Journal of Global Affairs Special Edition 2012 by Journal GA

HUMAN RIGHTS

IN THEORY & PRACTICE i

> COVER PHOTO

Mpito na Tafakari, Transitions and Reflections

DECLAN GALVIN

This is a picture of Eliud, whom I befriended while staying in the Maasai village of Kimuka, Kenya. Eliud is looking out onto the Kenyan Savannah; with his hand rested on his head, he seems to be reflecting on his environment and the changes that he and his community are facing. There is a road in the background, a symbol of the inevitable development of the land and a sure indicator of the increasing stress modernity has placed on the traditional ways of the Maasai tribe.

Eliud has a dilemma: whether to pursue a Western-style university education, and in doing so, sacrifice his only opportunity to enter into â&#x20AC;&#x153;manhoodâ&#x20AC;?; or uphold the rigid traditional Maasai beliefs and be considered a man by his own people. While Eliud is wearing his traditional Maasai clothes, signifying the Maasai strength and pride, he seems to be unsure about what may lie in his future.

HUMAN RIGHTS IN THEORY AND PRACTICE: APRIL 10TH-13TH 2012

EDITOR IN CHIEF

Maggie Carter

EXECUTIVE EDITOR

Anita Rojas Carroll

MANAGING EDITOR

Emma Young

COPY EDITOR

Matthew Berenbaum

ASSOCIATE EDITORS

Becky Asch Sarah Dunn Declan Galvin Nick Glastonbury Kate Hensley Henry Topper Kai Zhang

CREATIVE DIRECTOR

Elisa Yi

SPECIAL THANKS

The Journal of Global Affairs and the “Human Rights in Theory and Practice” Conference Coordinators would like to offer our heartfelt thanks to all those who have made the conference and this publication possible: Dean Susanne Wofford; Associate Dean Linda Wheeler Reiss; Associate Dean Kimberly DaCosta; Conference faculty advisor Dr. Vasuki Nesiah; Conference event planners Emily Pederson and Kai Zhang; Dr. Patrick McCreery; Dr. Alejandro Velasco; Dr. Rosalind Fredericks; Rachel Plutzer; Theresa Anderson; Rick Stern; Michael Coleman; Kate Daniels; the International Center for Transitional Justice; the 2011 and 2012 Gallatin Human Rights Fellows; and all conference participants, including speakers, moderators and Gallatin students.

iii

BETHANY HALBREICH

> Two friends chatting at Halebidu in

the Hassan District, Karnataka, India

001

CONTESTED GENOCIDE AND THE TRANSFORMATION OF WAR

ANNA DUENSING

TABLE of

CONTENTS GALLATIN JOURNAL OF GLOBAL AFFAIRS | SPECIAL EDITION | 2012

010

INFORMAL MARKETS: BETWEEN AGENCY AND CONSTRAINT

BECKY ASCH

015

PROTECTING TRANSGENDER AMERICANS: STATE GENDER IDENITY NONDISCRIMINATION LAWS

REBECCA BROWN

019

THE POLITICS OF EXTRADITION AND HUMAN RIGHTS VIOLATIONS

LEIGH ROME

031

BAMAKO: MOCK(ING) TRIAL

BECKY ASCH

042

AT RISK: YOUTH, HEALTH AND HOME IN CAMBODIA

ELISA YI

047

HUMAN RIGHTS: THE LAST UTOPIA?

KAI ZHANG

026

PEOPLE OF PERU

BRANDON KNOPP

> Blind Guitarist

LETTER

from the

> EDITORS

In 2010, the Journal of Global Affairs collaborated with a group of students to create a completely student-run conference and a supplementary publication. It was the first such event at the NYU Gallatin School of Individualized Study to include so many elements of student involvement: coordinators, contributors and editors. This year, the JGA has once again produced the publication for a student-run conference. “Human Rights in Theory and Practice,” sponsored by and held at the Gallatin School of Individualized Study, embodies the mission of the Journal of Global Affairs. A group of students critically studying human rights sought to bring together the theorists and practitioners who have inspired them and invited the community to participate in the conversation. In a similar vein, the mission of the Journal of Global Affairs is to move conversations out of the classroom and into the larger community by publishing outstanding student works that spark discussion and critical thought. It is our hope that the following works will do just that. Each piece brings its own perspective to the human rights debate. They complicate and challenge concepts we’ve grown familiar with; they root contemporary events within a larger critical framework of human rights; they demonstrate the ways in which human rights and policy interact both nationally and internationally; they embody multiple levels of engagement with the human rights framework, from theory—addressing many of the most significant thinkers in the field of human rights—to practice—introducing through words and photos the many local level actors of human rights implementation. Taken as a whole, the journal represents a synthesis of multiple critical approaches to the study of human rights. The collaborative spirit that has brought this project to fruition is itself more valuable that anything that we—as coordinators, writers, editors and designers—could ever have produced. The process has been one of learning, discussion and discovery for all involved. To our readers, we hope that this publication inspires you to approach your own academic interests with the same interdisciplinary fervor that this conference and publication represent, through writing, organizing and critical discussion. Sincerely, The Journal of Global Affairs

LETTER

from the

> COORDINATORS

In undertaking the organization of this conference, the intention was to reflect the noticeable growth of interest in and concern about human rights within the Gallatin community. We envisioned a space where debates about the meanings, possibilities and limits of the human rights framework would be encouraged and where members of the community would have the opportunity to engage academics and practitioners in critical discussions about human rights issues and themes beyond the classroom setting. As is typical of the Gallatin administration, these objectives were met with enthusiasm and support, which made the conference possible from the start. Students made suggestions for events and topics and offered their time, support and creativity. Practitioners and academics responded with an eagerness to participate and went beyond their call of duty, connecting planners with speakers and other helpful contacts. This overwhelming response is evidence of the community’s appetite for expanding the scope of engagement with human rights beyond a purely academic setting. The journal you are about to read is a perfect example of this momentum, a product of collaboration amongst members of the Gallatin community, including organizers, journal staff and contributors. The content of the journal reflects the diversity of issues, approaches and critiques of contemporary human rights. The article “Contested Genocide and the Transformation of War” probes the limits of language in defining rights violations. Balancing an acknowledgment of progress with an identification of gaps and shortcomings, “Protecting Transgender Americans” reviews the history of nondiscrimination laws pertaining to the transgender community in the United States. Using a range of case studies, “The Politics of Extradition and Human Rights Violations” explores the role that power dynamics play in human rights-related extradition and prosecution, illuminating the uneven topographies that any legal approach to human rights must confront. “Bamako: Mock(ing) Trial” builds on this to expose the limits of prosecution in the context of the failures of development in Mali as articulated in Abderrahmane Sissako’s film Bamako. Finally, “Human Rights: The Last Utopia?” unapologetically and compellingly delves into crucial questions and debates about the contradictions and casualties of contemporary human rights. Together, these articles offer a timely and critical discussion of the limits and possibilities of the human rights framework—right here on U.S. soil and abroad, in theory and in practice. Our hope is that both the conference and the journal express the Gallatin community’s passion for and commitment to rights issues, and that this sense of collective energy will contribute to Gallatin’s present and future efforts towards this end. We are so grateful for the opportunity to put this together, and hope there will be many more to come. Happy reading! Sincerely, Becky Asch and Arielle Milkman

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CONTESTED GENOCIDE and the

> TRANSFORMATION BY ANNA DUENSING

I. THE HISTORY OF “GENOCIDE” The history of “genocide,” not as a phenomenon, but as a term, spans only a short length of time within mankind’s abysmal history of genocidal acts. A classic case of historical Before-It-Had-a-Name, the study of genocide prior to its twentieth-century naming seems to share with the term itself a certain frustration over the shortcomings of language. Earlier vernacular included terms like “massacre,” “slaughter,” “vandalism” and “barbarity,” all of which seemed to fall short in times both ancient and modern. In the decades leading up to the birth and sanction of the word in the 1940s, the media struggled desperately to express the sheer magnitude of the body counts. Among the 145 stories published in 1915 by The New York Times covering the Armenian genocide, headlines include: “800,000 Armenians Counted Destroyed” and, three months later, “Million Armenians Killed Or In Exile.”1 No available word could concisely convey the unprecedented numbers. One finds similar reports at that time on World War I, with casualties breaching all comprehension. Even as late as August 1941, British Prime Minister Winston Churchill would have few words to describe Nazi atrocities, saying famously, “We are in the presence of a crime without a name.”2 The etymological creation of the word would actually be quite simple, taking Greek and Latin roots—the Greek genos, meaning family, race or tribe, and cide (from the Latin caedere), meaning killing. The man behind the neologism

OF WAR

was Raphael Lemkin, a Polish Jewish lawyer and refugee from Nazi-occupied Europe, who first used the word in a 1944 publication entitle Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress.3 From the outset, the word “genocide” had legal as well as historical implications. As soon as the phenomenon had been named and defined, individuals could be charged and found guilty of it. Given the context of World War II, the crimes of Nazi Germany and the subsequent Nuremberg trials surrounding the endorsement of Lemkin’s term, it is no wonder that the term “genocide” became definitively bound with the Holocaust, the singularity of the killing marking the Shoah as a kind of model event. In truth, Lemkin’s definition established genocide as a distinctly modern phenomenon, notably different from the wars and mass violence of prehistory, antiquity and early modernity. Nonetheless, given his context, Lemkin’s understanding of the word was inextricably linked with war, specifically as an extreme version of illegitimate war. In Axis Rule in Occupied Europe, he wrote that: Genocide is the antithesis of the . . . doctrine . . . [which] holds that war is directed against sovereigns and armies, not against subjects and civilians. In its modern application in civilized society, the doctrine means that war is conducted against states and armed forces and not against populations. It required a long period of evolution in civilized society to mark the way from wars of extermination, which occurred in ancient times and in the Middle

CONTESTED GENOCIDE AND THE TRANSFORMATION OF WAR | ANNA DUENSING Ages, to the conception of wars as being essentially limited to activities against armies and states.4

In this passage, Lemkin clearly distinguishes modern, classic war from the violence of previous ages. Thus, according to this definition, the extremity of genocide is distinct from the mass atrocities of previous periods (religious wars, conquering empires, wars of extermination, et cetera) precisely because the act occurs within the confines of modern war. Sociologists and anthropologists in later years would also attribute the distinct modernity of genocide to the scientific, political, intellectual and industrial revolutions, which took place after 1600, particularly during the long nineteenth century. More specifically, scholars look to the rise of nationalism (Benedict Anderson’s “imagined

Throughout all of these redefinitions and case studies, a debate persists regarding the relationship between war and genocide. Lemkin’s original definition linked the two as notorious bedfellows, with war begetting genocide, or genocide as the foulest and most blatant violation of the rules of war. However close this link was, Lemkin was also adamant that genocide was an element of unjust war, and needed to be specifically defined as such. He struggled with lawmakers in 1946 to draft specific documents outlawing genocide in order to cover any and all loopholes present in current international law. Lemkin’s argument was rooted in intent and aftermath, emphasizing the finality of genocidal acts. As Samantha Power describes in her book “A Problem from Hell”: America and the Age of Genocide, Lemkin felt that “when a group was

“THE WORD WAS INEXTRICABLY LINKED WITH WAR, SPECIFICALLY AS AN EXTREME VERSION OF ILLEGITIMATE WAR.” communities”), the distinction between man and citizen and the increasing role of bureaucracy in politics and law. One also sees a focus on the impact of modern technology and “scientific” or institutionalized racism.5 Despite the term’s roots in modernity, it has been redefined several times because the term was and is very weighty and very polarizing. For every scholar focused on modernity, another turns to prehistory, antiquity and/or early modernity, disregarding Lemkin’s original designation in order to take in a broader scope with a broader definition. Some argue that one can find genocidal incidents in Homer’s Iliad, in the Bible or in Thucydides’ Melian Dialogue from History of the Peloponnesian War. Others have designated Rome’s destruction of Carthage during the Third Punic War as the world’s first genocide.6 Still others point to great conquerors such as Genghis Khan or, centuries later, great explorers such as Christopher Columbus, as the world’s first genocidal agents.

targeted with genocide—and was effectively destroyed physically or culturally—the loss was permanent. Even those individuals who survived genocide would be forever shorn of an invaluable part of their identity.”7 It was through the tireless lobbying of Raphael Lemkin that genocide was officially termed more dangerous than war alone. In December of 1946, the UN General Assembly passed a resolution defining genocide as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of any individual human beings.”8 Two years later the United Nations would draft, pass and ratify the Convention on the Prevention and Punishment of the Crime of Genocide. Articles I and II contain the basic definition of genocide; notably, in this version, genocide is not a crime specifically linked to war: Article I: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake

JOURNAL OF GLOBAL AFFAIRS | SPECIAL EDITION | 2012 to prevent or punish. Article II: In the present Convention, genocide means any part of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.9

This formal (and notably legal) definition represents a great diplomatic-political compromise, but to all parties interested and involved, it seemed simultaneously too broad and too narrow. In subsequent decades, a huge array of scholarly definitions would arise, attempting to critique, supplement or expand the UN definition that went into effect in January 1951. Recognizing the legal necessity for specifics, some would argue that political groups needed to be added as a group at risk. In the framework of the escalating Cold War, the notion of protecting political groups had a particular weight at that time for both the Soviet Union and the United States (both objected to the addition).10 Other scholars critiqued the ambiguity of the phrase “physical destruction in whole or in part,” raising the disquieting but necessary question of numbers and proportions. An outpouring of subsequent sub-neologisms attempted to amend the gaps, including sociocide, eliticide, gendercide, autogenocide, ethnocide (cultural genocide), ethnic cleansing and the all-encompassing democide from political scientist R. J. Rummel.i The general consensus among genocide scholars was that although international law should be respected, it does not have to stand as dogma in historical, sociological, anthropological or psychological understandings and explorations of genocide. Although these fields are still key, and often

linked to international law and transitional justice, they are prominently geared toward studying context, causality and prevention. For the purposes of consistency and clarity, this paper will handle genocide most basically with one ultimate focus: one-sided mass killing of members of a collectivity whose only “crime” is being a member of that collectivity. This focus spans across all instances, whether they be territorial, imperial, colonial, revolutionary, transformative or utopian. This definition also recognizes the historical connection between genocide and forced labor. While the Nazis used both concentration camps and death camps during the Holocaust, the perpetrators of other possible instances of genocide used labor camps exclusively, with the causes of mass death rooted in exhaustion, starvation and disease. In addition to debating the variants and specifics of what constitutes genocide, many scholars in the latter half of the twentieth century raised questions about the significant connections between genocide and war. The inclusion of peacetime violence in the legal definition of genocide speaks to the general nature of law for interpretation and application in the widest variety of particular circumstances. Nonetheless, from an interpretive standpoint, some would argue for the intrinsic connection between genocide and war, making the assertion that all genocides occur within some type of war or broader conflict. Martin Shaw, who has written extensively in favor of this claim, roots his conclusions back to Lemkin’s original writing on genocide as a form of illegitimate warfare. While the dominant narratives of some of the twentieth century’s most well known genocides—the Armenians in Turkey, the Jews in Nazi-occupied Europe and the Tutsis in Rwanda—all maintain context and causality i N.B. Information without citation in this and subsequent paragraphs providing general facts and chronology came from lecture notes taken in May of 2010 at the University of Virginia from Dr. Jeffrey Rossman’s “History of Genocide” course.

CONTESTED GENOCIDE AND THE TRANSFORMATION OF WAR | ANNA DUENSING

in war, Shaw focuses on genocides that occur outside of conventionawarfare. Regarding Communist mass killing under Stalin and in Mao’s China, Shaw reasons that “these regimes had recent histories of civil war and viewed social groups in the fashion of armed enemies.”11 He cautions that this link does not designate a simple and methodical connection between war and genocide, but rather that war and more generally militaristic regimes and ideology have proven to foster conditions for genocide. In his coverage of genocides outside of conventional warfare, Shaw does not address genocides of imperial conquest and expansion from the fifteenth century onward, such as New World slavery and the Scramble for Africa. This is probably exclusionary, but rather indicates that Shaw’s aim is not to prove some steadfast connection by finding plausible genocide-war links in every case. His conclusion is that in creating policies to prevent and curtail genocide, one should consider them closely in relation to modern policies for preventing and curtailing war. Genocides do not occur within vacuums. The broader conditions are key to understanding causality and culpability, both significant factors in the realm of intervention, justice and prevention in the future. To understand Shaw’s reasoning, consider the case of Serbian forces against the Kosovar Albanian community in response to the Kosovo Liberation Army and NATO air war. This case presents a prime example of political leaders and broader conflict driving a resurgence of genocide along ethnic/national identity lines. Furthermore, in the new age of global war, this instance represents both the achievements and failures of the international community in relation and response to genocide. Shaw’s pronouncement to study war and genocide as interrelated forces is vital in considering the transformation of war, from the classic, trinitarian model and total war to the asymmetrical, unrestricted and lowintensity warfare of our time.

II. THE TRANSFORMATION OF WAR An examination of genocide in relation to the transformation of war raises several immediate questions. How has genocide been viewed and identified throughout this transformation? How do the arguments for and against contested cases of genocide relate to war? Looking forward, do conflicts of smaller scale reduce the likelihood of genocidal policy or action? How, if at all, will future genocides occur in relation to future wars? The mass casualties of the Great War legitimized mass violence in the twentieth century and degraded the value of human life in wartime. World War II carried the full wrath of total war and what has been called the “Barbarization of Warfare.”12 The Cold War brought about the possibility of mutually assured destruction, or omnicide, through nuclear war. With the end of the Cold War, historians and theorists like Martin van Creveld began chronicling the transformation of war and making predictions for the future.

“THE KIND OF WAR THAT PROVIDED THE FRAMEWORK FOR THE ORIGINAL ARTICULATIONS OF GENOCIDE NO LONGER EXISTS.”

