The Socio-Political Practice of Human Rights: Between the Universal and the Particular 9781138368088, 9781472414892, 9781315552620

Table of contents :
The Socio-Political Practice of Human Rights- Front Cover......Page 1
The Socio-Political Practice of Human Rights......Page 2
Title Page......Page 4
Copyright Page......Page 5
Contents......Page 6
Acknowledgements......Page 8
Bridging the theoretical/empirical divide......Page 10
Developing the sociology of human rights......Page 11
The ‘social life of human rights’ (Wilson, 2006)......Page 13
Aims......Page 14
The sites......Page 15
Methodology......Page 16
A personal journey through the human rights world......Page 17
Structure of the book......Page 20
Notes......Page 22
PART 1: The debates......Page 24
Introduction......Page 26
Reframing universalism: ‘relative universality’......Page 27
On being human......Page 28
Western liberal universalism......Page 29
The ‘creation story’ of human rights......Page 30
Human rights and empire......Page 31
The ‘rights versus culture’ divide......Page 32
The ethnographic turn and the problem of 'chastened universalism'......Page 34
Constructing the local and the global......Page 35
Conclusion......Page 36
Notes......Page 37
Introduction......Page 38
Law not politics: the legalisation of human rights......Page 39
The silencing effect of law......Page 41
Imperialism, law and the postcolony......Page 42
The limits of legal analysis......Page 44
The shift to governance......Page 45
Notes......Page 49
Introduction......Page 50
Handmaiden to neo-liberal economics? Human rights and capital......Page 51
From politics to governance......Page 53
The ‘ethical turn’......Page 54
Global civil society......Page 55
From Right to Intervene to the Responsibility to Protect: linking human rights and humanitarianism......Page 57
Alternate discourses of justice......Page 58
Human rights: language of the multitude?......Page 59
Notes......Page 60
PART 2: The case studies......Page 62
Introduction......Page 64
Background on Kosovo......Page 65
‘Creating’ human rights, good governance and the rule of law......Page 67
‘Humanitarian imperialism’: legitimate violence and authoritarian order......Page 69
Who is the ‘international community’?......Page 73
Constructing the local: ‘ancient ethnic hatreds’......Page 75
Building local civil society......Page 76
The gender agenda: culture, tradition and women’s rights......Page 77
The ‘noble, embattled international’ versus the ‘barbaric local’......Page 79
Characterising the problem: discourses of international human rights organisations......Page 81
The politics of everyday life......Page 89
Conclusion......Page 97
Notes......Page 98
Background: the Special Court for Sierra Leone (SCSL)......Page 100
A new era for women’s human rights? The SCSL approach to prosecuting ‘gender crimes’......Page 102
Can the subaltern speak in international law? The ‘bush wives’......Page 104
Voice of the ‘Third World Woman’: Zainab Bangura......Page 112
Saving black women, reinforcing white patriarchy......Page 124
International women’s rights discourses in Sierra Leone: creating rights consciousness?......Page 125
The power of ‘strategic misunderstanding’......Page 130
Conclusion......Page 132
Notes......Page 134
Introduction......Page 137
Mobilising international human rights......Page 138
Utilising human rights language: a source of power?......Page 140
The pros and cons of engaging the international framework......Page 142
‘The ethnic conflict’......Page 143
‘Teaching human rights’: education as empowerment?......Page 146
Unpacking ‘the local’......Page 151
Engaging political society......Page 156
Alternate activism: The Third Eye Collective......Page 158
From ‘good governance’ to ‘spaces for dissent’......Page 166
Notes......Page 168
PART 3: Retheorising human rights......Page 172
Introduction......Page 174
Rewriting the history of human rights......Page 176
Forging links: alternate forms of (subaltern) cosmopolitanism......Page 177
‘Death By Culture’ (Narayan, 1997)......Page 178
(Re)problematising, (re)politicising ‘culture’......Page 180
Who defines culture? The problem of authenticity and representation......Page 181
The productive capacity of culture......Page 183
Notes......Page 184
Developing resistance within international lawThe criticisms......Page 185
Cosmopolitan subaltern legality: strategic engagement with the law......Page 187
The ‘everyday life of the law’......Page 190
Engaging with law......Page 192
Notes......Page 193
The subject of rights......Page 194
Reimagining the political......Page 197
Human rights as a politics of dissensus......Page 199
The dangers and potential of incommensurability......Page 202
Notes......Page 203
Bibliography......Page 204
Index......Page 222

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The Socio-Political Practice of Human Rights

This book examines discourses of rights and practices of resistance in post-conflict societies, exploring the interaction between the international human rights framework and different actors seeking political and social change. Presenting detailed new case studies from Sierra Leone, Sri Lanka and Kosovo, it reveals the necessity of social scientific interventions in the field of human rights. The author shows how a shift away from the realm of normative political or legal theory towards a more sociological analysis promises a better understanding of both the limits of current human rights approaches and possible sites of potential. Considering the diverse ways in which human rights are enacted and mobilised, The Socio-Political Practice of Human Rights engages with major sites of tension and debate, examining the question of whether human rights are universal or culturally relative; their relationship to forms of economic and political domination; the role of law as a mechanism for social change and the ways in which the language of human rights facilitates or closes sites of radical resistance. By situating these debates in specific contexts, this book concludes by proposing new ways of theorizing human rights. Empirically grounded and offering an alternate framework for understanding the fluid and ambiguous operation of power within the theory and practice of human rights, this volume will appeal to scholars of sociology, law and politics with interests in gender, resistance, international law, human rights and sociolegal discourse. Kiran Kaur Grewal is Senior Research Fellow at the Institute of Social Justice at the Australian Catholic University, Australia. ‘A ground-breaking book. Kiran Kaur Grewal’s original study, based on ethnographic methods, enables her to show how individuals and groups make use of human rights to challenge practices in their everyday lives. The book is a far-reaching contribution to key debates in the study of human rights over universalism and cultural relativism, law and politics, empire and self-determination.’ Kate Nash, Goldsmiths, University of London, UK

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Global Connections Series Editor: Robert Holton, Trinity College, Dublin

Global Connections builds on the multi-dimensional and continuously expanding interest in globalization, focusing on ‘connectedness’ and providing accessible, concrete studies across a broad range of areas such as social and cultural life, and economic, political and technological activities. Interdisciplinary in approach, the series moves beyond abstract generalities and stereotypes: ‘Global’ is considered in the broadest sense of the word, embracing connections between different nations, regions and localities, including activities that are trans-national, and trans-local in scope; ‘connections’ refers to movements of people, ideas, resources, and all forms of communication as well as the opportunities and constraints faced in making, engaging with, and sometimes resisting globalization. For a full list of titles in this series, please visit www.routledge.com/series/ ASHSER1306 Titles in the series include: Global Inequalities Beyond Occidentalism Manuela Boatcă

Eurocentrism at the Margins Encounters, Critics and Going Beyond Lutfi Sunar

Global Exposure in East Asia A Comparative Study of Microglobalization Ming-Chang Tsai

Glocal Pharma International Brands and the Imagination of Local Masculinity Ericka Johnson and Ebba Sjögren

Violence and Gender in the Globalized World The Intimate and the Extimate, 2nd Edition Sanja Bahun and V.G. Julie Rajan

The Socio-Political Practice of Human Rights Between the Universal and the Particular Kiran Kaur Grewal

Global Culture: Consciousness and Connectivity Roland Robertson and Didem Buhari-Gulmez

The Global Repositioning of Japanese Religions An integrated approach Ugo Dessì

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The Socio-Political Practice of Human Rights Between the Universal and the Particular Kiran Kaur Grewal

First published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business

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© 2017 Kiran Kaur Grewal The right of Kiran Kaur Grewal to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Names: Grewal, Kiran Kaur, author. Title: The socio-political practice of human rights : between the universal and the particular / by Kiran Kaur Grewal. Description: Farnham, Surrey, UK ; Burlington, VT : Ashgate, [2016] | Series: Global connections | Includes bibliographical references and index. Identifiers: LCCN 2015041447 (print) | LCCN 2015044987 (ebook) | ISBN 9781472414892 (hardback) Subjects: LCSH: Human rights—Social aspects. Classification: LCC JC571 .G78265 2016 (print) | LCC JC571 (ebook) | DDC 323.01—dc23 LC record available at http://lccn.loc.gov/2015041447 ISBN: 978-1-472-41489-2 (hbk) ISBN: 978-1-315-55262-0 (ebk) Typeset in Times New Roman by Swales & Willis Ltd, Exeter, Devon, UK

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Contents

Acknowledgements

Introduction

vii 1

PART 1

The debates

15

1 The universalism/cultural relativism debate

17

2 The place of law in human rights

29

3 The radical potential of human rights

41

PART 2

The case studies

53

4 Kosovo: International humanitarianism and the narrative of ‘ancient ethnic hatreds’

55

5 International legal institutions: Site of empowerment or further marginalisation? The example of the Special Court for Sierra Leone

91

6 From civil to political society: Human rights, knowledge and power in post-war Sri Lanka

128

PART 3

Retheorising human rights

163

7 Between the universal and the particular? Reframing the rights versus culture debate

165

vi Contents

8 Law as tool for positive social change

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176

Conclusion: Reinvigorating the radical potential of human rights

185

Bibliography Index

195 213

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Acknowledgements

This book has only been possible thanks to the input and engagement of many people. First and foremost I would like to thank all of those who so generously welcomed me, gave me their time, shared their opinions, allowed me a little insight into their lives and worlds, and facilitated my conversations with others. At the risk of forgetting someone, I would also like to thank the following in ­particular: Vasuki Jeyasankar, Jeysankar Shivanangan, Jothirajah Suman Karunenthira, Cayathri Divakalala, Rajany Chandrasegaram, Darshan Ambalavanar, Kaushalya Ariyaratne, Vidura Munasinghe, Gehan Gunatilleke, Waruni Chandrasena, members of Third Eye, Vallamai and the Batticaloa Feminist Forum, Ahmet Hasoli, Driton Bajramaj, Amie Kandeh, Sian Jones, Lucy Fiske, Franklin Obeng-Odoom and Dinesh Wadiwel. My conversations with each of you inspired and challenged me. It is thanks to you that I managed to finish this book. I also want to acknowledge the endless support and encouragement of Ahmad Khavafipour. Your infinite patience and unwavering confidence in me are appreciated more than I can ever say. Finally, this book is dedicated to the two Bs in my life. To my father Balram Singh Grewal, who unfortunately didn’t live to see this book but who is in no small part responsible for making it possible. And to Bahaar Kaur Mosavi, the next generation of human rights activist.

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Introduction

Human rights have become a ubiquitous feature of contemporary social and political discourse. From the high-level world of international relations, through national contexts of societies emerging from authoritarianism or war, to localised communities struggling to meet basic needs, human rights play a part in framing debates about justice, equality and the meaning of a good life. At the same time, human rights remain highly contested: marred by the legacies of imperialism, continued geopolitical hierarchies, apparent selectivity, and new forms of oppression and inequality created by contemporary globalised capital. Even at a local level, the apparent ‘universality’ of human experience on which rights claims are founded often ends up juxtaposed against particular communal demands for selfdetermination and fears about cultural survival. So what is the future of human rights and the underlying demands for social justice that apparently animate them? And perhaps more importantly for those of us concerned with social justice, is the human rights framework one in which we should continue to invest so much time and energy? Or is it a time to search for new emancipatory languages and practices? This book is an attempt to engage with these questions through both a theoretical and an empirical analysis. Starting with some of the most persistent and challenging debates that continue to shape our understanding of human rights, I will explore the operation of human rights in practice in three post-war sites: Kosovo, Sierra Leone and Sri Lanka. In doing this I both test the relevance of different theoretical positions on the benefits and costs of human rights, and highlight potential sites, voices and actions that are often lost in (over)generalised accounts of what human rights do or do not achieve.

Bridging the theoretical/empirical divide In choosing to write about these three case studies, I am seeking to move beyond the abstract, theoretical debates that have raged – and continue to rage – within scholarship in human rights. Not only do I believe that such debates cannot be resolved, I also find them unhelpfully dichotomous in their articulation and too ungrounded to tell us very much at all about whether or not human rights can in fact be seen as a positive or negative feature of the contemporary political and social landscape.

2 Introduction

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In his critique of Anne Orford’s attempt to resurrect the progressive potential of human rights, Ben Golder poses the following questions: [W]e have to pause to ask whether the figural possibilities disclosed by Orford within the beleaguered human rights canon, which ultimately lead her back to reinvest in the possibility of human rights . . . ever manage to emerge fully from the margins of those texts to animate vibrant and dissonant political projects[.] Do they . . . found a truly other-regarding human rights? Or do they remain as unactualised textual possibilities, traces and memories, which solicit a certain faith in the human form – as endlessly capable of transcending its present instantiations? And how might we provide an account of the process by which that possibility is both sustained and yet never quite made real? (Golder, 2014, p.96) I argue that these questions cannot be answered in the abstract nor simply through the text – not when the life of human rights extends beyond that of legal texts into the social and political lives of people. Indeed, as the case studies will show, many of the easy assumptions I myself may have held about the emancipatory or repressive effects of human rights have been challenged and refined (if not outright rejected) in the course of my encounters in ‘the field’. In setting out this process and the insights that emerge, I hope to contribute to a fairly recent but extremely important development in the study of human rights.

Developing the sociology of human rights Much has already been written on human rights. However, human rights for a long time remained primarily the domain of political theory and science, philosophy and law (Turner, 1993, p.489). There continues to be no well-established sociology of human rights and, ‘relatively little sociological research on how human rights law works in practice’ (Merry, 2006b, p.977; see also Halliday and Osinsky, 2006; Somers and Roberts, 2008). This has primarily been attributed to the mistrust held by sociologists (similarly expressed by anthropologists) for the asserted universalist and abstract quality of human rights and a reluctance to engage in normative debates (Turner, 1993, p.489). Thankfully there has been a significant shift in recent years: both sociologists and anthropologists are seeking to address the dearth of empirical studies of human rights and in the process contributing important insights into the theorising of rights. It is as a result of both inspiration from these studies and a desire to contribute to the further development of this emergent field that this book finds its starting point. In endorsing the view of a sociology of rights as being primarily a sociology of praxis (Hilhorst and Jansen, 2012, p.902) I seek to avoid studying the origins and trajectories of any pre-existing concept of ‘human rights’, in favour of ­asking: what might we learn about human rights by not treating them as something already constructed and then circulating but as something constantly being made and remade in particular locations through actors, exchanges, and processes of

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Introduction  3 domination and resistance? In other words, I explore the ‘multiple social worlds’ in which human rights operate (and in the process are transformed and/or mediated), without assuming any ontological status of such rights as Lila Abu-Lughod has urged in relation to Muslim women’s rights (Abu-Lughod, 2011, p.101). For many of us it is the processes of human rights and their social and cultural impact that are both a potentially rewarding and an urgently needed site for research (Merry, 2006b, p.977).1 The task is especially important for a number of reasons. First, as already mentioned, this is due to the ubiquity of rights language. Indeed, it has been argued that rights are now deployed as the hegemonic language for social and political struggle (Santos, 1999; Dembour, 2006, p.2; Douzinas, 2007). Moreover this is legitimated through the asserted emancipatory potential rights can hold (Santos, 1999; Cowan, Dembour and Wilson, 2001, p.1; Dembour, 2006). Yet at the same time, rights discourses and practices are often extremely diverse and ambiguous in terms of what they achieve. This requires attention be paid not only to what rights are asserted to mean and to offer but what in fact they produce or contribute (intentionally or unintentionally) in ­practice.2 For this reason there must be a greater emphasis on complementing the vast body of theoretical literature on human rights with more empirically and contextually grounded analyses (for a similar argument see Cowan, Dembour and Wilson, 2001, p.1; Goodale, 2007; Bhatt, 2012, pp.825–826; Hilhorst and Jansen, 2012, p.902). This work is important because, as Kate Nash points out, ‘simplifying the relationship between social movements, human rights and law to fit normative commitments will not help us understand how human rights are actually being developed and institutionalised’ (2012, p.808). For Nash there are two contributions that sociologists can make to the study of human rights. The first is greater attention to the complexity of the multiple legal processes through which human rights are being institutionalised, and theories. The second is methodologies that allow for analysis of the diversity of organisational forms through which human rights are defined and claimed. It is to both of these that this book aims to contribute. For example, Nash argues that, ‘there is a lack of empirical research to support the assumption that international human rights law is the chosen solution of “common people” (in the words of the UDHR), who are in agreement that this is the best way to achieve dignity and security’ (2012, p.807). Such claims, in Nash’s view, would only be defensible following in-depth and sustained study of the nature and scope of grassroots mobilisations and their relationship to human rights language, discourse and frameworks – work that thus far has not been done (2012, p.802). While Nash is sceptical about the possible gains of conducting such time-consuming work (2012, p.808), it is possible and perhaps more productive than she imagines, as the case studies in this book hopefully demonstrate. The case studies also support a broadening of the scope of Nash’s inquiry in ways that might lead to less pessimistic conclusions for those of us interested

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4 Introduction in articulating an alternate subaltern cosmopolitan consciousness (see Chapter 8 for more). In fact this book seeks more generally to open up the field of inquiry beyond the institutional focus that many sociological studies of human rights have had. Rather, I seek, as Hilhorst and Jansen (2012) also urge, to pay more attention to the actors involved, including not just those working within human rights and humanitarian organisations but also ‘recipients’ of human rights. In this sense I am inspired by Richard Wilson’s (2006) more anthropological approach to documenting the ‘social life’ of human rights.

The ‘social life of human rights’ (Wilson, 2006) In this book I explore how the language of ‘human rights’ enters particular social and political spaces, is adopted, adapted, subverted and/or rejected, and what this contributes to movements for social justice. In particular I seek to show that the manner in which the discourse of human rights is acquired and utilised as a political tool should in fact be seen as constitutive of human rights. As Cowan et al. observe: ‘There is an intriguing, and as yet mostly unexplored, dialectic between the discourse and practices – one might say, the culture – of human rights, and those of the groups that appeal to them’ (Cowan, Dembour and Wilson, 2001, p.11; see also Nash, 2012). This in turn raises a further question: if this active social and political life of human rights is recognised, what other possibilities might it open up for resisting the hegemonic articulation of human rights and the violence done in its name? In asking this question this book is not an attempt to ‘save’ human rights: to resurrect, relegitimate or renegotiate them. Critical scholars may well be right when they argue that the language and form of human rights are beyond redemption (Golder, 2014). Indeed, I have no particular investment in the language of human rights – and if the reader concludes that they are too fraught and flawed a concept and rejects them, that is a choice open to the reader. However, before we do this, this book is an appeal for us to look beyond the dominant understandings of what human rights are, who makes them, who critiques them, and what they do or do not achieve. Whether we like it or not, human rights are currently the main game in town: invested with huge amounts of material and symbolic (and in some cases military) power. This recognition does not require us to simply accept the status quo. And indeed I hope that much in this book will add further weight to the critical scholarship on human rights: showing how much it disempowers, marginalises and dominates in its apparent intention of ‘doing good’. At the same time, as I hope the case studies will also highlight, it is a disservice to the creativity and agency of many operating in highly constrained places to ignore the sometimes instrumentalist, sometimes subversive, almost always strategic ways in which they draw on human rights as a tool for making claims. For this reason, even as I consider the role of institutions and formal accounts of human rights I also seek to supplement these with accounts of the ‘social life’ of rights as they are understood, invoked, rejected, ignored or (re)claimed by a variety of actors. The aims of this book are therefore threefold.

Introduction  5

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Aims First, through a discussion of three major theoretical debates that have occupied the field of human rights, I seek to show how the abstract positions adopted in each have somewhat paradoxically both shaped and simultaneously failed to capture important aspects of human rights praxis. Following this, in an attempt to move away from the oppositions created in abstract theoretical engagements with human rights, this book moves to the empirical. Through the three case studies I show that the ways in which human rights are deployed in practice in particular locations at particular times are complex and multi-faceted. Thus, simple descriptions of the universal/culturally relative status of human rights, its over-legalisation and/or its production and reinforcement of hegemonic power relations fail to do justice to the full scope of social and political practices of human rights. At the same time, as Kelly and Dembour (2007) also highlight in the introduction to their edited collection, all too often there has been a disconnect between legal and political analyses of international human rights institutions and discourses that tend to be very decontextualised and anthropological accounts that are completely rooted in the ‘local’ context without adequately accounting for how these institutions may produce more ‘authoritative’ or ‘legitimate’ standards through their relationships to power. This book is an attempt to address this dichotomy through engaging with the institutions themselves as well as the ways located actors interact (or not) with these institutions and the outcomes of this. By exploring the ways in which social, political and legal(istic) discourses of human rights and justice are articulated in different locations of the Global South, this book identifies both the specificities of these contexts (that in turn shape the encounter between institutions, law and society), as well as the commonalities. Finally, the order in which the case studies are discussed is not incidental. As will hopefully become evident to the reader, they reflect a progressive (though not linear) development of my own thinking about a human rights praxis that both draws on and resists or subverts internationally developed legal principles. In attempting to disrupt binaries between culture and rights, the ‘international’ and the ‘local’, and the conflation of ‘governance’ and ‘politics’, this book seeks to offer a more nuanced reading of both the potential and the pitfalls of human rights as a vehicle for demanding a more just social order. In part the case studies chronologically chart the end of three major conflicts and post-conflict human rights practices in each. In part they reflect my own personal chronology of working within these three locations. But they also reflect a shift in my thinking about how the engagement with local struggles and international normative frameworks may take place. Starting with the highly technocratic response to the end of the Kosovo war, they go on to explore the complex, messy process of international legal intervention and local responses in the case of Sierra Leone. And finally – as a result of both an increased international reluctance to intervene and a national sovereign assertion of authority – the case of Sri Lanka provides an interesting ­opportunity

6 Introduction to explore both how and why struggles to invoke human rights emerge and what alternatives become possible and/or necessary when official ‘human rights’ frameworks and discourses are perhaps not readily available or for some reason counter-productive.

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The sites I have limited my analysis to three particular sites and the role human rights has played in relation to post-conflict restoration strategies. In some ways the sites discussed in this book may seem arbitrary and unrelated. The pragmatic reason for their selection is that they happen to be three places where I have had the opportunity to do fieldwork over the last 8 years (something on which I will say a little more shortly). However, they also reflect some interesting and illuminating connections. First, they represent three significant ‘human rights contexts’, starting with Kosovo as a new model for United Nations (UN) peacekeeping, through Sierra Leone as a test case for hybrid forms of post-conflict justice, to Sri Lanka as a current site of attention, to the human rights community where the tensions between ‘national’ and ‘international’ responses have been particularly sharp. They also each, in different ways, provide useful case studies for exploring how the theoretical debates regarding human rights (set out in Part 1 of this book) play out in practice. As Cowan, Dembour and Wilson point out, ‘case studies . . . enable a stronger grounding of the conversation between theory and practice’ (2001, p.21), and bringing different case studies together may allow us to see important patterns. Doris Buss et  al., in the introduction to their special edition of the journal Social and Legal Studies entitled ‘Sexual Movements and Gendered Boundaries: Legal Negotiations of the Global and the Local’, note: [I]t might be increasingly important for future research at a local level to engage with the ways in which global developments actually play a role in constituting meanings at the local level. Conversely, future research at the international level could be enriched by exploring how it is inflected with sexualized and racialized meanings; in other words, to analyze it by utilizing some of the theoretical tools that have been used by critical scholars to explore the construction of local understandings and of nationalism in particular. (2005, p.14) It is hoped that the following case studies respond to precisely this call. Human rights in post-conflict settings While human rights form a part of many different discourses and projects, nowhere has this been more concentrated in recent years than in post-conflict or post-atrocity settings (Bowden, Charlesworth and Farrall, 2009; Hilhorst and Jansen, 2012, pp.897–898). Richard Wilson and Jon Mitchell noted in 2003 that there had been twice as many UN humanitarian missions – frequently

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Introduction  7 based on human rights – between 1990 and 2000 as there had been in the entire 1948–1990 period (2003, p.2). This is a trend that has only continued, especially with the International Criminal Court now in operation, ongoing conflict in the Great Lakes region of Africa, and recent events across the Middle East and North Africa. Given the intensity of investment in and attention to human rights in these settings (where human rights are often offered as the very raison d’être of international intervention or involvement), the post-conflict setting provides a particularly rich site for exploring human rights frameworks and discourses in operation. Women’s rights as human rights At the same time, although not exclusively focused on women’s rights, many of the examples given in this book are in relation to these rights and to women’s rights movements. This is partly a reflection of my practical experience in the field of human rights being primarily in this area. It is also a reflection of the investment – at least rhetorically – in ‘gender mainstreaming’ by the international community since the 1990s. As a result of extensive advocacy on the part of women’s groups and feminists across the globe, the Declaration and Programme of Action emerging from the 1993 Vienna World Conference on Human Rights included a statement giving specific recognition to the rights of women and girl children as human rights. Following this, ‘gender mainstreaming’ – the explicit incorporation of a ‘gender perspective’ into projects and policies – has become a catchphrase across the international aid, development and human rights sector. Moreover, since the beginning of the 2000s, an interest in the rights of women has also (again rhetorically if not practically) been a key aspect of post-conflict interventions. Starting with Security Council Resolution 1325 (on women, peace and security), there has been a suite of UN resolutions expressing the importance of protecting and promoting the rights of women and girls in both conflict and post-conflict settings, as well as the establishment of a number of institutional mechanisms. A key component of this has been the articulation and incorporation of ‘gender crimes’ within international criminal law, a development that provides important contextual background to the Sierra Leone case study set out in Chapter 5. Finally, perhaps nowhere else has the battle over culture and rights been more often and vehemently waged than in relation to gender roles and relations. It is thus inevitable that in attempting to critically interrogate the dualistic construction of rights versus culture (one of the key debates with which this book engages) many of the examples are those relating to women’s rights.

Methodology This book employs ‘multi-site ethnography’ (Marcus, 1995, 1998; Hannerz, 2003) as the dominant methodology: ‘a combination of qualitative methods applied to the study of different locales that aims to examine the operations of

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8 Introduction global sociolegal processes shaping events in such sites’ (de Sousa Santos and Rodríguez-Garavito, 2005, p.4). The case studies are not directly comparative, but rather they reflect the study of different locations that are linked through a translocal phenomenon – in this case human rights – allowing for certain commonalities and differences to be observed. This use of multiple sites in turn enables a richer understanding of the translocal phenomenon itself: something a focus on one location would not offer. While the benefits of this approach have been mentioned above, there are also limitations, of course. As Hannerz points out: If we could make use of the possibilities for comparison, however, neither I nor my colleagues [doing multi-site ethnography] could claim to have an ethnographic grasp of the entire ‘fields’ which our chosen research topics may have seemed to suggest – and this tends to be in the nature of multi-site ethnography. (2003, p.207) I certainly make no claims to provide a comprehensive or authoritative account of the human rights story in general or in these locations in particular. The chosen texts and sites are undeniably arbitrary, even as I have sought to be as diligent as possible in presenting an accurate account of the context. I justify this approach by reasserting that the intention is not so much to ‘correct the record’ – to replace one account with another that is more ‘accurate’. Rather, my aim is to complicate the picture and to urge for a shifting of the lens onto other perhaps less often considered sites and perspectives. My methodological approach is also somewhat the product of the process by which this book came into being. According to Hannerz, the nature of the multi-site ethnographic approach is that site selections are often made gradually and cumulatively, ‘as new insights develop, as opportunities come into sight, and to some extent by chance’ (2003, p.207). This is certainly true of this book.

A personal journey through the human rights world As mentioned above, the case studies presented reflect not only a chronology but also a personal journey. They highlight the shifts in my own thinking as I have moved through the world of human rights politics and practice as practitioner, scholar and activist. I first visited Kosovo in 2006 on a research mission for a major international human rights organisation to collect information on the extent to which the international administration established in 2000 had responded to the crimes committed during the war and re-established a functioning justice system. This was my first foray into the world of UN peacekeeping missions and post-conflict reconstruction projects. It was also my first insight into the tension between the supposedly apolitical, universalised human rights discourse and the harsh realities of how this discourse in fact operates within a highly politicised and unequal space. During this trip I conducted interviews with local and international NGOs, members of the UN administration, local and international lawyers and judges,

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Introduction  9 local politicians, ethnic community leaders and activists. While I continued to follow the Kosovar situation from afar, it was not until 2011 that I was able to return, by which time the UN mission (UNMIK) had for the most part given way to a more modest European Union law and justice mission (EULEX) and a local government and bureaucracy. Chapter 4 draws on my interviews in both 2006 and 2011, on observations from attending meetings and parties and simply spending time with friends in Prishtina, and on secondary material collected both within and outside of Kosovo. It is a far from comprehensive account of post-war Kosovar politics. Rather, I seek to use this case study as a preliminary means of questioning the relationship between the development of international legal and political frameworks and localised struggles for justice, rights and social change. Later in 2006, inspired by my brief visit to Kosovo and keen to understand more about how human rights operated outside the headquarters of international organisations in London, Geneva, New York and The Hague, I accepted a position as an independent trial monitor at the Special Court for Sierra Leone (SCSL). Having been working primarily in the area of women’s rights and sexual violence, I was curious to know more about this institution that within feminist legal circles was being heralded for its commitment to redressing gender crimes. Furthermore, in terms of post-conflict justice, the Sierra Leone model was an innovative one: not only had Sierra Leone adopted both a truth and reconciliation and criminal prosecution approach, the prosecutions were being conducted through a hybrid judicial institution (incorporating both Sierra Leonean and international laws and judicial/legal personnel) and taking place in the country. Thus much was made of the potential the SCSL held for not only providing individual accountability for leaders involved in the commission of atrocities, but also strengthening the local justice system and (re)establishing a culture of Rule of Law. I spent three months at the SCSL, growing more disillusioned every day. Eventually I decided to leave much earlier than I had initially planned and returned home thoroughly cynical about human rights and their potential to counter suffering and injustice. It was not until five years later, in 2011, that I returned to Sierra Leone to conduct field research exploring the legacy of the SCSL in terms of enhancing women’s rights. As documented in Chapter 5, this trip both reaffirmed some of my concerns regarding the operation of human rights discourses and presented some surprising findings. It was out of these confusing and contradictory findings that I decided to ­re-enter ‘the field’, taking up a role in a human rights project that required me to spend extended time in both Nepal and Sri Lanka. For this reason the final case study of this book focuses on Sri Lanka: a place where I have now spent most of the last three years. Aside from being one of the most recent sites for international post-conflict justice discourses, Sri Lanka presents interesting opportunities for exploring how human rights politics interact with discourses of sovereignty, culture, belonging and justice. As a result of the personal and intellectual trajectory that this book traces, it will be evident to the reader that the case studies are not even. The Kosovo case study relies much more heavily on analyses of texts and institutions, while the

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10 Introduction Sri Lanka case study almost solely relies on a heavily ethnographic account of a particular location and particular actors that are for the most part far from the loci of institutional power. Moreover the discussion of practices of resistance is inevitably much richer in the later case studies. I freely admit that in the early stages of the research I was not even aware enough to seek out these more marginal but nonetheless significant voices, while towards the end they provided me with the only source of hope in an otherwise quite bleak institutional picture. For this reason I hope readers will excuse some of the apparent asymmetries between case studies, source materials and analysis, and instead read this book as a first attempt at rereading and reimagining human rights theory and practice. The case studies rely on an array of data, from largely textual sources and a limited number of interviews in the case of Kosovo, through to more extensive ethnographic research in both Sierra Leone and Sri Lanka. In the latter locations, the research process was driven more by a series of questions that emerged through my engagement in the field than by a structured framework of inquiry decided in advance. This has limitations, but it also allowed me to adopt a more fluid approach to understanding the ways in which human rights discourses were operating in practice in both locations. As Kate Nash has commented, ‘The study of grassroots mobilisation is intrinsically difficult. It requires long-term, in-depth fieldwork, and the development of mobilisations around human rights is difficult to foresee in advance’ (2012, p.802). It was in recognition of this that my approach has shifted over time from the more classic human rights research model that has revolved around studies of institutions, analyses of formal texts (UN documents, resolutions, legal texts and judgments) and key informant interviews towards a more anthropological and critically engaged research approach,3 best demonstrated in the final case study on Sri Lanka. Aside from the practicalities (I have been located within Sri Lanka for much of the past three years, giving me much deeper and longer access to the field and much greater possibilities for developing meaningful relationships, engagements and understandings), I have been driven by questions very similar to those posed by Nash in her attempts to identify the sociological contribution to be made to the study of human rights: Is grassroots mobilisation often facilitated by notions of ‘human rights’? Are definitions of human rights at the grassroots similar to those we find in international human rights agreements? How are they different? How do uses of human rights at the grassroots relate, if at all, to legal reform? And when they do, what kind of legal reform is demanded? (2012, p.802) What I present here is a tentative first step towards developing and refining these questions rather than providing definitive answers. I hope, however, that this will be useful in both highlighting the importance of more sociological studies of human rights and broadening the scope of inquiry to allow for more complicated and nuanced analyses of what human rights do or do not contribute to achieving progressive social change and enhancing social justice.

Introduction  11

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Human rights practices The three case studies are not just significant in terms of reflecting my engagements with particular locations: I have also been interested to document the different human rights practices – all of which I have had experience working with as both a scholar and practitioner/academic – that have come to make up mainstream human rights activity. Thus in the case of Kosovo I explore the expansion of human rights into the field of humanitarian governance. This overlap between humanitarianism and human rights has led to a focus not just on immediate relief to sites in crisis but also on the assertion of a longer-term imperative that requires intervention to build and reinforce institutions, initiate reforms and implement human rights to allow states to better avoid future crises. The most comprehensive articulation of this agenda can be found in the development of the concept of a United Nations Emergency Peace Service (UNEPS) (see Herro (2015) for more). It is also in relation to the Kosovo case study that I dedicate some attention to the particular forms of international human rights advocacy that have come to dominate: most notably through the work of the two best-known non-governmental organisations, Amnesty International and Human Rights Watch. In the case of Sierra Leone, we are provided with an example of the outcome of human rights advocacy around situations of atrocity and armed conflict. As I will describe in Chapter 2, one of the strategies to overcoming the critique of human rights as a ‘toothless tiger’ has been a commitment to establishing the field of international criminal justice (ICJ) with a body of law and a set of institutions that are able to ensure accountability for gross violations of human rights. The Special Court for Sierra Leone is one example of an ICJ institution. Finally, in the case of Sri Lanka, while I also engage with some of the earlier forms of human rights practice, I am most interested in looking at how human rights education has come to dominate as a new mode of human rights activity.

Structure of the book The book is divided into three parts with the majority of attention dedicated to Part 2, containing the three case studies set out above. However, before embarking on a discussion of the case studies it is necessary to outline some of the key debates that have taken place within human rights scholarship and serve to frame the ways in which we might understand the social and political practice of human rights. Therefore, in Part 1 of this book I will focus on three particular debates that have continued to haunt human rights. It may seem odd, given the stated aims of this book, that the first part should be dedicated to theoretical debates. However, I do this for two reasons. First, these debates – while primarily fought at the abstract level – are often reproduced in the field. As the case studies will illustrate, the theoretical frameworks created around human rights continue to shape both scholar and practitioner approaches. This leads to the second reason: these debates have served to shape what is and is not seen as ‘human rights’ activism and discourses. It is therefore necessary to

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12 Introduction first explore these theoretical assumptions before moving to highlight in the case studies what I see to be the often ‘hidden’ effects and practices that should also be captured in any study on human rights. The first theoretical debate I examine is that regarding the universality versus cultural relativity of human rights. Although this is viewed by many as tired and unresolvable, the asserted universal character of human rights continues to be met with demands for recognition of the imperial legacies and contemporary geopolitical inequalities. Defenders of human rights continue to respond with cynicism to what they see as the immobilising and impractical effects of more anthropologically derived, post-structural, postcolonial interpretations of rights. Added to this, the ‘cultural turn’ – meaning here the turn towards culture as a (if not the) key mode of identification and contestation – not only shows no sign of abating but continues to throw up more and more challenges for social and political theory. Second, in recent years the emphasis within human rights on the creation of legal frameworks and mechanisms has come under sustained critique. The increased and ever-increasing juridification of rights has been associated with the shift away from politics and towards governance and to a consolidation of the power of ‘experts’ over more democratic participatory practices. Some have sought to highlight the ways in which recent geopolitical history has facilitated this process (both during and after the Cold War and with the apparent ‘triumph’ of liberal capitalist democracy). Meanwhile, drawing on the insights of critical legal scholarship regarding the ambivalent relationship between law and ­justice,4 the very violence underpinning law has been highlighted (Comaroff and Comaroff, 2006). So too, the implication of (human rights) law in processes of exploitation and domination in many contexts has been identified and critiqued (Menon, 2004; Kapur, 2005; Comaroff and Comaroff, 2006). Third, and connected to the previous debate, is the concern regarding the extent to which human rights, rather than creating the potential for radical, social change and justice, is a tool for sanitising and legitimating existing hegemonic power relations. In particular, critical scholars have pointed to the use of human rights as a means of displacing political debate and replacing it with a language of technocratic governance and moral imperatives (Nesiah, 2009). Others have more directly linked human rights with the maintenance of the current global financial system. They highlight the extent to which the human rights system continues to remain largely silent on the implication of neo-liberal economics in so much of the suffering and violence occurring all over the world today, even as it avows a commitment to addressing the ‘root causes’ of violations (Klein, 2007, pp.146–151; Marks, 2011). They also ask: ‘What other languages and other avenues for the pursuit of social justice or for resistance to the ravages of global capitalism become silenced and displaced when we speak human rights talk (or are “spoken by” it)?’ (Golder, 2014, p.78). These may not be the only debates within human rights theory, but they are debates that have provided parameters and shaped human rights practice and scholarship in recent years. As the case studies show, these debates on occasion

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Introduction  13 provide useful tools for critically analysing the impact of human rights ‘on the ground’. They have also at times acted to obscure the diversity and ambiguity of human rights as they are invoked and engaged with in particular locations at particular times by different actors. It is for this reason that I assert the importance of empirically grounding the debates and it is this that I seek to do myself in Part 2 of the book. The final part of this book returns to theory. Picking up the three debates set out in Part 1, I attempt to compile the lessons learnt from the three case studies in Part 2 to articulate what I see to be some important and potentially fruitful directions for theorising human rights. In particular, I draw on and link the work of subalternist Partha Chatterjee, socio-legal scholar Boaventura de Sousa Santos and political theorist Jacques Rancière in an attempt to propose an alternate framework for analysing and evaluating human rights as socio-political practice(s).

Notes 1 For a similar call and an important contribution to this, see Cowan, Dembour and Wilson (2001). 2 See for example some of the contradictions produced by normative human rights rhetoric and practice in the context of the War on Terror, documented by Chetan Bhatt (2012). See also Hilhorst and Jansen (2012) for the diverse and complex ways in which rights discourses are deployed by a range of actors in humanitarian settings. 3 Here I am particularly influenced by Shannon Speed’s (2008a) articulation of ‘critically engaged activist research’, which aims to combine direct political engagement with critical analysis, through engaged dialogue with and commitment to our research subjects and the establishment of some form of shared political goals. 4 In particular by feminist, critical race and other critical legal theorists.

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Part 1

The debates

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1 The universalism/cultural relativism debate

Introduction Why start this book with the old ‘universalism/cultural relativism’ debate? Isn’t this tired topic already thoroughly mooted and no longer worthy of another word being wasted on it? Certainly this debate and the various positions taken on it have been well rehearsed and seem exhausted. Yet it continues to haunt human rights practice and discourse and is arguably, ‘the most discussed issue in the theory of human rights’ (Donnelly, 2007, p.282). For this reason I will treat it as the first of the major theoretical debates with which Part 1 of this book engages. The universalism versus cultural relativism debate reached its height in the 1990s. Since then it has undergone significant shifts. As anthropologists and sociologists have become more engaged in the field of human rights, there have been considerable efforts to move away from ‘archipelago’ views of culture (as static and discrete) towards greater focus on questions of power, agency, interconnectivity and flows (Wilson and Mitchell, 2003, p.9). However, these more ethnographic interventions have met with backlash from within the ‘mainstream’ of human rights for reasons I will elaborate upon shortly. Furthermore, the ‘cultural turn’ in global politics has meant that while some scholars have pushed for a shift in focus to questions of economic and social power, the invocation of ‘essential difference’ and Clash of Civilisations rhetoric continue to frame many debates about human rights around the world. This is fuelled not only by geopolitical realities and discourses (although this is a factor, as the Kosovo and Sri Lanka examples set out in Chapters 4 and 6 demonstrate). Critical scholars have also identified the constructed and partial nature of what constitutes ‘the human’. They have also pointed to the unresolved legacies of colonialism that continue to haunt human rights, making claims to an abstract universalism highly suspect. In this chapter I will briefly track the development of the universalism versus cultural relativism debate. I will then explore how it manifests itself within current human rights scholarship and practice. Finally I will engage with the emergent critical scholarship that has sought to historically contextualise human rights within the postcolonial world.

18  The debates

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The origins of the debate Debates about the universal or culturally relative nature of human rights have been present since the earliest stages of their institutionalisation (Sharma, 2006). However, they reached epic proportions, fundamentally challenging the entire concept, in the early 1990s, when, following a meeting in the lead-up to the Vienna World Conference on Human Rights, a group of Asian nations produced the Bangkok Declaration. This Declaration, while ostensibly supporting the universality of human rights, placed great emphasis on the importance of selfdetermination, national sovereignty and economic development. The Declaration also contained a statement asserting that, ‘while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds’ (1993, para. 8). This largely captured the ‘Asian Values’ argument, which dominated international debates on human rights throughout the 1990s and also during the Vienna World Conference. While explicitly rejected in Vienna,1 the question of whether it was in fact possible to assert one universal set of rights triggered widespread discussion within both practitioner and academic spheres. It led to a flurry of responses. Some urged for greater attention to be paid to regional human rights instruments and mechanisms, such as the African Charter on Human and Peoples’ Rights (known as the ‘Banjul Charter’) (Mutua, 1995). Others critiqued the West’s focus on certain practices in the non-West that became classified as ‘human rights violations’ with insufficient understanding of the cultural and social context and significance of these practices.2 Yet others asserted the culturally and religiously diverse philosophical bases of human rights and the importance of developing a more cross-cultural foundation for claims of universality (An-Na‘im and Deng, 1990; An-Na‘im, 1992). Finally, strong proponents of the importance of retaining the universalism of human rights set out to defend their position by asserting the shared experience of being human (Donnelly, 1984, 2007) and/or human suffering (Turner, 1993) as well as by highlighting the self-interested, essentialist and essentialising claims of certain non-Western elites in their assertion of fundamental cultural differences (Sen, 1997). Through these engagements the terms of the debate have shifted, with both sides adopting more nuanced positions and with greater awareness of the possible dangers of co-option by self-interested elites on both sides. Yet, while the debate has somewhat waned it continues to influence both the theory and practice of human rights. I therefore provide a summary of the key claims made by both sides.

Reframing universalism: ‘relative universality’ A particularly prominent voice in the debate has been that of Jack Donnelly. A proponent of a universalist conception of human rights, Donnelly (1984, 2007) has nonetheless engaged with the cultural relativist position and as a result

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The universalism/cultural relativism debate  19 developed what he has called a concept of ‘relative universality’ over the last 30 years. His key arguments are as follows. First, there is a universal basis for human rights, which can be linked to the universal experience of being human. Added to this, the particular conditions of modernity – and the power of the state and the market – require a universal response that is not to be found in traditional cultures and societies. Thus, it is not so much the fact that human rights emerged in the West that is important but rather that they emerged in response to the experience of modernity. Finally, the need for some sort of universal set of fundamental rights has been recognised by nations across the world through their engagement with the UN system and their ratification of international human rights treaties and declarations. For Donnelly, the place for relativism is confined to the point of interpretation and application. He is therefore in favour of a narrow set of fundamental rights whose form if not content is largely indisputable (and indeed is not disputed in practice) by peoples across the world. In many ways Donnelly presents a nuanced and powerful argument. Others have sought to complement his work by also identifying the shared experience of human suffering (Turner, 1993) as the universalising basis of human rights and by further elaborating on the scope within international law to balance a certain commitment to universalism with respect for diversity (Brems, 2001). I would also argue that this approach is the dominant one within the ‘mainstream’ human rights community (as my discussion in Chapter 4 of Amnesty International and Human Rights Watch reports will illustrate). In response, critical scholars have also developed more nuanced arguments for why the assertion of ‘universal’ human rights remains a fraught endeavour. Faced with the argument that their questioning of the potentially oppressive nature of universalism provided support for authoritarian and violent non-Western elites (Sen, 1997; Afshari, 2012), there has been a shift in the ‘anti-universalist’ position towards focusing on three main critiques: first, the apparent universality of ‘being human’ and relatedly, the hierarchical foundation of the concept of ‘humanity’; second, the false universalism of Western liberal modernity; and third, the legacies of imperialism.

