twentieth century, considerable plans were made to reinforce the BTWC in similar ways, but, lacking U.S. leadership, the opportunity was squandered. In the years since then, American policy has continued to ignore international approaches to the risks of BW proliferation. More than 170 nations are currently party to the BTWC, but dozens of countries in turbulent world areas lack the means or incentives to institute the required domestic laws against BW development, production, or possession.70 Some states, notably Israel and Syria, have refused to join the 69

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“Japanese Court Rejects Germ Warfare Damages,” International Herald Tribune, July 20, 2005. Available from: http://www.iht.com/articles/2005/07/19/news/japan.php. In 1991, BTWC state parties agreed to submit “Form E” to report annually the status of their compliance. National legal implementation has been uneven and slow. A survey by VERTIC (Verification Research, Training and Information Centre) in London shows that 47 percent of the 146 states parties have enacted an enabling law, with another 7 percent in the process of acquiring one. Africa was least in conformity, with only 16 percent of its nations having such laws. Fifty-six states (37% of all) had no

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convention or have shown only qualified commitment to the 1925 Geneva Protocol banning use. Given the rapid, international advances in today’s biotechnology and the historical consistency with which military organizations have exploited scientific innovations, the world’s seeming reluctance to develop comprehensive legal restraints to counter BW risks is alarming and unwise. Should state officials ever again be involved in developing or using BW against civilians – as violations of the Geneva Protocol and BWTC – what would be the appropriate venue for trial? In 1998, the Rome Statute of the International Criminal Court introduced criminal penalties for the use in war of chemical weapons; in outmoded phrasing, taken directly from the Geneva Protocol, it bans “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.” The Rome Statute also points to state-level responsibility for infractions, requiring that such actions, to be recognized as criminal, would have to be “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Explicit references, though, to illegal BW use or to program-related activities banned by the BTWC (e.g., the possession of large quantities of select agents) are missing. Also, what of individuals, either state or nonstate actors, who break the law? Although under consideration by several states, an international treaty to criminalize individual violations of the Geneva Protocol, the BTWC, or the CWC has yet to be enacted.71 A modern version of General Ishii or an individual bioterrorist could in principle evade justice by finding refuge in a state that has failed to ratify these treaties or is too weak to enforce them. The U.S. failure to prosecute Japanese use of germ weapons at the IMTFE – with the complicity of other states – shows how national interests can undermine the pursuit of international justice, even in cases of systematic mass murder and torture. The extraordinary power of the United States tipped the scales of justice and at the same time increased jeopardy to civilians by allowing the unchecked proliferation of BW. The Tokyo war crimes trial illustrates how the narrow, militarized construction of U.S. national security thwarted justice by promoting secrecy in the name of national defense. As a case of justice gone wrong, the repression of BW crimes information at the IMTFE affirms the crucial importance of international prosecutions of war crimes that are dispassionate, transparent, and protected from political influence.

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information to provide to VERTIC, including Pakistan, Sudan, North Korea, Saudi Arabia, Qatar, and Indonesia. Angela Woodward, Time to Lay Down the Law: National Legislation to Enforce the BWC (London: VERTIC, 2003), 13. Matthew Meselson and Julian Perry Robinson, “Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law,” in R. Yepes-Enr´ıquez and L. Tabassi (eds.). Treaty Enforcement and International Cooperation in Criminal Matters (The Hague: OPCW, 2002), 457–469.

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ACKNOWLEDGMENTS

Research assistance was provided by Jacob Hale Russell, Jie Li,, and Sandy Ropper at Harvard University; James Zobel at the MacArthur Memorial Archives; Larry McDonald at the U.S. National Archives; and archivists at the University of Richmond Law Library; the Ministry of Foreign Affairs, Paris, France; and the Harvard Law Library. Travel to China was supported by the Committee on International Security and Arms Control, U.S. National Academy of Sciences.

13 Justice and the League of Nations Minority Regime Jane K. Cowan

JUSTICE AND DIFFERENCE

In the final third of the twentieth century, a host of social movements challenged the ostensible neutrality of liberal conceptions of equality enshrined in the modern, liberal state, demanding a recognition and valorization of difference. These movements – feminism, gay and lesbian activism, ethnic identity movements, disability rights movements, to name but a few – challenged hegemonic conceptions of justice as difference-blind. They provoked a tidal wave of theoretical work in the areas of multiculturalism and the politics of difference, all of which tried to grapple with the implications that recognizing differences within the citizenry might have for justice.1 One could be forgiven for thinking that states had never before faced the challenges of difference or attempted to address difference politically and legally. In fact, in the period immediately following the First World War, fifteen states, most of them located on the eastern periphery of Europe, legally committed themselves to doing precisely this. Along with the postwar peace treaties, they signed what became known as “minorities treaties.” These treaties required treaty-bound states – caustically dubbed “minority states” by international relations scholar Inis Claude (1955) – explicitly to grant equal civil and political rights to members of “racial, religious and linguistic minorities,” but also certain special rights that arose from their differences, such as free use of their maternal language, the right to set 1

The “multiculturalism” and “politics of difference” literature is enormous and ranges across many disciplines and theoretical positions. In terms of individuals who have attempted to provide overarching theories not (explicitly) tied to particular places, I have in mind writers – most of them political philosophers or political theorists – such as Nancy Fraser, Axel Honneth, Iris Marion Young, Charles Taylor, Will Kymlicka, Seyla Benhabib, James Tully, Wendy Brown, and Anthony Appiah, among others. For an attempt to explore the possibilities of, and facilitate dialogue between, political philosophers and more empirically grounded social scientists, especially anthropologists, see Cowan, 2006.

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up charitable institutions at their own expense, and the right to primary education in the maternal language if the minority made up a “considerable proportion” of a district’s residents.2 As my historical research revealed, the minorities treaties and the international mechanism set up to guarantee them had been intensively discussed during their lifetime (until the Second World War). Then, discredited and deemed to have failed, these dropped off the intellectual agenda for nearly forty years. In this article, I am concerned with notions of justice that circulated around the idea and the practice of the League of Nations minority regime. Received wisdom attests that the League minority regime3 was not about justice at all; rather, it was about power and peace. Nonetheless, in the era of its operation between the two world wars, certain actors believed that the minority regime was about justice and, to an extent, did deliver justice. For other actors, the minority regime was not about justice, but should have been. In my work since 1996 with diverse documents held in the League of Nations Archives in Geneva, those of feminist, internationalist, and peace activists, and articles in the press, as well as a voluminous analytical literature, much of it produced at the time, I have been struck by the passionate yet principled contestation that surrounded questions of justice. Justice was on everyone’s lips. Yet, were you to ask a petitioner, a diplomat, a peace activist, and a League bureaucrat, “What does justice mean? What would its implementation entail? Whose concerns for justice should be 2

3

The Minorities Treaties were drafted as part of the Paris Peace process after World War I and signed, between 1919 and 1924, by fifteen states: Albania, Austria, Bulgaria, Czechoslovakia, Estonia, Finland ˚ (in respect to the Aland Islands), Germany (in respect to Upper Silesia), Greece, Hungary, the Kingdom of Serbs, Croats, and Slovenes (later Yugoslavia), Latvia, Lithuania, Poland, Romania, and Turkey. As an element of its transformation from British mandate to independent kingdom, Iraq signed a minorities declaration in 1932. In its Covenant, the League was charged to “guarantee” the minorities treaties (de Azc´arate, 1945: 94). For the first time in history, the international community, rather than particular patron states, assumed responsibility to guarantee the rights of members of minorities; the guarantee was enacted through international supervision of Minority States’ policies toward their minorities (Preece, 1998: 72). While final decisions about sanctions rested with the League Council (composed of state members), supervision as an everyday practice fell to the Minorities Section of the League of Nations Secretariat (Bagley, 1950; Codding, 1966; Cowan, 2003, 2007a; de Azc´arate, 1945; Mair, 1928). I use the term “minority regime” as a shorthand for the Minorities Treaties and the international procedure set up to ensure that they were implemented. The existence of the “guarantee clause” justifies linking the two as a conceptual whole. Scholars have used the terms “scheme” or “regime”; although both are apt, I find the latter more evocative in its Foucauldian overtones, which do accurately convey the multifarious ways that it operated (e.g., the combination of choice and compulsion, the multiple sites where power was negotiated, the uncertain and illusory force behind international surveillance, reminiscent of the uncertain presence of the observer in Bentham’s panopticon). I therefore use the phrase “minority regime.” Similarly, whereas some scholars have approached the regime as one of “minority protection,” others have discussed it primarily in terms of “minority rights.” Both elements were present, as they are in their counterparts today, but each represents a distinctive conceptualization of the minority phenomenon.

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prioritized? In relation to what? How should justice be balanced against other ideals, like stability, state sovereignty, or peace?” each would have very different answers. I address the place of justice within the minority regime in a manner that is primarily ethnographic, rather than normative. I approach the League minority regime as a field, in Bourdieu’s sense: “a configuration of forces and a site of struggle to maintain or transform those forces” (Bourdieu and Wacquant, 1992: 101), involving multiple actors engaged in struggles over power, authority, and meaning. Importantly, as a historically unprecedented institutional form in which citizens of a state could complain to the international community about their treatment by their own state – hedged round with limitations though this was – it elicited a fervent debate on a newly triangular relationship between minorities, the nation-state, and the international community. The stigmatization of the League of Nations, including its minority regime, as a failure has led to a flattening of this complex history in both public perception and within much of the historiography on the emergence of a human rights regime (Cowan, 2007a; Cowan and Brown, 2000; for other dimensions of the distortion of the history of human rights, see Baxi, 2006; Goodale, 2006; Ishay, 2004; Mazower, 1997, 2004; Simpson, 2001). Using the case of the so-called “Bulgarian minorities” in Greece and Yugoslavia, I want to reveal the contestation surrounding the minority regime as various actors participated in implementing it.4 Although evident in the historical record, the dynamic debates around the minority regime – always affected by the turbulent unfolding of state-making processes in the post-World War I period in the countries involved – are typically elided in the human rights literature in favor of short, homogenizing summaries which serve, more often than not, to “write off” this historically unprecedented, multifaceted, and evolving experiment in international governance. I fill out this flattened image by drawing out voices and positions that rarely find their way into published accounts: To this extent, my project is recuperative. I engage with this material in two basic ways: first, as historical records to be deciphered and made sense of, and second, as a cluster of historical phenomena to which a variety of people, driven by new predicaments and questions, are “returning” in the 1990s. There are multiple mirrorings here. Not least, the perception of parallels between the 1920s and the 1990s, as two postimperial moments, is central to the current discourse. Contemporary observers have seen the vulnerability of minorities in postsocialist Eastern Europe as mirroring the situation in the interwar period. By the same token, we can reconsider the League minority regime by observing how it is reflected – or perhaps more accurately, refracted – in the mirror of the 4

I place the phrase “Bulgarian minorities” in quotation marks to signal the contested nature of this designation among the states and political groups involved.

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post-1989 experience. As Clarke and Goodale insist in this volume’s Introduction, mirroring involves both transparency and opacity, both reflection and refraction. In this sense, although today’s commentators are correct to acknowledge the similarities and parallels between the two historical moments, we must not be led astray by them. The moments are not the same. There are profound differences between them, both in the nature of the local situation and in the broader national, regional, international, and global contexts (Cowan and Brown, 2000). I propose therefore to precede my own historical revisioning with a critical look at the recent return to, and multiple reappropriations of, the League minority regime. THE RETURN TO THE LEAGUE MINORITY REGIME

By the end of the 1930s, the League system for guaranteeing minority rights and protections was judged a failure. Nazi Germany’s flagrant manipulation of the system for revisionist goals was only the most shocking flaw. In the public imagination as much as in the judgment of pundits and historians, the minority regime came to be seen as the inferior Other of the human rights regime. At best, it was acknowledged as a well-meaning but flawed predecessor that the post-Second World War regime of universal human rights made redundant (see Cowan, 2007a; Mazower, 1997). Yet in the 1990s the minority regime of the League of Nations reemerged into public consciousness, becoming the object of a spate of reassessments. Who has participated in these reassessments? With what concerns? Who has been absent? And, in the debates that have arisen, who are talking to each other? The voices of national and international practitioners and policy makers, as much as scholars, in the fields of politics and international relations have been particularly prominent.5 For them, the fall of the Berlin Wall in 1989, the collapse of socialism in Eastern and Central Europe, and the emergence of extreme – in some cases, violent – nationalist movements hostile to ethnic and national Others in their now “nationally” defined polities raised urgent questions of governance and of the role of international and supranational agencies in real or potential conflict situations in what was seen as Europe’s backyard. It is no accident that the move within the Organisation for Security and Cooperation in Europe (OSCE) to create a High Commissioner for Minorities was initiated in 1992 at the height of the slaughter in the former Yugoslavia (Brenninkmeijer, 2005). European policy makers facing bewilderingly new forms of old nationalisms in post-1989 Central and Eastern Europe found appealing the model of minority rights obligations for unruly states, combined with enlightened international supervision. Indeed, in these distressing political circumstances, even states historically resistant to formal recognition of minorities, 5

See, for instance, Buwalda, 1994; Herman, 1996; Maier, 1992; and Preece, 1998.

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like France and Greece, eventually agreed to support the creation of a new office of High Commissioner. Many politicians and policy-makers trying to conceptualize the working practices of this new office (eventually renamed the High Commissioner on National Minorities or HCNM) were inspired by the emphasis on informal troubleshooting, negotiation, and flexibility that characterized the Minority Section’s work. The architects of the OSCE HCNM appreciated the ways it combined the pragmatic with the humanitarian within a larger aim of preventing interstate conflict. They saw their own, new organization’s remit in similar terms. Rather than a problem to be solved, difference within states was, they believed, a fact of life and an issue to be “managed” through flexibility and dialogue to avoid regional conflicts (Kemp, 2001. Zellner and Lange, 2001). On this basis, diplomats, scholars, and policy makers urged the adaptation of such approaches for informal troubleshooting in the Balkans (e.g., Buwalda, 1994; Herman, 1996). Whereas some have focused on the benefits of dialogue and early intervention, others in the policy world have endorsed the OSCE’s approach inasmuch as it regards minority rights as “not exclusively or even primarily a human rights problem, but . . . a security issue” (Mullerson, 1997: 53, cited in Chandler, 1999: 68; see also Merlingen, 2003). Other writers have been much less sanguine about the legacy of the interwar minority regime. Some have decried as Orientalist and colonialist the hypocrisy of nonuniversal standards in minority protection in Europe in both the past and the present (Burgess, 1996, 1997; Chandler, 1997). In particular, the continuing scandal of double standards in the current European Union (EU) accession processes, affecting for a second time many of these same states, has drawn repeated criticism (Burgess, 1996; Cowan, 2007b; Hughes and Sasse, 2003). Such double standards, whereby states joining the EU were asked to assume minority rights obligations to which the old EU members had themselves never agreed, both reflected and reinforced an essentialist yet enduring distinction, influentially articulated half a century ago by Hans Kohn (1955), between “good” Western and “bad” Eastern nationalisms (Kuzio, 2001; Smith, 2002). The hypocrisy has not been lost on politicians from the targeted states: At the EU-sponsored Conference on Stability in Europe in 1994, the Czech President Vaclav Havel sardonically quipped that “maybe a roundtable should be organised to discuss the Irish and Basque problems under the benevolent eye of the [East European] Visigrad countries” (Chandler, 1999: 71). By the 1997 Treaty of Amsterdam, the provision on minority rights was quietly dropped for future candidate states to the EU. They nonetheless remain part of the constitutional agreement in some postconflict regions now under international supervision, such as Bosnia-Herzegovina. Apart from the issue of double standards, writers have been alarmed at the ways that the implementation of minority rights and international supervision can facilitate

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unintended consequences, which include disenfranchising persons and groups who do not “fit” the designated minority categories; strengthening nationalist groups that make claims as oppressed minorities; and motivating parties in conflict to eschew locally devised solutions to appeal, instead, to “higher” (i.e., international) authorities. Such unintended consequences may increase, rather than reduce, tension and destabilization (Chandler, 1999: 70; Edwards, 2005; Mertus, 1999). In a broader sense, political practitioners, operating within an overwhelmingly realist discourse of international relations and often with familiar stereotypes about the Balkans (see Todorova, 1997), have been slow to take on board the implications of theoretical work on the minority phenomenon. Among them are the key points, developed from a constructivist perspective, that a minority is less an already given entity than a product of a historically specific and dynamic political field (Brubaker, 1996; Laitin, 1998),6 and that minoritization processes have complex and ambiguous effects (Cowan, 2001). Centered mostly in international relations and foreign policy journals and in the gray literature of European institutional policy analyses, this first arena of debate is distinctive in several ways. It has arisen out of a sense of d´ej`a vu in the post-1989 period with respect to many of the formerly socialist countries, which, half a century earlier, had been included as treaty-bound states in the League’s interwar minority regime. Linked to still ongoing issues of nation building, state making, and the redefining of categories of citizenship and belonging in the “Eastern” peripheries of Europe, it is embedded in debates about sovereignty, self-determination, and the politics and morality of secession. At the same time, it is concerned with issues of governance, particularly of international supervision, within a context of ongoing violations of the rights of – and not infrequently, direct violence against – persons defined as internal Others. Finally, as in the early post–World War I period, state security and the prevention of regional conflict are the overriding aims, with minority rights conceptualized in terms of a security framework (see also Feldman, 2005a, 2005b, 2005c). Historians, too, have returned to the League of Nations. Reexaminations of the minority regime are central to three emerging narratives that Susan Pedersen sees in this “return” historiography: that of peacekeeping, of global governance, and of the management of the shifting relations between state power and international authority in the postwar transition between a world of empire to a world of new nation-states (Pedersen, 2007: 2). Among historians who have grappled with the minority regime specifically and called for its reassessment is Mark Mazower, a historian of Greece and the Balkans. Mazower wrote his important 1997 article, 6

Brubaker (1996: 60) actually offers an even more fluid definition of a minority as “a family of related yet mutually competing stances, not a static ethnodemographic condition.”

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published in Daedalus, against the backdrop not only of the bloody disintegration of Yugoslavia, but also of the emergence, starting in the mid-1980s, of what is now referred to as a “minority discourse” in Greece among populations where minority identities were being reformulated or newly fashioned (see Cowan, 1997, 2001; Danforth, 1995; Karakasidou, 1997), and the harsh reactions to this by Greek nationalists.7 Nonetheless, Mazower’s turn to the League minority regime, like my own, was grounded in a long acquaintance with Greek society and its complex ways of dealing with difference, beginning well before the cataclysms of 1989. Similarly, Carole Fink’s detailed and authoritative Defending the Rights of Others (2004), on the role of the Jews in the formulation of minority protection, builds on four decades of historical research and analysis (1972, 1995, 2000). Her work is complemented by that of a younger generation of historians (e.g., Cornwall, 1996; Finney, 1995; Levene, 1992; Michailidis, 1996). Nonhistorians also have contributed to the historical reexamination, bringing their distinctive perspectives. Early in his career, the critical legal scholar David Kennedy, best known today for his powerful work on human rights, war, international law, and humanitarianism (e.g., Kennedy, 2004), undertook a comprehensive analysis of the shifting and contesting discourses on the League as a moral and legal project aiming to “institutionalise the international” (Kennedy, 1987). His close associate, Nathaniel Berman (1988, 1993), another prominent critical legal scholar, has been working on the innovative nature of practices of the interwar Permanent Court of Justice and their relation to international legal modernism in the 1930s. Like anthropologists, Berman is also intrigued by broader questions around nation and nationality and the actual workings of legal/political categorizations of difference. Silences are also telling. How should we understand the fact that the historical experience of the minority regime has always been, and remains, almost entirely neglected within contemporary theoretical debates on the politics of identity, difference, and multiculturalism? One might argue that we should not be surprised at all: Political theorists’ eyes are on the present, not the past. Moreover, the rhetorical conventions within which they work allow for political theorizing without reference to specificities of context. Yet in fact, their silence speaks volumes on the implicit inclusions and exclusions within theoretical apparatuses that claim universal salience. Thus, the majority of theorists, whether liberal or drawing on the Critical Theory of the Frankfurt School, take as their subject the predicaments of difference within

7

The effects of postsocialist transformations upon the Greek national scene, specifically in the increasingly intense campaigning around “the name issue” when the former republic of federal Yugoslavia, Macedonia, sought to establish itself as an independent republic, similarly – although more indirectly – prompted my own first foray into the League of Nations archives in Geneva in the summer of 1996.

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relatively stable, post–World War II democracies of North America and Western Europe.8 These are states that enjoy relative power and autonomy within the international sphere and have never suffered international interference in their daily affairs. Such political theorists address, both theoretically and politically, what Iris Marion Young (1990) called “justice and the politics of difference,” and the issues of rights, recognition, and redistribution this would entail, within a state framework, and entirely without reference to an external international order (see also Cowan, 2007b; Wimmer and Glick Schiller, 2002).9 A singular exception among political philosophers is Will Kymlicka. In Multicultural Citizenship (1995), Kymlicka presented the League of Nations minority protection scheme, which had been formulated in a period when liberal policies and politicians – “liberal” in the old-fashioned sense – were in the ascendancy in Britain and the United States, as evidence that liberals have long recognized the importance of “culture” to liberty and that they have always seen culture as a valued “end.” Although aware of its flaws, he sought to reclaim the principles underpinning the minority protection scheme for the liberal tradition, in the context of developing a liberal theory of minority rights (Kymlicka, 1995: 49–74; see also 2001, 2007). Kymlicka’s appropriation of the minority regime was expedient – intended to support a larger argument about liberalism’s respect for culture – and grasped through a lens of Canadian multiculturalism. Subsequently invited to explore whether Westernbased multicultural theory, including his own work, could be “exported” to Eastern Europe, he felt compelled to acknowledge the need for a broader framing of the question of national minorities (see Kymlicka, 2007; Kymlicka and Opalski, 2002). When Kymlicka actually investigated the question of how states in both Western democracies and in postcommunist Eastern and Central Europe were responding to minority nationalism, his conclusions, although admittedly “oversimplified,” were troubling. “The claims of national minorities are judged by different criteria,” he explains: While in the West they are assessed primarily in terms of justice, in Eastern

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Through their elision of the non-West, the European East, and the past, they also fail to engage with the innovative boldness of some early twentieth-century political thinkers or to consider their relevance for conceptualizing multiculturalism and its political institutional mechanisms. A key example is the Austrian Marxist Otto Bauer, who in 1907 developed a novel proposal for representing the interests of distinct “nationalities” within the Hapsburg Empire through separate, nonterritorially based “national” legislatures empowered to decide on cultural and educational matters (Bauer, 2000 [1907]). Belatedly, Nancy Fraser has been grappling with the implications of globalization for theorizing justice (Fraser, 2007). Her self-critique is phrased from her position in the privileged center, toward the “global poor.” Bridging first and third worlds, there is, however, no acknowledgment of the “second world,” (the Cold War epithet for Soviet-influenced states) or of more ambiguously sited “second-and-a-half worlds,” as many Athenians call their own city (Van Dyck 1994: 47); it is in these overlooked “second” sites that minority protections have historically been imposed by more powerful (First World and Western) states.