In 1990, van Creveld predicted the rise of non-state actors—terrorists, guerillas, bandits— whose “organizations are likely to be constructed on charismatic lines rather than institutional ones, and to be motivated less by ‘professionalism’ than by fanatical, ideologically-based loyalties.”13 Furthermore, harkening back to Lemkin’s notion of genocide as both illegitimate war and the antithesis of classic war doctrine, van Creveld emphasizes the added far-reaching nature of asymmetrical war, including civilians as “immediate participants, targets, and victims.”14 Moving into the twenty-first century and in the

JOURNAL OF GLOBAL AFFAIRS | SPECIAL EDITION | 2012

wake of 9/11, military strategists including Qiao Liang and Wang Xiangsui of China introduce the idea of unrestricted warfare, referring to a new extended battlefield that includes terrorism, cyber war, economic war, legal war and more.15 Therefore, the kind of war that provided the framework for the original articulations of genocide no longer exists. In response to the end of the Iraq War, The New York Times published an opinion piece by Steven Pinker and Joshua S. Goldstein entitled “War Really Is Going Out of Style.” The article approaches the war as possibly the last example of an all-out war between two national armies, following the inaction of the Cold War era, the general decrease in casualties and the severe decline of inter-state wars, civil wars and border changes. An argument typical of both Pinker and Goldstein, scholars who have both recently published works on the decline of war and institutionalized violence in our time, the article posits that “today’s civil wars are closer to organized crime than traditional war,” and “today’s rapes, ethnic cleansings and suicide bombings are just as atrocious, but much smaller in scale.”16 If we are to take these assertions as the embodiment of present war, the end of a transformation, how can we see genocide in relation to it? Will there be a reduction in scale or an abrupt end in exchange for small massacres and individual assassinations? Let us apply these questions to three cases within the transformation of war — three places along the arc of changing conflict.

III. DEFINING GENOCIDE WITHIN THE TRANSFORMATION OF WAR: THREE CASE STUDIES Given this background on genocide terminology and the transformation of war, this paper examines three contested cases of genocide and the broader contexts of each event. Spanning from 1904 to 2001, each case exists within a different context of war and conflict,

and thus each will be considered in relation to the transformation of war from classical to asymmetrical in this century. First, we will discuss the treatment of the Herero and Nama people in Colonial German Southwest Africa. Next, we will examine the case of aerial bombing and nuclear weapons during World War II. Lastly, we will look at the far more contemporary case of the September 11, 2001 terrorist attacks on the United States. What were the initial reactions to each event? How has each event been reconsidered by subsequent generations? How is each case considered within the burgeoning field of comparative genocide studies? How does the application of a genocidal framework change our understanding of each event? In applying these questions to each case study, let us first provide a brief global-historical survey of other contested cases of genocide. As discussed previously, genocide is a powerful and ultimately abstract term with an abundance of definitions and subsequent interpretations to consider. When even the most classic and notorious cases of genocide garner great followings of deniers, it is no wonder that the less “by-the-book” cases come up for debate. Arguably the most famous case of contested genocide is the European conquest of the Americas, leading directly and indirectly to the deaths of millions of indigenous peoples and the near complete destruction of their cultures. Records of brutal behavior and massacres extend as far back as 1552, when Bartolome de las Casas made a record of the Spanish in Hispaniola entitled A Short Account of the Destruction of the Indies. His descriptions of the “Horrid and Unexampled Massacres, Butcheries, and all manner of Cruelties, that Hell and Malice could invent” provide a vivid picture of genocidal behavior.17 Sheer physical brutality was a contributing factor, though there were many others in the conquest’s long history, a history including not just Spain but also Great Britain,

CONTESTED GENOCIDE AND THE TRANSFORMATION OF WAR | ANNA DUENSING

France, Portugal, other European actors and, later, the United States. Disease was rampant, alongside starvation and exhaustion, in forced labor camps and through forced deportation to reservations. Although intent is more difficult to prove here, disease was such a common cause of death amongst indigenous peoples that a case for biological warfare via pathogens can be made. One also saw cultural genocide via the forced education of indigenous children in schools run by colonizers. Other cases of contested genocide include the Atlantic slave trade; the Great Famine in Ireland, which many call the Great Starvation; famine crimes in Stalin’s USSR and Mao’s China; mass starvation in North Korea; the case of the Aborigines in Australia; those who disappeared during civil wars, state terror and military dictatorships throughout South America; Ethiopia under the Derg; UN sanctions against Iraq through the 1990s and many others. This list is not complete and is intended simply to introduce the wide range of contested cases in modern times.

A. THE HERERO AND NAMA PEOPLES IN GERMAN SOUTHWEST AFRICA (1904-1908) The experience of the Herero and Nama people under German rule in German Southwest Africa (GSWA) represents a very unique case, one subject to focused attention from revisionist historians and comparative genocide scholars over the last decade. The debate exists on two tiers—first, whether or not this is a case of genocide, and second, if it is, should it be considered a brutal act of colonialism or a precursor to the Holocaust? This second tier is problematic because if it is seen as a colonial genocide, then one opens a revisionist Pandora’s box to examine similar incidents, namely British methods during the Boer War and the Spaniards before them in the Americas. If one considers the Herero genocide a precursor to the Holocaust,

our sense of causality is extended, placing ideas and actors driving Nazi Germany as far back as the turn of the century. To take both approaches and see the Herero genocide as a product of both colonialism and early Nazi ideology, one challenges the traditional and legal confines of causality and culpability, looking instead toward the wider tides of history. Our notion of prevention is altered when one can identify seeds of violence and ideology up to forty years prior to the Holocaust. In 1884, sixty-four years before genocide was a clearly defined a crime under international law, southwest Africa became a German dependency, although it did not see considerable settlement until 1903. This was relatively late in terms of European colonization of Africa. By this time, roughly 5,000 Germans had settled, drawn by poor conditions in German cities and African land ideal for cattle ranching.18,19 In an attempt to justify colonization, German professor and geographer Friedrich Ratzel coined the term lebensraum, or living space, in 1897. He had visions of a vast German empire to accommodate Germany’s increasing population. Up to this point, however, the population boom had only produced slums in Berlin and a large surge of German emigrants.20 In GSWA, settler expectations of uncivilized culture and beliefs in their own racial superiority were challenged when they were met with a people already familiar with Europeans and their colonial exploitations. Adept at animal husbandry and with a secure presence on the land, the Herero people did not fall victims to res nullius laws, more specifically terra nullius when used by European powers in earlier African conquests.21 Having to rent or buy land from the natives, the settlers grew increasingly disgruntled, quickly resorting to coercion and intimidation. This pressure drove some Herero to localized rebellion in early 1904. The rebellion, led by Herero chief Samuel Maherero, left 120 Germans dead.22

JOURNAL OF GLOBAL AFFAIRS | SPECIAL EDITION | 2012

Despite low casualties and isolated revolt, the rebellion unleashed a propaganda campaign in Germany and strong public and government support for a full military takeover. Kaiser Wilhelm II sent new command to replace the “soft” incumbent Governor Theodor Leutwein. This new command was General Lothar von Trotha, an uncompromising leader who felt that “Africans are all alike. They only respond to force. It was and is my policy to use force with terrorism and even brutality. I shall annihilate the revolting tribes with rivers of blood and rivers of gold.”23 He declared war in the colony on May 19, 1904 and in August of that year, Germans were victorious in the Battle of Waterberg, pushing the Herero out and sealing them without resources in the Kalahari Desert.24 Although this was a pivotal battle toward Herero decimation, the full brunt of German force came with a formal document calling for the destruction of the Herero in full—General von Trotha’s Vernichtungsbefehl, or Annihilation Order, issued October 10, 1904: I the great General of the German troops send this letter to the Herero people. The Herero are no longer German subjects. . . . The Herero people must leave the country. If the nation doesn’t do this I will force them with the Groot Rohr [cannon]. Within the German borders, every Herero, with or without a gun, with or without cattle will be shot. I will no longer accept women and children, I will drive them back to their people or I will let them be shot at.25

Concentration camps were established to contain the remaining Herero, kept as prisoners of war. The first, Swakopmund, was a labor camp predominantly for railroad work in the seaside town of the same name, an economic center in GSWA. The second, Shark Island, was built on a desolate island off the coast and held mostly the Nama people, a neighboring ethnic group. Due to the conditions on the island, the fact that inmates were not used for labor and the overall high death rate, historians have come to call Shark Island a death camp. Evidence shows that German studies in racial science were conducted

on Shark Island. Skulls and bodies were collected, examined and sent back to Germany to prove racial inferiority. In both camps, the prisoners were issued numbered metal dog tags and death certificates were preprinted, citing death by exhaustion. By 1908, one half of the Nama people and three quarters of the Herero were dead. Actual casualties are estimated at 10,000 Nama; 60,000 Herero; 250,000 Ngoni, Ngindo, Matumbi and other ethnic groups; and 1,500 Germans.26 Based on the evidence of Shark Island as well as the physical Annihilation Order document, general consensus among historians is that the incident was genocidal, different from other colonial instances of mass violence. However, some have argued that this genocide ruling was made simply on the grounds of connections to the Holocaust in the wake of post-Nazi German guilt and apology culture. In the context of a broader conflict, as a declared colonial war, one could also see this incident as a case of onesided mass killing within asymmetrical war. In considering the case of the Herero and Nama peoples a genocide, asymmetrical in nature and before the transformation of war, what can we learn about war as a veil for greater violence, an excuse for excessive violence? Similar questions are raised in the next case study regarding the Second World War.

B. AREA BOMBING AND NUCLEAR WARFARE DURING WORLD WAR II (1939-1945) The aerial bombing by both Allied and Axis powers during the Second World War left incredible destruction and massive death tolls in its wake. This case study will focus on Allied bombing of German cities, though the Luftwaffe Blitz brought comparable, albeit less extensive, destruction across Britain. With regard to the Pacific Theatre, this case study involves both the fire bombing of more than 60 Japanese cities and the use of the atom bomb on Hiroshima and Nagasaki. 2.7 million tons of bombs were

CONTESTED GENOCIDE AND THE TRANSFORMATION OF WAR | ANNA DUENSING

dropped on Germany during World War II, with civilian death tolls estimated between 300,000 and 600,000 and injuries estimated from 600,000 to 1,000,000. Both of these counts include mostly women, the elderly, children and infants.27 In Japan, an estimated total of 900,000 civilians were killed, with “a single night’s fire-bombing of Tokyo (March 9-10, 1945) kill[ing] between 90,000 and 100,000 people, more than the death toll in the atomic bombing of Nagasaki.”28 Was any of this genocide? The answer to this lies within a broader military perspective: was any of this justified? With regard to Germany, German author W.G. Sebald suggests that because of German guilt, the question was not even considered. “As far as I know,” he wrote, “the question of whether and how it could be strategically or morally justified was never the subject of open debate in Germany after 1945, no doubt mainly because a nation which had murdered and worked to death millions of people in its camps could hardly call on the victorious powers to explain the military and political logic that dictated the destruction of German cities.”29 Sebald is reaching at a very difficult question regarding genocide, justification and our understanding of victimhood. Must one consider such actions as genocidal if one feels the consequences were deserved, a kind of great returning retributory pendulum swing? Sebald’s book specifically chronicles the bombing of Hamburg in the summer of 1943, Operation Gomorrah, carried out by the Royal Air Force with support from the U.S. Eighth Army Air Force, though his account corresponds to similar raids over German cities across the country. “The aim of Operation Gomorrah, as it was called,” he explains, “was to destroy the city and reduce it as completely as possible to ashes.”30 Strategically speaking, this destruction would have the ideal dual effect of obliterating important wartime resources as well as civilian morale.31 Certain genocide scholars, most notably Leo Kuper, have argued that this

raid and all those carried out in both theatres were genocidal due to those very aims.32 At this point, we can turn back to the work of Shaw and to Lemkin’s original definition involving illegitimate warfare. From this perspective, aerial bombing in Germany and Japan was genocidal. It was military strategy, but outside the bounds of legitimate warfare. To counter this, other scholars have argued that the air raids were not genocidal because the civilians were targeted not because of their nationality—whether English, German or Japanese—but instead because they were enemies, reasoning that it would not have occurred in a time of peace.33 Not only is this assertion noteworthy in our discussion of the framework of war around genocide, but it further raises questions about the racist propaganda against the Japanese, suggesting that the raids may have been as much about race and nationality as they were about an “enemy” status. This latter claim is key in the debate over the use of the atomic bomb on Hiroshima and Nagasaki. While some point to numerous testimonies that both bombs were unnecessary at that point in the war, others claim that only the bombing of Nagasaki was genocidal, as the bombing of Hiroshima had achieved the intended strategic impact and another bomb was simply a display of might and bravado. While there are no formal conclusions either way, discussions of genocide in relation to aerial bombardment and the atom bomb inform our understanding of war, technology and civilian deaths today. While modern drone warfare is radically different from World War II blanket bombing in that one target is (typically) ensured, questions of morality and justification are still crucial and necessary, specifically with regard to the targeting of civilians.

C. THE SEPTEMBER 11TH TERRORIST ATTACKS (2001) On the subject of the targeting of civilians, we come now to a more contemporary example, one

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that has yet to garner intense historical debate. Should it be classified as the deadliest terrorist attack in history or a genocidal act with relatively few casualties? How do we even understand genocide in the age of asymmetrical war and low-intensity conflict? Rather than cite historical debates, genocide scholar Adam Jones in his commentary on 9/11 cites a discussion on the H-Net Genocide Discussion Network. He quotes Robert Cribb, an Indonesian specialist, who argues against a genocidal ruling, explaining that “at least 20% of the victims were not American, and it seems pretty likely that the destruction of human life was not for its own sake . . . but to cause terror and anguish amongst a much broader population.34 Despite this logic, as far as the UN definition goes, referring to the language of “in whole or in part,” 9/11 was an instance of genocide. Jones refers to another historian who reasoned that the attack was only limited because the means available to the attackers were limited.35 Considering both sides, if we are to consider 9/11 within the chronology of the transformation of war, as an incident within a broader global war (one in a series of terrorist attacks) as well as the start of the War on Terror, what does that say about the new age of potential genocide and the new age of war?

IV. CONCLUSION: GENOCIDE AND FUTURE WAR Although it is clear that the transformation of war has brought about a transformation in genocide, what does that mean for the future of both? Although it designates a reduction in size and scale of certain kinds of conflict, less brutality and fewer professional armies, scholars

can still point to contemporary instances around the globe which suggest destruction and violence are not on a decline. Furthermore, it is difficult to forget the twentieth-century work of psychologists in response to the Holocaust that showed evidence of humankind, on some basic level, as a genocidal species. In 1951, the Asch Conformity Experiment tested an individual’s tendency to disregard his individual perception if it conflicted with the majority view. The Milgram experiment of 1963 explored the human response to authority figures, studying obedience to orders that go against one’s personal conscience. In 1971, the Stanford prison experiment had to be ended early due to the intensity of the subjects involved when put in the roles of prisoner and prison guard. Although many of these scenarios are structured as frameworks of totalitarianism, modern bureaucracy and institutionalized violence, these qualities are not necessarily lost today within smaller states, electoral democracies and the ideologies of non-state groups. Although genocide can and should be understood outside of the framework of war and broader conflict, more aligned with the UN definition, we should remain vigilant in our study of both phenomena in relation to one another. Working toward prevention requires a study of the past, but if we are to take war and genocide as often-interrelated forces, an examination of the transformation of war is also necessary. Furthermore, if we are to take genocide in its original form, as an extreme case of illegitimate war, we must work with diligence to define and understand illegitimate war in our time, based on our survey of the past.36 <

INFORMAL MARKETS: BETWEEN AGENCY & CONSTRAINTS | BECKY ASCH

BECKY ASCH

Hyena appeasement tradition turned into an opportunity for tourism enterprise Harar, Ethiopia

JOURNAL OF GLOBAL AFFAIRS | SPECIAL EDITION | 2012

INFORMAL > MARKETS: BETWEEN AGENCY AND CONSTRAINT

BY BECKY ASCH

Women ascending to town after a successful trip to the market Open-air market, Lalibela, Ethiopia

These photographs were taken in Kenya and Ethiopia in the summer of 2011, while I worked and traveled in the region, with the goal of capturing the diversity, organization and innovation of “informal” economies, which are widely misconstrued as disorganized, underground black markets. On the contrary, I found that many “informal” enterprises conspicuously form the backbone of daily life for consumers, sellers and suppliers alike. I use the term “informal” here with caution, as these trade networks are intimately connected to formal networks despite their existence outside of officially recognized legal regulatory frameworks. In highlighting the innovative and entrepreneurial nature of these economies, it is important to recognize the constraints within which these traders operate, as well as the cause of the informality; that is, the absence and disadvantages of formal job opportunities and the vulnerability inherent in the traders’ line of work. For many of the traders pictured here, this means a struggle for viable trade areas, extortion and arbitrary detention by security forces, unstable incomes, limited or no access to credit for business expansion and inadequate legal recourse. To be sure, these experiences are intricately linked to many other aspects of life—such as land tenure and health care—and certainly may be framed as human rights violations, although many traders that I worked with preferred to think of them as common sense entitlements even as they sought emancipation using the language of human rights. >

Mama Mboga passing the time with an apple toss Spice Market, Mombasa, Kenya

Gradient of cereal products in Jane Simenyaâ&#x20AC;&#x2122;s stall Suna Marindi Market, Migori, Kenya

“MANY ‘INFORMAL’ ENTERPRISES CONSPICUOUSLY FORM THE BACKBONE OF DAILY LIFE FOR CONSUMERS, SELLERS AND SUPPLIERS ALIKE.”

