Universal Declaration of Human Rights

When I was working on my paper and researching the history and political turmoil that generated the massive human rights violations in Argentina, I was really fascinated to learn exactly how much the politics and the consummate ideologies of a society factor into the establishment of a regime that is capable of rationalizing (if that is even possible) acts such as genocide or clandestine disappearances. I don’t mean to imply that a country's particular set of political beliefs can somehow cause violations of human rights to occur on a national scale, but rather, in cases like Argentina, extreme polarization in the political landscape can initiate a pattern of retributive political violence that can escalade to human rights violations.

This was the thing that drew me towards writing a paper on Argentina, as it was a conceptualization of violence that I had never before come across. Before taking this class, I liked to think that at the core of most extreme cases of human rights violations there would necessarily be a vehement dictator or general that was at the root of such evil (Hitler comes to mind). And the one solace in such a conceptualization is the fact that in many ways if this was the case, the horrors of such violence could be ultimately blamed on one 'bad egg'. However, in learning about the work done by the South African TRC and the Argentinean CONADEP, I now know that there are an alarming number of cases where a whole sector of society can be held accountable for the tragedies such as Apartheid and Disappearing. To me, the fact that whole groups of people can be implicated in the orchestration of such immense tragedies is something that is almost as troubling as the tragedies themselves.

With that being said, here is an interesting video on the Universal Declaration of Human Rights that I came across as I was procrastinating this past weekend. At least maybe with work such as this, the international community is taking steps in the right direction. I certainly hope so. Enjoy...


http://www.youtube.com/watch?v=hTlrSYbCbHE

The Justice in Democracy

After the discussion of Martha Minow's eight goals for addressing mass violence and investigating several truth commissions other than the South African TRC in order to begin work on my research paper, it is hard not to place the rule "Forge the basis for a domestic democratic order that respects and enforces human rights" at the top of my list. Although the rule concerning reconciliation across social divisions was the one we ultimately selected for the number one spot, several issues lead to the necessity of a democratic order being the ultimate end for seeking justice.

First, I think that my initial support for the reconciliation rule stemmed from my knowledge of apartheid and the eventual formulation of the South African TRC. Since the roots of the horrible human rights abuses in this case grew out of a state-sanctioned form of racism, I felt as though finding the truth and formulating some sort of justice for the victims to grab on to required some form of reconciliation above all else. Furthermore, since the South African TRC bartered amnesty for truth in an effort to put the society there back together, I thought that the form of government was somehow less important so long as a truth commission was given adequate legal space in which to operate. I know that this is one objection we discussed when debating these two objectives of truth commissions, but after learning about the 'disappeared' in Argentina and reading an article called "Settling Accounts: The Duty to prosecute the Human Rights Violations of a Prior Regime," I realized how supremely important the formulation of a domestic democratic order is to the effectiveness of a truth commission.

http://www.jstor.org.relay.rhodes.edu:2048/stable/pdfplus/796903.pdf

Essentially, this is article discusses the role of international laws concerning human rights and how they should be applied to various violations once the transition to a democratic regime has been made. Most importantly however, this article made me think about how human rights violations such as those in South Africa or Argentina occur in the first place. In both these cases, a totalitarian regime was established, which enabled ‘enforcers’ to invade every aspect of society - including basic human rights. Viewed in this light, a shift to democracy seems to be the only method of truly ending such violations. For me, this was best realized when looking at the case of Argentina, where a select group of military juntas staged a coup and subsequently began the act of 'disappearing' all those who were suspected of holding any type of anti-government sentiments. So, unlike the racial foundations of the events in South Africa, that which occurred in Argentina recognized no social, economic or political predilections. Whereas the horrors of apartheid can be tracked by its legislative record of repression, the military coup in Argentina marked a transition into a clandestine state-run terror operation that the government didn’t even recognize the existence of. As Ernesto Sabato appropriately points out, a veil of vulnerability and fear was immediately cast across the entire country:

A feeling of complete vulnerability spread throughout Argentine society, coupled with the fear that anyone, however innocent, might become a victim of the never-ending witch-hunt. Some people reacted with alarm. Others tended, consciously or unconsciously, to justify the horror. ’There must be some reason for it,’ they would whisper, as though trying to propitiate awesome and inscrutable gods, regarding the children or parents of the disappeared as plague-bearers. Yet such feelings could never be wholehearted, as so many cases were known of people who had been sucked into that bottomless pit who were obviously not guilty of anything.

