February 13, 2008
Presenter: Tafadzwa Pasipanodya
Respondent: Magalí Armillas-Tiseyra
Human Rights Law
On critical human rights theory/practice and the International Criminal Tribunal for Rwanda
I plan to lead a discussion on critical international human rights theory/practice. This is a branch of critical legal studies - a theory that challenges and overturns norms and standards in legal theory and practice.
The background reading "Savages, Victims, and Saviors: the Metaphor of Human Rights" is a foundational piece for critics of human rights. During the meeting we'll discuss the article and my own application of critical international human rights theory through some research I've done on the prosecution of alleged genocidiares at the International Criminal Tribunal for Rwanda. My critique draws significantly from the anthropological field, while the critical legal studies field in general also borrows from social theory, political philosophy, economics and literary theory. I will be very interested in learning from you all about the insights your respective fields might add to critical international human rights theory.
Tafadzwa began her presentation with introductory background on critical legal studies (CLS), which served as context for the Mutua article that we read. CLS refers to a loose grouping of legal theorists and critical practices that analyze the nature of legal rhetoric and the uses to which the law is put. One of the central tenants of CLS is that "law is politics," which makes clear practitioners' critical orientation toward the letter of the law - examples of CLS scholars include Catharine MacKinnon, Derek Kennedy, and Roberto Unger. Mutua is also considered a critical legal scholar but is not (for several and potentially interesting reasons) often named as one of the canonical figures. CLS, rooted in the United States, had its beginnings in the 1960s and has been highly interdisciplinary in its development, drawing form the disciplines of anthropology, history, sociology, philosophy, and literary criticism/theory, something that Tafadzwa identified as one of its primary strengths. This suggests - and I think the idea came up more than once in discussion - that it is precisely in stepping out of one's discipline (taking the critical distance) that one is able to formulate a critique and, hopefully, revitalize practice. But it is also - and, again, this was evident in discussion - an extraordinarily difficult position to work from; difficulty is of course (!) not prohibitive to this sort of critical practice and perhaps further emphasizes its necessity.
In this sense, I think Mutua's article - as powerfully suggestive and useful as it is enraging if not alienating - is a perfect example of the difficulties presented by CLS and this sort of interdisciplinary (liminal) critical practice that is both within and without the bounds of the discipline it critiques. To explain this "liminality," the within/without, with an example from Mutua: I think his complicated handling of universality - both a critique of but also a holding on to - which I initially found confusing even irritating as a reader, demonstrates the profound difficulty of a critical practice such as CLS, which critiques legal practice/theory without wanting to dismantle or do away with it. The result is something like an oscillation in which one attempts to remake the language, so to speak, while holding on to its basic meaning or, sometimes just its form, while attempting to reform the content.
Another way of expressing this difficulty is Dean Stimpson's metaphor of the hammer - Mutua's piece as a hammer meant to break the shell of complacency, so to speak, without destroying the entire structure. This "hammer" reading is a useful way of mediating the response (and I certainly had this at first) that Mutua does not really offer a viable alternative/course of action, or even that his argument is not well made or always entirely correct. From this perspective, the relative merits/demerits of Mutua's piece matter less than its effect in engendering critical self-reflection in the Human Rights movement. The most important effect of the article, then, is presenting a powerful argument for the consideration/possibility of heterogeneity within the category of the universal (again, rethinking the content while holding on to the form), which tends to have a homogenizing sweep. As Tafadzwa put it: universals need to be localized.
The center of Tafadzwa's presentation was dedicated to the work she did while interning at the International Criminal Tribunal for Rwanda, which is run by the United Nations and located in Arusha, Tanzania; Tafadzwa's presentation is based in a piece she produced about her experience, in which the central question was "whose justice?" (And, certainly, the telling proposition "for" in the ICTR's title is of much importance here). The ICTR is just one level of the legal actions being carried out in response to the genocide of 1994, which also includes criminal trials in the Rwandan legal system and "traditional trials" on the local level. An integral part of the definition of justice for many of the victims is the need for recognition and the need to speak what took place; however, the ICTR has not provided the best space in which to do this. In this sense, the "traditional" trails offer much more of an outlet, even if, from a universalized legal perspective we would balk at its practices (for example: refusal of rights to the accused, etc.) The ICTR, as a legal space invested in truth, continually exposes the difficulties/ambiguities of witnessing and the problem of (legally) "unreliable" witnesses - problems that are both culturally specific (and not properly attended to) and the results of the profound trauma individual witnesses have suffered. The trail framework, however, has not proven to be the most effective (and, indeed, often has negative effects) space in which to deal with this.
As Tafadzwa made clear in her varied examples, which ranged from explanations of the macro-systemic workings of the ICTR to personal anecdotes, the ICTR is a complex and perhaps complicating event/ritual/endeavor in which intention, reception, and effect are crisscrossed in a network of multi-national, multi-cultural, and multi-organizational interactions. This is the source of Tafadzwa's question "whose justice?" in many ways a useful reformulation through concrete example of some of the points made by Mutua: the ICTR is an almost-paradigmatic example of the implementation of a supposedly universal system (although, particularly in light of our discussions, I am always tempted to refer to legal trials in the pseudo-anthropological vocabulary of the "ritual") to a particular situation and the disjunctions that result there from. This is not to say that the ICTR has not accomplished anything in its tenure but rather to push for a rethinking and making-local of the very concept of "justice."
In the Forum, these questions led to a discussion of the differences between retributive justice (which is what the ICTR is implementing; incidentally, the ICTR, like they ICT for the former Yugoslavia have largely followed a pattern set by the trials at Nuremberg after WWII) and restorative justice (which is often the aim of the local "traditional," meaning, more precisely, non-state-run, trials) and on defining these categories in local terms. One issue that came up was the demand for restorative economic justice made by survivors, for whom what matters is not just a recognition of what happened - the events they survived - but also their continuing survival. The idea of reparations has both small and large-scale implications and took us toward a discussion of the root of the conflict, historical causes, economic justice, and the question of the payment of economic reparations by former colonial powers, in this case Belgium. (For that matter, should any former colonial/colonizing/occupying power pay reparations to its former colonies? The question of reparations, of course, has echoes with several other cases, including Jews and the Holocaust, slavery in the United States, and First Nations in the Americas). The problem however, both on the small and large scales, remains the question of quantification, which, I think returns us once again to the importance of making local and particularizing universalized systems/practices, as Tafadzwa pointed out repeatedly, the universal only seems to gain real meaning/effect in its particularization in the local.
More importantly what Tafadzwa's presentation made clear, and this in light of Rwandan's reactions to the ICTR (those who have participated; as Tafadzwa pointed out, many in Rwanda are unaware of or feel disconnected from, its activities), the law and legal practice is not the only space in which "justice" is possible. The law should not have the monopoly on justice. As Tafadzwa put it: what you leave it all to the law you lose out on justice. This, I think, is a profoundly useful example of the sort of liminal critical practice that Tafadzwa introduced us to in CLS: a pushing/dismantling/making porous of the boundaries - authority - of the law. Tafadzwa's personal response to these problems, as someone about to enter the legal field herself, is that, in face to such stinging critiques of one's own field, the response should be to continue writing and working, but in a slightly different way: to appreciate heterogeneity and reflect this in the mundane details of the legal process itself, remembering that current practices are never natural.