On being human Some scholars have critiqued the apparently descriptive nature of human rights as simply the rights owing to all humans based on their ‘human-ness’. In her provocative series of essays entitled Are Women Human?, Catharine MacKinnon highlights the ongoing exclusions of women from the human rights framework, leading her to conclude, ‘in the perspective of human rights, what is done to women is either too specific to women to be seen as human or too generic to human beings to be seen as about women’ (2006, p.181). This is in spite of the sustained efforts of feminist and women’s movements to make the human rights framework more sensitive to gender and to recognise how the public/private divide that human rights has traditionally upheld has operated to exclude the experiences of women and the specific forms of violation they suffer (Bunch, 1990; Peters and Wolper, 1995).

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20  The debates Rather than this being a simple question of expanding the scope of human rights, certain scholars have argued that in fact rights produce and regulate the subjects to whom they are assigned (Brown, 2004, p.459). In the words of Talal Asad: ‘human rights are not simply found by the individual and invoked by her . . . they serve to define “the human”’ (2000, para. 51). While (as discussed above) Donnelly promotes human rights as the only effective response to the power of the state and the market, Wendy Brown sees them less as protecting against power but rather intricately implicated in the production of that power, a tool of governmentality, an argument to which I will return in Chapter 3. Not only does this apply in the context of gender, it has also been asserted to link with the (re)production of hierarchies of civilisations and humanity. For example, for Talal Asad, human rights law is, ‘a mode of converting and regulating people, making them at once happier and more governable’, leading him to conclude: ‘As such we should not be surprised to find that human rights are used both as a justification for intervening against the perpetration of cruelty but also for justifying international action that is itself cruel even though it aims at a more peaceful, civilized, and empowered world’ (2000, para. 56). In making this argument Asad (1996) draws direct parallels between the language of ‘unnecessary suffering and cruelty’ invoked in contemporary debates about torture and war, and colonial debates about acceptable ‘civilising’ punishment of the colonial state versus ‘barbaric’ native practices of punishment.

Western liberal universalism Asad is not the only commentator to point to the continuity between colonial discourses of civilisation and progress, and the contemporary language of ‘development’, ‘human rights’, ‘democracy’ and ‘rule of law’ (an issue to which I will return in the next chapter). The intricate and possibly inextricable relationship between contemporary articulations of human rights founded on a base of liberal political values, (Western) modernity and the project of European imperialism makes it extremely difficult for proponents of universal human rights to convincingly assert the benefits of such a concept without acknowledging the far from innocent and neutral context within which it has emerged. If for Makau Mutua, ‘human rights and Western liberal democracy are virtually tautological’ (2002, p.39), Ratna Kapur adds: ‘the liberal tradition from which human rights have emerged not only incorporates arguments about freedom and equal worth but – and this is the core of my argument – it also incorporates arguments about civilisation, cultural backwardness, racial and religious superiority’ (2006, p.674). This historical baggage continues to haunt the concept of universal human rights, however much contemporary advocates attempt to avoid or counter it. Moreover it remains unresolved. Not only do critics point to the selective humanity that continues to be recognised within the human rights framework, there also continues to be an implicit understanding of who is the appropriate ‘agent’ and author of human rights and who is deemed the passive recipient (Spivak, 2004). This is facilitated by the way the story of human rights is generally told.

The universalism/cultural relativism debate  21

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The ‘creation story’ of human rights There are hundreds of anecdotal examples of universal rights being automatically associated with Western liberalism and constructed in opposition to the traditional cultures of the non-West. A recent book I reviewed charts the development of the international legal regime prohibiting sexual violence through European gender norms and Western feminist activism that is then characterised as ‘spreading’ to impact on the otherwise passive non-Western world (Inal, 2013; Grewal, 2013). Having conducted observations of numerous human rights trainings over the last few years, I am constantly amazed by the ways in which 10 minutes are uniformly dedicated to explaining how human rights are not a Western concept but found in principles in the other major religions. This is then followed by up to a couple of hours of history of human rights, which charts their foundation back to the Magna Carta and feudal England, the French and American revolutions, culminating in the UDHR. This fairly standard narrative within human rights discourse does little to destabilise the idea of the West as the source of rights and the non-West as a site of tradition and culture, requiring intervention. As Balakrishnan Rajagopal notes, ‘[i]n the mainstream historiography of the human-rights discourse, the Third World’s “contribution” is seen as minimal’ (2003b, p.174). Even as the Third World is the primary site of deployment of human rights law, it is seen as playing virtually no role in the origin or evolution of human rights (2003b, p.172; see also Mutua, 2002, p.40). An illustrative example can be found in a speech given by David Crane, former chief prosecutor of the Special Court for Sierra Leone (SCSL, the institution discussed further in Chapter 5). Describing the establishment of the SCSL, Crane presents the dilemma of an international prosecutor seeking to bring ‘justice’ to ‘the victims of a third world conflict’ (2006, p.1685) in a context where international justice, ‘runs smack into a brick wall when considering locally, culturally oriented justice vis-à-vis Africa’ (2006, p.1686). Crane reiterates the classic rejection of cultural relativism, stating: ‘African leaders can easily manipulate popular thinking by loudly declaring that the justice being imposed (and threatening the status quo or a leader’s power) is “white man’s justice”, playing upon the fears of colonialism as a way of excusing the rampant corruption and impunity that is Africa’ (2006, p.1686). In response, he clarifies, ‘I am not here to say that we need to rethink our international standards to adjust them to meet cultural norms, far from it’ (2006, p.1686). He simply calls on the audience to give greater thought to how this barrier of ‘local attitudes’ may be overcome. For anyone who considers the ‘universalism/cultural relativism’ debate dead, Crane’s speech is evidence to the contrary. However, it is also informative to look at the ways in which he characterises the problem. First of all, he is very explicit in his assertion of ‘international standards’ both as universally applicable and clearly foreign to what he calls, ‘the third world’. Even when he is expressing compassion for those in whose name international justice is claimed to operate, he reinforces a divide between their ignorance and

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22  The debates the superiority of international actors: ‘the tribunal is about the victims. They need to be listened to, informed, and involved. One of the essential implied mandates of the [international] tribunal must be to reach out, sensitize, teach, mentor, and to embrace the people, their culture, and their customs’ (2006, p.1684). Not one of the interactions he calls for with ‘the people’ in whose name he claims to act involves a process of learning for him. They are all instructive in nature. Moreover his very use of the language of ‘white man’s justice’ (including in the title of his speech) invokes the colonial trope of the ‘white man’s burden’, used to characterise the relationship of responsibility of the coloniser for the ‘backward’ native population. Finally he re-establishes the centre and periphery of international law and civilisation more broadly by describing West Africa as, ‘the edge of the world’ (2006, p.1686).

Human rights and empire For this reason many have argued that human rights cannot and should not be studied without taking into account the history of European imperialism and colonialism, which preceded their emergence (Mutua, 2001, 2002, pp.15–22; Rajagopal, 2003b; Kapur, 2005; Douzinas, 2007). As Makau Mutua observes, a certain degree of universality and concern for humanity is both inevitable and desirable: But what that universality is, what historical and cultural stew it is made of, and how it is accomplished make all the difference. What the [US] high school or college student ought to realize is that his or her zeal to save others – even from themselves – is steeped in Western and European history. (2002, pp.21–22) Beyond the historical continuities within institutions and laws (discussed further in the next chapter), the very essence of hegemonic rights discourses has been the promotion of Enlightenment values: rationality, secularity, individualism and universalism. Contemporary human rights may have emerged, as Donnelly argues, in response to the new conditions of modernity, but the values underpinning them were also crucial to the project of Western imperialism. These values provide the basis for justifying contemporary humanitarian interventionism but were also the foundation for the asserted ‘civilising mission’ at the heart of many European colonial projects.3 At the same time, in his description of contemporary debates about global governance, Muppidi (2003) also identifies the continuum in colonial logic in the construction of the ‘Other’ as object whose responsibilities are already defined and whose rationality is never presumed. This reinforces a picture of a ‘rights and rule-of-law’-endowed international order seeking to bring civilisation to those who have yet to experience their Enlightenment, those Douzinas pithily describes as the ‘infants of humanity’ (2007, p.83). Far from reflecting a break from past colonial and imperial domination and exploitation, critics argue that hegemonic human rights discourses in fact rely on and reproduce colonial tropes:

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The universalism/cultural relativism debate  23 ‘Savages and victims are generally non-white and non-Western, while the saviours are white. This old truism has found new life in the metaphor of human rights’ (Mutua, 2001, p.207). David Crane’s speech, discussed above, exemplifies this point. What is the practical effect of this recognition of the relationship between Western imperial modernity and human rights? On the one hand it has led to the (what I consider necessary) call for greater critical reflexivity and attention to history on the part of human rights advocates. On the other, it has sometimes reaffirmed a particular conception of human rights as a ‘Western’ notion, an outcome that I see as less productive.

The ‘rights versus culture’ divide For example, the topic of women’s rights has been a particularly hotly contested site in the universalism versus cultural relativism debate. The figure of the nonWestern, subaltern woman (or the ‘Third World Woman’, as Chandra Mohanty (1988) calls her) continues to provide the foundation for intervention and claims of Western superiority often in ways that have changed little since the era of the colonial civilising mission (an argument I will return to in Chapter 5).4 However, the criticism of Western cultural imperialism sometimes seems to veer dangerously towards a defence of local forms of patriarchy. Uma Narayan explains this tension well when she writes: ‘given that . . . negative attitudes and stereotypes about Third-World communities are produced in a number of powerful institutional sites, I find it unlikely that the solution for “Western cultural arrogance” lies in Third-World feminist silence about the problems women face in their national and cultural contexts!’ (Narayan, 1997, p.135). Yet articulating a position that is simultaneously committed to a women’s rights agenda and sensitive to the hierarchies of civilisation that are often created through discourses on how ‘they [non-western others] treat their women’ is often extremely difficult. This is in part, Dianne Otto argues, due to the very foundation of the human rights system (in Otto’s example, the UDHR), which ‘doubly reinstated the colonial paradigm of masculinity; of European superiority and of the feminized “victim” subject in need of rescue from her own communal culture’. In the process, ‘[t]he “spirit” of rights that is present in every cultural tradition was thus erased from the text and, along with it, women’s histories of resistance to patriarchal arrangements in non-European and colonial societies’ (2006, p.335). The imperialist and imperialising nature of Western-sponsored human rights can make postcolonial actors cautious and defensive when naming the potential discrimination and exclusions that are perpetuated in the name of ‘tradition’ and ‘culture’ (an issue that emerges in the case studies in Part 2 of this book and which I have also highlighted previously: see Grewal, 2012a, 2012b). Meanwhile human rights activists located outside of the West are often positioned as somehow less culturally authentic or appropriate in speaking the language of human rights (another issue to which I will return in the case studies). This, too, is a

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24  The debates legacy of colonialism. If on the one hand the assumption of Western cultural superiority is often an underlying feature of human rights advocacy, on the other hand the assertion of the cultural inappropriateness of human rights is similarly shaped in conformity to the colonial stereotypes of non-Western cultural others. At the heart of the problem lies a number of assumptions that underpin the universalism/ cultural relativism divide. First, there is a false assumption that human rights concepts are likely to be seen as ‘foreign’ to some cultures. Rachel Wahl’s (2013) ethnographic study of Indian police officers demonstrates that in fact they found no real difficulty in identifying equivalent values in their own religious and cultural texts: they simply interpreted these concepts in relation to the perceived conflict with their role as law enforcement officers. What Wahl’s study demonstrates is that it is how these rights are understood and interpreted that allows for the divergence. This is true not only across cultural and religious divides but within societies. Yet the ‘Clash of Civilisations’ rhetoric has become so firmly entrenched in our psyches that the necessary point of disjuncture will always be explained in cultural terms. This in itself produces a number of paradoxical outcomes. For example, even as human rights advocates seek to disavow a Western bias, they are necessarily forced into a position of defending the West in order to justify their assertions. Meanwhile, the content of rights remains unspoken – treated as unambiguous when in fact it is the very fluidity of the concepts underlying human rights that makes them so malleable as tools both of empowerment and resistance and potentially for oppression and domination. If the content of rights is questioned, it can necessarily only be on the basis of a cultural critique, thus evacuating both the political implications and potential of rights debates (a problem dealt with further in Chapter 7). Finally an inescapable box is constructed within which the non-Western subject must always choose between endorsing rights and endorsing culture. This fuels and refuels the resistance to human rights in some quarters and the characterisation of human rights activists as ‘Western/ised’, representing them as somehow culturally less authentic when operating outside of the West. This contributes to rendering non-Western activists marginal within their own societies, losing a potentially valuable source for change (an issue I will return to in the case studies). I am therefore wary of endorsing the critical response to human rights that reduces them to yet another incarnation of Western imperial domination. Not only do I see this as overly determinative, I also see it as potentially counter-productive for those of us committed to promoting the voice and agency of marginalised subaltern actors. In fact, as Pheng Cheah points out, the apparent binary opposition of ‘Western (imperialist) universalism’ and ‘Eastern/Southern cultural difference’ is a false one and operates to disguise how both sides are often complicit with each other: ‘The coding of this fight in terms of cultural difference diverts our attention from the subtending line of force of global capital that brings the two antagonists into an aporetic embrace against the possibility of other alternatives of development, feminist or ecological-subalternist’ (Cheah, 1997, p.237).

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The universalism/cultural relativism debate  25 I would add that it is also a colonial legacy that allows for this binary between a West that is inherently more concerned with autonomy and individual rights and a non-West that is more committed to culture and tradition to be maintained. In this sense, efforts at ‘respect for cultural difference’ all too often reflect the reverse side of the same coin as those who demand respect for universal (Western liberal) human rights. Both accept uncritically what are often colonial constructions of non-Western culture and tradition and construct an overly homogenised collectivist non-West that is placed in opposition to the heterogenous West.5 This argument emerges more clearly in the case studies.

The ethnographic turn and the problem of ‘chastened universalism’ One potentially positive development within recent human rights scholarship has been the effort to steer clear of ontological debates about the foundation of human rights in favour of inquiries about the practical effects of human rights discourses, frameworks and practices in particular locations (Wilson and Mitchell, 2003; Speed and Sierra, 2005). This has both been facilitated by and productive of a rapidly developing body of anthropological and sociological accounts of human rights (Wilson, 1997; Cowan, Dembour and Wilson, 2001; Wilson and Mitchell, 2003; Speed and Sierra, 2005; Merry, 2006a, 2006c; Morris, 2006; Moulin and Nyers, 2007; Kelly and Dembour, 2007; Goodale and Merry, 2007; Osanloo, 2009; Rajaram and Zararia, 2009; Hilhorst and Jansen, 2012). Yet these accounts have not been uncritically accepted nor have they necessarily had the desired effect of shifting the debate regarding human rights and (non-Western) culture. Instead, they have been interpreted by some within the human rights mainstream as representing a ‘trendy genre’ of ‘tempered or chastened universalism’ (Afshari, 2012) that gets in the way of the real work of human rights. In critiquing a recent anthropological account of women’s rights discourses in Iran, Reza Afshari writes: ‘Scholars discussing today’s human rights discourse and practice while harping on outdated anti-imperialist narratives may run the risk of sounding anachronistic, particularly in the context of a repressive state such as the Islamic republic’ (Afshari, 2012, p.540). In highlighting the complexities of both human rights and the contexts within which they are applied, these scholars have been accused of creating paralysis, preventing the documentation of obviously egregious human rights violations and ultimately undermining the human rights of those most in need (Afshari, 2012, p.544). They are thus presented as occupying a morally dubious position (Orford, 2003). The ‘urgency’ of the problem and the apparent complacency of critics of human rights is often invoked as the justification for human rights practitioners paying little attention to critical theorists and social scientists. I encountered this recently at a major international conference on human rights fact-finding where critical perspectives were confined to one panel session and the conversation regarding the utility of social science methods was limited to how quantitative methods might further assist with the documentation of violations.

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26  The debates Meanwhile, ethnographic studies have also been accused of, while perhaps being academically interesting, contributing little in terms of actual human rights practice. Indeed, writing in major international human rights journal Human Rights Quarterly, Afshari concludes: ‘In the end, the skillful adjoining of ethnography and international human rights discourse offers no significant practical assistance to international human rights discourse and practice’ (2012, p.545).6 The business of naming, shaming and demanding redress remains indisputably the only option for human rights activism: something that is facilitated by the central place that law occupies in human rights, which leads me to the next major debate with which I engage, in Chapter 2. At the same time this position is also reflective of the divide between those asserting the importance of maintaining the universality of human rights and those calling for greater attention to (cultural) context. The debate continues to frame how ‘legitimate’ human rights accounts, actions, approaches and recommendations are conceived. It also continues to shape approaches of different actors to human rights in particular locations (something I will discuss further in relation to international human rights organisations’ reporting practices, in Chapter 4).

Constructing the local and the global As the above example of David Crane’s speech illustrates, the idea of the ‘progressive, abstract’ space of universal norms that are introduced, imposed, adopted by bounded, ‘traditional’, local sites continues to dominate. Despite the fact that various scholars have tried to demonstrate the fluidity of these borders (e.g. Zwingel, 2012), there continues to be a presentation of both the ‘international’ and the ‘local’ as largely stable and homogenous sites. This is despite the fact that, ‘transnationalization . . . reminds us that the idea of the local as culturally bounded and unambiguous is misleading’ (Zwingel, 2012, p.122, emphasis in original), as is also the case for the unequivocal meaning of universal norms. In fact, it is precisely the ambiguity contained within the language of human rights that has led to their being so widely adopted by actors across political and ideological spectra (Douzinas, 2000, 2007). While for Donnelly (1984) this is a positive step towards establishing the universality of human rights and one that should not be disrupted by too much attention to the substantive, as I will argue later in the book, it is the very process of disagreement regarding the scope and content of these rights that gives human rights its radical political potential. This potential is undermined by the creation of a dichotomy between (abstract universal) rights and (non-Western, essentialised) culture or tradition. Not only does this preclude any possibility for a critical engagement with the culture of human rights or the possibility for articulating different cultures or traditions of rights, it also reinforces another unhelpful binary between the free-floating international and the situated local. One of the crucial arguments in this book is that it is inadequate and inaccurate to work within the local/international binary. As the case studies will demonstrate, it reifies both sites in ways that undermine the diversity

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The universalism/cultural relativism debate  27 contained within each, leads to damaging exclusions, and assists with the maintenance of hierarchies of power and knowledge. However, there continues to be a treatment of the international as a given within much socio-legal scholarship on human rights law (Kelly and Dembour, 2007, p.13). For Kelly and Dembour, the ‘international’ is commonly conceived as being ‘above’ the national, with the focus being on ‘implementation’ (Risse, Ropp and Sikkink, 1999; Halliday and Schmidt, 2004) or ‘norm translation’ (Zwingel, 2012, p.124) as if these norms emerge from a separate and superior place (2007, p.13).7 They also write: ‘This sense of transcendence also means that the international is often seen as the ideal place to deliver justice, representing universal and non-partisan values’ (2007, p.12). As the case studies developed later demonstrate, this assumption requires re-examination in order to better recognise both the limitations within the international sphere and the possibilities of alternate, more promising sources of rights discourses emerging at the more localised level.

Conclusion As noted in the Introduction to this book, human rights have become a dominant feature of global discourse and political practice. While emerging ethnographic accounts have sought to complicate and enrich our understanding of human rights, they continue to be marginalised within the ‘mainstream’ human rights sphere on the basis that their ‘complicating of the picture’ somehow dilutes the possibility for action. Instead, human rights activism, in the words of Florian Hoffmann, continues to be premised, ‘on a rigid and culturally defined “we”/“they” dichotomy: the “we” is presumed to have and understand human rights, and the “they” to lack them and to be in need of them’ (2006, p.224). As the case studies in Part 2 of this book will show, this has real consequences for the lives of people in many parts of the world requiring our sustained critical engagement with how human rights come to be constructed and understood as ‘universal’. At the same time there has been a global trend since the 1990s to treat culture as the primary framework for conflict and contestation (Cowan, 2001; see also the case studies in Part 2), something that the current international crisis around ‘radical Islam’ suggests is far from abating. Without facing and responding to the culturalisation of conflict, the possibility remains remote for us to identify and more directly attack the social, political and economic structures that continue to feed inequality, violence and the deprivation of basic rights. Thus critical engagement with the notions of ‘rights’, ‘culture’ and ‘tradition’ continues to be a pressing political and ethical priority. Finally – and as I will return to in the final part of this book – there remains a need to engage with both the arguments for a universal conception of rights and those that focus on the importance of attention to particularity and context. Failing to do so may lead to important and worthwhile concerns being lost: concerns that both highlight the culturally relative and universal bases of human rights but in very different ways to those currently presented.

28  The debates

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Notes 1 Directly addressing this issue, the first paragraph of the Vienna Declaration and Programme of Action (after the Preamble) states: ‘The universal nature of these rights and freedoms is beyond question’ (1993, para. 1). 2 A particularly contentious and oft-invoked issue is that of female genital cutting: see Lewis, 1995; Njambi, 2004. 3 While admittedly this ‘mission to civilise’ was often invoked cynically to sanitise more ruthless aims of economic and military exploitation – a criticism that has similarly been made of US interventionism in recent times – at least within French imperialism, historians have argued that the ‘civilising mission’ cannot be excluded from one of the core justifications for colonisation: see Conklin (1997). 4 Wairimũ Ngarũiya Njambi (2004) has demonstrated a disturbing continuum from colonial exhibitions that showed African female genitals to the detailed descriptions within human rights scholars’ (including feminists) texts of mutilated, violated labia. In international criminal law there is a similar (porno)graphic tendency to reproduce detailed accounts of the degradation, violation and mutilation of African women’s vaginas (Grewal, 2015). 5 Sen (1997) makes this observation in relation to the overly generalised, homogenised and essentialised construction of ‘Asia’ expounded by proponents of ‘Asian values’. 6 He comes to this conclusion after presenting a damning critique of Arzoo Osanloo’s (2009) ethnography of Muslim women’s prayer groups in Iran and the alternative women’s rights discourse she argues they present. 7 For an impressive effort at debunking this myth see Sally Engle Merry’s (2006a) ethnography of the international system.

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2 The place of law in human rights

Introduction As identified in the previous chapter, one of the strategies adopted in an attempt to by-pass arguments regarding the relativity of values and value systems has been the resort to the language of law. The assumption behind this strategy is that the articulation of normative legal standards is one way in which the ‘universality’ of human rights can be enshrined. As a result, human rights has become a highly legalised field, with the proliferation of legal instruments and institutions, the dominance of legally focused human rights advocacy organisations and the situating of human rights educational programmes predominantly within law faculties and schools internationally. On the one hand, human rights lawyers and advocates have argued that this is a legitimate and desirable outcome given the authority and credibility often placed in law and the advantages of separating human rights from the messy world of politics. They also identify the widespread (at least rhetorical) acceptance of international legal norms – evidenced in the near universal ratification of most of the major international human rights instruments – as providing powerful support for the assertion of human rights’ universal applicability. On the other hand, those coming from different disciplinary perspectives have been highly critical of the colonisation of human rights by law: a move they see as limiting the radical and creative potential of human rights as well as further privileging the elitist and exclusionary space of law and legal institutions. In this chapter, I will begin by setting out how and why the law has come to be so central to human rights. Following this, I will address four specific consequences of this legalisation of human rights. First, I explore the potential silencing effect of legal language and process. Second, following on from the previous chapter, I will focus on the specific relationship that international law has had with imperialism and how this in turn impacts on the ability of human rights to escape its colonial legacy. Then I turn to the recent debate regarding how law copes with the issue of root causes of human rights violations. Finally I examine the specific function of law as a mechanism for depoliticising social conflict and establishing models of governance: a theme that also extends into the next chapter.

30  The debates

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Law not politics: the legalisation of human rights The story of human rights has by and large been a story of law. Its proponents have proudly identified the expansion of international law from a relatively limited body focused on regulating relations between states towards an expansive – and ever expanding – field concerned with every level of society. The dominant language, institutions and actors of human rights have all been legal. While ideas of rights may have existed earlier, the formal human rights framework is the product of the post-World War II world order. Following the establishment of the United Nations in 1945, the first international legal instrument explicitly setting out the rights of all individuals regardless of their citizenship – the Universal Declaration of Human Rights (UDHR) – was adopted in 1948. Since then much of the work of human rights advocates has focused on the drafting and implementation of international conventions aimed at articulating and ensuring the protection of a range of basic rights including the prohibition of torture and genocide; protection from arbitrary state violence and persecution; asserting economic, social and cultural rights; and ensuring respect for women, different racial and ethnic groups, children, and most recently indigenous peoples and persons with disabilities. Parallel to the development of this new area of international law, many nations (particularly those emerging from colonial rule) have drafted new constitutions that incorporate some sort of bill of rights. These two trends have been married and furthered through current institutional human rights discourse, which asserts the ‘Rule of Law’ as a key component of peace and security for societies emerging from periods of violence, dictatorship and atrocity. Alongside the various judicial and quasi-judicial mechanisms established to oversee these legal instruments,1 there has also been an emerging criminal law component of human rights. The end of World War II saw the first criminal trials for perpetrators of what were called ‘crimes against humanity’: acts considered of sufficient gravity as to ‘outrage the conscience of mankind’ (in the words of primary UDHR architect, René Cassin). Although marred by allegations of ‘victors’ justice’, the Nuremburg and Tokyo tribunals (in which key figures of the German and Japanese regimes were prosecuted for atrocities committed against civilians and in violation of the internationally accepted norms of war) started debate about the possibility of a permanent international court in the future. Put on hold for decades, the idea was resurrected in the 1990s, when a proposal put forward by Trinidad and Tobago for a court to deal with the cross-border drug trade was grasped and redefined by human rights groups and became the subject of intense lobbying and advocacy. The genocide in Rwanda and the armed conflicts of the former Yugoslavia added impetus, leading to the establishment of two ad hoc international tribunals to try a combination of serious violations of human rights and the laws of war committed in those countries. Negotiations also began for the creation of an International Criminal Court whose mandate would be to hold individuals accountable for such universally agreed wrongs as genocide, aggression, war crimes and crimes against humanity. Subsequent post-conflict settings have also been sites for experiments

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The place of law in human rights  31 with ‘hybridised’ accountability mechanisms aimed at helping with the transition to peace and democracy (including the International Judges and Prosecutors programme established by the UN administration in Kosovo, mentioned in Chapter 4, and the Special Court for Sierra Leone, discussed in Chapter 5). The fields of transitional and international criminal justice were born and celebrated by many within the human rights community as representing an important step towards giving human rights the ‘teeth’ it required to ensure compliance.2 There are a number of explanations given for how the field of human rights has become so dominated by legal frameworks and discourses. Some have linked it to the Cold War and the need to create an arena, which could retain legitimacy beyond the bipolar lines of geopolitics. Others have seen it as the legacy of the legal profession’s direct involvement in the creation of many of the foundational international human rights organisations (Dezalay and Garth, 2006). Organisations such as Amnesty International and Human Rights Watch (discussed further in Chapter 4) are both the most prominent within the human rights field and committed to a model of legal discourse and advocacy. Their modes of documentation draw on legal methodologies (in particular ‘fact-finding’ missions), their identification of violations rely upon legal frameworks, and their recommendations and demands invariably call for more and/or better implemented and enforced law. It is also true that until the 1980s (and arguably still today, although to a lesser degree), the study and practice of human rights remained largely the domain of lawyers and law schools. This legal dominance was facilitated by the lack of engagement with the human rights framework by other disciplines until more recently and, in the case of sociology, the continued acceptance even within the discipline of parameters for human rights defined by law and legal institutions (Freeman, 2002). Proponents of this legalisation process have argued that law provides a safe, neutral, universal way to engage with other countries (Oomen cited in Nagy, 2008, p.279). Thus it has been offered – as mentioned above – as a means of sidestepping complex and contentious debates about cultural difference and providing a more acceptable foundation for asserting the universal applicability of human rights (see for example Donnelly, 2007; Brems, 2001, pp.4–5). Advocates also assert law’s ‘independent potential’ to shape political change (Teitel cited in Nagy, 2008, p.277) and law’s unique position of being able to counter the cynical and instrumentalist use of human rights within contemporary international relations. Renowned international lawyer and legal scholar M. Cherif Bassiouni exemplifies this ‘law not politics’ approach that has come to dominate human rights debates in his comment, ‘accountability should never be bartered in a realpolitik fashion in order to arrive at political expediency’ (cited in Vinjamuri and Snyder, 2004, p.347). In this account the political is a dirty game of inter-state power struggles and institutionalised party politics, while the law and its concern for due process provides a more neutral and morally responsible response to atrocity. Critical international legal scholar Martti Koskenniemi (1990) argues that there is in fact a fundamental tension within international law that seeks to navigate the space between social relevance on the one hand and a moralistic and

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32  The debates formalistic opposition to realpolitik on the other. Frédéric Mégret (2002) illustrates precisely this schizophrenic tendency in his review of a number of major texts on international criminal justice: a particularly good example of where the division between law and politics is often most vehemently asserted. However, the fluctuation between these positions also characterises human rights advocates’ claims generally in support of many aspects of human rights law. So what is the outcome of this legalism in the world of human rights? Does this greaten or lessen the scope for human rights to achieve their asserted aim of social justice and emancipation? While lawyers may continue to assert the potential benefits of harnessing law’s asserted impartiality and authority, sceptics point to the potentially detrimental effects of law and legal discourses as a result of both law’s historical structural position and its elitist and exclusionary processes. It is to these critiques that I now turn.

The silencing effect of law A pertinent critique of human rights law draws on Clifford Geertz’s (1983) observation that, ‘law is a distinct form of imagining the real, and that law skeletonizes social narratives, since whatever the law is after, it is not the “whole story”’ (Wilson and Mitchell, 2003, p.5). The combined effect of this reality and the ways in which the law is used to frame what is a violation, the history of the violation and the appropriate response, means the legal focus of human rights can produce some highly ambiguous outcomes, as the case studies in the second part of this book illustrate. In summarising the Foucauldian-inspired critical approach to law as discourse, Wilson and Mitchell observe: ‘law and rights operate a particular regime of truth with its accepted rules of evidence. Law in this view, produces silences as well as generating and authorizing certain types of speech’ (Wilson and Mitchell, 2003, p.5). This is well evidenced by the ways in which major international human rights organisations, through their legal focus, construct specific understandings of the causes and dynamics of human rights atrocities and in turn the appropriate remedies, an argument I will develop more fully in Chapter 4 on Kosovo. The exclusionary operation of law is also evidenced in the example of international criminal trials, which, while asserted as a mechanism for victims and communities to be heard and provided redress, in fact produce very specific (and in some instances quite inaccurate or incomplete) narratives of harm and victimhood: something that emerges clearly in the case of the ‘bush wives’ in the Special Court for Sierra Leone (see Chapter 5). Legal positivism and its commitment to ‘counting’ and ‘establishing the truth’, as a clear foundation for both non-governmental and many governmental approaches to human rights, may thus serve to disempower as much if not more than it empowers. Subalternist feminists such as Nivedita Menon (2004) and Ratna Kapur (2005) have both identified the ways in which encounters with the law, while potentially providing sites for subversive performances of agency, can also reinforce the dominant order and processes of disempowerment. In Kapur’s words:

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The place of law in human rights  33 Law has been used not only as a site of empowerment, but also as a device for excluding the world’s Others, or including them on terms that are quite problematic, both historically as well as in the contemporary context. These inclusions and exclusions have been produced in and through law, either by emphasising the difference of the subaltern subject as incapable of choosing or consenting, and thus incapable of exercising rights, or as backward and uncivilised, to be redeemed and incorporated into the liberal project through the process of assimilation. (2005, p.2) The process Kapur describes reflects the entanglements of colonisation, contemporary processes of globalisation and the increasing hegemony of liberal law. Chapter 5, in exploring the SCSL’s handling of the ‘bush wives’ phenomenon, illustrates exactly how these different dimensions play out in practice. Meanwhile Menon cautions feminists against over-resorting to the realm of law, which ‘tends to reinstate dominant and oppressive possibilities rather than release marginal emancipatory ones’ (2004, p.28). As Menon powerfully argues, the very nature of legal engagements with questions of rights is such that rigid and usually hegemonic understandings of identity are reinforced. Again in all of the case studies, the use of the legal arena inevitably has had impacts on the types of victims and harms that could be recognised. Not only does this limit the access of certain victims to redress, but it also has significant implications for post-war relations and possibilities for the creation of a more inclusive, socially just society. At the same time the types of victims and harms recognised are also not purely incidental. They are often both produced by and reinforce certain colonial tropes. Annelise Riles gives the example of women in the French DOM-TOM in the Pacific who expressed significant frustration regarding the difficulty of articulating colonisation within the women’s human rights framework at Beijing (2006, p.59). This can be contrasted with the very easy way in which non-white women across the globe are constructed as victims in need of saving from ‘harmful traditional practices’ (an argument already set out in the previous chapter).

Imperialism, law and the postcolony Contemporary appeals to the universality of human rights are often based on legal instruments such as the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), documents that are asserted to enjoy international support given their universal (or almost universal) ratification. This is often seen as a way to sidestep more contentious foundations for claims to universalism. As also outlined in Chapter 1, the development of human rights both has been shaped by and has attempted to erase the legacies of colonialism and with them the selective universalism and humanism used to justify imperial civilisational hierarchies. At the same time, the implications of international law in the imperial project and the inevitable legacies of this to be found within contemporary international

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34  The debates legal frameworks have also been increasingly well documented. Scholars such as Antony Anghie (2006) and Balakrishnan Rajagopal (2006) have argued that colonialism has been a central feature in the formation of international law. Indeed, in an effort to explore the nature and impact of this relationship between imperialism and international law, the ‘Third World Approaches to International Law’ (TWAIL) movement was established in the 1990s (inspired by the Bandung Conference in 1955) and has produced a vast body of scholarship exploring the political, philosophical and economic implications of the colonialist foundations of international law (Matua and Anghie, 2000; Rajagopal, 2000; Chimni, 2006). What these analyses have made clear is that part of the problem has been the production of a binary between the enlightened space of ‘abstract universal law’ and the specifically located site of (non-Western) culture and tradition. International law has in this way been both claimed to reflect the embodiment of Western Enlightenment principles and simultaneously abstracted to assert a universal applicability. In this sense its very founding assumptions have been both informed by and constitutive of imperialism (Anghie, 2006). As the case studies illustrate, the reproduction of a classic colonial logic remains at the heart of many international legal ventures. While perhaps not overtly imperialistic in its designs (although this too is hotly debated), the manner in which local marginalised subjects are incorporated into the realm of international law demonstrates an underlying set of assumptions that continue to be informed by a colonial imaginary of Enlightenment principles versus the barbaric, uncivilised non-West. Added to this, it has also been convincingly argued by scholars such as Jean and John Comaroff (2006) and Achille Mbembe (2001) that the current obsession with law and lawlessness within the Global South is a form of reconstructing the traditional colonial divide between the disorder of the colony and the civilisation offered by the metropole. Susan Silbey (1997) has described a form of ‘postmodern colonialism’ within which – despite forms of local invention and innovation attempting to reshape them – standardised global exports are imposed regardless of context and serve to structure relations of domination within which law plays a crucial role (see also Nagy (2008), reflecting on transitional justice). This is facilitated by a construction of the local context as a ‘blank slate in terms of existing knowledge and experience, marked by cronyism, incompetence and corruption’ (Orford, 2003, p.139). While Orford is speaking here of the East Timorese, her description of their portrayal as ‘lacking a state, ethics, skills and respect for human rights’ (p.139) could just as easily be applied to a wide array of contexts, as my later case study on Kosovo in particular demonstrates. The other side of this is that international legal intervention becomes an educational tool for these ‘infants of humanity’ (Douzinas, 2007, p.83). As Rosemary Nagy observes in relation to the Iraqi Special Tribunal, ‘[p]rosecution and other transitional mechanisms are put in place to teach Iraqis, and not the USA and its allies, about the rule of law and human rights’ (2008, p.282). This is not simply at a symbolic level. In both Kosovo and Sierra Leone the human rights training and awareness raising programmes I observed and participated in were assumed

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The place of law in human rights  35 to be something unnecessary for international personnel as they were believed to already embody these standards, even as their attitudes and practices suggested to the contrary (see Chapter 4 for a discussion of this in relation to the UN administration in Kosovo; see the description of the gender training workshop conducted at the SCSL in Chapter 5). These problems are not limited to the legal arena – as the next chapter will illustrate – but there is perhaps something inherent to the nature of law that facilitates this process. After all, it has also emerged within the largely domestic arena of human rights training in Sri Lanka (discussed in Chapter 6). For this reason Riles calls for critical reflexivity when engaging with the ‘instrumentalist’ account of law often presented as positive for human rights: ‘human rights doctrines in the service of grassroots people, as a means to social ends, for example’. These claims should, in Riles’ view, be balanced against those of critics who suggest, ‘the technocratic, managerial, pragmatic orientation of legal instrumentalism contains a built-in bias against more fundamental change’ (2006, p.59).

The limits of legal analysis In 1999 Neil Stammers commented on the extensive attention paid within human rights literature to the establishment, implementation and enforcement of human rights law (1999, p.991). As the case studies show, not much has changed, with the vast majority of articles and books on human rights still taking the establishment of institutions as the start and end point of their analysis. Not only does this mean that no more than superficial acknowledgement is given to the process by which human rights come into being as claims made in specific locations (Stammers’ point, in particular in relation to the role of social movements), it also leads to a truncated analysis of the results. The mere existence of an institution or a law becomes seen as an end in itself. As Vinjamuri and Snyder point out, the field of transitional justice has been particularly guilty of this, with many normative claims made regarding the desirability and utility of international legal processes without sufficient empirical evidence on which to base this claim (2004, p.359), a point I pick up on in the case studies in Part 2 of this book. Added to this, the extent to which a highly legalised conception of human rights is able to address itself to broader questions of root causes of violations is debatable. As Susan Marks observes, questions of causation within legal contexts are primarily addressed to determining liability, not how or why the particular wrong occurred (2011, p.60) – again, a point well illustrated by responses to inter-ethnic violence in Kosovo (see Chapter 4) and the SCSL’s prosecution of forced marriage (see Chapter 5). An acknowledgement of the need to address the economic and social roots and consequences of conflict has made its way into international legal discourse. Louise Arbour (2007), writing about transitional justice, has argued strongly for the inclusion of economic, social and cultural rights in both transitional and more general justice system mechanisms. Yet ultimately this call can only remain at the level of the rhetorical as the very structure of international law denies the

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36  The debates possibility of such a comprehensive response. First, the human rights law focus on state responsibility means that often powerful non-state actors are exempted, despite playing a potentially more important (or at least equal) role in the creation of exploitative economic and social arrangements.3 Second, even where human rights advocates have succeeded in expanding the scope of the law beyond the traditional state-structured international system – such as in the area of international criminal law – there remain strict temporal and jurisdictional limits, which not only exclude certain more structural analyses but in some cases work to distort understandings of the root causes of violations (a point that will emerge more clearly in the case studies). Finally, Hilary Charlesworth (2002) has highlighted the ‘crisis’ focus of international law: a preoccupation with specific incidents or sets of incidents (armed conflicts, invasions, mass atrocities) as the primary tool for advancing and refining international law. The problem with such an approach, Charlesworth points out, is that, ‘it rests on truncated and selective understandings of events’ and, ‘diverts attention from structural issues of global justice’ (2002, p.382) leading her to ask what ‘an international law of everyday life’ (2002, p.391) might look like in its place. As the case studies in Part 2 of this book demonstrate, the combination of international law’s temporal and jurisdictional limits and its crisis focus serve to reduce complex, multi-faceted processes of discrimination, exploitation and violence to a series of ‘justiciable’ acts, which rely on individual breaches, are retrospective and are limited to those who have access (Verschraegen, 2014). As Tony Evans observes, Political, economic, and social structures cannot be judicial persons with intentions and capabilities, nor can they be arrested, put before a court, punished for their crimes, or subjected to sanctions. The dominance of the legal discourse therefore acts as a barrier to investigating the causes for human rights violations, many of which might be attributable to market discipline. (2005, p.1067) This leads to the final critique I wish to explore, which also extends into the next chapter: the crisis of the political and the shift towards ‘governance’.

The shift to governance The trend towards law and away from politics is not unique to human rights. In fact, Ran Hirschl argues that the ‘judicialization of politics’ is a worldwide phenomenon. Moreover he argues that this has recently expanded to encompass what he describes as ‘mega-politics’: ‘matters of outright and utmost political significance that often define and divide whole polities’ (2008, p.93). Similarly, Wendy Brown and Janet Halley lament that, ‘legalism has nearly saturated the entire political culture’, making it difficult to distinguish left(ist) projects from mainstream liberal ones (2002, p.31). The emergence of human rights as the dominant social justice discourse has both contributed to and been affected by this.