Henna artist stands out amongst vegetable sellers in the harsh sun Jegol, Harar, Ethiopia

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PROTECTING

> TRANSGENDER BY REBECCA BROWN

AMERICANS:

In 1868, the fourteenth amendment was added to the Constitution of the United States. Section One of the amendment, known as the Equal Protection Clause, states that “No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”1 One would assume that this means that all persons living in the United States are guaranteed the same federal rights and protections. However, this guarantee has not been consistently upheld throughout American history. Transgender Americans have repeatedly been denied the basic civil rights afforded to other citizens. In a variety of settings ranging from housing to education to the classification of hate crimes, the transgender community has consistently faced discrimination at the federal, state and local levels. Compared to the world at large, America is one of the leading countries in the protection of transgender citizens. Only Spain, Australia and Pakistan offer federal, nationwide protections to transgender citizens. Canada, Ecuador and Argentina, like the United States, legally protect the rights of transgender people in certain locations. On the other end of the spectrum are Algeria and Chile, where being transgender is legally classified as a mental illness. Currently, 76 countries outlaw homosexuality, of which seven declare homosexuality a crime punishable by death. Across the globe, the transgender population is often forgotten, unrecognized or not legitimized. In the struggle to secure basic rights and protections for gay, lesbian and

STATE GENDER IDENTITY NONDISCRIMINATION LAWS

bisexual citizens, transgender citizens are being left behind. As one of the most influential nations of the world, America must lead by example and grant basic rights to all citizens. As lesbian, gay, and bisexual rights have not yet been secured on a national level, the fight for transgender rights has been forced to take place on a state level to ensure effective change. Currently, approximately one third of the U.S. population resides in the sixteen states and more than 140 cities and counties (including Washington, D.C.) that have nondiscrimination laws that specifically forbid the use of gender identity as a basis for discrimination. This leaves a large percentage of America’s transgender population completely unprotected from discrimination and hate crimes. In this paper, I will explain to whom gender identity nondiscrimination laws apply and examine the necessity of transgender nondiscrimination policy at the state level. I will then look at the process that led to the recent passing of An Act Relative to Transgender Equal Rights in Massachusetts, highlighting the importance of activism—especially in education and lobbying—in passing policy that protects transgender Americans. Finally, I will make a few recommendations for the future of transgender nondiscrimination legislation and policy. For many Americans outside of the lesbian, gay, bisexual and transgender (LGBT) community, “transgender” and “gender identity” can be confusing terms and are often misunderstood as relating to sexual orientation. Considered an umbrella term for gender-nonconformity, transgender has come to refer to “people whose

PROTECTING TRANSGENDER AMERICANS | REBECCA BROWN

feelings or behaviors do not match their assigned gender.”2 This term covers various aspects and definitions of gender nonconformity including, but not limited to: crossdressers, male to female, female to male, genderqueer and transsexual. The phrase “gender identity” is often used in context with transgender. Gender identity is defined as “a subjective sense of oneself as male, female or other.”3 Although often related, and even connected, to gender identity, the term sexual orientation refers to “whom one is attracted to.”4 It is important to make the distinction between gender identity and sexual orientation because, while many states and municipalities have laws and statutes that protect against discrimination based on sexual orientation, these laws and statutes do not protect against gender identityrelated discrimination. Thus, the transgender population is left vulnerable to discrimination and harassment. Why are laws protecting gendernonconformity important? Why are sexual orientation nondiscrimination laws not sufficient? The transgender population is simultaneously one of the most often forgotten and most often discriminated against populations in America. The report “Injustice at Every Turn,” recently published by the National Gay and Lesbian Task Force with the National Center for Transgender Equality, is the first completely comprehensive study to record and analyze various types of discrimination and their effects on the transgender population in the United States. This report collected and analyzed data from 6,450 transgender and gender-nonconforming participants, and its results show that there is an extremely urgent need for policy protecting gender identity and the well being of transgender Americans. Discrimination against transgender Americans is apparent in every aspect of life from education to housing to employment. The study reports that in grades K-12, 78% of respondents were harassed and 35% were physically assaulted;

19% of respondents have been refused housing and 19% have been homeless at some point in their lives due to their gender expression. The transgender unemployment rate is 14% (twice that of the country as a whole), 26% of survey respondents had been fired due to their gendernonconformity and 50% reported gender identity-related harassment in the workplace.5 This discrimination not only makes basic needs and rights more difficult to access, but can also have long-lasting detrimental emotional and mental effects. These effects can lead to substance abuse as well as a host of mental disorders. It is clear that action must be taken soon to protect the civil rights of this oppressed population. Currently, approximately half of the population of the United States lives in states or municipalities with sexual orientation-specific nondiscrimination laws, while only one third of the country lives in states or municipalities with gender identity-specific nondiscrimination policies. The first gender identity-inclusive nondiscrimination ordinance was passed in 1975 in Minneapolis, Minnesota. Gender identity was added to the 1974 sexual orientation nondiscrimination ordinance in a major revision of the city’s human rights standards. Then, in 1993, Minnesota became the first state to pass a statewide gender identity nondiscrimination law.6 However, beginning in 1993, progress slowed until the turn of the 21st century. Although the passage of gender identity nondiscrimination laws has recently taken a back seat to the issue of marriage equality in the LGBT rights movement, the fight for transgender equal rights has been gaining momentum in states where samesex marriage has already been legalized. For example, in the state of New York, where samesex marriage was made legal in June of 2011, the Gender Expression Nondiscrimination Act (GENDA) is currently being considered by the state legislature, and is likely to pass. On November 23, 2011, Deval Patrick, Governor of Massachusetts, signed “An Act

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Relative to Transgender Equal Rights” which protects transgender and gender-nonconforming people from discrimination in all sectors excluding public accommodations. The bill, originally entitled “An Act Relative to GenderBased Discrimination and Hate Crimes,” was introduced to the Massachusetts Congress by Representatives Carl Sciortino and Byron Rushing in 2007. In 2008, the bill was sent to study and no further action was taken. In 2009, the bill was reintroduced but was never acted upon. In 2011, the bill was introduced a third time under its current title: “An Act Relative to Transgender Equal Rights.” After the bill was edited to exclude content regarding nondiscrimination in public accommodations such as hotels, airports and public restrooms, it was passed in the House by a vote of 95-58. It was then passed in the Senate as well and signed by Governor Patrick, who had been a longtime supporter of the bill. The passage of the bill is largely attributed to an intense level of activism. The strategy that led to the successful addition of the term “gender identity” to sexual orientation nondiscrimination laws and hate crime laws can shed light on a way to approach the creation and passage of similar amendments and new laws in other states.

“ONE OF THE KEY FACTORS THAT LED TO THE PASSING OF THE BILL WAS THE EDUCATION OF THE PUBLIC.”

One of the key factors that led to the passing of the bill was the education of the public. The transgender population is often overlooked by the public and remains in the shadow of the gay rights movement. The Massachusetts Transgender Political Coalition, as well as other Massachusetts-based LGBT equality groups, realized that the lack of action on the bill was due to a lack of awareness. Legislators and the public were unaware of the transgender community and why it needed specific protection from the state.

Transgender equality groups mobilized to reach out and educate the public about what it means to be transgender or gender-nonconforming. This education included explaining the devastating effects of rampant gender identity-based discrimination and why legislation addressing it is incredibly urgent and necessary. One highly effective educational tool was the “I Am: Trans People Speak” video campaign. Launched by the Massachusetts Transgender Political Coalition, the campaign aimed to educate the public by challenging “stereotypes and misconceptions of transgender individuals”7 with stories told by a diverse mix of transgender individuals. As the people of Massachusetts became more informed about the transgender community, the bill’s importance was recognized and it gained much needed support across the state. In order to please their constituents and ensure their reelection, politicians were forced to pay attention to and take action on the bill. In any state, educating the public is a key step in taking action on gender identity nondiscrimination legislation. Since the majority of politicians are focused on gaining local support to maintain their positions, they seek mainly to please their constituents. As people become more aware of the need for legislation protecting transgender Americans, they put more pressure on their legislators to pass it. The second factor that played a major role in the passage of the bill was intense lobbying by activists. Because the bill had remained inactive since 2007, Massachusetts’ transgender activists realized that it was time to demand legislators to act. Various LGBT rights groups partnered with the Massachusetts Transgender Political Coalition to lobby extensively with Massachusetts legislators. They educated these legislators on the dire situation of the legally unprotected transgender population. Thanks to their efforts, the bill gained support from such key figures as Senator Sonia ChangDiaz, Senator Ben Downing, Senate President

PROTECTING TRANSGENDER AMERICANS | REBECCA BROWN

Therese Murray and House Speaker Robert Deleo. These supporters worked hard to urge the Massachusetts legislature to pass the bill. The Massachusetts Transgender Political Coalition held Trans Equal Rights Lobby Day in June of 2011, encouraging supporters of the bill to gather at the State House for a program and to meet with their district legislators to personally discuss the importance of the bill. Activistsâ&#x20AC;&#x2122; hours of hard work and dedication brought needed attention to the bill so that action could finally be taken on it. In June of 2009, Delaware passed Senate Bill 121 which banned discrimination in employment based on sexual orientation. However, this bill lacked any protection regarding gender identity. According to Mara Keisling, the founder of the National Center for Transgender Equality, the non-inclusion of gender identity in the law is due to poor activism.8 The LGBT community and, more specifically, the transgender community, failed to organize and mobilize when the bill was being voted on. Unlike Massachusetts, Delaware does not have a central transgender equality group. Minimal effort was put into lobbying, and educating the public was not even considered. Had Delaware activists taken a similar approach to the one taken by the Massachusetts activists, it is likely that gender identity issues would

have received the necessary attention and consideration. However, because transgender activism was not taken seriously there, Delaware is the only state to recently pass a sexual orientation nondiscrimination law that does not include protections for gender identity. Though much significant progress has been made in the last ten years in obtaining legal protection for the transgender community, there is still much work to be done. An overwhelmingly large percentage of this oppressed group still remains unprotected by the law and thus is not guaranteed essential human rights. As was demonstrated by the recent passing of the Massachusetts gender identity law, the hope for change lies in the hands of LGBT and transgender activists. As GENDA is starting to become a reality in New York, groups such as the New York Association for Gender Rights Advocacy and the Empire State Pride Agenda have been following Massachusettsâ&#x20AC;&#x2122; lead in terms of hard work and dedication to activism. As citizens across the country become more aware of the transgender community and the devastating effects of discrimination and as politicians across the country are pressured to take action to protect the freedom of gender identity and expression, more gender identity nondiscrimination laws are sure to pass. >

JOURNAL OF GLOBAL AFFAIRS | SPECIAL EDITION | 2012

THE POLITICS

> HUMAN EXTRADITION and RIGHTS VIOLATIONS of

BY LEIGH ROME

Today, human rights-related extraditions are an important and contested reality of conflict and post-conflict societies. Especially in contexts where the prosecution of certain individuals is seen as a necessity for a successful transition from violence, the politics of extraditing human rights offenders is closely linked to ideas of what justice itself is. This link dovetails with global power dynamics, as the defining of justice is ultimately a political struggle for power.1 As international law developed, definitions of accountability became malleable. Countries began to prosecute actors in conflicts outside of their borders for crimes committed against other countries’ citizens. This trend has had significant consequences for state-to-state extradition agreements and the International Criminal Court, and raises questions of the appropriateness of extraditing human rights offenders.

I. THE POLITICS OF EXTRADITION

Extradition is a policy of mutual assistance in criminal matters between states. It is predicated on the idea that states are sovereign entities, and while they may agree to cooperate with extradition requests, the decision to extradite remains at the discretion of the hosting government. However, the theory that states only exercise jurisdiction within their territorial boundaries was challenged by extradition attempts surrounding human rights questions. Additionally, since international law relies on state-to-state interactions, global power structures are important to consider. Power biases have led to a human rights system in which atrocities committed in countries with

less political bargaining power are subjected to much more scrutiny than atrocities committed by powerful countries.2 Taking the political aspects of the issue into account helps to explain why certain extradition requests are denied and others accepted. For example, in cases where the potential extraditee is powerful or wealthy, extradition is less likely to take place, regardless of the offense. Furthermore, since extradition is a politically charged negotiation, the acceptance or refusal of an extradition request will often have national political consequences. In some cases, suspected guilt or innocence is not relevant; an individual might not be extradited because “the prosecution of [that] particular case or individual might also be a source of conflict or embarrassment, either because of foreign policy or internal politics.”3 In the face of massive human rights violations, the pressure is higher. It is not always clear who has the right to try those linked to crimes of mass atrocity. In light of this conundrum, the concept of universal jurisdiction arises.

II. UNIVERSAL JURISDICTION AND THE CASE OF ADOLF EICHMANN Before considering whether universal jurisdiction is a legally sound or socially useful option in the context of human rightsrelated prosecution, one must first consider the parameters of jurisdiction generally. There are three kinds of jurisdiction that national courts control: “crimes committed in their territory, crimes committed by their citizens, or crimes that affect their national interests.”4 In this formulation, states do not have

THE POLITICS OF EXTRADITION AND HUMAN RIGHTS VIOLATIONS | LEIGH ROME

jurisdiction outside of their territory, for this would challenge the sovereignty of other states. However, states can—and do—circumvent this strict interpretation of jurisdiction. First, states can claim “passive personality jurisdiction,” arguing that they have jurisdiction because their nationals were victims of a human rights violation.5 Second, states claim that the offense triggers universal jurisdiction. Whether an offense actually warrants universal jurisdiction is determined by the nature of the crime. According to legal theory, some offenses are so repulsive that territorial jurisdiction is irrelevant, due to the assumption that said crimes affront humanity as a whole. One prominent example of an extradition attempt that relied on universal jurisdiction was the case of Adolf Eichmann, the Lieutenant Colonel in charge of the Race and Resettlement Office in Nazi Germany, who was tried in Israel in 1960. Eichmann’s defense attorney claimed Israel did not have standing to try his client, in part because Eichmann’s crimes took place outside of Israel. Israeli Attorney General Gideon Hausner argued that universal jurisdiction allowed Eichmann to be tried in Jerusalem: “These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offenses against the law of nations itself. Therefore . . . international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial.6” The Jerusalem court granted jurisdiction on the grounds that, “The intentional character of the “crimes against humanity” . . . is, in this case, not in doubt. . . . The State of Israel was entitled . . . acting in the capacity of guardian of international law and agent for its enforcement, to try the appellant.”7 The Eichmann case was one of the first major instances where universal jurisdiction was justified in court. A second crucial case was that of Augusto Pinochet.

III. THE CASE OF AUGUSTO PINOCHET The reign of General Augusto Pinochet in Chile has been characterized as one of brutal repression and human rights violations. However, before leaving office, Pinochet granted himself amnesty and thus could not be prosecuted in Chile for his human rights offenses. In light of this, a criminal complaint was filed in Spain in June 1996 accusing Pinochet of genocide, terrorism and torture. The complaint argued that Spanish courts had jurisdiction even though the crimes had, for the most part, not been committed against Spanish citizens and took place outside of Spain.8 To justify this reasoning, the complaint relied on a Spanish law that allowed jurisdiction over acts outside of Spain if they were categorized as “acts of terrorism” under Spanish law. There were several situational factors that influenced the Spanish judge’s ability to indict Pinochet. Firstly, Spain could justify bringing a case because Pinochet had amnesty in Chile, and therefore could not be prosecuted elsewhere. Secondly, the Spanish government was in political transition; the Spanish public supported the Pinochet case and the new government was not interested in opposing it. Thirdly, the contemporary international legal environment was enabling: international criminal tribunals for Rwanda and the former Yugoslavia had set a precedent of courts trying crimes committed elsewhere. Spanish Judge Manuel Garcia Castello accepted the Pinochet case, but it was eventually consolidated with other South American cases under Judge Baltasar Garzón. Little formal progress was made until 1998, when Pinochet went to London for surgery. Cooperation between non-governmental organizations and organized Chilean expatriates focused international attention, and Judge Garzón formally indicted Pinochet, sending a request via Interpol for British authorities to hold Pinochet

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for questioning.9 Here, the extradition effort met the first in a series of hurdles: the British police could not guarantee Pinochet’s questioning and the only remaining option was for Spain to ask for an arrest order. The warrant for Pinochet was ultimately approved, but legal problems remained. The crimes in the initial warrant were not worthy of extradition under British law, so Spain issued a second warrant listing different crimes.10 At that time, it was still not clear whether or not Spain had jurisdiction even if Pinochet were to be extradited. Spain was claiming extraterritorial jurisdiction, controverting the conventional idea of extradition, which depends “upon the notion of

those committed after 1988, when the United Kingdom implemented the Convention Against Torture. Pinochet’s defense team continued to appeal, and at the same time Pinochet’s health became a concern. A team of British specialists deemed Pinochet unfit to stand trial, and Spain accepted the decision. However, after Spain stopped fighting for Pinochet’s extradition, Belgium announced that they intended to take the case to the International Court of Justice and asked to conduct their own medical examination.13 Jack Straw, the Home Secretary of Britain, who had allowed two other attempts at Pinochet’s extradition, now decided at this point Pinochet was simply

“HOW MORALITY IS CODIFIED IN INTERNATIONAL LAW DISADVANTAGES CERTAIN CONCEPTIONS OF JUSTICE WHILE PRIVILEGING OTHERS.” separate sovereign states exercising jurisdiction only within their territorial boundaries.”11 It was thus necessary to argue in Spanish courts that the Pinochet case could be heard. Jurisdiction was affirmed in the Appeals Chamber of the Spanish Audiencia Nacional. The Spanish courts held that they were not constrained by Chile’s domestic amnesty laws because Pinochet’s crimes were characterized as genocide; although universal jurisdiction in matters of genocide was not definitively allowed by the 1948 Genocide Convention, to which Spain was a party, it was consistent with the intent of the drafters.12 This having been decided, focus turned back to the House of Lords in Britain, where the question of Pinochet’s immunity had been appealed. Two landmark decisions by the House of Lords denied Pinochet’s diplomatic immunity and allowed extradition processes to move forward. The first decision declared that there were certain egregious crimes in which head-of-state immunity did not apply. The second decision reduced the charges to

unfit to be tried, and therefore, extradition could not proceed. Pinochet returned to Chile, where formal legal complaints listing him as a defendant multiplied rapidly; by 2004, there were almost 300. Although international attempts to try Pinochet failed, they left a lasting legacy: the notion—confirmed by one of the world’s most venerable legal institutions—that torture and conspiracy to torture are not protected by former state position.14 The Pinochet case legitimized the notion that some crimes do not have to occur in a national context to be prosecuted, leading to early debate about how transitions are viewed and managed when the old regime has been accused of human rights violations.

IV. EXTRADITION POST-PINOCHET: JENS SOERING AND VIKTOR BOUT Extradition can create tensions between states and trigger human rights questions.15 In some cases, different standards of punishment and torture have prevented extradition, as occurred in the case of Soering v. United Kingdom.