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European states they are assessed primarily in terms of security (Kymlicka, 2004: 144–145). Anyone with knowledge of the aggressive nationalisms of many Balkan and Eastern European states and their perceptions of minorities as threats can follow Kymlicka’s reasoning and find it convincing; yet it assumes that the meanings of justice, and the domains to which it is relevant, are entirely self-evident. Only in this way can Kymlicka deem that justice is a Western concern, whereas Eastern European elites care less for justice than for security. Kymlicka renders a service by querying the reach of multicultural theory, yet he ends up reinstating a familiar East/West dichotomy. The critical theorists, in contrast, refrain from engaging with past or present Eastern Europe, yet certain of their concepts, I suggest, have potential analytical purchase for the present case: in particular, the concept of recognition, as developed by Axel Honneth and Nancy Fraser (Fraser and Honneth, 2003; Honneth, 1995). Building on Hegel’s work, Honneth theorizes recognition at the level of the dyadic relationship, a Self and an Other, then transposes this conceptual dyad to the societal level to think through the foundations of justice in relation to society’s Others. I submit that recognition, including the refusal to grant it, operates affectively, as well as formally, within the hierarchically organized community of states in ways that ultimately impact upon recognition processes at the societal level of a single nation-state. Exploring in the next section the various understandings of justice and its place within the League minority regime, I show that the intersection of recognition and justice preoccupied not just minorities, but also Minority States. THE PLACE OF JUSTICE: ARCHITECTS OF THE MINORITIES TREATIES AND THE LEAGUE SYSTEM

Conventional wisdom maintains that the powerful nations that largely determined the nature of the minorities treaties and the League surveillance mechanism were motivated primarily by a desire to maintain international peace and stability. Although this explanation implicitly acknowledges the constrained circumstances in which the League regime operated, and its consequently modest aims, it would be wrong to imagine that the visions even of statesmen were so narrow. The system of Minority Treaties, as C.A. Macartney remarked, was “a compromise between many contending aspirations” (1934: 286). Many scholars insist that liberal statesmen arduously supported protection of minorities as a good in itself; they interpret that support as manifesting a widespread liberal commitment to national rights, and not simply individual rights (e.g., Kymlicka, 1995: 49–58; Macartney, 1934; Robinson, Karbach, Laserson, Robinson, and Vichniak, 1943). During the First World War, liberal leaders argued for the supremacy of “right” over “force,” particularly with respect to the protection of

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“small nationalities” and “small states.” Thus, articulating views similar to those of President Woodrow Wilson, the most renowned advocate of small nations, the British Prime Minister Herbert Asquith declared to the House of Commons in August 1914 that what “we are fighting for” was “to vindicate the principle . . . that small nationalities are not to be crushed, in defiance of international good faith by the arbitrary will of a strong and overmastering power” (cited in Robinson et al., 1943: 3). By the time the peace treaties were being negotiated, however, it was clear that the borders of the New Europe would not, and could not, resolve definitively the issue of self-determination. Huge numbers of people – between 20 and 35 million – found themselves enclosed within national borders of a state controlled by national elites that either they considered different to themselves, or that considered them as somehow Other. The idealism of western liberal thought, and the very specific experience of liberal statesmen and diplomats such as Woodrow Wilson, Robert Cecil, David Lloyd George, and James Headlam-Morley with minorities in their own countries, led them to advocate minority protection, envisaged as treatment according to principles of “liberty, equality, toleration” (Macartney, 1934: 280–282). They were also alarmed by growing anti-Semitism and increasing violence against Jewish communities carried out by nationalists in the Ukraine, Poland, and Romania, which an active, although divided, Jewish lobby made known to them (Fink, 2004, Headlam-Morley, 1972: 121, 133, and passim). Yet, as Macartney astutely noted, although rejecting “on the grounds of humanity, the idea of the intolerant national state, . . . they did not question the practical assumption that a single national culture should prevail in each state,” they did not believe that minorities should be emancipated from the general control of the state (Macartney, 1934: 283). Cultural autonomy within a nation-state, as some minorities were now envisaging (such as previously dominant Germans, now minorities in Czechoslovakia, Hungary, and elsewhere), was viewed by liberal statesmen as unacceptable, being tantamount, in Headlam-Morley’s words, to the dangerous recognition of a “state within the state” (Macartney, 1934: 283). MINORITY STATES

For the statesmen of southeast European states, the dominant justice issue was not the predicament of “minorities”; rather, it concerned their own treatment as states within the new international order. Indignant protests about the minority obligations and their associated supervision regime as a “violation of national sovereignty” constitute the leitmotif of the discourse of treaty-bound states, although they also complained that these restrictions revealed “lack of confidence in their good faith” (Robinson et al., 1943: 154). Inasmuch as all states who wished to join the League of

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Nations were bound – and therefore limited – by collective agreements, the problem was not the partial ceding of sovereignty in itself. Rather, the problem was the double standard. International supervision of the treatment of minorities pertained only to certain states, whereas the Allies, including Britain with its “Irish Problem” and Italy with its multilingual Tyrol region, had no such obligations. The bitter awareness of their subordination to stronger states, notwithstanding the diplomatic fiction of equality among states, gave rise at certain moments to rueful critiques of the notion of minority itself. A League report of a committee meeting in September 1925, at which Minority States were insisting (unsuccessfully) on a generalized minority obligation binding all states, records the following summary: M. Comn`ene (Romania) said that [during the speeches of the British and French representatives], his neighbour, an expert, had placed before him a ethnographical map covered with patches of many colours representing . . . human beings sometimes, not always, but often, who used a language other than that of the majority and who had not the same racial origin or religious creed as the majority. This expert had added that scholars asserted that their “facial angle” was different, which proved that they belonged to another race. M. Comn`ene had observed that these beings bore a striking resemblance to what was known as minorities. “Yes,” the expert had answered, “but minorities only exist when there is a treaty.” (League of Nations, 1929: 45)

Was this merely a complaint of double standards in the face of the reality of racial difference? Or was it an acknowledgment of the material consequences of official nomenclature – that is, of the capacity of categories not simply to name but to construct a sense of distinction? Nations were indeed imagined as organic entities, normally on the model of suprapersons, yet this dominant imagery did not inhibit arguments that racially diverse populations could and should be assimilated into “the national body.” Thus, in 1929, the Greek Prime Minister, Eleftherios Venizelos, acknowledged that Slavophone Greeks could be broken down into three groups: those who were pro-Bulgarian, those who were pro-Greek, and “those who had no distinct national consciousness. These would be ready to become anything, provided they could enjoy peace to carry on their agricultural pursuits and commerce” (League of Nations Archives, Agnides Papers, Dossier 2). In the arguments of states in relation to minorities, one sees a juxtaposition of contradictory arguments; some assert the reality of races, others question it, or at least minimize its significance (as against, for instance, national consciousness) for national belonging. Minority states’ attitudes to the question of “justice for minorities” were always mediated through this (for them) larger sense of the “injustice” of their position as Minority States within the community of states, and the nongeneralized nature of their international obligations. However, they also tended to be skeptical of rights

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for minorities in principle. First, they asserted that, because the state constitution did not distinguish between citizens on the basis of race, religion, or language, equal political and civil rights were already granted. Moreover, they argued that the very existence of minority rights could create an unjustified situation of “privilege” for minorities: for instance, in being able to appeal to an authority beyond the state, and in being able to ask for additional resources for minority institutions when already enjoying the national institutions. Such privileges would, statesmen argued, incite majority resentments. Taking a different tack, some statesmen argued that even if such privileges could be justified in certain cases, they could not come for free, but ought to be contingent on the minorities’ fulfillment of their duties as citizens, the primary duty of which was loyalty to that state. Above all, representatives of Minority States protested that these institutionalized forms of recognition of minorities would inhibit their own efforts to create a unified national body. With respect to the populations that the League files name as the “Bulgarians” in the Macedonian region, negotiations often stalled at an even earlier stage. The government of the Kingdom of the Serbs, Croats, and Slovenes (henceforth, Yugoslavia, as it was officially named from 1929) did not recognize this population as Bulgarian, but rather as South Serb; it claimed that they did not constitute a minority. On that basis, in many instances, it simply refused to consider petitions.10 The Greek government, although acknowledging that the Slavic language spoken was clearly not Greek, also wished to distinguish the language, race, and national consciousness of this population from those of the Bulgarians. The Greek argument led to some contorted positions. In the infamous case of the “Abecedar” or A-B-C primer, a working group appointed by the Greek government devised a primer of the dialect spoken in Western Macedonia (see also Michailides, 1996).11 The primer was written in Latin, rather than Cyrillic, letters, thus avoiding using either of the two alphabets which might have been known to educated persons in these communities (Bulgarian Cyrillic and Greek). Bulgarian and Greek nationalists were equally outraged, expressing themselves vociferously in their national presses. There was also strong local reaction. When the primer was introduced experimentally in January 1926 in a region near Florina in Western Greek Macedonia, some teachers were harassed and books were burned, and in the town of Amyntaio, a demonstration was organized against the primer; Michailides argues that “the overwhelming majority of the local community in Western Macedonia was 10

11

In cases where individuals in the League Secretariat considered the matters raised by petitions to be grave, they could press governments to respond to them, whether in the context of the formal procedure or informally. The dialect of this region is today described by many as Macedonian, and is close to the Macedonian standard language. The legacy of a complex politics of naming nonetheless remains (see, e.g., Cowan, 1997, 2001; Van Boeschoten, 2006).

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not prepared to accept a policy that it feared might encourage Bulgarian involvement once again in Macedonian affairs and simultaneously lead to its own social and financial marginalisation because of lack of fluency in Greek” (1996: 340). In other petitions submitted to the League of Nations concerning, for instance, religious provision for the minority, the Greek government typically declared that the use of Slavic for the liturgy did not constitute a problem. However, it insisted on its right to refuse recognition of Bulgarian ecclesiastical authority in Greek territories. PETITIONERS

According to all the Macedonian civic organizations and most individuals who sent in petitions, the minorities treaties did not offer justice for minorities. Rather, they signified an abominably unjust peace and the power of some states, and some peoples, over others. Petitioners for Macedonia nonetheless attempted to use the minority petition procedure – the element of the supervisory mechanism that allowed any party to alert the League of Nations of alleged violations – to pursue their own visions of justice. Importantly, those petitioners launched a double demand: “Enforce the minorities treaties!” they insisted in one breath, “Replace them with a truly just political order!” in the next. In other words, they gradually, if reluctantly, began to adopt the subject position of “minorities,” and learned to frame their complaints at least partially in cultural terms. They thus protested against the closure of Bulgarian schools, churches, and publishing houses; the suppression of Bulgarian everyday speech; and forced name changes. Nonetheless, often in the same petition, they used the minority procedure, as they had used petitioning of the Sultan, of their own and other governments and of European supporters in the past, to appeal for a different justice project altogether (see Cowan, 2003, 2007a). This project was national, and informed by an older vision of national self-determination, yet more radical in its national form than the leaders of the postwar order seemed willing to condone. They demanded an “autonomous Macedonia” under the protection of more powerful patrons (the League of Nations, the Great Powers, or some selected group of powerful states). Many identified three specific parts to this demand: first, national self-determination via plebiscite; second, a nation within a federation; and third, a nation “with equal rights for all religions and nationalities of Macedonia.” MINORITY ADVOCATES AND LEAGUE CIVIL SERVANTS

Two other categories of actor played crucial roles in constituting the minority regime: minority advocates and League civil servants. Arousing, shocking, and galvanizing

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“European public opinion” had been a key strategy of nationalist mobilization in the final decades of Ottoman and Hapsburg rule; this strategy had initiated bonds between the elite of nationalist movements and sympathetic Europeans (see Cowan, 2007a; Perry, 1988; Viˇsinski, 1991). Along with various worker, peasant, and liberal movements, political action linked to the fate of “oppressed nationalities” within these European empires contributed to the development since the mid-nineteenth century of an internationalist vision and the emergence of a global public sphere. Occupying this newly defined space, individuals thought of themselves and spoke out as concerned world citizens; some became involved in building organizations that began to concern themselves with problems that transgressed national boundaries, precursors of international human rights nongovernmental organizations (INGOs). In the aftermath of a world war that had been fought largely in the name of national self-determination, many European minorities – the losers – had supporters. In the case of the “Bulgarian minorities” of Yugoslavia and Greece, among the most important institutional advocates was the Women’s International League for Peace and Freedom (WILPF). An internationalist, pacifist, and feminist organization, it had been established in the years leading up to the First World War by suffragist women from across Europe and North America who had broken with the “patriotic turn” of their national organizations and opposed their own government’s decision to go to war. After the war, despite severe disappointment with the terms of the Paris peace treaties, the women of the WILPF decided to set up their international office in Geneva, to be able to influence and work closely with the League of Nations in addressing a range of international issues and in developing the nascent “international spirit.” The WILPF came to be, among humanitarian organizations of the era, one of the most dedicated to the problem of minorities and the stateless (see Bussey and Timms, 1965; Rupp, 1997; Vellacott, 1993). With respect to questions of justice and minorities, the women of the WILPF were both visionary and practical. At their Zurich conference in 1919, having seen the draft Covenant, they agreed to submit to the statesmen at Versailles a list of additional “essential principles” to strengthen the yet-to-be-born League of Nations as an instrument of peace. It included: “Guaranteeing the representation and protection of the civil and political rights of minorities within each nation, including those of language, religion and education” (WILPF, 1919: 6). At subsequent congresses and in a range of communications, the organization “reaffirmed its belief in the right of self-determination and in the duty of safeguarding the interests of minorities” (WILPF, 1921: 126–127). It is not clear whether WILPF members ever grappled directly with the contradiction of advocating self-determination when more than one “nationality” inhabited a single territory: viz, the problem that self-determination for the majority precluded self-determination for any minorities, by definition. Nonetheless, they addressed this

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contradiction pragmatically, by establishing commissions involving representatives of majority and minority communities to study specific problems and offer concrete proposals that required mutual listening and compromise. The WILPF set up national branches in many of the Minority States that had taken on minority obligations, including in Bulgaria, Greece, and Yugoslavia. They encouraged local activists, most of them from the elite classes and sharing the prevailing nationalism of their compatriots, to step outside their nationalist purview and work cooperatively with women from “enemy” countries. The WILPF also advised Bulgarian women’s organizations on composing their petitions in prose that would meet the stringent requirements of petition procedure (see Cowan, 2003). Engaging the level of international institutional rules, the WILPF lobbied unceasingly for a set of minority obligations to which all states were bound. The WILPF shared the outrage of Minority States at the injustice and hypocrisy of selective minority obligations. They argued consistently that fairness required all states to commit themselves formally to equal treatment of minorities. However, they repudiated a language of national sovereignty. Indeed, their 1924 manifesto named “International Justice” as a key aim, and called for “the willing abandonment of non-moral ideas of sovereignty or prestige which must necessarily be subversive of international good-will” (WILPF, 1924: 141). In sum, the WILPF argued that there could be “no peace without justice,” while basing this claim not on the principle of state sovereignty, but rather on a new internationally oriented morality. Finally, League civil servants – here, officials of the Secretariat’s Minorities Section – showed themselves to be engaged with justice on a daily basis. Most came to the Section having trained in law, often in their home countries. For them, justice was not an abstract moral ideal, but a practical goal pursued within highly constrained circumstances: the best solution achievable through conciliation and compromise. Punctilious in referring to the rules, Section members showed themselves to be pragmatic and flexible, as well. In recognizing, for instance, that rules of receivability could block petitions that they believed deserved to be seen and evaluated, they might suggest cunning strategies, such as examining portions of a petition, while abandoning the portions that were unreceivable. They sometimes wrote back to petitioners suggesting that they reword their petition along more acceptable lines; even more frequently, they passed along the petition, under “private cover,” to a relevant party within the League (such as the Greco-Bulgarian Mixed Commission), so that the complaint had some chance of attention and redress (for examples, see Cowan, 2003, 2007a). Minorities Section officials arguably began with a more legalistic understanding: that although the Law (the Treaties) might not give perfect justice to all minorities, pursuing justice was equivalent to following the Law. Gradually, they developed a more pragmatic understanding that justice often required bending, or finding ways around, the Law.

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CONCLUSION

What were the meanings of justice, and what was its place in relation to other goals, such as peace, stability, and security, within the League minority regime? Examining these questions by focusing on the political field that emerged around the rights and protection of the “Bulgarian minorities” in Greece and Yugoslavia, I showed that different parties would answer these questions in different ways. Rather than treating these diverse answers as “misunderstandings” of the League, including of the “real purposes” of the League minority regime, as some writers of League histories do, I want to give a central place to these voices and the imaginings they express. People experienced the League, its institutions and activities, through the prism of these imaginings; although not always directly consequential, these imaginings nonetheless significantly influenced how the League unfolded. Like Sally Merry (1990), who wanted to understand what working class Americans expected from and tried to get out of their legal system, and the disjuncture between “their” expectations and those of the legal professionals, I take seriously these imaginings. They are important, too, as assertions within a debate that was never only about politics but about something much broader: about what we now call “the political imaginary.” Petitioners, bureaucrats, diplomats and advocates debated minority issues in League of Nations institutional spaces; joined by an often passionate public, they also collaborated and clashed in the larger public space in which the League was embedded. In newspapers, periodicals, pamphlets and broadsheets, as in public lectures, women’s associations, church parlors, trade unions and local branches of the League of Nations Union, people of divergent views argued about the place of minorities in a world of nation-states – what they were entitled to, what they owed others. The question of minorities and the justice or injustice of their situation post-Versailles emerged as one of the critical debates animating the formation of a modern, global civil society in the early twentieth century. This debate was never contained within the terms of realpolitik; to the contrary, it was infused with a language of ethics, morality, and truth. It is commonly accepted among League scholars that the selective, rather than generalized, character of minority obligations was a major cause of the supervisory regime’s failure. In a previous article, I mischievously tried to dislodge that certainty of failure from its analytical cul-de-sac, asking: failure for whom? According to whom? (Cowan, 2007a) I have done something similar here with the notion of “recognition.” I have used the concept “against the grain,” applying it to a party – the Minority State – normally designated as the perpetrator of minority violations, to understand the dynamic of competing justice claims within a claim and adjudicatory process that is multisited and transnational as well as international, and where claims pertain to several distinct spheres of social, political, and moral relations.

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The selective character of the interwar minority regime produced a situation whereby the minority/majority asymmetry foundational to the nation-state (in which the treaty-bound state acted on behalf of the majority nationality) was mirrored – replicated, but in reverse and in a different domain – at the level of interstate relations (in which the state was placed in the position of the minority – became, literally, in Claude’s [1955] terms, a “Minority State”). I suggested that the concept of “recognition” that critical theorists like Honneth and Fraser have emphasized, typically used to describe a desired relationship between the bestowing state and the citizen claimant, is relevant for analyzing the hierarchical relations evident within the community of states. The refusal of the powerful states to recognize Minority States as equal, sovereign states led to a particular dynamic in the rhetorics of injustice and the politics of claims; it entailed the construction of a political imaginary within Minority States that defined minority claims and complaints as inherently disloyal.12 This dynamic of mirrored asymmetry – whereby Minority States responded to minority claims with their own counterclaims of injustice – framed, constrained, and ultimately undermined the effort internationally to guarantee rights, protection, and justice for citizens distinguished by their linguistic, religious, and “racial” difference. ACKNOWLEDGMENTS

I am very grateful to Marie-B´en´edicte Dembour, Mark Goodale, and Yael NavaroYashin for feedback and encouragement. References Bagley, Tennent H. 1950. General Principles and Problems in the International Protection of Minorities. Geneva: Imprimeries Populaires. Bauer, Otto. 2000 (1907). The Question of Nationalities and Social Democracy. In Nimni, E.J. (ed.) and O’Donnell, J. (trans.). Minneapolis: University of Minnesota Press. Baxi, Upendra. 2006. The Future of Human Rights. Oxford: Oxford University Press. Berman, Nathaniel. 1988. International law of nationalism: Group identity and legal history. In Wippman, D. (ed.). International Law and Ethnic Conflict. Ithaca: Cornell University Press. Berman, Nathaniel. 1993. But the alternative is despair: European nationalism and the modernist renewal of international law. Harvard Law Review 106(8): 1792–1903. Bourdieu, Pierre and Loic J.D. Wacquant. 1992. An Invitation to Reflexive Sociology. Chicago: University of Chicago Press. Brenninkmeijer, Oliver A.J. 2005. The OSCE High Commissioner on National Minorities: Negotiating the 1992 Conflict Prevention Mandate. Geneva: PSIO Occasional Paper 5/2005.

12

I develop this argument further in Cowan, 2009: 86–90.

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Brubaker, Rogers. 1996. Nationalism Reframed: Nationhood and the National Question in the New Europe. Cambridge: Cambridge University Press. Burgess, Adam. 1996. Minority rights and the civilising of Eastern Europe. Contention 5(2): 17–37. Burgess, Adam. 1997. Divided Europe: The New Domination of the East. London: Pluto Press. Bussey, Gertrude and Margaret Timms. 1965. Women’s International League for Peace and Freedom, 1915–1965: A Record of Fifty Years’ Work. London: George Allen and Unwin. Buwalda, Ambassador Petrus. 1994. Protection of the rights of minorities – back to the League of Nations? In Moore, J. (ed.). Legacies of the Collapse of Marxism. Fairfax: George Mason University Press. pp. 133–148. Chandler, David. 1999. The OSCE and the internationalisation of national minority rights. In Cordell, K. (ed.). Ethnicity and Democratisation in the New Europe. New York: Routledge. pp. 61–73. Chandler, David. 1997. A new look at the democratisation process: the case study of Bosnia-Herzegovina post-Dayton. In Sevic, J. and Wright, G. (eds.). Transition in Central and Eastern Europe, Vol. 2: 217–241. Belgrade: Yugoslav Association of Sasakawa Fellows. Claude, Inis. 1955. National Minorities: An International Problem. Cambridge, MA: Harvard University Press. Codding, George. 1966. Interview with Pablo de Azc´arate. Personal papers files. The League of Nations Archives, The United Nations Library, Palais des Nations, Geneva. Cornwall, Mark. 1996. Minority rights and wrongs in Eastern Europe in the twentieth century. The Historian 50: 16–20. Cowan, Jane K. 1997. Idioms of belonging: Polyglot articulations of local identity in a Greek Macedonian town. In Mackridge, P. and Yannakakis, E. (eds.). Ourselves and Others: The Development of a Greek Macedonian Cultural Identity since 1912. Oxford and Washington, DC: Berg. pp. 153–171. Cowan, Jane K. 2001. Ambiguities of an “emancipatory” discourse: The making of a Macedonian minority in Greece. In Cowan, J.K., Dembour, M.-B., and Wilson, R.A. (eds.). Culture and Rights: Anthropological Perspectives. Cambridge: Cambridge University Press. pp. 152–176. Cowan, Jane K. 2003. Who’s afraid of violent language? Honour, sovereignty and claimsmaking in the League of Nations. Anthropological Theory 3(3): 271–292. Cowan, Jane K. 2006. Culture and rights after culture and rights. American Anthropologist 108(1): 9–24. Cowan, Jane K. 2007a. The success of failure? Minority supervision at the League of Nations. In Dembour, M.-B. and Kelly, T. (eds.). Paths to International Justice: Social and Legal Perspectives. Cambridge: Cambridge University Press. pp. 29–56. Cowan, Jane K. 2007b. The supervised state. Identities: Global Studies in Culture and Power 14: 545–578. Cowan, Jane K. 2009. Selective scrutiny: Supranational engagement with minority protection and rights in Europe. In von Benda-Beckmann, F., von Benda-Beckmann, K. and Griffiths, A. (eds.). The Power of Law in a Transnational World: Anthropological Enquiries. Oxford and New York: Berghahn. pp. 74–95. Cowan, Jane K. and Keith Brown. 2000. Introduction: Macedonian inflections. In Cowan, J.K. (ed). Macedonia: The Politics of Identity and Difference. London: Pluto Press.

