5/2012: Karen Engle, “Self-critique, (Anti)politics and Criminalization: Reflections on the History and Trajectory of the Human Rights Movement”

PDF: Engle, “Self-critique, (Anti)politics and Criminalization”

This article is a forthcoming chapter in a volume edited by José Maria Benyeto and David Kennedy. The book is entitled New Approaches to International Law: The European and American Experiences and is to be published by T.M.C. Asser Instituut.

ABSTRACT:

Today’s human rights movement places the fight against impunity at its center.  Such a focus is the culmination of a governance project in which the movement has been engaged for close to two decades that puts an enormous amount of attention on and faith in criminal justice systems—international, transnational and domestic.  This article situates the fight against impunity in the history and trajectory of the human rights movement from the 1970s until today.  It argues that the movement’s early ideology of antipolitics has reemerged in recent years, functioning to defer—even suppress—substantive debates over visions of social justice, even while relying on criminal justice systems of which the movement has long been critical.

Keywords: anti-impunity; amnesty; human rights movement; Uruguay; Inter-American Court; international criminal law


RESUMEN:

El movimiento de derechos humanos hoy en día se centra en la lucha contra la impunidad.  Este enfoque es la culminación de un proyecto de gobernanza que viene desarrollando el movimiento por casi dos décadas, y que pone una enorme cantidad de atención y fe en los sistemas de justicia penal—internacional, transnacional y nacional.  Este artículo sitúa la lucha contra la impunidad dentro de la historia y trayectoria del movimiento de derechos humanos desde los 1970s hasta la actualidad.  Se argumenta que la ideología antipolítica que detentaba el movimiento en sus comienzos ha resurgido en los últimos años, y que aplaza o suprime debates substantivos sobre distintas visiones de la justicia social, al mismo tiempo que se apoya en sistemas de justicia penal de los cuales el movimiento ha sido crítico durante mucho tiempo.

Palabras claves: lucha contra la impunidad; amnistía; movimiento de derechos humanos; Uruguay; La Corte Interamericana; derecho penal internacional

About the author:
Karen Engle, Minerva House Drysdale Regents Chair in Law, Founder and Co-Director, Bernard and Audre Rapoport Center for Human Rights and Justice. University of Texas School of Law.
Email: KEngle at law.utexas.edu

Current Publication Status: Published in New Approaches to International Law in 2013 (p. 41-73)

2 thoughts on “5/2012: Karen Engle, “Self-critique, (Anti)politics and Criminalization: Reflections on the History and Trajectory of the Human Rights Movement”

  1. Della Sentilles on said:

    Karen Engle, in her chapter, “Self-critique, (Anti)politics and Criminalization: Reflections on the History and Trajectory of the Human Rights Movement,” uses David Kennedy’s “The Rights of Spring” to consider three themes: (1) the extent to which the human rights movement has become increasingly capable of self-critique; (2) the ways in which the human rights movement was, in the mid-1980s, self-identified as antipolitical; and (3) how the human rights movement has become increasingly committed to criminal law for its enforcement.

    My interest was particularly piqued by Engle’s third theme: the human rights movement’s increasing commitment to criminal law. Engle argues that today’s movement “places the fight against impunity at its center” putting an enormous amount of “faith in criminal justice systems—international, transnational and domestic” (14). In response to the movement’s emphasis on criminal law, Engle asks the following questions: “Given the wide documentation of the injustices that flourish in nearly every criminal justice system in the world, particularly for already disadvantaged groups, why would the human rights movement rely on such a system?” (23). To better articulate her position, Engle cites the concerns of Daniel Pastor. Pastor has noted that the criminal justice system has come to permeate all corners of social life yet at the same time many restraints of the penal system, in particular the protection of the rights of the accused, have been relaxed.

    Implicit in Engle’s questions is not only an inherent distrust of the criminal justice system, but also the assumption that the pursuit of criminal justice is somehow mutually exclusive with other pursuits. But are either of those really the case?

    In response to my question, I would like to use Cambodia as an example. Having worked for as an intern for the prosecutor’s office at the Extraordinary Chambers in the Courts of Cambodia (ECCC), I have seen first hand the difficulties of legal justice.

    Legal justice is particularly complicated when trying individuals for grave crimes that took place decades ago (as is the case in Cambodia and in many of the countries discussed in Engle’s piece). Often times not only are the crimes infamous but so are the accused. In such situations, there is at least a tacit suggestion that the defendants are already guilty; the trial then is seen merely as a show trial, a symbolic gesture.

    Yet there is a silver lining that I think Engle’s piece may overlook: often these situations require that we protect the rights of the accused because procedural rights are the only legal weapon at the defendant’s disposal. For instance, Khieu Samphan, the former head of state of Cambodia, is going to have a difficult time beating back the prosecution’s evidence of his role in the alleged atrocities. Furthermore, the fact that over a million Cambodians died under that regime is hardly disputable. But Samphan does have a full arsenal of procedural rights. He can challenge just about everything, and the prosecution has to answer those challenges. And, often times, the court will listen. Just recently, one of the four accused at the ECCC was declared unfit to stand trial.

    In addition, I would disagree that the pursuit of legal justice means that other pursuits will be left out or ignored. If anything, the push for an end to impunity, especially so many years after heinous crimes were committed, often reopens dialogue. Again, in Cambodia I have seen how the trials of the Khmer Rouge have led to a push for reconciliation, for the creation of a national genocide education program and the demand for an increase in mental health services in the country. I do acknowledge that spending time and money on trials may take away from other activities and from the larger issues for which the Left has advocated, but does it have to be seen as an entirely zero-sum game? And can we imagine the alternative: a world in which impunity ran unchecked, a world without international tribunals, without criminal justice for the gravest crimes? In that world, would we really be more satisfied?

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