Oslo Summer School in Comparative Social Science Studies 2004


 

Truth, Reconciliation and Justice
in Democratizing Countries

Dates: 2. - 6. August 2004

Lecturer: Professor Richard A. Wilson,
Director of Human Rights Institute,
University of Connecticut , USA

The participants:
Ghada Al Dasooqi, Girmachew Alemu Aneme, Rewend Bedhi, Russell Everett, Altin Fuga, Jemima García-Godos, Elin Anne Gunleiksrud, Jeroen Heethaar, Asle Jøssang, Merli Kallas, Kari Anette Lindemann, Zvika Orr, Kari M. Osland, Jochen Peters, Stefano Recchia, Majid Takht Ravanchi, Britta Weiffen, Shanti Nandana Wijesinghe, Christian Wlaschütz, Xisheng Zhang, Magdalena A. Zolkos and Professor Wilson
 

•  Objectives

The aim of this course is to examine the politics of truth, reconciliation and justice in democratizing countries of Africa and Latin America . How does a country deal with the perpetrators of gross human rights violations and provide proper redress to victims? Even before that, how is it decided who is a victim, or how guilt should be attributed? We begin some foundational discussions of human rights and justice and examine the way in which the Nuremberg trials established crimes against humanity and individual human rights in international law. The Cold War froze the advances of Nuremberg and was characterized by internal conflicts that targeted civilian non-combatants. Amnesty laws came in the wake of these internal conflicts and in response, truth commissions were established to provide some record of the violations of the past.

 

We evaluate the ability of Truth and Reconciliation Commissions to write a definitive truth of the authoritarian era and to contribute to building the rule of law. We compare the South African experience with that in Latin America, where the room for maneuver of truth commissions has been more limited. The course concludes by examining the increasing role of international human rights tribunals, especially the International Criminal Court and the UN Criminal Tribunals on Rwanda and the former Yugoslavia .

•  Basic Readings*

* Please obtain basic readings and read in advance of the lectures.

  • Robertson, Geoffrey (1999) Crimes Against Humanity , NY: Penguin.
  • Barahona de Brito, Alexandra et al (eds.) (2001) The Politics of Memory , Oxford : Oxford University Press.
  • Minow, Martha (1998) Between Vengeance and Forgiveness , Boston : Beacon Press.
  • Wilson, Richard A. (2001) The Politics of Truth and Reconciliation in South Africa , Cambridge : Cambridge University Press.

•  Lecture Outline and Corresponding Readings

The course is divided into 3 parts, with 20 lecture topics. The topics have references to readings for each topic discussed. The readings marked with � are included in the booklet the participants receive prior to the course.

 

 

PART I: BASIC PRINCIPLES AND HISTORY

Topic One

Vengeance or Forgiveness?

What are the kind of choices that successor governments make in dealing with past atrocities and should these prioritize justice for victims or forgiveness in the interests of democratic consolidation? Yet perhaps this phrased the questions in too ideal terms: transitional justice is often heavily shaped by deals and compromises made by the outgoing elite and the incoming politicians.

Readings :

  • Minow, Martha (1998) Between Vengeance and Forgiveness , Boston : Beacon Press, Chapter 1, "Introduction", and Chapter 2, "Vengeance and Forgiveness", pp. 1-24.
  • Barahona de Brito, Alexandra et al (eds.) (2001) The Politics of Memory , Oxford : Oxford University Press, "Introduction", pp. 1-39.

Topic Two

What are Human Rights?

Before we can evaluate the strategies adopted to deal with victims and perpetrators in democratizing countries, we have to have a sense of what human rights actually are. Are they absolute individual rights which cannot be trumped, or are they more political privileges and claims? Are they based in a universal ethics, or in a historically constituted set of circumstances? On the basis of these questions, we can get closer to forming a view on the role of human rights during transition from authoritarian rule.

Readings :

  • Robertson, Geoffrey (1999) Crimes Against Humanity , NY: Penguin, Chapter 1, "The Human Rights Story", pp. 1-34.
  • �Ignatieff, Michael (2001) Human Rights as Politics and Idolatry , Chapters 1-2, "Human Rights as Politics", pp. 3-52.

