Session #7: Sunday, 11 January, 12.15 - 14.00 (CSLG)
Panel coordinator(s): Ratna Kapur, CFLR (rkcflr@gmail.com)
Chair/discussant: Nivedita Menon, Professor, School of International Studies, JNU (niveditamenon2001@yahoo.co.uk)
Panel description
Panelists, paper titles, and abstracts
The panel examines shifts in understandings of various concepts in international law/ human rights law that expose how they operated along the lines of inclusion and exclusion. Assumptions about universality, sovereignty, and the liberal subject that have informed international/human rights law, have been exposed by subaltern subjects as operating from a Eurocentric standard. The panelists examine how these assumptions continue to inform certain events within the contemporary period, including the way in which human rights law is applied or international law expanded or restricted depending on who invokes it and for what purpose. They expose the `dark side' of these ostensibly virtuous projects and how power remains integral to the way in which human rights or international law functions and is applied in the contemporary moment. The panel will take the form of a dialogue, where the speakers will engage with one another’s presentations, including an engagement with Fitzpatrick’s plenary address on the Laws of Empire and also pose questions to one another.
The international human rights project has been heralded as a milestone in the movement towards producing a more civilized, egalitarian and peaceful society. Yet fifty years after the institutionalization of this project, the proliferation of resolutions, conventions, protocols and treaties, the record of human rights is less than stellar. We are living in a moment when the human rights project seems spent and exhausted, unable to live up to the challenges continuously confronting it. The promulgation of the elusive and non-legal War on Terror and the priority accorded to the security of the sovereign state and the sovereign subject, have posed a serious challenge to the very survival of human rights as a transformative and progressive project.
This lecture examines those features of the human rights project that have propelled it into the current moment of despair and disillusionment. I interrogate the foundational claims of human rights – as a progressive, forward looking, universal project as well as the assumptions about the liberal subject on which it is based. The talk reveals the dark side of the project and how it has been based on assumptions about difference, the cultural `Other', produced partly in and through the colonial encounter, which continues to discursively inform the postcolonial present. It reveals how the universalist claims of human rights and the rational subject, have justified political exclusions in practice and also set out the terms for political inclusion. The dark side is exposed in the interventions of conservative and orthodox, as well as progressive, feminist and social justice groups alike. In the contemporary moment, it is exemplified in interventions in the areas of migration, trafficking and terrorism. The assimilative urge informing the legal responses to migration produce legal subjects whose inclusion is based on performing a cultural strip and conformity. The victimisation of women by anti-trafficking players, infantilises and objectifies women, justifying interventions that reinforce their subordination and regard women, especially from the postcolonial world as incapable of decision-making and agency. The constitution of non-legal subjects such as the `enemy combatants' in Guantanomo Bay, who exist outside the realm of western liberal democracy and intent on its destruction, or the casting of asylum seekers as `unlawful non-citizens' to be detained in mandatory detention centres, is consistent with the exclusionary potential of the human rights project and the assumptions about the liberal subject on which it is based.
While, it seems critical to engage with human rights and impact this field as it has such significant consequences for the `wretched of the earth', we cannot ignore the tug of its dark side. And yet human rights have occupied the space of emancipation so completely that the possibilities of new imaginations and alternatives have received little attention or nurturance. What happens when the faith in human rights as a progressive, universal project is eroded and its dark side exposed? This question lies at the core of the contemporary challenge posed to human rights scholars and advocates alike. It has become imperative to reflect on the possibility of new imaginings and cosmologies for informing and defining the field, if the possibility of an emancipatory, transformative politics is to survive.
This paper examines the embrace of history by the field of transitional justice. Today, in the wake of dictatorships and civil war, human rights movements across the world invoke the vocabulary and promise of "transitional justice" in seeking to address and redress the legacies of human rights abuse. History and historical wrongs are a dominant part of these redress initiatives. Discussion of the perpetrators' crimes is weighted with invocations of history in two senses. Firstly, the accountability mechanisms that pursue them have a retrospective mandate; for instance, Pinochet was bought to trial well over a decade after he left office, and for crimes that stretched back three decades. Secondly, the crimes for which individuals are pursued are of historic significance these were not isolated murders but mass crimes that changed the histories of their countries. This paper will probe the narrowing of the potential meanings of "historical justice" to courts and commissions focused on perpetrators of bodily harm. Historical structures that produced and shaped specific patterns of human rights violations fade further into the backdrop. Even when commissions are charged with complementing the focus on individual cases with attention to the enabling conditions of abuse, there is little analysis of the continuities between periods of ordinary violence and periods of extra-ordinary violence. Thus ironically, just as coteries of lawyers and policy makers have emerged on the transitional justice field with a commitment to ensure that justice looks back, not just forward, it seems that our notions of the historical involve blinders to the enabling conditions of human rights abuse. Rather than deepen and broaden our approach to justice or history, has the proliferation of calls to historical justice, curtailed justice and produced closure on history¹s most critical claims? Have we invoked history in ways that have delimited its reach and pruned the discourse of accountability?