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The place of law in human rights  37 Whether through constitutionalism, public interest litigation and class actions at the domestic level or through the proliferation and prominence of international legal bodies and instruments, ‘legal arenas are increasingly forums for political contestation’ (Greenhouse, 2006, p.190; Comaroff and Comaroff, 2006, pp.26–27). Simultaneously, ‘[t]he last decade has witnessed an intensification of a global process that might best be termed a “legalization of culture”, implying that the law is becoming the predominant and most articulate standard of value in many societies’ (Hastrup, 2003, p.16). This, Hastrup concludes, means that, ‘ever more social, political and cultural values are expressed in or measured by legal terms at the expense of other normative systems and public moral debates’ (2003, p.16). John and Jean Comaroff (2006) also point to this ‘culture of legality’, which they argue now dominates in postcolonial states across the globe. They see this as a process that has been supported by both global market forces and ordinary peoples’ disenchantment with their local political orders. A practical example of this is the automatic linking within international institutional discourse of human rights with ‘Rule of Law’, ‘Good Governance’ and (economic) development, the four largely being seen as, if not synonymous, directly interdependent (see for example Annan, 2005). Boaventura de Sousa Santos observes this phenomenon in Latin America with ‘development assistance’ provided by governmental aid agencies such as USAID increasingly incorporating judicial reform and rule of law programmes. In the process, social transformation is no longer seen as a political problem but rather as an economic and technical one (2002, p.340). Indeed, the case studies in the next part of this book often exemplify his argument. This increasing tendency to treat ‘Rule of Law’ as a tool for social ordering that in turn produces particular types of social transformation is, for Santos, highly detrimental to the emancipatory potential of the rule of law, turning it into ‘just one more technique of regulation’ (2002, p.340). This echoes David Kennedy’s damning conclusion on the progressive potential of the international human rights movement: ‘The strong attachment of the human rights movement to the legal formalization of rights and the establishment of legal machinery for their implementation makes the achievement of these forms an end in itself . . . . The human rights movement ties its own hands on progressive development’ (2002, p.110). The focus on the establishment of legal norms and institutions as ends in themselves is evidenced in all three of the case studies. Furthermore, as each of the case studies shows, this complacency as to the automatically beneficial nature of institutions and law often leads human rights advocates and scholars to fail to more deeply interrogate the impacts of these developments on achieving actual positive change and empowerment. Added to this, the ‘governance’ focus of law often means that, ‘the individual is empowered, but not through the political process in which he or she can participate as an equal . . . . The individual is empowered through the legal process, through assuming the status of plaintiff and having a direct connection to the adjudicative body’ (Chandler, 2006, pp.229–230). This, Chandler ­concludes,

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38  The debates is in fact not genuine empowerment but rather placed in, ‘[the] role of supplicant to the human rights judges and tribunals or international institutions’ (2006, p.230). What is lost in this is the potential for individuals to experience increased agency as a result of their identity as rights holders, demanders and enactors. It is the possibility of reinvigorating this potential that I explore in the final chapter of this book. Not only are the institutions of law often highly exclusionary and hierarchical spaces, they rely heavily on certain ‘expertise’, which makes it unlikely in many critics’ view for them to provide a site for the empowerment of marginalised populations. To illustrate, Kate Nash cites a highly regarded and influential textbook in the field of human rights in which the authors describe ‘the human rights movement’ as involving international law and institutions and ‘the spread of liberal constitutions among states’ (Nash, 2012, p.798). This quote provides further evidence for the argument (discussed in Chapter 1) that the universality of human rights is often a very superficial layer on top of the export of Western liberal democracy. But it also highlights, as Nash identifies, that, ‘[t]he term “movement” functions in such statements to suggest that, while it is undoubtedly bureaucratic elites and professional legal experts who are directly involved in creating international human rights law, it is nevertheless democratic’ (2012, p.798). The apparent comfort that Teitel demonstrates with (often external) judicial ‘experts’ influencing the formation and structures of the post-atrocity state is reflective of what French political theorist Jacques Rancière (2006) has called the ‘hatred for democracy’ exhibited by many elites. This ‘hatred’, Rancière explains, is not new (‘it is as old as democracy itself’) but in its contemporary form relies on a separation between a celebration of democracy when exported to other parts of the world and a critique of the disorder democracy creates. This disorder, the critique asserts, is caused by the call for equality, a call that disrupts the natural (and desirable) relationship between governor and governed. Thus this ‘hatred for democracy’ is not a critique of the institutions but of the people in whose name these institutions apparently serve. Rancière (whose thought is influential to later reflections in this book) is therefore highly sceptical about the use of the legal arena as a site for human rights claim making, seeing the law as part of the politics of consensus (Douzinas, 2007, pp.107–110; Kesby, 2012, p.134) and the judicial sphere as a means of removing the political from human rights and turning it into, ‘a matter for expert knowledge’ (Rancière, 1999, p.109) or rendering rights as ‘counter-progressive’ (Blomley, 1994, p.412) or completely separated from lived realities (Nagy, 2008, p.279). The subject of rights becomes the subject of the law (see Kesby, 2012, p.134). Therefore, if – as discussed earlier in this chapter – many within the human rights world denounce the ‘politicisation of human rights’, in the case of radical political theorists it is the depoliticisation of human rights through legal discourses and frameworks that reduces their potential. The ‘legal expert’ and the ultimate role of the Court in adjudicating who has what rights are indeed ­problematic

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f­ eatures of contemporary human rights: a point that will emerge in the subsequent case studies. As Susan Marks poignantly asks in response to a recommendation for greater rights awareness among ‘ordinary Afghans’, [W]hat if those latter already know that it is wrong for people to be detained for acts that are not crimes, after unfair trials, and beyond the end of their sentences? What if their need is not for legal experts to tell them that, but instead for support in directing their already acute sense of injustice into organised political action? (Marks, 2011, p.65) It is precisely this demand that emerges in the different case study sites and with which the final part of this book is concerned. Meanwhile both critical legal scholars and political and social scientists who have tried to redress law’s self-congratulatory colonisation of human rights have reproduced some of the problematic features of hegemonic human rights discourse that they apparently seek to critique. For example, political scientists in reintroducing the political aspect of human rights interventions in post-conflict societies have nonetheless often endorsed a limited understanding of the political, associated with the state and formalised institutional political processes.4 So too sociologists, while rejecting the focus on legal institutions, have simply expanded the responsibility for implementing human rights to other formal institutions.5 As will be discussed further in the next chapter, the problem of the ‘expert’ and governance models of politics are not limited to legalistic human rights frameworks and mechanisms. Yet by focusing on elite political actors not only is the picture of human rights distorted, it also over-privileges these elite explanations to the exclusion of the agency and contribution of more marginal actors.6 In critiquing the elitist formation of the global ‘human rights movement’, David Kennedy uses the language of ‘we’ in his discussion of the pleasure, power and responsibility of humanitarians: it is this ‘we’ that is often reproduced within both positive and critical human rights literature without ever being unpacked. This has been reproduced across the field of legal globalisation studies, with even the most critical voices focusing on ‘top down’ processes and the most visible hegemonic actors (Santos and Rodríguez-Garavito, 2005, p.2), something I will explore further in Chapter 8. What this opens up is consideration for ways in which law itself may be reimagined beyond its own asserted place. Can law be democratised in this process? And is it also possible, as Alison Kesby argues in relation to Rancière, that critical scholars have, ‘fail[ed] to harness the emancipatory potential within law – that within the law action, disruption, and potential alternative ways of constructing the world are possible’ (2012, p.136)? Agreeing with Eckert et al., I believe that the question of whether law can actually serve as a ‘weapon of the weak’ (Scott, 1985) is an empirical question (2012, p.6). I therefore propose to explore these questions further in Part 2 of this book. However, before I move to this, there is one more critical debate with which I wish to engage.

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Notes 1 What are known as the ‘treaty bodies’ and ‘special mechanisms’: committees, expert panels and special rapporteurs set up to monitor the various human rights conventions; the Office of the High Commissioner for Human Rights (OHCHR) to assist with domestic implementation; the Human Rights Council to periodically review nations’ compliance with obligations; and an array of regional and local courts and commissions. 2 For examples see the 1999 special issue of the Brown Journal of World Affairs (vol. 6(1)) dedicated to the International Criminal Court; see also Schabas (2001). 3 See for example the situation in the Niger Delta in which it is the petroleum company Shell rather than the Nigerian government that has been both performing the functions of a state and holding the power to determine the economic, social and environmental conditions within which the population lives (Okonta and Douglas, 2003). Some limited steps have been taken by the UN to incorporate multi-national corporations into the human rights framework (see the Global Compact and the United Nations Guiding Principles on Business and Human Rights). This is, however, purely voluntary. There are also no mechanisms for holding large financial institutions such as the World Bank or International Monetary Fund responsible for human rights violations, despite the welldocumented relationship between certain conditionalities they impose and the greater insecurity these produce (see for example Abouharb and Cingranelli, 2006). 4 It is worth noting McMahon and Forsythe’s (2008) attempt to include public opinion in their survey of the impact of the ICTY on Serbian political culture. However, their discussion of public and NGO attitudes largely takes place within an unquestioned dichotomy between ‘Serb nationalist’ and ‘pro-West’ domestic liberal reformers, which does not allow any space for a recognition or examination of indigenous senses of accountability and/or justice and approaches to progressive social change. 5 For example, Gert Verschraegen (2014) in speaking about the right to education seemed unable to conceptualise anything other than the formal institutionalisation of education in the model of modern schooling systems. 6 For example, McMahon and Forsythe (2008) largely credit international actors with the introduction of debates regarding rights, democracy and justice even as they recognise these concepts can only take hold where there is domestic will. They thus dislodge the primacy of the judicial actors (ICTY) and replace them with a suite of elite political actors (EU, US government, inter-governmental and international non-­governmental actors). Rima Majed (2014) made a similar observation recently in relation to the emphasis placed on geopolitical factors to explain the recent Arab revolutions, which renders invisible the very significant socio-political contribution of local actors.

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3 The radical potential of human rights

Are human rights an effective defensive tool against domination and oppression or are they the ideological gloss of an emerging empire? (Douzinas, 2007, p.7)

Introduction As outlined in the previous chapter, the conflation of human rights with human rights law has been increasingly problematised in recent years, leading to something of a backlash within human rights practice and scholarship. However, while removing the hegemony of law may address some of the concerns raised by critics, it does not overcome all of them. Indeed, some of the critiques identified in the previous chapter seem to extend far beyond the legal dimensions of human rights. For a start, the question of human rights’ relationship with current economic processes and structures has become an increasingly critical one, with the effects of predatory neo-liberal capitalism being felt across the globe. While law has demonstrated a limited ability to respond to wider structural issues (as raised in the previous chapter), and may in fact contribute to them, the relationship between human rights and capitalism requires further investigation in its own right. At the same time the displacement of the political to the judicial in human rights may be less a cause than a symptom of a more general crisis of the political. Alongside the decline of other possibly more revolutionary vocabularies, the shift away from politics towards a focus on ‘governance’ extends beyond simply the law to incorporate other technologies of management, surveillance, regulation and control. With this in mind, in this last chapter on debates in human rights I will explore some of the arguments put forward regarding the radical potential versus conservative nature of human rights. In particular, following on from the previous chapters, I further engage with the arguments related to the depoliticised and depoliticising effects of human rights, its implication in global practices and relations of domination, and finally the extent to which it forecloses other, alternate forms of resistance, subversion and strategies to achieve social justice. While taking seriously the question of whether human rights can in fact be considered an

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emancipatory discourse or framework – now or in the future – at the same time I seek to interrogate the implicit acceptance of some critics that human rights can be seen only through the lens of their institutionalised, hegemonic form.1 This, I will argue, leads to an unhelpful and paralysing position where one is forced to either take or leave human rights without enacting a more fundamental and subversive challenge that seeks to take back the right to define the terms of the debate.

Handmaiden to neo-liberal economics? Human rights and capital One of the most frequently invoked current critiques of human rights is the ease with which it seems to accompany neo-liberal economic policies and modes of governance (Brown, 1995, 2004; Speed, 2005; Cheah, 2006; Baxi, 2008). As Shannon Speed points out, it was only in the post-Cold War period that human rights took on the position of being a truly globalised discourse when the topic began to circulate freely alongside the model of neo-liberal democracy, a development that cannot be seen as coincidental (Speed, 2005, p.31). Speed and Sierra (2005) point to the contradictory ways in which human rights discourses have operated in Latin America: on the one hand they provide a banner under which collective action is made possible for marginalised, peasant and indigenous populations; on the other they facilitate the advance of neo-liberal state policies (see also Hale (2002) regarding indigenous rights, multiculturalism and neo-liberal governance in Guatemala). One of the most obvious ways in which this has happened is through the nongovernmental organisation (NGO). The rise of the NGO In a 2004 address to the American Sociological Association, Arundhati Roy spoke of the ‘NGO-ization of resistance’. In using this terminology she described the dangers of NGOs intervening to, ‘defuse political anger and dole out as aid or benevolence what people ought to have by right’. This depoliticising strategy, Roy lamented, threatened to, ‘turn resistance into a well-mannered, reasonable, salaried, 9-to-5 job. With a few perks thrown in’. And looking at the experience of activists across countries of the Global South, this is exactly what has transpired, as the different case studies in Part 2 demonstrate. Often offering more attractive career opportunities than otherwise available, the NGO has served to draw in potential revolutionaries, well-meaning professionals and others simply looking for secure employment, all the while claiming to represent a force for change. The rise of the NGO may not be a negative development per se (and indeed, as will emerge in the case study chapters, there are some very good NGOs and useful ways in which NGOs can contribute to social justice projects). However, even as the rise and proliferation of NGOs may have opened up new spaces for participation they are also often deeply informed by the logics of neo-liberal governance. It is not incidental that their value has been asserted not only by human rights advocates and scholars but also by the World Bank.2 Stepping in to fill the vacuum

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The radical potential of human rights  43 left by inefficient or corrupt states, they often provide essential social services. However, the form and content of those services are generally decided not by the intended beneficiaries, but by donors. This in turn leads to forms of accountability that also spiral upwards rather than downwards to those being ‘helped’. Funding comes not only to support particular projects and agendas but actually to dictate them, while organisational survival relies on not naming certain truths. This is a particularly dark representation and, as I have said, it is not true of all NGOs. One of the dangers of both advocates’ and critics’ accounts has been the homogenisation of what is in fact a highly diverse set of institutions (some of which, I hope, is reflected in my discussion of different actors and organisations in the case studies set out in Part 2). Moreover, in my experience, many progressive social actors move both within and beyond the NGO sector, engaging with projects strategically and on an ad hoc basis while maintaining their own activism (as is the case of many of those associated with the activist collectives described in Chapter 6). However, in terms of politics, one of the most detrimental effects of the predominance of the NGO as the vehicle for social justice has been the focus placed on the achievement of outcomes rather than the process of engagement, debate, disagreement and consensus building with communities. Treated as too messy and uncertain, this latter process is controlled and wherever possible constrained – and as a result a valuable opportunity for empowerment is reduced to a technical exercise of obtaining ‘buy-in’. Equally, the desired outcomes and the best means to achieve them are generally defined by ‘experts’ (Nash, 2012, pp.800–801), a process that, as I will discuss further a little later in this chapter, also reproduces rather than challenges hegemonic power relations. This leads Speed and Sierra to conclude that it is both important and necessary to understand the complex relationship between human rights and neo-liberalism rather than taking for granted the potentially emancipatory claims of ‘human rights from below’ as reflected in civil society discourse (2005, p.3). The problematisation of ‘civil society’ and its frequent conflation with the NGO is an issue that becomes highly pertinent in the case study on Sri Lanka in Chapter 6. ‘Trade-related, market friendly human rights’ (Baxi, 2008) Meanwhile Tony Evans argues that human rights should be understood within the framework of ‘market discipline’ as, ‘the freedoms necessary to maintain and legitimate particular forms of production and exchange’ (2005, p.1057). This form of ‘trade-related, market-friendly human rights’ is also critiqued by Upendra Baxi (2008), who sees it as in fact reversing the positive potentiality of human rights as originally envisaged within the UDHR. Relatedly, Ruth Buchanan and Sundhya Pahuja argue that the concept of ‘Rule of Law’ (which, as discussed earlier, now forms the heart of most human rights interventions and is often used interchangeably with human rights and good governance) produces legitimacy for international economic institutions’ policies and interventions (2004, p.74). This creates a questionable link between the protection of human rights through

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44  The debates sound governing structures and the protection of markets and dominant modes of economic exchange (or exploitation) (something evidenced in the discussion of post-conflict reconstruction initiatives in Chapter 4). These all stand in contrast to Jack Donnelly’s argument (set out in Chapter 1), that in fact, ‘[h]uman rights today remain the only proven protective means to assure human dignity in societies dominated by markets and states’ (2007, p.289). Although this book does not deal at length with the economic aspects of human rights interventions (and resistance to them), this issue is nonetheless important. As the case study on Sri Lanka in particular will show, the impacts of neo-liberal globalised capital and its accompanying aid and development projects provide a crucial element of the backdrop against which local social movements must frame their actions. So too, the manner in which the international community has engaged in the three case study sites has conspicuously omitted more detailed consideration of the economic aspects of the conflict and the post-conflict order. Instead, in the case of Kosovo and Sri Lanka, there has been a focus on the ‘ethnic’ aspects, while in Sierra Leone the dominance of the international criminal justice response has meant that the conflict is reduced to the actions of a certain set of individuals and the more structural accounts attempted by the Truth and Reconciliation Commission (TRC) are undermined. This all seems to support Wendy Brown’s (2004) question as to whether human rights actually facilitate the misdiagnosis of the problem: is it really just individual human suffering at the hands of unchecked state power? Or is it the ravaging effects of unchecked global capitalism, imperialism and the dysfunctionality of postcolonial political regimes? For the most part, these questions do seem to be unanswerable (and perhaps un-askable) in the contemporary human rights world. Indeed, looking at the official policy documents of the UN and the World Bank, it is not difficult to identify the link drawn between human rights and the promotion of neo-liberal economic and political policies. This point is well illustrated in the final report of Kofi Annan (2005) prior to his retiring as UN SecretaryGeneral. In this report Annan emphasises the role of states, global institutions, civil society and the private sector in achieving an end to poverty and suffering. In the process he endorses a nexus between (liberal) democracy, neo-liberal economics and human rights. In this process the role of law is identified as facilitative. In the words of Grietje Baars, ‘Law, by virtue of its very form, which approximates the commodity form, is a sine qua non of the capitalist mode of production . . . the (continually evolving) frame or skeleton around which capitalism congeals’ (2014, pp.196–197). However, lawyers form part of a larger, ‘global class of administrators or global governance bureaucrats’ (Baars, 2014, p.196). In this way, law provides only one of a number of foundations on which global governance is built.

From politics to governance While the field of ‘experts’ in human rights may traditionally have been lawyers, they have now been joined by various other ranks of professionals and technocrats

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The radical potential of human rights  45 who, in rejecting the focus on law, instead turn to ‘indicators’ and ‘objectively verifiable outcomes’. An example of where this approach has flourished has been the linking of development with human rights through the simultaneous promotion of ‘rights-based approaches’ to development and the increased interest shown within the human rights community to issues of economic and social rights: trends that have emerged since the 1993 World Conference on Human Rights.3 In critiquing legal theories of change that over-emphasise the status of law, non-legal human rights specialists instead search for other forms of authority in the shape of statistics, scientific tools of measurement and evaluation. An example of this would be the recent turn to ‘field experiment’ models of evaluation, developed by political scientists to ‘test’ the effectiveness of development and rights projects using social science tools.4 While clearly rejecting the law’s more normative focus, it is highly debatable whether the turn to these experts is any less elitist, especially when such experts are usually coming from elite academies and research institutes located within the Global North. Another approach has been to replace – or complement – law reform and legal accountability with a new emphasis on human rights education (Ramirez, Suarez and Meyer, 2005; Phillips and Gready, 2013).5 This often sees international and local ‘experts’ replicate generic training packages to ‘teach’ victims and/or violators about rights as if the imparting of knowledge about international legal standards or appropriate universal ethical standards will alone change the dynamics within which violations occur (see Chapter 6 for further discussion; see also Celermajer and Grewal, 2013; Coysh, 2014). As the case studies set out in Part 2 of this book illustrate, whether through techniques of humanitarian governance, the privileging of law or the reproduction of hierarchical models of education, human rights are all too often channelled in ways that do not disrupt the status quo. Vasuki Nesiah similarly concludes, through the presentation of a convincing set of examples of post-conflict human rights and democracy initiatives, ‘human rights are embedded into a sweeping political rationality that is hegemonic rather than embattled, the discourse of management, not resistance’ (2009, p.146; see also Sokhi-Bulley, 2011). Nesiah (2009) adds that the focus on ‘expertise’ is accompanied by a twin turn to ‘ethics’ as the foundation for this new politics of humanitarian interventionism (a concept discussed further in a moment): a move that is equally problematic for a number of reasons.

The ‘ethical turn’ On the one hand, this turn to ethics assists with sanitising economic processes of globalisation, as Cheah points out: When aligned with neoliberal arguments about the power of globalization to unite us into a common humanity, the moral universalism of human rights discourse can, paradoxically, be used to justify economic globalization as a form of postcolonial civilizing mission. It can legitimize the predatory expansion of global capital as a fundamental mechanism for spreading the rule

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of law and the recognition of civil liberties purportedly ignored by ‘traditional’ political cultures and ‘despotic’ regimes outside the North Atlantic. This process of moralistic finger-pointing conveniently elides the less visible violations of human rights occurring in non-exception quotidian settings outside the hegemonic North Atlantic that are directly caused by globalization. (2006, p.145) On the other hand, it acts as a further mechanism for the depoliticisation of human rights. By using ethical arguments to found rights they become a ‘moral trump card’, constructed as above politics and reflecting a neutral, rational, natural discourse (Douzinas, 2007, p.11). The danger of this, as Douzinas explains, is that, ‘when human rights becomes its means and object, politics is moralised, its ability to mediate conflict eroded’ (2007, p.7). Wendy Brown expresses a similar concern, arguing that the moral and anti-political discourse of rights is dangerous because it shuts down the space from which debates can be had about the best means for achieving a just world order. She concludes: [Human rights] is a politics and it organizes political space, often with the aim of monopolizing it. It also stands as a critique of dissonant political projects, converges neatly with the requisites of liberal imperialism and global free trade, and legitimates both as well. (2004, p.461) This observation is important. It points to the fact that on the one hand human rights set themselves up to be beyond the realm of politics – either through their claims to legal impartiality or to some higher moral order – while on the other they are deeply invested in a particular model of politics, one that is both tied to an elite form of technocratic managerialism (what Rancière (1999, 2006) describes as the ‘police’: discussed further in Chapter 9) and exclusionary of other potential radical political projects. It is for this reason that in the final part of this book I return to imagining a form of human rights that both allows for disagreement on what constitutes the ethical and is explicitly political.

Global civil society In spite of some of the concerns regarding the role played by NGOs in depoliticising resistance and contributing to a reinforcement of neo-liberal order (set out above), global civil society is nonetheless still often identified as the primary antidote to abusive states and exploitative global actors. In many professional and academic circles it has become an accepted wisdom that an expanded civil society is a positive step towards addressing the corruption, social exclusion and democratic deficit of the developing state.6 Not only do technocrats in the World Bank sing the praises of civil society as a crucial component of ‘good governance’, so too do many scholars and advocates of social movements and human rights positively compare civil society with the disorder and corruption of political parties, governments and international governing institutions.

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The radical potential of human rights  47 Again, this view is not altogether unfounded, with the creation of transnational networks providing vital opportunities for advancing the rights of particular groups marginalised at the local level. An oft-cited example is that of the women’s rights movement (Peters and Wolper, 1995; Keck and Sikkink, 1998) and all the case studies attest to the benefits local women’s activists have reaped through being able to connect to a globalised discourse. Similarly Stephen Ellis and Ineke van Kessel (2009) document the ways in which many African social movements have benefited from interaction with international NGOs, the latter facilitating flows of information, resources and logistical support of which local actors have made strategic use. However, critics have also urged for caution in place of an automatic valorisation of these new global players and networks. In particular it has been pointed out that there is a need to interrogate further the automatic assumption of the egalitarian nature of networks (Goodale, 2007, pp.19–20) and the particular types of politics they advocate and enact (Halley, 2008). The rise of the international human rights organisation may be presented as a victory for those speaking truth to power, but in fact their histories are often far more complex and more closely connected with ambivalent political developments than is acknowledged. Human rights organisations like Amnesty International pride themselves on representing a movement of ordinary people coming together to stand in solidarity against oppression (Hopgood, 2006) – and this is true in part. Yet it is also the case that the same professionalisation that has impacted NGOs at local levels (discussed above) has occurred at the level of international NGOs (INGOs) (Kennedy, 2004; Hopgood, 2006). Moreover, if Amnesty International (AI)’s internal structures and politics make its story more complicated (Hopgood, 2006), it is rivalled by purely ‘professional’ human rights organisations such as Human Rights Watch (HRW) and others that have emerged from less democratic origins and impulses still (Dezalay and Garth, 2002). Simultaneously all INGOs have been subject to geopolitical factors that have allowed them to grow but also necessarily impacted on the development of their agendas. It is not incidental that both AI and HRW have primarily focused on civil and political rights (the preference of Western liberal democracies and in particular the United States during the Cold War), only very recently (and to a limited degree) taking up issues of social, economic and cultural rights. It is also not insignificant that their headquarters have been located within centres of power in the Global North.7 The frequent overlap between the profiles and roles of staff of major INGOs, international organisations and state-sponsored aid and development agencies suggests that often there is little reason to distinguish between these supposed ‘human rights activists’ and their technocrat/bureaucrat counterparts. They are often the ‘international experts’ who are brought in to design and deliver human rights education packages, who provide commentaries on the meaning and scope of particular rights, and who are sent on missions to document human rights violations and devise recommendations and advocacy strategies. In all of this their mobility and internationalism is often strikingly contrasted with the highly

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48  The debates restricted populations they seek to help (something that emerges clearly in the context of Kosovo and Sierra Leone, discussed in chapters 4 and 5). Even as they allegedly give voice to the latter – represented paradigmatically through the use of personal accounts and testimony within their reports – the process of mediation through which this is done (using the law and legal methodologies of ‘fact-­finding’ mentioned in Chapter 2) means they in fact serve to produce and regulate the types of subjects and harms capable of recognition within the human rights framework: a process I problematise further in the case studies (see also Madlingozi, 2010; Moon, 2012). The reality is that while human rights may be associated with the most marginalised subaltern populations in the poorest parts of the Global South, those who enact them, debate them and advocate for them are generally much closer to the ‘corridors of power’. This inevitably has an impact on what are seen to be the most appropriate sites and interlocutors for achieving change, illustrated in the INGO reports on Kosovo discussed in Chapter 4. This has significant ramifications for the possible language(s) of resistance, which become reduced to those defined within international human rights law (language that in itself cannot be assumed to be progressive, as Chapter 5 demonstrates). But it also concentrates the energy and attention of both proponents and critics of the human rights system on these international frameworks and spheres, thereby rendering invisible other possible actions and/or articulations of human rights (a process this book seeks to contribute to undoing by highlighting just a few examples of alternate sites).

From Right to Intervene to the Responsibility to Protect: linking human rights and humanitarianism One final development that requires a mention has been the linking of human rights with the discourse of humanitarianism. While traditionally the latter was limited to the provision of emergency relief in times of crisis – best exemplified by the work of the International Committee of the Red Cross – the division between providing relief and responding to the conditions within which the need arises has increasingly dissolved. On the one hand, organisations like Médecins Sans Frontières have challenged the respected wisdom of silent neutrality, instead adopting a policy of bearing witness (témoinage). They have been openly critical of governments, famously leading to their expulsion from Ethiopia and Guatemala in the 1980s. On the other hand, human rights have been invoked as the justification for interventions, first termed the ‘droit d’ingérence’ by MSF founder Bernard Kouchner (interestingly later Kosovo’s top international administrator; see Chapter 4): We came, crossing the border . . . . The appeal must not come from the government, but the voice of the victims . . . . The right to interfere has now been written into 150 resolutions of the United Nations. Victims are now the category of international law. So we succeeded . . . . This is the

The radical potential of human rights  49

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revolution . . . . The victim, not the government, speaking in the name of the victim – for the first time . . . . We want to change the world . . . no more Cambodia, no more Rwanda, no more Biafra. (Allen and Styan, 2000, p.825) Since this initial articulation, the droit d’ingérence has been redefined as the Responsibility to Protect (R2P), now an enshrined (if contested) principle within the UN framework. In practice this has led to the expansion of international peacekeeping missions as well as other institutional developments that elaborate roles for a plethora of other professionals aimed at providing not only long-term humanitarian assistance but structural reform.8 In this sense the Kosovo case study, set out in Chapter 4, is particularly significant as it marks one of the first examples of these efforts. As the above quote from Kouchner illustrates, this development is presented as a victory for victims of human rights violations (in much the same way as international criminal justice, described in the previous chapter). Yet it is also evidence of the ways in which expertise and ethics are simultaneously made central to human rights. As the Kosovo example demonstrates, the impact of this is often far from empowering. This raises questions regarding whether human rights act as a vehicle for improving social justice or as an obstacle to other more radical and potentially more progressive projects.

Alternate discourses of justice I worry that the international human rights movement can occupy the field, crowding out other ways of pursuing social justice and other emancipatory vocabularies that may sometimes be more effective . . . . There are lots of ways to pursue social justice. Human rights is but one, and not always the most appropriate. (Kennedy, 2006, p.133; see also Dembour, 2006, pp.1–2) A key concern of critics of human rights is the ability of the discourse to silence or shut out other possible discourses of justice. For Wendy Brown it is only if those on the progressive left have given up all optimism that we would lay all our aspirations to social justice in the hands of human rights. Otherwise, ‘if progressives have not yet arrived at this degree of fatalism, then we would do well to take the measure of whether and how the centrality of human rights discourse might render those other political possibilities more faint’ (2004, p.462; see also Kennedy, 2004). And yet it is precisely this crisis of alternative vocabularies and political projects that has facilitated the rise and dominance of human rights. For Sam Moyn (2010) human rights reflect the ‘last utopia’, the final resting place for those hoping to achieve progressive social change after other revolutionary political movements and vocabularies have been discredited or destroyed. And indeed in the case of Sri Lanka I have come across many who have ended up in the field of human rights through their loss of faith in (or the disintegration of) other radical political projects (see Chapter 6).

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Human rights: language of the multitude? All of the above critiques lead some to express extreme scepticism about the extent to which human rights can in fact be recuperated as a tool of resistance. However, such fatalism is to my mind both ethically and politically dangerous. For a start, as Hardt and Negri conclude, any viable challenge to Empire necessarily requires an equally global alternative: ‘Any proposition of a particular community in isolation, defined in racial, religious or regional terms, “delinked” from Empire, shielded from its powers by fixed boundaries, is destined to end up as a kind of ghetto’ (2000, p.206). For them, ‘Empire cannot be resisted by a project aimed at a limited, local autonomy’ (2000, p.206). Perhaps this global alternative need not take the form of international human rights – and certainly I leave open this possibility – but we must remain mindful of the power that human rights currently hold to in fact constitute the division between the global ‘emancipatory’ arena of human rights and the ‘ghetto’ of the local. This power emerges repeatedly throughout the case studies discussed in the next part of this book. Therefore, it is not simply that an alternative global discourse is required to counter Empire but that the very terms by which the ‘global’ and the ‘local’ are constructed – and used as tools of governance/ governmentality – require sustained attack and challenge. It is this that human rights and their appeal to universal humanity as a discourse makes possible. It is perhaps also in reference to this that Sundhya Pahuja identifies a ‘symbolic valence’ of human rights: This symbolic valence is crucial to the emancipatory, or what I would call ‘political’ aspect of human rights. This ‘political’ aspect arises in concrete terms in the gap between the body of human rights norms in international law at a given time, and the imaginative appeal of human rights which will never be coincident with the rights ‘on the books’. (2007, p.168) This is an argument I will return to in the final chapter of this book. However, for now I wish to emphasise that if, as Hardt and Negri describe, Empire is defined by its decentring, deterritorialising capabilities, it simultaneously perpetuates this through the construction of highly localised and bounded sites of intervention. These latter sites – as the case studies reveal – are as necessary to the reproduction of Empire as the assertion of globality. Equally, the potential that human rights offer is their simultaneously local and global appeal. As Costas Douzinas points out, ‘the malleable language of human rights is sufficiently capable not only of giving expression to the political program of revolutionaries and dissidents but also of providing a potent justificatory resource for transnational corporations and the militaries of powerful states’ (cited in Golder, 2014, p.78). This reality requires us not only to pay attention to the ways in which the latter utilise the language of human rights to serve other agendas but also to reflect critically on how the former – and indeed even the less radical but equally oppressed and resistant populations all over the world – mobilise the language

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The radical potential of human rights  51 in ways that allow them to engage in a highly unequal public sphere and, however constrained, to express their hopes, dreams and demands for justice. To what extent is Alison Brysk correct when she writes, ‘[t]he rhetoric of human rights contains powerful and flexible notions that locate voice, responsibility, agency, and justice for many forms of suffering’ (2013, p.15)? This question, as with many of the others that arise in this and the previous two chapters, cannot be answered in the abstract. They require a contextual analysis or, in the words of Shannon Speed, an analysis of, ‘the way the tool is held by particular social actors in particular contexts’ (Speed, 2008b, p.181). This is important for both theoretical and political reasons. I will therefore now turn to my case studies.

Notes 1 Neil Stammers made a similar critical observation back in 1999 when he called for a more thorough examination of how human rights, ‘both challenge and sustain power, but in different degrees, in different ways, in different places, and at different times’ (1999, p.996). 2 See for example the 136-page document entitled, ‘Working with NGOs: A Practical Guide to Operational Collaboration between the World Bank and Non-governmental Organizations’, prepared by the Operations Policy Department of the World Bank in 1995, aimed at helping World Bank staff to, ‘better understand both the benefits and challenges of working with NGOs’: Malena (1995). 3 See for example a recent article in major human rights journal Human Rights Quarterly discussing the use of indicators in the promotion of economic, social and cultural rights: Kalantry, Getgen and Koh (2010). 4 In the field of international law, this approach has been promoted by Adam Chilton and colleagues (see Chilton, 2015). In relation to labour standards, fair trade and ethical supply chains, see the work of Michael Hiscox and colleagues at Harvard University: http:// scholar.harvard.edu/hiscox/publications/research-projects-and-topics/ethical-supplychains [accessed 26 February 2016]. 5 Exemplified in the adoption by the United Nations General Assembly of the UN Declaration on Human Rights Education and Training in December 2011: UN Doc. A/RES/66/137, 16 February 2012. Aside from the endorsement of HRE by various international organisations, it has also become a key pillar of human rights practice: for example, the Journal of Human Rights Practice in 2013 dedicated an entire special issue to human rights education: vol. 5(2). 6 See for example the 1997 UNDP Policy Paper describing the concept of ‘good governance’ and identifying the three pillars required (state, civil society and the private sector): http://www.pogar.org/publications/other/undp/governance/undppolicydoc97-e. pdf [accessed 26 February 2016]. 7 New York in the case of HRW and London in the case of AI; although there have been recent developments within the latter organisation aimed at shifting this ‘centre–periphery’ model towards a more decentred structure. 8 The UN Emergency Peace Service (UNEPS) is the most expansive of these developments, enshrining a permanent UN structure staffed by 16,000 employees ready to be deployed in the name of human rights protection and promotion and armed conflict/ atrocity prevention: for more see http://www.globalcommonsecurity.org/gcs/initiatives/ united-nations-emergency-peace-service-uneps/ [accessed 26 February 2016].

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Part 2

The case studies

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4 Kosovo

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International humanitarianism and the narrative of ‘ancient ethnic hatreds’

Introduction For human rights advocates and critics alike the 1990s and the wars in the former Yugoslavia represent a pivotal period. With the Cold War over and the victory of liberal (capitalist) democracy declared (Fukuyama, 1989), the 1990s were marked by both extremely brutal (and highly mediatised) armed conflicts and a rapid expansion in the international human rights framework and the penetration of human rights rhetoric into the core of international politics. In this context Kosovo reflected both the culmination and the turning point for the institutionalisation of human rights within the international system: involved in the last of the Balkans wars, it resulted in a NATO military intervention and the passing of Security Council Resolution 1244(1999) charging the United Nations with not only peacekeeping but institution building and the civil administration of the province in the meantime (Pula, 2003).1 Much has already been written on the Kosovo conflict with a particular focus on the decision by NATO to engage in a bombing campaign (Chinkin, 1999; Roberts, 1999; Falk, 1999; Mertus, 1999, 2004a; Chandler, 2006). For many critics, the NATO campaign in Kosovo reflected the ultimate example of a new brand of violent interventionism done in the name of ‘humanitarianism’. It was also seen as further evidence of a reassertion of militaristic imperialism. For others it represented the outcome of an increasing humanitarian and human rights focus at the level of state foreign policy and international relations. Meanwhile, for those studying the development of UN peacekeeping operations, Kosovo reflected a major shift in international intervention from a fairly passive role to adopting complete responsibility for governance and civilian administration (Strohmeyer, 2001; Pula, 2003): a move that was praised by some and criticised by others. I do not wish to enter into a debate about the legitimacy or not of the NATO bombing campaign or the establishment of a UN administration to govern the province. Rather, in this chapter I am more interested in using the international administration of Kosovo as a means of exploring some of the debates discussed in the previous part of this book. Through the construction of the ‘international community’ and its local counterpart, Kosovo provides a useful means of exploring the relationship between the global and the local in

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56  The case studies human rights practices and politics. At the same time this case study attempts to respond to Anne Orford’s observation that, ‘there has been little analysis of what happens to the revolutionary potential of human rights when those rights are invoked by lawyers and diplomats in the name of the people of a territory they intend to invade, bomb or administer’ (2003, p.34). Given that human rights have increasingly become entangled with discourses of humanitarianism and (military) interventionism, it seems vital to explore what this produces in reality in terms of human rights’ ambitions as a tool for social justice, empowerment, recognition and redress. In order to explore these questions, this chapter provides an analysis of the following: interviews and observations arising from my two fieldwork visits (one in 2006, the second in 2011), international reports (of governmental bodies, international organisations and human rights organisations) and two locally produced texts: the first, Veton Surroi’s novel, Azem Berisha’s One and Only Flight to the Castle; the second, History is Herstory too, a book produced by local NGO the Kosovar Gender Studies Centre (KGSC), documenting the oral histories of the women’s movement in Kosovo from 1980 to 2004.

Background on Kosovo By way of background, Kosovo is a small province to the west of Serbia. Composed of a majority Albanian population, Kosovo had long struggled to maintain its independence in the Yugoslav Federation while the symbolic significance of Kosovo to Serb national mythology as well as the marginal status of Kosovo Serbs (including their coerced emigration throughout the late 1960s and 1970s) provided a platform for Serb nationalists throughout the 1980s (Bieber, 2003, p.2; Nikolić, 2003, p.63). In 1989 the Milosevic government withdrew the autonomous status of the province and implemented an administration of systematic discrimination against the Albanian population.2 This led to the beginning of a passive resistance movement in Kosovo, which endured throughout the early 1990s as the other Balkan states went to war. This period of modern Kosovar history is both interesting and important. While Ibrahim Rugova – leader of the LDK party, which adopted the passive resistance policy – has often been credited with the non-violent resistance in Kosovo, it has been noted that in fact there was a broad public consensus on the utility of nonviolent struggle prior to the official adoption of this approach (Husanović, 2000, p.270). This may in part have been pragmatic, given the relative poverty and lack of power of the Albanian population. However, the operation of a parallel system of government – following the dismissal and expulsion of Albanians from government positions, the judicial sector, universities and hospitals – with schools, hospitals and clinics and even a university evidences a vibrant and dedicated civil society. Moreover (as discussed in greater detail later in this chapter), it provided an opportunity for Kosovar women to step beyond the narrow confines of patriarchal Kosovar society through their central role in the provision of basic services.

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Kosovo: The narrative of ‘ancient ethnic hatreds’  57 The commitment to non-violent resistance, however, came under challenge following the Dayton Agreement ending the Bosnian conflict. While Rugova had apparently believed Dayton would also incorporate recognition of the Kosovar situation, the failure on the part of the international community to address the province’s status led to a rapid shift in public sympathy towards the more militant politics of the recently formed UÇK (KLA).3 From 1996 on the conflict between the Kosovar Albanian population and Serb military, paramilitary and police escalated in violence. Following failed peace talks in 1998, the decision was made by NATO countries to embark on a bombing campaign to force the withdrawal of Serbian forces. Having achieved this withdrawal – and along with it the departure of many Serb officials, public servants and large parts of the Serb population – the political and administrative vacuum left resulted in the establishment of the first fullscale UN civilian administration under Security Council Resolution 1244(1999). Despite a unilateral declaration of independence by the Kosovo Assembly (minus the Serb representatives) in 2008, the UN Interim Administration Mission in Kosovo (UNMIK) continued to operate until 2012, when governance was officially handed back to Kosovo. At the time of writing, UNMIK continues, albeit in a limited form, alongside the European Union Rule of Law Mission (EULEX), which took over responsibility for the law and justice sector in 2009. As noted above, the status of the initial military intervention by NATO has been the source of extensive debate. However, while the lack of democratic commitment, the oversight, and the imperialistic and authoritarian tendencies of UNMIK have been remarked upon (Ignatieff, 2003; Chandler, 2006; Krasniqi, 2007), Kosovo has received significantly less scholarly attention than its neighbouring post-conflict site, Bosnia. Thus while Kosovo has created the conditions for debates about the relationship between humanitarianism, militarism and interventionist global politics, the actual operation and practice of human rights and humanitarian governance in the post-conflict province remain under-documented. This chapter seeks to address this gap by providing an analysis of how international humanitarian governance was enacted in Kosovo, how international human rights organisations have engaged with this process, and how international strategies for establishing the holy trinity of ‘human rights, rule of law and democracy’ have interacted with local socio-political conditions. I first visited Kosovo in April 2006, as one of a two-person Amnesty Inter­ national (AI) delegation. We were working on a report documenting and evaluating the efforts of UNMIK to rebuild the Kosovar justice sector and respond to human rights violations committed both during and after the war. With little information publicly available and ongoing reports of violence and discrimination, our particular aim was to explore why the establishment of a secure, peaceful and human rights respecting post-conflict order was proving so difficult. In this sense we were following a longstanding approach to Kosovo that is reflected in earlier human rights reports. This chapter is therefore as much the outcome of a process of self-critical reflection as a critique of the ways in which international actors have contributed to human rights in Kosovo.

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Human rights governmentality

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Human rights is the language of the victims and the dispossessed. (Donnelly, 1998, p.20) As noted above, Kosovo is often touted as the first ‘humanitarian war’. It is also an example of one of the most far-reaching international administrations, largely justified in terms of establishing democracy, rule of law and human rights. It therefore acts as an important test site for reflecting upon the impact that the incorporation of human rights into state foreign policy and international relations has had on human rights’ emancipatory potential. In Chapter 3 I explored the critiques of human rights that have highlighted its exclusivist and elitist tendencies as well as its troubling inter-relationship with neo-liberal governance and economic models. This stands in contrast to the representation by advocates of human rights as a tool of empowerment and social justice, reflected in the above quote from Donnelly. Sadly in the case of Kosovo, the international approach seems to have conformed to the more critical view. This has been facilitated by a number of factors, each of which I will elaborate upon as they provide an insight not only into the possible failings of supposedly ‘human rights inspired’ initiatives in Kosovo but also into some of the more general limitations of existing dominant accounts of human rights.

‘Creating’ human rights, good governance and the rule of law Post-conflict reconstruction has spawned an extensive industry, with a wide range of consultants, indicators and matrices for ‘creating’ liberal (capitalist) democracies. Kosovo represented one of the first examples of this approach – and a report prepared by a team at the RAND Corporation on the Kosovo ‘nation-building’ initiative provides an interesting illustration of how the conflated ‘human rights/ rule of law/democracy’ triad is understood. The first question that emerges is why such initiatives are understood as necessary. From the point of view of human rights advocates this is clear, as the INGO reports analysed later in this chapter attest (the prevention of further violence, the protection of vulnerable groups, and the establishment of a peaceful and rightsrespecting community). However, what is the rationale from the point of view of actors such as the RAND Corporation, whose primary role has traditionally been to provide advice to armed forces and the defence sector?4 The report begins with the following statement: Assessing U.S. and international efforts to build indigenous internal security structures is important for several reasons. First, nation-building operations have become more frequent in the post-Cold War era, and there is little reason to believe that this trend will decline. (Jones et al., 2005, p.1) What goes without saying is the legitimacy of the US in engaging in this activity. In fact, it is asserted as essential both because, ‘strengthening internal security

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Kosovo: The narrative of ‘ancient ethnic hatreds’  59 and rule-of-law institutions is a critical U.S. interest’ (Jones et al., 2005, p.1) and because of the US’s role as, ‘the world’s only superpower’ (Jones et al., 2005, p.2). While it is left unsaid, the implication within the report is that this is in US economic interests, not simply for some humanitarian purpose. The stabilisation of ‘failed’ or ‘rogue’ states is a project in which it is assumed humanitarian and the economic interests align, a point captured by Ben Golder when he quotes a speech by former ICTY Chief Prosecutor Carla Del Ponte to the investment company Goldman Sachs entitled ‘The Dividends of International Criminal Justice’. In that speech Del Ponte states, ‘our business is to help you make good business’ (Golder, 2014, p.92). Returning to the RAND report, what follows is a fascinating description of post-conflict state building constructed as a technical problem, requiring matrices and indicators and ultimately achievable through the right balance of different inputs, management of risk factors, and so on. An excellent visual illustration is provided at page 8 of the report, which sets out a ‘Model of Reconstructing Internal Security’ in the form of a flow chart including ‘Inputs’ and ‘Initial Conditions’, leading to ‘Outputs’ and then ‘Outcomes’ (Jones et al., 2005, p.8). Similarly, nation building is divided into different areas (security, health/­ education, governance, democratisation, economics and basic infrastructure), with particular activities identified as required for each one. Under ‘Democratization’, these activities are listed as: ‘build political parties, a free press, civil society, and a legal and constitutional framework for elections’ (Jones et  al., 2005, p.11). Meanwhile, in a separate article assessing UNMIK’s reconstruction of the judicial sector in Kosovo, one of the authors notes: ‘Addressing issues such as ethnic discrimination takes time, planning, assistance and persistence’ (Wilson, 2006, p.173). While it is not explicitly stated, the underlying assumption of this ­statement – especially when read alongside the rest of the article – is that this is a technical issue of institution building and/or reform that can be managed by external agents. This is made more evident in the author’s recommendations where he notes: ‘It is important to develop and use outcome-based metrics to define program success and managerial performance. Data can help determine progress toward achieving goals and identify what may be facilitating or impeding progress’ (Wilson, 2006, p.174). This approach seems to fundamentally undermine any possibility for the establishment of a genuinely democratic, egalitarian and just order. In all of these commentaries there is no recognition of the possibility for those within the state to have a say in the structuring of their society. Nor is there any possibility presented of alternate models. Rather, state building and security are treated as outcomes emerging from the reliable, consistent application of formulae, administered by technical experts. This technocratisation and bureaucratisation of democratic state building has emerged as a key focus of critics of human rights (as detailed in Chapter 3) and it is easy to understand why when we look at the outcomes that have been produced in Kosovo. On the one hand, it has led to a feeling of further disenfranchisement on the part of many Kosovars, captured in the words of a local legal professional who described the international administration as, ‘another set of imposed ideas

60  The case studies [like the ‘Brotherhood and Unity’ ideals of the former Yugoslavia], just this time flying a blue [UN] flag’.5 On the other, it has facilitated and legitimated a number of highly problematic hierarchies, discourses and practices at both the local and international level.