THE POLITICS OF EXTRADITION AND HUMAN RIGHTS VIOLATIONS | LEIGH ROME

Jens Soering—a citizen of West Germany—and Elizabeth Haysom, who were classmates at the University of Virginia, conspired and killed Haysom’s parents in Virginia. The pair then fled to the United Kingdom. In 1985, a Grand Jury in Virginia indicted Soering for capital murder of the Haysoms and non-capital murders of Mr. and Mrs. haysom individually. The United States requested extradition based on a 1972 extradition treaty with the United Kingdom. In Britain, Soering filed a petition claiming that he could not be extradited for a capital charge and made appeals to the Judicial Committee of the House of Lords, as well as the Home Secretary. Despite Soering’s protests, the United Kingdom ordered his extradition. Soering then filed a claim with the European Commission of Human Rights on the grounds that he would face “inhumane” treatment if extradited, since Virginia allowed the death penalty. The case was referred to the European Court of Human Rights, which found the following: The absolute prohibition on torture and on inhuman and degrading treatment or punishment…enshrines one of the fundamental values of the democratic societies making up the Council of Europe.…It would hardly be compatible with the underlying values of the Convention, were a Contracting Party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment.16

Further developments notwithstanding, the United Kingdom received assurance that the death penalty would not be sought, and Soering was ultimately extradited. The Soering case set a precedent: many European nations added legislative provisions for refusal of extradition where human rights would be violated in the requesting state.17 Soering also raised questions about who can determine what “cruel and unusual” punishment is and what kinds of practices are

“humane” or “barbaric.” The Soering decision seems to posit that there is a universal domain of what is right that can be discerned, despite the reality that interpretations of what is moral vary immensely worldwide. How morality is codified in international law disadvantages certain conceptions of justice while privileging others. Another concern is that extradition focuses too much on the rights of states at the expense of individual due process rights. The reality is that in extradition law, “the basic purpose of the law was still to determine whether the requesting state had a right to the surrender, not whether the extraditee had a right not to be surrendered.”18 Furthermore, “the incremental and caustic response of extradition law to this development fails to provide a proper legal framework for the balancing of the human rights of the fugitive and the interest of states in the suppression of transnational crime.”19 In this system, there is potential for individual human rights to become subordinate to national policy concerns. This apprehension was multiplied by recent developments surrounding the so-called “political offense exception” to extradition. This exemption, which provides protection to individuals being sought for political reasons, previously allowed individuals who would not be given a fair trial to protest their extradition. However, “recent attempts to combat terrorism through the use of multilateral agreements and judicial decisions permitting terrorists to claim a political offense exception, as a defense to extradition, have lead to increasing revisions of bilateral treaties and a narrowing of the political offense exception in general.”20 Countries do not want terrorists, whose aims are often political, to be immune from extradition. The case of Russian arms dealer Viktor Bout demonstrates the limitations of the political offense exception, as well as the convergence of issues of extradition and human rights. Viktor Bout is an international arms dealer who has been nicknamed the “Merchant of

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Death” for his suspected weapons dealings. In 2008, after two decades of tracking Bout, the U.S. government created a sting operation in which Drug Enforcement Agency informants, pretending to be the FARC terrorist organization of Columbia, negotiated a weapons deal with Bout in Thailand. Thai authorities immediately apprehended Bout and his associate, Andrew Smulian. Pending criminal charges against Bout in the Southern District of New York led the United States to attempt to extradite in 2008. Bout objected that the case for extradition was based on political motives, and claimed that there was an exception in the Thai-U.S. Extradition Treaty for political offenses. As Article 3 of the treaty stipulates, “Extradition shall not be granted when: A. The offense for which extradition is requested is a political offense, or B. It is established that extradition is requested for political purposes, or C. The offense for which extradition is sought is exclusively a military offense.”21 On these grounds, the Thai Court of First Instance denied the Extradition Order. Bout could not be extradited because the United States did not have sovereignty in the states where Bout’s crimes were committed. The prosecutor appealed, and the Thai Appeals Court, after considering arguments of Bout’s nationality; that the crime charged was not extraditable; that the offence was of a political character; and that there was insufficient evidence, found that Bout was, in fact, extraditable. Extradition cases for foreigners in Thailand cannot go to the Supreme Court, so the appeal decision was binding. When Bout was ultimately extradited and tried in the United States in the fall of 2011, Russia decried that this was not a fair trial or extradition. The Russian media ran stories claiming that it was impossible for Bout to receive a fair trial in the United States. Bout’s subsequent conviction raised further fury in the Russian press, and it is likely that his sentencing will be preceded by diplomatic intervention.

V. EXTRADITION AND THE INTERNATIONAL CRIMINAL COURT Alongside the interplay of human rightsrelated extradition and universal jurisdiction, other critical developments have affected international law. The establishment of the International Criminal Court (ICC) was one such development. The creation of the ICC was not straightforward. First, a series of negotiations and Preparatory Committee sessions were held to determine the structure and scope of a potential mandate. These sessions lead to the Rome Conference and the Rome Statute, which created the ICC. The Rome Statute was passed in 1998, and the court came into force in 2002, once sixty nations had ratified the statute. Today, 139 countries have signed the ICC treaty and 120 have ratified it. The Rome Statute codified the underlying principles for the new court. Firstly, the ICC was given the mandate to hear cases dealing with only four kinds of crimes: war crimes, genocide, crimes against humanity and crimes of aggression. Secondly, the ICC was to adhere to existing traditions of international law. Thirdly, the mandate includes the principle of complementarity, as outlined in Article 17a, meaning the Court only acts when national legal systems are unwilling or unable to do so. The ICC was intended to be a court of last resort, whose arsenal would be triggered only if treaty parties could not or would not act. However, although there was supposed to be a certain “primacy” of national governments over the ICC, this right has not been absolute. As anthropologist Kamari Maxine Clarke points out, once arrest warrants were issued for Ugandan LRA members, traditional justice procedures such as mato oput, an Acholi reconciliation ceremony that could lead to the abatement of conflict through amnesty, could not be permissible as long as Uganda remained party to the ICC.22 Mato oput thus became a competing mechanism existing alongside the ICC.23 The

THE POLITICS OF EXTRADITION AND HUMAN RIGHTS VIOLATIONS | LEIGH ROME

ICC’s political decisions on appropriateness “extend into political and moral arenas, thereby including many considerations and purposes.”24 The ICC promulgates that domestic processes must meet certain “international standards.” How these standards fit in with global power dynamics is controversial. The insistence of certain judicial norms, or more accurately, the assertion of the legal systems of states in the Global North over those of the Global South “has thus come to cloak an unequal distribution of power in a language of jurisdiction and membership.”25 Even within the Rome Statute, certain kinds of violence are justified, for example, what subordinates will do when commanded by their superiors, while other acts of violence, such as jihad, are classified as crimes committed in peace and therefore have stricter repercussions.26 Despite language of secular objectivity, the Rome Statute is rooted in “Western” epistemology, causing many to claim that the ICC is a biased institution. Another divisive aspect of the ICC is the way in which jurisdiction is structured. Individuals can only be extradited and tried by the ICC if they are citizens of a country that is a party to the Statute or commit a crime in a country that is a party, unless there is a Security Council referral. Article 12, which declares ICC jurisdiction, is controversial in that it grants the ICC power to “exercise such jurisdiction over anyone in the world, even in the absence of a referral by the Security Council, if either the state of the territory where the crime was committed or the state of nationality of the accused consents.”27 The United States found this aspect problematic in light of national interests, and despite being heavily involved in the negotiation of the ICC, it has yet to join.28 The United States has also attempted to undermine the nascent court. Firstly, the United States made bilateral immunity agreements (BIAs) with countries party to the ICC. These agreements “contain promises by one or both

parties that no surrender of citizens of the other signatory would be made to the ICC absent both parties’ consent,” and try to ensure that the ICC cannot trump U.S. law.29 President Bush also signed the American Service Members’ Protection Act of 2001, which additionally protects the U.S. armed forces from the ICC. In 2004, the Nethercutt Amendment was added, which prohibited foreign aid to countries that were parties to the Rome Statute but had not signed BIAs. These actions were intended to remove Americans from the jurisdiction of the court.30 It is unclear whether these agreements mean anything—the ICC does not allow exemptions, and thus signing a BIA with the United States that attempts to either preempt the Rome Statute or withdraw post-facto may not bear weight. However, BIAs are indicative of the way power dynamics influence global conflict management within the ICC. Today, the idea that the ICC is an impartial body is contested, but theoretically, the ICC should provide a more neutral forum for extradition when compared to state-to-state extradition in the aftermath of human rights violations. Firstly, the ICC could guarantee individual rights and focus less on states in the extradition process, since international law rather than national law is its basis.31 The ICC could also potentially dilute the control of powerful nations over their extradition partners, since the same rules theoretically apply to all. This has not necessarily come to pass. To see why, one must look at the ICC’s track record in extraditions. Thomas Lubanga Dylio was the first person to be arrested under an ICC warrant, the first in a string of ICC warrants for African citizens. Indeed, the ICC has opened official investigations into seven “situations” in Africa, and all of the open cases currently being heard in the ICC relate to Africa. Of the twenty-six indictments issued by the ICC, all have been for citizens of African countries. The only caveat to what has

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become an African-centric court is that there are recent preliminary investigations underway in Afghanistan, Columbia, Georgia, Honduras, Palestine and Korea, and closed examinations in Iraq and Venezuela. This “African bias” has been one of the main criticisms of the ICC. President Paul Kagame of Rwanda has referred to the ICC as “neo-colonial” and the African Union has accused the ICC of concentrating on Africa while ignoring crime elsewhere. Clarke finds that the ICC’s preoccupation with Africa “is a response to, and exacerbates stereotypes of, an Africa that is politically fragile, legally inept, and economically volatile.”32 This frustration was exacerbated with the indictment of current Sudanese President Omar Hassan al-Bashir in 2009. Bashir was the thirteenth African to be indicted by the ICC, and the first sitting president. As recently as 2011, the ICC has become involved with two new controversial extradition claims on the African continent, issuing warrants for both Saif-Al-Islam Gaddafi and Abdullah Al-Senussi of Libya, and taking Laurent Koudou Gbagbo, former President of Côte d’Ivoire, into custody. The ICC faces something of a public relations crisis and severely damaged image with critics openly speaking out against the African bias of the court. The role ICC extraditions will play in transitional contexts in the future remains uncertain.

VI. EXTRADITION AND HUMAN RIGHTS VIOLATIONS

The ways in which the ICC has approached extradition processes in transitional justice contexts are narrow. While extradition could potentially provide an alternate avenue into promoting human rights processes, the Global North and the Global South will not operate on equal levels so long as international power dynamics underpin these processes. Furthermore, aside from these internal contradictions, it is worth questioning whether extraditions and the criminal prosecutions they lead to are desirable in the aftermath of human

rights violations. Putting an individual on trial, even one who has committed known atrocities, may serve to decontextualize the crimes he or she is charged with. In addition, it must be considered that legal justice may not be desired, or be a high priority, in countries that are emerging from repressive and violent regimes.33 In Burundi, Ann Nee and Peter Uvin identified a communal desire for silence, which contradicted what transitional justice experts of a retributive tradition thought should take place in the aftermath of widespread human rights offenses. The reasoning was that pure speech could not undo what had happened, so no significant good could come out of it. There is also much excluded from justice if prosecutions are the only solution. Prosecutions that emphasize command responsibility may reassign responsibility for crimes while disregarding the root causes of violence.34 The question remains as to whether a normalized and prolific transitional justice field focused on remedying human rights abuses is a positive step to cultivating global peace. Finally, extradition may be useful in the aftermath of human rights abuses, but the underlying conditions for extradition, whether between states or to the ICC, must be reexamined. There is also a potential precedent to be set for a new class of perpetrators who cause irreparable harm in ways other than direct violence. For example, if the IMF or World Bank chief changes loan conditions—as happened in the 1980s under strict neo-liberalism and structural adjustment—in a way that prevents indebted governments from investing in social services that protect their people, is the World Bank or IMF responsible for the deaths that happen when healthcare is terminated? Since there is no consensus on how and when extradition should be used, the way in which these tensions are resolved may very well open up new space and reconfigure how we perceive the boundaries of prosecution in the context of human rights violations. >

PEOPLE OF PERU | BRANDON KNOPP

BRANDON KNOPP

El bautismo de Marcello, un buen amigo The baptism of Marcello, a good friend

PEOPLE of > PERU BY BRANDON KNOPP

Torovia Mayta, 77, cares for the many animals of Santuraio Animal de Cochahuasi

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MUSIC on the STREETSof CUZCO

PERU | BRANDON KNOPP

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BAMAKO:

> MOCK(ING) TRIAL Abderrahmane Sissako’s Bamako is a complex and brilliantly constructed statement about culpability and suffering, practice and rhetoric, and justice and injustice involved in Africa’s post-colonial experience.1 Set in a courtyard in Hamdallaye, a poor neighborhood in Bamako, the capital of Mali, the film centers on a mock trial in which African civil society is suing the World Bank and the International Monetary Fund over the impacts of structural adjustment in the country. Throughout the film, Sissako weaves in personal stories that lend insight into the proceedings’ implications and relevance for the surrounding community, as well as the way that neoliberal reform has impacted the ethics of everyday life there In the first section of the paper, I give a brief overview of structural adjustment in Africa. In the next section, I discuss the content of the mock trial and its construction of international financial institutions’ (IFIs’) culpability for the consequences of neoliberal reform. The third section explores the way that the film expresses African complicity and collective responsibility in this reform, both in the space of the trial and outside of it. In the final two sections, I deconstruct the way that Sissako situates the trial within global power structures and Malian society, and the statement this makes about the trial’s capacity to deliver justice. I will put Sissako’s portrayal of the trial’s value in conversation with transitional justice debates about criminal prosecution, the construction of victims and witnesses, and the power structures embedded in these processes. In particular, I will focus on the trial’s representation in relation to anthropologist Kamari Clarke’s discussion of legal incommensurability in Africa in Fictions

BY BECKY ASCH

of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa.2 I argue that the mock trial in the film can be understood as exactly that, a “fiction of justice,” mocking the prospect of prosecution in such a context and, by extension, as a statement about the injustice of the situation and the impossibility and insignificance of such a trial in its midst.

I. AN OVERVIEW OF STRUCTURAL ADJUSTMENT IN AFRICA

At the start of the 1970s, many Sub-Saharan African economies had sustained modest yet relatively steady growth, mostly based on raw material export earnings. The dependence on exports rendered these economies vulnerable to the volatility of the global market, so when the price of oil spiked in 1973, and again in 1979, export-oriented African economies felt the effects both in the cost of fuel and the decreased demand for African exports. In the meantime, the World Bank and the International Monetary Fund (IMF) were flooded with petrodollars from the oil spikes. Faced with shrinking revenue, many African governments turned to these IFIs for assistance, and the IFIs were eager to provide it.3 These credit negotiations were deeply embedded in the Cold War competition over influence that played out on the African continent, and the terms of the loans must be understood as part of the “First World” project to advance capitalism. In the early 1980s, the famous Berg Report commissioned by the World Bank laid the foundation for the conditions of IFI assistance to Africa by attributing poor economic conditions to African government intervention.

BAMAKO: MOCK(ING) TRIAL | BECKY ASCH

The loans, known as structural adjustment loans, were then given with requirements for significant neoliberal economic reform with the goal of allowing market forces to stabilize the economy by reducing state intervention. Specifically, this involved the removal of government subsidies; reduction in spending on social services; devaluation of national currencies; and privatization of state-owned enterprises. In the years that followed, many African states that had undergone structural adjustment were faced with indebtedness, rising formal unemployment, impoverishment, declining social services, widening income inequality and decaying infrastructure.4 Many Africans who bore the weight of structural adjustment attributed these conditions to the IFIs and their African partners who had implemented the reforms. It is in this context that Sissako makes his cinematic intervention, with African civil society bringing IFIs to court for the destructive consequences of structural adjustment in Mali.

II. TESTIMONIAL CONSTRUCTIONS OF CULPABILITY FOR INEQUALITY

The trial in Bamako is an articulation of culpability for social and economic conditions in Africa, and inequality in the world more broadly. In the words of Tejumola Olaniyan, professor of postcolonial African drama, the film is about the relationship between rations and rationalities: “the reasonings, the logics, around which we organize and have organized our world; the rationales and justifications we offer ourselves to understand how rations have been and are being rationed in the world, and how resources could possibly have been and still be rationed differently.”5 The trial, then, reflects an explanation for the irrational rationing of resources and power in the world, naming IFIs as the culprits. In his closing statement, the attorney representing civil society argues: “Structural adjustment has put Africa in a vicious circle that begins with debt [which] has brought

Africa to her knees by depriving her of financial sovereignty.” In other words, the irresponsible lending practices of the IFIs are to blame for diverting African states’ budgets away from investing in social services and compromising African states’ ability to determine their own economic policy. In another trial scene, a male witness who is a Malian professor builds on this to make an argument about perverted government accountability and economic sovereignty: “All the money that we earn [is] used to restore and maintain our solvency in relation to our creditors and cannot be used within the national economy . . . [I]t’s the fire of an unspeakable form of exploitation . . . [T]his negro that you are crushing to death with your economic and financial machinery laid the foundations of your economy and this negro has ensured your development.” By connecting the prosperity of Western economies to structural adjustment in Africa, this witness identifies selfish motivation for these reforms and therefore implies intent on the part of the IFIs to serve elite Western interests. Once the connection between the terms of financial assistance to Africa and the benefits to Western economies is established, witness testimony describes the consequences of this indebtedness and economic imperialism. Some cite human development indicators such as malnutrition, decreased life expectancy, indecent living conditions and chronic poverty as evidence of suffering caused by structural adjustment. This is an appropriation of the very metrics of success that IFIs use to justify their interventions. Another line of argument emphasizes the consequences of privatization on communities in Mali. In an evaluation of Mali’s economic reform conducted by the United States Agency for International Development (USAID), the slow rate of privatization is attributed to “poverty and/or misinformation and cultural reasons” that cause Malians to resist the privatization process.6 Witness testimony in the film offers an alternative explanation

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for this resistance. Speaking about the World Bank forcing the government in Mali to sell the country’s railway to a Canadian corporation, a female witness laments: “You see villages that lived through the railway and that are now obliged after 100 years of existence to move somewhere else because the train no longer stops there.” In another testimony, the privatization of health is used to emphasize the suffering brought on by structural adjustment: “Today, a sick woman in a village risks dying because the nurse who has the medicine won’t treat her because she can’t pay. That is what it has come to, what we’ve learned from the system. In other words, pay or die.” On a deeper level, these witnesses are speaking about the incommensurability of the commodification of services like health and education with social realities. The Malian professor emphasizes this point, arguing that structural adjustment has led to “the total degeneration of the foundations that represented our society’s key values…we have reached the last threshold of the human heartbeat …I see everything in Mali but Malians.” Neoliberal economic reform has thus created conditions that are intolerable for many Malians, and their exodus in search of a better life is a symptom of and testament to that. Clarke explains this cause-and-effect: “The implementation of structural adjustment policies [has] widened the gap between the rich and poor and produced worldwide deindustrialization, creating a mirroring ‘community’ of economic refugees even as the rise of financial, service and informal economic sectors pump wealth into new global cities of elite consumers.”7 In perhaps the most moving testimony of the trial, a young male witness named Madou Keita recounts his experience of trying to migrate to Spain with a group of other economic refugees. Over the course of the trip, the group was turned away from Morocco, was fired on at the border of Algeria and trekked through the Sahara without food or water for days, most of them dying on the way. The gravity of Keita’s testimony is underscored by his empty expression and by the attentiveness

and solemnness with which the other Malians in the courtyard are listening. Throughout Keita’s account, Sissako cuts to scenes of the group walking in the Sahara and a Ghanaian woman dying in the sand as beetles crawl around her. The scene is punctuated with close-ups of water turned red from cloth dye draining away, symbolizing the fatal consequences of these policies and drawing an implicit connection to the destruction of Malian sources of livelihood. When asked by an attorney at the end of his testimony what he has gained from the Malian state, Keita replies: “It has given me nothing. Nothing. The state has given me nothing.” Later in the trial, a female witness echoes Keita’s point: “We don’t live in an open world…African economic refugees are arrested, handcuffed, deported, humiliated and sent back home. How can you claim we live in an open world? It’s clearly open for whites but not for blacks.” In this sense, the testimony is about much more than poverty and suffering in Mali. It draws explicit connections between the global and the local, between macroeconomic policies and personal realities, between the prosperity of Western economies and the underdevelopment of African economies, between the power of neoliberal governance institutions and the erosion of the social contract in the African state and between externally imposed reform and the degradation of Malian life.