In this situation seems as though any form of recovery from such widespread fear would end in the establishment of a democracy that would completely prevent such total abuse of power from ever happening again. And since a totalitarian government is essentially the required context for gross violations of human rights, the restoration of democracy, and more importantly handing control back to the people seems to be the most readily achievable form of justice regardless of the extent of prosecution.

Prison

Some info on prisons, relative to our recent discussions in class:

--Everything You Never Wanted To Know Abou the American Prison-Industrial Complex

--Prison Nation

--Torture in America's Prisons

--Other interesting facts, charts, statistics, etc..

Justice separate from Morality?

Jane's post reminded me of our discussion of the Gutmann and Thompson essay, which is all about the morality inherent in truth commissions. We trashed that essay in class and I'm down with that, but I remember being dissatisfied with Dr. J's trashing. A good example is the realist approach. In the essay, they describe the realist response as supporting the truth commission (as an alternative to traditional trials) because that would be impractical, given the nature and scale of the crimes committed. Gutmann and Thompson reject this approach on the grounds that this is not a moral principle, and Dr. J rejects that rejection, instead claiming that the trials and their alternatives (ie- truth commissions) are moral by nature. But I don't like to think of justice as moral at all.

Instead, I think of justice as a purely practical measure, taken to keep the community under control. We all live in a big system, so there has to be some measure to maintain the order...of the system. It seems like morality is too subjective, like it might create some sort of inherent problems with our system of justice if we base it entirely on morality. I'm not really sure. But I think there's something like this in my Hume notes? Either way, I think this can apply to both justice overall and truth commissions as well.

truth commission without democracy?

Last week in class we spent a lot of time talking about one of the questions from a precis. Essentially, the question was whether a truth commission would only work in a democracy, or at least in a state that was in a transition towards democracy. It seemed to be a class consensus that yes, this might be true. However, having thought more about it, I'm not sure that I agree.

While it is perhaps true that the truth commissions that we've read about (most notably the TRC, Argentina, and Chile) are only thinkable in democracies, I am not ready to say that no truth commission would be possible in a non-democracy. It seems that in the TRC, where the people of South Africa played a very big part in its creation, and in Chile and Argentina, where the truth commissions were accepted and reparations were given to victims by the new regimes, very democratic ideals are in play. But what if truth commissions looked different? What if they looked more like the El Salvador commission, which was made up of all foreigners? The people of El Salvador wanted the commission, but admitted that there were not people in El Salvador that would be able to uphold a commission without outside help. What about a country like Saudi Arabia? A place where human rights violations have definitely taken place, but yet it is not in the process of a democratic transition. There are certainly truths to be told in places that perhaps are unwilling or unready to tell them. So does that mean that truth commissions are not possible there? Or rather, are truth commissions necessary, but just might need to be spearheaded by the international community, with the help of the willing locals?

On the other hand, would truth commissions lose some of their legitimacy if they were not always started from within? If it becomes possible for the international community to put truth commissions in place as they seem fit, it seems like it could run the risk of becoming just a system of passing judgment and one state pointing out what is wrong about another, and altogether ignoring state sovereignty.

Naming Names

Getting back to the idea of naming names, I belive that a truth commission should do so. It is their job to find the truth and get it out so the public knows what happened. The people deserve to know who did what and what happened to who. I do understand the major issues with naming names. There is the issues that these people ahve not been tried in a court and therefore, should not legally be charged with anything. Also, there is the issue of people taking matteres into their own hands and persue vigilate justice. These are important and should not be ignored. However, the fact still remains that truth commissions most often find the truth. In these cases, terrible crimes have been committed, and the public deserves to know about them. At the very least, naming names allows for the wrongdoers to feel shame, knowing that everyone knows what they did. This is imporant because there often are flaws in the court systems for various reasons, which does not allow the crimes to be justly resolved. Thus, for the truth commissions to name names, it allows for at least some form of punishment to be delt out. THis may not be considered justice in the strictist sense of the word by the courts and legal systems, but I think that sometimes social justice is necessary. Legal justice does not always account for everything not does it right all wrongs. In such cases, when there is an opportunity for someone to right a wrong, in some way, I think they have a right to do so. Therefore, I think that not only is it ok for truth commissions to name names, but they have a responcibility to do so.