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‘Humanitarian imperialism’: legitimate violence and authoritarian order One of the most shocking and noteworthy features of my encounters with the international administration in Kosovo was the complete lack of accountability the international actors both felt and were subjected to in relation to the local population they were governing. Despite ostensibly being charged with building a democratic, ‘rule of law’ and human rights respecting society, the actual operation of international actors was authoritarian, un-consultative and opaque. No aspect of the international administration was subject to any sort of local accountability and indeed there was little by way of accountability in any form. While mechanisms such as the Kosovo Judicial and Prosecutorial Council and the Ombudsperson’s Office were established by UNMIK, they had no authority or oversight over international staff. Meanwhile requests for access to public documents (such as, in my own experience, court judgments in human rights cases) were largely ignored and only complied with when international actors became involved.6 In practice the lack of accountability to the local population did little to foster faith in these principles, showing them to be applied selectively. At the same time it demonstrated an unbroken relationship between contemporary and colonial models of governance and administration. The very establishment of UNMIK and its mandate was agreed by NATO, Russia and the former Yugoslavia (i.e. Serbia) but not by the Kosovars themselves, who were treated as UNMIK’s ‘subjects’ (Pula, 2003, p.203) in much the same way that colonised populations were the subjects of colonial administration. As Michael Ignatieff writes, ‘The humanitarian empire is the new face of an old figure: the democratic free world, the Christian West. It is held together by common elements of rhetoric and self-belief: the idea, if not the practice, of democracy; the idea, if not the practice, of human rights; the idea, if not the practice, of equality before the law’ (2003, p.17). Meanwhile it is the system of tutelage Nehal Bhuta (2009) describes as extending from imperial liberal reform ideologies to modern-day interventions that seems to best capture the experience in Kosovo. International administrators positioned themselves as benevolent dictators, instructing and managing wayward local subjects who didn’t know what was best for them. This is captured in Ignatieff’s description of then UN Special Representative of the SecretaryGeneral for Kosovo, Bernard Kouchner (founder of French NGO Médecins Sans Frontières) as, ‘humanitarian as imperialist’ (see also Orford, 2003, p.11). This imperialist sense of civilisational superiority (a rearticulation of the classic ‘white man’s burden’) was also expressed through the patronising and sometimes offensive ways in which the international actors I met with spoke about their

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local counterparts, often using tropes that conformed to classic colonial narratives about indigenous populations. By way of illustrative example, the OSCE7 court monitors cite one international judge’s discussion of witness credibility: It is not clear what the trial judge here meant when she deemed ‘understandable’ the defence argument about ‘the mentality of Kosovar Albanians to rather live up to the expectations of their peers than to rather live up to (sic) the expectations of justice’. It suggests that in the absence of any expert testimony concerning Kosovar Albanian social organisation or communication patterns, the court drew adverse inferences concerning prosecution witnesses based solely on their ethnicity.8 I encountered an uglier version of a similar construction of a tribal local population in a bar in Prishtina when I was told by a Scandinavian member of the UN civilian police force of villages in rural Kosovo populated by what he described as inbred Albanians, with ‘mis-shapen heads’ and an innate propensity for irrational violence. Indeed, of the internationals I interviewed in Kosovo, many repeated the belief that local Kosovars were either too inherently tribal (the cruder version) or too scarred by ethnic conflict (the more ‘politically correct’ version) to be able to engage in rational debate and establish a satisfactory ethnically tolerant society. This view was also reinforced through formalised systems of ‘mentoring’. For example, in 2000 the ‘International Judges and Prosecutors Programme’ was introduced in Kosovo to overcome the apparent bias on the part of local judges that was leading to unfair trials in cases of war and ethnically motivated crimes. The foundation for this concern was real. Certainly many of the early trials of Serbs and Albanians accused of war crimes did violate fair trial rights (captured in Edwin Villmoare’s (2002) account of the Igor Simič trial of a juvenile for genocide). However, the automatic assumption of inherent incompetence and prejudice on the part of local judges – and the equal conviction that international judges were inherently more competent and less prone to prejudice – undermined the possibilities for building a strong local justice system, fostered discord between local and international actors, and created a complete lack of accountability for international personnel despite complaints.9 While UNMIK’s asserted aim was to facilitate the handing back of governance and administration to local stakeholders as quickly as possible, its responsibility for the justice sector in fact grew over the 10 years of its existence. The justice sector has also been passed on as one of the biggest areas of concern to the European Union. Meanwhile in my own (admittedly limited) interviews with local judges and lawyers, they identified two major obstacles they faced in dealing with war crimes/ethnically motivated cases: financial and security issues, and the patronising and/or disrespectful attitudes of their international counterparts. It is of course necessary not to be too naïve here. These individuals were speaking to me as a member of the international human rights community and were possibly unlikely to admit to holding deep-seated prejudices that might affect their judgment in cases involving an accused of a different ethnic group.

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62  The case studies However, at least one of the judges had previously worked within the judiciary during Serbian rule. He stated that – unlike the international judges who received UN salaries and vehicles and permanent protection – he was required to participate in highly sensitive political cases on a minimum salary and completely exposed to the death threats he faced. This, alongside his experience of being treated as less qualified and less professional by the international administration, had led him to leave the judiciary and return to private practice. A couple of the international judges with whom I spoke also remarked on the differential treatment that they and their local counterparts received and the over-statement of the latter’s incompetence or inexperience. The characterisation of child-like, impassioned and irrational locals in need of a firm international hand is also captured in Vjollca Krasniqi’s analysis of two UN posters, which were widely distributed in Kosovo in 2002. Designed to ‘educate’ the public on the importance of political standard setting before there could be a decision on statehood claims, one poster features a young boy under the heading, ‘Practice makes perfect’, while the other is composed of a middleaged woman carrying a small child under, ‘Children are our future . . . Standards’ (2007, pp.4–5). As Krasniqi points out, not only do these posters reproduce stereotypical gender norms in which women act as reproducers and caretakers of the nation’s (male) citizens (rather than active citizens in their own right), they also contain another crucial message – that of Kosovar (male) politicians as currently little boys who require further education to achieve ‘manhood’ and therefore be in a position to govern. This she associates, drawing on David Chandler’s work, with the pressure placed on Kosovars to see themselves as incapable of self-governing and in need of ‘international paternalistic guidance’ (Krasniqi, 2007, p.5). At the same time, in Zarkov’s words, ‘[t]he moment . . . interventions are not called military any longer, but humanitarian, the violence used by the “humanitarian actors” is defined as a “justifiable technique” appropriate to the situation in which others use it unjustifiably’ (Zarkov, 2014, p.16, citations omitted). This is an issue that arose in Kosovo not only in relation to the violence of the initial intervention but also in the ongoing administration of the province. Despite repeated criticism by human rights groups, the NATO-led peacekeeping force KFOR was implicated in the arrest, extended detention and in some cases alleged ill treatment of many Kosovars, suspected of involvement in ongoing violence.10 These actions were authorised by executive decree and subjected to none of the usual legal safeguards provided by courts: something about which international judges I interviewed repeatedly complained. In the one case involving the prosecution of an Austrian police officer for the torture of an Albanian detainee, the officer in question was whisked across the border and despite being found guilty in absentia in Kosovo continued to serve as a police officer back home.11 How could a military force, ostensibly in the country to bring peace, security and respect for rights, be allowed to engage in such behaviour? I argue that it is

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Kosovo: The narrative of ‘ancient ethnic hatreds’  63 the result of the definition of the ‘international’ being uncritically equated with positive, progressive values. Unlike more recent interventions in the Middle East, the framing of Kosovo as a purely humanitarian intervention (and the acceptance of this by many within the human rights community12) and the apparent lack of other economic or political advantage to the intervening states, meant that while the former interventions have been subjected to much greater scrutiny, the latter was all too often taken at face value as being benevolent. This raises an important question: is the critique of international military humanitarianism to be limited only to those situations where there appears to be a cynical appropriation of the language of human rights? Or should we be more critical of even those interventions for which we can find no ulterior motive? Through the construction of an ‘international’ that is automatically benevolent and the upholder of values of peace, democracy and human rights, a more critical engagement is permanently deferred. The problem simply becomes one of rogue individuals (such as the above example of the Austrian policeman) or poor implementation (as the INGO reports assert). But the fundamental value and structure of the international system is never directly called into question. If these values of peace, democracy and human rights are not actually performed by members of the international community in their engagements with subject populations, how can they be said to exist? This relies on the fantasy of the international (read here, Western) saviour who, regardless of their actual actions, is always believed to embody these principles. In writing about the horrific torture scandal in Somalia involving Canadian peacekeepers in 1993 Sherene Razack (2004) reaches a similar conclusion. In particular she highlights the ways in which that incident both replicated traditional imperial justifications of violence and was reimagined within the Canadian public sphere to recuperate the nation’s innocence and benevolence. What remains unchallenged in both Razack’s example and my own experience in Kosovo is the assumption of the moral superiority of the West. Many scholars in recent years, influenced by the work of German political theorist Carl Schmidt and the more recent reformulation of his thought by Giorgio Agamben, have written about the ‘state of exception’ that has been invoked in contemporary liberal democratic states in the West to justify a suspension of human rights and other democratic values in the face of an apparent crisis. This ‘state of exception’ provides a means for states to justify extreme violence and oppression while at the same time retaining an image of the state as liberal and democratic (Puar, 2007). The international administration in Kosovo seems to embody this state of exception as at the core of its structure. A period of crisis par excellence, the intervention and administration of a territory emerging from mass atrocity or conflict draws on both the promise of democracy and human rights and the actual deferral of these very values in the name of necessity. It is also clearly influenced by the model of colonial administration. This is all the more evident when we look a little more closely at how exactly the ‘international community’ is understood.

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Who is the ‘international community’? As noted above, there has been extensive critical literature on the linking of discourses of human rights with militaristic brands of humanitarian interventionism (Orford, 2003; Chandler, 2006). However, the justification of interventionism in the name of human rights not only raises issues about the extent to which violence and military action can ever achieve these ends without causing additional unnecessary suffering – it also presents the pressing question of intervention by whom? The only way in which interventionism as a means of bringing human rights and democracy is comprehensible is if there is some external actor who is envisaged to be capable and willing of this type of action: an actor whose commitment to human rights is unquestionable and whose ability to mobilise force in service of ensuring human rights is undeniable. This was made clear in the intervention in Kosovo by then UK Prime Minister Tony Blair, who in his statement on the suspension of NATO airstrikes on Serbia declared: This war was not fought for Albanians against Serbs. It was not fought for territory. Still less for NATO aggrandisement. It was fought for a fundamental principle necessary for humanity’s progress: that every human being, regardless of race, religion or birth, has the inalienable right to live free from persecution. (Orford, 2003, p.9) Although these are the words of a politician, they make explicit a logic that can be found repeated across international discourses and practices of humanitarianism. It is upon this logic that the INGO reports’ recommendations for greater international intervention discussed in a moment are also based. Indeed, it is the ‘imaginative geography’ of intervention of which Anne Orford has written, within which, ‘the international community is absent from the scene of violence and suffering until it intervenes as a heroic saviour’ (2003, p.85). But are all nations equally capable of representing the international community? An interesting example of the differentiation between ‘legitimate’ and ‘illegitimate’ representatives of the international community can be found in one of the few prosecutions of an international police officer in Kosovo. Despite repeated criticism by human rights organisations, international personnel serving in Kosovo have by and large been protected from prosecution by the immunity attached to UN personnel under the 1946 Convention on the Privileges and Immunities of the United Nations. One notable exception to this was the prosecution in 2002 of Egyptian police officer Sherif Abd Elaziz by an internationalised panel of judges, for the murder of an Albanian interpreter with whom he had an affair. A reading of the judgment provides a fascinating insight into the ways in which racialised stereotypes inform the judges’ approach. Ostensibly presenting the ‘facts’ of the case, we are provided with an image of an unprofessional, devious, slightly pathetic and overly emotional accused. We are told of his persistent wooing of the victim, in a manner that sounds more like harassment: ‘Using his

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Kosovo: The narrative of ‘ancient ethnic hatreds’  65 position as her Chief he urged her to spend a lot of time with him’. It is also suggested that this interest was entirely unreciprocated (‘This behavior probably got on Vlora Berbati’s nerves first’), even though ultimately the victim did begin a relationship with the accused. This relationship is also presented as one in which the accused is both unprofessional (‘Since the general behavior of the Accused was not highly esteemed he once was warned by the State Commander’) and dishonest: ‘In fact the Accused had only been faking his intentions to marry [the victim]. He never thought about getting divorced from his wife. If at all, he had thought to take [the victim] as his second wife what [sic] is permissible under Egyptian law’. When the victim ultimately ended the relationship, the description by witnesses of the accused’s bad mood is further explained by the judges: ‘Probably he could not cope with the fact that it was a female ditching him’. Not only is this commentary pure speculation on the part of the judges, it draws on racialised (racist) stereotypes of a sexist duplicitous man whose lack of respect for women is facilitated by his culture and law. Meanwhile, this is to be contrasted with the invisible American former lover of the victim, who remains present only in the shadows of the case: ‘Vlora Berbati [the victim] had had a love affair with an American IPO who had left the mission shortly before but was about to return. He had promised to marry and take her to the United States’. In explaining how and why the victim began a relationship with the accused, the judgment states: ‘It is likely this happened after the Accused succeeded in convincing her that her former lover did no longer have interest in her [sic]. In fact this man when he had returned to Kosovo had only turned away from her because he did not want to fight for her’. The foundation for this asserted motivation on the part of the American former lover is unstated. We are never told of his identity and whether he in fact testified. The descriptions of both the accused and his American rival contribute to a classic narrative in which the deviant Middle Eastern man is contrasted with his noble Western counterpart, a common feature of public discourses on gender and race in many Western nations.13 Added to this, in the context of an internationally administered province, it also serves to reinforce a hierarchy of value among members of the international community. This was a distinction that emerged repeatedly in interviews I conducted with international personnel who, when they were critical of the UN administration, often attributed this to the problem with having personnel from ‘less developed’ parts of the world. It is therefore not an abstract ‘international’ that is associated with the values of progress, human rights and democracy, but a very specific figure envisaged. If the identity of the ‘international’ is automatically one associated with progress, democracy and human rights, it is also not an identity that can be claimed by everyone. Instead, it is both founded upon and policed through classic colonial stereotypes, further supporting the argument discussed in Part 1 of this book that without decolonisation, not only can human rights not be taken to be universal, they in fact shore up an ongoing civilisational hierarchy. It is perhaps through the mythology surrounding the ‘international community’ that human rights’ foundation upon and unacknowledged continued implication in imperialism is best

66  The case studies captured. The logic of interventionism is both produced through and assists with reinforcing a particular construction of the West as the natural home of human rights. At the same time, it also relies on an equally constructed, fixed ‘local’ that demands international intervention.

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Constructing the local: ‘ancient ethnic hatreds’ The international as the site of progressive values relies not only on the automatic association of the international with particular states (namely of North America and Western Europe) but also on its mirror opposite – the barbaric, backward local, who requires intervention to assist him transcend his limits and access universal human rights. In Kosovo this was achieved through the common sense acceptance that there existed an ‘ancient’ hatred between Serbs and Albanians, generally linked back to the 1389 battle of Kosovo Polje central to Serbian nationalist mythology. What this reproduced, at times explicitly and at times implicitly, was an image of the local as violent, irrational and trapped in a primordial struggle between ethnicities: this is also evidenced in the INGO reports discussed later in this chapter. In making this argument I do not suggest that the animosity between communities is not real and strongly felt. I have experienced the intensity of this first hand. In 2006 my colleague and I rented a car from Prishtina to visit the divided town of Mitrovica in the north of the province. We had an appointment to meet with Serb and Roma community leaders on the northern side of the town – and while there had been trouble about a week earlier, as we cautiously drove across the bridge that divides the Serb and Albanian sides (guarded by NATO) all seemed quiet and no one stopped us. Once in northern Mitrovica we drove around for a while, looking for the street where our meeting was to be held. However, we did this with a growing sense of unease. A car seemed to be following us very closely and began flashing its lights. Unsure what to do, we continued until the driver forced us off the road. A middle-aged man approached us and informed us somewhat breathlessly that we were taking a terrible risk and that he would escort us back to the bridge. It appeared our Prishtina number plates marked us as from the Albanian side of Kosovo: something that could lead to our vehicle being attacked. The man kindly accompanied us back to the bridge, where a local police officer ran over in a panic asking how we had managed to get into northern Mitrovica with the vehicle. We explained who we were and said that we had not been stopped when we crossed the bridge and so had presumed it was safe. The police officer then pulled out a screwdriver and began working to remove our number plates! Placing the plates in our hands he sent us on our way, telling us to simply replace the number plates when we were safely leaving northern Mitrovica. In recounting this incident I wish to illustrate my awareness of the very real nature of violence and antagonism that exists between the communities. However, as Zarkov points out, ‘reducing causes of violence to ethnic identities and asking how ethnic identity becomes a privileged social category are not the same’ (2014, p.8). It is the latter question that is both the more interesting and yet generally unasked.

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Engaging local power-brokers In fact, the international community’s endorsement of the narrative of ‘ancient ethnic hatreds’ helped build the constituencies of more conservative and ethnonationalist factions within Kosovar society to the exclusion of other more moderate voices. For example, in creating a Transitional Council to try to co-opt local elites in order to gain support of local population, UNMIK sought out those it perceived to be politically influential and/or relevant (Pula, 2003, p.204). These included Hashim Thaçi (head of PGK and political leader of UÇK), Ibrahim Rugova, Rexhep Qosja and Veton Surroi – all involved in signing the Rambouillet Accord in 1999 – and two Serbs, namely Momčilo Trajković and Father Sana Janjić. Apart from limited minority and female participation, the council was structured in a way that fed a divisive communitarian politics based on ethnic representation (Blumi, 2003). The reliance on ‘ethnicity’ as the main identity marker served to downplay internal diversity and crushed the possibility both for dissent and for local communal organisation (Blumi, 2003). Instead, what was produced was a dyadic relationship between Serb and Albanian constituencies that served to further emphasise ethnic differences, create an illusory cohesion within these communities, simplify complex and diverse identities and, most troublingly, further marginalised progressive or alternative voices within these communities. This approach also all but excluded other ethnic minorities who faced many of the same types of discrimination and violence.14

Building local civil society At the same time there was much talk within the international community of the need to ‘build the capacity of local civil society’. Huge investments of financial and material resources were made in establishing and maintaining NGOs with whom the international administration could work. This is despite the well-documented fact that Kosovo had a well-established local human rights culture and a strong, active civil society prior to 1999 (Clark, 2000; Husanović, 2000; Mertus, 2004a, p.337; KGSC, 2008), best exemplified in the parallel governance and social support structures run by Albanian civil society throughout the 1990s. One human rights officer working for EULEX lamented the depoliticised nature of Kosovar civil society in 2011. Yet he did so with what seemed to be no awareness for what had existed before. This is broadly reflective of the international community’s relationship to local human rights movements within Kosovo when it arrived. In fact, many of the moderate voices in Kosovo who were committed to working towards some form of multi-ethnic community were extinguished as a direct result of the international community’s actions, in particular its privileging of ethnicity and conservative community leaders. Yet international actors continued to lament the lack of civil society and the need to create likeminded organisations to promote a model of human rights and liberal, multicultural democracy. The problem was that they could only countenance a model developed and imported

68  The case studies from elsewhere. This again reinforced the construction of a barren local site into which human rights and other democratic values needed to be introduced by the more enlightened international actors.

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The gender agenda: culture, tradition and women’s rights For example, international administrators, utilising a discourse of ‘cultural sensitivity’, treated those reflecting alternate gender, sexual, or other identities or politics as less authentic representatives of their communities. Lesley Abdela describes the following experience of working for 4 months with the OSCE in Kosovo in 1999: [T]he men in the OSCE in Kosovo justified excluding women by saying that the situation was ‘complicated enough without having to think about representation of women as well’, and that women leadership posts would be ‘alien to local culture and tradition’ . . . . In a further display of their biased awareness of reality, these ‘liberal’ male Europeans added that in any case, ‘no women in Kosovo are interested in participation in politics or public life’. (2003, p.211) This is to be contrasted with the fact that women had been involved in the underground movement in Kosovo since the 1960s (Krasniqi, 2011), were active community leaders and were recognised as such, evidenced by the fact that the number of women who were disappeared and held as political prisoners by the Serbian authorities was almost equal to the number of men (Del Zotto, 2002, p.146). Similarly, the KGSC documents a number of instances in which the exclusion of women from political fora and decision-making bodies was justified by international personnel on the basis that Kosovo was a ‘patriarchal’ or ‘male’ society (2008, p.186). Julie Mertus reports that women complained of UNMIK accepting men’s arguments regarding the inappropriateness of women’s participation on the basis of ‘cultural sensitivity’, generally without even listening to the women themselves (2003, p.553). In this way, some of the effects of the ‘universal rights versus culture’ debate described in Chapter 1 are felt in practice. Writing in the early days of UNMIK’s existence, Chris Corrin also identified the ways in which, ‘ideas concerning “Muslim women” and “traditional cultures” often are vaguely put forward as actual reasons not to empower rural women in Kosova’ (2010, pp.81–82). She gives the example of a tractor distribution scheme in which families who had owned a tractor before the war were provided with a replacement. It was decided by some UNMIK officials, however, that this was not necessary for those women heads of households who could not drive tractors as in their case men could be hired to plough for them (2010, p.81). As I have written about elsewhere (Grewal, 2012a), the acceptance of cultural explanations for the deprivation of women’s rights relies on mutually constitutive and reinforcing frameworks of racism and sexism: an argument I will expand upon further in the next chapter on Sierra Leone.

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Yet the obstacles to the protection and promotion of women’s rights are always identified as resulting from local, not international, attitudes, prejudices and cultures. Even Julie Mertus, writing about violence against women in Kosovo, states: Even in places like Kosovo, where internationals have poured resources into the creation of a rights-respecting police force and judiciary, the legal system may not be able to respond appropriately to women’s claims. Michael Hartmann, the American installed as a local prosecutor in Kosovo, confirms that despite all of the law reform efforts in Kosovo, local police still do not have the ability to fairly and effectively investigate a domestic violence dispute. ‘It’s not necessarily about not respecting women’s rights’, Hartmann says, ‘They just don’t know how to do it. I’m talking the basics, how to get a fresh complaint, how to preserve evidence’. (Mertus, 2003, p.546) As with the INGO reports discussed in a moment, Mertus’ explanation focuses on local inadequacies. She automatically accepts that the international actors (again represented here by an American prosecutor) are both capable and committed to protecting women’s rights. In fact in my own interview with the then Commissioner of the UN police, when quizzed on the topic, he admitted that the reason there had been so few prosecutions of crimes of sexual and gender-based violence was that many of the international police officers (including Americans) who were recruited to Kosovo also did not have the training or skills to effectively carry out such investigations. Once again a consciousness of women’s rights (as with human rights more generally) was imputed (without foundation) to international actors and assumed lacking within local social and political discourses. As the text discussed in the final part of this chapter (describing the history of the women’s movement in Kosovo) demonstrates, this was inaccurate but it formed an underlying logic to international engagement. For example, Agnes Kalungu-Banda in describing the development of the ‘Kosovo Women’s Initiative’ writes: It was because women’s groups were only recently forming or re-establishing themselves that UNHCR recommended that in the initial stages international organisations should play a substantial role in the KWI, transferring increased responsibility to local organisations over the following year. (2004, p.33) Yet as prominent Kosovar feminist Sevdije Ahmeti recalled about that period in a focus group discussion organised by the KGSC, ‘[t]he international community wanted to say and said that there was no feminist movement here; there was no women’s rights movement here; women were not articulate. We were dumb, illiterate women’ (KGSC, 2008, p.184; see also Mertus, 2003, p.553). As a result many of the UN staff I met tasked with ‘gender’ projects found they had few local interlocutors willing to engage with them, something that then acted to confirm their own belief in the inherently patriarchal nature of Kosovar society.15

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70  The case studies For Krasniqi, gender in Kosovo operated both to reinforce the supremacy of Western cultural values and to provide local patriarchies with a means of claiming or reasserting political power (2007, p.2). This is an important observation and in fact mirrors my own in Sierra Leone, as the next chapter will demonstrate. The discourse regarding women’s rights in Kosovo in this sense provides a further example of the ways in which (neo)colonial assumptions about culture and gender continue to have significant impacts on actual human rights practices and discourses.

The ‘noble, embattled international’ versus the ‘barbaric local’ An image slowly emerged in Kosovo of the international administration nobly fighting to introduce democracy, peace and human rights into an inhospitable local climate, even as it was actually through the assumption and reinforcement of ethnic categories of identity that the conditions for ongoing violence and instability were maintained (see Hehir, 2006, making a similar point). As the analysis of INGO reports presented a little later in this chapter illustrates, this was a narrative that was bought into not only by those within the administration seeking to defend their own positions but also by human rights advocates. The UN administration also actively engaged with many from the KLA leadership, including those accused of war crimes, crimes against humanity and other illegal activities (AI, 2000, p.2). For example, in 2006, UNMIK intervened to have an Interpol arrest warrant dropped for one member of the Provisional Government in Kosovo accused of war crimes and crimes against humanity during the war.16 These decisions were constantly justified by international actors as necessary and pragmatic strategies. However, I would argue that the decision regarding who to engage and how is in itself a politically and ideologically informed process. While represented as a pragmatic process of engaging with an existing reality, in fact this process of building ‘strategic alliances’ locally inevitably includes a process of inclusion and exclusion with some actors being favoured and legimitised (e.g. Hashim Thaçi partnership) and others ignored or excluded (Sörensen, 2003, p.273). As I will discuss in some detail in the next chapter, ‘local engagement’ has become a catch-cry within international circles as a means of avoiding accusations of (neo)imperialism and apparently showing respect for local context and diversity. However, rather than taking this process of engagement at face value, I argue there is an important need to shift our attention towards how and with whom this local engagement occurs. In the case of Kosovo the construction of the local as a site of ‘ancient ethnic hatreds’, with tribal, communitarian locals committed to absolutist and exclusionary goals served to define for the international community both the interlocutors and the nature of engagement in ways that ultimately undermined rather than enhanced the possibilities for human rights. Anne Orford has argued that the narratives of humanitarian intervention both reinforce and rely upon hegemonic and hierarchical identities. On the one hand, the role played by international law in allowing for an intervention to ‘save’

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Kosovo: The narrative of ‘ancient ethnic hatreds’  71 the poor (passive) people of failed states relies on classic race, class and gender stereotypes. On the other, it allows for a continuation of the colonial fantasy of the benevolent, civilised West bringing peace and justice by whatever means necessary (2003, p.11). In the case of Kosovo, this dual construction of the ‘enlightened’ international and the tribal, ‘backward’ local was not only discursively problematic, it also produced detrimental material outcomes in terms of human rights practices and politics. Particular social and political processes were adopted and/or occurred as a result of the automatic association of the ‘international’ with human rights, democracy and ‘rule of law’, the reiteration of these values as crucial to the future of Kosovo as a stable, peaceful society and the identification of the local with a particular brand of exclusionary communitarianism. Paradoxically (or not?) it is through these very constructions that many of the most undemocratic and rights-abusive practices and relationships have been maintained. Meanwhile, as Blumi (2003) notes, the model of liberal multicultural democracy imported was applied through the deployment of constructed, essentialist identity categories, which were then ‘managed’ institutionally through representation by ‘community leaders’. Not only has this model of multiculturalism been widely critiqued for its inability to adequately protect the rights of marginalised members of minorities (see for example Grewal, 2012a, forthcoming b), it has also been subjected to widespread popular backlash back home in many of the donor/sponsor states. Thus when in May 2011 a EULEX human rights officer complained of the resistance of the majority population to having signs for a recent marathon in Serbian as well as Albanian, I was forced to ask him how common it was for his home country to allow minority languages (including those of indigenous minorities) equal status to that of the majority, especially in a climate of rising xenophobia and right-wing populism across Europe. Rather than providing a starting point for exploring both the universality of certain phenomena and the possibilities for creating alternatives through shared experience (which could constitute a truly universal foundation for human rights), the deviance of the local site of intervention is stressed as a means of reinforcing a distance from the idealised rights-respecting democratic order back home. For perhaps this reason David Chandler has characterised the ‘ethical turn’ in international politics and policy making as having less to do with fixing problems in non-Western parts of the world and more about trying to (re)locate the moral community and institutional legitimacy of domestic frameworks within the West (2006, p.223). At the same time Vasuki Nesiah (drawing on the work of Mahmood Mamdani) points to the ways in which political violence in the postcolonial world is generally treated as distinct from the political violence of the West (the American and French revolutions, the world wars). The former, she argues, defies a progress narrative and cannot be situated in a march to higher order principles that will redeem, rather than condemn, the brutality of conflict. Rather, a country scarred by this kind of ‘unthinkable’ violence is a failed

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state that has interrupted history’s march; it is a political terra nullius that requires external intervention to restore a model of governance that allows its people to march forward into history rather than be weighed down by primordial conflicts. (Nesiah, 2009, p.137) In this way the violence in Kosovo both reinforced the apparent primordial nature of the society and its conflict(s) and legitimated the external imposition of democratic order. This is also captured by INGO reports whose recommendations ultimately return to a further reinforcement and expansion of international intervention rather than envisaging any possible local alternative. With the automatic association of the ‘international’ with rights, democracy and justice and the ‘local’ with violence, chaos and disorder, the only possible human rights solution must come from the further imposition of the former on the latter.

Characterising the problem: discourses of international human rights organisations In Part 1 of this book, I explored the critique that the focuses, silences, inclusions and exclusions contained within representations by the human rights community frequently undermine the discourse’s radical potential. In this section I examine how the two largest and best-known international human rights NGOs – Amnesty International and Human Rights Watch17 – in their advocacy on Kosovo have characterised human rights concerns, the international community’s role and responsibility, and appropriate reforms and responses. I do this through an analysis of their reports on a particularly difficult period in the international administration of Kosovo: March 2004, when riots across the province involving more than 50,000 Kosovars resulted in the deaths of 19 people, almost 1,000 injured and the destruction of hundreds of properties. In July 2004 Human Rights Watch issued its report on the March violence. Adopting the standard ‘fact-finding’ format of human rights reports, the 65-page document sets out in detail incidents of ‘elderly Serbs’’ homes being torched by ‘Albanian mobs’ in different locations across the province while local and international security personnel appeared unwilling or unable to act. It then provides a series of recommendations aimed largely at enhancing the capacity of these forces to act in the future as well as demanding accountability for those involved in the violence. This report is interesting for a number of reasons. First, it seems to exemplify Susan Marks’s argument (set out in Chapter 2) regarding the inability of human rights actors to properly address ‘root causes’. In a section entitled, ‘The Sparks that Caused a Fire’ (2004, p.15), it is noted that while the violence appears to have come as a surprise, its origins relate to longstanding issues: ‘Deep dissatisfaction within Kosovo society about the lack of progress in resolving the final status of the province, continued economic stagnation, and deepening concerns about Belgrade’s attempts to consolidate political control in some parts of Kosovo left the province ripe for unrest’ (2004, p.15). So too ‘socio-economic and political

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Kosovo: The narrative of ‘ancient ethnic hatreds’  73 conditions’ and the status of the disappeared were identified as sources of tension and discontent. Yet in the recommendations of the report, not a single one is directed towards addressing the economic situation of Kosovo and the vast majority focus on the importance of institutional responses towards individual perpetrators and victims of the March violence. Thus, while ‘root causes’ are superficially identified, they and the underlying structural factors that might be contributing to them are ultimately left unaddressed. Instead, violence is turned into individualised acts. This limited engagement with economic factors is contrasted with the very strong focus on the ethnic dimension of the violence. The fact that the term ‘Ethnic Albanian’ appears 96 times through the report (with four mentions of ‘Ethnic Serbs’) makes it difficult for the reader not to conclude that the violence is predominantly a problem of ethnic tensions. This impression is enhanced when very little context for the violence or the current state of ethnic relations in Kosovo is presented. Moreover, while we are provided with the names and ages of victims (or at the very least we are told of their ‘elderly’ status), the perpetrators of the violence remain for the most part faceless and unknown/unknowable. The homogenous, ‘Ethnic Albanian crowds/rioters’ simply perpetrate violence without our having any understanding of their (perhaps diverse) motivations and perspectives. The only individual(ised) perspectives we are provided with from the Albanian side are those of ‘Kosovar Leadership’ (2004, p.57), who are criticised for their indisputably equivocal and weak condemnation of the violence. Meanwhile the explanations for the failures on the part of the international actors largely revolve around institutional and resource issues. This then leads to recommendations for further consolidation and strengthening of the current approach. Indeed, however harshly worded, critique of the international community continuously stops short of calling the whole intervention into question. On the contrary, in the ‘Acknowledgments’ section at the end of the report, it is stated: Human Rights Watch thanks the officials of UNMIK, KFOR, OSCE, PISG18 and other institutions who contributed their comments and views to this report, and who assisted the research mission in Kosovo. Our criticisms of the performance of their institutions during the March 2004 violence aims to be constructive, and does not seek to question the profound commitment many individuals, international and local, bring to their work in Kosovo. (2004, pp.65–66) No such acknowledgement is offered to the Kosovar community, with no information at all provided regarding possible dissenters to the violence or recognition of all those who did not participate. This acknowledgement perhaps points to the intimate relationship major human rights organisations must maintain with the institutions they seek to critique. As the acknowledgement makes clear, the very possibility of conducting the research requires facilitation by actors from within these agencies – all the more so when the researcher is in the location for a short period of time (in this case, two weeks)

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74  The case studies and has limited local connections. It does, however, raise a question regarding the implications of softening the criticism, whether at best as an act of pragmatism (to maintain access) or, at worst, as an act of self-interested survival. Certainly none of the criticisms goes so far as to call the legitimacy of the international community’s intervention into question: on the contrary, the recommendations are largely geared towards increased involvement. Similarly the assumed ‘good intentions’ of the internationals in Kosovo are never questioned, nor is the desirability of their goals. The violence is ultimately treated as further evidence of the (political) immaturity of Kosovars and their leaders rather than there being any acknowledgement of a possible link between this type of ethnicised violence and the model of multicultural liberal democracy being imposed. There is no acknowledgement at all in the report of the potential links between this type of ethnicised backlash and the models of multiculturalism that have also been in operation in other parts of the world and which have similarly met with parallel forms of civil unrest.19 The true universality of the phenomenon is in fact strikingly absent from the report, while the assertion of human rights and the need for accountability are presented in precisely these terms. Instead, we are told that, ‘[t]his report attempts to reconstruct the March 2004 violence that shattered the illusion of a stable and multi-ethnic Kosovo’ (2004, p.9). This raises the question, whose illusion was this, in fact? The agency of local actors is for the most part denied – both in terms of their possible participation in or condemnation of the violence and in terms of their views on their own society’s organisation. Instead, one recommendation to the international community is to, ‘[c]ontinue to make clear and forceful public statements that a multiethnic Kosovo in which the rights of all inhabitants are respected is one of the principal objectives of the international community’ (2004, p.5). How significant are the objectives of the international community? And how are they assumed to relate to the objectives and interests of the local population? This seems to further evidence the argument made by critics that human rights organisations’ focus on outcomes in fact undermines the possibility for genuinely democratic and egalitarian processes. In making this a recommendation the report endorses a top-down and externally driven model for how future Kosovo should look. Not only is this a pragmatically questionable approach (do societies do what the international community tells them?), it also undermines the claim that human rights provide a vehicle for empowerment with the priorities and interests of the powerful (in this case the international community) treated as pre-eminent. It is also remarkably inattentive to the possible hypocrisy of those espousing an idealised model of multicultural liberal democracy who themselves face crises with this same project back at home (as many European nations currently do). This would seem to reinforce the argument made earlier that human rights as foreign policy is as much about responding to domestic political crises back in the West as it is to ‘fixing’ the so-called ‘failed states’ of the rest of the world. By maintaining the distance between the violence of a post-war province like Kosovo and examples of similar

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Kosovo: The narrative of ‘ancient ethnic hatreds’  75 anti-minority ­violence back home, the myths of both the need for intervention in the ‘failed state’ and the superior moral order of the home state are maintained. The primacy of the international over the local and the presumed superiority of international approaches to local is also evident in the organisation of the recommendations. Those to the ‘Contact Group countries’ (France, Germany, Italy, Russia, US and UK) are given priority and amount to two pages of the report versus those to Kosovo’s Provisional Institutions of Self-Government (PISG) (which amount to five recommendations) and to the Serbian government (which amounts to one recommendation). No other actors are treated as relevant interlocutors. The Amnesty International report on the March violence provides a similarly framed set of recommendations. In its July 2004 report entitled, Serbia and Montenegro (Kosovo/Kosova) – The March Violence: KFOR and UNMIK’s failure to protect the rights of the minority communities, AI focused predominantly on international actors’ responsibilities and negligence. There was a section dedicated to Kosovo Police Service (KPS) involvement or inaction, but the recommendations led back to UNMIK investigations and punishment. In particular, AI reports with enthusiasm: On 11 June 2004 United Nations Secretary-General Kofi Annan announced that he had appointed Ambassador Kai Eide of Norway to investigate the March events. Ambassador Kai Eide was tasked with probing the political implications of the violence between Albanians and Serbs and recommending ways in which the province’s multi-ethnic residents can live together again peacefully. (2004a, p.4) The question that this particular initiative seems to beg is: what will a Norwegian diplomat know or be able to recommend about the reality of day-to-day ethnic relations in Kosovo? Here we see a conflation of ‘political implications’ with the everyday lives of residents. This points to the larger problem with INGO responses to local human rights situations, where ‘high-level’ solutions are proposed in the place of any real engagement with the ‘on the ground realities’. This is striking in relation to the March 2004 riots given that most observers concluded that the violence was not centrally organised but largely spontaneous and locally coordinated (AI, 2004a, p.3). Yet it does resonate with earlier explanations AI had provided for the ongoing insecurity and violence experienced by minorities in Kosovo under the international administration. A report published in April 2004 was framed as a response to the March 2004 violence but was in fact completely dedicated to AI’s longstanding critique of impunity in Kosovo. Thus the organisation stated: The continuing uncertainty over the question of the ‘final status’ of Kosovo has contributed to inter-ethnic tensions, which, as noted below, have risen in the last year. However, Amnesty International believes that a major factor in the recurrence of ethnic violence in Kosovo has been the failure of the UNMIK as well

76  The case studies

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as the authorities in Serbia and Montenegro to seriously address the legacy of human rights violations and abuses in Kosovo, including in particular the continuing impunity for the perpetrators of inter-ethnic violence, and a continuing failure to resolve the fate of those who ‘disappeared’ and were abducted during, and following, the conflict in 1999. (2004b, p.2, emphasis in original) The foundation for this assertion is not clear. The rest of the report goes on to document all the limitations of war/ethnically motivated crimes investigations and prosecutions (or lack thereof), instances of arbitrary arrest and detention by KFOR, and the lack of accountability for human rights violations of members of the international community in Kosovo. Finally, the report deals with discrimination against minorities by detailing instances of violence against minority individuals and the lack of prosecutions that have occurred in response. There is no linking of any of this back to the overarching claim at the beginning of the report (which may or may not be true but is unsubstantiated) that the March 2004 violence is to be explained by impunity and the legacy of unresolved disappearances and war crimes. So too in a report from the previous year (accompanied by a shorter summary report published at the same time), documenting the lack of freedom and level of fear expressed by minorities living in Kosovo, the first half was dedicated exclusively to the issue of impunity. Finally, at page 32 ‘Practical and Legal Remedies’ are introduced with the legal framework, first referring to the different international human rights instruments that refer to the right to freedom of movement (the European Convention on Human Rights, the ICCPR and the Convention on the Elimination of Racial Discrimination), then the Kosovar Constitutional Framework and finally the UNHCR Guiding Principles on Internal Displacement. This is followed by a reassertion of state responsibility (in this case UNMIK and PISG) and the statement: ‘Amnesty International believes that both UNMIK and PISG should seek to further counter the climate of fear experienced by members of minority communities’ (2003b, p.33). How should this be done? The summary report starts by saying that KFOR posts have helped with the rise in mobility but that it has not improved the right to freedom of movement: ‘Security incidents, mostly stone-throwing at buses and trains, have risen in some areas’. The report goes on: The right to freedom of movement is guaranteed under international and regional human rights laws incorporated into applicable law in Kosovo. The Constitutional Framework provides for all communities the right to ‘[e]njoy unhindered contacts among themselves and with members of their respective communities within and outside of Kosovo’. (2003a, p.40) This does not add to our understanding of (a) why the stone throwing happens nor (b) how we might effectively create a genuine freedom of movement. The lack of both context and local agency further removes the possibility of any

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Kosovo: The narrative of ‘ancient ethnic hatreds’  77 more grounded responses, especially by local actors. Instead the reader is left with the image of senseless violence to which only the might of international law (supported by force) can respond. The long version of the report goes on: ‘To date, little provision has been made in domestic law to challenge those who seek to deny freedom of movement through intimidation and harassment’. In particular, AI expresses concern that only one arrest has been made in relation to the UNMIK regulation that prohibited the inciting of racial, ethnic or religious hatred (2003b, p.33). Once again a potentially structural problem is reduced to one of individual aberrance. At the same time the approach presented does not explain how the legal provisions and their greater enforcement would actually create a community of harmony and lack of violence, especially when some of the ‘attacks’ relate to verbal encounters: for example the case of ‘S’, ‘C’ and their grandmother: The sisters told Amnesty International how members of the Albanian community had responded in 2001, when 14 Romani women went – for the first time since the end of the war – down into Rahovec to the Dom Kulturi for a performance connected with a Kosovo-wide campaign against violence against women. ‘The [Albanian] women [in the Dom Kulturi] said, Oh no! It is those who massacred us! They are here! We said, if we had massacred you, then you wouldn’t be here. We have just come to see the play’. After the performance insults were thrown again . . . . Since then C. has seldom visited the town, afraid that Albanians will ‘throw words’ again . . . . (2003b, p.30) While this is a tragic example of the tensions and resentment that exist between communities, it does not seem likely that the answer would be the prosecution of the Albanian women. Indeed, it may simply exacerbate senses of victimhood (a trend that Julie Mertus (2004a) has already identified as emerging through the deployment of human rights in post-conflict Kosovo). It is precisely to combat these everyday antagonisms that Husanović (2011, 2014) writes of projects that aim to stimulate the local political space and create sites for conflict and dialogue. Yet the focus of human rights organisations on law not only removes the political and social aspects of these problems, it forecloses the possibility for any real engagement with the underlying tensions that might lead to resolution. See also the example given of a young Serb man: It feels like being in prison. We are on our land and that keeps us alive, but I feel like I am living on a reservation like a [North American] Indian. We have a bar. I try to forget. I want to go to Pec, to Istok. There are 15 young people here. Every day is the same – it’s boring – we watch TV – we play football with Spanish KFOR – what keeps us alive is that we are friends. (2003b, p.28) Again, this story is moving and provides a powerful insight into the lives of young people from minorities in Kosovo. But the possible solutions or at least

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78  The case studies points of relief remain elusive. With the only option being either military protection or the threat of legal prosecution for potential attackers, the ultimate issue remains unaddressed: how do communities of people regain trust and learn to engage or at least to peacefully ignore and co-exist with one another? While undoubtedly legal responses are important for the extreme cases reported (of murder and disappearance: 2003b, pp.21–24), this retrospective action does not seem to create much hope for a different future. The one concession to ‘practical remedies’ beyond the law is provided in the final paragraph of this section in the summary report: . . . the Ombudsperson’s Institution and sections of Albanian civil society – including youth groups Bol Ma! (Enough!) and Urban FM – have taken initiatives to establish inter-ethnic cooperation and dialogue. These include the creation of the Committee for Understanding, Tolerance and Co-existence (CUTC) by the Council for Defence of Human Rights and Freedoms (CDHRF) and the strengthening of minority representation in Local Women’s Councils and organisations such as the Kosova Women’s Network. (2003a, p.9) This is at least a recognition of the initiative of local civil society, which assists in slightly complicating the picture of the local context (beyond simply ‘violent, vengeful Albanian mobs’ and ‘terrorized vulnerable minorities’). However, a number of observations can be made about this recognition. First, for example, it points to the constant need to redirect efforts back into institutional arrangements (and the potential reduction of their more radical scope in the process). Second, the focus on women’s groups does not address the fact that women have been marginalised as a whole from political power. The ultimate ­powerbrokers – reinforced by UNMIK engagement – remain men and leaders of conservative ethnicised community categories. It is therefore insufficient to recognise the importance of women’s groups as positive agents of human rights without simultaneously addressing the structural constraints that have limited their potential (a point I will return to later in this chapter). The report – in a move away from AI’s traditional focus on civil and political rights – includes a section on economic and social rights (namely right to work, discrimination in health care and lack of access to education). All of these point to significant underlying problems (including issues such as lack of transport to access schools and clinics) that affect the lives of minorities in Kosovo. However, the ultimate recommendations simply lead back to the enforcement of anti-discrimination legislation and redress for those whose rights have been violated (2004a, p.11). This seems to once again reinforce the argument (set out in Part 1 of the book) that the apparent desire of human rights actors to deal with ‘root causes’ ultimately fails to move beyond the most superficial of responses: mostly associated with redress after the fact rather than imagining more positive enabling conditions. On the issue of returnees, the report details the difficulties and dangers associated with minorities returning to their old homes and villages (2003a, pp.11–12),

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Kosovo: The narrative of ‘ancient ethnic hatreds’  79 reporting that many ‘have been attacked’. But again no deeper analysis of who is doing the attacking (other than ‘local Albanians’) and why is undertaken. In the final section of the report, dedicated to ‘Recommendations’ (2003a, pp.14–15), they follow a similar standard format to other reports, although this time, rather than being directed at each stakeholder, they are thematised: ‘Measures to end impunity’; ‘Freedom of movement and freedom from discrimination’; ‘Enjoyment of social and economic rights’; and ‘The right to a safe and sustainable return’ (2003a, pp.14–15). Under each heading recommendations are made to UNMIK, the international community and the Kosovo Assembly. This is unsurprising given that the identification of macro-­political causes continues to lead to solutions being also seen to come only from topdown institutional sources. This in turn contributes to the ‘governance’ focus of human rights and precludes – at least officially – a more nuanced and diverse vision of human rights and its practice. AI’s approach can be justified for a number of reasons: the lack of in-depth understanding of local factors (as also evidenced in the HRW report discussed above), the desire not to appear to ‘take sides’ in the local political solution, and the role of organisations like AI and HRW as self-appointed watchdogs of the state. However, within a context that privileges these organisations as sources of knowledge of the conflict, its causes, consequences and possible solutions, this very macro focus allows little scope for recognition of both existing and possible lower-level responses and processes of change (a point I will return to in Chapter 6). It also seems to substantiate the critique of the human rights field – both in terms of practitioners and the academy – that has narrowed the scope of ‘legitimate voices’ or at least voices we can hear and listen to. Meanwhile, in the section entitled ‘Conclusions and Recommendations’ (2003b, p.46), the report states: ‘Amnesty International recognizes the dilemma faced by UNMIK in reconciling the international community’s long-term aspirations towards a multi-ethnic Kosovo with the immediate need to provide . . . realization of the basic rights’ (2003b, p.46). As with the HRW report, the question emerges: should what the international community wants be a factor? What if this is not what the Kosovar population wants? Is this democracy? Again, in this model democracy is a set of institutions and frameworks (pre-decided by outside ‘experts’) rather than a practice of empowerment: the distinction between ‘police’ and ‘politics’ that Rancière (1999) describes in Disagreement (mentioned in Chapter 3 and discussed further in Chapter 9). And indeed there is a sense in which the ‘unwashed masses’ lamented as polluting democracy (through their ignorance and lack of responsibility) that Rancière (2006) critiques in Western elitist accounts of the current crisis of the political are amplified to encompass the total local population in sites such as Kosovo. The concession to the ‘dilemma faced by UNMIK’ also perhaps unwittingly assists with the self-representation of the international community bravely battling the backward locals (described above). In conclusion, the combination of an international administration deeply invested in its own biases and hierarchies, largely populated by individuals

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80  The case studies with only a very superficial understanding of Kosovo, its history, politics and society, and an engagement strategy that relied on local actors who perpetuated strong ethno-nationalist messages rendered the situation in Kosovo a self-fulfilling prophesy. In many ways Kosovo provides an ideal example of the tensions between what Upendra Baxi has described as ‘politics of human rights’ and ‘politics for human rights’ (2012, p.276).20 The institution-building agenda may have both sustained technocrats within the human rights industry and reinforced order back home for intervening states. It has, however, done little to boost the assertion that the emergence of human rights as a global political discourse is a positive development. It has also done little to address the social justice needs and demands of Kosovars, suggesting other approaches require exploration. It is to this that the final part of this chapter now turns.