III. COMPLICITY OF AFRICAN COUNTERPARTS While the World Bank and the IMF are the defendants in the trial, the film does not limit its construction of culpability to these foreign institutions. Embedded in the dialogue of the court as well as in scenes portraying Malian life in the surrounding community is Sissako’s extension of responsibility to Africans. For instance, after condemning the external legitimacy of power in Mali, the Malian professor focuses on the agency of African state officials in this decision: “either I fully support the ideals of my people, or I sell them off.” This expresses the belief that African

BAMAKO: MOCK(ING) TRIAL | BECKY ASCH

officials made a choice to exploit their citizens for their own personal profit, while connecting this choice to the direction of accountability that structural adjustment created. Sissako also uses scenes outside of the trial setting to develop this claim. In one scene, a family is gathered around a television in the courtyard at night. Following technical difficulties with the local news station, the camera zooms in on the screen, which is playing the spaghetti western Death in Timbuktu. In this film, black and white cowboys shoot at Malian civilians in Timbuktu, including teachers with their students and a mother walking with her child. In an interview, Sissako explains his intention in using this clip: “It was a case of showing that cowboys aren’t all white and that the West isn’t solely to blame for Africa’s woes. We too have a share of the blame.”8 The film within the film can therefore be understood as an instrument to disrupt the racial binary of responsibility and suggest African complicity in the continent’s condition. In an earlier trial scene, one of the witnesses expresses the same sentiment: “The impetus is northern but the theft is done locally with our complicity. . . . If you had a well-placed relative, you were happy to benefit from the system through him.” This is a reflection on the way that the narrow channels of privilege and patronage have been entrenched and perpetuated by those who stand to benefit from it, whether they are African or not. Towards the end of the film a man is troubled by a recurring dream, which he describes to the security guard outside of the courtyard where the trial is taking place. In the dream, the man finds the severed heads of state leaders in a bag, and each time he reaches in, he pulls out the same head. When the security guard asks if it is a black or white head, the man replies that he does not know. In addition to problematizing the notion that responsibility lies exclusively with a foreign white elite, this conversation also suggests the obscurity of lines of accountability for these policies: how is one to identify who can answer

for his or her suffering? Given this uncertainty, how can a trial hold accountable those who are guilty? In a further testament to the film’s complex insight, Mr. Rappaport, the defense attorney, uses this same argument to shift the blame away from the World Bank and the IMF and onto Malian elites. In one scene, he asks, “Aren’t there people with money in Mali?” By pointing out that there are wealthy Malians, he tries to suggest that the problem is in the allocation of resources at the national level rather than at the level of the IFIs. In a later trial scene, Mr. Rappaport extends this argument with an analogy: “Is the World Bank to blame when an employer buys ballpoint pens instead of cheaper pens?” He goes on to claim that while corruption is not just confined to Africa, it has graver consequences there than elsewhere because of the state of economic development. In other words, the smaller the national pie, the more the nation has to lose. Ironically, this argument about African governments and elites is the same as the justification for structural adjustment in the first place. Clarke identifies this argument in the rationalization of the International Criminal Court, and in its legal approach as well: “it was seen as being untouched by the tainted hands of potentially corrupt governments.”9 This connection between neoliberalism and the rule of law has significant implications for how the trial is portrayed in the film, a point which I will return to. By extending the responsibility for poor economic conditions to Africans, Sissako presents a fuller and more complex picture of multiple interests and collaborations that secured and perpetuate neoliberal reform. This acknowledges Africans’ agency in the film’s explanation of structural adjustment and its consequences, avoiding an oversimplified and misleading narrative of Western exploitation and African victimization, while also making a statement about the trial’s limitations.

IV. POWER STRUCTURES IN PROSECUTION:

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HIERARCHIES OF TRUTH AND WITNESS TESTIMONY While the testimonies in the trial offer an explanation for the negative consequences of structural adjustment in their construction of IFI culpability, a closer examination reveals the entrenchment of the trial itself in the very power structures that it seeks to change. In his analysis of Ousmane Sembéne’s film Ceddo, filmmaker and scholar of African cinema Manthia Diawara strikes a chord with the trial’s function in the film: “The discursive space defines itself by including some as members of the discourse in a hierarchical order and by excluding others.”10 By setting the trial in the courtyard of his own childhood residence, Sissako juxtaposes the formal nature of the Western juridical process with the routine continuation of everyday life in Bamako. Clarke speaks to the significance of this: “This notion of the appropriateness of venue, form and technique of ‘justice making’ is the site of difference, of struggle, because it reflects our cultural conceptions of legitimate and illegitimate actions.”11 From the outset, this situates the trial in a space of contradiction and absurdity: the approach to justice used in the film is itself a product of the power structures that African civil society is contesting. As Olaniyan asks rhetorically, “How can you defeat global capitalism, the primary generator of all sorts of legalisms in the world today . . . by means of a rational debate in a ‘court of law’?”12 By choosing to construct the trial in this way, Sissako is making a statement about the pervasiveness of global capitalism and its offer of liberal legal recourse as a spectacle of justice that serves to entrench the system from which it emerged rather than to challenge it in any substantive way. Sissako himself admits this deliberate irony: “The real question is this: no court of law exists to call into question the power of the strongest.”13 The irony of the spectacle of justice is emphasized in the film through the formality of the trial. The judges in the courtyard dress

in conventional Western-style robes. The arguments and testimonies are systematically presented in a way that stresses reasoning, and the conventional procedures for testimony and cross-examination are upheld. The judges maintain order in the courtroom, control the sequence of the proceedings and run the trial based on a hierarchy of truth that privileges certain kinds of evidence and conduct over others. To bring this formality into question for the viewer, Sissako allows routine everyday life to continue in the midst of the courtroom. The people who live in the courtyard get dressed and wash up, call to each other across the compound and walk in front of the camera. Children run through the courtyard with squeaking toys. A wedding reception storms through—the bride in a white wedding gown and the groom in a black suit, traditionally Western wedding attire— and interrupt the trial with their songs and celebrations. A woman continues to dye cloth and even yells at a lawyer at one point during the proceedings. One of the more revealing juxtapositions is a conversation between Mr. Rappaport, the European defense attorney, and a hawker during recess: trying to convince Mr. Rappaport to buy a pair of sunglasses, the hawker insists that they are Gucci brand, but Mr. Rappaport remains skeptical and asks where the logo is. When the hawker assures him that they are authentic and that he is offering a fair price, Mr. Rappaport replies, “You all say that.” This interaction epitomizes the futility of the trial in the convergence of the hawker’s livelihood, Mr. Rappaport’s materialism and stereotyping and the persisting relationship between the two. The arguments embedded in Sissako’s portrayal of the trial are worth examining in light of contemporary debates regarding the value of trials in the face of structural inequality and widespread violence. At the foundation of this conversation are conceptualizations and expectations of justice: in order for a trial or any other justice mechanism to be

BAMAKO: MOCK(ING) TRIAL | BECKY ASCH

deemed successful or inadequate, one has to evaluate it in light of what justice looks like. For Clarke, “justice is the absence of a need for ‘justice-making’ mechanisms.”14 While this conceptualization may be too utopian to be a useful standard, it nevertheless gets to the core of one of the prominent critiques of prosecutions in transitional justice: the inability to address root causes. In Fictions of Justice, Clarke develops a sophisticated argument about the failed promise of liberalist conceptions of justice in their “inability to guarantee social and economic equality to all—a principle that runs contrary to the very nature of the capitalist project itself.”15 In this sense, Clarke argues that liberal legalism and capitalism are mutually constitutive while contradicting themselves in their promise and practice. The economic force of neoliberal capitalism bolsters the international rule of law movement, she contends, and the latter absolves the former of responsibility. In simpler terms, capitalism opens up African markets for exploitative foreign intervention, eroding African governments’ political and economic sovereignty while fueling violent competition for resources. The international rule of law movement punishes the manifestation of this exploitation through what Clarke calls the “tribunalization of African violence,” which absolves the capitalist project of responsibility by ignoring the root causes (and capitalism’s complicity in it), thus entrenching the underlying structural violence of the capitalist project, naturalizing its normative political structure and allowing capitalism to pride itself on its moral intervention.16 The system is further perpetuated through the advancement of rule of law and human rights agendas on the continent by capitalist donor-funded efforts, for instance, through “state consent mechanisms”

that require treaty ratification as a condition of financial assistance, or NGOs that advocate for the adoption of liberal principles.17 The critique here lies in the alliance between capitalism and liberal legalism, in which criminal prosecutions represent a symbol of justice through claims of deterrence and an end to impunity, which they cannot deliver because “a reconfiguration of sovereignty as global and national equality would involve the erasure of various structural violences closely aligned with neoliberal capitalism.”18 The trial in the film, then, engages with Clarke’s intervention on multiple levels. For Clarke, the rule of law’s individualization of criminal responsibility ensures that prosecutions deliver no more than a mere symbol of justice: “This reclassification of responsibility has had the effect of sublimating the root causes of violence, reassigning accountability to those few high-ranking leaders in sub-Saharan Africa who are seen as responsible for mass violations.”19 In Bamako, the trial appropriates capitalism’s own fiction of justice to hold international financial institutions collectively responsible, effectively turning inside out the alliance between capitalism and liberal legalism as well as the rule of law’s individualization of criminal responsibility on the African continent. Still, Sissako implies in his extension of culpability to African leaders and citizens that the prosecution of these institutions alone is inadequate. In his discussion of the capacity for criminal prosecutions to foster collective memory, legal scholar Mark Osiel describes the casualties of this approach: “focusing on the acts and intentions of these very top elites, the courts not only missed the macropicture: the story of mass collaboration and institutional support for administrative brutality. They also missed the

“THE TRIAL APPROPRIATES CAPITALISM’S OWN FICTION OF JUSTICE TO HOLD INTERNATIONAL FINANCIAL INSTITUTIONS COLLECTIVELY RESPONSIBLE.”

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micropicture: the story of the victims—the human experience of uncomprehending suffering that official brutality produced.”20 Sissako deliberately includes the “macropicture” and “micropicture” to emphasize the insignificance of the trial and its incommensurability with Mali’s social and economic realities. The power structures that surface in the trial add another layer to the film’s engagement with Clarke’s argument. Despite the fact that the defendants are the champions of neoliberal capitalism, the trial cannot escape the system that produced it. An examination of the liberal legalist hierarchies of truth upheld throughout the proceedings reveals how certain types of truth are privileged and others silenced in line with underlying power dynamics. For Clarke, this involves “paying attention to the ways that facts are made and not found and highlighting the presence and absence, the silences and specters.”21 In the first trial scene, an elderly man named Zegue Bamba is at the witness stand with a translator at his side. The judge asks him to remove his hat, and then tells him it is not his turn and he should sit back down. Bamba replies: “Words are something. They can seize you in the heart but it’s bad if you keep them inside…the goat has its ideas and so does the hen.” This interaction demonstrates the incommensurability of the trial’s approach to justice with social realities in the community. Bamba is an elderly man, and the younger judge silencing him and telling him what is appropriate attire illustrates a clash of principles and the triumph of Western court etiquette. The fact that the trial is conducted in French is another element of this hierarchy of truth. Antiguan novelist Jamaica Kincaid’s discussion of the significance of language for expressions of oppression is useful here: Isn’t it odd that the only language I have in which to speak of this crime is the language of the criminal who committed the crime? And what can that really mean? For the language of the criminal

can contain only the goodness of the criminal’s deed. The language of the criminal can explain and express the deed only from the criminal’s point of view. It cannot contain the horror of the deed, the injustice of the deed, the agony, the humiliation inflicted on me.22

As if to drive home this point, Bamba never testifies formally. Instead, in one of the last trial scenes, he returns to the courtyard singing in his native language. His voice is powerful and tragic, and he sings from the front of the court, staring intently at the judge. While Sissako uses subtitles for Bamba’s earlier dialogue, he deliberately excludes them in this scene, underscoring the absence of a common language. Only in one of the attorneys’ closing statements does the viewer find out part of what Bamba said: “Why don’t I sow anymore? When I sow, why don’t I reap?” These lyrics undoubtedly speak to the collapse of the agricultural sector in Mali, particularly cotton production, under structural adjustment. Thus, the privileging of the “language of the criminal” is evident in the trial both literally and figuratively: literally in the sense that the trial is conducted in French, and figuratively in the sense that particular forms of evidence and truths are promoted while others are rendered illegitimate or invisible. In their book Film and Ethics, French film scholars Libby Saxton and Lisa Downing reflect on this hierarchy: “the trial heightens awareness of the ethnocentric criteria by which ‘positive’ and ‘negative’ attributes and practices are judged…[and] confront[s] us with the limits of Western juridical frameworks and ideals of justice.”23 Through these trial scenes, Sissako also grapples with the roles of victims and witnesses in justice-making. The portrayal of these roles in the film echoes Clarke’s belief that “the victim is both central yet marginal to the justice project itself.”24 While the trial is founded on the defense of the victim, victims who serve as witnesses are not afforded agency in its process. This hypocrisy becomes evident in the contrast between the attorney’s closing statement and the treatment

BAMAKO: MOCK(ING) TRIAL | BECKY ASCH

and absence of witnesses: “This people is a widow mourning the death of a husband buried under adjustment, . . . a father made redundant by the railway. . . . you must do justice for Africa.” Yet these strong words in defense of the victim ring empty in the face of the marginalized victims and witnesses. If the trial exists in the name of the victim, why did this attorney, in the same statement, have to speak for Bamba by translating his song? During multiple testimonies, Sissako cuts to a dying bedridden man in a room in the courtyard who can hear the trial going on outside but cannot testify or participate. The attorney speaks for this man as well in her closing statement, using his suffering as call for justice. This imagery resonates strikingly with Clarke’s notion that the “ghostly presence-via-absence of the victim drives interventions.”25 Sissako also illustrates this notion of the central, yet marginalized, victim with Madou Keita. As discussed earlier, Keita’s testimony recounted his experience of trying to get to Spain through Morocco. In an earlier scene, the security guard denies him access to enter the courtyard, saying that his name is not on the witness list. This brilliantly and subtly links the marginalization of victims serving as witnesses in the trial to that of economic refugees, exposing the hypocrisy in the rhetoric used to justify the capitalist rule of law project. It gets to the core of Clarke’s argument: “the articulation of criminal responsibility in defense of the victim has had the opposite of its intended effect by producing what Jacques Ranciére has called disembodied political subjects that allow agency to be reassigned to the institutionally powerful in their name.”26 In this way, Sissako is exposing a pattern of marginalization that exists beyond the level of the trial, permeating border policy, structural adjustment and globalization more generally. Another manifestation of this is the privileging of certain types of testimony in the trial. In her discussion of the Truth and

Reconciliation Commission in South Africa, African performance studies scholar Catherine Cole explains, “the rules of the court cast victims in a passive rather than active role, allowing them to speak only when spoken to by an agent of the court and even then to speak only on certain terms and topics, subject to cross-examination that may be adversarial in nature.”27 She goes on to describe performance studies scholar Diana Taylor’s repertoire-archive framework, which challenges the legalist notion that repertoire is more subjective and therefore less credible than archive.28 This same hierarchy is evident in many of the trial scenes. During cross-examination, Mr. Rappaport, the defense attorney, responds to a witness, “Your suggestion is that you pull yourself together. That’s a fine idea, a wideranging and abstract idea, but it isn’t a program. . . . Do you know, Madame, that for Mali, we plan to give up the sum of 1.42 billion CFA francs that represents 60% of the debt? Are you aware of that fact?” To Mr. Rappaport’s chagrin, the witness responds: “I am aware of that act of deception, . . . which has done more to improve the G8’s image than to help Africa.” While Mr. Rappaport was trying to suggest that the witness’s solution was too vague and therefore she could not possibly grasp the complexity of the economic relationship between Mali and the IFIs, which he tries to explain by listing percentages and numbers, she proves him wrong and condemns the hypocrisy of debt forgiveness. When Mr. Rappaport continues to question the credibility of her testimony by pointing out that she is a writer and therefore not the expert on economic issues that she presents herself as, she responds, “I am a citizen of this country with my feet firmly grounded in the realities of this country. Being a writer doesn’t mean I don’t have a certain expertise at dealing with aggressive stances in an open debate on issues that I experience from the inside.” This interaction speaks directly to Taylor’s archive-repertoire framework in its affirmation of the way that statistical evidence is seen as factual and therefore irrefutable, while

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more narrative explanations are considered subjective and biased.29 The scene makes clear the hierarchy of truth that is deeply embedded in the ethos of the court, which fuels the centralyet-marginal role of victim participation in justice-making and avoids challenging the system of violence. As Eric Stover notes in his book The Witnesses, “truth in the eyes of those most traumatized by mass atrocity often lies not in the facts but in their moral interpretation, and how facts are interpreted is often manipulated and distorted by the very people who initiated the violence and remain in power when the fighting ends.”30 This privileging of archive over repertoire surfaces again in a later trial scene. Testifying about the negative impacts of privatization, witness Madame Souko describes how she came across a confidential letter from the World Bank to the Ministry of Transport in Mali in which the Bank threatened to withdraw subsidies for health and education unless the railway was sold. The evidence she presents is a statement she had written to the Ministry of Transport after finding the letter, in which she protested the sale and proclaimed the railway a “victim of conspiracy.” Mr. Rappaport immediately objects, arguing that the statement Souko wrote to the Ministry does not prove her claims about the confidential letter, and that if she cannot produce the letter her testimony should be rejected. He continues, “Why would the World Bank want Mali to be deprived of transportation and its inhabitants unable to travel?” The judge agrees, and her testimony is thrown out. Later in the film, tears run down her face as the attorney condemns IFIs for drawing up “prescriptions that Africans ‘can’t read’ and ‘never follow’.” Madame Souko’s experience illustrates not only the way that certain kinds of testimonies are rendered invisible, but also the emotional consequences that come with being publicly discredited and accused of lying. Psychiatrist Judith Herman’s work on the mental impact of legal intervention on crime victims is relevant here:

The mental health needs of crime victims are often diametrically opposed to the requirements of legal proceedings. Victims need social acknowledgment and support; the court requires them to endure a public challenge to their credibility. Victims need to establish a sense of power and control over their lives; the court requires them to submit to a complex set of rules and procedures which they may not understand, and over which they have no control. Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes or no questions that break down any personal attempt to construct a coherent and meaningful narrative.31

Through these rich and complex scenes depicting the experience of witnesses, Sissako shows how the trial is contaminated by the very power structures that it is trying to challenge. As Saxton and Downing explain, the film is “concerned not only with the ethics of globalization, but also with the globalization of ethics, that is, with how analysis of the power relations between communities and cultures might alter our understanding of what ethics is or ought to be.”32 By exposing the trial’s power relations in the context of the surrounding community in Bamako, Sissako echoes Clarke’s notion of the incommensurability of rule of law justice with the conditions and grievances in this case.