Ubuntu

I was introduced to the story of the South African Truth and Reconciliation Commission in a class I took last year, and one of the themes I remember discussing at length is that of ubuntu as it was discussed by Desmond Tutu in his book No Future Without Forgiveness (1999). We have not discussed ubuntu much, and only the Elizabeth Kiss essay mentioned the concept. However, I feel that it is a useful concept to understand when evaluating the impact of the TRC on South African society.

In the book, Tutu defined a person with ubuntu as “open and available to others, affirming of others, does not feel threatened that others are able and good, for he or she has a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed.”

Ubuntu is not just a local ideology in South Africa; it is a pan-African ideology emphasizing both individual humaneness and the interconnectedness of humanity. Ubuntu is not a rigid set of moral codes but a collectively understood philosophy by which to live. Though it was endorsed and encouraged by Tutu, it is not a Christian or otherwise religiously-derived concept, which legitimates its promotion by the TRC for those who claim the committee was biased toward Judeo-Christian notions of forgiveness and reconciliation.

Public testimony, interactions between victims and perpetrators, and amnesty as opposed to judicial punishment are all tools for achieving ubuntu. By sharing testimony with the world, allowing people to confront (and, if desired, make amends with) those who had wronged them, and not isolating but instead reintegrating offenders into society, the TRC facilitated the perpetuation of the African ideal of peace, togetherness, and mutual respect. Instead of ostracizing members of the apartheid regime, they sought to rehabilitate them into society, because, according to ubuntu, everyone’s humanity suffers. Due to the nature of their crimes the perpetrators were less than human, and confessing was a step towards restoring their own, and therefore society’s, humanity.

Elizabeth Kiss endows the concept of restorative justice with three objectives: “(1) to affirm and restore the dignity of those whose human rights have been violated; (2) to hold perpetrators accountable, emphasizing the harm that they have done to individual human beings; and (3) to create social conditions in which human rights will be respected” (79). All of these aims are compatible with ubuntu. Considering that ubuntu is a commonly shared African ideology that transcends cultural and language barriers, restorative justice seems like a much more beneficial and favorable option than retributive justice for post-apartheid South Africa to pursue.

prescribed shame?

Since last weeks discussion I wanted to renew the subject of whether or not truth commissions should release names. Some said that they should because it would lead the community to shaming the criminals, thus punishing them even though they were given amnesty. The other people class noted that shaming was too grave of a punishment, and that names should be with held so that shaming would not take place. But, the problem is which is more just?

It seems that the purpose of truth commissions is in the name: Truth. The purpose of revealing the truth in these hearings is the hope that the community will, upon hearing these criminals tell and take responsibility for their actions, restore its relationship to the part of the community that is now the basically criminals. The idea is that the healthy part of the community comprising of the victims will, after hearing the testimony will have stared to overcome their personal grievances and begin to reaccept the perpetrators of the crimes against them into the victims community.

The issue is to some shaming. Some as mentioned above, say that if names are released that the victims will shame the criminals not only negating their amnesty, but also diving the community further. This would defeat the original purpose of the truth commission, if it were true. But, the fact of the matter is that feeling shame is part of human nature. We cannot prescribe shame any more than we can prescribe disappointment as a punishment of any sort. The problem is that you cannot cast shame, because the perpetrator who breaks line with his community’s norms only feels shame.

Shame is cultural, and not at all universal in nature. For example in America we were shoes all the time in our homes, however in Japan it is very impolite and rude to wear your shoes even in your own home. Now if I went to Japan and I wore my shoes into someone’s home without knowing that I was breaking social custom I would feel no shame, until I became accustomed to the social norm.