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Jane K. Cowan

Danforth, Loring. 1995. The Macedonian Conflict: Ethnic Nationalism in a Transnational World. Princeton, NJ: Princeton University Press. de Azc´arate, Pablo. 1945. League of Nations and National Minorities: An Experiment. Washington, DC: Carnegie Institute for International Peace. Edwards, Alice. 2005. New Roma rights legislation in Bosnia and Herzegovina: Positive, negative or indifferent? International Journal of Human Rights 9(4): 465–478. Feldman, Gregory. 2005a. Culture, state, and security in Europe: The case of citizenship and integration policy in Estonia. American Ethnologist 32(4): 676–694. Feldman, Gregory. 2005b. Essential crises: A performative approach to migrants, minorities and the European state-system. Anthropological Quarterly 78(1): 213–246. Feldman, Gregory. 2005c. Estranged states: Diplomacy and the containment of national minorities in Europe. Anthropological Theory 5(3): 219–245. Fink, Carole. 1972. Defender of minorities: Germany in the League of Nations. Central European History 5: 330–357. Fink, Carole. 1995. The League of Nations and the minorities question. World Affairs 157(4): 197–205. Fink, Carole. 2000. Minority rights as an international question. Contemporary European History 9(3): 385–400. Fink, Carole. 2004. Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878–1938. Cambridge: Cambridge University Press. Finney, Patrick B. 1995. “An evil for all concerned”: Great Britain and minority protection after 1919. Journal of Contemporary History 30: 533–551. Fraser, Nancy. 2007. Transnationalising the public sphere: On the legitimacy and efficacy of public opinion in a post-Westphalian world. Theory, Culture and Society 24(4): 7–30. Fraser, Nancy and Axel Honneth. 2003. Redistribution or Recognition? A PoliticalPhilosophical Exchange. London: Verso. Goodale, Mark. 2006. Ethical theory as social practice. American Anthropologist 108(1): 25–37. Headlam-Morley, James. 1972. A Memoir of the Paris Peace Conference, 1919. HeadlamMorley, A., Bryand, R. and Cienciala, A. (eds.). London: Methuen. Herman, Joost. 1996. The League of Nations and its minority protection programme in Eastern Europe: Revolutionary, unequalled and underestimated. In The League of Nations 1920– 1946: Organization and Accomplishments. A Retrospective of the First Organization for the Establishment of World Peace. New York and Geneva: The United Nations. Honneth, Axel. 1995. The Struggle for Recognition: The Moral Grammar of Social Conflicts. Cambridge: Polity. Hughes, James and Gwendolyn Sasse. 2003. Monitoring the monitors: EU enlargement conditionality and minority protection in the CEECs. Journal on Ethnopolitics and Minority Issues in Europe 1: 1–38. Ishay, Micheline. 2004. The History of Human Rights: From Ancient Times to the Globalisation Era. Berkeley: University of California Press. Janowsky, Oscar L. 1945. Nationalities and National Minorities (With Special Reference to East-Central Europe). New York: Macmillan. Karakasidou, Anastasia. 1997. Fields of Wheat, Hills of Blood: Passages to Nationhood in Greek Macedonia, 1870–1990. Chicago: University of Chicago Press. Kemp, Walter A. 2001. Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities. The Hague: Kluwer.

Justice and the League of Nations Minority Regime

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Kennedy, David. 2004. The Dark Sides of Virtue: Reassessing International Humanitarianism. Princeton: Princeton University Press. Kennedy, David. 1987. The move to institutions. Cardozo Law Review 8(5): 840–988. Kohn, Hans. 1955. Nationalism: Its Meaning and History. Princeton, NJ: Van Nostrand. Kuzio, Taras. 2001. Nationalising states or nation-building? A critical review of the theoretical literature and empirical evidence. Nations and Nationalism 7(2): 135–154. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press. Kymlicka, Will. 2001. Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship. Oxford: Oxford University Press. Kymlicka, Will. 2004. Justice and security in the accommodation of minority nationalism. In May, S., Modood, T., and Squires, J. (eds.). Ethnicity, Nationalism and Minority Rights. Cambridge: Cambridge University Press. pp. 144–175. Kymlicka, Will. 2007. Multicultural Odysseys: Navigating the New International Politics of Diversity. Oxford: Oxford University Press. Kymlicka, Will and Magda Opalski (eds.). 2002. Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe. Oxford: Oxford University Press. Laitin, David D. 1998. Identity in Formation: The Russian-Speaking Populations of the NearAbroad. Ithaca, NY: Cornell University Press. League of Nations. 1929. Protection of Linguistic, Racial or Religious Minorities by the League of Nations: Resolutions and Extracts from the Minutes of the Council, Resolutions and Reports Adopted by the Assembly, relating to the Procedure to be followed in Questions concerning the Protection of Minorities (Document C.24.M.18.1929.1). Geneva: Series of League of Nations Publications. League of Nations Archives. Agnides Private Papers, 1914–1939. Dossier 2. Levene, Mark. 1992. War, Jews and the New Europe: The Diplomacy of Lucien Wolf, 1914– 1919. Oxford: The Littman Library of Jewish Civilisation. Macartney, C.A. 1934. National States and National Minorities. London: Oxford University Press. Maier, Charles S. 1992. Unsafe haven. The New Republic. October 21. Mair, Lucy. 1928. The Protection of Minorities: The Working and Scope of the Minorities Treaties under the League of Nations. London: Christophers. Mazower, Mark. 2004. The strange triumph of human rights, 1933–1950. The Historical Journal 47(2): 379–398. Mazower, Mark. 1997. Minorities and the League of Nations in interwar Europe. Daedalus 126(2): 47–63. Merlingen, Michael. 2003. OSCE studies: The state of the art and future directions (Review Essay). Journal of International Relations and Development 6(1): 71–85. Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness among Working Class Americans. Chicago: University of Chicago Press. Mertus, Julie. 1999. The Dayton Peace Accords: Lessons from the Past and for the Future. In Cumper, P. and Wheatley, S. (eds.). Minority Rights in the New Europe. Lancaster, U.K.: Kluwer Press. Michailidis, Iakovos D. 1996. Minority rights and educational problems in Greek interwar Macedonia: The case of the primer “Abecedar.” Journal of Modern Greek Studies 14(2): 329–343.

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Jane K. Cowan

Pedersen, Susan. 2007. Back to the League of Nations (Review Essay). The American Historical Review 112(4): 1091–1117. Perry, Duncan. 1988. The Politics of Terror: The Macedonian Liberation Movements 1893– 1903. Durham, NC: Duke University Press. Preece, Jennifer Jackson. 1998. National Minorities and the European Nation-States System. Oxford: Oxford University Press. Robinson, Jacob, Oscar Karbach, Max M. Laserson, Nehemiah Robinson, and Marc Vichniak. 1943. Were the Minorities Treaties a Failure? New York: Institute of Jewish Affairs of the American Jewish Congress and the World Jewish Congress. Rupp, Leila J. 1997. Worlds of Women: The Making of an International Women’s Movement. Princeton: Princeton University Press. Simpson, A.W. Brian. 2001. Human Rights and the End of Empire: Britain and the Genesis of the European Convention. Oxford: Oxford University Press. Smith, David J. 2002. Framing the national question in Central and Eastern Europe: A quadratic nexus? The Global Review of Ethnopolitics 2(1): 3–16. Todorova, Maria. 1997. Imagining the Balkans. Oxford: Oxford University Press. Van Boeschoten, Riki. 2006. Code-switching, linguistic jokes and ethnic identity: Reading hidden transcripts in a cross-cultural context. Journal of Modern Greek Studies 24(2): 347–477. Van Dyck, Karen. 1994. Reading Between Worlds: Contemporary Greek Women’s Writing and Censorship. PMLA 109(1): 45–60. Vellacott, Jo. 1993. A place for pacifism and transnationalism in feminist theory: The early work of the Women’s International League for Peace and Freedom. Women’s History Review 2(1): 23–56. ´ Viˇsinski, Boris. 1991. La Mac´edoine vue par l’Europe, 1925–1929. Skopje: Editions Revue Mac´edonienne, Minist`ere A L’Information de la R´epublique de Mac´edoine. Wimmer, Andreas and Nina Glick Schiller. 2002. Methodological nationalism and beyond: Nation-state building, migration and the social sciences. Global Networks: A Journal of Transnational Affairs 2(4): 301–334. Women’s International League for Peace and Freedom. 1919. Resolutions and Proposals. Geneva. Women’s International League for Peace and Freedom. 1921. Report of the 3rd International Congress of Women. Vienna. Women’s International League for Peace and Freedom. 1924. Report of the 4th Congress. Washington, D.C. Young, Iris Marion. 1990. Justice and the Politics of Difference. Princeton: Princeton University Press. Zellner, Wolfgang and Falk Lange (eds.). 2001. Peace and Stability through Human and Minority Rights: Speeches by the OSCE High Commissioner on National Minorities, 2nd ed. Baden Baden: Nomos Verlag.

14 Commissioning Truth, Constructing Silences The Peruvian Truth Commission and the Other Truths of “Terrorists” Lisa J. Laplante and Kimberly Theidon “There is no reconciliation possible with the assassins of Shining Path.” – Alan Garc´ıa, Correo, August 14, 2003 “With Shining Path there can be no pact, no political solution and no form of reconciliation.” – Congresswoman and former presidential candidate Lourdes Flores Nano, ´ La Republica, August 10, 2003 “The government never resolved the problems that caused the war. They should solve them! The same motives for waging war are still there. The strategies may change, but the motives are still present. It’s not about giving alms to the poor or asking people to give their leftovers to them. The poor are also Peruvians! It’s an obligation of the state to watch out for the well being of the population.” – Shining Path militant, Interview, Chorillos Prison, June 23, 2007

INTRODUCTION

On August 28, 2003, the Commissioners of the Peruvian Truth and Reconciliation Commission (PTRC) submitted their Final Report to President Alejandro Toledo and the nation. After two years of work and some 17,000 testimonies, the Commissioners had completed their task of examining the causes and consequences of the twenty-year internal armed conflict (1980–2000) between the Peruvian armed forces and two armed rebel groups, Sendero Luminoso (SL) and the Movimiento ´ Revolucionario Tupac Amaru (MRTA).1 Peru thus joined the growing list of countries that have implemented truth commissions as a means of transitioning from a 1

In 1984, the MRTA appeared as another insurgent group, but the MRTA violence targeted public officials more than the general population, and the TRC calculated that it was responsible for 1.5% of the fatalities of the war.

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period of armed conflict and authoritarian rule toward the founding of a procedural democracy and the rule of law.2 In their Final Report, the commissioners determined that the country’s twentyyear war on terror resulted in the greatest loss of human life and resources in all of Peru’s history as a republic. The PTRC estimated that approximately 69,280 people had been killed and 8,000 disappeared. Of the dead and disappeared, 70% spoke a native language other than Spanish, and three of every four people killed lived in a rural region and were farmers, poor, and illiterate. National indifference, especially among the powerful elite residing in urban centers, is greatly blamed for permitting this ethnic massacre.3 These findings reflect the historical marginalization of a significant portion of Peru’s poor and ethnic sectors, conditions that the PTRC blamed for the violence and prioritized as deserving reform to ensure lasting peace. In addition to determining the demographic composition of the victims, the Final Report addressed the issue of accountability. The Commissioners state that the SL was responsible for 54% of the deaths and disappearances reported to the PTRC, and the armed forces were responsible for 36%. These statistics offer a striking contrast with other Latin American truth commission findings in which armed agents of the state were deemed responsible for the majority of fatalities. In addition to determining that SL was the principal perpetrator, the PTRC also states that the “immediate and fundamental cause of the internal armed conflict was the Communist Party of Peru-SL’s decision to initiate a ‘popular war’ against the Peruvian state.”4 The PTRC also was mandated to make recommendations to promote sustainable peace and national reconciliation – with reconciliation defined as the (re)founding of the social contract. Reflecting the increasingly normative transitional justice agenda, investigating the violent past was considered a key component in assuring a more peaceful future and the guarantee of nonrepetition. Truth was considered a central actor in this endeavor, and the PTRC sought to present a collective truth that would be ethical, and “not only faithful to the facts, but [authoritative] in terms of being trustworthy and credible for all Peruvians.”5 In this chapter, we want to reflect upon certain legacies of Peru’s war on terror – and to consider some of the legacies left by the TRC. We draw upon our longterm ethnographic research in Peru to explore how the PTRC – established in the context of a triumphant state and the absence of any negotiated peace accords– engaged with the two revolutionary movements that had attempted to overthrow the

2 3 4 5

See Hayner (2000), Kritz (1995), and Minow (1998). TRC (2003), vol 1; Introduction. TRC (2003), vol. 1:70, author’s translation. TRC (2003), vol. 1:51, author’s translation.

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state. Truth commissions operate in polarized political contexts and are structurally inclined to construct binary identities, dividing the subjects of their study into victims or perpetrators; they are less successful in grappling with the vast gray zone that characterizes prolonged internal conflicts. In Latin American truth commission reports, there is a regional appropriation of this dualism: “between two fires,” “between two demons,” or “between two armies.”6 These binary identities, however well intentioned and conditioned by the nature of the political transition, prompt people to attempt to locate themselves somewhere within the victim typology, which in turn determines the sort of “truths” that enter the public record, and those that do not. Thus truth commissions establish the narrative terms of engagement and the tone for public debate in the posttruth commission period.7 We argue that the silences perpetuated by the PTRC reinforce certain legacies of Peru’s war on terror that continue to exert their influence on present day politics. We are motivated in part by two recent texts that include the Peruvian case as an example of a successful counter-terrorism strategy.8 Although we agree with the authors that it was careful intelligence gathering rather than military repression that dismantled SL and MRTA, the cost of success demands a careful accounting. Certainly, the manner in which the government defeated SL has not resulted in closing the books on recent history.9 Rather, one legacy of the Peruvian war on terror is a polarized and divided society in which demands for social justice – the expression of legitimate political claims – are frequently viewed as the mere rekindling of the ashes of terrorism.10 The government may have been successful in defeating two revolutionary movements, but the nature of that victory severely reduced the political space to consider what motivated thousands of Peru’s poorest citizens to accept the use of violence to achieve political goals. Thus we are prompted to question the category “terrorist.” Elsewhere the authors have insisted on the need to disaggregate the category “terrorist” to reveal the vast variation in motivations, actions, and intent.11 The image of the terrorist is a key figure that organizes political discourse and action in our contemporary world. Yet, 6 7 8 9 10

11

See Theidon (2004). For a further discussion on this point, see Theidon, Forthcoming. See Richardson (2006) and Heiberg, O’Leary, and Tirman (2007). Elster (2004). Former president Fujimori (1990–2000) routinely described social protesters as the “rezagos de terrorismo” (ashes of terrorism), implying that when people took to the streets they were a threat to democratic governance. See Del Pino and Theidon (2000). The usefulness of the specter of terrorism to authoritarian regimes is a topic we address in this project, and we suggest this strategy has been magnified by the “global war on terrorism” launched in the aftermath of the September 11, 2001, attacks on the United States (Laplante, 2008). See Theidon (2007) for a discussion of this theme within the Colombian context.

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beyond the abstract image of the terrorist – that free-floating signifier – what is the role of this figure in particular historical and political contexts?12 Peru waged its war on terror prior to the events of September 11, 2001; an exploration of that earlier “war on terror” illuminates the consequences of expanding executive power, limiting civil liberties, and removing the democratic checks and balances that serve as important protections against the systematic violation of human rights. Without dismantling the term “terrorist” to separate out the tactic from the agent – without understanding the political content of the violence – the label remains a potent weapon in the arsenal of authoritarianism. We begin with an overview of the internal armed conflict in Peru, and an examination of the counter-terrorism strategies developed by four successive administrations. We then turn to a discussion of the TRC, situating it within broader debates regarding transitional justice and its goals. Next we consider how the concept of reconciliation has been approached – or rejected – in Peru, and conclude by moving from the specifics of this case study to its relevance in an age in which the “global war on terror” has expanded the reach of an interventionist will to power. Peru’s War on Terror: Calculating the Cost of “Success” “Many are called but few are chosen . . . We must know how to die fully conscious of what we are doing because, in fact, we are going to die.” – Shining Path militant, diary entry from March 198513

Peru’s twenty-year internal armed conflict began in 1980 when the Maoist guerrilla group SL declared war against Peru the same year it became a newly established democratic State.14 SL’s ideological mission offered visions of a utopian communist state, and initially had great appeal among a frustrated and marginalized population. Through “escuelas populares,” SL successfully recruited youth who, because of their ethnic and class identity, were both economically and politically excluded – sin voto o voz.15 However, soon after initiating its armed struggle, SL’s violent tactics degenerated into massive and arbitrary violence against the same rural villagers it promised to save.16 12

13

14 15 16

See Theidon. “Histories of Innocence: Post-War Stories in Peru.” Forthcoming in Localizing Transitional Justice, Rosalind Shaw, Lars Waldorf and Pierre Hazan, eds. Stanford: University of Stanford Press. ˜ Diary entitled Plumas y Montanas: Suni Puni, written during 1985–1987 by an anonymous Shining Path militant based in the highlands of Huanta, Ayacucho. Copy of diary on file with the authors. Strong (1992); Gorritti (1999). Escuelas populares, literally “popular schools,” refers to the classes held by SL militants. See Del Pino (1998) and the TRC’s Final Report (2003) for detailed discussions of SL’s use of forced recruitment, the conditions in which the “masses” were kept, and the abuses inflicted by the scornful cadres.

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In response, the Peruvian government declared a far-reaching state of emergency and sent the military to control SL’s violence with brutal counter-insurgency strategies. In this context, “peasant” frequently was conflated with “terrorist,” resulting in massive and indiscriminate violence against indigenous populations.17 In addition to army troops and special counterinsurgency forces (Sinchis), numerous paramilitary groups secretly carried out the government’s antiterrorist campaign at the margin of the law.18 Rural communities did not passively remain “between two fires,” but resorted to forming government supported self-defense committees (“rondas campesinas”).19 Violence escalated dramatically and lethally. Although each new administration sought to control the terrorist threat, authoritarian leader Alberto Fujimori’s (1990–2000) draconian measures not only appeared to defeat terrorism but also subjected the whole population to violent – albeit more selective – repression. Fujimori no doubt learned from his predecessors who were internationally condemned for disappearances and killings, prompting Fujimori to shroud his repressive tactics in a veneer of legal legitimacy.20 He began to systematically dismantle democratic institutions in the name of counter-terrorism, and in 1992 he staged a self-coup that closed the congress and paralyzed the judiciary to eliminate any checks on his expanding executive powers. One component of his National Emergency and Reconstruction plan was a sweeping array of antiterrorism laws that created a legal black hole and a dragnet for massive detentions. Stripping away due process protections, these laws permitted arbitrary arrest, ex communicado interrogation, denial of habeas corpus, military court jurisdiction over civilians, conditions that permitted mistreatment and torture to elicit coerced confessions, “faceless” judges, and limited or no opportunity for defense. Convictions were often based solely on police assertions or the uncorroborated testimony of another detainee “repenting” in exchange for “naming names” in hopes of a lesser sentence.21 An estimated 20,000 people were jailed during this period on not much more than a rumor, a grudge, or a declaration given by a torture victim in hopes that the torture would cease.22 The antiterrorism laws worked via contagion theory, and merely calling someone a terrorist or implying that they were “apologists for terror” silenced democratic dialogue. Overly broad and vague definitions of terrorism made anyone a potential

17 18 19

20

21 22

TRC (2003); Manrique (1989); Theidon (2004). TRC (2003); Laplante (2007). See Degregori, Coronel, Del Pino, and Starn (1996) for an analysis of the rondas campesinas. See Theidon (2003d) for a gendered analysis of these groups. See Starn (1999) for an excellent analysis of the rondas in Cajamarca, where forming peasant patrols predated the internal armed conflict. In the second half of the 1980s, during Alan Garcia’s first time in office (1985–1990), Peru earned the infamous recognition by the United Nations as having the highest rate of disappearances. Instituto de Defensa Legal (IDL) (1995): 52–68. Laplante (2006b), Theidon, Forthcoming (b).

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detainee. Ironically, Fujimori implemented his draconian scheme just as years of intelligence work were leading to the arrest and conviction of the leaders of these illegal armed groups and the defeat of the insurgency. Moreover, subsequent investigations revealed that he rejected Guzman’s offer for peace negotiations to continue using the threat of terrorism to manipulate public fear and justify authoritarian measures. In consultation with psychiatrists, Fujimori and his spy chief, Vladimiro Montesinos, manipulated a press genre – “chicha”– that employed psychosocial media campaigns to instill fear in the general public so that they would accept the expansion of executive power to the benefit of corrupt politicians, and to the detriment of the nation. Indeed, Fujimori manipulated a fearful citizenry that clamored for a leader who would take a tough stand on terrorism, only to then surreptitiously rob millions of dollars from the state coffers, as finally revealed when his regime fell in 2000 following a series of corruption scandals. Until then, within the context of his campaign of fear, the label “terrorist” was the primary means of silencing opposition and undermining one of the primary pillars of democracy: free expression. Long after the arrest of Abimael Guzm´an and the military defeat of SL in 1992, the specter of terrorism was used to justify authoritarian measures, leading one of Peru’s foremost public intellectuals to note that Fujimori won the war – it was the postwar that defeated him.23 COMMISSIONING TRUTH, SILENCING “SUBVERSIVES” “Somos cuidadanos – no somos terroristas (We are citizens, not terrorists). – Banner held by teachers and students protesting cuts in university funding, Ayacucho, July 2005 “I am struck by how futile counterterrorist policies are likely to be when they are based on a view of terrorists as one-dimensional evildoers and psychopaths.” – Louise Richardson (2006: xii). 23

Degregori (2006). Within the polarized political climate of the Fujimori years, to suggest dialogue with members of SL was taboo. As Richardson argues, “There is a widespread view that to endeavor to understand or to explain terrorism is to sympathize with it. I reject this view. Indeed, it is a central tenet of this book that the best way to contain terrorism is to understand its appeal and to use this understanding to forge effective counter-terrorist policies. The Peruvian government’s campaign against the Shining Path is one example at how an effort to understand a terrorist movement can be much more effective at ending terrorism than an effort to squash it” (2006: xx). Although Richardson is correct that careful intelligence gathering – in contrast to the indiscriminate use of violence – was what allowed the Peruvian government to capture Abimael Guzm´an, the understanding of SL did not extend much beyond the appreciation for the “cult of personality” that made the defeat strategy successful. However, there was scant effort to understand the motivations of lower level militants because talking with “terrorists” was seen – and continues to be seen – as an “apology for terrorism,” which carries a criminal penalty.