V. STEPPING OUTSIDE: HUMANIZING STRUCTURAL ADJUSTMENT AND MALIAN EXPECTATIONS OF THE TRIAL While the trial is the film’s center of gravity, Sissako does weave into the film stories about the everyday lives of people in the neighborhood where the trial is taking place. These interruptions and departures from the space of the trial serve to humanize the impacts of structural adjustment by leading viewers to draw connections between the content of the trial and the conditions of everyday life in Mali, and consequently, to form a statement about the value and relevance of the trial itself to the surrounding community.

BAMAKO: MOCK(ING) TRIAL | BECKY ASCH

The portrayal of life outside of the trial reminds viewers that the witnesses do not reflect the society as a whole. Most of the witnesses are professionals or former professionals, and while the content of their testimony seems to reflect the social and economic realities of the neighborhood, Sissako implies that they are financially better off than many other Malians. By zooming out and revealing life outside of the confines of the trial, Sissako shows the side of the neighborhood that is not participating: people working, gossiping, idling, getting married and going to church. It is not a coincidence that Madou Keita, the only witness who does not testify in French, is initially refused entry to the trial by the courtyard security guard, nor that his

This dynamic reveals a gendered dimension of structural adjustment in which women go into informal employment when men cannot support the family alone. Throughout the film, Chaka tries to learn Hebrew in the off chance that Israel will open an embassy in Mali and he would be able to get a job there as a security guard. The fact that he dedicates his time to something so dubious demonstrates the extent of unemployment and the uncertainty of life in Bamako. Still, despite the testimonies’ proximity and obvious resonance with their lives, neither Mele nor Chaka expresses the slightest interest in the trial. In a scene set just outside the courtyard, a Malian journalist approaches Chaka and asks to interview him about structural adjustment, to

“THE TRIAL IS CONTAMINATED BY THE VERY POWER STRUCTURES THAT IT IS TRYING TO CHALLENGE.” testimony is the only one that elicits the attention of witnesses and non-participants alike. The fact that the people invested in the trial are ostensibly well educated and financially stable, while nonparticipants in the surrounding neighborhood seem not to be fazed by the trial, is a further reflection of the power structures in which the trial is embedded, adding another level to Clarke’s notion of the central-yet-marginal victim. As Olaniyan explains, “those who have all the rations are also the ones who have the ruling rationality, and they are not Africans or [at least] not the common Africans.”33 In order to illustrate the deeply personal impacts of economic reform in Mali, the film follows the disintegration of a marriage between two characters, Mele and Chaka, who live in the courtyard where the trial takes place. By focusing on the wedding picture hanging on the wall of their home, Sissako establishes early on that their marriage had at one point been a happy one. At the time of the trial, Chaka, the husband, is unemployed and Mele, the wife, supports the family by singing in clubs around Bamako.

which Chaka replies: “No one will listen. Don’t waste your time.” With this statement, Sissako stresses Chaka’s awareness of Clarke’s notion of liberal legalism’s “fiction of justice”: the empty promise of change that the trial symbolizes. As Stover points out, “the logic of the law, no matter how it is applied, can never fully make sense of the logic of mass atrocity in the eyes of those who have survived it.”34 Sissako further stresses the resonance of the trial’s content and disconnect of its promise from social realities by juxtaposing witness testimony with the daily lives of Malians outside of the trial. In one scene, a witness explains: “The relationship is governed by lies, hypocrisy and cynicism. Everything is done to make sure Africans are unaware of the system’s rapacity.” Sissako then cuts to Falai, a photographer, telling Chaka that he prefers filming funerals to weddings: “The faces of people who talk don’t interest me. I prefer the dead. They’re truer.” In one sense, this statement corroborates the testimony that it interrupts by stressing the dishonesty and maliciousness of the IFIs. But it

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also problematizes the testimony by contesting the assertion that Africans are unaware of the system that the trial is simultaneously embedded within and challenging. Falai is expressing the futility of words to combat this system. The end of the film features Sissako’s most explicit politicization of life through a harrowing portrayal of globalization’s impact on the African psyche. After putting his daughter to bed and shutting off the light, the film cuts immediately to Chaka shooting himself in the head and falling to the ground on a desolate road. The gun he uses was stolen from a police officer watching over the trial. The film ends at Chaka’s funeral in the courtyard where the trial had been held, with Mele crying, the police officer expressionless and Falai filming it all. The significance of this is nearly indescribable. The misery of life coupled with a complete absence of expectation or hope in the trial to deliver justice drove Chaka to take his life. For him, it was more realistic to believe that Israel would open an embassy in Mali than that the trial would improve his life. The symbolism of his funeral being held in the same space as the trial draws an explicit connection between the two. By stepping back and revealing the surrounding community’s interaction with the trial, Sissako shows that while the content of the testimony reflects social and economic realities, those who are not participating are both marginalized from the trial and aware of the irony in using such a forum to seek recourse for the consequences of globalization. The fact that fact that most of the trial participants were playing themselves unscripted demonstrates the significance of Sissako’s scripted scenes outside of the trial in sculpting his statement about justice. Thus, the film can be understood in much the same way that Cole interprets the role of the TRC: Special Report, the televised news coverage of the South African Truth and Reconciliation

Commission: “[it] constructed itself as a venue that revealed truths, including truths the TRC was not producing.”35 The departure from the space of the trial functioned to highlight the silences and exclusions within it, as well as its absurdity.

VI. CONCLUSION Sissako’s Bamako is a radical statement about the staggering degree of violence and inequality that neoliberal globalization on the African continent has generated. Through the testimony in the trial, he develops an explanation for these conditions, which moves beyond the narrow construction of culpability in the conventional realm of individualized criminal responsibility to acknowledge the collective interest and efforts that create and sustain the system. Furthermore, the film’s framing of the trial demonstrates the globalization of the neoliberal-legalist system and the impossibility of such an approach to deliver justice in this context, particularly through the juxtaposition of the formal liberal character of the proceedings with the realities of life in the surrounding neighborhood, as well as the power structures within the trial. The foundation for this critique lies in the alliance between the trial and neoliberal capitalism, which Sissako turns on its head by suing the conductors of the neoliberal project. The impossibility of justice through prosecution was not lost on Malians outside of the trial, which is affirmed in the fact that the IFIs are being tried in absentia, and that a verdict is never delivered. Still, the film is not hopeless about the prospect of justice altogether. By pointing to the futility and contradictions in prosecuting IFIs and emphasizing the collective duty of African people, Bamako rejects the fiction of Western legalism and encourages an alternative approach to justice that will produce substantive change. >

AT RISK: YOUTH, HEALTH AND HOME IN CAMBODIA | ELISA YI

ELISA YI Swinging on the monkey bars, children at the Jeavittâ&#x20AC;&#x2122;s House enjoy leisure time while receiving medical care and attention

AT RISK: YOUTH, HEALTH AND HOME in BY ELISA YI

CAMBODIA

AT RISK: YOUTH, HEALTH AND HOME IN CAMBODIA | ELISA YI

During my fall semester abroad, I had the opportunity to work with various childrenat-risk programs in Battambang, the second most populous city in Cambodia. One of these organizations was Jeavitt’s House, a small organization whose mission is to care for children with HIV/AIDS. Organizations like Jeavitt’s House exist because children with HIV/AIDS are often abandoned by their families and rejected by staterun orphanages, as most institutions cannot afford the costs of medical care. Though economically the nation is improving, Cambodia’s support for children in areas of education, health and welfare has not caught up with its economic growth. Grassroots efforts and small projects like Jeavitt’s House remain the only proactive methods to reform public policy for children at risk. Not only does Jeavitt’s House seek to provide safe homes and healthcare for children with HIV/AIDS, it aspires to reach the national level by advocating for policy requiring all orphanages in Cambodia to accept children with HIV/AIDS and provide them with proper care and attention. >

Children at Jeavitts House play with paint set up for a mural outside on the courtyard

“GRASSROOTS EFFORTS AND SMALL PROJECTS . . . REMAIN THE ONLY PROACTIVE METHODS TO REFORM PUBLIC POLICY FOR CHILDREN AT RISK.” >

Children at the Bovel District Orphanage in Battambang, Cambodia peer through the fence to greet outsiders

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HUMAN RIGHTS:

> THE LAST UTOPIA? BY KAI ZHANG

“‘It is on the horizon,’ says Fernando Birri, ‘I advance two steps, it goes two steps backward. I take ten steps and the horizon moves ten steps forward. No matter how far I walk, I will never reach it. What is the use of utopia? That’s its use: to help us walk.’”1 -Eduardo Galeano, Las Palabras Andantes

INTRODUCTION The twentieth century left in its wake the rise and fall of many political movements, each with its own utopian vision. Historian Samuel Moyn calls the current human rights vision “the last utopia.”2 In his 2010 book, The Last Utopia: Human Rights in History, he argues that the philosophy of human rights first rose to prominence in the 1970s, after the downfall of previous utopian philosophies such as Marxism and anti-colonialism. As the Soviet Union’s experiment with communism degenerated into corruption, those who had subscribed to its grand political strategies were disappointed by its failure; they sought relief through a minimalist approach to justice that was based not on revolutionary rhetoric nor comprehensive blueprints for a new society, but rather on safeguards to protect the individual from tyranny through basic standards for moral action that were apolitical and universal. Since the notion of human rights is a “moral” vision, which eschews all utopian “political” philosophies, and since it is itself a utopian philosophy which outlines the foundations of a better society that does not yet exist, the human rights approach seeks to be the “last utopia.” However, Moyn is less than confident that the human rights framework is the final stage in utopian thought, that it is superior to all possible alternatives, that it is the culmination

of previous social movements or that it is the ideological synthesis of all Western and nonWestern thinking on justice and freedom throughout history. Unlike most other human rights historians, Moyn does not believe that the contemporary human rights movement is based on the inevitable progression of human thinking since Greek and Roman times towards greater freedom, or the Hegelian end of history. Moyn writes, “The last utopia can not be a moral one.”3 He doesn’t believe that human rights, the philosophy of minimum morality, will continue indefinitely to dominate the imagination of movements for social change. This essay explores some of the strengths and weaknesses of human rights as a utopian philosophy, using as a foundation Moyn’s theory on history and his history of human rights. By comparing human rights to other alternative frameworks in light of the socioeconomic and geopolitical circumstances of the present day, this essay speculates as to whether or not the human rights framework is, or ought to be, the last utopia.

I. MOYN’S THEORY OF HISTORY The Last Utopia: Human Rights in History is a controversial book because, in it, Moyn contradicts the notion endorsed by most human rights scholars, including Lynn Hunt, Micheline Ishay and Jack Donnelly, that the contemporary

HUMAN RIGHTS: THE LAST UTOPIA? | KAI ZHANG

human rights framework is based on the culmination of political thought across history and cultures and a progression towards ethical thinking.4,5,6 Moyn disagrees with the entire notion of the evolution of human rights, and argues that there is a decisive difference between the specific human rights movement that emerged out of Amnesty International’s activism in the 1970s and all previous social movements, including all previous uses of the term “human rights” since it was coined by the United Nations in 1948. According to Moyn, there were certain political circumstances and fortunate accidents that led to the rise of the human rights philosophy; therefore, the notion of an inevitable progress towards a universal humanist morality is not helpful because it obscures the real historical conditions under which human rights arose, and downplays the fragility of its historical alignment. Consequently, it also downplays the instability of current human rights institutions, which are still open to changes due to sociopolitical challenges in the present day and which require a knowledgeable safeguarding to cautiously direct their purposes. The necessary knowledge can only be gained through a true account of the historical conditions under which human rights arose. For Moyn, the ascription of human rights ideas to a long history of political thought from both Western and non-Western sources may have pragmatic benefits, but is not historically correct. It can be pragmatically effective in terms of strengthening confidence in human rights instruments to make the rise of human rights seem inevitable, leading to a progressively better future for the human race. Furthermore, by including non-Western thought, such as Confucianism and Ubuntu, as part of the historical origin of human rights, this grand narrative can be useful in reinforcing the applicability of human rights principles across different cultures.i However, apart from the potential benefits of the increase in soft political power through the reinforcement

of the legitimacy of current international human rights institutions, Moyn contends that it is simplistic and wrong to attribute a “myth of deep roots” to the history of human rights, because it hides the fact that “earlier history left open diverse paths into the future”—other paths and other emancipatory philosophies that may be suppressed by the hegemony of the human rights lingua franca within contemporary activism.7 “Historians have been loath to regard [human rights] as only one appealing ideology among others,” Moyn writes in the Prologue of his book. “Instead, they have used history to confirm their inevitable rise rather than register the choices that were made and the accidents that happened.”8 For Moyn, the role of the historian is to see beyond convenient myths that are created as histories to suit present purposes, to record the changes of such myths over time, and to capture the possibilities of each bygone moment along with the myths that accompanied each moment, each holding within its ephemeral logic a different history and a different future. Moyn explains his theory of history by quoting the poet Jorge Luis Borges, who wrote, “Each writer creates his precursors. . . . His work modifies our conception of the past, just as it will modify the future.”9 History is written and rewritten in each era to suit the purposes of the present, and so there are as many histories as there are present moments. True history is not continuous. According to American writer Philip Roth, “People think of history in the long term, but history, in fact, is a very sudden thing.”10 Moyn demonstrates, as an example, how quickly public perception towards human rights changed during the first few years of Jimmy Carter’s presidency: “In late 1974, one of the most learned observers could still note that human rights considerations seem likely to play only a relatively limited role in U.S. foreign policy i Ubuntu is a humanist philosophy of African origin, emphasizing spiritual connection to others.

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during the next few years. Three years later, the fortunes of human rights could not have looked more different.”11 History is created and destroyed with unpredictable speed. The contemporary notion of human rights as the culmination of all historical aspirations to freedom could very well be one of these momentary “histories,” a myth that supports the current hegemony, which is of questionable validity. In terms of an ideological history, Moyn concedes that there was certainly an emergent moment of “human rights thinking” after World War II, and he does not completely dismiss the significance of events in 1948, during the creation of the United Nations Declaration of Human Rights. However, Moyn argues that the Declaration was devoid of political backing, and played only a minor role in the constitution of

America and Northern Africa. Therefore, for Moyn, human rights had little legitimacy until the 1970s, when organizations like Amnesty International incidentally began to refer to it in their campaign language, and in so doing, gave human rights work a more definitive shape and function. Most importantly, when President Jimmy Carter claimed human rights as a “guiding rationale for the foreign policy of states,”12 human rights ascended as a philosophy with the potential for emancipatory action. However, this was also tied to ideological needs for a rebranding narrative—a clean American identity—strategically adopted after the disasters of the Vietnam War and in competition with the populist ideas of the Soviet Union. Even after the 1970s, human rights did not represent the struggles of social justice throughout

“THE HUMAN RIGHTS PHILOSOPHY STANDS BECAUSE IT HAS BECOME THE IDENTITY OF THE VICTORS, WHO ARE THE NARRATORS OF THE PRESENT MOMENT.” the United Nations, which focused primarily on creating a balance of the new world powers after the war. Its statements on sovereignty and selfdetermination did not apply to non-European nations, and so it was not embraced by anticolonial movements. The dominant emancipatory philosophies for social justice at the time did not align with human rights because human rights was understood to be a tool of the new Western superpowers. In fact, it was European conservative groups who first took to notions of human rights. For Parisian rioters in 1968, anti-consumerism and the fight against neocolonialism of the Global South were the rallying cries of the day. Marxist philosophies, and a more violent revolutionary call to Maoist militancy, had a stronger hold on the imaginations of those who may have needed “human rights” the most, particularly in Latin

the Global South, and still continued to fall short of encompassing all the political aims of the other activist philosophies, as will be explained in later parts of this essay. Human rights emerged as a “universal philosophy” not a consequence of its universal adoption by other movements, nor its ideological incorporation of other movements’ ideas; rather, it was the colossal disappointments, the grand failures and the political disasters that came of other, more militant movements that allowed human rights to emerge as the last philosophy standing in a devastated ideological battleground. According to Moyn, human rights “won” and became “universal” simply because “it survived”—because it remained intact when others fell; because its “pure,” apolitical and “moral” stance allowed it to stand above the battlefield unscathed, an oasis for veterans of failed Communist projects, such as Vaclav Havel, and the dissidents of the Soviet regimes, like the

HUMAN RIGHTS: THE LAST UTOPIA? | KAI ZHANG

activists behind the Helsinki Accords.13 The human rights philosophy stands because it has become the identity of the victors, who are the narrators of the present moment. The human rights framework serves the interests of the present arrangement of international power, and accommodates many of the demands of those without power, so as to keep a balance of power, or peace—peace being the primary strength of this “pure” institution, for without it, present power relations would be in jeopardy. Human rights represent Western liberal notions of freedom—the civil and political freedoms of individual democratic state protections—rather than material welfare, social equality and collective efforts towards social and economic justice, which resonate more with Marxist rhetoric. It is intimately tied to the spread of capitalism. If one is to believe that capitalism combined with democracy is the Hegelian end state, the perfect “end of history,” as Francis Fukuyama has indicated, then human rights, in this Western version of history, is certainly the guardian angel of a particularly abundant garden for some (not so much for others). As the language of human rights grows in legitimacy alongside capitalist development, it serves as a feel-good rhetoric to justify foreign entrepreneurship and investment, which indeed produces good material consequences for the people who have been “given rights” due to economic incorporation into its primarily monetary regime. However, there are many who continue to argue that the material improvement of development mainly serves the interests of the developers—the center, not the periphery—and that the old dependency relations of colonialism continue today in the form of economic imperialism, its logic of consumption remaining an inherently stratifying path towards ecological collapse. However, the validity of any of these positions has yet to be proven. As economic crises render

old worlds bankrupt, perhaps giving occasion to the balancing of world economies, it may be shown that capitalism is, in fact, the best way to achieve economic justice among nations in the long run, provided that there are human rights guarantees to establish certain boundaries to curb the harms of the profit motive. As international law struggles to gain real power in the anarchy between sovereign states, the demands of other nations must be incorporated in order for this “universal” regime to retain legitimacy. Thus, history must continually reinvent itself to catch up with advances in political relations, and most crucially, human rights must adopt the demands of increasingly violated groups of people, as can be seen in its growing list of treaties. It is a project of growing universality, advancing in step with the expansion of current international economic and legalistic regimes.