Topic Three

What is Justice?

Before we can judge whether a transitional regime is creating the rule of law and a democratic system of justice, we have to ask what are the parameters of liberal democratic justice? How can we understand authoritarian justice and seek to create a more accountable alternative?

Reading :

  • �Popper, Karl (1962) The Open Society and Its Enemies , Vol. 1, The Spell of Plato , NY : Routledge, Chapter 6, "Totalitarian Justice", pp. 86-119.

Topic Four

Nuremberg and 'Crimes Against Humanity'

The modern human rights movement begins at the Nuremberg trials in 1945-6 where members of the Nazi High Command were prosecuted. These trials established the legal basis of prosecution of state officials for 'crimes against humanity' and sent a message that 'Never Again' would authoritarian be allowed to massacre their own populations with impunity. Of course, it didn't quite work out like that and genocide in places like Guatemala and Bosnia and Rwanda did take place, but the trials at least sowed the seeds of a movement which would grown in strength in the latter half of the C20.

Readings :

  • Minow, Martha (1998) Between Vengeance and Forgiveness , Boston : Beacon Press, Chapter 3, "Trials", pp. 25-51.
  • Robertson, Geoffrey (1999) Crimes Against Humanity , London : Penguin, Chapter 6, "An End to Impunity? " pp. 203-242.

Topic Five

Political Violence During the Cold War: Civilians Under Fire

More people were killed in wars during the Cold War than during the whole of WWII, and most of these were civilians. How can we understand the prevalence of war in the Cold War period? How did the massive levels of civilian deaths shape the modern human rights movement?

Readings :

  • Robertson, Geoffrey (1999) Crimes Against Humanity , NY: Penguin, Chapter 2, "The Post-war World" pp. 35-79.
  • Ignatieff, Michael (1999) The Warrior's Honour , London : Random House, Vintage, Chapter 3, "The Narcissism of Minor Difference", pp. 34-71.

Topic Six

US Foreign Policy During the Cold War

Samantha Power asserts that the US stood by in the C20 while genocide took place in Armenia , in Cambodia and in Bosnia - how can we understand US foreign policy towards mass atrocities in other countries?

Reading :

  • �Power, Samantha (2002) A Problem From Hell. America and the Age of Genocide , NY: Basic Books, pp. XI-XXI, 503-516.

 

PART II: TRUTH COMMISSIONS AND MAKING THE BEST OF IMPUNITY

Topic Seven

Is Amnesty International?

During this week we will look at the vexed and complicated relationship between amnesties for human rights offenders in national laws and in international human rights convenants. We will see how various authors have sought to justify or reject amnesty by appealing to international law. Is it right to hope that the progressive trend is towards seeing national amnesties as illegitimate? Did amnesties in Latin America facilitate the transition to, and consolidation of, democracy?

Reading :

  • Roht-Arriaza, Naomi and Gibson, Lauren (1998) "The Developing Jurisprudence on Amnesty", Human Rights Quarterly , Vol. 20, No. 4, pp. 843-885.

Topic Eight

Truth Commissions: General

Human rights talk has emerged as the dominant discourse of democratization in countries emerging from authoritarian rule such as South Africa , Chile , Argentina and Guatemala . They co-exist in such contexts with popular conceptions of justice, which as we've seen earlier, can be profoundly vengeful. A common response to the need to both consolidate civilian rule and yet also deal with the human rights violations of the past has been to set up a 'truth commission'. Usually these involve an investigative team which produces an official account of the past, yet this emergence of 'truth' is not often accompanied by criminal prosecutions. Instead, all new civilian governments in the countries mentioned above have made amnesty decrees. We will ponder the questions: Do truth commissions create reconciliation? Are truth commissions a substitute for justice or are they complementary?

Readings :

  • Minow, Martha (1998) Between Vengeance and Forgiveness , Boston : Beacon Press, Chapter 4, "Truth Commissions", pp. 52-90.
  • �Hayner, Priscilla B. (2001) Unspeakable Truths: Confronting State Terror and Atrocity , London : Routledge, Chapters 1-3, pp. 1-31.
  • Robertson, Geoffrey (1999) Crimes Against Humanity , NY: Penguin, Chapter 7, "Slouching Towards Nemesis", pp. 243-284.