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Peru’s political transition was abrupt and prompted more by elite and middle class concerns with corruption than with human rights violations.24 As thousands of “Vladivideos” surfaced – the name referring to the innumerable videos Montesinos filmed and in which he is seen bribing hundreds of elite and powerful figures – the rampant corruption of Fujimori’s administration became undeniable. Fujimori fled the country in November 2000, seeking refuge in Japan. A transitional government was appointed under the direction of Valent´ın Paniagua, and he seized the opportunity to address the human and institutional damage caused by the internal armed conflict by forming the TRC in July 2001. Established by executive decree, the PTRC’s mandate included “the clarification of the process, acts and responsibilities” of terrorist violence and human rights violations, such as forced disappearance, torture and serious lesions, assassinations, and kidnapping, among others.25 The PTRC operated for two years, holding fourteen public hearings, collecting testimonies, reviewing secondary academic studies, consulting experts, and reading Central Intelligence Agency documents. Unlike other truth commissions, Peru’s investigations included the identification of criminal responsibility because the InterAmerican Court of Human Rights had annulled Fujimori’s 1995 amnesty laws.26 The brunt of the PTRC’s work, however, relied on the 16,917 testimonies, collected primarily from victims. Historical memory projects emphasize the recovery and telling of truth to respond to regimes in which state actors maintained control through enforced silence and the denial of the truth.27 Indeed, as the name implies, truth commissions have become part of a global trend that demands the truth in societies emerging from violent conflict or authoritarian rule.28 In most of these settings, the primary perpetrator of violence and terror has been the state. Thus, truth commissions tend to replace the adversarial character of criminal proceedings with a “victim-centered” approach emphasizing empathic listening to private and public testimonies that catalogue atrocities inflicted on innocent victims.29 A collective narrative emerges that proves systematic violations of human rights that tend to foreground suffering rather than protagonism, thereby forging a sense of “traumatic citizenship” as a levelling device.30 Testimonies of perpetrators usually figure into the truth-seeking process 24 25

26 27 28 29 30

Theidon (2004). Decreto Supremo N◦ 065–2001-PCM (June 4, 2001). Available at: http://www.cverdad.org.pe/ lacomision/nlabor/decsup01.php. Laplante (2009). Cohen (2001). Kelsall (2005): 362. Hayner (2001); Minow (1999). See Wilson (2001) and Theidon (2003b).

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when confessions are exchanged for amnesties, such as in South Africa and various Southern Cone countries.31 This truth-seeking usually occurs within sensitive political contexts and amid polarized positions and group identities. As we suggested earlier in this chapter, truth commissions are structurally inclined to overlook the gray zone in which categories of perpetrator and victim blur.32 Indeed, truth commissions construct a popular discourse that presents two distinct homogenous groups, imagined as mutually exclusive: victims versus perpetrators.33 As victims try to counter “the classic discourse of official denial” that repressive regimes use to preserve corrupt and abusive practices and institutions,34 the armed forces traditionally take defensive positions in light of human rights abuses.35 Often they justify repressive tactics as part of “national security” and the “defense of La Patria” against terrorists, playing the “fear card” designed to ensure the public condones their “excesses and errors.” In his comparative work on civil conflicts, Kalyvas critiques this tendency to confer or deny legitimacy (or equal status) to parties in a conflict, thus sidelining them as the bad guys (bandits, criminals, subversives, or terrorists) rather than political actors.36 In this way, by eclipsing the motivations and perceptions of individual terrorists, commissions focus more on what they did and less on why they did it. Thus transitional justice projects may overlook opportunities for gleaning vital information useful for developing effective strategies for preventing future violence and for addressing the structural factors that may have contributed to the violence. By excluding the alternative truths of those deemed to be subversives – that is, enemies of the state – they may also complicate and even cripple future conciliatory efforts.37 Fujimori’s regime exemplified how the label “terrorist” may be abused. The fact that globally there are hundreds of definitions of terrorism, and no clear normative guidelines exist for penalizing it, leaves open the possibility of manipulation.38 As acknowledged by the U.S. Department of State, “[n]o one definition of terrorism has gained universal acceptance.”39 For that very reason, the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism sought to take on the task, defining terrorism as: “[acts] committed with the intention of causing death or serious bodily injury, or 31 32 33 34 35 36 37 38 39

Wilson (2001); Feitlowitz (1999). Levi (1995). Borer (2003). Cohen (2001): 102. Robben (2005): 142. Kalyvas (2006): 17. Theidon (2006b). Bassiouni 2004: 305. Patterns of Global Terrorism. Washington: Department of State, 2001: vi. Available at: http://www .history.navy.mil/library/guides/terrorism.htm.

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the taking of hostages; and for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act.”40 The tautological nature of his definition, however, merely reveals the extreme difficulty of crafting parameters broad enough, and at the same time specific enough, to capture the phenomena being criminalized.41 Richardson (2006) and Heiberg et al. (2007) define terrorism as the deliberate and violent targeting of civilians for political purposes. As Richardson argues, “It is the means employed and not the ends pursued, nor the political context in which a group operates, that determines whether or not a group is a terrorist group.”42 Yet, although acknowledging that “terrorist acts” are more than just random violence and may indeed reflect political motivations, in her desire to construct an abstract, objective, and discursively neutral classificatory system, the world is somehow divided into acts of lethal violence committed by “terrorists” – defined as nonstate or substate groups – and acts of lethal violence committed by other actors.43 Thus, by striving for a universal definition of “terrorist,” a series of normative assumptions are reintroduced into the definition, demonstrating that the desire to construct decontextualized categories and motivations does not remove the pejorative nor the normative assumptions of the term itself. Given the inherent complexity and murkiness of these terms, it is not surprising that the PTRC struggled with the terms “terrorist” and “terrorism.” As the Commissioners state in the Final Report: “It would be appropriate to note that even though the Supreme Decree [establishing the Commission] decided to use the concept of ‘terrorism’ to refer to those crimes committed by subversive organizations, the PTRC is not convinced that this term adequately and precisely describes the wide range of activities carried out by said groups, nor does a broad international legal consensus exist regarding the content of the term. Its use, on the contrary, at the end of a long armed conflict, is charged with subjective meanings that make it difficult to analyze the conduct of those who decided to rise up against the State and in that process committed violent crimes. For this reason, the TRC has distinguished between those subversive acts which were designed to terrorize the civilian population and those acts which were of another type, and has sought to use the concept ‘terrorism’ and ‘terrorist’ rigorously and with caution.44 40

41 42 43 44

Promotion and Protection Of Human Rights Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin E/CN.4/2006/98 (December 28, 2005), at 42. We thank Mark Goodale for pointing out the tautological nature of this definition. Richardson (2006): 6. See Richardson (2006): 5. “Cabr´ıa senalar, de otro lado, que aunque el derecto supreme decidio´ recurrir al concepto de ‘ter˜ rorismo’ para referirse a los cr´ımenes cometidos por las organizaciones subversivas, la CVR no est´a

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As the above paragraph demonstrates, the struggles around these terms shaped both the work of the PTRC, as well as the historical narrative presented in their Final Report. For these reasons – and for the troubling ways in which the term “terrorist” has been used in Peru – we challenge the label “terrorist” because it conflates the identity of the person with his or her acts. Instead, we argue for disaggregating the category “terrorist” to reveal the vast variation in motivations, actions, and intent – factors that can be understood only within historical and political context and, importantly, within fields of power and struggle. The label too frequently remains effective for repressing social protestors in postauthoritarian contexts because the term strips social justice demands of legitimate political content, thus closing opportunities for critical reflection on what causes normal civil agitation to tip toward campaigns that employ politically motivated violence.45 Working within a politically charged and polarized climate in which the PTRC was continuously accused of providing a public forum for terrorists, the PTRC’s Final Report relied on academic texts rather than offering new analysis based on testimonies from individuals who participated in SL and MRTA. The quality of the texts and the scholars who produced them is not what we question; rather we critique the use of these texts because they were already situated within the polarization that reached beyond strictly political circles into the world of academic research and debate. Thus the PTRC’s Final Report, its many merits aside, failed to open new space for discussing these issues, largely replicating the positions already taken by the Senderologists. In the main, the Final Report presents the testimonies of innocent victims to explain the abuses suffered, without including any sustained analysis of the perspectives and ideological thinking of low-level members of Shining Path and MRTA to understand what motivated their loyalty. Yet, significantly, the PTRC demonstrated that the profile of persons who collaborated in these two movements fall into the same demographic pattern as the majority of victims of that violence: poor, rural, indigenous populations. Thus we ask, “Who was SL and MRTA?” and “What might the militants and sympathizers have to say about the violence – both its making and potential ‘unmaking’?”

45

convencida de que este t´ermino alcance a describir con precision el amplio rango de conductas desarrolladas por dichos grupos, ni de que exista un amplio consenso jur´ıdico internacional sobre el contenido del t´ermino. Su utilizacion, ´ por le contrario, al cabo de un prolongado conflict armado, est´a cargada de significados subjetivos que hace dif´ıcil el an´alisis de la conducta de quienes decidieron alzarse contra el Estado y en ese rumbo cometieron violentos cr´ımenes. Por esta razon, ´ la CVR ha distinguido entre los actos de subversion que tuvieron como objeto aterrorizar la poblacion ´ civil y otros de distinta ´ındole, y ha buscado utilizar el concepto de ‘terrorismo’ y ‘terrorista’ con cautela y rigurosidad” (TRC Final Report, vol. 1: 43; author’s translation). Davis (2005).

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In his research, Gates suggests we consider that a “rebel army’s ability to succeed depends on its ability to recruit and motivate its soldiers to fight and kill.”46 Factors like geography, ethnicity, ideology, nationalism, and economic incentives may play into answering motivations for revolt, but few scholars of civil conflict look at “organizational structure and problems of agency within a rebel group.”47 The tenor of the PTRC’s Final Report maintains SL as the enemy and the cause of Peru’s tragic war. Yet, it does not offer a close examination of who the individual members of this “deadly force” were, thus leaving these groups as a monolithic threat. As a consequence, the demonization of terrorists makes dialogue with these groups taboo, even among academics and intellectuals. Thus, there is insufficient attention to the motivations of lower level militants and sympathizers. The failure to study the internal dynamics and evolution of groups that employ politically motivated violence leads to short-sighted approaches that employ counterterrorism with indiscriminate repression instead of strategies that use effective preventive measures based on understanding how to eliminate the motivations for violence.48 Resistance to this alternative line of inquiry reflects the prototypical fear of crossing the “fine line between explanation and justification.”49 However, Borer reminds us that, “recognizing that some perpetrators can also be seen as victims does not absolve or exonerate them, of course. It does, however, acknowledge that they, too, are in need of reconciliation, and not demonization.”50 The fear of crossing this line may explain why few know that incarcerated SL militants launched a lobbying campaign in an effort to be heard by the truth commission because the PTRC did not initially include this component in its strategic plan. In the course of our current research on the politics of reparations in post-truth commission Peru, we have discovered that many members of SL made concerted efforts to be included in the PTRC’s truth-telling exercise, a fact unknown even to many people working in the truth commission. The PTRC’s archives, stored at the Ombudsman’s Information Center (hereafter, “IC”), include 107 handwritten and typed testimonies from SL members serving prison terms. Each testimony from the Asociacion de Familiares de Presos Pol´ıticos y Desaparecidos del Peru (Association of Families of Political Prisoners of Peru) includes the same cover letter addressed to former president Toledo and is dated February 11, 2002: “In accordance with the October 22, 2001 conversation sustained with the members of the Truth and Reconciliation Commission, which you established, and in 46 47 48 49 50

Gates (2002): 111. Ibid. See Heiberg et al. (2007) for similar recommendations. Borer (2002): 1113. Ibid.

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fulfillment of our offer to collaborate and contribute to the clarification of acts that provoked diverse forms of mourning in this country (disappearances, human rights violations, etc.) we present you with one hundred and seven testimonies duly enumerated and signed by the persons who prepared these denunciations. We include copies of these documents herein. In light of this submission, Mr. President, please see fit to give these to those who will undertake the investigation that each one of these cases demands in order to achieve an AUTHENTIC TRUTH of the events that form part of our history with the hope that said events will never be repeated. (emphasis original)”51

This campaign pressured the PTRC’s commissioners into authorizing a special team to visit the prisons, resulting in the collection of an estimated 2,000 testimonies from people imprisoned for terrorism. Although MRTA prisoners chose not to participate in the original letter campaign because of their skepticism regarding the terms of engagement, some members eventually did offer testimonies. In our interviews with various professionals who worked on this team, they have stated that it was a transformative personal experience: They expected to find themselves face-to-face with evil perpetrators and instead encountered only more victims.52 Although these testimonies are stored at the IC, the voices of those who participated in SL and MRTA do not appear in the PTRC’s Final Report. The PTRC does include a chapter on the violation of due process guarantees and poor prison conditions suffered by those detained under Fujimori’s antiterrorist laws. Specifically, it provides a detailed analysis of the legal defects of Fujimori’s antiterrorist decrees, but then moves directly to the issue of innocent people being caught in this Kafkaesque web. In this way, it sets the frame of reference for understanding the egregious nature of these laws for its abuse of innocent people, and sidesteps whether such abuses are equally condemnable for those who were members of SL or MRTA. The voices of individuals are eclipsed and at most identified as “testifier,” thus the Final Report avoids fully confronting that those who were “perpetrators” in the conflict also became “victims” when detained. In contrast, the PTRC emphasizes how the “protagonism” of SL and MRTA resurged in the prisons as they regrouped, provoking harsher regulations.53 Ending the chapter in this way reinforces the “perpetrator” image of these prisoners in which political ideology cedes to a fanatical use of violence. Indeed, the PTRC contends at one point in this chapter that the isolation of prisoners only reinforced their ideological convictions, at the cost of their possibility for “resocialization.”54 The text leaves unclear whether the PTRC invoked “their ideology” to refer to an 51 52 53 54

Author’s translation; emphasis in the original, which is on file. Personal interview, name withheld, June 8, 2006. Peruvian TRC, vol. XI, section 1.6. Peruvian TRC, vol. XI, section 1.6., p 453.

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endorsement of violence for a revolutionary cause or to refer to the commitment to social justice, leaving open the question of whether reassimilation into society required prisoners first to be cleansed of any political thinking. This confusion can be seen in the current Peruvian context in which individuals or groups that advocate social change or opposition to the government are labeled terrorist in orientation and thus viewed exclusively through the lens of criminality. Moreover, although it is generally assumed that perpetrators speak in exchange for legal concessions such as amnesty, no such exchange existed in Peru. What compelled people to want their testimonies heard? Analysis of letters and testimonies given by SL and MRTA reveal that they presented themselves largely as victims, detailing their own abuses in state custody, especially through the draconian laws that permitted unfettered power for abuse. Many also appealed to the state for reparations for their suffering. Significantly, almost all testimonies from SL or MRTA members came from those now in prison, and as result of their campaign. On the contrary, rural communities prepared for the PTRC’s visit by making pacts that only “the innocent” could testify so as not to risk exclusion from possible compensatory benefits. Authorities directed PTRC workers away from those who participated in SL, and insisted that the “violence had arrived” from elsewhere.55 Thus the PTRC process inadvertently silenced an important source of the “broader truth” they were investigating. Thus, the PTRC’s approach to SL and MRTA led to paradoxical consequences. First, by setting the terms of engagement by which members of SL and MRTA would have to present themselves as victims to be heard (thus fitting into the category that would in theory qualify them as potential beneficiaries of any future reparations), the PTRC lost the opportunity to delve into the motivations of the individuals who decided to join these revolutionary movements that advocated violence. Thus, they lost invaluable information about the root causes of revolt and violence and the opportunity to contribute to future policies that could prevent new cycles of violence, thus undermining the overarching goal of the truth commission. Alternatively, it could have reoriented its transitional justice project to be forward-looking in the name of social justice, as opposed to backward looking in the spirit of retribution. Second, by not addressing head-on the entrenched stigma attached to these groups, due in large part to the media machinery erected by Fujimori-Montesinos, the PTRC set up SL and MRTA to be excluded from future restorative justice initiatives, even though it was the PTRC’s terms of engagement that compelled SL and MRTA testifiers to choose to present themselves as victims (as opposed to political protagonists who had fought and ultimately lost). Indeed, a pervasive popular sentiment pervades Peruvian society and promotes the idea that a person believed 55

See Theidon (2004), (2006a).

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to be a terrorist loses all rights, including the right to reparations.56 For example, a well-known political cartoonist drew a picture of a man on his knees being shot in the head, execution style, and the accompanying text reads: “Its okay, he was a terrorist.” The broader society disregards the need for procedural protections if it does not embrace the fundamental principle that all people are innocent until proven guilty, and even if guilty retain their humanity and thus their human rights. Consequently, the government’s current efforts to implement the PTRC’s recommended Integral Reparations Plan blatantly excludes anyone who was a member of a subversive group when their rights were violated: These parameters are exacerbating existing community conflicts as well as fomenting new tensions and divisions. Reconciling What and with Whom? As with other truth commissions, the PTRC’s work aimed toward peace and reconciliation.57 Its mandate refers to the State’s duty to promote and guarantee peaceful coexistence among all members of society, and recognizes that the full clarification of the “painful process” of political violence and human rights violations would confront the past “without desires for vengeance.” Yet, the official line on reconciliation adopted macro dimensions seeking to mend trust between citizens (defined as victims) and the state that left them vulnerable.58 It did not include reconciling between the state and SL or MRTA, nor between victims and perpetrators. Indeed, in the chapter of the Final Report that addresses reconciliation, the PTRC states, “[f ]rom different sides there exists pressure to understand reconciliation as pardon or amnesty, in the service of their respective perspectives. An intense pedagogy should be pursued to unveil how these deleterious misunderstandings can block a meaningful process of reconciliation.”59 Yet the chapter on reconciliation refers to SL only in reference to the population’s continued fear of SL’s presence in their communities.60 Indeed, one testimony alludes to the need to remain armed given the continued threat of SL’s reemergence.61 In Peru, there is no talk of reconciling with SL as it would require recognizing the group as a political actor. In fact, one of the most controversial moments of the PTRC process occurred when former commissioner and human rights activist Sofia Macher referred to 56 57 58

59 60 61

Laplante (2007a). Minow (1999). CVR, “Cuarta Parte: Recomendaciones De la CVR, Hacia un Compromiso Nacional Por la Reconciliacion.” Informe Final, Vol. IX. ´ Ibid., at 56. Ibid. Ibid., at 57.

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SL as a “political party,” which added to the ongoing debate regarding whether their violence could be characterized as an internal armed conflict as opposed to ordinary criminal activity, and resulted in the PTRC being required to appear before a congressional investigatory committee.62 The armed forces resisted the term “internal armed conflict” to characterize the political violence for fear that SL and MRTA prisoners could invoke the right to amnesty under the Geneva Convention. Thus, SL remained the state’s archenemy yet was denied any type of political status that would award its members reparations or require further analysis of their role in Peruvian society. As a result, despite the country’s massive effort to present a collective truth of its internal armed conflict, there is scant political or discursive space in Peru to explore why so many people joined SL and MRTA and remained sympathetic to the movements even under military repression. SL and MRTA remain monolithically demonized in contrast to other Latin American countries in which insurgent or guerrilla movements were perceived by many people to be fighting for social justice – and at times eventually assumed legitimate political roles.63 Some of the differences may be traced to the different context in which SL began its armed struggle: Peru was not ruled by a military dictatorship, but rather by a democratically elected civilian government. Although the original ideological discourse appealed to principles of social justice and equality, members of SL became increasingly authoritarian and violent, unmatched by any other armed Leftist group in Latin America.64 Additionally, Peru was a triumphant state: There were no negotiations with SL or MRTA. Thus the PTRC was not a component of a peace process between opponents locked in a stalemate, but rather the product of demands from human rights organizations and a global climate in which transitional justice has become increasingly normative. However, even though most Shining Path and MRTA leaders are in jail, many community-level militants are not, having been recently released from prison or never incarcerated. They live on the margins, shunned by a society in which the subject of subversion remains taboo. Despite letter-writing campaigns, requests to provide testimony, and organized hearings in an attempt to make their version of history part of the public record, the PTRC’s Final Report erased these individual voices, providing instead a macrohistorical account of the disastrous campaign conducted by the organizations of insurgent groups, as opposed to the microstories of its members. Without their voices and a detailed analysis of their perspective on the political motivations of those who joined

62

63 64

Comezon ´ de la Verdad. Caretas, No. 1776 (June 13, 2003). Available at: http://www.caretas.com.pe/ 2003/1776/articulos/comision.html. Caro Hollander (1997). Chernick (2007).

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SL, the PTRC leaves pending a better understanding of what motivated thousands of Peru’s poorest and ethnically “others” to opt for revolutionary violence. Who was Sendero Luminoso? Who joined the group and what motivated them to use lethal violence? Where are those thousands of people now? In our own fieldwork with current and former prisoners as well as community members who were banned from speaking with the PTRC and have sought us out to give us their version of the conflict, we discovered that the majority were motivated to participate in part because they were attracted to the promise of social justice and equality – a stance which continues to inform their interpretation of current national protests over socioeconomic grievances. Yet, they have lost all opportunities to be agents for social change in their own country. Unlike other societies in which there were negotiated peace accords, in Peru these former militants are not allowed to construct legitimate political positions. One professional working with prisoners affiliated with SL asked us to “imagine what it does to your mental health to be denied the right to your political thought.” Moreover, one prisoner we interviewed lamented that every time the government blames SL for new violence, they are denied the opportunity to rebut this claim because the press is not allowed to seek their opinion on current affairs. In our interviews, prisoners of MRTA and SL claim that they have renounced violence – some linking their decision to Guzman’s 1992 offer to negotiate peace from his jail cell – and to date there is no reported case of recidivism for those released after serving their sentence. Yet, they remain a convenient scapegoat for manipulating public fear, and for the continued expansion of executive power. Currently, these “subversives” remain a class without rights, having lost all such privileges when they lost their “innocence” – a loss which in turn means that they are not entitled to complain about new human rights violations. For example, the many defects in the legislative design of the antiterrorist legislation provoked vociferous national and international outcry because to the grave violation of fundamental individual rights. Due to constant pressure from national and international human rights organizations, Fujimori himself created a special commission in 1996 that resulted in the release of hundreds of “innocents.”65 Subsequently, during Peru’s democratic transition in January 2003, the Constitutional Court declared numerous articles of the antiterrorist laws unconstitutional.66 In response, the State sought to mend the legal defects of earlier trials and began to retry some 2,500 people convicted of terrorism.

65 66

Laplante (2006b). Sentencia del Tribunal Constitucional, Marcelino Tineo Silva y Mas de 5,000 Ciudadanos, Exp No. 010–2002-AI/TC (http://www.justiciaviva.org.pe/jurispu/Sentencia-Legislacion%20Antiterrorista.pdf).

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Our preliminary observations of criminal trials in Peru reveal paramilitary groups enjoying full due process protections, options for “sincere confessions,” and luxurious court settings, whereas new trials for “terrorists” proceed without such benefits and amenities. Moreover, initial investigations indicate that their testimonies to the PTRC have been used as evidence against them, whereas state officials get lighter sentences for having cooperated and given their testimonies. Many of these individuals have now been released, some having been absolved completely of any involvement in the SL, whereas others are benefiting from time already served and the revised sentencing periods. It is noteworthy that there is no program in place to assist these individuals in rebuilding their lives.67 Yet, when they reenter society, they and their families face continued marginalization, and they are excluded from jobs, housing, and the larger social community. Their decision to join a revolutionary movement confers a stigma that cannot be removed, and is even transmitted to new generations. Professionals and advocates who seek to assist them in this process are themselves often blacklisted, denied jobs, as well as membership in the larger community, including the human rights community. The government recently passed new restrictions and bureaucratic requisites that make it even harder for prisoners to leave prison when they have served their full sentence. Although the PTRC recommended measures to “affirm peace and harmony between Peruvians” by addressing harm caused by the war, the state’s enactment of the PTRC recommendations specifically excludes any person with alleged ties to either SL or MRTA. For instance, in contravention of international jurisprudence, the law promulgated to implement a national reparations plan specifically excludes members of subversive groups, whether or not victimized in the same war. To be a victim today, one must claim innocence.68 As a result, the national registry process now underway, which is the prerequisite for deciding who is a victim with a right to reparations, has begun to cause renewed conflict in communities in which perpetrators and victims live side by side, at times undermining previous processes of local reconciliation.69 Moreover, it does not offer any type of procedural guarantees in the process of determining who allegedly belonged to SL or MRTA, opening the door for another cycle of false accusations and revictimization.70 This exclusionary process is doomed to create more division and is likely to prove a hindrance to one stated goal of the PTRC: national reconciliation. Historical memory projects associated with truth commissions propose memory as the key to 67

68 69 70

We referred earlier to certain Peruvian exceptions. Among those was the absence of any DDR (disarmament, demobilization, and reintegration) program for (ex)combatants. Laplante (2007a); Theidon (2004). Theidon (2004). Laplante (2007a).