In This same way sociopaths, or any person that has been so damaged as to no longer recognize social norms, are incapable of feeling shame and in this way would not feel shame even if they were out of sync with their entire community. For this reason it is impossible to cast shame or even prescribe it as a punishment, even if to feel it is the norm. Also this eliminates any reason to withhold names from truth commissions, because there is no way to argue that shame is a predicted punishment.

The Necessity of Morality

In the essay by Elizabeth Kiss entitled “Moral Ambition Within and Beyond Political Constraints,” Kiss brings up a new aspect of truth commissions that I don’t believe we had really discussed before. She bases her essay on the idea of the moral ambition of truth commissions, that they are determined “to honor multiple moral considerations and to pursue profound and nuanced moral goals” (70). As Kiss explains, this sense of moral ambition that is unique to truth commissions enables them to be successful, as shown in Truth V. Justice’s constant example of the TRC. Kiss argues that restorative justice is founded upon this idea of moral ambition.

Since restorative justice operates with the long-term goal of societal reconciliation, Kiss argues it is necessary for truth commissions to be victim-centered. She also identifies the three-fold commitment of restorative justice as (1) to affirm and restore the dignity of victims of human rights violations; (2) to emphasize the deeds of perpetrators and hold them accountable; and (3) to create social conditions conducive to respecting and protecting human rights. A fourth aspect Kiss names is one of great importance for truth commissions: restorative justice’s commitment to reconciliation. For Kiss, the moral ambition of restorative justice is evident in the actions of truth commission, specifically the TRC.

In my opinion, injecting a moral ambition/aspect into restorative truth makes the whole concept seem more realistic, or at least more comprehensible. Victim-centered truth commissions seeking reconciliation will naturally follow courses of action that have moral foundations. Reconciliation in and of itself seems to directly correlate to the moral undertaking of a truth commission. Restorative justice strives to reconcile the bonds/relationship between all members of the society affected by atrocities in order to create conditions in which all citizens are respected, treated with dignity, and have their human rights protected. Reconciliation, and restorative justice for that matter, begins with recognition. Truth, and therefore justice, can only truly be achieved when both the victim and the crime committed against them are acknowledged and recognized. From there, reconciliation and restoration can begin.

While I didn’t really get Kiss the first time I read her essay, now I understand how vital it is for truth commissions to have some sort of moral ambition. Morality provides the motivation for and ability to undertake successful truth commissions that ultimately establish some sense of reconciliation, that allow a community and the larger society to move forward together. I think that without some moral grounding, truth commissions wouldn’t work because the purpose of societal reconciliation seems, to me, to be morally-driven.

Punishment by Shame or "Hard Time"

The idea of shame as a form of punishment has been one of the more intriguing topics for me during our discussions and readings regarding truth commissions. As my last post explained, I no longer see torture as a possible form of punishment. I have struggled with what forms of punishment are both morally right as well as effective.

The first possible solution for me is shame through the perpetrator being made know to the public. Shame punishes an individual on many levels. On a large scale, the perpetrator is now known to have committed their crime by the public, and therefore will most likely experience humiliation for the rest of their life. They will have difficulty obtaining a job and may therefore develop anger with those who have bestowed this shame upon them. This stands in the way of a community being unified, which is important for a successful truth commission. Shame also affects the individual’s personal life. In the case of South Africa, individual’s families often had no idea the atrocities they were committing. Many families were devastated to hear the horrors, their spouse, parent, or even child being turned into a monster in their eyes. Of course, this most likely would occur had the individual been processed in a judicial system, so I am not sure it is how this can be avoided without amnesty being given to an individual with only the prosecutors and perpetrators knowing what happened.

My primary concern regarding shame as a form of punishment is that I do not believe that all human beings feel shame. Unfortunately, this can become a circular argument very quickly because of the diversity of views toward human nature. I believe that some individuals can become immune to shame through repeated exposure or involvement in the sort of horrors that the truth commissions address. I do not believe that an individual is born into this mentality or born “evil”, but one can become dulled to shame. So does this make shame an impossible punishment for certain individuals? And if so, how does one gauge who deserves an alternative punishment? One could certainly fake feelings of shame and remorse? If an individual has no desire to integrate into the community, and merely gives up the truth in public to receive amnesty, is justice served?

