I recently reviewed an excellent new collection of essays Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller and D.M. Davis (Cambridge, 2016). The book should be of interest to anyone working in the field of human rights and in particular those engaged with issues of international criminal justice. Below is an excerpt from my review, the full version of which is available on Lawfare here.
Towards the end of the twentieth century, the global human rights movement embarked on a major shift in its agenda and priorities. From the mid-1970s through the late 1980s, human rights groups tended to direct their advocacy in opposition to State criminalization of political activity and abuses within domestic criminal justice systems. The primary tactic was naming and shaming; the principal target was the State. From at least the early 1990s, however, the human rights movement underwent a “criminal turn,” increasingly directing its resources towards the promotion of criminal prosecution as an indispensable requirement for securing justice, peace and truth in the aftermath of mass atrocity situations. Under the banner of “ending impunity,” the primary tactic became the promotion of criminal accountability before domestic and international courts; the principal target was the individual.
Now, almost two decades into the twenty-first century, the correspondence between criminal prosecution and human rights has become so entrenched that to be anti-criminal prosecution is increasingly viewed as anti-human rights.
It is this turn towards an anti-impunity norm that forms the focus of a stimulating new collection co-edited by Karen Engle, Zinaida Miller and D.M. Davis: Anti-Impunity and the Human Rights Agenda. Arriving at a time when the international criminal justice project is increasingly under scrutiny and a surge in divisive and isolationist populism has put many in the human rights community on the defensive, this collection offers a timely problematization of the anti-impunity agenda that has come to dominate human rights thinking over the past two decades.
Bringing together some of the most prominent and engaged scholars in the field, the collection comprises ten chapters divided into three parts.
Part I contains three chapters—authored by Karen Engle, Samuel Moyn, and Vasuki Nesiah, respectively—that define and trace the development of the anti-impunity norm amongst human rights advocates, scholars and practitioners. While Engle and Moyn offer critical accounts of the genealogy and rhetoric of the anti-impunity turn, Nesiah examines how moments of anti-impunity against perpetrators of international crimes have simultaneously constituted moments of impunity for more powerful actors and injustices caused by systemic inequality.
Part II turns to examine and critique anti-impunity struggles within five specific contexts. D.M. Davis offers a close reading of the Constitutional Court case that rejected a legal challenge to South Africa’s transitional amnesty process, revealing how the reasoning and outcome of the case were politically contingent on the conditions confronting South Africa at the time. Zinaida Miller examines the multi-layered anti-impunity struggle that took place within post-genocide Rwanda, illuminating how local and international elites instrumentalized the struggle for different political ends. Fabia Fernandes Carvalho Veçoso recounts the transitional experience in Brazil to offer a critical reading of the Inter-American Court of Human Rights’ invalidation of the country’s amnesty law. Helena Alviar García and Karen Engle examine the fluctuating role of anti-impunity rhetoric across four decades of peace negotiations in Colombia, illuminating how broader conversations about inequality of land and resources have been sidelined in the process. And Natalie R. Davidson offers a critical reading of the U.S. Alien Tort Statute case, Filártiga v. Peña-Irala, revealing how a combination of legal constraints and the judicial need for legitimation in exercising an extraordinary form of jurisdiction led to the production of an impoverished historical account of the use of torture in Paraguay.
Completing the collection, Part III contains two chapters—authored by Dianne Otto and Mahmood Mamdani—that explore alternatives to the struggle against impunity. Albeit in different ways—Otto by examining people’s tribunals, and Mamdani by bringing renewed attention to the political process that facilitated the transition in South Africa—these chapters manage to successfully carve out space for discussing thicker and more diverse conceptions of justice beyond those that fit neatly within the narrow frame of conventional anti-impunity thinking.
As this brief overview suggests, the collection traverses an impressive range of issues, balancing general critiques of the anti-impunity agenda with more particularized insights that emerge from the examination of specific contexts. Given the volume’s breadth and richness, this review is restricted to discussing a few of its most thought-provoking insights in an effort to continue the important conversation ignited by its contributors.