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preventing future atrocities.71 Yet, the alleged benefits of “collective memory” – which include psychological healing, combating impunity, building democracy, and preventing future human rights violations – are oriented toward controlling future state abuse.72 They do not necessarily address the causes and conditions that may have contributed to insurgent rebellion against states, which in turn triggered state repression.73 Some scholars have suggested that a deeper inquiry into structural inequalities may be too politically sensitive. For example, Wilson and Grandin have argued that the Cold War context shaped the work of both Argentina’s and Chile’s truth commissions by prompting those commissions to avoid exploring the socioeconomic grievances of the rebel groups; to do so would have meant questioning the dominant economic models and power relationships. Inquiry into the motivations of militants also implies legitimizing them, and in this sense shifts attention away from their perpetrator or enemy status toward recognition of political protagonism.74 In this way, despite their intent to reveal the truth, “curiously, in truth commissions, the truth is rarely told.”75 We invoke Kelsall’s statement, ironically underscoring the fact that in reality no full and complete objective truth ever exists when dealing with narratives and accounts of war. Indeed, in other countries that underwent truth-telling exercises in the pursuit of prevention (e.g., Argentina and Chile), it is conceded that the resulting truth was not complete or absolute but rather open to dispute, interpretation, and amendment.76 Certainly, where one side of the story remains silenced, problems simmer.77 Thinking comparatively, Davis describes how Spain opted for a “Pacto de Olvido” at the end of Franco’s dictatorship (1939–1975), leaving silenced the truth of the defeated Republicans.78 As a consequence, family and sympathizers of Republicans suffered years of discrimination and exclusion, and “the defeated Republicans were portrayed as bloodthirsty traitors against Spain.”79 Moreover, despite a 1966 pardon of defeated Republicans, there was “no genuine or consistent rehabilitation policy and discrimination continued” with the victors glorified and the defeated shamed.80 Here, forgetting and even denying the truth of the 71 72 73 74 75 76 77

78 79 80

Jelin (1994). Chapman (1999); Laplante (2007b). Wilson (1995); Laplante (2008). Wilson (2005); Grandin (2008). Kelsall (2005): 362–363. Bickford (1999): 1100; Fernandez Meijide et al. (1992): 285. Indeed, many individuals in communities that were support bases for SL have told the authors they live in “pueblos resentidos” – resentful pueblos – because of the enforced silence that does not allow them to press claims on the state unless they assume a victim position (Theidon, 2004). Davis (2005). Ibid., 862. Ibid., 862.

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Republicans reinforced “dominant political and cultural discourses in a way that continued to marginalize, or indeed actively suppress, the stories and memories of those on the losing side in the civil war, even after the transition was complete.”81 This polarization of the past has divisive and corrosive effects on the present, as it leaves unaddressed the original causes of rebellion for new generations to take up. These examples, and many others, indicate that historical clarification projects cannot be mere exercises in reviewing the past, but instead must lead to questioning and scrutinizing collective identities with a critical attitude and as “a topic of broad discussion.”82 Of course, this dialogue assumes public space for dissent. Selective truths create a social memory that is transmitted among individuals and groups – and from one generation to another – and may include behaviors, perceptions, attitudes, values, and institutions.83 It can also ingrain stereotypes, prejudices, and rifts between social groups. Social memories of political violence may solidify distances between the heroes and villains, eliminating understanding of their overlap. Encouraging dialogue to thaw “frozen” identification with victim or perpetrator categories requires spaces for approaching “the other.”84 Breaking down stereotypes and rigid adherence to categories may allow people and societies to move beyond the polarizing effects of winners and losers, victims and perpetrators. Yet, in Peru, the exact opposite seems to be occurring. Just five years after the PTRC published its Final Report, Peru now confronts new cycles of social upheaval and repression.85 In its 2007 Annual Report, the Peruvian National Coordinator of Human Rights, an umbrella coalition of some seventy organizations, begins by stating: Following with the liberal economic strategy that works towards strengthening the large economic groups and widening international economic networks, the government closed the year with a growth rate of 8%. Unfortunately, this growth does not translate into state politics that assign and distribute better resources, which is causing dissatisfaction and social protest.86

This tendency became apparent in Peru’s 2006 presidential elections, when the same poor and marginalized population that embraced SL’s revolutionary discourse massively supported the populist Ollanta Humala, whose nationalistic rhetoric provoked societal fear among the urban elite for its perceived extremism. This 81 82 83 84 85 86

Ibid., 867. Chizuko (1999): 136. Crumley (2002): 40. Oxenberg (2003): 82. Laplante and Spears (2008). CNDDHH (2007): 9 (author’s translation).

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willingness to gravitate toward a radical option indicates that the PTRC did not succeed in using memory as a deterrent to future violence; rather than Nunca M´as, history seemed to be repeating itself. These elections alarmed the powerful urban elites, provoking weeks of anxious commentary in a country still divided along racial and class lines. Despite the perceived “close call” of Humala’s near victory, 2007 turned into a tumultuous year in Peru because of nation-wide social protests involving thousands of rural Peruvians demanding to share in the benefits of the economic bonanza of Peru’s growing economy. Disturbingly, Alan Garc´ıa seems to have borrowed a few strategies from the disgraced former president. Since he assumed the presidency in 2006, the country has experienced nation-wide social protests involving thousands of rural Peruvians demanding to share in the benefits of the economic bonanza of Peru’s growing economy. However, Garc´ıa has consistently denounced the protesters as terrorists in a blatant attempt to delegitimize their grievances, even promoting a law that exculpates the security forces’ use of lethal methods to quell such demonstrations. Thus, although Peru appears to be a “success case” in recent texts on counterterrorism strategies, the manner in which the government won its war on terror has corrosive effects on political life and success may be a fleeting state. The label terrorist still wields its power, criminalizing social protests and those who oppose the government’s neoliberal agenda. As the climate becomes increasingly tense, and as evidence against Fujimori mounts, journalists in Peru have begun using the word “Macartismo” in reference to denunciations against respected members of the human rights community. Thus there is the question, What more could the PTRC have done in its efforts to write a more inclusive history, and to place that history in the service of social reconciliation? Indeed, the exclusion of the “other truths” of former Shining Path and MRTA militants has left pending larger questions of addressing the structural causes of the conflict, thus reconciling with the past and, to the extent possible, with the members of these groups. It is this exclusion that motivates us to reflect on the consequences of failing to capture the eclipsed voices of SL and MRTA members. We think here of the many former militants who have assured us, “The ideas were good – it was the implementation that went wrong.” CONCLUSION

Many have suggested that history is written by the victors, and certainly the capacity to elaborate and impose histories with hegemonic pretensions in a postwar context reflects power relations between the victors and the vanquished. However, the losers also write their histories, albeit in the silences, the margins, and the rancor that

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characterize postwar social worlds.87 Our research past and present in Peru prompts us to question the victim-centered approach of truth commissions, and the resentful silences this may inadvertently create. Truth commissions – and other technologies of truth – must recognize political protagonism even while condemning the forms it may take. That recognition may be crucial to serving both the needs of history as well as those of justice: Understanding the motivations of the vanquished may contribute to the structural reforms that prevent future violence. Thus we insist on the need to investigate the unanswered why to construct ideas of what reconciliation and prevention might entail. Although reconciliation in this setting may not necessarily involve the interpersonal sphere of victims and perpetrators, it does include addressing the structural causes of violence. In this way, transitional justice could move beyond a limited “transition to liberal democracy” mode to include a broader social justice agenda. Importantly, by denying former militants the ability to be both perpetrator and victim – without providing a public space for dialogue between the victors and the vanquished – historical memory projects may end up creating a political climate in which only the “innocent” have rights. ACKNOWLEDGMENTS

This research was made possible by funding from the David Rockefeller Center for Latin American Studies, Harvard University. We thank the volume coeditors Kamari Maxine Clarke and Mark Goodale for the invitation to participate in this collective endeavor, and are grateful for Mark Goodale’s insightful comments on an earlier draft of this chapter. The order of authorship is alphabetical; we contributed equally to this article. We thank the many Peruvians who have shared their knowledge and time with us. References Abu-Nimer, Mohammed. 2001. Reconciliation, Justice, and Coexistence: Theory and Practice. Lanham, MD: Lexington Books. Bassiouni, M. Cherif. 2004. Terrorism: The Persistent Dilemma of Legitimacy. Case Western Reserve Journal of International Law 36 (2004), 299–306. Bickford, Louis. 1999. The archival imperative: Human rights and historical memory in Latin America’s Southern Cone. Human Rights Quarterly 21(4): 1097–1122. Biggar, Nigel. 2003. Burying the Past: Making Peace and Doing Justice after Civil Conflict. Washington, DC: Georgetown University Press. Borer, Tristan Anne. 2003. A taxonomy of victims and perpetrators: Human rights and reconciliation in South Africa. Human Rights Quarterly 25(4): 1088–1116. 87

Theidon (2004).

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Chapman, Audrey R. 1999. How Truth Commission Processes Shape their Truth-Finding. Paper presented at TRC: Commissioning the Past Conference, South Africa. Available at: http://www.trcresearch.org.za/papers.htm. Chayes, Antonia and Martha L. Minow (eds.). 2003. Imagine Coexistence: Restoring Humanity after Violent Ethnic Conflict. San Francisco: Jossey-Bass. Chernick, Mark. “FARC-EP: Las Fuerzas Armadas Revolucionarias de Colombia-Ej´ercito del Pueblo.” Heiberh, Marianne, O’Leary, Brendan, and John Tirman. Terror, Insurgency and the State: Ending Protracted Conflicts. Philadelphia: University of Pennsylvania Press. Chizuko, Ueno. 1999. The politics of memory: nation, individual and self. History & Memory 11(2), 129–152. Cohen, Stanley. 2001. States of Denial: Knowing about Atrocities and Suffering. Cambridge, UK: Polity Press. Coordinadora Nacional de Derechos Humanos, INFORME ANNUAL 2007–2008. Available at: http://www.dhperu.org/informe2007/index. Crumley, Carole. 2002. Exploring venues of social memory. In Climo, J. and Cattell, M. (eds.). Social Memory and History: Anthropological Approaches. Walnut Creek, CA: Altamira Press. Davis, Madeleine. 2005. Is Spain recovering its memory? Breaking the Pacto del Olvido. Human Rights Quarterly 27(3): 858–880. Degregori, Carlos Iv´an, Jos´e Coronel, Ponciano Del Pino, and Orin Starn. 1996. Las rondas campesinas y la derrota de Sendero Luminoso. Lima: Instituto de Estudios Peruanos. Del Pino, Ponciano. 1998. Family, culture and “revolution”: Everyday life with Sendero Luminoso. In Stern, S.J. (ed.)., Shining and Other Paths: War and Society in Peru, 1980– 1995. Durham, NC: Duke University Press. Del Pino, Ponciano and Kimberly Theidon. 2000. “‘El Chino ya murio, ´ Ayacucho lo mato’: ´ Cronica de una muerte no anunciada.” Ideele: Revista del Instituto de Defensa Legal 127: ´ 49–53. Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. New York: Cambridge University Press. Eyal, Gil. 2004. Identity and trauma: Two forms of the will to memory. History & Memory 16(1): 5–36. Feitlowitz, Marguerite. 1999. A Lexicon of Terror: Argentina and the Legacies of Torture. Oxford: Oxford University Press. Fernandez Meijide, Graciela, et al. 1992. The role of historical inquiry in creating accountability for human rights abuses. Boston College Third World Law Journal 12: 269–306. Fontana, A., and J.H. Frey. 1994. Interviewing: The art of science. In Denzin, N.K. and Lincoln, Y.S. (eds.). Handbook of Qualitative Research. Second Ed. Thousand Oaks, CA: Sage. Gates, Scott. 2002. Recruitment and allegiance: The microfoundations of rebellion. Journal of Conflict Resolution 46(1): 111–130. Giles-Vernick, Tamara. 2006. Oral methods and sources. A Handbook for Social Science Field Research: Essays & Bibliographic Sources on Research Design and Methods. Thousand Oaks, CA: Sage Publications. Gottlieb, Alma. 2006. Ethnography: Theory and methods. In In Perecman, E. and Curran, S.R. (eds.). A Handbook for Social Science Field Research: Essays & Bibliographic Sources on Research Design and Methods. Thousand Oaks, CA: Sage Publications.

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Grandin, Greg. 2008. The instruction of great catastrophe: Truth commissions, national history, and state formation in Argentina, Chile, and Guatemala. The American Historical Review 110: 46–67. Heiberg, Marianne, Brendan O’Leary, and John Tirman. 2007. Terror, Insurgency, and the State: Ending Protracted Conflicts. Philadelphia: University of Pennsylvania Press. Hollander, Nancy Caro. 1997. Love in the Time of Hate: Liberation Psychology in Latin America. New York: Other Press. Instituto de Defensa Legal (IDL). 1995. Informe De La Comision ´ De Juristas Internacionales Sobre La Administracion ´ De Justicia En Peru. ´ Jelin, Elizabeth. 1994. The politics of memory: The human rights movements and the construction of democracy in Argentina. Latin American Perspectives 21: 38–58. Jelin, Elizabeth. 2002. Los trabajos de la memoria. Madrid: Siglo XXI. Kalyvas, Stathis N. et al. 2006. The Logic of Violence in Civil War. New York: Cambridge University Press. Kelsall, Tim. 2005. Truth, lies, ritual: Preliminary reflections on the Truth and Reconciliation Commission in Sierra Leone. Human Rights Quarterly 27(2): 361–391. Klopper, Dirk. 2001. Narrative time and the space of the image: The truth of the lie in Winnie Madikizela-Mandela’s testimony before the Truth and Reconciliation Commission. Poetics Today 22(2): 453–474. Laplante, Lisa J. 2003. El Impacto de las Audiencias Publicas en los Participantes. Final Report of the Truth and Reconcilation Commission. CVR: Lima, Peru. Available at: http://www.cverdad.org.pe/apublicas/audiencias/impacto.php. Laplante, Lisa J. 2004. Bringing effective remedies home: The inter-American human rights system, reparations and the duty of prevention. Netherlands Human Rights Quarterly 22(3). Laplante, Lisa J. 2006a. Cloud of Fear: Peru’s anti-terror lesson. Open Democracy, March 7, 2006. Available at: http://www.opendemocracy.net/conflict-institutions_government/ peru_fear_3329.jsp. Laplante, Lisa J. 2006b. Heeding Peru’s lesson: Paying reparations to detainees of antiterrorism laws. Human Rights Commentary 2. Laplante, Lisa J. 2007. Entwined paths to justice: The inter-American human rights system and the Peruvian Truth Commission. In Paths to International Justice. Cambridge, UK: University of Cambridge. Laplante, Lisa J. 2007a. The law of remedies and the Clean Hands Doctrine: Exclusionary reparation policies in Peru’s political transition. American University International Law Review 23: 51–90. Laplante, Lisa J. 2007b. The process of the Peruvian Truth Commission’s historical memory project: Empowering truth tellers to confront truth deniers. Human Rights Journal, 6: 433–452. Laplante, Lisa J. 2008. Transitional justice and peace building: Diagnosing and addressing the socioeconomic roots of violence through a human rights framework. International Journal of Transitional Justice 2: 331–335. Laplante, Lisa J. 2009. Outlawing amnesty: The return of criminal justice in transitional justice schemes, 49: 916–984. Laplante, Lisa J. and Suzanne Spears. 2008. Out of the Conflict Zone: The Business and Development Case for Community Consent Processes in the Extractive Sector, Yale Human Rights & Development Law Journal 11: 69–116.

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Laplante, Lisa J. and Kimberly Theidon. 2007. When the truth is not enough: The politics of reparations in post-truth commission Peru. Human Rights Quarterly 29(1): 228–250. Lederach, John Paul. 1998. Building Peace: Sustainable Reconciliation in Divided Societies. United States Institute of Peace Press. Lederach, John Paul. 1995. Preparing for Peace: Conflict Transformation across Cultures (Syracuse Studies on Peace and Conflict Resolution). New York: Syracuse University Press. Levi, Primo. 1995. Survival in Auschwitz. New York: Touchstone. McAdams, Doug, Sidney Tarrow, and Charles Tilly. 1996. To map contentious politics. Mobilization 1: 17–34. Minow. Martha. 1999. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. New York: Beacon Press. Nordstrom, Carolyn. 1997. A Different Kind of War Story. Philadelphia: University of Pennsylvania Press. Oxenberg, Julie. 2003. The psychoanalysis of mourning, meaning, and not repeating: Themes of dialogue between descendents of Holocaust survivors and descendents of Nazis. Culture and Society 8(1): 77–83. Quinn Patton, Michael. 1982. Practical Evaluation. Newbury Park, CA: Sage Publications. Richardson, Louise. 2006. What Terrorists Want: Understanding the Enemy, Containing the Threat. New York: Random House. Rigby, Andrew. 2001. Justice and Reconciliation: After the Violence. Boulder, CO: L. Rienner Publishers. Robben, Antonius C. G. M. 2004. Political Violence and Trauma in Argentina. Pittsburgh: University of Pennsylvania Press. Robben, Antonius C. G. M. 2005. How traumatized societies remember: The aftermath of Argentina’s dirty war. Cultural Critique 59: 120–164. Sieber, Joan E., et al. (eds.). 1996. Research Ethics: A Psychological Approach. Lincoln, NE: University of Nebraska Press. Starn, Orin. 1999. Nightwatch: The Politics of Protest in the Andes. Durham: Duke University Press. Stover, Eric, and Harvey Weinstein (eds.). 2004. My Neighbor, My Enemy: Community in the Aftermath of Mass Atrocity. New York: Cambridge University Press. Theidon, Kimberly. 2001. “How we learned to kill our brother”: Memory, morality and reconciliation in Peru. In Sanchez, G., and Lair, E. (eds.). Buletin de L’Institut Franc¸ais ´ des Etudes Andines 3(29):539–554, Bogota, Colombia. Theidon, Kimberly. 2003a. Secuelas de la violencia: Violencia pol´ıtica y salud mental en Ayacucho. Un paso hacia la verdad: Memoria de la CVR Ayacucho. Comision ´ de la Verdad y Reconciliacion ´ Region ´ Sur Centro, Ayacucho, Peru. ´ Theidon, Kimberly. 2003b. Entre Projimos: Violencia y Reconciliacion ´ ´ en el Peru. ´ Ideele: Revista del Instituto de Defensa Legal, September, 157: 91–96. Theidon, Kimberly. 2003c. La Micropol´ıtica de la Reconciliacion: ´ Practicando la Justicia en Comunidades Rurales Ayacuchanas. Revista Allpanchis, special issue on Justicia Comunitaria en los Andes, 60: 113–142. Theidon, Kimberly. 2003d. Disarming the Subject: Remembering War and Imagining Citizenship in Peru. Cultural Critique, No. 54. 67–87. Theidon, Kimberly. 2004. Entre Projimos: el conflicto armado interno y la pol´ıtica de la ´ reconciliacion ´ en el Peru. ´ Instituto de Estudios Peruanos: Lima, Peru. ´

Commissioning Truth, Constructing Silences

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Theidon, Kimberly. 2006a. Towards a social psychology of reconciliation. In Fitzduff, M., and Stout, C.E. (eds.). Psychological Approaches to Dealing with Conflict and War. Praeger Press. Theidon, Kimberly. 2006b. Justice in transition: The micropolitics of reconciliation in postwar Peru. Journal of Conflict Resolution 50(3): 433–457. Theidon, Kimberly. 2007. Transitional subjects? The disarmament, demobilization and reintegration of former combatants in Colombia. International Journal of Transitional Justice 1(1): 66–90. Theidon, Kimberly. Intimate Enemies: Violence and Reconciliation in Peru. Stanford: Stanford University Press (forthcoming). Theidon, Kimberly. Histories of innocence: Post-war stories in Peru. In Shaw, Rosalind et al. (eds.). Localizing Transitional Justice. Stanford: Stanford University Press (forthcoming). Theidon, Kimberly and Paola Andrea Betancourt. 2006. Transiciones Conflictivas: Combatientes Desmovilizados en Colombia. An´alisis Pol´ıtico, Numero 58, Agosto-Diciembre. ´ Vitalis, Robert. 2006. The past is another country. In Perecman, E., and Curran, S.R. (eds.). A Handbook for Social Science Field Research: Essays & Bibliographic Sources on Research Design and Methods. Thousand Oaks, CA: Sage Publications. White, Hayden. 1987. The Content of the Form: Narrative Discourse and Historical Representation. Baltimore: Johns Hopkins University Press. Wilson, Richard. 1995. Maya Resurgence in Guatemala: Q’eqchi’ Experiences. Norman, OK: University of Oklahoma Press. Wilson, Richard. 2001. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge: Cambridge University Press. Wilson, Richard. 2005. Is the legalization of human rights really the problem? Genocide in the Guatemalan Historical Clarification Commission. In C ¸ ali, B. & Meckled-Garcia, S. (eds.). The Legalisation of Human Rights: Multidisciplinary Approaches. New York: Routledge. Yin, Robert K. 1989. Case Study Research: Design and Methods. Newbury Park, CA: Sage Publications. Zisk, B. 1998. The study of transformational politics: Participant observation and objectivity. In Woolpert, S. Slaton, C.D., & Schwerin, E.W. (eds.). Transformational Politics. Albany: State University of New York Press.

Epilogue The Words We Use: Justice, Human Rights, and the Sense of Injustice Laura Nader Were there no injustice, men would never have known the name of justice. – Heraclitus nearly 2,500 years ago

INTRODUCTION

In this epilogue, my interests lie in the taken-for-granted uses made of words to describe law-related phenomena – justice, injustice, human rights. In national and transnational contexts of power, the ambiguities embraced by words like justice, injustice, or human rights are often there for a purpose – the masking of imperial intent or power disparities that some might call recycled indirect rule. A favored concept may be selected as a distancing mechanism, or the use of a certain word may be the result of confusions. Others may select words to provoke debate in reference to concrete instances or to avoid confrontation by keeping the conversation abstract enough to keep within boundaries. In addition, words like justice may be used to differentiate between us and them, the virtuous and the wild animal, or good and bad scholarship. My professional interest in cultural anthropology lies in understanding the eye that sees, the mind that makes sense of ethnographic findings, and the controlling processes that mediate word use more generally. Simply put, the words we use to discuss law in the making of history often color the content of what we write while also shaping the possibilities for global research efforts to transform human relationships. The process by which words can be made to convey thought is far more complex than is ordinarily understood. To indicate the constraints imposed by justice as the concept of choice, I start this epilogue by summarizing a corpus of work written over several decades during which time I, the anthropologist/author, was invited to write about justice. Then, I introduce Edmond Cahn’s efforts to bring together the abstract and the concrete in his book The Sense of Injustice (1964), and indicate further what surveys reveal about academic 316

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preferences for the words justice, injustice, or human rights. Finally, I return to my two foreign field sites to query the utility of words like justice, injustice, or human rights for understanding changes during a period of war and rapid globalization. I conclude with a brief commentary – a nontheory of law and justice word use in an increasingly lawless world punctuated by technology and profit-motivated warfare. A CORPUS OF WORK: 1971–2007

In the fall of 1971, while a visiting professor at the Yale Law School, I received an invitation to attend a conference on injustice in Canada. I was taken aback because nobody had ever to my knowledge had a conference on injustice. Usually conferences are about justice, not injustice. I was intrigued, readily accepted the invitation, and presented an article titled “Perspectives on the Law and Order Problem” (Nader, 1974). I began my article in the following manner: As an academic concern, anthropologists have only rarely been interested in crosscultural descriptions of justice, and almost never interested in comparative conceptions of injustice. We have, until recently, described social and cultural systems as smooth-working affairs . . . I myself made a film (Nader, 1966) of people’s behavior in a Zapotec Indian law court which stimulated the comment from a Mexican anthropologist that Americans always look at life through a silver lining. It was this comment as well as the happenings in universities and in the world during the 1960s that stimulated me . . . to research the Zapotec sense of injustice . . . At the same time, my Zapotec studies silhouetted the injustices connected with the practices of law in twentieth-century America (Nader, 1974:65).