The politics of everyday life Writing about challenging the culture of traumatisation in Bosnia, Jasmina Husanović has urged for a shift in focus, ‘in search of new coordinates of universal politics’ (2011, p.66). In particular she sees the recognition and bringing together ‘in critical solidarity’ of various forms of social activism, cultural, artistic and knowledge production that seek to challenge exclusionary logics and assert equality as key to building an emancipatory politics. She contrasts this with, ‘the aseptic liberal management of effect in white gloves and in the name of human rights’ (p.66) and the depoliticisation of questions of identity, memory and belonging through bureaucratic techniques of governance. It is with this call in mind that the final part of this chapter turns from the macro-politics of state building in Kosovo towards the micro-political practices of everyday life performed by various progressive elements within Kosovar civil society. In doing this, I do not wish to construct an authoritative counter-narrative to that of the hegemonic ‘ancient ethnic hatreds’ detailed above. Rather, I seek to point to alternative discourses and practices that might add complexity to the picture of post-conflict Kosovo. As Rancière explains, this is not so much about overturning institutional arrangements as, ‘working to introduce new subjects and heterogenous objects into the field of perception . . . reorienting general perceptual space and disrupting forms of belonging’ (cited in Husanović, 2011, p.63). And to this I would add, disrupting existing forms of knowing. With Husanović, I share a concern with how we effectively challenge the, ‘[r]educing of politics to administration, pathologising communities and failing to condemn, delegitimize or overthrow violence the very foundations and conditions society’, as well as a suspicion of what she terms, ‘a treacherous concept of “national kinship”’, which has, ‘suffused the international paradigm of transitional justice, including the production of “expert knowledge” in the sphere of “rule of law”’ (2014, p.153). I will start with an anecdote. During my brief visit to Kosovo in April 2006 my colleague and I were invited to a party by some young LGBT21 activists. Unsure we were in the right place, we ventured tentatively up the pitch-black staircase of a derelict building near the UN administrative headquarters. As we

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Kosovo: The narrative of ‘ancient ethnic hatreds’  81 approached the top floor we heard the music, and the faint glow of candles and gyrating bodies greeted us as we entered the tightly packed apartment. Aside from the warm welcome we received, I was struck by the diversity in the room: I was introduced to young gay men who had travelled all the way from Skopje in neighbouring Macedonia for the event as well as to – so she declared – the only Roma transsexual in the Balkans, who proceeded to induct me into the art of Balkan bellydancing. Regardless of other markers of difference and internal divisions, one thing was clear in this party: a sense of unity in the shared experience of discrimination. When I asked our hosts if it was difficult to bring together Serbs, Albanians, Macedonians and Roma, they laughed. ‘Why?’ they asked; ‘it doesn’t matter if the Serbs or the Albanians are in power, we still get beaten up for being fags!’ In fact the lived realities of Kosovar residents are much more complex than that of traditional ethnic communities, Western-inspired liberals, and the battle between an endorsement of the international community’s discourse of peace, democracy and human rights and the local preference for ethno-nationalist exclusion. Yet it was precisely this complexity that was not only not engaged with but rendered invisible by international engagements in the name of human rights. To cite a negative example, of the war crimes cases that were conducted a number involved mixed Serb and Albanian groups terrorising, robbing and attacking civilians.22 These incidents are all but written out of the official accounts of the conflict in Kosovo through the blind adherence to the ethnic hatreds narrative of many international actors. It is for this reason that respected newspaper editor, intellectual and political figure Veton Surroi’s novel published in 2005, provides an important alternate perspective.

Azem Berisha’s One and Only Flight to the Castle Set in the present and written as the negotiations regarding Kosovo’s final status were taking place, Surroi’s book provides a powerful and sensitive layer of nuance to the international accounts of wartime and post-war Kosovo. Paralleling the story of the international settlement negotiations with snapshots of ordinary Kosovars’ lives, Surroi complicates the easily reproduced narrative of ‘ancient ethnic hatreds’. Through the parallel stories of different Kosovar residents – in particular the tragic figure of Azem Berisha – and of those involved in the negotiation processes of 1999 and 2006, Surroi’s novel provides a rare glimpse at the complexity often lost in geopolitical accounts of conflict and post-conflict Kosovo. While the negotiations are characterised by intransigent and polarised positions on all sides, the ordinary Kosovars we are introduced to live a much more fluid and complex form of identity. For example, we are told of Rajko the Gambler, who is concerned with how he will get his brother’s body to the Serb cemetery that lies next to a military base without being targeted in a NATO bombing. Rajko is a rascal who taught the Albanian Poker Kemë to gamble, but as he was also responsible during the war for transporting Kemë and his family to safety in Macedonia by car, Poker

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82  The case studies Kemë’s father forgives Rajko and stays with him throughout the day of his brother’s wake (2005, pp.16–17). The funeral procession is interrupted by the intrusion of a soldier, blown up in a NATO bombardment and smattered on the asphalt in front of the mourners, ‘the top of his skull breaking open with his brains dispersing irregularly’ (2005, p.25). This does not prevent the funeral, which proceeds, ‘[a]ccording to Serb custom’ with rakija and mezé at the cemetery. But the image of the soldier haunts Rajko who exclaims, ‘“Oh God”’, ‘while he was conducting the Albanian style custom of condolences at home with Poker Kemë’s father and uncle Sadik’ (2005, p.25). After the war, Rajko remains, the only Serb left in town: I am not referring to those working in UNMIK, but to ordinary people, like me. I saw them all leave. Those who stained their hands with blood needed no escort, they left even before NATO came in. Afterwards, those who had been connected to the government packed up and left. And then, those who thought that Serbs have the right to rule over Albanians, left. And then, those who had offended the Albanians, left. And then those who had not done a thing, but could not speak Albanian. And then those that couldn’t bear the fear, the stories on persecution, and the sole idea that armed Albanians could come into their houses and kill them. And now I remain here alone, because I don’t belong to any of those groups. (2005, p.74) Rajko is protected by Albanians because, ‘[a]ll knew me, and all knew that Rajko hadn’t harmed anyone’ (2005, p.73), but he too is eventually forced to leave under the threat of having his home burnt down by some boys: The next day I called Poker Kemë, his father, uncle Sadik and the doctor; we found a buyer for the house, we bargained, I ordered a lamb and we took it to Martinaj’s bakery, near the mosque, and we started drinking, got dead drunk and began singing, as we used to do in every party. If they have to see me off then let’s do it properly, I said! (2005, p.75) Meanwhile Ahmet the Dancer remains an enigma: too white for his Roma origins, he transforms for each performance – sometimes Turk, sometimes ‘Gjilan Serb’, sometimes Albanian. Following the suspension of his dance ensemble by the Serb military in 1990, Ahmet returns to his father’s trade and becomes a tinsmith until one day in May 1999 when two Serb policeman come to arrest him and demand money: ‘I am not Albanian’, he said. ‘I am Roma and I have no German Marks’. This leads to him being beaten and dumped on the railway tracks, with the policeman’s voice ringing in his damaged ears: ‘You should be ashamed of yourself claiming you are a gypsy – just so you can save your ass! So this is how brave you Albanians are, where is NATO now?’ The voice of the Serb woman, a neighbor on the second street up to the right: ‘Let the gypsy go, what has he done to you?’ (2005, pp.21–22)

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Kosovo: The narrative of ‘ancient ethnic hatreds’  83 Ultimately Ahmet finds himself transported across the border into Albania in the trunk of an Albanian family’s car, ‘a man with no ethnicity and two days later, he would have no country either’ (2005, p.26). And then there is the story of Azem Berisha, a Kosovar Albanian who returns to Kosovo after working for many years in Germany, and cannot decide whether or not to join the war. As a result he is the last left in his family home, living out his final days waiting for news of his son. This wait is complicated by the uncertainty Azem feels about whom he can and should trust. The last time he sees his son it is with Stanisa’s son Marko, dressed in a Serb police uniform: ‘[T]hey’ve dressed all of us Serbs, uncle Azem, there is nothing we can do’ (2005, p.23). Marko promises to take his son to safety, perhaps to prison, a place Azem believes will keep him safe until the end of the war. When the war ends and his son does not return, he begins to doubt: ‘[D]idn’t they have more important people in prisons; who the hell needed the son of Azem Berisha, farmer, former construction worker in Germany and voluntary contributor of the three-percent23 for the Republic of Kosova?’ (2005, p.114). Nonetheless he pays different lawyers who claim they have located his son in secret prisons and can negotiate to have him released – a futile exercise, as pointed out to him by Rajko, who at this stage is running a café in Nĭs that had, ‘become something like a Kosova consulate’ (2005, p.71): ‘Rajko was telling him that they wanted to deceive him, that these attorneys don’t even have the slightest idea of Albanians taken hostage during the war, but didn’t have the heart to tell him that all of them had been killed by now’ (2005, p.73). Finally Azem spends his days visiting tents of bones dug up from mass graves, where he is told by the Chairman of the Association of Family Members of the Missing: ‘“Don’t worry Azem . . . Kismet, your son’s bones will come too”’, a statement against which he silently rages: He remained silent on the way from the border to home, swallowing the Don’tworryAzemKismetyourson’sboneswillcometoo, Don’tworryAzemKismetyourson’sboneswillcometoo Don’tworryAzemKismetyourson’sboneswillcometoo, exclaimed by the Chairman of the Association, himself a man who hadn’t found his family members either. Kismet what, Mr Chairman, he wanted to ask him, what Kismet is it to have the bones return when I have lived the past seven years hoping to see my son, now 23, and almost set to be married? What Kismet is it to come and express condolences when there is nothing for me to even put in the grave? What Kismet is it to walk down the village and hear people say that they are sorry for Azem Berisha, instead of saying Azem Berisha should be proud of his son? (2005, p.113) Without avoiding the realities of inter-communal violence, victimisation of all sides, and the horrific wounds and trauma left by both Serb occupation and the period of armed conflict, these stories present nuanced and complex identities and relationships. In this sense they illustrate Isa Blumi’s argument that,

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closer inspection reveals important nuances to . . . assumed sectarian and ethnic cleavages and the nature of resistance to Belgrade’s colonialism. Rural populations traded with their ‘ontological others’ (Serbs, Bosniaks, Gorans and Roma); they often lived in the same village and even prayed at the same holy site. (Blumi, 2003, p.224) It is this that is both ignored and erased by the international community’s fixation on ethnic identity categories: the stories of the real life Rajkos, Ahmets and Azems. This makes Surroi’s book all the more important for recording a history that otherwise risks being lost in the hegemonic narrative of ‘ancient ethnic hatreds’. Added to this, the unnamed narrator who speaks to one of the members of the negotiation team, Aarto, introduces both histories and imagined futures in which the apparently impenetrable walls of difference give way to a reality of mixedness and peace. His following comment as he concludes Aarto’s imagined tour of Albania with the story of the expulsions that took place in Kosovo in 1999 is telling: ‘In 1999, starting on 24 March and until the summer of that year, Milosevic’s army had managed to do what the Albanian renaissance activists, nationalists after WWI, nationalists and communists after WWII, could not. It made the feeling of Albanianism grow’ (2005, p.110). What is clear from this statement is the belief that it is not ancient hatreds that have created such a polarised ethnicised society in contemporary Kosovo but much more recent events. It also seems to support Blumi’s argument that historically the nature of resistance in Kosovo has been distinctively local but not motivated by ethnic nationalism (2003, pp.223–224). This divisive present is to be contrasted with the Albania the unnamed narrator describes: ‘Listen to the Mediterranean under a kaki-tree: you will hear the song of a muezzin; the Christian Orthodox choir and the sounds of an organ coming from the Catholic Church. All of them are Albanian, and all of them respect the religion of the other – an organic structural cosmopolitanism’ (2005, p.107). Moreover this ‘organic structural cosmopolitanism’ of Albanian society is contrasted with the project under construction in contemporary Europe: ‘You see, what we’re achieving or wish to achieve as the world today, as Europe today, Albanians have built inside throughout hundreds of years; we are structurally cosmopolitan, we acknowledge our internal cultural variety. Isn’t this marvelous?’ (2005, p.107). This statement is interesting for disrupting not only the dominant narrative of intractable, ancient ethnic hatred but also the assumed teleological superiority of Europe (as the deliverer of values such as multiculturalism) that has informed so much of the international community’s engagement with Kosovo. This is also important to juxtapose against the INGO reports, which compare Kosovo with some form of idealised multicultural democracy rather than acknowledging the similarity to existing situations within many European nations struggling to come to terms with ethnic diversity. What this also urges us to recognise is that the failure of current policies may have as much to do with the flawed basis of liberal multicultural democratic institution building – something that, as I dealt with in the section on INGO reports, is beyond the recognition of even the most

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critical human rights report (which ultimately still returns to consolidating the existing system). The book is also damning of Kosovo Albanian political elites engaged in the negotiations. They are portrayed as self-interested and just as committed to winning against each other as against the Serbs: According to Prussian military strategist Carl Von Clausewitz’s theory, war is the extension of politics by other means. To the Kosovars, the negotiations are an extension of their mutual war, by other means. They wish to come out from these negotiations, individually, as winners, preferably defeating both the Serbs and their Kosovar rivals. (2005, p.136) These elites are contrasted with the ordinary Kosovar characters in the book: an important distinction when considering how the INGO reports have tended to treat the ‘Kosovo community’ with a focus on only elite political responses to violence and the construction of one homogenous mass of the ‘Ethnic Albanian crowd’. Due to the ambiguity of the voice at various stages of the novel, it can be hard to identify a clear message or position in the book. Instead, we are given many different perspectives, which run alongside each other, sometimes in complementary and sometimes in contradictory ways. It is this that also makes the text all the more important, highlighting the lack of clear solution and the need for processes that can cope with disagreement, conflict and uncertainty. It also emphasises the diversity within any site: a reality that is all too often flattened by the international desire for a simplified ‘local’ with which to engage, demonstrated in both this chapter and the next. The book concludes on a hopeful note: ‘Respected Mr. Ahtisaari, [the author] said. I cannot change the past. Another brave Albanian can be included in the songs, how he is fighting for the liberation of Kosova, another monastery, icon or fresco could also be included to prove that Kosova is the Serb Jerusalem, but the past is past. But, we can change the future, can’t we?’ (2005, p.157). By focusing on the future, Surroi opens up the possibility for moving beyond not only the existing stalemate but also the discourse of ‘ancient ethnic hatreds’ that has been used by both local and international actors to justify the status quo. And it is in this sense that the final text with which I will engage provides an important contribution: through the proposition of emergent sites of alternate modes of living, interacting and relating.

History is Herstory Too As I mentioned in the introduction to this chapter, an important feature of 1990s Kosovo was the role played by women in developing and maintaining parallel institutions to the official Serb-dominated channels. For example, Lesley Abdela cites Luleta Pula, leader of a social democratic party and former head of the 60,000 women-strong wing of the LDK, describing how women were heavily involved in the parallel institutions, running ‘underground’ municipalities

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86  The case studies and judiciaries. Women also acted as language assistants and advisers to the OSCE verification mission prior to the NATO bombing (2003, p.211). At the same time, it has been repeatedly noted that in the post-war period in Kosovo women have often been sidelined: treated as merely ‘mothers’ of future political actors (Krasniqi, 2007) or as passive victims of the violence and patriarchal order (Del Zotto, 2002, p.149). Much has already been written on the Orientalist/ising narratives that accompanied some of the international criminal justice responses to sexual violence committed in the various Yugoslav wars (Engle, 2005; Grewal, 2015). With the conflict understood in ethnic terms – and ‘legitimate leaders’ sought to represent the ‘community’ – the reinforcement of patriarchal order became inevitable. This is also a problem that emerged in Sierra Leone, as the next chapter describes. However, an examination of the forms of women’s activism in Kosovo during both the 1990s and the early 2000s shows the diversity of identities and political struggles being fought in Kosovo beyond ethnic lines and the alternate possibilities for inter-ethnic engagements. In 2008, local NGO the Kosovar Gender Studies Centre (KGSC) produced a book that set out to document the history of women in civil society in Kosovo from 1980 until 2004. Through interviews with 213 Kosovar women activists, across the different ethnic communities, surveys of 215 women-led NGOs, as well as case studies of a number of the organisations, the book provides a detailed account of women’s experiences and memories of organising across a range of topics from the independence and passive resistance movements to war-time and refugee issues, post-war reconstruction and reconciliation, and women’s involvement in political decision making, media, education, health, disability, violence and the economy. What is produced is an incredibly rich source that complicates any simplistic image of the role of women or women’s activism in Kosovo. For the purposes of my argument I will concentrate on only one aspect of this account: the responses and roles of women in mediating the ethnic divide. In doing this I seek once again not to produce an alternate definitive account but rather to highlight the often uncelebrated and potentially productive spaces and practices that challenge the account of Kosovo as a site mired in destructive, irreconcilable ethnic hatreds. For example, a notable supplement to the INGO accounts of the March 2004 violence, History is Herstory Too, documents the response of local activists to the riots: More than fifty NGOs, including many women activists, gathered at the Grand Hotel in Prishtina a few days later to formulate a public statement condemning the violence. Individual NGOs sent statements and appeals to the media and over the internet. On 26 March, the Kosovo Women’s Lobby sent a letter to the United Nations Security Council, proposing ways UNMIK could best address the violence. Others tried to provide humanitarian aid or support to the people who had been displaced from their homes. (KGSC, 2008, p.235)

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While the book goes on to document Serb activists’ disappointment on the basis that the response was still inadequate, the fact that there was this resistance to the violence is a marked omission from the international reports. Not only does this unfairly construct an image of the Albanian population as uniformly antiminorities (and potentially violently so), it also fails to highlight the hope that nonetheless emerged for some and that fuelled local activism and relationship building. For example, Nevenka Rikalo remarked: [W]hen my house was set on fire and I lost my home, [Kosovo Albanian feminist leaders] Sevdije Ahmeti and Igballe Rogova called me to see how I was doing. Despite everything they experienced and what we experienced, they called to tell me that they condemned radical groups and the violence. That awakened a hope in me that there are some people, some women, who want to live together with others in Kosovo. (KGSC, 2008, p.236). As with the characters in Surroi’s book, these instances in which the dominant violence and hatred is met with compassion and solidarity deserve recognition in their own right but also point to possibly the only realistic ways in which genuine peaceful, democratic and human rights respecting polities and societies can be fostered. And yet it is precisely these encounters and incidents that have been missing from most accounts of Kosovo, including those of international human rights advocates. Furthermore, the international community’s exclusion of women from decisionmaking roles and processes missed an important space in which multi-ethnic interactions and relationship building were in fact already taking place. As Serb feminist Radmila Kapetanović told the KGSC: ‘[Kosovo women] were the first to go to joint meetings. They were the first to work on multi-ethnic actions and multi-ethnic projects. I know how many men were involved; not so many . . . . Kosovo women NGOs are very active and they work a lot on . . . confidence-building, tolerancebuilding, and real peace-building’ (2008, p.240, edits in original). Although the relationship between women from different communities was sometimes tense and lacking in trust – a situation exacerbated by events like the March 2004 violence – the desire to imagine a pluri-ethnic joint community was nonetheless more strongly asserted than among any of the ‘leaders’ focused upon by the international community. It also produced more tangible outcomes, as the KGSC concludes. Referring to a joint political statement issued by Albanian and Serb women at a Women’s Peace Coalition conference, the KGSC writes: It went to show internationals and the official processes in which women in general had been ignored that people, in this case women, from Kosovo and Serbia could agree. It was not a result of a well-endowed inter-ethnic project supported by an international organization, though UNIFEM financed Serb and Albanian women’s initiative [sic]. It was not because foreign diplomats forced them into a room together with carrots and sticks. It was not because United Nations Chief Negotiator for Kosovo’s final status talks Martti

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Ahtisaari had asked it of them . . . . Women had taken this initiative toward peace independently and succeeded in coming to an agreement. ‘There is more connecting us than dividing us’, [Staša] Zajević [coordinator of Women in Black, Serbia] said in her concluding remarks. ‘We should continue to work on building bridges’. (KGSC, 2008, p.241) By failing to engage women as key political actors, not only did UNMIK reinforce (international and local) patriarchy, it lost a vital source for achieving its stated aim of a peaceful multi-ethnic society.

Conclusion David Chandler, in responding to the construction of the Kosovo war as a victory for human rights, writes: ‘the agency empowered by human rights claims was not Kosovo victims so much as NATO powers who claimed the right of intervention without UN Security Council permission’ (2006, p.116). As noted in Part 1 of this book, the question of how human rights are actually invoked and acted upon in practice is all too often excluded from celebratory accounts of human rights as tools of redress for victims. Yet as the case of Kosovo illustrates, this is a crucial component of evaluating whether the prominence of human rights in the contemporary socio-political arena can in fact be seen as a progressive development. In the case of Kosovo I have argued that the narrative of an ‘enlightened’, ethically motivated international community seeking valiantly to bring democracy, human rights and ‘rule of law’ to a chaotic, tribal, violent local setting trapped within ‘ancient ethnic hatreds’ not only formed the basis for justifying intervention but continued to inform the very structure of international responses. This had the effect of disavowing links between social problems within Kosovo and within many of the states responsible for overseeing it. Instead, the terrible violence, hatred and division of Kosovo provided a means of reasserting the stability, peace and democracy ‘back home’. Meanwhile the very understanding of both the problems and the potential avenues for future resolution was so shaped by the assumptions of a tribal, parochial local that it further legitimised the most conservative voices as representative of Kosovar society and made it impossible for the international community even to see diversity among local actors. The site of intervention was constructed as a tabula rasa – populated, as various critical scholars have argued, with ‘savages’ (Mutua, 2001, 2002) and ‘victims’ (Zarkov, 2014; Mutua, 2001, 2002) – to which human rights and democracy must be brought. In both the case of Kosovo and that of Sierra Leone (as the next chapter will show), this both masked the conservative and anti-democratic aspects of the international and erased local progressive actors and trends. Not only does this contribute to a misleading picture of how international human rights can and cannot be useful in post-conflict/post-atrocity states, it also makes any real change impossible. Meanwhile the assertion of the ‘international community’ as the bearer of human rights and democracy served to render it virtually impossible to critically

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Kosovo: The narrative of ‘ancient ethnic hatreds’  89 analyse the actual human rights and democratic practices of this international community in action. They were often taken at face value to be well intentioned even as they produced undemocratic outcomes or even violated human rights. I see this as the result of the uncritical endorsement of the international as the site of enlightened values in both practitioner and scholarly literature on human rights (discussed in Chapter 3) and reinforced by international human rights organisations’ discourses. In this chapter this assumption has hopefully been called into question when juxtaposed against the actual actions, discourses and practices of international actors. Added to this, it is also important to critically analyse the apparently inherently progressive content of international discourses: an issue to which the next chapter will turn.

Notes 1 The UN Mission in Kosovo is often compared with the UN Mission in Cambodia (UNTAC), which reflected the first of the new, more comprehensive peacekeeping missions incorporating civilian administration and humanitarian operations alongside military aspects. However, UNMIK in fact had an even wider-reaching mandate than its Cambodian counterpart as it was charged with the total administration and governance of Kosovo. 2 It has been well documented that during this period Albanian judges, prosecutors and police officers were either fired or forced to resign, more than 85,000 Albanians were fired from various public sector positions and government-owned corporations, and Albanians were routinely subjected to ethnically or politically motivated sear­ ches, arrests, detentions, trials, violence and coercion (Nikolić, 2003, p.64; Amnesty International, 1999). 3 The Ushtria Çlirimtare e Kosovës, known in English as the Kosovo Liberation Army. 4 Officially a non-profit policy think tank, the RAND Corporation was founded by Douglas Aircraft Company to provide expert advice to the US Armed Forces. It has since expanded its scope both in terms of focus and geographical areas: http://www. rand.org/about.html [accessed 1 July 2015]. 5 Interview with author, Prishtina, 7 April 2006. 6 For a more detailed survey of this issue and the accountability structures in Kosovo during UNMIK’s administration see AI (2008). 7 The Organisation for Security and Cooperation in Europe. 8 Legal Systems Monitoring Section, 2002, p.41. 9 Much of this is documented in the 2008 Amnesty International report Kosovo (Serbia): The Challenge to Fix a Failed UN Justice System. 10 For examples see Amnesty International (2004b). 11 UNMIK v Martin Almer, Feriz Thaqi and Isa Ulluri, Case P128/2003, Orahovac Municipal Court, 7 October 2003. The case was also documented by Amnesty International (2004b, p.18). 12 See Orford (2003, pp.88, 141–142 and 164–165) for some examples. 13 See Grewal (forthcoming b) for a detailed discussion of this in the context of France and Australia. 14 This is significant given that Serbs make up approximately 5 per cent of the Kosovar population and the remaining 5 per cent is made up of Roma, Ashkali, Egyptians, Turks, Bosnians and Gorans. However, these latter groups are rarely treated as important by international initiatives: KGSC (2008, p.237). 15 For example, this was the explanation I was given by the head of the UNMIK Victims Advocacy and Assistance Unit for why there had been virtually no prosecutions of

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17 18 19

20

2 1 22

23

sexual violence committed during the war. She asserted that Kosovar women were simply unwilling to come forward and speak about such things due to the overwhelming culture of shame. While no doubt this does exist in Kosovo (as elsewhere), she was at a loss to explain why women had in fact been active in engaging with earlier international investigative teams including NATO troops arriving in 1999. The case involved charges laid by a Serbian court against former KLA commander Anton Lekaj for war crimes committed against a number of Roma civilians. For more details see Amnesty International (2006, pp.14–15). Ron, Ramos and Rodgers (2005) document the status of both these organisations but particularly Amnesty International as ‘authoritative’ sources and major players in the international geopolitical scene. The Provisional Institutions of Government made up of Kosovar representatives and tasked with administration alongside (under) UNMIK. An easy example (albeit one that occurred after the March 2004 violence in Kosovo) is that of the 2005 Cronulla Riots that occurred in Sydney Australia, which similarly targeted members of minority communities (in this case those identified as potentially ‘Middle Eastern’) and which met with a similarly equivocal response from national political leaders. In explaining the distinction, Baxi writes: ‘if the former [politics of human rights] inexhaustibly directs energies towards the maintenance and replenishment of the ends of power and domination, the latter presents itself as practices and forms of transformative politics for dignity and justice for all humans everywhere’ (2012, p.276). Lesbian, Gay, Bisexual, Transgender. For example, in 2000 Albanian Lulzim Ademi was tried in the Mitrovica District Court for war crimes against Albanian civilians, including murder, looting and forced expulsions as part of a mixed Albanian–Serb paramilitary group (Interim Administration of Kosovo v Lulzim Ademi, Case P. No. 29/99, Mitrovica District Court, 30 August 2000). This was the tax levied on diaspora Kosovars that funded the parallel institutions run by Kosovar civil society throughout the 1990s.

5 International legal institutions

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Site of empowerment or further marginalisation? The example of the Special Court for Sierra Leone

Introduction The previous chapter examined one example of institutionalised human rights: namely the development of humanitarian intervention and governance. In this chapter I explore another major example of human rights institutionalisation: that of international criminal justice institutions. In 2002 a special internationalised court was established through an agreement between the international community and the government of Sierra Leone to try ‘those most responsible’ for atrocities committed during the 10-year armed conflict that raged in the West African nation throughout the 1990s. The Special Court for Sierra Leone (SCSL) was an example of an international trend that started in the 1990s, heralded by many as marking a new era of accountability for human rights violations and a victory for the human rights movement (Goldstone, 1997; McDonald, 2000; Schabas, 2001; Stromseth, 2003; Eaton, 2004, p.904).1 But how has this institutional development impacted on the ability of human rights to deliver on its promises? Is the establishment of criminal justice institutions an example of human rights becoming a more powerful global regulator and, if so, is this a positive development? Do these institutions open up a new space for marginalised voices to speak ‘truth to power’ or are they simply further evidence of the colonisation of law? This chapter seeks to provide some tentative responses to these questions. By exploring how the SCSL operated and how local human rights activists engaged with this institution, this chapter renders visible both the oppressive power of international law and the potential for agency (albeit constrained). At the same time, by focusing on the SCSL’s prosecution of the crime of ‘forced marriage’ and its relationship to practices of customary marriage in Sierra Leone, the SCSL provides a useful site for exploring the culture versus rights debates discussed in Chapter 1.

Background: the Special Court for Sierra Leone (SCSL) It is imperative that the victims of those international crimes see justice done before their very eyes. After all, a tribunal is for and about the victims, their families, as well as their town and districts. (Crane, 2006, p.1684)

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92  The case studies The SCSL was first proposed in August 2000 following a request to the UN by the Sierra Leonean government as Sierra Leone’s decade-long civil war finally drew to an end. The original peace agreement – the Lomé Agreement – signed in July 1999 had contained an amnesty provision and had named a Truth and Reconciliation Commission (TRC) as the preferred model for redress post conflict.2 However, the rebel faction, the Revolutionary United Forces (RUF), failed to abide by many of the conditions of the Lomé Agreement and fighting continued throughout 2000. A particularly embarrassing incident occurred in May 2000, when the UN Assistance Mission in Sierra Leone (UNAMSIL) was attacked, 11 peacekeepers were killed and 352 members abducted. Following this, a much tougher stance was taken by both the Sierra Leonean government and the international community and a number of RUF leaders were arrested and imprisoned. In November 2000 a ceasefire was finally signed between the RUF and the Sierra Leonean government and plans began for the establishment of a ‘special court’.3 While, as noted above, the SCSL reflected the 1990s move towards criminal justice institutions as a key part of the human rights framework, unlike the ICTY and ICTR, it was not a solely international enterprise. Instead, it was set up as a joint institution between the UN and the Sierra Leonean government and was located in-country. This reflected a shift in UN thinking with both the financial and jurisdictional concerns of the ad hoc tribunals weighing heavily on the international community’s mind.4 But it also reflected a belief in the importance of such institutions contributing more concretely not just to redressing the past, but also to ensuring the long-term development of human rights and the rule of law in the country of intervention (Annan, 2004; Barria and Roper, 2005; OHCHR, 2008). As with the International Judges and Prosecutors Programme in Kosovo (mentioned in the previous chapter), it was argued that the SCSL was to be not only a necessary measure to address past crimes but also a model for future justice sector development where the system had been virtually destroyed and was riddled with corruption and inefficiency (Annan, 2000, para. 7; ICTJ, 2002; Barria and Roper, 2005, pp.23–24; Sriram, 2006, p.498; Cassese, 2006; Arzt, 2006, pp.228–229; McAuliffe, 2008, p.383). Its location in-country and the heavy emphasis placed in the early days on outreach, were also identified as key features necessary to enhancing the peace process and building a human rights respecting post-war society. It was also not just the general contribution to human rights that made the SCSL notable. Alongside the first prosecutions for recruiting child soldiers, early expressions by the Chief Prosecutor of commitment to gender-based and sexual violence were particularly celebrated in a country where violence had been a major blight on women’s lives before, during and after the conflict. Human rights and women’s rights organisations and scholars alike praised the public statements made by the first Chief Prosecutor that he would be making gender crimes the ‘cornerstone’ of his prosecution strategy (Damgaard, 2004, p.492; AI, 2005; Nowrojee, 2005; Park, 2006; McAuliffe, 2008, p.383; Oosterveld, 2009, pp.77–78).

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International law and women’s rights in Sierra Leone  93 In this sense the SCSL was identified as holding positive potential not only in terms of accountability for human rights violations but also for empowerment of victims. For example, Shana Eaton proclaimed in her article on the SCSL and its potential contribution to addressing impunity for rape: ‘These charges [for crimes of sexual violence] mark a turning point for the women of Sierra Leone, who are gaining both a measure of control over their bodies and a chance to assert control over their own lives through prosecution of such crimes’ (Eaton, 2004, p.908). For Eaton, international criminal tribunals offer the opportunity to give, ‘those at the periphery a voice’, which then allows them, ‘to move to the center of a dialogue about their own status’. She therefore concluded: ‘By taking part in a tribunal, women, even those who have been victimized[,] are able to assert control and use that control to lift the “veil of silence” that surrounds sexual violence, thus putting their own experience on the international agenda’ (Eaton, 2004, p.905). This has been a common assertion among advocates of international criminal justice (see Chapter 2). For these proponents from the human rights community, these institutions provide an important means of by-passing the corrupted local justice system and replacing it with a space in which human rights principles are properly enshrined and respected. In contrast to the political processes of conflict resolution and peacebuilding, where local elites dominate, international criminal trials are represented as providing a space for the marginalised and victimised to voice their grievances and receive acknowledgment and (perhaps) redress (Goldstone, 1996; Mertus, 2004b, p.112). In this sense the decision to prosecute the crime of forced marriage as distinct from sexual slavery was also identified as reflecting a real desire to incorporate victims’ experiences of the violations they suffer into international criminal trials (Muddell, 2007, pp.95–96; Frulli, 2008, p.1041). It is also important to note that these claims were not only made by the international human rights community. Many local human rights activists lobbied hard for both the establishment of the SCSL and for its specific attention to sexual and gender-based violence, including forced marriage. As the local Amnesty International director recalled in 2006, they had been excited and encouraged in the early days of the SCSL, thinking it provided a useful ally in ongoing local struggles to improve women’s rights and access to justice in situations related to marriage, divorce, family violence and inheritance. He specifically named early and coerced arranged marriages in rural areas as a major concern for those working in the field of human rights and women’s rights in Sierra Leone at that time.5 Yet by 2006 he was disillusioned. So what did the SCSL prosecutions contribute to women’s rights in Sierra Leone?

A new era for women’s human rights? The SCSL approach to prosecuting ‘gender crimes’ As noted above, the SCSL presented itself – and was viewed – as a court that reflected the positive impact of the women’s human rights movement on the development of international criminal law. Of the four major cases conducted

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94  The case studies (involving ten defendants),6 three contained extensive charges of sexual and gender-based violence including rape, sexual violence, sexual slavery (explicitly named for the first time) and the newly articulated ‘other inhumane act’ of forced marriage. Greater attention was also paid to ensuring ‘gender sensitivity’ skills among members of the Court Staff, the SCSL developed an extensive ‘Witness and Victim Section’, and there appeared to be genuine political will on the part of the Prosecutor to investigate and include charges of sexual and gender-based violence (Nowrojee, 2005). ‘Gender crimes’ were not the only violations dealt with by the SCSL, nor even its only innovation.7 Moreover, as mentioned above, forced marriage was only one of a number of charges aimed at capturing the gendered experience of the war and the atrocities committed therein. As I, and others, have elaborated upon in other work, the SCSL has in fact been a rich site for exploring how discourses of culture, gender and rights have played out (Grewal, 2012c; Ferme, 2013). However, for the purpose of this chapter I will focus on the forced marriage prosecutions. Also, given the time period of my field research (2006 to 2011), I will deal with the first two cases to prosecute the forced marriage charges: the RUF case and the AFRC case. The charge of ‘forced marriage’ was not in fact in the initial indictments, which did however contain charges of rape, sexual violence, sexual slavery and forced labour. In February 2004 the Prosecution sought to amend the indictments in both the RUF and AFRC cases to include forced marriage under the count of ‘other inhumane act’, with the conduct described to support its inclusion being, ‘[t]he “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”’.8 The Prosecution informed the Court that it did not intend to introduce any new evidence that had not already been shared with the Defence. It simply included a statement by one of the Prosecution investigators stating that in his opinion ‘forced marriage’ better captured the nature of the violation to which some women abducted and held by both RUF and AFRC combatants were subjected. This request was allowed by the Court and the indictments amended on 6 May 2004.9 Aside from calling a number of witnesses to testify about their personal experience as ‘bush wives’, the Prosecution also included an expert witness – Beth Vann from the Reproductive Health Response in Conflict Consortium – on its witness list. However, the Prosecution subsequently decided that Ms Vann’s testimony was not necessary as it did not add to the first-hand testimony being offered. Instead, in May 2005, it sought leave to call an additional witness – Mrs Zainab Bangura – to present an expert opinion on the issue of forced marriage. Mrs Bangura was proposed following discussions with ‘prominent members of Sierra Leone’s civil society and women’s rights community’10 and selected on the basis that, ‘on the sensitive and complex issue of forced marriage, the Trial Chamber would be best served by the testimony of this Sierra Leonean expert who would truly be able to inform the Court of the long-term social, cultural, physical and psychological meanings and consequences of forced marriage’.11

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International law and women’s rights in Sierra Leone  95 As noted above, the decision to include forced marriage as a separate charge was by and large seen as positive: reflecting a desire on the part of the SCSL to properly address the experience of women and girls during the war and offering a space to challenge existing gender inequalities within Sierra Leonean society. Added to this, the decision to draw on the expertise of a local activist seemed to respond to some of the critiques of international interventions (set out in the previous chapter) regarding the tendency to exclude local voices. So what was the practical effect of these initiatives?

Can the subaltern speak in international law? The ‘bush wives’ As outlined in Part 1 of this book and discussed in the previous chapter on Kosovo, a key tension within human rights has been its attempt to distance itself from the legacies of colonialism, even as many of these legacies continue to mark the form and content of human rights discourse. Contributing to this debate, a review of the testimony of ‘bush wives’12 provides an ideal opportunity to explore whether Gayatri Spivak’s (1988) conclusion regarding the inability of subaltern voices to be heard without mediation through dominant discourses (based on her analysis of Indian colonial debates about the practice of sati (widow burning)) is as true of the postcolonial present as it was of the colonial past. Reading the transcripts of the bush wives’ testimony, what is immediately apparent is how constrained the space is for them to retell their stories. They are generally led through a chronological account of when they were abducted, what followed during their capture both in terms of violations committed against them and those they witnessed against others, who they could identify as perpetrators of atrocities and their commanders, places they visited, and then perhaps how they were reunited with families or ‘liberated’ from their rebel ‘husbands’. The focus is on facts – dates, names and places – and little emotion comes through in the transcript except when there are short pauses for witnesses to compose themselves or take a break. Witnesses’ perspectives on being taken as a ‘wife’ A typical example of how the evidence of the witnesses being taken as ‘wives’ was presented through their questioning is as follows: Q: A: Q: A:

After this first day when the rebel raped you, did you see him again? I saw him again; both of us stayed together. . . . Please tell us what you mean that both of you stayed together? Both of us stayed together, we slept together. He took me as his wife and every day we slept together.13

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The involuntary nature of the relationship is then stressed: Q: During the time that you stayed in Sumbuya, did you ever feel that you could leave the rebel with whom you were staying with? A: I never thought about it that I leave him, because I was afraid that if I say I should leave him, he was going to do any other thing to me. I never thought of leaving him.14 . . . Q: The rebel with whom you were living with, the man whom you were sleeping with every night, did he carry a weapon? A: Yes. Q: What kind of weapon? A: He had a gun.15 Beyond this we receive very little information regarding the circumstances and nature of the relationship, why the witnesses use the terminology of ‘wife’ and what they understand that to mean. In the case of Witness ‘TF1-085’, contrary to the Prosecution’s argument, she does say she was subject to a marriage ceremony, which is a little more explanation as to why she considered herself to be a ‘wife’ to her captor. Meanwhile, Witness ‘TF1-314’ is asked, ‘[C]an you explain to the Court how is it that you became his wife?’, to which she replies, ‘Well, after he impregnated me, I was in his house, I was cooking for him and laundered for him. I did everything for him. When night falls, we would have sex’.16 However, for other witnesses they use the term ‘wife’ without seeming to themselves accept the status.17 In the case of Witness ‘TF1-094’ she is never asked for her perspective, simply, ‘Do you know what Andrew [her captor] considered you to be?’, to which she replies, ‘He considered me as his wife’.18 This raises a question regarding whose perspective is taken to be the crucial one within the forced marriage prosecutions and whose interests are served by this separate charge being prosecuted: issues I will return to a little later. The limits of law Meanwhile, a number of witnesses experienced difficulty under cross-examination in relation to being confronted with earlier statements that they had apparently made to Prosecution investigators but which they could not remember or actively denied. What became clear through these discussions was the extent to which many of the women had little idea of what was contained within the interview notes and statements. They were on occasion forced to respond to statements imputed to them on the basis of interviewer’s observations or case notes (thus not even their verbatim statements). This seemed to achieve the opposite to ‘empowering’ or ‘giving voice’ to the individual victims. Instead, what was revealed was a highly mediated process in which the witnesses, after giving their statement or being interviewed, had little control over, or information about, what was presented to the Court on their behalf (described in some detail in the case of

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International law and women’s rights in Sierra Leone  97 Witness ‘TF1-282’19). This is not uncommon, but it does seem to further support the argument that the legal arena in fact provides a highly constrained space for marginalised voices and narratives. While it was stressed from the Bench that the principle of orality was being given primacy in the proceedings,20 the problem went beyond the issue of written statements. There were also repeated problems with witnesses being asked specific dates, months, years, periods of time that highlighted the extremely different ways in which they measured time (or in fact did not measure it). It was also an ongoing difficulty for witnesses who were illiterate and innumerate to be faced with the need to provide specific details in terms of times, dates, names of places. The inability of the law to adequately engage with oral cultures has been well documented in relation to Indigenous populations’ claims for justice in various settler colonial states.21 With this in mind, given the central role assigned to the law within human rights discourse as a site for providing voice, redress and justice to the world’s most disempowered (as outlined in Chapter 2), the significance goes beyond simply the clash of two different traditions. It would seem to support the argument made by critics of the legalisation of human rights that this process ultimately results in the failure of human rights to deliver on any of its emancipatory potential. Instead, it further excludes and marginalises while also maintaining existing hierarchies of power. The experience of cross-examination Similarly one of the surprising aspects of proponents’ emphasis on the international criminal trial as a positive development within human rights and as an empowering site for victims is their inattention to the often highly traumatic nature of cross-examination. The idea that the trial provides a space for the ‘truth’ to emerge fails to acknowledge the highly stylised court procedures that are followed. These are procedures that are not concerned with the well-being of individual victims and witnesses and their need for acknowledgement and redress but which on the contrary often expose them to accusations of lying and to other patronising, humiliating or insensitive treatment. The subsequent attempts by human rights advocates to push for more sensitive and protective court procedures fails to adequately address the more fundamental question of whether the nature of the criminal trial can ever be such that it empowers individual victims. Given that this is a concern frequently expressed by critics of domestic criminal law, it would seem even more relevant in the highly unequal setting of the international criminal trial. The cross-examination of Witness ‘TF1-282’ provides an illustrative example: Q: Madam witness, in your whole life, have people given you money for nothing? A: Yes, people do give money to people for nothing. Q: So on this occasion when you’re talking about, when you received the 160,000 Leones, do you believe that money was given to you for nothing? Madam Witness, have you got an answer for the Court please?