I believe that some form of correctional education is required for justice to truly be served. I do not see shame as a final solution to just punishment. While our current jail facilities are certainly no more effective (or possibly even as effective) than shame, a reformed system could be the solution. This would involve implementation of stronger educational programs within the penal system, more humane facilities and treatment of inmates, legal ramifications for prejudicial treatment of those who are reentering society, and many other changes that are far and beyond my knowledge. While I am tempted forget about the possibility of change and consider this road helpless, I cannot help but hear Dr. J scolding my laziness and ignorance.

Minow’s Remdey of Acknowledgment

Truth Commissions are often viewed as a last resort for political regimes. When justice via the legal system is impossible, we settle for truth. In the essay Hope for Healing, Minow argues for an alternative view. Perhaps truth commissions are favorable to trials. When I first read the article I was skeptical, but I’m having second thoughts about trials.

Prosecutions are undeniably flawed. Legal battles and massive prosecutions can be messy, and ineffective. They may only perpetuate the “eye for an eye” mentality and they fail to answer the questions that many families have concerning their loved ones.

Minow maintains, “the aspiration to develop as full an account as possible requires a process of widening the lens, sifting varieties of evidentiary materials, and drafting syntheses of factual material that usually does not accompany a trial.” (239) Thus, an alternative is required to replace the unsatisfactory trial process.

Minow argues that individuals can publicize their experiences and pain. This process would allow the victim and the community to overcome the pain together. “Acknowledgement” of the crimes will ease the pain of those suffering and simultaneously develop the fullest account of the events.

I think Minow is onto something. The venting process would be similar to speaking to a psychiatrist. By simply talking to someone, victims can relieve some of the stress and pain. It provides relief (for the victim) and recognition (for the community). Public recognition, after all, is a crucial aspect of the truth commission.

The full recognition of political atrocities (by the victims and the community) will, ideally, restore the “dignity” of the harmed parties. Minow emphasizes and reemphasizes the need for victims to tell their stories so the community can gather information and begin to heal.

The process of healing that Minow advocates recognizes that prosecutions are all but impossible. Rather than suffering in silence behind closed doors, victims would be able to shift the focus to communal healing. Thus, themes of healing and progress take the place of anger and uncertainty.

Truth commissions, unlike prosecutions, “emphasize the experiences of those victimizes”, create a historical record of the events, and proactively begins the healing process. While the “restorative power of truth telling” is only a small step in overcoming atrocious crimes against humanity, it is an effective, proactive process that emphasizes healing rather than exacerbating rage. Restoring dignity and answering lingering questions is necessary. Considering this, perhaps truth commissions are more effective in healing and understanding these crimes.

TRC v CEH

I read an article comparing the Guatemalan truth commission (CEH) and the South African TRC, and a very distinct difference between the two is that the CEH did not name names while the South African TRC did. The writers of the article argued that not "naming names" was more profitable in the long run. In the case of the TRC, the emphasis on particular individuals and their perpetrators failed to give a "macro-truth" and instead only gave many "micro-truths." By not naming names, the CEH was able to gain access to information they would have never been able to have otherwise, and were able to form a more complete macro-truth. The CEH gave a more complete answer to the question of how the state became perpetrators of genocide and countless human rights violations.


An interesting point that another author makes is that most people in Guatemala knew who the perpetrators were, but were powerless to convict or confront them. The main sentiment in Guatemala was the recovery of loved ones who were “disappeared” or killed. Because of this, naming names was not as important as retrieving information. This was obviously not a sentiment shared with all Guatemalans, for the initial response to the fact that the CEH would not name names was fiercely negative. The anonymity of the report led people to believe that this truth commission would be little more than a watered-down, apologetic paper that would never have any effect on the country’s future. Many were glad to hear that once the report was published, it blamed the state for 93% of the human rights violations.


Another place a policy of anonymity can be effective is in a state that has a weak judicial system. It is not fair to hand over the burden of prosecuting each individual to the next government, and could possibly destabilize their already weak power. In the case of Guatemala, the judicial system in place before the peace agreements that ended the civil war was but a shadow of what it used to be. Even as late as 2001, Guatemala is still considered a “weak country” according to the UN.