As my research networks expanded, I was to realize exactly how aberrant that first Canadian invitation had been. In the following year, I published another invited article, “Forums for Justice: A Cross-Cultural Perspective” (Nader, 1975), an essay that dealt with what people do when they feel they have been wronged and why, as well as what is done to them in relation to that wrong. I remarked that justice was a slippery concept, but that all societies have accepted ideas as to what is fair or just, and ethnocentrism probably reigns supreme in the area of justice. I told of a conversation with a fellow American anthropologist about the acceptable excuses for certain types of otherwise criminal or at least deviant actions that all societies have and noted that, in the United States, the insanity plea was such an excuse whereas in Mexico drunkenness was its functional equivalent. The anthropologist responded, “That goes against every grain of justice that I have in my body” (Nader, 1975: 153). Three years later, I was invited by the National Center for State Courts to write a piece called “Justice – A Woman Blindfolded?,” an article I wrote with Jane Collier

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(Nader and Collier, 1978). (We added the question mark.) We began by noting that broader socioeconomic contexts limit possibilities for access to court justice and, in speaking about two African societies, pointed out that women in less developed countries may have more access to forums such as courts than do their Western sisters and that courts in the developing nations are becoming less accessible as they come under the aegis of nation-state law. In other words, we argued that the relation of women to courts is elsewhere becoming more like that in the United States – inaccessible for the handling of problems of everyday life such as wife-beating, and indeed ineffective in changing the trend toward unequal pay for equal work (Nader and Collier, 1978: 203). In conclusion we noted that justice will continue to be personified as a woman blindfolded until we resolve two basic contradictions. On the one hand, American culture has long promoted ideologies of equality and protected fair and equal treatment in the courts. On the other hand, the repressive effect of a U.S. male-dominated economic system makes such equality impossible (Nader and Collier, 1978: 221). As the years passed, the injustices resulting from development models called attention to a bias in legal research – a bias that preferred justice talk rather than injustice talk. Development would bring prosperity, freedom, and justice. Even in the 1960s and 1970s we spoke about rights more commonly than injustice – civil rights, women’s rights, Native American rights, consumer rights, and more. By 1981, Public Broadcasting Service (PBS) with Terry Kay Rockefeller as producer launched a documentary film about my work. We called it Little Injustices: What happens outside of law affects what’s happening inside the judicial system, and you can’t look at one without looking at the other. You can’t understand consumer behavior without understanding production behavior. You can’t understand increased disrespect for law if you ignore the cumulative impact of little injustices (PBS, 1981: 27).

In industrialized societies, little injustices (the consequences of which are not often little) commonly go ignored and unresolved. However, the PBS-published interview with me ended on an optimistic note about the potential of America and the fact that we can have citizen-action groups in this country whereas in Eastern Europe or the Soviet Union there is less potential: They lacked, we do not. In 1986, I published an article on “Anthropology and Justice” with Andr´ee Sursock. Again this resulted from an invitation to participate in the volume Justice: Views From the Social Sciences (Cohen, 1986). On the first page of our article we noted that discussions of the idea of social justice include mention of injustice mainly when anthropologists are writing about inequality, as for example in the work of Gerald Berreman’s on caste and class (Berreman, 1960). However, the central notion that served as the organizing concept for this particular contribution was the idea that

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justice beliefs and behaviors (especially the justice motive) are universal phenomena, an idea that had been explored earlier by psychologists (Lerner, 1975; Lerner and Lerner. 1981).1 We also indicated that, although the justice motive may be universal, its meaning varies in different social and cultural settings, and even within one sociocultural setting, as if, for example, a society is ranked or stratified. Hence, Greek conceptions of justice that stress equality and harmony may be anathema to Koreans, for whom social life is vertically structured because of a denial of the intrinsic equality of all people. As Korean scholar Pyong-Choon Hahm (1967) noted, “The Western concept of justice is not an easy one to grasp . . . the Koreans followed the Confucian way of taking a man’s status and merits into account” (Hahm PyongChoon, 1967: 40). We concluded our survey by returning to the question of injustice: It is the realization that something is wrong, that something is unjust, that spurs ethnographic reports of cultural and personal genocide (e.g., Bodley 1975; Davis 1977; Heizer 1974). Yet ethnographic, concrete studies of injustice are even less tolerated in the American academic world than are ethnographic studies of justice, and for the same reason: Justice is seen as an ethnocentric concept that is not amenable to objective and analytical treatments (Nader and Sursock, 1986: 229).

In 1990, I once again was invited to write an article for a volume New Directions in the Study of Justice, Law and Social Control (Hepburn, 1990). My article dealt with “The Origin of Order and the Dynamics of Justice.” I began by noting that, throughout American political history, corrective justice (as with punishment) had often been opposed to distributive justice (as when people get their fair share in life). I argued that discourse that is centered on law and order or social justice does little more than sustain the status quo, whereas discussion of “injustice would force an examination of concrete events rather than abstract ideas and interrupt the oscillation between government programs to cure law and order problems and government programs to address questions of social injustice” (Nader: 1990a: 189). The central question of this chapter was a conceptual one – what type of discourse would work to produce social justice transformations. I continued: . . . discussions centering on order will not do because it is possible to have order without justice. It may also be true that discussions focusing on justice would not work to produce social transformations because a discussion of justice centers on 1

My colleague Katharine Milton recently called to my attention an interesting experiment by two scientists at the Yerkes National Primate Research Center, Emory University. Their report appears in Nature (vol. 425/18 September 2003) and is headlined “Monkeys reject unequal pay.” The authors, Sarah F. Brosnan and Frans B.M. de Waal, note that “Monkeys refused to participate if they witnessed a conspecific obtain a more attractive reward for equal effort, an effect amplified if the partner received such an award without any effort at all. These reactions support an early evolutionary origin of inequity aversion.” So monkeys have a sense of injustice.

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abstract ideals. Instances of injustices on the other hand, reveal the impediments to both order and justice . . . Advocates of law and order believe that order can be maintained by controlling deviants through enforcement machinery. Advocates of justice, however, pursue the same goal by ridding the system of inequities they deem unjust through the use of the courts or Congress. Supporters of both these positions utilize government social engineering to achieve their goals without having to alter the basic design of an industrial structure that hides the inequalities of income, race, gender, and age (Nader: 1990a: 190).

This essay basically sought to illustrate how discourse obfuscates issues of injustice, thereby not addressing the origin of law and order problems, thereby standing in the way of and obstructing social justice change. Nor had there been an adequate testing of assumptions: Is it true that more law enforcement automatically leads to more order or is it true that government programs for victims can permanently alter their positions in society? It was at this point that Edmond Cahn’s work (1964) entered my analysis, and led me to conclude that we need to change our vocabulary. Imagine a department of injustice, imagine law and order theorists becoming community breakdown theorists, imagine rights specialists becoming wrongs specialists, imagine justice philosophers becoming injustice specialists! It must be noted that, by 1990, along with an energetic group of undergraduate students, we had completed a decade-long study of how Americans complain, a study which necessitated that we focus on a citizen’s sense of injustice in dealing with consumer issues (Nader, 1980). There was nothing abstract about unsafe automobiles, contaminated food, building materials that cause long-term health problems, defective ovens that result in losing one’s home by fire, appliances that do not perform as advertised, warranties that are hollow, damage to health from undertested pharmaceuticals, and more. Although the complainants might in frustration bellow “there’s gotta be some justice somewhere,” it was the sense of injustice that motivated their actions. The PBS film Little Injustices based on this work sold to more than seventy-five countries. By now the access to justice movement had caught up with me, and I was again invited to Canada to speak about access to justice. My 1990 essay was titled “Processes of Constructing (No) Access to Justice (For Ordinary People).” The essay is dense and covers the complexities and uses of ideologies (hegemonies) in the politics of law. I concluded that the “Debates about legal reform divorced from political, social, and ideological backgrounds . . . are of limited value . . . What is missing in our thinking about justice is an explicit concern for citizens to express their sense of injustice. Discussion of justice leads to maintenance of the status quo, to treatment rather than prevention” (Nader 1990b: 513). Once again I urged “Imagine a department of injustice.” Two years later I was writing about trading justice for harmony.

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By 1992, the Alternative Dispute Resolution movement (ADR; which some critics see as an anti-law movement) was well underway. ADR enthusiasts made little to no use of the concept justice except perhaps in the use of terms such as “delivery of justice.” Little injustices by the 1990s were referred to as the “garbage cases.” More than 400 neighborhood justice centers appeared, yet despite mediators or arbitrators, resolution of controversies involving consumer goods were still inaccessible, ineffective, or unfair. ADR was geared to induce passivity, trading justice for harmony (Nader, 1992, 2002). THE SENSE OF INJUSTICE

The last article I wrote using the word justice in the title was published in 1993: “When is Popular Justice Popular?” It was published in a book that examined as a case study a community mediation center in San Francisco. I maintained that “popular justice” movements are not usually popular in the sense of being locally controlled or bottom-up in origin. Rather, they are movements that originate in centers of power and that try, after the fact, to connect with local populations for purposes of legitimacy and control. By now I was ready to articulate the manner in which controlling processes work in the alternative “justice” field in the United States and abroad, part of a broader strategy of minimizing conflict and maximizing order by managing interpersonal conflicts – rather than addressing root causes. Barbara Yngvesson (1989) referred to the arrival of “a professional therapeutic culture in the guise of popular culture.” I concluded my argument with the question Marc Galanter (1989) had asked: “What’s so good about settlements?” The uncritical celebration of harmony is at base acceptance of philosophies that have more to do with religious or ideological belief than with social justice. I was concluding that Alternative Dispute Resolution (ADR) was a pacification movement invented to quell the public interest movements of the 1960s and 1970s, a technique that has been used before in the United States to cool out protest (Auerbach, 1983). The uses being made of the concept “justice” were hardly benign, and most certainly not a remedy for injustices as defined by the bearers of injustices. When we speak of justice we are inclined to vague verbalisms such as harmony, which is more difficult to do when we speak about specific injustices or suffering. By 1994, I authored “‘Solidarity,’ Paternalism, and Historical Injustice: Development of Indian Peoples of Mexico,” a prelude to a study of how words and the law together are used to plunder the weak – hegemonic uses of the Rule of Law that we now argue are illegal (Mattei and Nader, 2008). I indicated earlier that the search for justice is a fundamental part of the human trajectory, although its meanings and contexts change. That is, feelings of wrong and right are ubiquitous, as are feelings of injustice. Such recognition is at the base of

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the argument that Edmond Cahn makes in The Sense of Injustice (1964) mentioned earlier. He implies that the sense of injustice is a biologic reaction combining both reason and empathy or the projection of one’s self onto others. For Cahn, the sense of injustice forms the basis of law, indeed makes possible the realization of justice through law. As in the quote from Heraclitus at the outset – “were there no injustice, men would never have known the name of justice,” Cahn proposes an “anthropocentric view of law” as a cure for legal abstractions or concepts that have engrossed legal philosophers at the expense of what is “vibrant, fleshy, and individual.” In other words, as with Heraclitus, we should begin with the sense of injustice: Where justice is thought of in the customary manner as an ideal mode or condition, the human response will be merely contemplative and contemplation bakes no loaves. But the response to a real or imagined instance of injustice is something quite different; it is alive with movement and warmth in the human organism . . . Nature has thus equipped all men to regard injustice to another as personal aggression . . . an indissociable blend of reason and empathy. It is evolutionary in its manifestations. Without reason it could not serve the ends of social utility, which only observation, analysis, and science can discern. Without empathy, it would lose its warm sensibility and its cogent natural drive . . . Is the sense of injustice right? Certainly not, if rightness means conformity to some absolute and inflexible standard . . . Blended as it is of empathy and reason, its correctness in particular cases will vary greatly, for how can we know that the intellect has understood and that projection has comprehended every last relevant factor?” (Cahn 1964: 13–14)

Cahn is as much poetry as legal philosophy. Yet, there is something useful for academics to learn here. The heart may be as necessary as the head for good scholarship, as was indicated with my own intellectual struggles with invitations to write about justice when what moved me to even think about justice was injustice. The title of Cahn’s book sparked an observation that, in the history of Western philosophical thought, justice is generally written and spoken about absent its opposite: injustice. Examinations of books on law and justice are usually absent specific mention of injustice as a concept, and Cahn explains why such absence is important to notice: Justice has been so beclouded as a concept by natural law writings that it almost inevitably brings to mind some ideal relation or static condition or set of perceptual standards . . . But the response to a real or imagined instance of injustice is something quite different: it is alive with movement and warmth in the human organism” (Cahn 1964: 1). In Cahn’s understanding “justice would not be a state, but a process, an action – the active process of remedying or preventing what would arouse the sense of injustice (Ibid).

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For Cahn, “justice or righteousness is the source, the substance and the ultimate end of law” (1964: 3). In a long and thoughtful review of Edmond Cahn’s Sense of Injustice (1964), Bruce Ledewitz (1985) observes: “There no longer seems to be a vision among lawyers that law can be a source of nourishment for society. The positivist vision of law – the will of the strong – dominates legal thinking. Even the liberals, ‘burnt-out’ and cynical in the light of legal realism, do not think of law as special.” Ledewitz goes on to note that in the mid-1980s . . . “the nature of a meaning for law that is beyond the service of power is not obvious . . . (especially) for our time, a time without commitment to justice in law . . . ” (Ledewitz, 1985: 281). When Cahn speaks of a sense of injustice, he is specific as to emotions evoked: “ . . . outrage, horror, shock, resentment, and anger, those affections of the viscera and abnormal secretions of the adrenals that prepare the human animal to resist attack” (Cahn 1964: 24). His is emotional rather than solely rational, active rather than passive, personal rather than abstract, injustice rather than justice. Ledewitz believes that in a time of breakdown of consensus about values, an emphasis on injustice can provide common ground for the betterment of the human condition” (Ledewitz, 1985: 284). Edmond Cahn was not really interested in concepts, but in the consequence of concepts that are static (as in justice) or active (as in injustice). There was more to life than the intellect; Cahn wants to prevent injustices from happening by focusing on the interconnectedness of human beings by means of empathy. In speaking of judges, Cahn recognizes that somewhere judges learned to ignore their consciousness when deciding cases, or worse to “read the law through bifocal spectacles, the upper lens being reserved for men of the white race” (1985: 134). Ledewitz concludes his reintroduction of Cahn’s work by reference to the law school experience, in particular the emphasis upon doctrine, its history, and its uses. He notes that law students “hunger for concrete reality” (1985: 325), while being deluged with the “inauthenticity of abstraction” (1985: 329). The various reviews of Cahn’s book by legal philosophers often indulge in contrasting various dimensions of the different schools of legal philosophy – natural law, positivist law, critical legal studies – most of which are outside the interest of this chapter. What I am mainly interested in is how the uses of an abstract concept like justice might have led to a static rather than an active result. I want to know whether there is any meaning in the bias for justice rather than injustice or, in contrast, for the merging of reason and empathy. Intuitively, I went to the anthropology library and asked for a count of titles from the University of California library catalogue – works with “justice” in the title and works titled with “injustice”. The first count for titles with “injustice” encompassed approximately 667 titles. Then the librarian made a count of titles with “justice” and the count was more than 8,800 items. The count for anthropology items was

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44 items with injustice, 912 for justice entries – approximately the same ratio as the original overall count. One learns what is acceptable language as a part of assuming membership in a peer group, and, needless to say, self-editing deletes disfavored words; words become signals of inclusion and exclusion, signals that have consequence because they may be used to distribute advantage or disadvantage in the scholarly world and beyond. Although there seems to be a preference for the word “justice,” the categories represented are almost mirror images of one another. There is criminal, juvenile, economic, racial, public, popular, social, international, and God’s justice. There is civil justice, justice halls, and equal, southern, organizational, restorative, distributive, global, environmental, collective, and color-blind justice. There are centers for justice, quests for justice, remaking justice, reason and justice, fighting for justice, the game of justice, and the struggle for justice. Titles with injustice include some of the same words – social injustice; gender and racial injustice; and economic, historical, global, popular, lethal, supreme, juvenile, American, essential, procedural, urban, military, revolutionary, and environmental injustice. In addition, we find stories of injustice; fugitive from injustice; fabric of, frontiers of, retreat from, harvest of, production of, profiles in, and struggle against injustice; injustice of the second Gulf War; and uprooting and systemic injustice. In the sections on legal philosophy there are approximately a dozen authors who use the word injustice in the title: economic injustice, structural injustice, greed and injustice, democracy and social injustice, injustice and restitution, and injustice of capital punishment. In the process of undertaking these rough surveys, I encountered an edited volume, Justice and Injustice in Law and Legal Theory (Sarat and Kearns, 1996) – a selection that at the outset makes the point, “From Plato to Derrida,” discourse about law and justice has been conducted in abstract and general language producing “elusive, if not illusory” notions of justice (Sarat and Kearns, 1996: 3). Cahn’s observations made several decades ago about the need for reason and empathy in thinking about justice and injustice deserve our attention today. In reviewing my work on the subject of justice and injustice, I omitted mention of the one article I had written with the concept of human rights in the title – “In a Woman’s Looking Glass – Normative Blindness and Unresolved Human Rights Issues” (Nader, 1999). Following up on Cahn’s notion of a sense of injustice, I examined the best human rights literature of the time to test my intuitions about the field of human rights as being full of ethnocentric “universalisms.” Unfortunately, my sense of outrage was more than justified by much of the literature. At the outset of “In a Woman’s Looking Glass – Normative Blindness and Unresolved Human Rights Issues,” I note that we needed more human rights activists today than ever, but cautioned that such people needed to be activists who are part of a world citizenry, people “who are alert to the speed of technological

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impact, the centralization of power and its impersonal aspects as reflected in warring at a distance” (Nader, 1999: 61). The unresolved issues of the declaration of human rights were issues that made way for a more inclusive framework for human rights, including views from the margins – from the so-called third and fourth worlds and from the world of women. I also called attention to a new site for human rights work – a wildly out of control corporate commercialism. Human rights violations were not only governmental. My outlook was comparative – one that required looking in the mirror from the start. That in turn required honing an awareness of the role that Euro-American human rights activists were playing. I argued that, for a leap forward in human rights work to happen, we needed a broad-gauged philosophy about human suffering, one that cuts across positions that are at cross-purposes. Interestingly, my original invitation came from an anthropologist convening a conference on human rights and Islamic women with articles to be published in a conference book. That did not happen. I then sent the article to a recommended human rights publication, but the editor thought the article did not fit their format. At precisely that moment, I was invited to submit it to a Brazilian journal (Horizontes Antropol´ogicos; Nader, 1999), and it was published in a special issue almost immediately. It deserves mention that, in the process of surveying the human rights literature, I ran across several publications by third world women who were also critiquing both the ethnocentrism of the human rights literature as well as barriers to publication in dominant publications on human rights. At the time, human rights activism was in large measure a hegemonic project, Euro-American mostly. It is fair to say that by 2008 the language of human rights had lost its initial power mainly, as critics note, because prospective universality became tainted. After the Cold War, the United States began pursuing imperial goals using high toned humanitarian discourse. For many first world scholars today, human rights stands as an ideology to mask the goals of empire, particularly in the current wars in Iraq and Afghanistan. “Whose human rights?” is a question pursued by ethnographers of the subject (Goodale and Merry, 2007). Hannah Arendt and others have argued that humanitarian efforts could lead to violation of rights as well as their defense. After all, George W. Bush’s war was floated as a human rights cause. So too Western feminists supported wars in both Afghanistan and Iraq as a way of availing Islamic women of “human rights” (Hirschkind and Mahmood, 2002). In other words, human rights as a concept is even more entangled with imperial causes than either justice or injustice perhaps. Having emerged with the growth of nongovernmental organizations of the 1970s, human rights agendas are increasingly both national and corporate, a most unfortunate transformation because human rights organizations are still a source of hope and idealism among well-meaning do-gooders. The words we use are doubleedged. They have an emotional charge, which may be one reason why scholars prefer the abstract, the world of ideas and not the world of practice.

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Interestingly, excavations of precursors to the contemporary human rights movement often make reference to the use of fiction as a way to see one’s fellow humans as worthy of empathy, as, for example, in the novel of Joseph Conrad’s Heart of Darkness. Philosophers also deal in the imaginary when writing about justice, however. Take John Rawl’s A Theory of Justice (1999), which over time spawned a virtual justice industry. Many commentators note that John Rawls is concerned with “ideal theory,” one that generates “realistic utopias.” His accounts are utopian insofar as they do not reflect any existing arrangements, and realistic insofar as they are possible given what we know about human nature (Brown, 2000: 126). Rawls employs a fictional “social contract.” In The Law of Peoples (1999), he even identifies a fictional example of a “hierarchical” society that still protects basic human rights and is peaceful and calls it “Kazanistan.” It is a decent society even though there is no fair equality of opportunity and it is not a perfectly just (according to Rawls) or a liberal society. As Chris Brown points out in his review article, “one of the most important impacts of Rawls on international relations and the study of international ethics might be to relegitimate the construction of utopias – always assuming that they are ‘realistic utopias,’ and that the mistake of taking ‘what might be’ as a description of ‘what currently is’ is not repeated” (Brown, 2000: 132). In another commentary, Thomas Nagel (1999) notes, “As is always the case with philosophy, Rawls’s direct influence is almost entirely intellectual . . . in any case, he is self-consciously ahead of his time, engaged in what he calls ‘realistic utopianism,’ or the imagination of human possibilities which, when properly described, will give us something to aim at” (Nagel, 1999: 37). Nagel also tells us that Rawls’s concern is with social justice issues, that his dominant concerns have always been the injustices associated with race, class, religion, and war. Black slavery is his paradigm of injustice – much like that of Edmond Cahn. The warmth and outrage of recognizing an injustice, however, does not lend itself to imagined communities, abstract and mathematically constructed societies. Strategies for working with the words we use differ, and, for Edmond Cahn, there are consequences: “Contemplation bakes no loaves.” CONCRETE INSTANCES

Irrespective of whether we agree politically or not, after reading John Rawls’s first edition of A Theory of Justice (1971), I felt repulsion – where are the concrete instances? Ethnographers go there, participant observe by living there, leaving, and returning, recording what happens. Two places where I worked as an anthropologist have been in my mind of late – Oaxaca, Mexico (the Rincon ´ Zapotec) and south Lebanon (the Shia Muslims). Both places were at peace when I first entered to do fieldwork – in 1957 among the Rincon Zapotec and in 1961 among the Shias of Libaaya in Lebanon.