II. CRITIQUES OF HUMAN RIGHTS The human rights project derives a certain power from tracing its origins through a lineage of ideas, starting in the ancient world, from Roman ius naturale and Hammurabi’s Code, to the revolutions and upheavals of the early twentieth-century, to Civil Rights movements and contemporary struggles for indigenous and environmental rights. There is a sense of synthesis and reconciliation, of the “last utopia” and the “end of history,” of reaching greater objectivity through inclusion. But this universalism is as strongly contested as it is championed. While certain scholars, such as Neil Stammers, emphasize the way human rights are rooted in historic social movements, other scholars deny this claim. Samuel Moyn argues that the human rights discourse and professionalizes social justice by highlighting the role of lawyers, and reduces political struggle to a “pure” moral debate while limiting more radical possibilities for social change. Critical legal theorist David Kennedy questions whether,

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as the dominant language for social justice, the human rights discourse dampens the expression of other “emancipatory vocabularies.”14 Feminist legal theorists Wendy Brown and Janet Halley evaluate the “paradoxes” within rights claims, and conclude that the human rights framework is limited as a tool for the empowerment of women, one that can ameliorate conditions but does not challenge the structure of oppression.15 To what extent is the human rights struggle built upon earlier social justice movements and other ideological constructs, such as liberalism, Marxism, anti-colonialism, Civil Rights and intersectional feminism? To what extent does it challenge oppressive power structures and to what extent is it used to sustain institutionalized power? The second portion of this essay examines the legacy of prior social movements upon human rights by exploring critiques of human rights by several contemporary social theorists from Marxist, anti-colonial and feminist perspectives. The purpose of this is to assess the strengths and weaknesses of human rights as a pragmatic emancipatory tool, and to evaluate Moyn’s claim that the human rights framework is not the universal culmination of all human struggles throughout history, nor will it be the last utopia.

A. MARXIST CRITIQUE OF HUMAN RIGHTS The primary challenge to human rights discourse from the left comes from anti-capitalist movements, which are rooted in Marxist thought. Members of these movements criticize the way human rights, being based primarily in the liberal tradition of civil and political freedoms, prioritize property rights over economic justice and social equality. There continues to be a strong alliance between Global South antiglobalization movements and Marxist analysis, which criticizes how human rights institutions— including the United Nations—allied with the World Bank and International Monetary

Fund, entrench dominance of the developed world over other nations, often by facilitating exploitation of people and resources through financial coercion. For Marxists, the notion of human rights is merely the superstructure and bourgeois ideology of cultural imperialism that covers up relations of hierarchy between the “center,” which has financial and technological capital, and the “periphery” of former colonies that provide cheap labor and natural resources. The mellifluous hegemonic vocabulary of human rights, as the dominant language of “doing good,” may in fact only serve to more deeply entrench these power relations of inequality and Western dominance. Critical legal theorist Duncan Kennedy elegantly summarized a Marxist analysis of human rights as “false consciousness,” in his essay entitled “The Critique of Rights in Critical Legal Studies”: Liberalism . . . [is] based on the fantasy that, by the exercise of universally valid political rights (voting, speech), we participate in a benign collective process of guaranteeing our universally valid private rights (property and contract). . . . It is these rights that define the capitalist mode of production, and their enforcement, their entrenchment in the liberal constitution, which guarantees that real life in ”civil society” will operate according to principles of selfishness and exploitation that are the exact opposite of those proclaimed in political theory. . . . [It is a] fantasy performed for the beneficiaries of capitalism, the apologetic function of explaining why they were entitled to the profits they derived from exploiting the propertyless.16

According to Kennedy, the tension between individual rights and the collective welfare of a people, between the rhetoric of democracy and the economic reality of growing disparity, may render human rights an untrustworthy philosophy for radical social change. Janet Halley and Wendy Brown also criticize the way individualistic human rights always pit one person’s interests against another’s: “universally

HUMAN RIGHTS: THE LAST UTOPIA? | KAI ZHANG

distributed rights function not only as power but as deprivation: the right to private property is a vehicle for the accumulation of wealth through the production of another’s poverty.”17 This single serving portion of human rights does not ask questions about collective responsibility nor will it generate enthusiasm for solidarity. Furthermore, the practice of seeking entitlements from the state in redressing harms can be inherently depoliticizing. Emphasizing collective rights instead of collective responsibilities may disempower people as citizens in the public sphere, where politics can potentially be negotiated in more democratic and participatory ways than through appealing to law or voting for legislation through representatives in our current system of democracy.18 However, according to Moyn, the current human rights institutions stand precisely because prior Marxist visions of utopia have failed. The blood bath of history signals the passing of an illusion, one we are wise never to look back on. Radical militancy is answered by reactionary militancy, as in the case of Uruguay and so many other Latin American states; ultimately, the best protection has been human rights, and the best protection for individuals against the state is the state itself. Capitalism and human rights have indeed shown themselves to be the best social arrangement so far for the human race, and improvements on this model need to be rooted in careful and pragmatic policy calculations, rather than in warfare. Social injustice seems to be sufficiently tolerated so long as global poverty appears to be continually reduced; an unclear case, in certain settings, but the alternative is far more terrifying. Though growing dissatisfaction with economic stratification and the absurd wealth of the superclass has led to protests throughout the world this year, there remains no clear strategy for creating change. In the 1960s, the failure of radicalism transformed political Marxism to a

more reticent theoretical focus in the humanities and social sciences, which uses Marxist ideas to generate literary and artistic analyses, yet is more timid about using those vocabularies to demand wide-scale political change. This spirit of critique is primarily concentrated in liberal universities and academic discourse, rather than active organizing, political parties or worker’s groups. Global Capitalism is increasingly monolithic; combined with the spread of technology, it empowers an entertaining form of consumerism, one that has no desire for social equality if it may only be gained at the loss of YouTube, cable television and smartphones. Though social media seems also to empower popular mobilizing, as seen in the use of Facebook and Twitter in the Occupy Movement, the London riots and the so-called “Arab Spring” of 2011, it is unclear whether a political platform can ever be communicated in 140 characters or less to an audience with an attention span just long enough to watch a five-minute video clip. Whether or not Marxism can truly exist as an alternative philosophy, or if it will simply remain a way of interpreting literary texts in ivory towers, remains to be seen. Nevertheless, critiques against social injustice remain the most powerful engine for disruption. Social and economic rights remain the most neglected kinds of rights. The human rights project does not promise that economic equality is a possibility in the “last utopia,” but nevertheless inspires charity for the poor. Perhaps that charity, rooted in Amartya Sen’s notion of the right to development, is the best possible means to growing equality between nations. However, for Marxists critical of the human rights movement, that bourgeois charity is a testament to inequality, and in fact, sustains it.

B. ANTI-COLONIAL CRITIQUE OF HUMAN RIGHTS

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Samuel Moyn argues in The Last Utopia that during the period between 1945 and 1980, some of the greatest decades of emancipatory social movements in the world (including the Civil Rights movement in the United States and anti-colonialist movements in Africa and Latin America), the language of human rights was not invoked as an instrument for popular mobilization and social justice. The heroic voices from those movements, including Aimé Césaire and Frantz Fanon in French Algeria, wrote of the phenomenon of psychological oppression of the “wretched of the earth” through colonization. The colonized internalize their oppression and mimic the voice of their oppressors. In the words of pioneering critical legal studies theorist Roberto Mangabeira Unger, “since some people have captured the will of others, shared values may express the concrete nature of . . . the dominators, but they cannot pretend to stand for something universal about humanity.”19 There may be representation of the Global South in the United Nations, but those who stand for their people in international forums represent the elite who have adopted Eurocentric values and come from a class that benefited from colonization. Makau Mutua, a legal scholar who is critical of the cultural domination of human rights, warns not to trust the ones who “stand in” for their countries but do not truly represent their people; for Mutua, the culture of human rights is fundamentally Western, and the “Savage, Victim, Savior” (SVS) typologies used in human rights activism are racist narratives that fail to challenge the internalized oppression of cultural imperialism. Mutua writes: The human rights corpus, though wellmeaning, is fundamentally Eurocentric, and suffers from several basic and interdependent flaws captured in the SVS metaphor. First, the corpus falls within the historical continuum of the Eurocentric colonial project, in which actors are cast into superior and subordinate positions. . . . Second, the

SVS metaphor and narrative rejects the cross-contamination of cultures and instead promotes a Eurocentric ideal. . . . Third, the language and rhetoric of the human rights corpus present significant theoretical problems. . . . Fourth, the issue of power is largely ignored in the human rights corpus. . . . The SVS metaphor of human rights carries racial connotations in which the international hierarchy of race and color is re-entrenched and revitalized.20

According to Mutua, the “save the poor savage victims” rhetoric of human rights and development work carries within it the same “civilizing mission” that was used to justify colonization. Thus, the narrative of human rights is not only Eurocentric and coercive in its manner of normalizing Eurocentric thought and values as universal, but this rationale for humanitarian intervention is also used as a weapon to demonize, silence, and invade the sovereignty of the people it purports to save. Mutua writes: “The human rights movement is not only lacking in Third World legitimacy, but also it is aimed primarily at the Third World. . . . Western states frequently use human rights as a tool of foreign policy against non-Western states.”21 However, as Jack Donnelly explains in Universal Human Rights, culture is not static, as Mutua seems to assume. Rather, it is a fluid, ever-changing construction that is constantly being altered by contact with different influences. In response to critiques of the International Criminal Court for its handling of cases from Africa, the Court selected an African woman to replace Luis Ocampo as its Chief Justice. This demonstrated a selfconsciousness in human rights institutions that is flexible and capable of rapid self-correction. Furthermore, grassroots organizations around the world find ways to tailor human rights instruments to their work and make use of forums like the Committee on the Elimination of Discrimination Against Women to gain

HUMAN RIGHTS: THE LAST UTOPIA? | KAI ZHANG

international attention and funding for their efforts. Thus, according to anthropologist Sally Engel Merry, author of Human Rights and Gender Violence, what evolves from the institutions of human rights within the United Nations is a language of activist work that mediates between cultures, but also constitutes its own evolving transnational culture, which is perhaps dominated by a Western liberal perspective, but is conscious of this bias and making efforts to be more inclusive.22

C. FEMINIST CRITIQUE OF HUMAN RIGHTS Beyond a surface-level inclusiveness, the very mechanism of liberal rights is not inclusive. Within feminist discourses, there is a strong critique of gender mainstreaming, which seeks to equalize between genders by ignoring gender and by treating men and women the same. However, this tends to marginalize women’s perspectives and ignore issues specific to women, particularly with regard to sexual violence and the everyday violence against women in the private sphere. Brown and Halley problematized the use of a constructed identity of the essentialized woman as a strategic tool for claiming rights.23 Not only does this tend to have a heteronormative bias, but the act of creating any prototype for rights claims means that certain people who fit better or worse within this prototype will gain better or worse access to rights protections, marginalizing those who do not fit the identity construction and creating new oppressions around these norms. Furthermore, the very act of creating an identity that is deemed vulnerable in the eyes of the law solidifies the oppression associated with that identity and creates its own ceilings for transcending that oppression. Halley and Brown allude to Louis Althusser’s notion of interpellation and power when they cite the ways in which rights claimants are called into subjecthood by the very harms and oppressions that the rights are intended to alleviate: “We are

interpellated as women when we exercise these rights, not only by the law but by all the agencies, clinics, employers, political discourses, mass media, and more that are triggered by our exercise of such rights.”24 Is there a solution to the problem of choosing between gender mainstreaming and difference feminism? What about the intersectional identities of oppression, all of which affect a subject’s status in society in aggregate and interactive ways that create unique lattices of oppression? How can policies specify these harms without “locking in” those very harms? Brown and Halley continue, “The paradox, then, is that rights that entail some specification of our suffering, injury, or inequality lock us into the identity defined by our subordination, and rights that eschew this specificity not only sustain the invisibility of our subordination but potentially even enhance it.”25 In her article “Can the Subaltern Speak?,” Gayatri Spivak writes about a “strategic essentialism” that pragmatically makes use of certain identities for the sake of advocating for specific social changes.26 These identities are constructions that need to be fluid. In human rights advocacy, when a particular “victim” subject is created, the typology of the victim is carried into activist work, and people respond to these typical images as they make their case to gain associated entitlements. This is problematic because it is a form of subject formation that is exerted upon people externally, downwards from the hegemonic philosophy of human rights, and it defines the subject in a very fundamental way, leading to the question of whether the subaltern can speak in any authentic way.27 However, as Duncan Kennedy noted in his analysis of the legal mechanism for human rights advocacy, every decision in human rights is really a policy decision.28 There are people who will benefit or suffer from any given decision, thus the practical work of human rights is always centered around questions

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of distribution. In his controversial paper, “The International Human Rights Movement: Part of the Problem?,” critical legal theorist David Kennedy concludes that the best way to consider the epistemic questions of human rights is to treat every question as a pragmatic question, and to focus on immediate harms and benefits.29

D. SOCIAL MOVEMENTS AND THE SOCIAL CONSTRUCTION OF HUMAN RIGHTS Duncan Kennedy acknowledges that the ideological tool of human rights must be seen as an imperfect instrument: “Rights conflict; they are quantitatively rather than qualitatively powerful; they have to be balanced; how we do the balance depends on the practical context and on non-rights arguments about things like the degree of harm that will flow from different resolutions of the conflict.”30 Though identity politics may impose particular ceilings on reform, creating minority identities is necessary to protect the interests of these groups against the interests of the majority. “Rights are crucial to countermajoritarian security as well as to countermajoritarian reform.”31 By making particular group interests into universal claims for rights, such as framing LGBTQ rights as the right to sexual and reproductive choice, Kennedy argues that rights are instrumental in mediating “between value and fact; and between law and politics.”32 Thus, human rights are a powerful tool for articulating “natural” justice that is not yet inscribed in law, and the universalism that is

“THERE ARE PEOPLE WHO WILL BENEFIT OR SUFFER FROM ANY GIVEN DECISION, THUS THE PRACTICAL WORK OF HUMAN RIGHTS IS ALWAYS CENTERED AROUND QUESTIONS OF DISTRIBUTION.”

so often criticized is a necessary component for establishing the validity of these claims. It is problematic, but that is also the source of its strength. In the words of Roberto Unger: “The cause of human rights has won universal acceptance only because it has become completely abstract and meaningless.”33 Unger writes about an ideal “superliberal society,” in which social structure is constantly being weakened, altered, destroyed and reconstructed in a “permanent disequilibrium of doctrine,” embodied in a kind of “demimonde of inconclusive rebellion” in which the four most important rights are immunity rights to protect the individual from the state, destabilization rights to disrupt institutional domination, market rights that give individuals claims to social capital and solidarity rights that allow individuals to support others.34 With respect to market rights, Unger believes in a rotating capital fund that allows teams of workers to organize projects under equitable conditions fixed by the state, which constitutes a “disaggregation of the consolidated property right.”35 For Unger, the real role of human rights is to make change possible. So long as rights are constantly being contested and redefined, they are instruments of liberation; it is when rights are institutionalized into law that they begin to become hegemonic instruments of domination. Unger writes, True freedom exists only if social life contains the instruments of its own revision. . . . No part of the social world should be immune from destabilizing struggle and transformation. . . . Loosen the fixed structure of society, to weaken the treasured distinction between reform and revolution, and make relentless revision a staple feature of everyday life. . . . Social structure and hierarchy should be weakened so that our creative potential can be unleashed. Politics would maximize openness, revision, and correction.36

Challenging Samuel Moyn’s ideas that the

HUMAN RIGHTS: THE LAST UTOPIA? | KAI ZHANG

human rights movement is divorced from social movements, Roberto Unger and Neil Stammers demonstrate how human rights are actually inimical to the formation and practice of rights, as they “both challenge and sustain power, but in different degrees, in different ways, in different places, and at different times.”37 There is a cycle of liberation and domination that is inherent to the mechanism of human rights. Stammers writes, “The trajectory of institutionalization is always the same, from ‘change’ to ‘order,’ from challenging the status quo to sustaining it. . . . Institutional structures are not likely to be a fertile soil through which existing relations and structures of power can be effectively challenged unless those institutions are themselves being forced to adapt and change as a consequence of further challenges from outside those institutions.”38 Thus, the human rights framework is always in the process of emerging, then consolidating. In the words of human rights scholar Jack Donnelly, natural rights ceased to be an instrument for political change and “came to be used to impede further change” when “the original and largely bourgeois proponents of natural rights gradually moved out of political opposition and into control.”39 However, this process is constantly being replicated by other groups. The rights framework is created by social movements throughout history, and it is sustained by its engagement with social movements. It is effective when it is constantly in the process of transforming power.