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Presiding Judge: The Witness: Presiding Judge: The Witness:

Witness, did you hear the question? Yes. Did you understand the question? I don’t understand the question.22

This attempt at evasion is met with further questioning by the defence lawyer, who at one stage tells her, ‘You may not find the answer in front of you on the floor. Are you able to help us, please, with why you were given that money?’23 This is followed later in the cross-examination by a similarly sarcastic remark, ‘It may not assist you to look to the right-hand side of the room at this point’,24 and later in response to the witness stating she can’t remember, ‘Again something you don’t remember’.25 These comments contribute to a hierarchical relationship in which the witness is treated as an unruly or recalcitrant child. The lawyer continues with this line of questioning by trying to establish a possible financial motivation for the witness testifying in Court. He does this by leading her through a detailed description of both her Court-provided accommodation and her ordinary dwelling. When the Prosecution objects to this questioning, the defence lawyer provides the following justification: ‘[W]e are in an area of Africa where not everybody has modern conveniences. It may be of assistance to the Trial Chamber when considering certainly the evidence of witnesses whether certain emoluments or improvements in their lives may impact on their willingness to give evidence in this case’.26 He goes on, asking the witness whether her house was made of brick or cement, how many people lived in the house, how many rooms it had and whether there were ‘modern conveniences’, ‘like flush toilet and bathroom with running water?’:27 A: We did not have flush, but we had a toilet. And we had a toilet to wash. But there was – I mean, a tap. Q: When you say you had a washyard, was that inside or outside the house? A: It was behind the house.28 A not uncommon defence strategy, this line of questioning is insulting, suggesting that the witness would be willing to make up a story of rape, abduction and enslavement to access a flushable toilet and running water. But it also forces the witness to recount her modest living conditions, further reinforcing her lowly place within the symbolic hierarchy of the Court. It also reinforces what is already assumed to be known about Africa: this is a place of deprivation and poverty, populated by desperate passive victims. Meanwhile, the primacy of legal actors is reinforced: both as potential protectors of the rights of others (the role adopted by the Prosecution and quite often the judges) and as potential violators (most frequently the role of Defence Counsel). This is further evidenced in an exchange between RUF Defence Counsel and the Bench during the testimony of Witness ‘TF1-064’. As the witness was being led through her evidence by the Prosecutor, one of the defence lawyers objected to

International law and women’s rights in Sierra Leone  99 a question that he believed might lead to evidence of which the Defence had no prior knowledge. This sparked a lengthy debate between the defence lawyers and the judges, a debate from which Defence Counsel repeatedly sought to exclude the witness: . . . could the witness’ earphones be removed while I make this argument? Judge Boutet: Why? . . . Judge Boutet: If the witness was speaking English, you would ask the witness to be excluded from the Court? Mr Brown: Absolutely. . . . Mr Brown: I absolutely would. It has nothing to do with language, it has to do with whether or not the witness should partake of our discourse, any argument I would like to record, any response from the Prosecution and questions of the Court.29

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Mr Brown:

This is then supported by other defence lawyers: Mr Jordash:

. . . I would take it further and request that during any legal argument the witness should not receive translation; one never knows what will influence a witness.30

While perhaps a defensible legal strategy, it raises issues concerning the role and rights of victims within the international trial process. On the one hand, the very reason for holding such trials is often proclaimed to be the possibility of giving victims recognition and redress. On the other, they are highly disempowered and marginalised during the process: reduced to merely following the instructions of lawyers and the Court. Others have pointed to similar tensions in other international trial proceedings (Mertus, 2004b; Dembour and Haslem, 2004; Doak, 2011). The witness in the above exchange is also clearly disturbed by this experience and objects: ‘All these arguments they are doing now, I can’t come all this way from Xxxx [redacted] to come and lie here and something that is bothering me that has happened to me and is hurting and people are saying I did not say that and it hurts me a lot’,31 before she is mollified by the Presiding Judge and urged to continue answering questions. Reliving trauma Another disturbing feature of the trial process and its tight question/answer format is that in the mass of names, places and dates it easily becomes possible to forget that these are the witnesses’ lived experiences. This is a startling outcome when considering the horrific nature of these experiences and the supposedly therapeutic role victims’ participation in processes of ‘truth telling’ is said to play

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100  The case studies (Goldstone, 1996). Yet in my experience as a trial monitor I know that it was a familiar feeling among a number of us who sat in court each day or read through the endless reams of transcripts of victim testimony. Julie Mertus documents a similar phenomenon in the ICTY Foca trial (see also Dembour and Haslam’s (2004) analysis of the Krstic trial transcript). She also notes that this ‘sterilising’ effect of legal discourse is a common complaint made by women who have had to testify about their own experiences of rape or sexual violence in national courts (Mertus, 2004b, pp.113–114; see also Grewal, forthcoming a and b). Occasionally, however, the trauma does surface within the testimony: You’ve just told us that you didn’t tell the story of your rape in the first statement. Judge Thompson: Why? . . . A: There is nobody who does not forget. As a matter of fact, it was not forgetfulness. This was an incident that occurred to me and it was very painful and shameful, so I’m only talking about it now because I have to talk about it, otherwise I wouldn’t like to talk about it. Q: Why did you decide to give the story when you were in the presence of that man [Prosecutor]? A: It had taken a long time and I thought within myself, you know, this is painful so I have to talk about it. When I talk about it, it is shameful, it is disgraceful to me, but it is so painful I have to talk about it, that is why I talked about it.32 Q:



The same witness, when asked if she is able to continue testifying, states: ‘Well I am only doing this because I have to, otherwise I’m really feeling a lot of trouble within because I’m now talking for people who are all dead, and I’m here standing talking about them and talking of them. So, it’s not easy for me’.33 She repeatedly breaks down through her testimony, particularly when speaking of her dead children.34 The fact that this witness and others experience such pain in testifying and yet nonetheless choose to do so raises important and interesting questions as to why. Critical scholars may express their cynicism regarding the benefits, but the fact remains that people do choose to come forward and engage with these institutions. In fact empirical studies have shown that there continues to be a desire on the part of victims to testify and be heard (Staggs-Kelsall and Stepakoff, 2007; Stover, 2007). This desire to testify is sometimes dismissed as naivety or false consciousness on the part of victims. However, I see such readings as patronising and under-estimating the agency of victims: an issue I will return to in the next chapter. I do not dismiss the frequent feeling of disappointment and disillusionment documented among those who have testified (Mertus, 2004b, pp.111–112; Staggs-Kelsall and Stepakoff, 2007; Stover, 2007), which does point to a mismatch between expectations and the experience of engaging with

International law and women’s rights in Sierra Leone  101 the criminal justice system. However, it is also possible, when reading through the testimony, to identify a level of resistant or subversive engagement that complicates the construction of victims and witnesses as passive objects in the trial process.

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Sites of resistance The Witness:

You are asking me something which, if this had happened to you, you would not ask me this type of question, or if it had been your own relative. Presiding Judge: Mr Witness, we know it is very, very hard for you, it is bringing back bad memories, but just have a little patience. We are not trying to catch you out. Please have a little patience. The Witness: It seems as if this lady is trying to provoke me. If it had been his own relative he would had some hatredness for that person.35 Even as the dominant effect of the question-and-answer format of testimony was to dehumanise and distance the audience from the suffering being recounted, this was resisted by a number of witnesses. Through their sharp retorts to questioning they succeeded in drawing attention back to the human suffering of which they were being forced to speak and as a result rehumanised the otherwise dehumanising court process: A: Well, what happened was between the dry season and the rainy season when we moved from where we were to Xxxxx [redacted]. I have explained this. The only thing I can’t remember is the exact year, but it happened between the rainy season and the dry season when we moved to Xxxxx [redacted]. Even yourself, do you think after going through all these horrendous things have happened you will be able to remember every detail, if not only God is helping us?36 Other witnesses were combative in their engagements with defence lawyers, refusing to accept the passive role within which they were being placed. Witness ‘TF1-094’ in particular is often openly antagonistic in her exchanges with Defence Counsel, making facetious comments that seek to make the questions seem ridiculous: A: So I wouldn’t say that I would know everybody. I wouldn’t sit down there looking at some peoples’ faces while bullets were flowing here and there.37 . . . Q: Please, was there somebody walking ahead of you? A: They gathered thousands of people who were walking. How would I say that there was nobody in front? Do you think I would be in the front. I was not fighting. Do you think I would have been in the forefront?38 . . .

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A: That question that you’ve asked me, how would I know? That was the first time the rebels entered this country. How would I have known? Do you think I was with them?39 She also tries to assert her own authority and level the unequal relationship between the lawyer and herself by correcting him: ‘[Y]ou are not saying it in a precise way. If you say Koinadugu, you are referring to the village. You would have said Koinadugu District. So the way you have expressed the thing is not correct’.40 Finally, she is extremely clear in her response to the Defence Counsel suggestion that her ‘husband’ in fact saved and took care of her rather than held her captive: ‘If you were saving somebody – if you are saving somebody you would rape that person’.41 This clear and powerful statement stands in contrast to the frequent presentation of rural Sierra Leonean women as passive, agency-less, ignorant victims (discussed later in this chapter) and is perhaps the best example of a ‘bush wife’ reclaiming her voice in the otherwise highly constrained space of the trial. Another strategy many of the witnesses adopt is claiming (feigning?) ignorance. It may be a genuine lack of understanding or memory gaps: it has been well established that survivors of trauma often experience difficulty telling their stories in a coherent and chronological order (Mertus, 2004b, p.120). However, reading the transcripts, it does appear – and certainly the frustration of some defence lawyers suggests they felt42 – that at times the option of stating ‘I don’t remember’ or ‘I don’t understand’ was used as a defensive mechanism to stave off questioning and criticism. Witness ‘TF1-085’ certainly made extensive use of both a lack of memory and a lack of understanding that while at times seemed justified, at others seemed evasive. Witness ‘TF1-282’ was similarly evasive during crossexamination.43 I read this as a strategic move. Given their low status within the Court ­hierarchy – as victims, often rural women, mostly illiterate – this appropriation of their assumed ignorance and simplicity was in fact potentially the most powerful weapon they held. The effect on the trial process is unclear, but it provided a response to the sometimes patronising and paternalistic approach of the Court (particularly the defence lawyers) and ultimately did lead to successful outcomes for the prosecution (the debate about whether in fact forced marriage should be found to be a separate crime was a legal one, but the evidence of the witnesses as to their experience of abduction, detention, rape and enslavement was accepted). It also protected them from more intense cross-examination, for, as one defence lawyer complained: ‘If she [the witness] says she can’t remember, how can I put something to her? I have been limiting myself to put things to her contrary to what she has said today. I don’t think I can really put to her what she cannot remember making’.44 When defence lawyers sought to press the witnesses further they were often accused of harassment by the Bench and forced to retreat.45 This agency, however constrained, exhibited by the witnesses is important and an element all too often overlooked by both advocates and critics of the international

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International law and women’s rights in Sierra Leone  103 justice project (see Mertus, 2004b and Stover, 2007 for notable exceptions). While the former’s focus on outcomes frequently limits their attention to the process (except to call for more legal protections and tighter legal procedures), the latter often seem similarly disinterested in how victims and witnesses actually experience the trial process. Yet I argue that the acknowledgement of these acts of disruption and resistance is ethically, politically and theoretically important for those of us interested in human rights. First, through recognising these otherwise incredibly marginalised individuals as agents we make the first move towards shifting the power imbalance that continues to cast them as helpless and voiceless victims, requiring saving. Second, identifying how constrained these subalterns’ ability is to resist the dominant construction of their role and identity also provides us with a potentially more grounded starting point to think about how human rights processes and frameworks might need to change to live up to their promises. It is to these concerns that I will return in the final part of this book. Many of the critiques of the objectifying and disempowering effects of the legal process resonate with feminist studies of women’s engagements with national legal systems around the world (including in ‘the West’). However, in asking the Spivakian question of whether the subaltern can speak I wish to simultaneously draw attention to the racialised and colonialist dimensions of the international trial. This emerges particularly clearly through an analysis of the testimony of Prosecution expert witness, Zainab Bangura. Her position as a representative of Sierra Leonean women provides useful insights into the ways in which notions of voice, representation, culture and rights come into being within the space of supposedly universalised international justice.

Voice of the ‘Third World Woman’: Zainab Bangura As mentioned above, local civil society member, consultant to international organisations and political figure Zainab Bangura presented both a written expert report and testimony in the AFRC and RUF trials. The importance of ‘contextually sensitive’ and ‘locally informed’ characterisations of the harms suffered were the reasons offered by the Prosecution for her selection, in an argument that would seem to show sensitivity to the possibility of (neo)colonial and falsely universalist interventions. However, Bangura’s role within the trials points to far deeper issues of inequality and hegemony that cannot be addressed simply by allowing a different narrator to speak. First of all, it is impossible to escape a feeling of instrumentalism on the part of the SCSL’s allowing the voice of the ‘expert’ to be a Sierra Leonean woman. The Prosecution claimed in its request to call Mrs Bangura as a witness that it had recently realised there was a need for some expert assistance on understanding the charge of ‘forced marriage’. In fact, the Prosecution had already sought ‘expert advice’ regarding the viability of a separate ‘forced marriage’ charge in 2004: from American international law professor Michael Scharf (Scharf and Mattler, 2005). Meanwhile, the Prosecution itself told the Trial Chamber that Ms Bangura was not selected to act as an expert witness and compile a report

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104  The case studies on the issue until February 2005.46 This was after another non-Sierra Leonean ‘gender expert’ had already prepared a report on sexual violence. It is therefore hard not to view Mrs Bangura as something of a ‘native informant’ rather than a recognised expert in her own right: brought in to confirm from the ‘inside’ what is already assumed to be known about the object of study. This points to the superficial ways in which the international community engages with postcolonial critiques. To avoid the accusation of ‘Western imperialism’ they employ a local woman as the official public voice. However, it was not on the basis of her assessment that the charges were laid and what she says largely replicates the original ‘expert’ report of Michael Scharf and Suzanne Mattler. There also remains a larger question regarding not only the role of the ‘expert’, but also how one is classified as an ‘expert’. Who is the ‘expert’? In the case of Professor Scharf, his role as an international lawyer was clearly seen to qualify him to provide expert advice on how and why forced marriage might be considered an international crime. However, there is also no evidence to suggest he had any in-depth knowledge of either Sierra Leonean or West African society, customary law and practice or gender politics. This seems to produce the opposite problem to the ‘over-emphasis’ on context criticised by Afshari (2012) in ethnographies of human rights (discussed in Chapter 1). The local socio-political context is seen as less crucial to assessments of harms and potential responses than a knowledge of law. This self-referentialism stabilises and perpetuates legal dominance in the field of human rights by consistently placing lawyers in the position of holding ‘expert’ knowledge. It also creates a shallow universalism based on abstract international legal norms and only superficial and often quite instrumentalist engagements with contextual specificity. The content of the norm assumes a fixed meaning and the ‘local context’ is then interpreted in light of this pre-existing principle. It is this hierarchical relationship (set out in Chapter 1) that I will argue in the final part of this book needs to be dismantled for us to overcome the universalist versus cultural particularist binary and build a more genuine dialogic basis for human rights. I have personally experienced and been complicit in this process. During my time at the SCSL I conducted with a friend – an American law student completing an internship with one of the defence teams – a ‘gender sensitivity’ training for defence team investigators. As two young members of the international community, on what grounds of ‘expertise’ were we selected? Myself, through my relatively brief role in an international human rights organisation working on sexual and gender-based violence; my friend, due to her Ivy League university affiliation. When faced with the challenge of designing an appropriate programme within a society we barely knew for an audience of whose life experiences we had little understanding, we contacted local women’s rights activists. They kindly obliged us, but noted with some irony that they had never been approached to provide such training. This experience, alongside the privileging of legal expertise, once again demonstrates the assumption of ‘internationals’ as more appropriate

International law and women’s rights in Sierra Leone  105 sources of human rights information than ‘local’ actors. This reinforces the hierarchical relationship between the ‘global’ and the ‘local’ set out in Part 1 and discussed in detail in the previous chapter on Kosovo.

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Expert on what? Meanwhile, it remains unclear as to what exactly Bangura is to be considered an expert on. Is it on customary marriage or marriage practices in Sierra Leone? On the situation of women’s rights in Sierra Leone? The experience of being a ‘bush wife’? It seems Bangura cannot and does not speak authoritatively on any of these topics, which raises the question of what her testimony adds to that of the ‘bush wives’ themselves. Her evidence slides between generalised statements and personal anecdotes drawn from her own life and beliefs, a point also made by one of the defence counsel: ‘Is it fair to say in that regard, when it comes to the selection of your sources, that for you an important factor was your personal account of the events during the war?’47 For the defence, the significance of this is the undermining of her testimony. However, for my purposes it is interesting and important for another reason. It points to the problematic nature of the ‘authentic insider experience’, which positions the speaker as an authoritative voice and excludes the diversity of experiences and voices, flattening rather than expanding the space from which non-Western subjects can speak. This is a process I have written about elsewhere in relation to the controversial Somali-born writer Ayaan Hirsi Ali. I have argued that this is a problem created not only by conservative or reactionary appropriations of nonWestern voices but also by some aspects of postcolonial feminist over-valorising of the voice of the ‘Third World Woman’ (Grewal 2012b). Thus when Bangura asserts her right to speak as someone who ‘was there’ and ‘knows’,48 she establishes herself as paradigmatic of the ‘Third World Woman’ and denies the opportunity of the ‘bush wives’ to speak for themselves. She goes on: ‘if you have gone through trauma yourself, you know what it means and you know how you feel about it and you know how you respond to questions about it’.49 This is a bold claim and one only made possible by the overly homogenised image of the ‘Third World Woman’ that exists within the West’s psyche (discussed in Chapter 1). Accepting the distinction between the abstract reporting of a situation and that of ‘living it’, having not herself been a ‘bush wife’, the question remains, what does Bangura’s testimony add to that already presented by the women themselves? I will argue that there are two reasons for her inclusion: both of which raise interesting questions regarding the emancipatory nature of human rights discourse. The first is that Bangura provides a link between the apparently ‘universal’ conception of marriage and the ‘contextual’ features of marriage in Sierra Leone. In particular she acts as a bridge between Scharf’s abstract and legally based account of, ‘the international community’s understanding of marriage’ (2005, p.78) and the ‘on-the-ground reality’ in Sierra Leone. In this sense she is perhaps a ‘translator’ figure, of which Sally Engle Merry has written: ‘Translators ­refashion

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106  The case studies global rights agendas for local contexts and reframe local grievances in terms of global human rights principles and activities’ (2006c, p.39). While for Merry these figures are generally positive features of the human rights landscape, this evaluation must first take into account the broader sociocultural landscape within which global and local hierarchies persist (something that she also acknowledges). With this in mind, although these figures may act as bridges, there is no guarantee that their practices or narratives will not render even more marginal and passive the actual victims of human rights abuses (an issue I will also deal with further in the next chapter). This leads me to the second contribution I see Bangura’s testimony to be making. Bangura’s role could perhaps be seen as that of the ‘urban elite activist from the Global South’ who, ‘understand[s] and state[s] a problem intelligibly for the taste of the North’ (Spivak, 2004, p.528). It is the ability to make ‘­intelligible’ the wrong suffered that both creates the bond between those empowered as ‘knowers’ and actors within the human rights framework (both in the West and the non-West) and reinforces the distance from the passive sufferer of wrongs. As discussed earlier, victims’ voices are often reduced to animalistic, wordless expressions of pain, which require the intermediary to ‘humanise’ their suffering by turning it into a rights claim. In this sense I am reminded of Jacques Rancière’s critique of the classical distinction drawn between animals, who have voice to express pleasure or pain, and humans, who have not only this capacity but also, ‘the specific power of the logos that allows them to reveal and discuss what is useful and what is harmful and thus what is just and what is unjust’ (2009, p.4). Rancière notes that historically this human capacity was not assumed to be shared by every human: ‘there are human beings who are not entirely human beings’ (2009, p.4). Moreover, the distinction between the mere expression of pleasure or pain and properly articulated speech is often hard to draw and hotly contested. To demonstrate, Rancière refers back to Aristotle’s division between the passive capacity for understanding words ascribed to slaves and the active ability of citizens to articulate and debate notions of justice. I will return to this discussion in Chapter 9. Meanwhile, Didier Fassin has argued that the language of humanitarianism is best understood as one aspect of the ‘politics of life’: ‘those who can tell stories and those whose stories can be told only by others’ (2007, p.518). Linking this argument back to that of Rancière, I would argue it is a question of who can not only tell the stories of others but also discern the separation between the animal expression of pain of the victims and the human articulation of violation and redress that is reserved for the agents of human rights. It is this role that I see Bangura as playing in the SCSL trials – and an analysis of her testimony demonstrates some of the problems this creates. Bangura’s expert testimony In her testimony Bangura provides a fascinating if contradictory account of both her own life and that of Sierra Leonean women more generally. She begins

International law and women’s rights in Sierra Leone  107

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by reiterating a classic narrative of a subjugated African woman (escaping an arranged early marriage at 12, facing discrimination as an adult) who becomes disillusioned with her culture, is offered access to democracy, rights and knowledge in the West (facilitated by UNDP and the American Embassy, she attended training programmes in the US), and comes home to educate her less fortunate sisters. She then moves to the specific issue of forced marriage. When asked to define what she means by ‘forced marriage’, Bangura states: I use it for girls who have been who had been abducted and literally taken as wives, because when I spoke to this girl, I said, ‘What happened?’ She said, ‘When he comes to the house, when he captured, he said, “You now me wife”’. That you are my wife . . . .50 Bangura is then asked why she speaks of ‘forced marriage’, to which she responds: Because being a wife means you have to be married to him. And for them you are not willing, you do it against your wish. You don’t have an option. You don’t have an alternative. You become a wife by his own definition, not by your or not by consent which means he has taken you against your consent, against your will.51 This is an extremely important and interesting response. Bangura simultaneously invokes issues of identification (the significance of being called someone’s ‘wife’), autonomy (the ability to make choices) and agency (choosing between options). In doing so she highlights the tensions that appeals to abstract ‘­universal’ notions seek to hide. She also illustrates the ambiguous role played by human rights law as a tool of emancipation versus social regulation (discussed in Chapter 2). To clarify I will treat each of these issues separately. The symbolic identity of ‘wife’ The repeated use of the term ‘wife’ by women Bangura interviewed supports the claim made by various commentators that the decision to name the violation ‘forced marriage’ reflected an incorporation of the victims’ perspective. However, I think it is important to dig a little deeper into the significance of this terminology being used. For a start, the assumed universal understanding of the term ‘wife’ is called into question by anthropological contributions, which highlight the ambiguity contained within different languages. In fact, Mariane Ferme identifies that the word ‘nyaha’ in Mende has a double meaning – both ‘wife’ in the sense understood in the West and ‘initiated or adult woman’, an ambiguity that points to a more complex array of relationships sanctioned within society than simply that of formal marriage (2013, pp.62–63). The lack of space within human rights for deeper engagement with the contextual meaning of apparently universally understood categories and concepts is seen to be positive by universalist proponents of human rights like Jack Donnelly: a means of bypassing antagonistic debates about

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108  The case studies cultural relativism (see Chapter 1). However, as I think the example of the ‘wife’ illustrates, when these categories or concepts are to be operationalised the problem of translation ceases to be an ideological or theoretical one and has significant consequences for the practical impact of human rights. As Bangura identifies earlier in her testimony, in peacetime, within more traditional communities in Sierra Leone, wives are considered their husband’s ‘property’: ‘When the husbands die, they dispose you with the rest of the property’.52 She goes on to explain that in the context of forced marriage, right from the beginning of the entire relationship with him he identifies you as his wife, which means you belong to him. You are with him and you are part of his property, I might say, because he takes care of you, he protects you, he feeds you. So you are part and parcel of him.53 And, in response to the question of why the men used the term ‘wife’, Bangura explains: ‘It is a sign of control. It is a sign of ownership. It is like – because in our tradition when somebody is your wife, you have complete control over him [sic]’.54 This interpretation is also supported by the testimony of some of the ‘bush wives’, who stated that what made them ‘wives’ was the assumption of access and control over their bodies by their ‘husbands’.55 This is significant from a feminist perspective, especially when considering the subsequent characterisation of the violation by the SCSL (discussed shortly). While the term ‘wife’ is used and assumed to have a comprehensible universalisable character, its meaning is highly contextual. By allowing this to go unexplored, rather than calling into question the role of ‘wives’, the patriarchal conception is reinforced and naturalised, with the violation being positioned as the misuse of the term rather than the content of the role itself. At the same time, this seems to demonstrate the concerns identified in Chapter 2 regarding the extent to which the law actually serves to fix conservative identities rather than providing a space to challenge them. This process not only reinforces existing hierarchies and relations of domination in Sierra Leone, it also contributes to reinforcing another hierarchical relationship. The apparent ‘respect’ for local culture once again divides the communitarian traditional culture of Sierra Leone from the ‘enlightened’ feminist universalism of international law. The Sierra Leonean bush wife becomes the means for affirming a number of core beliefs the West has about itself: that (patriarchal) marriage is an inherently human good, that the perversion of this good is the result of the acts of non-Western others (from whom this is perhaps to be expected), that the non-Western woman is an inherently pitiable victim in her homogenised state of oppression, and that it remains the ‘white man’s (and woman’s) burden’ to bring civilisation in the form of rights and law to rescue this victim from her culture, her men and herself. The continuation of a colonial logic is unquestionable. Just as scholars have documented the ways in which colonial administrators collaborated with local male elder elites to maintain patriarchal control through the construction and reinforcement of ‘customary law’ and ‘traditional

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International law and women’s rights in Sierra Leone  109 a­ uthority’ (Mbilinyi, 1988; Chanock, 1989; Hodgson and McCurdy, 1996), the nature of the violation of forced marriage as identified by the SCSL actually reinforces conservative, patriarchal understandings of marriage and the role of wife. Indeed, traditional leaders, the perpetrators during the war and the international lawyers all seem ultimately to be in agreement! The idea that this prosecution might open up space for subversion of dominant norms and practices – as suggested by various feminist scholars (Nowrojee, 2005; Bélair, 2006) – thus appears misguided and naïve. This is rendered even clearer when considering the issue of consent. Consent: the individualist West versus the collectivist non-West Whose consent? Initially Bangura identifies the ‘forced’ aspect as being the denial of the right of the woman or girl to consent. Yet as she goes on to explain the nature of traditional marriage in Sierra Leone, the concept of consent becomes an increasingly slippery and ambiguous one. For example, when asked about the characteristics of traditional arranged/early marriage in Sierra Leone, Bangura replies: Normally, they choose a husband for you. It’s not one you choose. Q: Who does the choosing? A: Invariably it’s the father. But sometimes it’s the mother. You know, it depends who is the strong person in the family or how the– the purpose of the marriage is important, because there are different areas where marriages are – and why marriage is arranged. So, the talking and negotiation takes place between the families, you know, the husband’s family and the wife’s family. So, you– the wife herself is the last person to know about the marriage.56 Bangura does clarify that this practice was slowly dying out prior to the war through increased education and was uncommon in Freetown. She also explains that Islamic leaders had told her that it was against Islamic law for a wife to be married without her consent.57 However, she also comments: ‘But of course, invariably, the family will prevail on her if that is to her choice. She won’t have anything, because she knows that if she doesn’t, she will be treated as an outcast’.58 Given the definition provided of forced marriage, being the lack of choice and options, it seems surprising that Bangura would stress a distinction to be drawn between forced marriage in conflict and arranged marriage in peace – especially given that she presents herself as a women’s rights activist. The true nature of the distinction being drawn becomes clearer when she is asked about the key differences between these two practices. She concludes: [T]he way I define forced marriage here is wherein the consent of the family is not taken and the normal tradition and ceremony and processes under which a daughter is given to you as your wife does not apply in this case.59

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110  The case studies Bangura even goes so far as to dismiss the significance of the individual girl or woman’s consent, noting that arranged marriage in times of peace was different, ‘[b]ecause this was something that was done without your consent but it has the respectability of the community and the participation of the family’.60 This statement is illuminative as it marks the transition in the violation being punished by prosecuting forced marriage. What is clear is that the perspective of the woman/girl herself becomes irrelevant. Instead, forced marriage is a violation of community and family norms. As noted above, there is a sense in which the wrong becomes characterised more through the misappropriation of the traditional authority of elders and other dominant groups by rebel combatants. This then raises significant questions regarding whether the real focus is in fact on the rights of individual women and girls or whether it is rather about re-establishing the pre-war status quo: a frequent problem with transitional justice initiatives, as Lori Handrahan (2004) has highlighted. This is further clarified by Defence Counsel: Q: . . . As I understand your report well, you say the fundamental difference between early and arranged marriage in times of peace and that of forced marriage during the war is that the family members were not involved in the arrangement; is that correct? A: Yes. Q: Do you agree that from the point of the women who do not consent, who do not consent in a marriage, there isn’t really a difference between what you call arranged marriage in times of peace and forced marriage in times of war in the event you look at it from the perspective of the wife?61 Throughout her cross-examination Bangura repeatedly asserts the importance of seeing marriage as an arrangement organised by families and accepted by communities, with the individual parties to the marriage treated as less significant.62 This distinction is reiterated by the Prosecution in its brief in the RUF case, explaining the significant difference between arranged marriages in peacetime and forced marriages during the war: Notably, one of the main features of early/arranged marriages is that ‘during the whole process [. . .], the consent and participation of both families is paramount . . .’. This is to be contrasted with forced marriages during the war where, ‘family members were not involved in the arrangement of the latter so-called marriage, no official ceremony of any form took place and the consent of the parents was not sought . . .’. (RUF Prosecution Brief, para. 564) There is no mention made of consent of the girl or woman being a consideration, thus undermining any possible argument that the prosecution could or would enhance the recognition of women’s rights in Sierra Leone. Instead, the focus of the wrong was on the lack of familial consent and the potential stigma faced by women upon returning to their communities. This conflation was accepted

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International law and women’s rights in Sierra Leone  111 by various commentators, including those asserting their interest in enhancing ‘women’s rights’. For example, Neha Jain in her advocacy for forced marriage to be treated as a recognised international crime on the one hand assumes that there is a universal meaning to marriage – that is, ‘forging an emotional bond between the couple’ (rather than, as a method of control over individuals’ sexual and reproductive functions) (2008, p.1025) – and on the other hand quite unquestioningly accepts the collapsing of individual consent into that of the family in both the Sierra Leonean and Cambodian contexts she describes. The fluidity with which issues of ‘consent’ move from being associated with an individual to being about a collective are facilitated by the division that is frequently drawn by both proponents and critics of the asserted universality of human rights between the liberal ‘individualist’ West and the collectivist communities of the non-West (discussed in Chapter 1). It is this ‘common sense’ division that allows Scharf and Mattler to draw a distinction between forced marriage as a crime against humanity and arranged marriage as, ‘an acceptable practice under the principle of cultural relativism’ (2005, p.87). While they state that international human rights law requires the individual consent of both parties (citing the UDHR and the ICCPR), they go on to maintain that arranged marriages are distinguishable from forced marriages because, ‘Those cultures that practice arranged marriage do so to assist the civilian population’ (2005, p.89, emphasis in original). On this basis they characterise arranged marriages as relying on, ‘the benevolent parental objectives to assist children or to perpetuate important values’ (2005, p.89). Undoubtedly there are good reasons to distinguish between traditional marriage practices around the world and to question the assumption that all are examples of human rights violations. However, it is the basis of this analysis with which I take issue. In making their claims, Scharf and Mattler provide absolutely no references or evidence to substantiate.63 Their representation of both the practices and the motivations are monolithic and pay little regard to the possibilities of internal contestation. This is further endorsed by Justice Doherty in her partly dissenting opinion in the AFRC case (which was later endorsed on appeal): On the evidence I find that the intention of the ‘husband’ was to oblige the victim to work and care for him and his property, to fulfil his sexual needs, remain faithful and loyal to him and to bear children if the ‘wife’ became pregnant. In return, he would protect the ‘wife’ from rape by other men, give her food when food was available and, depending on his status, confer a corresponding status upon the wife. In effect, these are rights and obligations of the type referred to by the Defence expert as being involved in traditional marriages but in there is no agreement of the family or kin of the ‘wife’ and the status is forced by violence or coercion upon the female partner.64 What is striking in this paragraph is the way in which Her Honour does not seek to problematise the assumed role of the ‘wife’ in a traditional Sierra Leonean marriage but simply qualifies the acceptability of this state of affairs as dependent on

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112  The case studies whether the ‘wife’s’ family or kin have agreed to this arrangement. The joint effect of Scharf’s and Doherty J’s characterisation of forced marriage is twofold: it normalises and legitimates patriarchal marriage and family arrangements in general and the local patriarchal order in particular. Far from empowering marginalised local actors, this process in fact erases their existing practices of resistance. The notion of bridewealth and the centrality of family permission have in fact been increasingly contested aspects of marriage in Sierra Leone – not just at the level of urban rights activists but also among rural communities themselves (Hardin, 1993; Fanthorpe, 2005; Coulter, 2009). Kris Hardin, in her anthropological study of a diamond mining town in Kono district, far eastern Sierra Leone, found that the majority of couples were living together without having completed customary bridewealth payments. Moreover, both young men and women expressed reluctance to enter into formal marriages, seeing them as exploitative arrangements: the men for the reason of excessive financial burdens and the women because, ‘[they] generally felt that men were disrespectful to them and, moreover, tried to take advantage of them by expecting their labour and children but were unwilling to support them or be respectful of their families’ (1993, p.69). In my own interviews in Kenema and Kailahun I was told that the biggest problem women faced was in relation to their lack of property rights, the priority given to dowry considerations over their own choice of husband and the security of their status within customary marriage. Rather than the prosecution of forced marriage opening up the space for discussion of these practices (as local human rights advocates had said they hoped), the SCSL’s characterisation in fact potentially limited the possibility for debate. The assumed divide between more communally and traditionally minded Sierra Leoneans (who do not mind forgoing their own rights in the interests of the community and family) and the more individualist feminism of the West makes a local, contextual feminist response virtually impossible. It also reduces the possibility for recognising the agency of those affected by the war, whose undeniable experience of exploitation and violence does not eradicate the possibility of their claiming a subject (rather than passive object) position. The ‘ideal’ African victim Bangura and others assert that being a ‘bush wife’ was a particularly devastating effect of the war because, [the ‘bush wives’] stayed much longer in a situation which they were forced to be, and the effect on their life. It is really those who were children. People who are just raped or were a wife for a week or two can go back and lead a normal life.65 However, this does not recognise the often ambiguous positions of empowerment and disempowerment women and girls experienced within fighting forces.

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International law and women’s rights in Sierra Leone  113 Indeed, Bangura herself notes that in comparison with the experience of other women and girls who were not taken as wives, ‘for girls who are identified as wife by [an] individual, these people protect them from all the other problems’.66 She also reports that a number of women chose to stay with these ‘husbands’ due to the protection and care the latter had shown or through lack of alternate options (particularly where they had children).67 In fact some, particularly older women and those married to commanders, were in positions of greater authority than other men and boys and for some the decision either to join or to stay with rebel forces was one of rational choice (see also Mazaruna and Carlson, 2004, pp.12–15).68 This is also confirmed by others who have studied this population and written of the ways in which girls and women sometimes chose to join rebel forces or stay when they could have left, rose in the hierarchies even in situations where they had initially been kidnapped, participated or even ordered atrocities, and in some cases felt extremely unhappy about returning to post-conflict lives that reflected a patriarchal and restrictive ordering of their identity and role in society (Mazurana and McKay, 2003; Mazaruna and Carlson, 2004; Coulter, 2005, 2009). So what is at stake in identifying ‘bush wives’ as the ultimate victim? Various feminist scholars of nationalism have identified how the very story of the nation is one of a relationship between those who are symbolic representatives to be ‘protected’ (women and girls) and those who are active citizens whose role it is to ‘protect’ (Yuval-Davis, 1999; Macdonald, 2008, pp.137–138). In light of this, the rearticulation – and I would argue naturalisation – of the relationship of ‘husband and wife’ as one of ‘protector and protected’ serves an important purpose. If, as Macdonald argues, ‘[t]he hierarchical submission of female to male, both in the domestic and international sphere is unfortunately a continued assumption in contemporary society’ (2008, p.137), then prosecuting forced marriage acts as a response that attempts to restore the patriarchal balance. The relationship described by Nagel of the, ‘male-headed household in which both men and women have “natural” roles to play’ (cited in Macdonald, 2008, p.137) is not challenged by the forced marriage prosecution; simply the wrongful usurpation of the right to form this relationship by rebels rather than communityordained men is punished. ‘Other options’: the autonomous individual and the erasure of structural violence Meanwhile, it is striking that Bangura portrays the limited life options of these young women as solely the result of the actions of their ‘bush husbands’: Because of her [sic], her life has already been interrupted. She can’t go back to school. She can’t do anything with her life. So she might as well get married which is the only other option. She hasn’t got any skill. Even if she has, skill like those of us who were trained, she hasn’t got the money to start her own business. She cannot be employed. So, the only thing left with her is to get married and live with the husband happily ever after.69

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114  The case studies Given Bangura’s account of her own life experience – being denied education by her father and escaping being married off at the age of 12 – it seems strange for her to associate the limited choices available to the ‘bush wives’ with the actions of their rebel husbands. It also presents an impression that women otherwise would be able to choose education and careers. This decontextualised narrative of choice reflects a complete erasure of the realities of life (for both men and women) in rural Sierra Leone.70 Yet it is this point that the Prosecution seeks to emphasise, citing Bangura’s expert report in its brief in the RUF case: ‘the reason for which a lot of “bush wives” had decided to stay with their “rebel husband” after the war [was] for economic concerns rather than as a matter of choice’ (RUF Prosecution Brief, para. 566). The effect of this is to under-emphasise the poor social and economic conditions of Sierra Leonean women, which forces many to enter into conjugal relationships for economic rather than other reasons, and delegitimates the choice of women who for a variety of reasons seek to maintain relationships with their ‘bush husbands’ (Coulter, 2009). It also fails to address the much wider range of structural factors that infringe upon the lives of women, simplifying the picture to one of an abhorrent individual (the rebel husband) who denies the life chances of another autonomous individual. This creates a rather contradictory narrative whereby on the one hand Bangura stresses the fundamental importance of marriage, family and community in Sierra Leonean society to the point that the girl or woman’s own preference is largely irrelevant. On the other hand, she sets up a contrast of the apparent lack of choices girls or women faced during the war when forced into marriage (even as she notes some chose it as a means of survival and it spared them some of the suffering non-wives were exposed to71) as if they did have such choices otherwise! This creates an artificial distinction between women’s lives in conflict and in peacetime, which seems unhelpful from any feminist point of view, in actually capturing and condemning their experiences of violence and/ or violation. It also shuts down opportunities for contestation and rearticulation of the dominant order in the aftermath of the war, through broader processes of structural violence being masked by a focus on individual perpetrators: confirming the arguments of certain critical scholars set out in Chapter 3. At the same time, the use of this artificial ‘autonomous individual agent’ as the point of comparison for the experience of bush wives may also be read in a different way. Rather than failing to capture the more constrained reality of life in Sierra Leone, this figure is actually the reassertion of the idealised subject of human rights. Thus it may not be that the SCSL failed – as feminists have argued law often does – to recognise the lack of autonomy women often experience even outside of extreme situations like war and catastrophe (Grewal, 2010, 2015). Instead, it may be a question more of who is already presumed to have or not to have autonomy. This emerges in two ways in the case of forced marriage. First, there is the reinforcement of a distinction between the ‘collectivist’ identity of non-Western cultures, versus the ‘individualist’ identity of the West. I have elaborated upon the problematic features of this discourse above.

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International law and women’s rights in Sierra Leone  115 Second, there is further evidence of what the West already presumes to know about the lives of non-Western women – their automatic passive victim status. This view is simultaneously informed by a patriarchal and colonial lens. For example, illustrating the ways in which Western assumptions have shaped and continue to shape encounters with African women, Dorothy L. Hodgson and Sheryl McCurdy describe the process by which British colonial officers were unable to recognise the political agency of women in Tanganyika: ‘Even when the women’s political action took violent forms, as did their active participation in the Ujiji “War” of 1932, the British officers could only “see” the involvement of men’ (Hodgson and McCurdy, 1996, p.3). Meanwhile, in attempting to interrogate and respond to violence against women in postcolonial Africa, Amina Mama notes, ‘[i]n addition to perpetrating crude and overt acts of violence against African women, then, the colonization process also transformed African gender relations in complex, diverse, and contradictory ways that we have yet to fully understand’ (1997, p.53). For example, she records the efforts of various colonisers to create ideal ‘wife-and-mother’ figures similar to those in Europe out of African women in ways that devalued their contribution to colonised society and economy and furthered their domestication. When read in light of this historical context, a new significance emerges regarding the international community’s decision to prosecute forced marriage.

Saving black women, reinforcing white patriarchy In identifying the core harm of forced marriage that requires condemnation by the international community, Scharf and Mattler write: Forced marriages demean and distort the institution of marriage itself . . . . The institution of marriage enjoys protected status because it facilitates the betterment of the individual and of society, objectives that cannot be met in a forced marriage. The international community, therefore, has a clear interest in sending a strong message that forced marriage is an unacceptable perversion of a protected and valued institution, and it, and the threat it poses to the family, will not be tolerated. (Scharf and Mattler, 2005, pp.77 and 86) In making this statement they erase all the feminist critiques of family and marriage, which have in fact formed the foundation of much of the women’s rights as human rights campaign. Meanwhile, they sustain the idea that if there is distinction to be drawn between a rights-based model of family and that in practice in Sierra Leone, it is a result of different cultural norms (the more individual, rights-respecting West versus the more traditional, family-oriented non-West), not an ongoing social and political struggle that women across national, ethnic and cultural boundaries are fighting. In her analysis of the TRC’s approach to forced ‘marriages’ during the war, Mibenge accuses the TRC of over-emphasising the links between peacetime

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116  The case studies c­ ustomary marriage practices and the actions of the rebels and junta soldiers during the war (2012, pp.102–115). In the case of the SCSL the opposite was attempted: to maintain a clear distinction. However, this distinction was often based on false premises and overly reified ‘victim’ roles being ascribed. Not only does this lead to exclusions, it also raises questions regarding whether the outrage was more about the (mis)appropriation of traditional roles of power by the rebels than concerning the potentially disempowering nature of the practices themselves. Certainly the outcome achieved is ultimately more supportive of condemning the former than the latter, as the discussion of the SCSL’s jurisprudence demonstrates. As described in Chapter 2, this is precisely the reason Nivedita Menon and Ratna Kapur have warned against the over-reliance on law as a tool for feminist activism – its capacity to reinforce conservative and potentially disempowering categories and identities, even as it is supposedly invoked for more ‘emancipatory’ agendas. I would also argue that the approaches of the TRC and the SCSL are not in fact diametrically opposed. They are both informed by a shared logic in which ‘culture’, ‘custom’ and ‘traditional practices’ have fixed and essentialised meanings (in the case of TRC, the maintenance of patriarchy, while in the case of SCSL, the sustenance of important and benevolent social institutions and order) that are then to be read in opposition to (human) rights. In the case of the TRC the ‘human rights’ lens highlights the wrongs of traditional cultural practices. In the case of the SCSL human rights standards must be balanced against respect for cultural difference, meaning they must either be abstracted (much as Donnelly urges for in his conception of ‘relative universality’) or contextualised through a relativist approach. In the case of the TRC’s position, as Mibenge argues, there remains little room for individual agency in the face of determinative structural domination that is legitimated through culture. Meanwhile, in the case of the SCSL, there is no recognition of the power relations that inform how the ‘authentic’ cultural practice is identified and represented. What is left unexplored in both, however, is the fluidity and ambiguity of culture and the potentially contested nature of ‘traditional practices’ and customs. Given the constrained space within which victims’ perspectives were heard and the problematic way in which the nature of the harm of ‘forced marriage’ was constructed, what if any impact can the SCSL be said to have had on building the ‘human rights respecting society’ to which its supporters asserted it could ­contribute? In the final section of this chapter I will move to my field research, which sought to examine the relationship between this international intervention conducted in the name of ‘human rights’ and local activists’ discourses and practices.