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My work involved the collection of concrete cases of disputes and their resolution or lack thereof. Both peoples worked the land and mainly married within the villages (although they had networks that extended far beyond their places). During the summer of 2006, I journeyed to the Rincon ´ with anthropologist Roberto Gonzalez, who had also worked there and authored Zapotec Science (2001), and photographer and videographer, Kike Arnal, who was to record with us on video the changes that have transpired since 1957. Oaxaca City during the summer of 2006 was in the midst of a rebellion that erupted with the mishandling of a teacher’s strike by the present governor, but we made it to the Rincon ´ by bus in a matter of six hours – short in comparison to the eighteen-hour trip by jeep and the three- to four-hour walk at the end of the road in 1957. In 1957, the villagers were pressing the government for a road and, with the aid of the Paploapan Commission, helped build one. What changes did we find? Many, all related to social justice issues, but injustice was what people spoke about. The road was supposed to allow the Rinoceros to take their plentiful produce out. Instead, by way of the North American Free Trade Agreement (NAFTA), produce (primarily corn that undersold the local producers) came in. Tilling the land is not economically feasible anymore; as a result, many campesinos go North. The diet changed; junk food is abundant. Village government also changed. No longer were the dispensers of justice in the local courts citizens selected to do their social service as part of their contribution to the community. They are now paid officials on the state payroll. As the saying goes, he who pays the piper calls the tune. Morale is low, especially among persons who had hoped and worked for progress or improvements. A self-sufficient village is losing knowledge necessary for self-sufficiency. Meanwhile, in Oaxaca City, the Popular Assembly of the Peoples of Oaxaca (APPO) was formed. Hundreds of organizations with varying issues came together from areas of community development, cooperative production, health and social services, human rights, women’s rights, indigenous rights, and political action labor unions. People began to contemplate their relationships with the state based on indigenous Oaxacan understanding of collective responsibility and customary law as when group needs conflict with individual wants. Their Assembly is to be a basis not just for “oppositional politics,” but rather for the juridical refounding of a new state form. Development for them was not supposed to mean loss of autonomy and increased dependence. By summer 2007, the Popular Assembly once again returned to the streets to regain control of the summer Oaxacan folklore fiesta. The state government was now indebted to Coca Cola for sponsorship. Once again the streets are bloodied. In Lebanon, the story was much bloodier. By 1982, the Shias in south Lebanon abandoned the traditional use of their legal system of justice, based principally on mediation when solving conflicts over land and water. As the Israelis had invaded

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the south, I was unable to return to my field site for reasons of health and safety. In dealing with the 1982 Israeli invasion and the eighteen-year occupation and plunder of topsoil and water that followed, force superseded mediation. In Libaaya, local justice traditions were of little use in stopping the Israelis during their invasion and occupation. A resistance movement grew, and Hezbollah emerged to defend the people of south Lebanon from illegal expropriation and daily kidnapping. There was no Hezbollah before the Israeli invasion. Resistance to injustice at the hands of the Israelis failed at the national and international levels, but the words had changed. Resistance is now called terrorism by the international media. Neither justice nor injustice were on onlookers’ lips in 1982, during the eighteen-year occupation, or after the Israeli bombing during the summer of 2006; the terrorism trap prevailed. The aftermath of cluster bombs raised little sense of injustice or outrage resulting from empathy for which Edmond Cahn might have hoped, except for animals that were airlifted to the American southwest to be out of harm’s way. International lawyers did not come to the rescue with measures of justice – at least not yet. Human rights advocates played a minimal role. During the summer of 2007, the same filmmaker who accompanied me to Oaxaca left for south Lebanon to document measures of damage from the Israeli bombing and to see if the town of Libaaya still existed, and in what form. What is an anthropologist of law and justice to do with these ends of story? TOWARD A NONTHEORY OF LAW AND JUSTICE

Somewhere between large-scale movements and the resistance or vulnerability of individuals lies the work of the anthropologist/ethnographer. We are in a privileged position to bring a critical approach to a jurisprudence of injustice. We can put familiar facts together in unfamiliar ways and thus provoke thought about fundamentals. Is there anything more fundamental to what makes humans human than ideas of right or wrong? The preceding assessment makes it clear that one common function of justice theories is to provide justification for an orderly and just world. The most interesting aspect of the work of anthropologists today is that we bring back into fashion a concern with right and wrong. This concern is especially important in this early part of the twenty-first century, when the speed at which people are living and hearing about what terrible things are happening all over the world at one time could deaden even the most compassionate. There is something to the idea that a radically different framework is transforming public cultures as to what is just and what is unjust. Slowly and gradually, the injustices of the world are being shared by victims worldwide and globally, beyond specific cultures – communication technologies are developing faster than scholars can keep up. The Oaxacan Popular Assembly – composed of indigenous peoples,

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teachers, and working people – wants new juridical institutions that are fair according to their ideas of fairness. The world condemns unilateral war in Iraq by protesting in multiple sites worldwide. World opinion is surfacing regarding occupation in Palestine; water pollution in China and India; and depleted uranium or cluster bombs in Iraq, south Lebanon, and elsewhere. Anthropologists have a responsibility to spread understanding of injustices that lead to violence that the common American citizen might think comes from nowhere. The question “Why do they hate us?” should never have been asked had we done our job in classrooms, in the op-ed pages, and in our writings. When our work brings into fashion a concern with right and wrong, we give reason for the emotional connotations that follow from protest, riot, and organizing. In writing this concluding chapter, it became clear to me that academic interest in justice is symbolic, providing hope for the present by celebrating an ideal. In a sense, conferences and the volumes that result are rituals, places where myths are strengthened and ambiguities nourished. Cahn’s approach argues that it is energizing to use one’s emotion, in addition to reason, when working on injustice. Injustice has been a motivating factor in my own work. In contrast, John Rawls played by the rules of the game, kept it abstract, but got a whole industry going on questions of justice. The anthropologist is, however, in the best place – we can use all of this knowledge, break disciplinary boundaries, borrow from whoever and whatever sharpens our understanding, and contribute to new ordering principles. Look at what has been accomplished by the words “war on terror.” How about a “war on injustice?” ACKNOWLEDGMENTS

I am especially grateful to our master librarian Suzanne Calpestri of the George and Mary Foster Anthropology Library for her help with this chapter. References Auerbach, Jerold S. 1983. Justice Without Law? New York: Oxford University Press. Berreman, Gerald. 1960. Caste in India and the United States. American Journal of Sociology 66: 120–127. Brosnan, Sarah F. and Frans B.M. de Waal. 2003. “Monkeys reject unequal pay,” in Nature, Vol. 425: 18 September. Brown, Chris. 2000. John Rawls, “The Law of the Peoples,” and International Political Theory. Ethics and International Affairs 14: 125–132. Cahn, Edmond. 1964 (1949). The Sense of Injustice – with a personal epilogue by the author. Bloomington: Indiana University Press. (First published NY: New York University Press, 1949). Cohen, R. (ed.). 1986. Justice: Views from the Social Sciences. New York: Plenum Publishing Corporation.

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Galanter, Mark. 1989. “Judges and the Quality of Settlements.” Working Paper, Center for Philosophy and Public Policy, University of Maryland, March. Gonzalez, Roberto J. 2001, Zapotec Science – Farming and Food in the Northern Sierra of Oaxaca, Austin: University of Texas Press. Goodale, Mark and Sally Engle Merry (eds.). 2007. The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge: Cambridge University Press. Hahm, P.C. 1967. The Korean Legal Tradition and Law: Essays in Korean Law and Legal History. Seoul, Korea: Hollym. Hepburn, J. (ed.). 1990, New Directions in the Study of Justice, Law and Social Control New York: Plenum Publishing Company. Hirschkind, Charles and Saba Mahmood. 2002. Feminism, the Taliban and the politics of insurgency. Anthropological Quarterly 75(2): 339–354. Ledewitz, Bruce S. 1985. “Edmond Cahn’s Sense of Injustice: A Contemporary Reintroduction,” Journal for Law and Religion 3, No. 2, pp. 277–330. Lerner, M.J. 1975. The justice motive in social behavior. Journal of Social Issues 31 (Summer): 1–19. Lerner, M.J. and S. Lerner. 1981. The Justice Motive in Social Behavior: Adapting to Times of Scarcity and Change. New York: Plenum Press. Nader, L. 1966b. To Make the Balance. (Film distribution, University of California Extension). Nader, L. 1974. Perspectives on the law and order problem. In Lerner, M. and Ross, M. (eds.). The Quest for Justice: Myth, Reality, Ideal. Holt, Rinehart and Winston of Canada. pp. 65–81. Nader, L. 1975. Forums for justice – a cross-cultural perspective. Journal of Social Issues, The Justice Motive in Social Behavior, M. Lerner (ed.), 31(3): 151–170. Nader, L. 1980. No Access to Law – Alternatives to the American Judicial System. New York: Academic Press. Nader, L. 1981b. Film: Little Injustices – Laura Nader Looks at the Law. Odyssey Series PBS. Nader, L. 1990a. The origin of order and the dynamics of justice. In Hepburn, J.R. (ed.). New Directions in the Study of Justice, Law, and Social Control. New York: Plenum Publishing Corporation. pp. 189–206. Nader, L. 1990b. Processes of constructing (no) access to justice (for ordinary people). In Windsor Yearbook of Access to Justice, University of Windsor, Ontario. pp. 496–513 (Summer). Nader, L. 1992. Trading justice for harmony. Forum (National Institute for Dispute Resolution) 12–14 (Winter). Nader, L 1993e. “When is Popular Justice Popular?” In S. Merry and N. Milner, eds. The possibility of Popular Justice. Ann Arbor: University of Michigan Press, pp. 435–451. Nader, L. 1994. ‘Solidarity,’ Paternalism, and Historical Injustice: Perspectives on the Development of Indian peoples of Mexico. PoLAR (Political and Legal Anthropology Review). Minority Rights, Legal Fights. A. Karadasidau (ed.), 17(2), 97–103 (November). Nader, L. 1999. In a Woman’s Looking Glass – Normative Blindness and Unresolved Human Rights Issues.” (Portuguese title: “Em um espelho de mulher: cegieira normative e questioes nˆas – resolvidas de direitos humanos.”) Horizontes Antropologicos 10: 61–82. Special Issue ´ on “Cidadania e Diversidade Cultural.” Nader, L. 2002. The Life of the Law: Anthropological Projects. Berkeley: University of California Press.

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Nader, L. and J. Collier. 1978. Justice – A woman blindfolded? In Hepperle, W. and Crites, L. (eds.). Women in the Courts. Williamsburg, VA: National Center for State Courts. pp. 202–221. Nader, L. and A. Sursock. 1986. Anthropology and justice. In Cohen, R.L. (ed.). Justice: Views from the Social Sciences. New York: Plenum Publishing Corporation. pp. 205–233. Nagel, Thomas. The law of peoples, with the idea of public reason revisited. New Republic. October 25, 1999. Rawls, John. 1999 (1971). A Theory of Justice, revised ed. Cambridge: Belknap Press, Harvard University. Rawls, John. 1999a. The Law of Peoples. Cambridge: Harvard University Press. Sarat, Austin and Thomas Kearns (eds.). 1996. Justice and Injustice in Law and Legal Theory. Ann Arbor: University of Michigan Press. Yngvesson, Barbara. 1989. Inventing law in local settings: Rethinking popular legal culture. Yale Law Journal 98: 1689–1709.

Index

Access to justice movement, 320 Aceh conflict, 231–232, 233–234, 236–237 Acholi people. See Uganda Adelman, Madelaine, 38 Adoption, transnational. See Transnational adoption ADR (Alternative Dispute Resolution), 320–321 Afghanistan, US military engagement in, 23, 248–249 Africa. See also specific nation amnesty in, 109–110 bilateral immunity agreements, 107–108, 128 implementation of Rome Statute in African Union, role of, 128 enabling laws, 113 generally, 16–17, 106–108 justice and, 108–112 national courts and, 113 NGOs, role of, 124–127 problems with, 127–129 prospects for, 127–129 ratification of Rome Statue, level of, 112–113 recommendations regarding, 129–130 international criminal tribunals in, 106–107 peace agreements in, 109–111 African Charter on the Rights and Welfare of the Child, 98–99 African Court on Human and People’s Rights, 125, 126 African Union, 119, 128 Aggression, 128 AIDS, 137 Allen, Tim, 158–159, 212, 213 Alternative Dispute Resolution (ADR), 320–321 Amara, Muhammad, 194

American Anthropological Association, 171 Amnesty, 109–110, 210–212 Amnesty International, 191 Amsterdam Treaty (1997), 274 Annan, Kofi, 73, 111, 210–211 Anthropological approach to law advocacy of, 172–173 ethnographic approach, 172 importance of, 31–32 injustice, scholarly focus on, 328–329 universalism versus relativism, 171–174 Arbour, Louise, 75, 76 Archibald, Steven, 215 Arendt, Hannah, 325 Aretxaga, Begona, 222 Argentina, reconciliation in, 308 Arnal, Kike, 327 Asquith, Herbert, 279 Bank Information Center, 135 Bannon, E.J., 258, 259, 260 Bashir, Omar Hassan Ahmad al, 121–123 Bauman, Zygmunt, 63 B´edi´e, Henri Konan, 69 Bemba Gombo, Jean-Pierre, 124 Berman, Nathaniel, 276 Berman, Paul Schiff, 36–37 Berne Union, 35 Berreman, Gerald, 318 Bhabha, Homi, 54, 56–58 Bigombe, Betty, 114, 157 Bilateral immunity agreements, 107–108, 126, 128 Biological and Toxin Weapons Convention (BTWC), 267–268 Biological racism, 59

333

334

Index

Biological weapons Japan and experiments on, 254–255 use of, 255–257 Nuremberg Trials and, 264 Tokyo War Crimes Trial, exclusion of evidence at (See Tokyo War Crimes Trial) Biya, Paul, 83 Bl´e Goud´e, Charles, 78, 81, 86 Bockarie, Sam, 81, 223 Bombet, Emile, 69 Bongo, Omar, 83 Boraine, Alex, 109 Borer, Tristan Anne, 301 Bottom-up lawmaking approach to international law, 35 Bourdieu, Pierre, 272 Boziz´e, Franc¸ois, 123 Brown, Chris, 326 BTWC (Biological and Toxin Weapons Convention), 267–268 Bulgaria minorities treaties and, 279–284 Roma, racism against, 47–48, 49–50 Bush, George W., 325 Cahn, Edmond, 24, 316–317, 320, 321–323, 324, 326, 328, 329 Campbell, Tom, 90 “Candidate universals,” 173–174, 186 Cecil, Robert, 279 CEDAW. See Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) Central African Republic, ICC investigation of, 123–124 Chase, Anthony, 191, 192, 202, 204, 205 Chayes, Abram, 33 Chayes, Antonia, 33 Chemical Weapons Convention (CWC), 267, 268 Chen, Won Kwei, 256, 258 Chiang Kai-shek, 260 Child soldiers, 161 Chile, reconciliation in, 308 China Japanese aggression against biological weapons experiments on, 254–255 use of, 255–257 Nanking attacks, 254

transnational adoption in, 102–103 World Bank and, 136 Chirac, Jacques, 72, 84 Churchill, Winston, 256 Cicero, 87, 95 Clarke, Kamari, 28–29, 143, 161, 210, 273 Claude, Inis, 270, 285–286 Coalition of the International Criminal Court (CICC), 125, 126 Cobban, Helena, 212 Cohen, Stanley, 46, 50, 62–63 Collectif 95 Maghreb-Egalit´e, 194 Collier, Jane, 317–318 Combe, Juliet, 193 Commissions of Inquiry regarding Cote ˆ d’Ivoire, 76–78 Compliance justice and, 39–40 problems in, 30–31 reasons for, 32–33 Congo. See Democratic Republic of the Congo (DRC) Connolly, William E., 3 Conrad, Joseph, 325–326 Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) culture and, 205 generally, 7 Islam and, 19, 193, 194 Morocco, Mudawwana reform in, 196 World Bank and, 136 Convention on the Rights of the Child (CRC) African Charter on the Rights and Welfare of the Child compared, 98–99 China and, 102–103 Ethiopia and, 101 fairness and, 91 generally, 15–16, 89 justice and, 90 legal pluralism in, 96 ratification of, 98 Western bias in, 94 Corrective justice, 319 Cote ˆ d’Ivoire atrocities in, 71–73 civil war in, 69–70, 84–85 “cocoa war,” 68–69 death squads in, 71–72 economic boom in, 67–68 France, relationship with, 72, 82–84

Index human rights abuses, threat of prosecution as deterrent to Commissions of Inquiry, 76–78 diplomacy and, 81–84 generally, 15, 67–70, 85–86 ICC investigation, 78–79 internal sense of justice, effect of, 70 international criminal tribunals, 80–81 judicialization of politics, 74–76 “naming and shaming,” 78 national courts, in, 79–80 polarized public sphere, discourse in, 70–74 Security Council sanctions, 78 human rights groups in, 73 “Ivoirit´e,” 69 paternalism in, 68 peacekeepers in, 70 xenophobia in, 69–70 Coutin, Susan, 12 Cowan, Jane, 21–22 Crane, David, 211 CRC. See Convention on the Rights of the Child (CRC) Crimes against humanity Darfur, in, 119–123 DRC, in, 119 ICC jurisdiction over, 106 importance of punishing, 113 Critical theory, 278 Cultural racism, 59 CWC (Chemical Weapons Convention), 267 Czech Republic, racism against Roma in, 48–49 Dacoury-Tabley, Benoˆıt, 72 Dacoury-Tabley, Louis, 72 Darfur conflict, 119–123 Davis, Madeleine, 308 Dembour, Marie-B´en´edicte, 14–15 Democratic Republic of the Congo (DRC) Armed Forces (FARDC), 119 child soldiers in, 161 Congr`es National pour la D´efense du People (CNDP), 119 Forces Patriotiques pour la Lib´eration du Congo (FPLC), 119 ICC referrals, 117–119 National Integrationist Front (FNI), 119 Patriotic Resistance Force in Ituri (FRPI), 119 Union of Congolese Patriots, 117 UN Mission in Congo (MUNOC), 118 Distributive justice, 96, 319

335

Dju´e, Eug`ene, 78, 86 Domestic violence, 31 Doolittle raid, 253–254, 257 Dozon, Jean-Pierre, 74 DRC. See Democratic Republic of the Congo (DRC) Drexler, Elizabeth, 21 Drumbl, Mark, 18, 153–154, 159, 161–162, 166, 167 Dumont, Louis, 186 East Timor, violence in, 237–238 ECHR. See European Court of Human Rights (ECHR) Economic Community of West African States (ECOWAS), 83 “Emptiness” of justice, 210 Englund, Harri, 8 Errington, Frederick K., 185 Espeland, Wendy, 141 Ethiopia, transnational adoption in, 100–102 European Convention on Human Rights adoption of, 45–46, 63 Article 2, 47, 50 Article 3, 50, 51 Article 5, 50 Article 6, 51 Article 10, 51 Article 17, 51 East/West dichotomy in, 52 European Court of Human Rights (ECHR) admissibility of cases in, 55–56 burden of proof in, 48, 60 denial of racism in abhorrence of racism, due to, 50 biological racism, 59 cultural racism, 59 East-West dichotomy and, 52–54 generally, 14–15, 46–47, 63–64 hidden racism, 59–60 importance of acknowledging racism, 61–63 indirect racism, 49 lateness of case law acknowledging racism, 47 orientalism and, 51–54 postcolonialism and, 54–58 responsibility of naming racism, 58–61 social and cultural denial, 46–47 sources of denial, 46 reputation of, 45–46 statistical evidence, use of, 48–49 Eyadema, Gnassingb´e, 83

336

Index

Fanon, Frantz, 56–57 Feary, Richard A., 264 Fell, Norbert, 263–264 Ferme, Mariane, 216 Fiji, coups in, 34–35 Fink, Carole, 276 Finnstrom, ¨ Sverker, 222 Fiqh, 192 Fornah, Kande, 219–220 Fornah, Marie, 220 Fornah, Pa Pawa, 218 Foucault, Michel, 88 France, relationship with Cote ˆ d’Ivoire, 72, 82–84 Franck, Thomas, 33 Franco, Francisco, 308 Frankenberg, Ruth, 55 Fraser, Nancy, 278, 286 Friedman, Thomas, 9 Fujimori, Alberto, 295–296, 297, 298, 302, 303, 306, 310 Gacaca courts, 167 Galanter, Marc, 321 Garc´ıa, Alan, 310 Gates, Scott, 300–301 Gbagbo, Laurent, 68, 69, 71–72, 73, 74, 76–77, 79–80, 81, 83–84 Gender equality, World Bank and, 136 Geneva Conventions, 305 Geneva Protocol (1925), 250–251, 265, 267–268 Genocide Darfur, in, 119 ICC jurisdiction over, 106 importance of punishing, 113 Geographies of international law Africa, implementation of Rome Statute in. See Africa Cote ˆ d’Ivoire, threat of prosecution as deterrent to human rights abuses in. See Cote ˆ d’Ivoire ECHR, denial of racism in. See European Court of Human Rights (ECHR) generally, 14–17 transnational adoption. See Transnational adoption World Bank, internal conflict over human rights approach in. See World Bank Germany Nuremberg Trials. See Nuremberg Trials war crimes in, 251, 252 Gewertz, Deborah B., 185

Global legal pluralism approach to international law, 35–38 Golbre, Nancy, 89 Goldsmith, Jack, 74–75 Golunsky, S.A., 262 Gonzalez, Roberto, 327 Goodale, Mark, 28–29, 143, 210, 273 Governmentality, transnational adoption and, 88–90 Grandin, Greg, 308 Greece, minorities treaties and, 279–284 Grillo, Ralph, 60 Gue¨ı, Robert, 69, 71, 83 Guillemin, Jeanne, 21 Guzm´an, Abimael, 296, 306 Gypsies. See Roma Hague Convention on Intercountry Adoption China and, 102–103 Ethiopia and, 101 generally, 15–16, 89 India and, 102 justice and, 91–92 ratification of, 98 Romania and, 96–97 Western bias in, 94 Hahm, Pyong-Choon, 319 Harun, Ahmed, 121 Hassan II (Morocco), 196 Havel, Vaclav, 274 Headlam-Morley, James, 279 Hegel, G.W.F., 187, 278 Henkin, Louis, 30 Heraclitus, 322 Hern´andez-Truyol, Berta Esperanza, 11 Heryanto, Ariel, 240, 243 Hibridity, 54 Hidden racism, 59–60 High Commissioner on National Minorities (HCNM), 273–274 Hill, Edwin V., 264 Hinga Norman, Sam, 211, 223 Hirohito (Japan), 253 Hiroshima bombing, 249 Hirsch, Susan, 18, 50 HIV, 137 Honneth, Axel, 186–189, 278, 286 Houphou¨et-Boigny, F´elix, 68–69, 74, 83 Howell, Signe, 15–16 Hsiang, C.C., 258, 260 Huli people. See Papua New Guinea

Index Humala, Ollanta, 309–310 Human rights Cote ˆ d’Ivoire, human rights abuses in. See Cote ˆ d’Ivoire Indonesia, weakness in, 240–241 injustice, scholarly focus on, 324–326 Morocco, Mudawwana reform in, 204 Peru, loss of human rights by “subversives,” 306 religion and, 195 shari’ah and, 192–195, 200–206 source of justice, as, 28–29 transnational adoption and, 95 Uganda, human rights abuses against Acholi people in, 155–156 World Bank approach to. See World Bank Human Rights Watch, 116, 135, 163, 164, 191, 217 IACHR (Inter-American Court of Human Rights), 39, 297 ICC. See International Criminal Court (ICC) ICTR (International Criminal Tribunal for Rwanda), 107, 149 ICTY (International Criminal Tribunal for the Former Yugoslavia), 149, 210–211 IMTFE (International Military Tribunal for the Far East). See Tokyo War Crimes Trial India, transnational adoption in, 102 Indirect racism, 49 Indonesia Aceh conflict, 231–232, 233–234, 236–237 Ad Hoc Human Rights Tribunal, 237 “clean environment letters,” 240 Commission for Truth and Friendship (CTF), 237–238 Commission for Truth and Reception (CAVR), 237 democratization in, 240 historical narratives of mass violence in accountability, lack of, 242 acquiescence in false narratives, 241–242 generally, 21, 229–230 “master narrative” of army saving country from communists, 234, 240, 245 neutrality, lack of, 241 opposition to entrenched interests, 240 political nature of, 238–239 problems in constructing, 245 reluctance to challenge, 243 “scientific history,” 232–234, 239–240, 243–244 social paranoia and, 234–235, 238, 244–245