CONCLUSION The history of wars and totalitarian regimes in the last century teaches one to be wary of grand narratives and monolithic explanations of phenomena—ideologies and propaganda that have been put to use dangerously in the past. Thus, in the defense or critique of any particular social order, one must be wary of differences between theory and practice, and be sensitive to human fallibilities in creating and adjusting to

change. Similarly, in the defense or critique of any version of history, it is best to adopt a light and sensitive touch, allowing truth to emerge from specific examples of contradiction and difference, rather than be swept by any inductive explanatory totality. The critical theorist Walter Benjamin resisted monolithic, fascist and eugenic notions of history as a dialectic of progress for the human race, because these notions of history were inherently oppressive. Benjamin writes: “The concept of progress had to run counter to the critical theory of history from the moment it ceased to be applied as a criterion to specific historical developments and instead was required to measure the span between a legendary inception and a legendary end of history. In other words: as soon as it becomes the signature of historical process as a whole, the concept of progress bespeaks an uncritical hypostatization rather than a critical interrogation.”40 For Benjamin, the concept of progress is dangerous. It is the fuel that drove Nazi logics of human perfection. By deconstructing the notion of history and providing an alternative vision of history as an unconscious thing that emerges in the moment, originating from a nucleus of unconscious interior drive, Benjamin was working to disarm certain dangerous political notions of the time. Perhaps Moyn was also trying to show that the grand narrative of human rights is a form of ideology, that the “universal” narrative of human rights empowers some while marginalizing others. To believe in the totality of human rights as a “last utopia” would be to exclude other possibilities for social arrangements. However, to be acerbically opposed to human rights on principle, without consideration for all the gains in human welfare achieved through its instruments, is stultifying and impractical. So far in history, human rights institutions have attained limited enforceable power, but they are gaining in soft power precisely due to

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ideological instruments such as the narrative of universalism. To the extent that human rights achieves good pragmatic ends, this is a very good thing. If there is a pure, historical purpose to clarifying other possible histories, originating from other points of time, this academic purity is primarily useful insofar as it enlightens decisionmaking in the present. To be sure, there are certainly good reasons to be wary of narrative. Human rights rhetoric has been repeatedly used, particularly in the last two decades, to justify war and inhumane actions, as well as humanitarian interventions that violate sovereignty with the intention of doing humane things, but result in unintended inhumane consequences. The wielding of human rights ideology for purposes of real political power requires decision-making that will continually shape and reshape the nature

and future of human rights institutions, and it is better to be conscious of the fragility of the present, rather than be fooled by an ideology that supposes the inevitability of human rights. In Moyn’s words: “Human rights have to be treated as a human cause, rather than one with the longterm inevitability and moral self-evidence that common sense assumes. . . . Human rights are not so much an inheritance to preserve as an invention to remake—or even leave behind—if their program is to be vital and relevant in what is already a very different world than the one into which it came so recently.”41 Perhaps if there is any lasting sense to the notion of a “last utopia” in human rights, it is a turn towards pragmatism over utopian thinking, towards measurable plans and complex solutions over totalizing rhetoric and simple narratives. >

ANITA ROJAS CARROLL

Children participating in a music lesson at the community arts center in the Santa Marta favela in Rio de Janeiro, Brazil

STAFF

> BIOS:

BECKY ASCH Chappaqua, New York

NYU Gallatin School of Individualized Study, BA, May 2012 Politics of Development and Human Rights in Africa

MATTHEW BERENBAUM New York, New York

NYU Gallatin School of Individualized Study, BA, May 2013 Einsteinâ&#x20AC;&#x2122;s Violin

ANITA ROJAS CARROLL Carmel, New York

NYU Gallatin School of Individualized Study, BA, May 2014 Sociocultural Anthropology and Cultural Identity in Latin America

MAGGIE CARTER Dallas, Texas

NYU Gallatin School of Individualized Study, BA, May 2013 Anthropology of Latin America

SARAH DUNN Orange County, California

NYU Gallatin School of Individualized Study, BA, May 2014 Global Materialism and Cultural Development

DECLAN GALVIN Warren, Maine

NYU Gallatin School of Individualized Study, MA, May 2014 African Politics

NICK GLASTONBURY Punta Gorda, Florida

NYU Gallatin School of Individualized Study, BA, May 2013 Post-Conflict Societies and Modes of Collective Remembrance, Minor in Middle Eastern and Islamic Studies

KATHERINE HENSLEY Rolling Hills Estates, California NYU Stern School of Business, BA, May 2013 Business Economics and Social Entrepreneurship

HENRY TOPPER Miami, Florida

NYU Gallatin School of Individualized Study, BA, May 2015 Philosophy, Politics & Economics

ELISA YI Fairfax, Virginia

NYU Gallatin School of Individualized Study, BA, May 2014 International Human Rights and Art Psychology

EMMA YOUNG Jupiter, Florida

NYU Gallatin School of Individualized Study, BA, May 2012 Anthropology of Food and Creative Nonfiction

KAI ZHANG New York, New York

NYU Gallatin School of Individualized Study, BA, May 2012 20th Century History, Political Economy and Critical Theory

CONTRIBUTOR

> BIOS:

REBECCA BROWN Glastonbury, Conneticut

NYU College of Arts and Sciences, BA, May 2014 Social & Cultural Analysis with concentrations in Latina and Africana studies

ANNA DUENSING Charlottesville, Virginia

NYU Gallatin School of Individualized Study, BA, May 2013 Public History, Human Rights and Education, Minor in German

BETHANY HALBREICH Buffalo, New York

NYU Gallatin School of Individualized Study, BA, May 2012 Sustainable Development, Entrepreneurship and Global Initiative

BRANDON KNOPP Woodcliff Lake, New Jersey

NYU Gallatin School of Individualized Study, BA, May 2013 Historical Memory and Documentary Studies

LEIGH ROME Larchmont, New York

NYU Gallatin School of Individualized Study, BA, May 2012 Legal Solutions to African Economic Development Questions

> NOTES CONTESTED GENOCIDE AND THE TRANSFORMATION OF WAR 1 Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York: Basic Books, Perseus Book Group, 2003), 9. 2 Adam Jones, Genocide: A Comprehensive Introduction (New York: Routledge, 2006), 8. 3 Samantha Power, “A Problem from Hell,” 42. 4 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Carnegie Endowment for International Peace, Department of International Law, Washington, D.C. (1944), 80. 5 Adam Jones, Genocide, 289. 6 Adam Jones, Genocide, 5. 7 Samantha Power, “A Problem from Hell,” 52. 8 Samantha Power, “A Problem from Hell,” 54. 9 Adam Jones, Genocide, 13. 10 Adam Jones, Genocide, 14. 11 Martin Shaw, “War and Genocide: A Sociological Approach,” Encyclopedia of Mass Violence (2007): 48, http://www.massviolence.org/War-and-Genocide-A-Sociological-Approach. 12 George Kassimeris, ed. The Barbarization of Warfare (New York: NYU Press, 2006). 13 Martin van Creveld, The Transformation of War (New York: The Free Press, 1991), 197. 14 van Creveld, The Transformation of War, 203. 15 Qiao Liang and Wang Xiangsui, Unrestricted Warfare (Beijing: PLA Literature and Arts Publishing House, 1999). 16 Joshua S. Goldstein and Steven Pinker, “War Really Is Going Out of Style,” New York Times, 18 December 2011, SR4. 17 Bartolome de las Casas, A Short Account of the Destruction of the Indies; History of the Indies; Apologetic History of the Indies (New York, New York: Penguin Classics, 1999). 18 Adam Jones, Genocide, 80. 19 Dominik J. Schaller, “The Struggle for Genocidal Exclusivity: The Perception of the Murder of the Namibian Herero (1904-1908) in the Age of a New International Morality,” in German Colonialism and National Identity, ed. Michael Perraudin et al. (New York: Routledge, 2010), 298. 20 Benjamin Madley, “From Africa to Auschwitz: How German South West Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe,” European History Quarterly 35.3 (2005): 432. 21 Schaller, “The Struggle for Genocidal Exclusivity,” 299. 22 Adam Jones, Genocide, 80. 23 Adam Jones, Genocide, 81. 24 Schaller, “The Struggle for Genocidal Exclusivity,” 303. 25 Schaller, “The Struggle for Genocidal Exclusivity,” 304. 26 Schaller, “The Struggle for Genocidal Exclusivity,” 296. 27 Adam Jones, Genocide, 24-25. 28 Adam Jones, Genocide, 25.

29 W.G. Sebald, On the Natural History of Destruction, trans. Anthea Bell (New York: Random House, 2003), 14. 30 Sebald, On the Natural History of Destruction, 26. 31 United States, “The Effects of Strategic Bombing on German Morale, vol. I. March-July, 1945,” The United States Strategic Bombing Survey Morale Division (Ann Arbor, MI: University of Michigan Libraries, 1947). 32 Adam Jones, Genocide, 25. 33 Adam Jones, Genocide, 25. 34 Adam Jones, Genocide, 27. 35 Adam Jones, Genocide, 27.

PROTECTING TRANSGENDER AMERICANS: STATE GENDER IDENTITY NONDISCRIMINATION LAWS 1 United States, The Constitution of the United States of America, United States GPO, 1787.

2 Harvey J. Makadon et al., The Fenway Guide to Lesbian, Gay, Bisexual and Transgender Health (Philadelphia: American College of Physicians, 2008), 333. 3 Makadon et al., The Fenway Guide to Lesbian, Gay, Bisexual and Transgender Health, 333. 4 Makadon et al., The Fenway Guide to Lesbian, Gay, Bisexual and Transgender Health, 333. 5 J. Grant, L. Mottet and J. Tanis, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, National Gay & Lesbian Task Force, National Center for Transgender Equality, 2011. 6 Paisley Currah, Shannon Minter and Jamison Green, Transgender Equality: A Handbook for Activists and Policymakers, National Gay & Lesbian Task Force, Washington, D.C., 2000. 7 “About I Am: Trans People Speak.” I Am: Trans People Speak: http://www.transpeoplespeak.org/. 8 M. Keisling, Interview by author, December 1, 2011.

THE POLITICS OF EXTRADITION AND HUMAN RIGHTS VIOLATIONS 1 Kamari Maxine Clarke, Fictions of Justice: The ICC and the Challenge of Legal Pluralism in SubSaharan Africa (Cambridge: Cambridge UP, 2009), 25. 2 Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania 2005), 167. 3 Kai I Rebane, “Extradition and Individual Rights: The Need for an International Criminal Court to Safeguard Individual Rights,” Fordham International Law Journal (1995): 1673. 4 Roht-Arriaza, The Pinochet Effect, 7. 5 Roht-Arriaza, The Pinochet Effect, 7. 6 Attorney General of Israel v. Eichmann, 36 Intl. L. Rep 5 (1961). 7 Attorney General of Israel v. Eichmann, 236 Intl. L. Rep 277 (1962). 8 Roht-Arriaza, The Pinochet Effect, 6. 9 Roht-Arriaza, The Pinochet Effect, 34. 10 Roht-Arriaza, The Pinochet Effect, 41-43. 11 Valerie Epps, “The Development of the Conceptual Framework Supporting International Extradition,” Loyola of Los Angeles International and Comparative Law Review (2002): 372.

12 Roht-Arriaza, The Pinochet Effect, 313. 13 Roht-Arriaza, The Pinochet Effect, 62. 14 Roht-Arriaza, The Pinochet Effect, 66. 15 Sharon A Williams, “Human Rights Safeguards and International Cooperation in Extradition: Striking the Balance,” Criminal Law Forum 3.2 (1992): 198. 16 Soering v. United Kingdom, 11 EHRR 437, Series A, No 161 (1989). 17 John Dugard and Christine Van Den Wyngaert, “Reconciling Extradition with Human Rights,” The American Journal of International Law 92.2 (1998): 193. 18 John Quigley, “The Rule of Non-Inquiry and the Impact of Human Rights on Extradition Law,” North Carolina Journal of International Law and Commercial Regulation (1990): 401. 19 Dugard and Van Den Wyngaert, “Reconciling Extradition with Human Rights,” 187. 20 Rebane, “Extradition and Individual Rights,” 1655. 21 “Treaty Between the Government of the Kingdom of Thailand and the Government of the United States of America Relating to Extradition,” December, 1992. 22 Clarke, Fictions of Justice, 35. 23 Clarke, Fictions of Justice, 127. 24 Clarke, Fictions of Justice, 137. 25 Clarke, Fictions of Justice, 142. 26 Clarke, Fictions of Justice, 168. 27 David J Scheffer, “The United States and the International Criminal Court,” The American Journal of International Law (1999): 18. 28 Scheffer, “The United States and the International Criminal Court,” 17. 29 Emily C. Barbour and Matthew C. Weed. “The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy,” Congressional Research Service (2010): 3. 30 Clarke, Fictions of Justice, 37. 31 Rebane, “Extradition and Individual Rights,”1672. 32 Clarke, Fictions of Justice, 115. 33 Harvey M. Weinstein, Laurel E. Fletcher, Patrick Vinck, and Phuong N. Pham. “Stay the Hand of Justice: Whose Priorities Take Priority,” in Localizing Transitional Justice: Interventions and Priorities After Mass Violence, ed. Rosalind Shaw, Lars Waldorf, and Pierre Hazan (Stanford, Stanford UP 2010), 47. 34 Clarke, Fictions of Justice, 99.

BAMAKO: MOCK(ING) TRIAL

1 Abderrahmane Sissako, Director, Bamako, 2008. 2 Kamari M. Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge: Cambridge University Press, 2009). 3 Frederick Cooper, Africa Since 1940: The Past of the Present (Cambridge: Cambridge University Press, 2002). 4 Cooper, Africa Since 1940. 5 Tejumola Olaniyan, “Of Rations and Rationalities: The World Bank, African Hunger, and Abderrahmane Sissako’s Bamako,” The Global South 2(2) (2008): 133. 6 Sikoro Keita, “Overview of the Privatization Process in Mali,” USAID/Mali Program Office, Economic Report Series: 2-10 (2000): 8. 7 Clarke, Fictions of Justice, 78.

8 Alibi Communications/Brigitta Portier, “Bamako: A Film by Abderrahmane Sissako,” Festival de Cannes (2006): 7. 9 Clarke, Fictions of Justice, xi. 10 Manthia Diawara, “Popular Culture and Oral Traditions in African Film,” Film Quarterly 41(3) (1988): 11. 11 Clarke, Fictions of Justice, 23. 12 Olaniyan, “Of Rations and Rationalities,” 134. 13 Alibi Communications/Brigitta Portier, “Bamako,” 6. 14 Clarke, Fictions of Justice, 239. 15 Clarke, Fictions of Justice, 6. 16 Clarke, Fictions of Justice. 17 Clarke, Fictions of Justice, 86. 18 Clarke, Fictions of Justice, 145. 19 Clarke, Fictions of Justice, 3. 20 Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction Publishers, 1997), 103. 21 Clarke, Fictions of Justice, 239. 22 Jamaica Kincaid, A Small Place (New York: Farrar, Straus and Giroux, 2000), 31-32. 23 Libby Saxton and Lisa Downing, Film and Ethics: Foreclosed Encounters (London: Routledge, 2009), 60. 24 Clarke, Fictions of Justice, 13. 25 Clarke, Fictions of Justice, 107. 26 Clarke, Fictions of Justice, 4. 27 Catherine M. Cole, Performing South Africa’s Truth Commission: Stages of Transition (Bloomington: Indiana University Press, 2010), 3. 28 Cole, Performing South Africa’s Truth Commission, 29. 29 Diana Taylor, The Archive and the Repertoire: Performing Cultural Memory in the Americas (Durham: Duke University Press: 2003). 30 Eric Stover, The Witnesses: War Crimes and the Promise of Justice in the Hague (Philadelphia: University of Pennsylvania Press, 2005), 15. 31 Stover, The Witnesses, 82. 32 Saxton and Downing, Film and Ethics, 60. 33 Olaniyan, “Of Rations and Rationalities,” 135. 34 Stover, The Witnesses, 14. 35 Cole, Performing South Africa’s Truth Commission, 101.

HUMAN RIGHTS: THE LAST UTOPIA?

1 Raffaella Baccolini, “Dystopia Matters: On the Use of Dystopia and Utopia,” Spaces of Utopia 3, Autumn/Winter (2006): 4. 2 Samuel Moyn, The Last Utopia: Human Rights in History, (Cambridge: Belknap Press, 2010). 3 Moyn, The Last Utopia, 227. 4 Lynne Hunt, Inventing Human Rights: A History, (New York: W.W. Norton, 2007). 5 Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, (California: University of California Press, 2008). 6 Jack Donnelly, Universal Human Rights in Theory and Practice, (New York: Cornell University,

2002). 7 Moyn, The Last Utopia, 11-12. 8 Moyn, The Last Utopia, 5. 9 Moyn, The Last Utopia, 11. 10 Philip Roth, American Pastoral (London: Vintage International, 1998), 87. 11 Moyn, The Last Utopia, 151. 12 Moyn, The Last Utopia, 48. 13 Moyn, The Last Utopia, 12. 14 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (New Jersey: Princeton University Press, 2004). 15 Wendy Brown, “Suffering the Paradoxes of Rights,” in Left Legalism/Left Critique, ed. Wendy Brown and Janet Halley (Durham and London: Duke University Press, 2002). 16 Duncan Kennedy, “The Critique of Rights in Critical Legal Studies,” in Left Legalism/Left Critique, ed. Wendy Brown and Janet Halley (Durham: Duke University Press, 2002), 178. 17 Brown, “Suffering the Paradoxes of Rights,” 432. 18 Kennedy, The Dark Sides of Virtue. 19 Roberto Mangabeira Unger, “The Critical Legal Studies Movement,” 96 Harvard Law Review 61 (1983). 20 Makau Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights,” 42 Harvard International Law Journal 202 (2001). 21 Mutua, “Savages, Victims, and Saviors.” 22 Sally Engle Merry, Human Rights and Gender Violence: Translating Internationalism into Local Justice (Chicago: University of Chicago Press, 2006). 23 Brown, 432. 24 Brown, 441. 25 Brown, 441. 26 Gayatri Spivak, “Can the Subaltern Speak?,” Marxism and the Interpretation of Culture (1988): 271–313. 27 Spivak, “Can the Subaltern Speak?.” 28 Kennedy, “The Critique of Rights in Critical Legal Studies.” 29 David Kennedy, “The International Human Rights Movement: Part of the Problem?,” in The Dark Sides of Virtue: Reassessing International Humanitarianism (New Jersey: Princeton University Press, 2005). 30 Duncan Kennedy, “The Critique of Rights in Critical Legal Studies.” 31 Duncan Kennedy, “The Critique of Rights in Critical Legal Studies.” 32 Duncan Kennedy, “The Critique of Rights in Critical Legal Studies.” 33 Unger, “The Critical Legal Studies Movement.” 34 Unger, “The Critical Legal Studies Movement.” 35 Unger, “The Critical Legal Studies Movement.” 36 Unger, “The Critical Legal Studies Movement.” 37 Neil Stammers, “Social Movements and the Social Construction of Human Rights,” Human Rights Quarterly 21.4 (1999): 980-1008. 38 Stammers, “Social Movements and the Social Construction of Human Rights.” 39 Donnelly, Universal Human Rights in Theory and Practice, 211. 40 Walter Benjamin, The Arcades Project, (Cambridge: Belknap Press, 2002), 478.

41 Moyn, The Last Utopia, 9.

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