International women’s rights discourses in Sierra Leone: creating rights consciousness? Stuck in one of the endless traffic jams on Pademba Road, heading towards the centre of Freetown[,] the taxi driver and I sat quietly as we listened to talkback radio. The Amnesty International researcher for Sierra Leone was

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International law and women’s rights in Sierra Leone  117 in town and speaking about a new report that had been released regarding women’s access to justice in rural Sierra Leone. Her interview was followed by a rapid series of calls from listeners. For one woman this was an exciting time: she felt freer and bolder knowing the international community cared and had said that violence against women was against international human rights law. ‘For too long our men have used us as punching bags’, she said, ‘and told us that this was just “how it was”, “our custom”, when we tried to complain. Now we can say to them that this is not true – this is a human rights violation!’72 It is very difficult to know how much the SCSL in particular has contributed to developing a human rights debate and consciousness in Sierra Leone. First, it represents only one of a suite of interventions that have occurred in post-war Sierra Leone in the name of human rights. In particular I admit that a shortcoming of my research is its inability to adequately deal with the impact that the SCSL’s parallel institution, the Truth and Reconciliation Commission, has had on Sierra Leonean human rights consciousness (although in many of my interviews I found little clarity as to the distinctions between these two institutions among my participants, with many talking of them interchangeably). Second, it is important not to over-determine the extent to which any rise in human rights awareness is the product of international intervention and action. Certainly Sierra Leone has had a vibrant local civil society that has contributed to developing both dialogue and formal mechanisms around human rights. Nonetheless, an examination of how local civil society has experienced the SCSL, the contact they have had, their impression of its legacy for human rights in Sierra Leone and the extent to which the SCSL prosecutions have contributed to local debates regarding human rights, provides an interesting insight into both the potential and limitations of international human rights law and legal institutions. The legacy of the SCSL Despite the apparent promise the SCSL showed in the early days, the combination of its failure to engage effectively with local civil society, the conservative articulations of the crimes and its limited connection with other local reform projects or activism, meant many within the Freetown-based human rights community increasingly turned their back on the court. By the time I arrived in 2006 many in the human rights community were complaining either that they had experienced little interaction with the SCSL or that they were tired of being ‘educated’ on its role and function and on international humanitarian law. As one NGO worker explained, a major failing in the outreach activities of the SCSL was its lack of appreciation for the different levels of Sierra Leonean society: the message – which focused on, ‘What is justice? Why have the SCSL?’ – was too simplistic for local elites and generally repeated over and over again. The NGO meetings that were organised in Freetown were so patronising that many in the human rights community simply did not go back.73

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118  The case studies Thus while the SCSL has often been praised by the international human rights community for its attention to outreach within the community, a lot less attention has been paid to the actual content of that outreach. Its focus on providing descriptions of the cases and introducing legal concepts (in one training I attended at a local university, significant attention was given to the doctrine of command and individual criminal responsibility) raises questions about what exactly such ‘awareness raising’ aims to achieve. Rather than providing a space for debate and disagreement regarding communal values and appropriate responses to the legacies of violence and war, the exercise has been more a pedagogic model of ‘knowledge transfer’: a common feature of human rights education models, as I will discuss further both later in this chapter and in the next. The question that seems to remain unanswered is, what does knowing facts about trials contribute to the actual enhancement of human rights? Of the people I spoke with in the community outside of Freetown (where the majority of the outreach activities were conducted), most would automatically respond with the official message of the SCSL: that it addressed impunity, it demonstrated no one was above the law, it provided a record of what had happened so it would never happen again. Yet these responses would fast become more complicated and ambiguous when individuals began to reflect on what they considered to be the political nature of who was tried74 and the fact that many of those who they deemed ‘most responsible’ (i.e. the direct perpetrators of violence) were still in the community. Finally many would settle with the biggest legacy of the SCSL being the building it left behind: an understandable and pragmatic response in the context of a country severely lacking in infrastructure but one that suggests the SCSL had had little impact on local conceptions of justice or enhanced interest in human rights. Furthermore, if women’s rights advocates envisaged the SCSL contributing to the opening of space for debates about discriminatory gender norms and relations (as described at the beginning of this chapter), this did not occur in practice. People may have been aware that crimes against women were punished (although they often only mentioned this after I specifically asked), but beyond being able to tell me that rape and sexual violence was included in the cases, they had little to say about the significance of these prosecutions to their everyday lives. The main local beneficiaries of the SCSL seem to have been the legal community, many of whose members expressed enthusiasm about the opportunities they had had to spend time at the court, the knowledge and skills they had acquired, and how this had – they felt – improved their legal practice. This was particularly true of lawyers and judicial personnel who had otherwise had limited access to training in international standards. More elite, Freetown-based lawyers, however, expressed frustration at being patronised by their international counterparts (similar to that expressed by Kosovar lawyers, discussed in the previous chapter). While undoubtedly there was a certain degree of ‘skills transfer’, it also seemed fairly clear that association with the SCSL was often more about the status that flowed from that affiliation. Connection to the international ­community

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International law and women’s rights in Sierra Leone  119 provided an opportunity for local legal professionals to increase their own social standing locally. It was also a mark of division from those considered to hold a lower status in the society and who were often accused of failing to properly understand the importance of the SCSL due to their ignorance. Just as an appreciation of ‘high’ art and culture often provides social and cultural capital that reinforces and legitimates relations of domination (Bourdieu, 1979), an appreciation for international human rights has become a source of social and cultural capital in Sierra Leone (see Shepler (2005), making a similar observation in relation to the area of children’s rights). In the process, rather than challenging existing hierarchies and processes of domination, human rights discourses have in some sense reinforced and legitimated these. This is made even clearer in the importance given to ‘human rights education’, an ever-present feature of discussions on human rights in Sierra Leone and a development of which I will provide in the next chapter on Sri Lanka. Women’s rights as human rights: a ‘Western’ idea? As noted above, the SCSL’s treatment of forced marriage implicitly accepted the division between the more communally oriented Sierra Leonean society and the individualist feminism of the West. As I have outlined in Chapter 1, this is a common problem with the universalism versus cultural relativism debate in human rights. Both advocates and critics of human rights have tacitly or explicitly accepted a ‘rights versus (non-Western) culture’ dichotomy. This contributes to the difficulty that non-Western feminists often have with being positioned as somehow ‘illegitimate’: products of Western interventionism rather than ‘authentic’ local tradition. Furthermore, the founding of a universalist base for claiming human rights within international law – as advocated by many proponents of human rights (see Chapter 2) – exacerbates this problem as well as reinforcing the divide between those assumed to be the agents of human rights and those considered its (passive) recipients. This is perhaps best illustrated through the ways in which ‘human rights training/education’ has been both conducted and promoted as a useful model for developing local community consciousness and commitment to human rights. This is an argument elaborated upon in the next chapter, but I will provide one example here from my 2011 fieldwork trip to Sierra Leone. While in Freetown, I was invited by a group of extremely committed feminist lawyers to attend a training session they were holding (funded by UNIFEM) for women’s forum representatives and religious leaders from provincial Sierra Leone. In many ways the programme followed the standard format with which I have become increasingly familiar as I have spent more and more time in the field of human rights education. It began with a welcome from the lawyers’ association, the Ministry of Social Welfare, Gender and Children’s Affairs and UNIFEM before moving to the content of the day. This revolved around the ­following: first, a 20-minute ‘Introduction to international and regional instruments protecting women from violence’, followed by a 45-minute session on

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120  The case studies national legislation, and finally a 25-minute session on ‘Community mediation/ traditional justice systems and the law’ before there was a break to allow for group discussion and planning. For the most part, the participants sat there blankly as they were lectured on the content of CEDAW and other international principles. During the break-out discussion sessions they numbly parroted what they knew they were supposed to say, while actually making clear in their comments to each other that none of their more conservative views had been challenged in the slightest. This is a fairly standard model for human rights training, as I will elaborate upon in the next chapter. It also produces very particular effects. First, the power remains in the hands of the facilitators, who may be local or international, are often lawyers or some other type of ‘expert’, and whose focus is on knowledge transfer. This then raises the question of why such training is done: what is assumed about the role that training plays in developing human rights in specific locations? In the case of this workshop, I could not help but leave with the impression that the focus on (particularly international) law had not served to convince participants of the value of promoting women’s rights. On the contrary, it had made such rights seem more distant and alien, unconnected to the lived realities from which the participants drew meaning (an issue to which I will return in Chapter 8). The human rights industry Meanwhile, it is ironic that while on the one hand the discourse of feminism in Sierra Leone has suffered a delegitimising effect through its association with ‘the West’, on the other, ‘women’s rights’ has become a lucrative industry with a wide array of actors invested. This phenomenon has also been experienced in other places (including both the other case study sites) with the ‘gender mainstreaming’ agenda of the UN and the passage of the various Security Council Resolutions (1325/2000 in particular) leading to ‘gender’ becoming a donor priority. The impact of this donor-driven focus on women’s rights has created a distance from local community-driven initiatives. It has also had the effect of depoliticising the women’s rights struggle, turning it instead into an arena of programmatic intervention often by highly conservative players. In my interviews with organisations ostensibly conducting ‘women’s rights’ programmes, I frequently encountered men who upon telling me about their work would go on to voice startling personal opinions. For example, one local NGO worker involved in an access to justice project told me: ‘I was married to an educated woman – she was not good for me . . . her attitudes . . .’.75 Meanwhile, another, based at a legal assistance centre in Kenema, informed me that part of the problem was that women allowed emotions to enter into their interactions more than men. This, in his view, led to unhealthy rivalry and escalation of conflict.76 Often when probed a little further, these individuals revealed that the motivation for working in women’s rights or human rights NGOs came less from a commitment to the cause and more from economic necessity. For example, the NGO worker cited first told me that in fact he was trained as a teacher but was

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International law and women’s rights in Sierra Leone  121 forced to seek alternative work because he was not being paid. In this sense, he conformed to the impression that Susan Shepler also had of how human rights sensitisation programmes might work in practice in a highly resource-deprived and competitive environment like Sierra Leone: ‘Some people were learning the right vocabulary, and learning what sorts of programs were likely to receive funding. They were learning how to portray themselves to get access to material resources’ (2005, p.204). This is an entirely understandable strategy of survival by those trying to make the international system work for them. However, it seems to add further weight to the argument discussed in Chapter 3 that neo-liberal economics and the rise of the NGO are mutually entangled in a way that should make us suspicious of the inherently progressive nature of civil society (something discussed further in the next chapter). Additionally it illustrates the dangers that others have also documented of donor-driven agendas hijacking local social justice initiatives (Hyndman and de Alwis, 2003; Shepler, 2005; Jad, 2007). At the very least, it points to a need to delve much deeper into the content of rights among those apparently committed to this agenda. It is to this point that I will return in the final part of this book. Much of the framing of the problems encountered by women by these organisations (as well as their particular focal areas and issues) seemed to lead to further disempowerment of women and the reinforcement of the image of women as victims rather than achieving the types of emancipation human rights is apparently supposed to offer. I was left with a disturbing impression that the undertone to many of these actors’ attitudes to the women they were supposed to be empowering was one of, ‘not only are these women downtrodden, they are so stupid they don’t even know they are downtrodden’. For example, one male NGO worker based in Kenema told me: ‘They talk about women’s rights but they don’t even know what human rights are – they need to be educated about what justice is, etc.’ He added, ‘We are training women paralegals – assisting them to advocate for their own issues. [They] want male involvement but we need to empower them to help themselves’.77 Even those who did express a commitment to an empowering women’s rights agenda and who seemed to be attempting to call into question existing structural inequality sadly often did so in a language that maintained rather than disrupted social hierarchies, as the example of the training (discussed above) demonstrates. This problem is also further explored in the next chapter.

The power of ‘strategic misunderstanding’ In light of both the cynicism I heard expressed by local civil society in 2006 and my own critical reading of the AFRC and RUF judgments, returning in 2011 to explore the legacy of the SCSL for women’s human rights in Sierra Leone I was prepared for the worst. And indeed for many of the Freetown-based activists the SCSL was something that was at best easily forgotten and at worst something that had done little and cost far too much. Yet as I spoke to more actors, particularly outside of the Freetown-based, educated elite, another story began to emerge.

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122  The case studies It became clear that the further from the SCSL I got, the more positively people spoke of it. Perhaps in part this was because they knew little about it and thought this the best response to keep the strange foreign woman happy – but there was also another reason. The Chairwoman of the Women’s Forum (a nationwide coalition of women’s rights activists) told me that the SCSL had been very helpful in their campaigning around forced early marriage because, ‘We tell them this is against international law, the Special Court says it is wrong’. When I tried to explain that in fact this was not what the judgment said, it became clear that not only had she and other activists not read it, they did not feel it was necessary to read it. This was not due to ignorance: it was a strategic choice not to waste their time and energy. The power was in the message that there had been an international court, it had looked at ‘gender issues’ and it had convicted people. This was sufficient to provide a symbolic backing for women within their communities. Similarly, ‘Bintu’, a Chairlady from a community in Kenema district, when asked what (if anything) she knew and thought of the SCSL remarked that even though she had not personally had contact with the Court, it had made a ­contribution: ‘Before women were just in the kitchen, now they have brought women in the baray [village square] to discuss and make decisions with men’. This process of empowering women at the village level was less the result of the SCSL itself and its activities than the symbolic contribution it had made to Sierra Leonean society in terms of conveying the value of women as actors. In Bintu’s words: ‘There is no special difference for women [in the SCSL] but women, if taken there will get justice . . . and men too, if taken there will get justice’.78 This idea of a public space being equally accessible to men and women (regardless of the reality) was in itself a powerful contributor to commencing debate within communities regarding the status of women. Marianne Ferme made similar findings in her own ethnographic exploration of the SCSL’s prosecution of forced marriage: While witnesses at the court appeared to be docile subjects in this process, describing themselves and their experiences in the court’s terms, as the concepts became unmoored from this setting they took on a life of their own, reworking in unexpected ways the balance of interests of individuals and collectivities as well as politico-economic hierarchies of prewar times. (2013, p.68) Thus what emerged most interestingly for me within my 2011 fieldwork trip was the ways in which the existence of the SCSL and its prosecutions for gender-based violence opened up a new space that simply did not otherwise exist for women’s rights activists. The disempowering nature of the SCSL’s internal processes did not diminish the creative and strategic ways in which local actors sought to draw on and make use of the SCSL’s symbolic power to add weight and legitimacy to their cause. This opens up an alternate space for examining the impact of international legal mechanisms outside of their naturally assumed home of courtrooms, parliaments and bureaucratic institutions.

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International law and women’s rights in Sierra Leone  123 In Sierra Leone, the further they are from both the SCSL itself and other sources of institutional power, the more women’s rights actors seemed to gain from it. Educated local elites expressed extreme scepticism about the SCSL’s value, for reasons very similar to my own. Yet for many more marginalised and disadvantaged women, while the SCSL did not directly impact upon or improve their lives it provided to their mind a powerful symbolic and material ally. This came in every form, from tangible material support such as that received by the local collective, the Market Women’s Association (established and supported by Zainab Bangura), to the more intangible, psychological support expressed by women such as the talkback radio caller (quoted above), a sense that the international community cared. This points to an important aspect of human rights that is perhaps too often lost in the institutional focus of both its proponents and its critics, the more peripheral sites and engagements with human rights that might in fact both disrupt and reorient dominant conceptions and practices. What are the implications of this reading? How, if at all, might it change our engagements with the human rights discourse and framework? And how might this allow us to develop new critical practices that don’t lose sight of the oppressive power of current human rights but perhaps invigorate the possibility for other more emancipatory models? It is to these questions that I will return in the final part of this book.

Conclusion While the dominant narrative regarding the development of international criminal justice institutions has seen them as enhancing human rights, this has not gone without contestation. For a start, numerous feminist and other critical scholars have pointed to the highly stratified structures, exclusionary practices and detrimental realities of international trial processes (Campbell, 2004; Grewal, 2010, 2012b, 2012c, 2015; Ferme, 2013). This has led many to question the value of international legal institutions in responding to the social justice needs of marginalised, brutalised and stigmatised populations or in advancing understandings and recognition of rights claims.79 An analysis of the example of the ‘bush wives’ in the SCSL would seem to support this view. Meanwhile, as an analysis of the expert testimony of Zainab Bangura before the SCSL demonstrates, the ‘Third World Woman’ is able to speak only from a highly constrained and contradictory space. The contortions that become evident in the process of Bangura’s testimony highlight that it is not simply a matter of allowing the ‘Third World Woman’ to speak but also addressing the conditions within which her voice can possibly be heard. The diversity of practices and changes in attitudes that Bangura tries to relate are ultimately lost in the final definition she adopts. Furthermore, her positioning as the (authentic) Sierra Leonean woman’s voice reflects a process that Clifford Geertz (1985) and more recently Florian Hoffmann (2006) have identified as a dangerous undercurrent to discourses of ‘cultural tolerance’ and respect for cultural difference: it denies a

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124  The case studies possibility of engagement and even convergence of views across individuals in different groups, and it also causes the culture of each to appear overly homogenous and coherent, issues I will return to in Chapter 7. On the one hand, developing on the previous chapter, the implicit and unrecognised culture of international institutions becomes evident through the manner in which the Special Court approached the issue of forced marriage. The ways in which ‘culture’ is discussed in the Special Court highlights once again the problematic ways in which decisions regarding authenticity and authority are made as well as the manner in which complex social issues are flattened in the process Uma Narayan (1997) has described as ‘death by culture’. At the same time, the enduring power of patriarchal norms within the international arena also emerges through this apparently ‘feminist’ (or at least ‘women’s rights’) inspired intervention. All of these are further facilitated by the operational logic of law and legal processes. Not only do the characterisations of forced marriage by the international expert and the SCSL collude with the most conservative, traditional patriarchal representations of culture and marriage in Sierra Leone – in a manner parallel to Narayan’s identification of Western feminists adopting a ‘colonialist stance’ to ‘Third World Women’ – they further legitimate this position by imbuing it with the authority of law. The combination of particular discourses that emerged within the Special Court regarding culture, rights and gender in fact led to Sierra Leonean women being marginalised in a process that was apparently designed to ‘give them voice’. Instead – as with Kosovo – it was the voices of ‘experts’ that dominated and in ways that ultimately legitimated and reinforced existing structures of power. Added to this, the ‘gender trainings’ and ‘women’s rights awareness campaigns’ that have proliferated since have contributed to a further reproduction of Chandra Mohanty’s (1988) classic characterisation of the ‘Third World Woman’ as passive recipient of protection. This supports the argument (discussed in Part 1 of the book) that far from providing spaces and sources of empowerment, human rights mechanisms have often maintained social hierarchies, depoliticised important social issues and continued to silence those most marginalised. Yet this case study also demonstrates a previously untold story. While the Special Court did not provide the site of empowerment and agency it was supposedly designed to deliver to the women of Sierra Leone, an examination of how some local women’s rights advocates have engaged with the Court demonstrates creative, strategic acts of agency that should be recognised. In a parallel manner to the Narmada Dam activists of whom Balakrishnan Rajagopal (2003) has written, various women’s rights advocates found constructive ways of making use of the Special Court and – through a process I describe as ‘strategic misunderstanding’ – of using its judgments to further their own agendas. Thus, the Sierra Leone example provides an insight into both the oppressive nature of institutionalised human rights and the productive ways in which individual agents may engage with them in spite of this. It is this dual role that I examine further in the final case study, on Sri Lanka.

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Notes 1 See for example the special edition of the Brown Journal of World Affairs, vol. 6(1) (Winter–Spring 1999) dedicated to the ICC. 2 It should also be noted here that a TRC was established too, making Sierra Leone the first place both models of transitional justice were run in conjunction. Evaluating the TRC is beyond the scope of this chapter. 3 For a detailed discussion of how the SCSL came into being see Roht-Arriaza (2009) and O’Flaherty (2009). 4 See for example the UN Secretary-General’s comments in ‘The Rule of Law and Transitional Justice in conflict and post-conflict societies’, Report of the SecretaryGeneral, UN Document S/2004/616, paras. 42 and 44. 5 Interview with author, Freetown, May 2006. 6 The ‘CDF case’, the ‘RUF case’, the ‘AFRC case’ (each with three accused standing trial) and the ‘Taylor case’ (of former Liberian President Charles Taylor) targeting each of the different fighting factions. 7 As mentioned above, the SCSL was also the first international tribunal to specifically prosecute the enlistment and use of child soldiers: for more on this see Ferme (2013). 8 The Prosecutor v Sesay, Kallon and Gbao, Prosecution Request for Leave to Amend the Indictment, SCSL-2003-15-PT, 9 February 2004, para. 5. 9 The Prosecutor v Sesay, Kallon and Gbao, Decision on Prosecution Request for Leave to Amend the Indictment, SCSL-2003-15-PT, 6 May 2004. 10 The Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), SCSL-04-16-T, 4 May 2005, para. 16. 11 The Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), SCSL-04-16-T, 4 May 2005, para. 22. 12 This section is based on an analysis of ten ‘bush wife’ testimonies: seven from the AFRC Trial and three from the RUF Trial. The evidence of other ‘bush wives’, particularly in the RUF case, was given in closed sessions and therefore is not available to the public. 13 Witness ‘TF1-282’, AFRC Trial Transcript, 13 April 2005, p.18, lines 1–8. For similarly brief descriptions see Witness ‘TF1-064, explaining she was offered the opportunity to identify a “husband” for herself but when none of the men selected wanted her, “[T]hey brought an old man and they said he is my husband and I am his wife”’ (RUF Trial Transcript, 19 July 2004, p.67, line 24). See also Witness ‘TF1-016’: ‘they [the rebels] came together and then divided all the women among themselves. Each one will come and say, “This is my own wife”, and they distributed all the women among themselves’ (RUF Trial Transcript, 21 October 2004, p.14, lines 13–14). Again she is not asked what being identified as a ‘wife’ meant for her or the other women. 14 AFRC Trial Transcript, 13 April 2005, p.18, lines 16–20. 15 AFRC Trial Transcript, 13 April 2005, p.18, lines 24–28. 16 RUF Trial Transcript, 2 November 2005, p.40, lines 13–17. 17 For example, Witness ‘TF1-016’ states the following, when asked if she agreed to become her captor’s ‘wife’: ‘Not my wish, because somebody is not your husband and you are just taken and given to the person’ (RUF Trial Transcript, 21 October 2004, p.15, lines 3–4). She also later during cross-examination reasserts that she was not ‘formally married’ given that no ceremony was performed or rituals observed (RUF Trial Transcript, 21 October 2004, p.46, lines 4–19). 18 AFRC Trial Transcript, 13 July 2005, p.29, lines 26–27. Julie Mertus points to a similar focus on the perpetrator’s perspective in her analysis of ICTY testimony. She identifies this as a feature of the criminal trial (2004b, p.118).

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126  The case studies 1 9 AFRC Trial Transcript, 13 April 2005, pp.33–45. 20 Judge Thompson: ‘[T]his Court and tribunals of this nature place greater emphasis on the principle of orality . . . it is what the witness states from the witness stand that is of central importance to the Court in the ascertainment of the truth’ (RUF Trial Transcript, 19 July 2004, p.64, lines 10–12). 21 A well-documented example is the reasoning of Australian Federal Court Judge Olney J, who rejected the oral testimony of Indigenous Australians in favour of what he considered to be the more credible and reliable written accounts of European settlers: see Buchan (2002) for a detailed analysis of the judgment. 22 Witness ‘TF1-282’, AFRC Trial Transcript, 14 April 2005, pp.19–20. 23 AFRC Trial Transcript, 14 April 2005, p.20, lines 18–20. 24 AFRC Trial Transcript, 14 April 2005, p.36, lines 23–24. 25 AFRC Trial Transcript, 14 April 2005, p.38, line 19. 26 AFRC Trial Transcript, 14 April 2005, p.24, lines 16–21. 27 AFRC Trial Transcript, 14 April 2005, pp.25–26. 28 AFRC Trial Transcript, 14 April 2005, p.26, lines 5–9. 29 RUF Trial Transcript, 19 July 2004, p.61, lines 9–23. 30 RUF Trial Transcript, 19 July 2004, p.65, lines 27–28. 31 Witness ‘TF1-064’, RUF Trial Transcript, 19 July 2004, p.66, lines 26–28. 32 Witness ‘TF1-064’, RUF Trial Transcript, 19 July 2004, p.73, lines 17–28. 33 Witness ‘TF1-064’, RUF Trial Transcript, 19 July 2004, p.79, lines 2–4. 34 Witness ‘TF1-064’, RUF Trial Transcript, 19 July 2004, p.53, lines 34–37. 35 Witness ‘TF1-278’, AFRC Trial Transcript, 6 April 2005, p.51, lines 10–19. 36 Witness ‘TF1-064’, RUF Trial Transcript, 19 July 2004, p.74, lines 19–23. 37 AFRC Trial Transcript, 14 July 2005, p.8, lines 25–29. 38 AFRC Trial Transcript, 14 July 2005, p.9, lines 7–11. 39 AFRC Trial Transcript, 14 July 2005, p.20, lines 24–26. 40 AFRC Trial Transcript, 14 July 2005, p.21, lines 11–15. 41 AFRC Trial Transcript, 14 July 2005, pp.37–38. 42 For example, during the evidence of Witness ‘TF1-085’, one defence lawyer complains: ‘She is refusing to understand’. The Presiding Judge responds: ‘I think it is rather unfair to say she is refusing to understand. She says she does not understand’. The defence lawyer nonetheless reiterates, ‘She does not want to answer the question. That is my own opinion’, to which the Presiding Judge replies: ‘Opinion and fact, Mr Manley-Spaine . . .’ (AFRC Trial Transcript, 7 April 2005, pp.75–76). 43 AFRC Trial Transcript, 14 April 2005, p.13. 44 AFRC Trial Transcript, 7 April 2005, p.95, lines 24–27. 45 See for example Defence Counsel’s exchanges with Witness ‘TF1-094’, AFRC Trial Transcript, 14 July 2005. 46 Separate and Concurring Opinion of Justice Doherty on Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E) and Joint Defence Application to Exclude this Expert Evidence of Zainab Hawa Bangura or Alternatively to Cross-Examine Her Pursuant to Rule 94bis, 21 October 2005, Case No.SCSL-0416-PT, at para. 5 47 AFRC Trial Transcript, 3 October 2005, p.85, lines 20–22. 48 AFRC Trial Transcript, 3 October 2005, pp.84–86. 49 AFRC Trial Transcript, 3 October 2005, p.97, lines 15–17. 50 AFRC Trial Transcript, 3 October 2005, pp.51–52. 51 AFRC Trial Transcript, 3 October 2005, p.52, lines 14–19. 52 AFRC Trial Transcript, 3 October 2005, p.20, lines 1–2; see also p.53, lines 17–27. 53 AFRC Trial Transcript, 3 October 2005, pp.51–52. 54 AFRC Trial Transcript, 3 October 2005, p.53, lines 13–15. 55 For example, when describing her own rape and that of other civilians, Witness ‘TF1-209’ states: ‘At that time they had raped us. They had used us as their wives . . . . 

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7 1 72 73 74

7 5 76 77 78 79

I was raped by two people . . . . They raped me as their wives’ (AFRC Trial Transcript, 7 July 2005, p.31, lines 20–25). AFRC Trial Transcript, 3 October 2005, pp.64–65. AFRC Trial Transcript, 3 October 2005, p.68, lines 22–26. AFRC Trial Transcript, 3 October 2005, p.68, lines 27–29. AFRC Trial Transcript, 3 October 2005, p.115, lines 24–27. AFRC Trial Transcript, 3 October 2005, pp.115–116. AFRC Trial Transcript, 3 October 2005, p.118, lines 1–11. See for example her exchange with defence counsel Mohamed Pa-Momo Fofanah in the AFRC trial: Transcript, 4 October 2005, pp.3–13. In fact, Mariane Ferme’s research demonstrates that there is little ethnographic evidence to support the claim that the best interests of the girl was a paramount feature in family decisions regarding marriage, with individual autonomy at best one consideration to be taken into account (2013, p.64). AFRC Trial Chamber Judgment, Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (Forced Marriage) at para. 49. AFRC Trial Transcript, 3 October 2005, p.93, lines 24–28. AFRC Trial Transcript, 3 October 2005, p.56, lines 16–17; see also p.54, lines 16–20, p.57 and p.118 for longer descriptions. AFRC Trial Transcript, 3 October 2004, pp.58–60. This is also captured in the testimony given to the SCSL: for example, in the RUF case Witness TF1-362 spoke of a ‘wives platoon’ for women between 18 and 37 years old. Wives also received training and were often viewed as ‘protected’ compared with others due to their relationships with commanders: RUF Prosecution Brief, para. 570, Transcript, 22 April 2005, pp.19–20, 26–28; see also the evidence of AFRC Witness ‘TF1-133’, who refused to be a bush wife and instead became a ‘Mammy Queen’ responsible for negotiating with commanders regarding the welfare of the other women and girls: AFRC Trial Transcript, 7 July 2005. AFRC Trial Transcript, 3 October 2005, p.76, lines 1–8; see also p.126. This is something Bangura herself discusses later in her testimony, reporting that the unemployment rate in the country is 70–80 per cent, there are few investment opportunities in the rural parts of the country and it is largely a cash crop economy (significant given the limited access women in Sierra Leone have to land ownership or even to renting land) (p.99, lines 18–23). AFRC Trial Transcript, 3 October 2005, pp.129–133. Entry from author’s field diary, May 2006. Interview with author, Freetown, 2 February 2011. In the Bo district a number of interviewees expressed mixed feelings regarding the prosecution of Samuel Hinga Norman, the leader of the local militia in that part of the country, the Civil Defence Force. They argued that there were similar local militia in other parts of the country that had not been similarly punished. Interview with author, Kenema, 11 February 2011. Interview with author, Kenema, 8 February 2011. Interview with author, Kenema, 8 February 2011. Interview with author, Gombu Community, Kenema district, 8 February 2011. Writing about the operation of the ICC in Northern Uganda, Maxine Kamari Clarke also points to the ways in which victims are often deprived of the right and ability to, ‘act, interpret and exercise legal power in their own right’. Instead, their role becomes limited to testifying in legal proceedings when called upon, a process that renders them docile beings in need of saving rather than political agents in their own right. This leads her to conclude that, ‘the rule of law thus serves to perpetuate exclusion’ (in Kelly and Dembour, 2007, p.15).

6 From civil to political society

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Human rights, knowledge and power in post-war Sri Lanka

Introduction In the two previous case studies I demonstrated the ways in which technocratic international governance has displaced and in some cases hindered or stifled local politics. I also sought to show that, in spite of this, local actors have found ways to resist and in some cases make use of these institutions to further their own political and social aims. In this final case study chapter, I continue and advance the discussion by casting light on the complexities associated with local actors’ engagement with international human rights in specific locations. I do this through an analysis of contemporary debates around human rights in post-war Sri Lanka based on two and a half years’ ethnographic research conducted in the country between 2012 and 2014. Through this case study I show that issues related to the oppressive and hierarchical nature of institutionalised human rights do not only arise in interactions between international and local actors. Within many sites of serious human rights violations, the existing social and political structures are deeply influenced by inequality and exclusion. This obviously contributes to violations occurring in the first place, but it also points to the paradoxes contained within human rights initiatives. The focus on institutional reform and elite actors often places faith and power back in the hands of the very groups who have least to gain from a substantial shift in the status quo. In making this argument I will pick up on two major debates outlined in Chapter 3. The first concerns the inter-relationship between the ‘local’ and the ‘global’ and the second pertains to the often idealised concept of ‘civil society’ within human rights scholarship. Through an analysis of human rights practices and discourses in Sri Lanka I explore both the positive and negative roles that international human rights play in opening space for positive social change. Following on from this I will examine not just the role that international actors and discourses may play in limiting human rights’ emancipatory potential but also the role of local actors. In particular I will argue that the presentation of ‘civil society’ as the panacea to corrupt and ineffective oppressive state regimes needs to be contextualised in accordance with the histories of particular postcolonial sites. This leads me to explore the possibility of alternate sites for claim making and to discuss what these sites also might contribute to allowing the local to shape the global discourse of universal human rights.

From civil to political society: Post-war Sri Lanka  129

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Background: the post-conflict setting In 2009, following nearly 30 years of internal armed conflict, the Sri Lankan Army succeeded in cornering and annihilating the leadership of the armed Tamil opposition group, the LTTE.1 This decisive military victory was celebrated by many within the nation as finally offering the possibility for the restoration of peace. At the same time the human rights community, both locally and internationally, sought to draw attention to the reports and images of mass civilian casualties as the population of the northern part of the island became trapped in an ever-smaller strip of land between the two opposing sides. This, combined with the government’s continued militarised control and intimidation of civilians as well as its ruthless crushing of dissent, caused concern that without serious demilitarisation, accountability and reform measures the human rights situation in the country would not improve. Sri Lanka thus remains a major contemporary site of attention within the human rights world. At the same time, while in Kosovo and Sierra Leone the post-conflict period marked a site of intense international intervention, in Sri Lanka it has produced the opposite effect. From the beginning of 2009, human rights and other international organisations reported ever more limited access in Sri Lanka – and this trend has continued to the time of writing.2 So what have been the ramifications of this dismissal of international interventions, initiatives and even – at a minimum – involvement? Does the return to ‘local solutions’ provide a more legitimate process? Does it avoid the problems associated with international reproductions of (neo)colonial discourses identified in the previous case studies? The Sri Lankan case study provides an interesting site for investigating the diversity of the ‘local’. As highlighted in the previous chapter, the question of who speaks for the ‘local’ and how is a highly contentious but also important one. A closer examination of this question also illustrates that the problem of power as it plays out in human rights discourses and practices is far more complex than simply the divide between the international and the local.

Mobilising international human rights While the international presence in Sri Lanka has been limited in the post-war period, this is not to say that international human rights have had no impact on the local socio-political scene. Prior to the final stages of the war Sri Lanka had been a site almost saturated with international attention and interventions in the form of aid and development and peacebuilding initiatives (Goodhand et  al., 2005; Goodhand and Walton, 2009). Moreover, local actors had themselves used (and in some cases continue to use) international discourses and frameworks as a means of instigating local processes of change and/or accountability. In the area of women’s rights as human rights Sri Lanka has had a particularly rich history of engagement between local women’s rights activists and the UN system, well illustrated by the appointment of Sri Lankan feminist lawyer Radhika Coomaraswamy (who continues to be active in the local human rights community), as the first UN Special Rapporteur on Violence against Women.

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130  The case studies Lisa Kois (2007) has also documented the ways in which Sri Lankan feminists have made interconnected use of both international and national human rights frameworks, particularly on the issue of violence against women. Writing about the responses of Sri Lankan women’s groups to the tsunami and the war (and the failure of many national actors to recognise the interconnections and parallels in terms of suffering), Neloufer de Mel concludes that despite the significant critiques of human rights, they still hold promise for many groups in militarised zones (de Mel, 2007, p.251). In particular she writes: ‘That, despite its drawbacks, human rights continues to provide a frame of reference for Sri Lankan women’s groups points to its promissory call for choice, freedom of speech and mobility, etc., which become all the more compelling in such a climate of fear and reprisal’ (de Mel, 2007, p.252). She also identifies the practical effects of the women’s movement(s) in drawing on the human rights framework that, ‘enabled them to draw attention to the contiguities between the political and “natural” disasters of the war and the tsunami’ (de Mel, 2007, p.252). It is not only in the context of the women’s movement that international human rights have been seen to open up possibilities for people trapped within the conflict zones. When asked his opinion of the human rights framework (and whether he found it useful), one Tamil activist told me: I remember in the mid-80s when, say, abuses would happen in Sri Lanka, there was a sense that often international organisations like Amnesty who were using the framework would talk about events in Sri Lanka, say, when nobody else was. So it was interesting at that time, in some ways you felt it was a very important framework and lens because it allowed incidents that were seemingly in a small place [to] receive certain international attention.3 While for this particular activist, the international human rights scene had changed to render such actions less straightforward, others in Sri Lanka continue to see the international human rights framework as providing opportunities for positive shifts and outcomes. For some, the more recent intransigence and often open belligerence of the Sri Lanka state in its interactions with the international community are evidence of the impotence of the international human rights system. However, there is a feeling among others in Sri Lanka – at least at the level of elite civil society – that UN actions and debates have impacted at the local level. Although the state maintains an openly defiant front, human rights lawyers note the faster than expected closure of the Menik Farm IDP camp as well as the significant decline in harassment, disappearances and assassinations following the March 2012 UN Resolution.4 It is impossible to measure the extent to which this external interest can be considered causally responsible for a reduction in the levels of state violence and surveillance. However, it has led to local human rights actors continuing to invest – albeit circumspectly at times – in the UN system. In the words of one human rights lawyer: ‘I put a lot of energy into the March 2012 Resolution.5 I wanted to be there and make sure we got governments on side. I am less bothered about subsequent resolutions. The important thing was the process

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From civil to political society: Post-war Sri Lanka  131 that it opened up [back in Sri Lanka] rather than the outcome’.6 This would suggest that a complete rejection of the international framework as useless is hasty. It is perceived as a tool that can be productively drawn upon by civil society in particular contexts: whether as a ‘bargaining chip’ for Tamil political negotiators, as one Sri Lankan lawyer described it,7 or as a means of checking the unrestrained use of force, as another has argued.8 It is also not just elite Colombo-based actors that have engaged with the international system (although their privileged access to this arena will be discussed a little later). Individuals I spoke with in the north and east of Sri Lanka also attested to the significant risks they have taken to meet with various international delegations that have visited Sri Lanka over the last 5 years to document violations. Two Tamil women’s rights activists told me they had met with Special Rapporteurs in the past and that a friend of theirs had taken the risk of meeting with OHCHR High Commissioner Navi Pillay during her visit to Sri Lanka in 2014. They commented: ‘if someone comes through a trusted source we still believe that person will take our stories to a relevant forum’.9 This mirrored remarks made by Roma activists I met with in Kosovo back in 2006 when I expressed embarrassment at being a ‘parachute researcher’, coming in to extract their stories and then leave again. They were much more pragmatic and told me they realised that within global power dynamics they needed to use intermediaries like international human rights organisations and researchers in order to hope to be heard in the ‘corridors of power’. Despite its inaccessibility sometimes, the existence of a system was still identified as positive. As one Sri Lankan female activist explained: ‘As long as there is a system we still have some hope, even if it’s flawed and doesn’t work’.10

Utilising human rights language: a source of power? Meanwhile many Sri Lankan activists continue to work within communities to introduce them to the language of human rights. This is often not due to a particular faith in the mechanisms by which individuals might gain redress but is a more general strategy for community empowerment. For example, activists from a local lesbian, gay, bisexual, transgender and intersex (LGBTI) rights organisation described the purpose of their community-level workshops as to help counter the internalised self-hatred and homophobia that many young LGBTI people feel and to build some sense of community and individual empowerment. This is despite the lack of legal mechanisms available to LGBTI people in Sri Lanka to protect their rights.11 Similarly, the founder of grassroots community organisation Janasansadaya, commenting on a particular ‘awareness raising’ workshop he conducted in a ­village (discussed further a little later), observes: ‘There was an attitude inculcated in people: You cannot challenge the system. After this [workshop], the first thing I would say in the villages was, “No, there is something you can do. You are powerful”’ (Lawrence, 2008, n.p.). This has led to mobilisation within communities, in spite of the highly repressive environment within which they have

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132  The case studies been forced to live. A recent example is the People’s Tribunal against Torture held in Negombo on 27 February 2012. It is also evident from some of the community human rights training workshops I have observed that there is a thirst among participants to be exposed to and to understand the language of institutionalised human rights. For example, in a workshop for local community human rights activists organised by the Human Rights Commission of Sri Lanka in Trincomalee,12 the participants were interested in knowing both what the articles of the various international human rights conventions said and what they meant. It seemed that having access to this language was perceived as providing them with a powerful tool (an issue I will come back to a little later, to discuss its more problematic implications). And indeed, individuals I have spoken with in Sri Lanka have identified the ways in which the formal language of human rights law has at times been a useful source of power (in a manner similar to that described in the previous chapter regarding women’s rights activists in Sierra Leone). For example, one woman activist from eastern Sri Lanka provided the following description of her first attempt at using the language of human rights: [I]n 1996 we were displaced from Jaffna to Kilinochchi. We were cut off from the rest of the country, no phones, could only pass messages through a few organisations – ICRC. My aunt in Colombo got sick, Oxfam GB told us to come to the office to take a call. There I read a poster they had up – I used it to free my cousin who had gone to join the LTTE. She had gone to the camp so I turned up at the camp and demanded to see her. In the end they invited me in and gave me tea! I don’t know how I was interpreting them [human rights]!!13 Another woman told a story of being stopped in Vavuniya during the time of the pass system:14 ‘I got arrested and was arguing using human rights – I demanded a lawyer, a woman officer, etc. and that was helpful’.15 Meanwhile, I asked a Buddhist monk in Puttalam district (north-western Sri Lanka) why, despite his many years of community activism and his high standing within the local community (including in the eyes of local officials), he still considered it useful to complete a diploma in human rights through the Colombo University-based Centre for the Study of Human Rights. He told me that he had found the language of human rights useful when he was dealing first with farmers’ issues in the 1990s and then helping Muslims during the 1995 anti-Muslim riots. This had inspired him to form a local committee of lawyers to help him and they had proceeded to take court action in relation to a couple of land issues. While they lost the first case, he told me, it had galvanised people into action. They tried again in a case relating to phosphate mining and on that occasion they had won. He therefore concluded that while human rights and the legal system were not the only tools available to him, they were useful alongside other strategies for bringing about positive change.16 As in the case of Sierra Leone, these examples point to positive small-scale contributions that human rights law may in fact make to the lives of people in

From civil to political society: Post-war Sri Lanka  133 different locations. While not always effective, their ability to draw on the powerful language of law is perceived by individuals as a useful additional tool to navigate difficult situations in which they may otherwise have very little power. It is this aspect of the ‘everyday uses’ of law to which I will return in Chapter 8.