337

“horizontalization” of violence in, 236 human rights, weakness of, 240–241 Indonesian Armed Forces (TNI), 237–238 Maluku conflict, 230–233, 238, 241 national courts, weakness of, 242–243 New Order Regime, 234 provocations of violence in, 235–237 tsunami in, 237 Injustice, scholarly focus on anthropology and, 328–329 bias in favor of focus on justice anthropology, in human rights, in, 324–326 legal philosophy, in, 323, 324 legal research, in, 318 scholarly literature, in, 323–324 concrete examples, 326–328 emotion and, 323 empathy and, 323 ethnocentrism and, 317, 318–319 generally, 23–24, 316–317 harmony and, 321 “non-theory” of law and justice, 328–329 scholarly background, 317–321 women and, 317–318 Inter-American Court of Human Rights (IACHR), 39, 297 International Campaign for Tibet, 138 International Center for Transitional Justice, 163 International Commission of Inquiry on Darfur, 119 International Criminal Court (ICC) Africa, implementation of Rome Statute in (See Africa) Central African Republic, investigation of, 123–124 chemical weapons and, 268 Cote ˆ d’Ivoire, investigation of, 78–79 discretion of, 111–112 DRC referrals, 117–119 jurisdiction of, 106 Office of the Prosecutor (OTP), 111–112 Sudan, indictments in, 119–123 Uganda, investigation of, 114–117 victimology, approach to, 149–151 International Criminal Tribunal for Rwanda (ICTR), 107, 149 International Criminal Tribunal for the Former Yugoslavia (ICTY), 149, 210–211 International Military Tribunal for the Far East (IMTFE). See Tokyo War Crimes Trial

338 International Union of Credit and Investment Insurers, 35 Interpretive pluralism, 143–144 Iraq, US military engagement in, 23, 248–249 Islamic Council, 193–194 Islamic jurisprudence, 192. See also Shari’ah Ivison, Duncan, 2–3 Ivory Coast. See Cote ˆ d’Ivoire Jackson, Michael, 222 Jackson, Robert, 14 Japan biological weapons experiments on, 254–255 use of, 255–257 Doolittle raid, 253–254, 257 Nanking attacks, 254 prisoners of war, treatment of, 253–254 Tokyo War Crimes Trial. See Tokyo War Crimes Trial Jews League of Nations minorities treaties and, 276 Nuremberg Trials and, 253 Josephides, Lisette, 185 Jus cogens, 38–39 Kabbia, Bai, 221 Kalyvas, Stathis N., 298 Katanga, Germain, 119 Kearns, Thomas, 143 Keck, Margaret E., 34 Keenan, Joseph, 253, 258, 259 Kelsall, Tim, 308 Kennedy, David, 276 Kenya bilateral immunity agreements, 126 International Crimes Bill 2005, 126–127 International Crimes Bill 2008, 127 Kenya National Commission on Human Rights, 125–126, 127 NGOs, role of, 124–127 ratification of Rome Statute, 124–127 Khanu, Moses, 216, 218 Kibaki, Mwai, 126 Kieffer, Guy Andr´e, 79 King, Peter Z., 255, 256, 257–258, 259 Kiyoshi, Kawashima, 262 Koh, Harold Hongju, 33, 34 Kohn, Hans, 274 Kony, Joseph, 116, 156, 157

Index Koskenniemi, Martti, 20–21, 37 Kouakou, Bertin Fofi´e, 78 Kushayb, Ali, 121 Kymlicka, Will, 2, 277–278 Laplante, Lisa, 22–23 Lawrence, Stephen, 56 League of Nations civil servants, role in minorities treaties, 284 failure, stigmatization as, 272 minorities treaties civil servants, role of, 284 critical theory and, 278 culture, importance of, 277 debate regarding, 275 East-West dichotomy in, 274, 278 generally, 21–22, 270–273, 285–286 Jews and, 275 justice versus security, 277–278 linguistic problems, 281–282 minority status, problems in determining, 280 NGOs, role of, 282–283 orientalism in, 274 peace and security as basis of, 278 petitioners, 282 “privileged” status of minorities under, 280–281 problems in, 279 recognition theory and, 278 reemergence of concepts, 273–274 scholarly neglect of, 276–277 scholarly reexamination of, 275–276 self-determination as basis of, 278–279 semantic problems, 281 sovereignty and, 279–280 unintended consequences of, 274–275 WILPF, role of, 283–284 Lebanon, sense of injustice in, 327–328 Ledewitz, Bruce, 323 Legal pluralism Convention of the Rights of the Child, in, 96 global legal pluralism approach to international law, 35–38 interpretive pluralism, 143–144 transnational adoption and, 94–98 Leopold II (Belgium), 57 Levit, Janet Koven, 35 Lim, Robert, 256 Liu Institute for Global Issues, 158, 159 Lloyd George, David, 279

Index Local practices as source of justice, 29 Lome Peace Accord, 217 London Charter, 251–252 Lubanga Dyilo, Thomas, 117–119 MacArthur, Douglas, 249, 253, 263–264, 265 Macartney, C.A., 278, 279 Macedonians, minorities treaties and, 279–284 Macher, Sofia, 304–305 Macpherson Report, 56 Madonna, 97 Malawi, transnational adoption in, 97 Malinowski, Bronislaw, 38, 176 Maluku conflict, 230–233, 238, 241 Mamdani, Mahmood, 81–82 Mani, Lata, 55 Mani, Rama, 212 Mato Oput, 116–117, 157–159, 160 Maurer, Bill, 12 Mauss, Marcel, 176, 189 Mayer, Ann Elizabeth, 192 Mazower, Mark, 275–276 McGovern, Mike, 15 Mead, G.H., 187 Melanesia. See Papua New Guinea Memory and history generally, 20–23 Indonesia, historical narratives of mass violence in (See Indonesia) injustice, scholarly focus on. See Injustice, scholarly focus on League of Nations minorities treaties. See League of Nations Peru Truth and Reconciliation Commission. See Peru Tokyo War Crimes Trial, exclusion of evidence of biological weapons at. See Tokyo War Crimes Trial Menson, Michael, 55–56 Merry, Sally Engle, 6–7, 11, 93, 142, 200–201, 205, 285 Mexico Popular Assembly of the Peoples of Oaxaca, 327 sense of injustice in, 327 Michailides, Iakovos D., 281–282 Miller, Peter, 89 Milosevic, Slobodan, 75 Minorities treaties. See League of Nations “Minority states” linguistic problems, 281–282

339

minority status, problems in determining, 280 “privileged” status of minorities in, 280–281 semantic problems, 281 Mirror metaphor, 6–13, 168 Mitterand, Franc¸ois, 83 Modirzadeh, Naz K., 191, 192, 202, 203, 204, 205, 206 Mohammed, 192, 204 Mohammed IV (Morocco), 196, 197 Moi, Daniel Arap, 125–126 Montesinos, Vladimiro, 296, 297, 303 Moore, Sally Falk, 36 Moreno-Ocampo, Luis, 3–4, 79, 114, 122, 149 Morocco complementarity and gender, 195–196, 199 Democratic Association of Women’s Rights (ADFM), 201 Democratic League of Women’s Rights, 194 economic dependence of women in, 199–200 equality and gender, 194–195, 196, 199 Justice and Development Party (PJD), 195, 199, 201 Mudawwana reform adoption of, 196 balancing in, 200–202 coexistence of opposing viewpoints, 203–204 complementarity and, 195–196, 199 enforceability, 200 equality and, 196, 199 generally, 19, 191–192 historical background, 196–197 international human rights and, 204 overcoming ambivalence toward, 202–203 wilaya, 197–199, 200, 204–205 Organization for the Renewal of Female Consciousness, 195 Plan of Action for the Integration of Women in Development, 196–197, 199, 204 Socialist Left Group, 198–199 Socialist Union of Popular Forces (USFP), 198–199 Morrow, Thomas H., 257–258 Mounir, Omar, 205 Movimiento Revolucionario Tupac Amaru ´ (MRTA). See Peru Mudawwana reform. See Morocco Muke, John, 184 Munu, Adama, 221 Murray, Gilbert, 284 Museveni, Yoweri, 155

340

Index

Nabudere, Dani, 109 Nader, Laura, 23–24 NAFTA (North American Free Trade Agreement), 327 Nagasaki bombing, 249 Nagel, Thomas, 326 Nanking attacks, 254 Narratives and justice generally, 17–20 Morocco, Mudawwana reform in. See Morocco Papua New Guinea, relationalist position in. See Papua New Guinea Sierra Leone, postconflict justice in. See Sierra Leone victims deserving of global justice. See Victims deserving of global justice National Center for State Courts, 317–318 Neu, Joyce, 157 Ngudjolo Chui, Mathieu, 119 Niezen, Ronald, 29 9/11 attacks, 248–249 Nixon, Richard M., 266 Nongovernmental organizations (NGOs) implementation of ICC, role in, 124–127 Kenya, role in, 124–127 minorities treaties, role in, 282–283 Uganda, role in, 117 North American Free Trade Agreement (NAFTA), 327 Norway postcolonialism and, 57 transnational adoption in, 92 Ntaganda, Bosco, 119 Nuclear weapons, 249 Nuremberg Trials biological weapons and, 264 generally, 248, 249, 252 Jews and, 253 “peace versus justice” dichotomy and, 211, 212 O’Brian, Adam, 129–130 Odinkalu, Chidi, 127–128 Office of the Prosecutor (OTP), 111–112 Olugbuo, Benson Chinedu, 16–17 Orentlicher, Diane, 167 Organisation for Security and Cooperation in Europe (OSCE), 273–274 Organization of African Unity (OAU), 98 Orientalism, 51–54, 274 Osamu, Hatara, 259–260

Ouattara, Alassane, 69, 74 Overview, 1–24 Oxfam, 135 Paniagua, Valent´ın, 297 Papua New Guinea “Compo Girl” case, 182–186 “head payment,” 183 Huli people bridewealth system, 180–182 gift-giving and exchange among, 180–181 “passenger women,” 180, 182 sex work among women, 180, 182 relationalist position in centrality of relationships, 175 generally, 18–19, 174–175 gift-giving and exchange, 176–177 innateness of relationships, 175–176 justice and, 177–178 multiple kinds of relationships, necessity of, 187 mutuality, 187–188 quality of relationships, assessment of, 188 Western tradition compared, 186–187 Urapmin people dispute resolution among, 178–180 gift-giving and exchange among, 178–180 relationships, centrality of, 179–180 restorative justice, 179 village courts, 178, 180 Patass´e, Ange-F´elix, 123 Peace agreements, 109–111 Pedersen, Susan, 275 Penfold, Peter, 209, 213–214, 222 Permanent Court of Justice, 276 Peru armed conflict in, 294–296 Association of Families of Political Prisoners of Peru, 301–302 loss of rights by “subversives” effect on attempt at reconciliation, 307–308 human rights, 306 members of paramilitary groups contrasted, 306–307 political organization, 306 reparations, exclusion from, 307 ´ Movimiento Revolucionario Tupac Amaru (MRTA), 291, 300–306, 307, 310 National Coordinator of Human Rights, 309 National Emergency and Reconstruction Plan, 295

Index reparations in, 304, 307 Sendero Luminoso (SL), 291, 292, 294–295, 300–306, 307, 310 success against terrorism in, 293 Truth and Reconciliation Commission creation of, 297 defining “terrorism,” 293–294, 298–300 dualism in, 293 exclusion of testimony of “subversives,” 298, 300–304 Final Report, 291–292, 300, 301, 302–303, 304, 305 generally, 22–23, 291–294, 310–311 misconstrual of “terrorism” by, 300 Ombudsman’s Information Center, 301, 302 operation of, 297 recommendations of, 292 unresolved problems in, 309–310 Pluralism. See Legal pluralism PNG. See Papua New Guinea Pollitzer, Robert H., 255–256, 258, 259 Postcolonialism, 54–58 Pragmatism versus purism, 140–143, 210, 211–212 Prisoners of war in Japan, treatment of, 253–254 Public Broadcasting Associates, 318, 320 Purism versus pragmatism, 140–143, 210, 211–212 Qur’an, 192, 204 Racism biological racism, 59 cultural racism, 59 ECHR, denial in. See European Court of Human Rights (ECHR) hidden racism, 59–60 indirect racism, 49 Rajagopal, Balakrishnan, 36 Ramcharan, Bertrand, 76–77 Rawls, John, 109, 326, 329 Reagan, Ronald, 34 Recognition theory of justice, 186–189, 278 Relationalist position in Papua New Guinea. See Papua New Guinea Relativism versus universalism, 171–174 Religion culture contrasted, 204–205 human rights and, 195 source of justice, as, 29 Republic of the South Malukus, 230–233, 238, 241 Retributive justice, 167

341

Retta, 101–102 Richards, Paul, 215 Richardson, Louise, 299 Risse, Thomas, 34 Robbins, Joel, 18–19 Robinson, Mary, 135 Rockefeller, Terry Kay, 318 Roma racism against, 47–50, 51, 53 World Bank and, 136 Romania, transnational adoption in, 96–97 Rome Statute. See also International Criminal Court (ICC) Africa, implementation in. See Africa chemical weapons and, 268 Kenya, ratification in, 124–127 Roosevelt, Eleanor, 1 Roosevelt, Franklin D., 256 Ropp, Stephen C., 34 Rose, Nikolas, 89 Russia HIV/AIDS Control Project, 137 Tokyo War Crimes Trial, biological weapons and separate trials in Soviet Union regarding, 261–263 Soviet silence on, 261–263 Rwanda gacaca courts in, 167 International Criminal Tribunal for Rwanda (ICTR), 107, 149, 210–211 Ryiochi, Naito, 263 Sachs, Jeffrey, 9 Said, Edward, 51–52, 54 Sankoh, Foday, 81, 216, 223 Sarat, Austin, 143 Sarfaty, Galit, 17 Saudi Arabia, World Bank and, 136 SCSL. See Special Court for Sierra Leone (SCSL) Security Council Cote ˆ d’Ivoire, sanctions against, 78 Resolution 1593, 121 Sendero Luminoso (SL). See Peru Sesay, Fatu, 219 Sesay, Sallu, 220–221 Shari’ah colonialism, as opposition to, 193 human rights and, 192–195, 200–206 sources of, 192–193

342 Shaw, Rosalind, 19–20 Shiro, Ishii, 254, 255, 257, 258, 259, 260, 261, 262, 263 Shohat, Ellat, 54–55 Sierra Leone amputees in, 220–221 Civil Defense Forces (CDF), 217 civil war in, 216 failed state, as, 222–223 historical background, 215–216 Inter-Religious Council, 218 local justice in, 215 “Operation No Living Thing,” 217–218 postconflict justice in “culture versus justice” dichotomy, 210–213 fatalism and, 213–215, 222 forgiveness and, 213–215, 217–221, 222–223 generally, 19–20, 209–210, 223 “peace versus justice” dichotomy, 210–213 religion and, 213–215, 217–221 Revolutionary United Front, 216, 217–218 slavery and, 215–216 Special Court for Sierra Leone (SCSL) accountability in, 223 Cote ˆ d’Ivoire, impact on, 80–81 generally, 209 indictments by, 223 Truth and Reconciliation Commission, relationship with, 211, 216–217, 218–219 Truth and Reconciliation Commission accountability in, 223 SCSL, relationship with, 211, 216–217, 218–219 violence in, 216–217 Sikkink, Kathryn, 34 Slaughter, Anne Marie, 33 Slavery, 215–216 Social capital, 142 Soeharto, 234, 245 Sources of justice, 28–30 South Africa international law and, 32 Truth and Reconciliation Commission, 210, 212 ubuntu, 212 Sovereignty international law and, 32 League of Nations minorities treaties and, 279–280

Index Soviet Union. See also Russia Tokyo War Crimes Trial, biological weapons and separate trials regarding, 261–263 silence on, 261–263 Spain reconciliation in, 308–309 transnational adoption in, 92 Special Court for Sierra Leone (SCSL) accountability in, 223 Cote ˆ d’Ivoire, impact on, 80–81 generally, 209 indictments by, 223 Truth and Reconciliation Commission, relationship with, 211, 216–217, 218–219 Special National Criminal Court on the Events in Darfur, 120 Speed, Shannon, 8, 172 Spivak, Gayatri, 54 St. Lucia, HIV/AIDS Prevention and Control Project, 137 Stevens, Siaka, 216 Strathern, Marilyn, 175, 184, 185–186 Subalternity, 54 Sudan African Union Mission in Sudan (AMIS), 120–121 Darfur conflict, 119–123 ICC indictments, 119–123 Justice and Equity Movement (JEM), 119 Special National Criminal Court on the Events in Darfur, 120 Sudan Liberation Army/Movement (SLA/M), 119 UNAMID, 121 Sunna, 192 Sursock, Andr´ee, 318 Sutton, David Nelson, 258–259, 260, 261 Taylor, Charles, 73, 81, 85, 86 Taylor, Telford, 253 Tejan Kabbah, Ahmad, 217, 220 Theidon, Kimberly, 22–23 “Thickening,” 173–174 Thompson, Arvo, 258, 259, 260 Tokyo War Crimes Trial biological weapons, exclusion of evidence of acquiescence of other countries, 260–261 consequences of, 265–268 generally, 21, 248–251 immunity deal, 263–265

Index procedural history, 257–261 Soviet Union and separate trials regarding, 266 silence on, 261–263 US national security interests, due to, 248, 249–251 exemptions from, 252 London Charter and, 251–252 origins of, 248 US control over, 252–253 Toledo, Alejandro, 291, 301–302 Tomio, Karazawa, 262 Transitional justice, 109 Transnational adoption autonomy and, 97–98 best interests of child, 97–98 China, in, 102–103 control by receiving countries, 93–94 different perspectives toward, 103–104 distributive justice and, 96 Ethiopia, in, 100–102 future trends, 103 generally, 15–16, 87–88 governmentality and, 88–90 growth in, 92–93 Hague Convention. See Hague Convention on Intercountry Adoption human rights and, 95 India, in, 102 justice and, 90–92 lack of resonance of, 104 legal pluralism and, 94–98 Malawi, in, 97 Norway, in, 92 reactions by donor countries, 100 reasons for, 95 Romania, in, 96–97 sensitivity to, 97 Spain, in, 92 state, role in child welfare, 88–90 Transnational legal process approach to international law, 33–35 Treaty of Amsterdam (1997), 274 Truman, Harry S., 265 Truman Doctrine, 264 Truth and Reconciliation Commissions focus of, 297–298 Peru (See Peru) Sierra Leone, 211, 216–217, 218–219, 223 South Africa, 210, 212 Tutu, Desmond, 210, 212

343

Ubuntu, 212 UDHR. See Universal Declaration of Human Rights (UDHR) Uganda Acholi people human rights abuses against, 155–156 ICC investigation and, 114, 157 Mato Oput and, 116–117, 157–159 “peace versus justice” dichotomy, 212–213 Amnesty Commission, 114, 157 child soldiers in, 161 ICC investigation of, 114–117 Lord’s Resistance Army, 114–117, 155–156 Mato Oput, 116–117, 157–159, 160 NGOs, role of, 117 Ugandan People’s Defense Forces (UPDF), 156 United Kingdom Department for International Development, 132 racism and postcolonialism in, 55–56 United Nations Children’s Fund, 132 Development Program (UNDP), 132, 136, 218 High Commissioner for Refugees (UNHCR), 133 Security Council Cote ˆ d’Ivoire, sanctions against, 78 Resolution 1593, 121 Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, 298–299 United States bilateral immunity agreements, 107–108, 126, 128 Central Intelligence Agency, 264 domestic violence in, 31 international law and, 32 National Security Act, 264 nuclear weapons, use of, 249 Universal Declaration of Human Rights (UDHR) colonialism/racism and, 63–64 Islamic Council on, 193–194 jus cogens in, 39 justice and, 90–91 universalism and, 29 Universal Islamic Declaration of Human Rights, 193–194

344

Index

Universalism Islam and, 193–194 versus relativism, 171–174 source of justice, as, 29 University of California–Berkeley, 163 Urapmin people. See Papua New Guinea Vasiliev, A.N., 262 Venizelos, Eleftherios, 280 Vernacularization of justice, 150–152 Victims deserving of global justice basis of normative justice, as, 167–168 child soldiers, problems regarding, 161 conceptual challenges, 161–162 contradictions involving approaches to, 167 criminal law approach, shortcomings of, 153 empirical evidence, need for, 154–155 generally, 18, 149–152 ICC approach, 149–151 importance of studying, 153 individuals versus groups, problems involving, 161–162 international law approach collective nature of atrocities, failure to address, 153 cultural understanding, lack of, 153 local justice approach advocacy of, 150–152 assessment of, 155–161 questioning of, 166–167 mirror metaphor and, 168 problems defining, 152–153 recovery by victims, difficulty in establishing, 162–166 retributive justice and, 167 vernacularization of justice, advocacy of, 150–152 Victor, Joseph, 264 Vienna Convention on the Law of Treaties, 38–39 Village law, 38–39 Vincent, Robin, 209, 213, 214, 223 Waitt, Alden, 264 Wako, Amos, 127 Waldorf, Lars, 167 War crimes Darfur, in, 119–123 DRC, in, 119 Germany, in, 251, 252 ICC jurisdiction over, 106 importance of punishing, 113

Tokyo War Crimes Trial. See Tokyo War Crimes Trial Wardlow, Holly, 180, 181, 182 “War on Terror,” 23, 248–249 Webb, William, 253, 260 Werbner, Pnina, 61 Wilson, Richard A., 2, 20, 171–172, 213, 308 Wilson, Woodrow, 279 Wolfensohn, James, 135 Wolfowitz, Paul, 139 Women’s International League for Peace and Freedom (WILPF), 283–284 World Bank Articles of Agreement, 133–134 Board of Executive Directors, 134, 135 Country Policy and Institutional Assessments, 136 Critical Development Thinking Group, 138–139 ethics in, 133 Friday Morning Group, 138 gender equality and, 136 global legal pluralism and, 37 HIV/AIDS and, 137 human rights approach, internal conflict over beyond scope of organization, as, 134 difficulty of addressing, 134 generally, 17, 131–132 interpretive pluralism and, 143–144 purism versus pragmatism, 140–143 rephrasing of human rights, 139–140 selective nature of approach, 136–138 taboo toward human rights, 132–135 Human Rights Indicator Project, 131, 134–135, 140 Indigenous Peoples Policy, 136 Legal Department, 131, 134–135 Measuring Justice Initiative, 131, 134–135, 140, 144 “mission creep” in, 142 Western China Poverty Project, 138 World Trade Organization (WTO), 37 Yngvesson, Barbara, 12, 321 Yoshijiro, Umezu, 255, 257, 261, 262, 265 Young, Amy, 19 Young, Iris Marion, 277 Yugoslavia International Criminal Tribunal for the Former Yugoslavia (ICTY), 149, 210–211 minorities treaties and, 279–284