Topic Nine

Truth Commissions: Latin America

Many of the Latin American truth commissions occurred earlier than that in South Africa [e.g. Argentina 1986, El Salvador 1993 and Guatemala 1998] and were the template upon which the TRC was built. However, human rights commissions in Latin America operated in a much less politically conducive and democratic environment given the continued power of the military. Also, commissions had much fewer legal powers than in South Africa and for instance, could not grant amnesty. For this reason, some [e.g., El Salvador and to an extent, Guatemala ] were administered by the UN because of the weakness of civilian regimes. Nevertheless, some produced important and insightful accounts into the political violence. One could also argue that their very weakness freed them from the trappings of law, allowing them to pursue a version of the past which incorporated more the experience of victims and which led to a single explanatory account of the conflict.

Readings :

  • �Ensalaco, Mark (1994) "Truth Commissions for Chile and El Salvador : A Report and Assessment", Human Rights Quarterly , Vol. 16, pp. 656-675.
  • Panizza, Francisco (1995) "Human Rights in the Processes of Transition and Consolidation of Democracy in Latin America ", Political Studies , Vol. 43, pp. 168-188.
  • Barahona de Brito, Alexandra et al (eds.) (2001) The Politics of Memory , Oxford : Oxford University Press, Chapter 4, "Truth, Justice, Memory and Democratization in the Southern Cone", pp. 119-160.

Topic Ten

Truth Commission: Guatemala

Reading:

  • Barahona de Brito, Alexandra et al (eds.) (2001) The Politics of Memory , Oxford : Oxford University Press, Chapter 5, "War, Peace and Memory Politics in Central America ", pp. 161-189.

Topic Eleven

Public Hearings of the South African Truth and Reconciliation Commission

Reading :

  • �Bozzoli, Belinda (1998) "Public Ritual and Private Transition: the Truth Commission in Alexandra Township, South Africa 1996", African Studies , Vol. 57, No.2., pp. 167-195.

Topic Twelve

Reconciliation and Revenge in South Africa

Reading :

  • Wilson, Richard A. (2001) The Politics of Truth and Reconciliation in South Africa , Cambridge : Cambridge University Press "Human Rights and Nation-Building" and Reconciliation Through Truth", pp. 1-27 and 97-121.

Topic Thirteen

Justice in Germany and Post-socialist Eastern Europe

Reading :

  • Borneman, John. (1997) Settling Accounts: violence, justice and accountability in postsocialist Europe , Princeton : Princeton University Press, Chapter 7, "Justice and Dignity", pp.111-135.

 

PART III: ACCOUNTABILITY AND INTERNATIONAL JUSTICE

Topic Fourteen

The Pinochet Extradition Proceedings

In 1998, the former Chilean military dictator General Augusto Pinochet came to Britain to have an operation on his bad back at a Harley Street clinic in London . A Guardian journalist reported his presence in the country and the Spanish prosecutor Garzón applied for an extradition order to bring him to Spain to face charges of gross human rights violations during his rule in Chile . Thus began a long and complex legal process in the UK, which established the important legal precedent that heads of state do not have sovereign immunity from prosecution for repressive acts (such as torture) they committed which are not considered legitimate acts of a head of state. What are the long term implications of the Pinochet case for the extension of the jurisdiction of international human rights?

Readings :

  • Robertson, Geoffrey (1999) Crimes Against Humanity , London : Penguin, Chapter 7, "The Case of General Pinochet", pp.368-400.
  • Woodhouse Diana. (ed.) (2000) The Pinochet Case: a legal and constitutional analysis , Portland , Oregon : Hart Publishing, Chapter 5, "Pinochet and Issues of Morality and Justice", pp.81-92.