I am not arguing that a policy of anonymity is always correct, but rather I am trying to demonstrate that the decision to release names should be considered on a case-to-case basis. I will argue that in a state of transitional justice, a policy of anonymity seems to be more effective because of the frailty of the new government and judicial system.

The Punitive Approach

Recently a Ukrainian-American  man named John Demjanjuk was arraigned in Germany on 27,900 counts of being an acessory to murder, accused of serving as a camp guard at the Sobibor concentration camp during the Second World War. It may well be one of the last war-crimes trials for alleged perpetrators of the Holocaust (Demjanjuk is 89 and wheel-chair bound). As the victims and villians of that atrocity are fading into history, it is worth examining the merits of the approach that has been taken by Germany and the world community in dealing with the legacy of the crime against humanity par excellence (if such a term is appropriate), particularly as it contrasts with the route of the truth commisions in South Africa and elsewhere.

The reconciliatory approach of the South African TRC was justified in part by the claim (true enough) that traditional judicial procedures could never hope to properly identify and punish all those culpable for crimes commited under apartheid, and for this reason is sometimes directly compared to the Nurmemberg trials and other legal actions taken against German war criminals. Since far more individuals were involved in Nazi Germany's machinery of mass murder than have ever been prosecuted, the argument goes, Nuremberg and the other anti-Nazi tribunals are essenntially failures because they purported to satisfy the demands of justice for the Holocaust, something that they could not possibly accomplish. The amnesty-granting truth commision is converesely held to obtain a higher "restorative justice" by airing out all the details and constructing a new shared narrative for reconcilation which only it can provide.

Looking at Germany over six decades after the Holocaust, I am inclined to think that perhaps the traditonal judicial approach to atrocities has been given short shrift by the boosters of the TRC. The Nuremberg tribunals certainly did not mete out retribution to all those responsible for the Nazi regime's genocides, but it definitively established the unacceptability of the crimes of the accused and laid the groundwork for many more trials to come in the ensuing decades. Nobody would argue that all the responsible parties have been punished (just as nobody would pretend that every single crime of apartheid has properly come to light through the truth commision process), but many have. In terms of "restorative truth" it is hard to fault the shared social consensus that has developed in Germany (and the world) about the massacres: something that must be remembered and never repeated. Modern Germany is a land where such Jews as remain are accorded full rights (and no small degree of deference) and Holocaust denial is illegal. Germany has also taken a leading role in fighting against genocides beyond its borders (as in the Balkans).

 Of course, the South African truth commision may well have been more suited for the particular needs of that nation (as I think it indeed was), but reasoning from the particular to the general may be misguided on this subject. If the creation of a democratic society that has drawn the proper lessons from its past is the goal of any effort to deal with a legacy of crimes against humanity (as is often stated of truth commisions), it seems that the traditional methods of dealing with individual culprits need not stand in the way.

Broadcasting.

While reading Minow’s text about truth commissions this weekend, I became a little confused when I read the part concerning public testimony of victims’ trauma, and the broadcasting of it to obtain sympathetic witnesses. While Minow argued that through public testimony, victims forged trusting relationships and received acknowledgement and validation from others. I’m a little skeptical as to if this actually works or not.

On one hand it seems like a decent idea, and that victims could actually benefit from this. Having people show their support, and reiterate the fact that people sympathize with them must be a positive part of their progress towards healing. Furthermore, if other victims see these testimonies that are publicized, they may come forward with valuable information, not to mention it may help in their healing as well.

But on the other hand, it seems that this publicity could be detrimental. I feel that instead of helping the victims, it could possibly induce shame with them instead. While some people may be proud of what they had endured, and want to use their voices as a tool, others may be hurt by the constant reminder of their pain. Until a certain point in healing has been reached, it seems that this broadcasting may hold some victims back from healing at a desirable pace.

The problem with this however is that no one will heal at the same pace as another person, and because of such society cannot just halt all things that may get in the way of it. Even though both options – broadcasting the victims’ testimonies or refraining from such – can both cause psychological damage, one must be chosen. While it has damaging properties, I guess in the end I could see more benefits coming from broadcasting the testimonies, but I’m still not comfortable with it.