Topic Fifteen, part 1

UN Tribunals: The Balkans

For many years lawyers argued that human rights were not primarily legal ideas, but were fanciful forms of wishful thinking, since there was no international mechanism to enforce them. Human rights are both aspirations of civil rights movements and social movements, as well as legal instruments, since they have always been beholden to national legal systems. At the end of the twentieth century, and primarily in response to the events in the former Yugoslavia and Rwanda, human rights started to have legal teeth as international tribunals were set up under the auspices of the United Nations to pursue perpetrators of egregious violations. These tribunals set many precedents, from convicting the first head of state for genocide to declaring that rape is a crime against humanity under international law.

Readings :

  • �Forsythe, David (2000) Human Rights in International Relations , Cambridge: Cambridge University Press, Chapter 4, "International Criminal Courts", pp.84-109.
  • Robertson, Geoffrey (1999) Crimes Against Humanity , NY: Penguin, Chapter 8, "The Balkan Trials", pp. 285-323.

Topic Fifteen, part 2

Can Tribunals Write Proper Histories of the Past? Genocide in Srebrenica

Reading :

  • Wilson paper to be sent to students by email after lecture

Topic Sixteen

UN Tribunals: Rwanda

Reading :

  • �Mamdani, Mahmood (2001) When Victims Become Killers: colonialism, nativism and genocide in Rwanda , Princeton : Princeton University Press, Chapter 7, "The Civil War and the Genocide", pp. 185-233.

Topic Seventeen

A Critique of Global Justice

For some, human rights are an imposition of western norms on weaker states in the developing world. In this view, global justice institutions do not represent a positive way of furthering the global rule of law and fairness, but amount to a kind of neo-colonialism, where powerful countries like the United States hold the rest of the world to standards that they themselves violate.

Reading :

  • �Silbey, Susan (1997) ""Let Them Eat Cake": Globalization, Postmodern Colonialism and the Possibilities of Justice", Law and Society Review , Vol. 30, No. 2, pp. 207-235.
  • Pollis, A. (1996) "Cultural relativism revisited" Human Rights Quarterly , Vol. 18, pp. 316-344.

Topic Eighteen

The International Criminal Court

New international human rights bodies are being established with a wide jurisdiction to pursue gross violations of human rights. We will look at the politics of their formation, and particularly at the last-minute decision of the USA to pull out of the signing of the treaty to establish an International Criminal Court (ICC). What are the powers given to the ICC in the Rome Statute and what limitations are placed upon it? Does the ICC represent the triumph of global justice over national sovereignty: assess the jurisdiction pf the ICC? Is the ICC the answer to the historic legal weakness of the idea of human rights? Have international bodies taken over the role of the nation state in protecting human rights?

Readings :

  • Robertson, Geoffrey (1999) Crimes Against Humanity , NY: Penguin, Chapter 7, "The International Criminal Court", pp. 324-367.
  • Schabas, William (2001) An Introduction to the International Criminal Court , Cambridge : Cambridge University Press, Chapters 1, "Creation of the Court", and Chapter 2, "Crimes Prosecuted by the Court", pp. 1-53.

Topic Nineteen

Possible futures of global justice

No readings

Topic Twenty

Summary, Debate and Discussion of term papers: Where do you stand?

No readings

•  The lecturer

Richard Wilson has studied human rights and informal justice in countries such as South Africa and Guatemala that have moved from authoritarian and repressive regimes to more democratic political dispensations. In such contexts of legal pluralism, he has studied the overlapping legal codes of transnational human rights, national criminal justice systems and local conceptions of justice. His published works include a monograph on an ethnic revivalist movement in Guatemala ; Maya Resurgence in Guatemala (1995) and two edited collections; Human Rights, Culture and Context: Anthropological Perspectives (Pluto, 1997), and (co-edited with Jane Cowan and Marie-Benedicte Dembour) Culture and Rights: Anthropological Perspectives (CUP, 2001). His most recent monograph, The Politics of Truth and Reconciliation in South Africa : Legitimising the Post-Apartheid State (CUP, 2001), was based on ESRC-funded research in South Africa . He is editor of the journal Anthropological Theory . Currently, Professor Wilson is the Director of Human Rights Institute at University of Connecticut , USA .