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The pros and cons of engaging the international framework As one Tamil activist living in the Vanni region explained: [The UN accountability process] doesn’t mean much physically to the people here but it does mean something mentally. There are two camps: those who feel, ‘The international community didn’t save us in May 2009 so why would we believe in this now?’ Then the others who feel hopeless about the local situation and feel some hope that maybe finally the international community is recognising what has happened to them.17 This points to the fact that in spite of its limitations, the international human rights system does provide some hope for those otherwise excluded or actively discriminated against within the local or national setting. In the words of another activist in the East of Sri Lanka, for those who have nothing and have had their rights violated, that is the only hope they have – Gods and international human rights. Maybe for us not directly affected, we have given up but for those people it gives them something to continue to fight.18 At the same time, this hope has been tempered with frustration at the lack of tangible outcomes for people within Sri Lanka and scepticism regarding how international human rights is implicated in national and geopolitical power struggles: The problem is most people don’t really understand what it all means – they don’t understand the international system. So they express hope but when you ask them more questions at the bottom they don’t trust that anything will actually change. Meanwhile the politicians use it for their own benefit and agendas – the TNA19 supports the international process because they are not doing anything here. There are things they could do but they are too afraid, there is a lack of leadership.20 Many proponents of universal human rights assume that the rejection of the international human rights framework is purely motivated by the self-interest of potential perpetrators or the cynical manipulation of the public by local elites to maintain power. This is one of the most common criticisms levelled at relativists in the human rights debate (as outlined in Chapter 1). However, it is important to note that in the context of Sri Lanka the questioning of the international human rights framework (and its potentially imperialist motivations) does not come only

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134  The case studies from the dominant majority or self-interested local elites. Nor is it only a critique made by ‘trendy’ postcolonial scholars (see Chapter 1). It is also a concern of supposed ‘beneficiaries’’ human rights. In Sri Lanka this view was expressed by members of the Tamil community, operating in the north and east, who have personally both been subjected to human rights violations and are involved in work to counter the violations of others in their community. For example, the activist cited earlier who noted the positive attitude he and others held towards international human rights in the past went on to add: [I]t is no longer so straightforward that you feel like, ‘Oh isn’t it great if some international body would pay attention using the language of human rights’. You know earlier there was this perception that, ‘Isn’t it fantastic that even when a massacre happens in say Kokkadichcholai or some village in Jaffna, somebody internationally will pick this up because of this framework’. Whereas now . . . there is an awareness that it is much more complicated, that it might even make your situation more difficult because of who is trying to use it for what end, right?21 This scepticism, even on the part of those who apparently are supposed to be helped by international human rights interventions, requires us to return to thinking more deeply about the extent to which the currently asserted universal foundation of human rights (and the actions instituted in its name) is sufficient. It is also unfortunate that for many (particularly Tamil) activists the language of ‘human rights’ has become of limited use in recent years largely because of its automatic association with (and restriction to) the armed conflict context. This points to a problem that has also emerged in relation to attempts to use the international human rights framework in response to the Sri Lankan situation. The ways in which the international community has characterised human rights issues in Sri Lanka has had significant consequences for local debates about human rights, often in highly counter-productive ways.

‘The ethnic conflict’ Sri Lanka’s postcolonial history has been one of almost endless waves of violence by both state and non-state actors (Tambiah, 1986, 1992; Kapferer, 1988, 1994, pp.59–60, 86; Spencer, 1990). Yet in its investigation into major violations of international humanitarian and human rights law the Panel of Experts appointed by the Secretary-General stated that their mandate was limited to ‘the final stages of the war’, which were defined as being between September 2008 and May 2009.22 This temporal frame was expanded somewhat for the more recent OHCHR investigation (extending back to February 2002 and up until November 2011) but remained focused on the final phase of armed conflict between the LTTE and Sri Lankan Armed Forces. Justified as the pragmatic confinement to a specific temporal jurisdiction, this once again demonstrates the limitation of international law’s ‘crisis focus’,

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From civil to political society: Post-war Sri Lanka  135 c­ reating the appearance of exceptionality yet doing little to address deeper, longterm structural issues and potentially distorting the very understanding of what happened and why (an argument I have already made in this book). In Sri Lanka, the dominant narrative – as with Kosovo – has become one of a battle between irreconcilable ethno-nationalisms. In the process, the focus has come to settle on Sri Lanka as an ‘ethnic conflict’ and much of the attention has been on the treatment of Tamils by the Sri Lankan state. While undoubtedly discrimination and violence against the Tamil minority has been a major cause for concern, the (almost exclusive) utilisation of an ‘ethnic’ lens has – again as in Kosovo – had counter-productive effects. For example, the ‘ethnic conflict’ label fails to recognise and address the significance of the other major political conflict – that involving Singhalese insurgents – that occurred alongside the Tamil insurgency in the 1970s–1990s. The period is generally cited as the worst in terms of state-sanctioned disappearances, murder and torture in the late 1980s and early 1990s (AI, 2009). This was a period where not only Tamil separatist movements but also Singhalese youth movement the Janatha Vimukthi Peramuna (JVP)23 were at their height and many of the cases of mass disappearance and torture involved Singhalese youth.24 More recently anti-Muslim violence has been a growing cause for concern, with Buddhist fundamentalist movement the Bodu Bala Sena burning Muslim shops, businesses and homes with impunity. These incidents point to a link between the failure on the part of the state to adequately protect minorities and a generally problematic relationship between the state and its citizenry within which violence and intimidation has become the norm (Kapferer, 1994, p.71): a situation explained by some expert commentators as arising out of the hierarchical logic of state ideologues to legitimate authority and power (Kapferer, 1994). Meanwhile, in response to the assumed interconnectedness of liberalism, peace and respect for diversity (described earlier) as forming the basis of much contemporary human rights discourse, Jonathan Spencer has argued that, ‘the origins of the “ethnic” divide between Sinhala and Tamil, and much of the peculiar nastiness of the past 20 years of conflict lie in the institutional structure and working dynamic of representative democracy in Sri Lanka’ (2008, p.619). In the establishment of the liberal democratic parliamentary and legal system, little was (or has been) done to ensure the social, cultural and economic conditions that would make such systems meaningful for the majority of the population. Similarly the relationship between the population and the law enforcement and security sector is the legacy of a colonial structure in which the latter was seen as a unit of control, repression and force. Meanwhile, much of the unrest in the south of the country related to the lack of economic and employment opportunities for (politically and socially) unconnected rural poor, regardless of their education. In this context the expanded recruitment for both the armed forces and police throughout the 1980s, 1990s and 2000s provided alternative employment avenues for those unable to access highly sought-after public sector jobs. This helps explain some of the popular support for the military and also highlights

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136  The case studies the broader socio-economic contributors to conflict across ethnic divides. With no regard to this background context, human rights responses (both internal and external to Sri Lanka) nonetheless frequently continue to rely on recommendations to reinforce the formal system. This is in some ways inevitable given the human rights system’s focus on state responsibility. However, it is in spite of the fact that although the formal political and legal institutions in Sri Lanka have often been praised for their adherence to liberal democratic norms,25 they have repeatedly proven themselves incapable since the beginning of adequately mediating the claims of different constituencies – hence the resort of so many groups to armed insurrection. Meanwhile, the focus on the ‘ethnic’ dimension comes at the cost of examining how socio-economic policies – at both the national and international level – continue to disenfranchise large sections of the Sri Lankan population across ethnic lines. Instead, it provides a useful tool for local Tamil and Sinhalese elites to mobilise disadvantaged members of the community around an ethno-nationalist discourse, which in fact often does little to further the latter’s interests. Historically the social and ethnic (as well as other) hierarchies maintained and indeed promoted by the British colonial authorities necessarily contributed to the resentment of the Sinhalese rural majority, later capitalised upon by postcolonial politicians through the implementation of exclusionary and Sinhalese Buddhist nationalist policies (Sivanandan, 1984; Tambiah, 1986;26 Kapferer, 1994; Weiss, 2011). This appeal to communalism was often linked to particular economic and development policies (Sivanadan, 1984; Spencer, 2008) and their failures (Abeyratne, 2004). Ambalavaner Sivanandan writes: ‘Communalism had grown out of a soured nationalism which, having failed to wrest power from the British through an anti-colonial struggle uniting the various communities, turned them (the communities) to wresting it from each other when it was thrown to them like a bone’ (1984, p.17). By focusing (exclusively) on the ethnic dimensions of human rights violations in Sri Lanka the international community has succeeded in adding new fuel to the communalist cause. With the international community apparently concerned with the ‘Tamil victim’ and calls for accountability of state security forces perceived as punishing the sons of the Sinhalese rural poor, the unaddressed and unacknowledged grievances of poor Sinhalese have been effectively capitalised on by Sinhalese ruling elites to create a sense of unfairly targeted and embattled Sinhalese victimhood. As a result local human rights activists – including those operating at the grassroots level – have faced an increasingly difficult climate within which to make their claims, in the face of the highly effective deployment by pro-government elites of the ‘neo-imperialism’ and ‘Westernisation’ charge. Although activists often come up with strategies to counter this (trying to focus on the indigenous roots of many human rights values), the automatic linking of ‘human rights’ with ‘Geneva’ (i.e. the UN) has left them feeling increasingly embattled and marginalised. Interestingly many of those working within more grassroots human rights organisations and social movements in fact trace their origins back to communist, trade unionist and (in some cases) early JVP socialist

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From civil to political society: Post-war Sri Lanka  137 activism, evidencing again the manner in which human rights has come to provide the only space for leftist progressives disillusioned by the failure of other more radical political projects (discussed in Chapter 3). Sadly, while their social movement past linked them directly with popular sentiment, their move into the field of human rights has created greater distance. Thus, even as they represent the type of human rights aimed at transformative political practice that Baxi (2008) identifies as the positive ‘politics for human rights’, this is often rendered invisible due to both global and local hegemonic representations of human rights as elite focused and internationally (read here ‘Western’) driven. Tamil activists have found that they cannot speak of human rights without it automatically being related back to the war. This allows their demands to be dismissed ‘now that the war is over’, placing them at risk of being co-opted for other nationalist agendas (as has frequently happened with the various women’s and feminist movements throughout the war: de Alwis, 2009; Vasuki, 2014; Thangaraja, 2014) or at risk from the state for failing to let the past lie and potentially being sympathetic to a new insurgency. Meanwhile, grassroots Sinhala activists find themselves accused of betraying the nation and attacked by the very constituencies they see themselves as representing and protecting. This highlights the paradoxical role that human rights play in contemporary Sri Lankan society. On the one hand, human rights have been asserted as a tool for giving the poor and marginalised a voice. On the other, the dominant human rights response has not only failed to grapple with many of the problems affecting the majority of the population (as noted above), it has often been limited to elite-driven and undemocratic processes and mechanisms.

‘Teaching human rights’: education as empowerment? In this section I will focus specifically on human rights education programmes that have proliferated in Sri Lanka (as elsewhere) in recent years and which provide a useful lens for identifying some of the problems with contemporary human rights practices both in general and in the context of Sri Lanka specifically.27 As noted in Chapter 3, alongside strengthening legal mechanisms and accountability, education has been a major focus for recent human rights initiatives. This education has occurred in a variety of ways, from grassroots community ‘awareness raising’ initiatives to more formal human rights training of both civil society and government actors. The diversity of audience raises questions about how exactly education is understood to contribute to the concrete protection and promotion of human rights, but the most frequent explanation given is that it provides a means of empowering potential or actual victims, building community consciousness and conveying responsibilities to potential or actual perpetrators.28 It is also presented as a means of moving away from the sole focus on legal redress and accountability to providing an alternate way in which human rights can be implemented (Celermajer and Grewal, 2013). But to what extent does human rights education overcome the problems associated with more legally focused practices? I will argue that ultimately these

138  The case studies initiatives often reproduce similar problems. This is partly because they are unable to completely move away from the legalistic focus of human rights but also partly due to other, more general problems with institutionalised human rights practices. Let me address the legal dimension first.

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The legal focus of human rights In October 2013 I was invited to participate as an ‘expert’ in a training programme to be held in Anuradhapura (north-central Sri Lanka) on Security Council Resolution 1325 ‘Women, Peace and Security’ (SCR 1325). The participants ranged from local government officers to community-based organisations, activists and local professionals. Arriving a little early for my session, I entered the ‘Question and Answer’ discussion of the previous trainer. An academic from one of the country’s leading law schools, she had provided an extremely detailed breakdown of the contents of SCR 1325, including the requirements for institutional participation of women at all levels of government. In response to this she was subjected to questioning regarding how exactly in a highly centralised bureaucratic system residents of North Sri Lanka, who were not even able to move freely without military surveillance, could practically force the central government to comply and pass such institutional reforms. Her confidence unshaken, she returned repeatedly to the wording of the text of SCR 1325 – although she did finally concede (somewhat irritatedly) that in fact it was more about how legally trained intellectuals based in the capital might try to sway the authorities than anything the average Jaffna teacher or Vanni-based women’s activist could do. I have witnessed this type of encounter repeatedly over the last three years while both observing and participating in human rights training sessions with a range of audiences and across the country. Normative frameworks and details of national and international legal obligations are presented over and over, while questions regarding people’s lived experiences, the practical challenges and political realities that might affect their relationship to the norms and laws, remain unanswered, creating a seemingly unbridgeable divide between the trainer and the trainee. This is a source of complaint on the part of trainers as well. In a focus group discussion held in May 2014, one human rights trainer shared: ‘I had a situation in Trinco[malee] where the audience kept asking about a land issue and I had no answer. All I could say was, “You can file a case” – but they can’t really go to Colombo! And they have no faith in the Supreme Court!’ He went on to say, ‘I usually give them my contact numbers and/or try to ask my friends for help – to keep their [the trainees’] trust in me so that they listen to me’.29 The following example, provided by Chitral Perera, founder of local grassroots human rights organisation Janasansadaya, about an ‘awareness program’ he had organised bringing lawyers to teach villagers about criminal law and procedures, further illustrates the point: ‘A man got up, slightly drunk, and said, “What’s the point? This isn’t how the law actually works. What does the penal code mean to us?” The lawyer

From civil to political society: Post-war Sri Lanka  139

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was annoyed, but I noticed that the rest of the audience agreed with the man. I changed the discussion. I said, “Tell us what you mean.” And it was then I discovered: People know all about injustice, right and wrong, courts and lawyers. The awareness is there. The question was power’. (Lawrence, 2008, n.p.) While there are organisations and trainers that have been trying to adopt different practices within their approach to human rights education, they remain the minority. As another local activist in Colombo put it: Lawyers are usually commissioned to deliver human rights training as ‘experts’, but they don’t have human rights in their blood. The knowledge is there but attitudes have not changed – it is like religious education which is there throughout school but we still don’t believe!30 As a result, like in Sierra Leone, local community members when asked about human rights can often regurgitate human rights language but see very little connection between this language and their lives and problems. The process of translating this legalistic framework into something that is accessible and meaningful remains a challenge, especially where legal systems do not in fact offer genuine opportunities for redress for the vast majority and even less so for those most vulnerable. At the same time, I do not think the problem is limited to the obstacles associated with law. After all, as I noted above, quite often both grassroots activists and community members are far more pragmatic about the extent to which institutional responses are actually available to them. It is therefore not simply a lack of faith in the system that makes human rights education initiatives irrelevant or counter-productive. As I have set out in Chapter 3, while the legalisation of the field of human rights is perceived as a major source of its depoliticisation and deradicalisation, arguably the problem runs deeper. In the case of human rights education I think this is well evidenced by the fact that it is not only the legal focus that limits its utility but also its investment once again in practices of governance, its frequent reliance on hierarchical education models, and the continued inability to find ways of moving from the highly abstract normative realm to engagement with lived socio-political realities and conflicts. As a result the division between those who save and those who are saved is in practice no less present in human rights education initiatives than it is in legal processes. Second, the proposed strategy for avoiding relativist clashes in relation to the content of human rights by focusing on highly abstracted moral principles and internationally agreed legal norms (as put forward by Donnelly, discussed in Chapter 1) in practice contributes to a perception of intangibility and therefore practical irrelevance. Human rights training: another practice of governance One of the major problems with human rights education is that through its focus on international and national policies and laws it diverts all possible resistance

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140  The case studies back to institutions. In one session I conducted with community activists and local government officials we tried to extend our focus and also consider other social, political and cultural strategies (largely inspired by what I had observed in my interactions with the Third Eye collective, discussed later in this chapter). For example, in trying to address the problems of women’s low participation in local decision making it became clear that it was not a question of creating a regulation mandating a quota. The obstacles were by and large practical (concerning who would look after the children and how women would travel to the meeting if it was far from their village) and cultural (how women would explain why they had not prepared dinner, which should be their priority). We therefore strategised about how to mobilise women to share childcare, allowing at least a few women to attend, or how to make use of husbands and other male family members who were sympathetic to try to shift other men’s attitudes. However, following this, when I tried to seek out other references and examples of similar approaches to human rights education, I found little available that utilised such an approach. My hypothesis as to why this is the case is that such an approach takes trainers out of the realm of their expertise (I had to rely on participants to come up with ideas as I would not know what a woman living in Jaffna might practically do to attend meetings), something that is both unsettling and disruptive of the power relationship (an issue I will return to in a moment). It is also highly questionable whether the increasing focus on human rights education directed at state officials (as potential or actual perpetrators of human rights violations) can be seen as a progressive development. Instead, it seems to further evidence the ‘governance’ focus of human rights, discussed earlier in this book. As in the focus on institutional development and design described in Chapter 4 on Kosovo, the assumption is once again that there is some formal institutional arrangement that can ensure human rights with the democratic potential of human rights as a form of progressive politics again extinguished. There is also no recognition of the element of power, which continues to remain situated in the hands of the state (the sovereign who is begged to be merciful) and other elite actors (namely the human rights ‘experts’ who come in to train). This does nothing to shift the position in society of the disadvantaged, who are most often subjected to the violence, discrimination and mistreatment. The role of education In the previous chapter, on Sierra Leone, I began to explore the relationship between knowledge and power in the process of human rights education. In Sri Lanka the role of education in the establishment and maintenance of hierarchical relations of domination cannot be overstated. If education is a marker of status in general and in postcolonial states in particular, then nowhere is this more true than in Sri Lanka, where it operates as the marker of social status (even as it masks the operation of class and caste and the urban/rural divide). The education system also continues to replicate the traditional colonial model. As Partha Chatterjee explains: ‘Within a context that is defined as educational,

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From civil to political society: Post-war Sri Lanka  141 there is an authorized relationship between one who “knows better,” and one who doesn’t quite know enough’ (2011b, n.p.). It is precisely this tension that to me explains why trainers frequently return to abstract knowledge rather than expressing a willingness to say when they have no solution(s). To admit the latter is perceived as a weakness and potentially removes the trainer’s legitimacy and authority. However, as Chatterjee points out, this neat relationship becomes much more complicated when there is an attempt to engage outside of the university, especially with populations who have for too long been subjugated and whom the educator is apparently committed to empowering. Without reconciling this tension between ‘education’ as imparting knowledge and ‘empowerment’ as shifting the authority to know, it seems impossible for human rights education to achieve its claimed purpose. This hierarchical relationship to knowledge is not only a problem associated with the need within human rights for some degree of ‘expert knowledge’ due to their legalistic content and form. In fact, there has been a shift away from legally focused human rights education towards more ‘ethics-based’ training, especially in the field of professional training: that is, training conducted with government officials, security sector and law enforcement personnel. However, this has proven equally problematic. If the legal expert has the power to patronise the uninitiated participant based on their lack of legal knowledge, the position of the trainer or educator in ‘ethics education’ is both more arbitrarily assigned and equally capable of being patronising. In the ethics sessions I have observed, it often becomes a mimicry of religious instruction or of primary school education, with the trainer in the role of the didactic and polemic teacher. The ‘ethics approach’ also flounders in terms of its foundational assumptions. The first is its assumption that people will change their moral positions simply because they are told to do so by someone else. Related to this, it also assumes that there is no existing moral reasoning or code that allows individuals to justify their actions and beliefs, treating them instead as morally blank slates upon which human rights can be imposed. As I suggested in relation to Sierra Leone, this produces a disturbing implicit narrative of ignorant, downtrodden individuals who know no better than to allow themselves to be subjected to exploitation or violation. Meanwhile, in the case of perpetrators it constructs them as violent or repressive automatons waiting to be reprogrammed by their more enlightened brethren in the human rights community. Either way there is no acknowledgement of individual agency or consciousness, while it over-estimates and values the moral superiority of the trainer. Thus ethics-based human rights education in an educational context like Sri Lanka is potentially even more disempowering than more legally focused packages as it creates and maintains a hierarchy of those seen to be capable not only of knowledge and action but also of moral reasoning. Dealing with disagreement At the same time, human rights education has often proven no more capable of addressing the complexities of individuals’ lived realities or the diversity of value

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142  The case studies systems than legal mechanisms. As evidenced above, this is one of the most frequent criticisms of human rights training/education/awareness-raising initiatives by participants: that the standards and principles they are being taught stand in opposition to what they know and experience in lived local, national and geopolitical realities. The most vivid and recurrent example of this I have seen is, in response to trainers asserting the universal prohibition of torture as a norm of customary international law, the barrage of questions regarding the United States, Abu Ghraib and Guantanamo Bay. While trainers return to international legal norms, this is contrasted with participants’ equal insistence on examining the actions of international actors and institutions in practice. Even those who express a commitment to human rights are sometimes unconvinced of the norms they are taught. For example, in a human rights workshop in Trincomalee with community-based human rights activists, one participant commented: ‘I am a teacher, the problem is when we teach people about the Convention on the Rights of the Child they come and complain more about how we are treating their children. How are we to discipline them?’ Thus even as this participant saw himself as committed to human rights, his interpretation of these standards and their implications for communal life saw him come into conflict with the abstract universal and, in his view, unrealistic norms that were being conveyed. Ultimately it is in the messy ground of disagreement as to the appropriate moral or ethical order that real engagement can occur. However, few are willing to enter this terrain given its unpredictable and potentially dangerous outcomes (for example, ‘What do we do if everyone agrees torture is justifiable?’ Or, ‘What can I practically propose to people who have no access to formal mechanisms of enforcement?’). While perhaps understandable, currently the appeal to an abstract universalised morality and a reluctance to engage in more substantive debates about how such a moral order should be decided upon and what it should contain at best does little to shift towards a greater commitment to human rights and at worst creates further alienation. Such issues cannot be resolved within the current format of human rights education in which the educator is presented as the authority. After all, there are no easy answers both to how human rights can be practically applied and to how they should be interpreted when placed alongside other value systems. The conditions for this disagreement and debate to become possible require a fundamental shift in the power relations currently reproduced in hegemonic human rights practices at both the international and local levels. Having already dedicated considerable attention to the international dimension in my earlier case studies, in this chapter I will focus on the local.

Unpacking ‘the local’ [T]he work of righting wrongs is shared above a class line that to some extent and unevenly cuts across race and the North–South divide. (Spivak, 2004, p.525)

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From civil to political society: Post-war Sri Lanka  143 In Chapter 3 I described the ways in which ‘civil society’ has become synonymous with human rights and is championed by a range of actors from the World Bank to more progressive human rights scholars and advocates as the antidote to corrupt, oppressive or ineffective states. I also identified the critiques that have emerged in recent years focusing on how international civil society may in fact be complicit with reproducing global hierarchies in power relations. As the experience in Sri Lanka demonstrates, it is not only at the level of international or transnational civil society that processes of domination operate. It can be equally true of networks of human rights actors within specific locations. It is for this reason that further attention needs to be paid to the different ways in which civil society may operate (and at different levels) within any given context. One local human rights scholar and advocate told me that his feeling was that human rights just did not seem to resonate with ordinary people in Sri Lanka. He contrasted this with what he knew of Latin America, where victims groups had been responsible for creating a movement. For him it was this mobilisation to create a popular movement that was lacking in Sri Lanka.31 In my view the lack pertains less to popular movements in Sri Lanka than to the failure to find a space for building links between the movements operating at different levels of society.32 While Didier Fassin points to a tension within humanitarian politics between a politics of compassion as a politics of inequality (pity) and of solidarity (Fassin, 2012, p.3), what is most noteworthy in the Sri Lankan context is the absence of a discourse of solidarity. To understand this absence better it is necessary to first work towards unpacking the ‘local context’, a sphere that on closer examination is a highly complex and diversified space. As elsewhere, the field of human rights in Sri Lanka is dominated by lawyers. This may be one of the reasons for the constant reinvestment in institutions and the formal legal system, even as advocates express despair at its inadequacies thus far. At a conference on transitional justice in Colombo in February 2014, debate oscillated between frustration at how ineffective judicial actors had been thus far in achieving accountability for human rights violations and discussion about which of these actors would be best placed to head up an institutional body designed to bring redress to victims. The very commitment to a further judicial body given the long history of past commissions of inquiry in Sri Lanka33 that have failed to deliver tangible results is evidence of the apparent struggle many within the Colombo human rights community have with envisaging possible strategies outside the legal system. As one human rights lawyer remarked, this commitment to the corrupted legal system has also meant that many within the human rights community have not invested in the political scene. Instead, in his view, they have been used very effectively by political actors.34 On the face of it the legal human rights community in Sri Lanka has been fairly effective in terms of getting the state to incorporate and implement international human rights standards, often identified as the key component of human rights advocacy (as described in Chapter 4). Yet Sri Lanka perhaps

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144  The case studies best exemplifies why the human rights community’s focus on the ratification and implementation of international human rights norms as the end point of advocacy (discussed in Chapter 2) is an insufficient approach to evaluating the effectiveness of human rights. After all, throughout the 1990s, despite Sri Lanka’s ratification of all the major international conventions, the operation of a well-respected, active and independent national Human Rights Commission, a Supreme Court that did take action in torture and other fundamental rights cases, and a state that continued to engage with the international human rights system, political violence continued at extremely high levels. Perhaps even more importantly and often completely unremarked upon is the fact that human rights processes and mechanisms, far from providing the basis for an asserted equality of human beings, have actually served to reinforce differential worth being ascribed to citizens in Sri Lanka. For example, the compensation amounts awarded by the Supreme Court in torture cases have ranged from lawyers who have received up to 250,000 Sri Lankan Rupees (LKR) (approximately US$1900), military and police around 76,666LKR, and semiskilled labourers and skilled employees between 29,375LKR and 16,500LKR (Pinto-Jayawardena, 2009, p.201). So too in the 1990s Commissions of Inquiry into Disappearances, the amount of compensation was awarded on a scale, with the families of disappeared students entitled to 15,000 LKR and families of politicians entitled to up to 500,000 LKR (Iqbal, 2010). Yet it is not this that is raised as a concern within human rights debates in Colombo. Rather it is the decline in institutional responses to the attacks on high-profile political and other dissidents. For the most part the everyday violence and oppression of the lowest ranks of society passes without comment: a simple reality of life (see Lawrence (2008) for a similar conclusion). This also plays out in the space of human rights training sessions. For example, in a human rights workshop for members of the armed forces I observed there was a discussion about whether someone being slapped by the police constituted torture or cruel, inhuman or degrading treatment or punishment (CIDTP). The first example given was of a rural village woman. One officer stated that this would constitute torture because, ‘she would have come to the police for justice. And given her upbringing she wouldn’t be used to such treatment. She came to the police to solve her problems’. The trainer then asked if the situation would be different if one of the other observers – an academic researcher from the local law school – were to be slapped. The response was, ‘[This would be] even worse! It would definitely be torture or CIDTP’. In justifying this response, one participant asserted it was because ‘they know the law’. Another suggested that, due to their ‘higher social status’ (as lawyers and university researchers), the insult to their dignity was even greater. This view was not challenged by the trainer. The ramifications of this differential citizenship have affected not only institutional power arrangements but also broader socio-political relations, including civil society. It is the legacies of exclusion of lower sections of Sri Lankan society that continue to be enacted in much of the civil society engagement within contemporary Sri Lankan human rights and development initiatives. Rather than

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From civil to political society: Post-war Sri Lanka  145 necessarily being an emancipatory space, Sri Lankan civil society is in fact deeply embedded and invested in local hierarchies and power relations. Whether the focus has been on law, education or political change, in each of these debates (as in Kosovo) it is elites who are seen as key players. At the transitional justice conference mentioned above, there was virtually no representation from outside of Colombo, the entire proceedings took place only in English (automatically excluding large sections of the population), and all the strategies discussed focused on the role that elite legal and political actors had to play in achieving reconciliation and justice. The few calls made to shift the focus away from elite politics and institutions towards micro-politics and spaces beyond the logic and control of the state were completely ignored. There was no attention given to a possible role that might be played by the more marginal sections of the community: a fairly standard approach within Colombo civil society circles in which the rural, poor, lower-educated members of the community are either pathologised or treated as passive objects for development. In the words of one activist and performing arts lecturer from the East, ‘these Colombo people treat us like barbarians. Like beasts, because of the war. They want to come and teach us about film techniques, cinematography, to “empower” us’.35 A more sympathetic but equally patronising portrayal of war widows by the founder of a local NGO is cited by Kanchana Ruwanpura in her study of NGO gender politics: ‘The position of many war-widows, we also refer to them as female heads, is appalling to put it mildly. Because our culture provides limited options for women to work we cannot but feel sorry for them. Partly it is this surge of pity that pushes us to work with these women and try to make their lives better. This is the least we can do, because we have to protect these women, and the day will come when they will once again be looked after by their sons, brothers, fathers, or husbands – if they are fighting with the LTTE of another para-military group’. (2008, p.100) The idea that engagement with ‘the local’ – when treated as an undifferentiated space as it often is within international human rights literature – will remedy problems of neo-imperialism or paternalism is clearly misguided. Much the same paternalism (and pathologisation) found in international human rights discourses regarding the poor ‘Third World victim’ discussed earlier in this book can also be witnessed among local elites within Sri Lanka when they speak of their poorer, less privileged compatriots. Thus it is important that we not overhomogenise or glorify the ‘local’ perspective without first examining the power relations also at play within this local setting. Laurence McFalls’ description of, ‘the benevolent dictatorship of humanitarian government based on scientific expertise’ (2010, p.318) is as applicable to Sri Lanka as to Kosovo, albeit with a much greater part played by local actors. Moreover, not only does this over-simplification of the global/local divide and the unreflexive engagement with the ‘local’ (generally represented through

146  The case studies

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one position and one that most easily adheres to the values of the international community, exemplified in the SCSL’s use of Zainab Bangura discussed in the previous chapter) not produce more emancipatory outcomes, it actually plays into reinforcing existing local hierarchies: The concentration of political power in the capital city of Colombo has . . . had the effect of establishing a centre–periphery dichotomy among Sri Lankan civil society as the most vocal and overtly influential international and national civil society actors are located in Colombo and, thus, represent the base of ‘elite’ civil society. Many of the in-country headquarters of INGOs and international institutions are physically located in Colombo and partner with ‘elite’ domestic civil society organizations in carrying out post-conflict programmes and activities. This places Colombo-based organizations at a distinct advantage over local groups in acquiring funds and move their own programmes and agendas forward. (Smith, n.d., p.8) I read this as not simply an innocent or unfortunate outcome of international community naivety or carelessness but also as a further example of human rights’ blindness to and continued implication in the legacies of colonialism. By this I mean that the automatic and uncritical celebration of local civil society within human rights literature never acknowledges the colonial and postcolonial influences that have served to shape the very conception of civil society in many parts of the world (Mamdani, 1996; Kaviraj and Khilnani, 2001; Sahoo, 2006). In perhaps the most detailed exploration of the problem, Partha Chatterjee (2004, 2011a) has documented at length how the space of ‘civil society’ as frequently idealised as the site of human rights activism in many parts of the developing world (and certainly in South Asia) is an incredibly exclusionary arena. Nimanthi Perera-Rajasingham, drawing on Chatterjee’s critique, notes that the commitment of Sri Lankan civil society has often been not to democracy but to the spread of modern Enlightenment institutions (2007, p.146). This is comprehensible when placed in the context of Sri Lanka’s colonial and postcolonial history. Sri Lanka, unlike other postcolonial states, never experienced a popular anti-colonial movement (Sivanandan, 1984; Spencer, 2008; Somasundaram, 2014). Ambalavaner Sivanandan explains this: Colonial capitalism had bred neither a capitalist class that out of sheer economic compulsion was dying to break its colonial integument nor a proletariat that could see beyond race and religion to its own class interests. Power for the colonial bourgeoisie and the colonial proletariat lay not in economic hegemony or in class struggle, but in the trappings and appurtenances of the colonial state on the one hand and its hand-outs and favours on the other. (1984, p.5) Not only did local elites resist the prospect of self-rule, they were also extremely reluctant to increase the political voice of their poorer, less educated, compatriots.

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From civil to political society: Post-war Sri Lanka  147 This is most (in)famously evidenced by the resistance of the Ceylon National Congress to the proposal of the Donoughmore Commission36 to introduce universal franchise in Sri Lanka on the basis that, ‘they might get a class of persons who would not use their votes with any sense of responsibility and whose votes might be at the disposal of the highest bidder’ (Spencer, 2008, p. 613). According to Jane Russell (1982), universal suffrage was the most contentious of all the proposed articles of the Donoughmore Constitution.37 With this in mind, both the dominant discourses and practices of elite Colombo-based human rights and civil society and the reason why uncritical valorisation of an undifferentiated ‘local civil society’ is so problematic become intelligible. This is important to assert given the frequent reliance the international human rights community places on ‘local partners’ as the automatic antidote to questions of power and the equally frequent assertion of ‘Third World’ perspectives as somehow distinct from and more legitimate than the asserted universalism of the West. The divide in human rights between those who save and those who are saved (to paraphrase Spivak, 2004) cannot be fully understood by only having regard to the ‘West’/‘non-West’ or First World/Third World binary. In a parallel process to that described in the earlier case studies, local elites have also contributed to reinforcing the divide between the active subject of human rights and the passive object/recipient. With this in mind, the final section of this chapter moves to considering possible alternative formulations and strategies to those of the highly stratified liberal-inspired civil society critiqued above.

Engaging political society It is true that in some post-conflict situations or in situations of prolonged authoritarianism victims often lack the space or skills to speak for themselves vis-à-vis elites – both state and others such as aid workers, NGO officials, and ‘academic migrant workers’. But the practice of speaking for and about victims further perpetuates their disempowerment and marginality. (Madlingozi, 2010, p.210) As an alternative to the realm of civil society, Chatterjee calls for further attention to be paid to what he terms ‘political society’: a site made up of populations rather than citizens who, while often denied access to official channels and the public sphere of rational debate, find alternative means of making claims and asserting political or social agency. For Chatterjee political society is, ‘a domain of politics that is located neither within the constitutional limits of the state nor in the orderly transactions of bourgeois civil society, even though it is about both’ (Chatterjee, 2010, p.196). In his discussion of one Indian widow who spent her days systematically appealing to local government agencies and political parties for financial support to survive, Chatterjee expresses concern at the ways in which such actions are simultaneously characterised and criticised by activists as apolitical and disempowering (2011a, pp.148–149). How, Chatterjee asks, is it possible to recognise

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148  The case studies this woman’s actions as an act of political agency while also accepting that such marginalised subjects cannot be expected to constantly make grand politically progressive gestures? A similar question arises in the context of human rights and subaltern communities in many parts of the world, including Sri Lanka: how can we expect people with so little access to material and symbolic power to engage in political debate, demand social justice and their rights, and take on the system? Yet in acknowledging this, how at the same time can we recognise them as something more than passive subjects of development, human rights, peacebuilding efforts? In responding to this dilemma, Chatterjee identifies two possible approaches to bringing about change. On the one hand, he points to legal reform through state initiatives, driven from the top. It is with this that much of current human rights practice, in Sri Lanka and elsewhere, is concerned. On the other hand, he also suggests another means of creating change through the mobilisation of initiatives within the relatively immobilised spaces of the communities themselves: To choose the former is to underscore the moral primacy of the modernizing state. To advocate the latter is to accept the risks of walking through a normatively uncertain political terrain . . . while the former strategy has not necessarily exhausted itself, I believe that the real challenge lies in exploring the possibilities of the latter. (Chatterjee, 2010, p.196) As I noted at the end of the previous chapter and in relation to human rights education above, such efforts may be difficult and open up the space for engaging with a wide array of discourses that seek to make meaning or achieve particular ends – some progressive, others not. However, as Nivedita Menon (2004) also persuasively argues, it is only by freeing our social justice ambitions from the narrow sanctioned space of state and law (and here I would add conventional civil society) that a more radically emancipatory agenda may open up. As outlined earlier in this book, rights claims laid in the language of state and law rely on a fixing of identity that inevitably privileges hegemonic conceptions of social hierarchy. Thus for Menon, in order to produce counter-hegemonic values, we need the kind of political practice that I have termed here ‘radical politics’: long-term struggles to reclaim meaning at the level of common sense, work within communities to challenge local structures of power, the building up of alternative structures in opposition to the family and other hegemonising institutions. (2004, p.216) This leads Menon to, ‘unhitch Chatterjee’s notion of “political society” from its link in his argument to the “welfare” function of government, and relocate it as a realm of struggles to produce an alternative common sense – alternative that is, to the common sense of civil society’ (2004, p.217). In this section of the chapter, through an exploration of a few forms of community action in eastern and northern Sri Lanka, I pick up on and seek to apply Menon’s ideas regarding

From civil to political society: Post-war Sri Lanka  149 political society. In particular, I look at the ways in which some activists have sought to abandon the liberal, secular and modernising assumptions underpinning much human rights work and instead challenge dominant conceptions of identity, community and justice through engagement with traditional and ritual values and practices.

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Alternate activism: The Third Eye Collective In May 2012 I made my first visit to Batticaloa in eastern Sri Lanka to visit a friend who I knew to be a local feminist activist and artist. She had told me a little about her involvement with one of the most powerful and durable feminist networks in Sri Lanka – Suriya, established in 1990 to support women displaced from the north and east as a result of the conflict – and also of her husband’s work in the field of performing arts and community theatre through a collective he had established called Third Eye. I was excited to make this trip, eager to get a taste of Sri Lanka outside of the isolated, privileged confines of the upper-middle-class area of Colombo within which I was working and living and in particular to visit a part of the country directly affected by the armed conflict. This began an ongoing critical and practical engagement that has not only expanded my previously fairly narrow view of human rights activities and discourses in Sri Lanka but also provoked and inspired me to rethink the very nature of human rights, its relationship to other possible articulations of social justice and social change, and alternative possibilities for activism. Over the course of the last three years, I have attended and participated in activities on a range of topics from ritual practices, animal sacrifice and goddess worship to debates about culture, women’s rights, caste, indigenous peoples and development. In many ways it is impossible to do justice to the diversity and complexity of these various events and encounters. However, I will provide some general descriptive information before moving to consider what I see to be the theoretical implications of some of these activities for reimagining human rights as socio-political practices. The first event to which I was invited involved traditional priests, associated with ritual temples located in Batticaloa district. My superficial understanding of Hinduism in general and Hinduism among the Tamil population in Sri Lanka in particular meant I was unaware that such temples existed. However, as I spoke to local activists I became aware of the role that these village-level institutions have played in sustaining communities through the war, the tsunami and the impacts of uneven development. I was also told that these temples were facing a number of threats. These included not only state-sponsored Buddhism and secular, modernising development practices (both state and non-state funded) but also the powerful influence of Brahminical (caste-based) Hinduism from India. The aim of the particular forum was to bring together academics, students, activists and local professionals (including the resident psychiatrist for Batticaloa district) with ritual priests to discuss their practices and the perceived benefits they held for their communities as well as to talk about possible strategies for

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150  The case studies protecting both the temples and those associated with them. To understand the significance of this, it is necessary to appreciate the status of the priests. Unlike typical Hindu priests, many ritual priests come from lower-caste communities. Moreover, their rituals may be sought out when needed by villagers and others, but the priests and their families are often shunned and live in extreme poverty and social exclusion. Their invitation to attend a session at the university as participants and speakers was therefore particularly symbolic. Following that initial forum – details of which I will discuss further in a moment – a core group of ritual priests and traditional performers has continued to engage with Third Eye activists in numerous events, of which I have directly participated in a number over the last two and a half years. In September 2012, following a highly mediatised attack on the practice of animal sacrifice by members of the Rajapaksa Government, we held a small public discussion on this topic as an issue related to cultural rights. The aim of the discussion was to help the priests themselves understand their rights, to strategise about how they might protect themselves from attack in the highly hostile and disempowering political climate, and at the same time to discuss the potential for re-examining the practice of ritual sacrifice from the perspective of contemporary concerns regarding cruelty to animals. The following year, in October 2013, some of the same priests and performers, joined by another 200 from across the country, participated in a three-day festival organised by Third Eye in Trincomalee (north-eastern Sri Lanka) on traditional arts and their significance in the contemporary world. This festival – Madai – was an ambitious attempt at creating exposure for the often under-valued artistic and performance practices of marginalised groups to the broader community, providing the opportunity for performers from a range of ethnic, religious, caste and regional communities to engage with each other and present and perform their art and finally to create an egalitarian space for social and political dialogue, debate and critique. Following this, in April 2014, a group of performers, students and activists travelled from Batticaloa to Jaffna to attend a conference organised at Jaffna University on the practice of goddess worship. Again, the academic and activist debate was combined with ritual performances. This forum also attempted to bridge the divide between Sinhalese and Tamil communities by exploring some of the similarities and differences in the two communities’ practices of goddess worship. Most recently, in November 2014, I was invited to participate in a discussion in Batticaloa with members of a highly marginalised indigenous minority community and to offer some reflections on how the international human rights framework on indigenous rights might relate to this community’s experiences of disadvantage and discrimination. In fact – and following my reflections described above regarding the inadequacies of ‘human rights experts’ ‘teaching’ human rights to marginalised groups – what followed was a discussion of the community members’ experiences of being indigenous, the significance their identity and practices held for them, the difficulties they faced, and the issues they felt were most pressingly in need of redress. It was only following this conversation

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From civil to political society: Post-war Sri Lanka  151 that we began a discussion of indigenous communities in other parts of the world, some of the similar (and different) challenges those communities faced, and some of the strategies they had adopted to respond to these challenges to allow them to preserve their ways of life. It is not only through this engagement with traditional and ritual priests and performers that my conception of human rights has changed. I would also like to briefly describe and reflect on my involvement with some feminist activism in the north and east of Sri Lanka, as well as a parallel film-screening programme that members of Third Eye have been instrumental in facilitating but that is run by a Colombo-based independent film-maker. However, the elements of tradition, ritual and culture are particularly important to this discussion given the fundamentally secular, modern and rational foundation of much human rights discourse of which I myself have been a product. The ritual as political It is interesting and potentially significant that what has emerged for activists working with the most marginalised communities in the highly constrained political space of Sri Lanka is the central importance of culture. In conversation a Sri Lankan scholar commented on how, in recent research, she had noted a rise in observance and participation of people in Paththini, Ganesha and other religious rituals. These seemed to her to point to other sites where processes of truth-telling, confession, reconciliation and healing might be taking place.38 Meanwhile Kamala Vasuki has documented the use by Suriya Cultural Group of the Kannagi/Paththini ritual – in which the Goddess destroys the city of Madurai for its corrupt and unjust treatment of her husband – to speak about war widows and sexual violence (Vasuki, 2014, p.32). It also became clear when performers were given the opportunity to speak about their rituals during the Goddess Worship conference in Jaffna, that the performance of these rituals was often not simply about keeping alive some past traditional practice. It was being used by communities (across the north and east at least) as a way of speaking about (in) justice, divine retribution and the triumph of good over evil in the context of forced evictions, extreme material deprivation, trauma and brutalisation by both sides (LTTE and Government). Given the extremely limited space within which the majority of the population could express their views or voice dissent – with the repressive regime of the LTTE in operation in the northern and some sections of the eastern part of the country and the Sri Lankan state in the rest of the country – rituals like Kannagi/ Paththini worship offered one of the few sites for such dissent. This was not the only traditional practice that was being used in this way. I was also told of the performance of what have become colloquially known as ‘disco kooththus’. In a reformulation of the traditional performance art Kooththu, ‘disco kooththus’ have been used by village communities to speak of everything from issues of migration, corruption, development and inequality. This satirical practice once again allows local communities to express their resistance towards authorities in

152  The case studies a way that – given its positioning outside of the dominant sphere of politics – has remained open to them even in the highly repressive contemporary climate.

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Repoliticising culture As discussed in earlier chapters, culture is all too often constructed as ‘the problem’ for human rights: the obstacle to emancipation. Yet what the activities of Third Eye in particular highlight is the importance of contextualising the relationship between culture and politics in postcolonial societies. Certainly claims of ‘cultural difference’ can and have been used by local elites to delegitimise both human rights claims and activists. As I have set out earlier in this book, this is assisted by the West’s claiming of human rights as the rightful preserve of Western modernity. In this sense, conservative local and international elites collude very effectively with each other to delegitimise the human rights struggles of disempowered social actors in the non-West. At the same time, the creation of the realm of ‘culture’ that is then distinguished from that of law or politics is also a product of particular historical factors. Sharika Thiranagama (discussing Thomas Blom Hansen’s work) notes that British governance of India imagined a world divided into the space of the political (the rational state) and the cultural (the masses) (2013, p.96). A similar divide can be observed in the context of Sri Lanka. As noted earlier, this has produced a local civil society deeply committed to and invested in the logic of (Western) modernity as reflected in rational debate, law and liberal politics. Meanwhile, as Nivedita Menon writes, ‘what lies outside civil society/modernity is not tradition but a realm “relegated to the zone of the traditional”, that is, political society, which copes with the modern in ways that often do not conform to the Western bourgeois secularized Christian principles of modern civil society’ (2010, p.9). It is this role that I see many of the rituals and traditional performances playing in the context of Sri Lanka. The over-determination of the ‘cultural’ and its simultaneous separation from the ‘political’ is not only a feature of South Asian postcolonial nations. In her analysis of international governance in Bosnia, Jasmina Husanović points to a similar process (2011, 2014; see also Spencer, 2008, pp. 626, 627). Furthermore, my analysis of Third Eye’s contribution to reimagining rights politics in Sri Lanka is in part inspired by Husanović’s work (discussed in more detail in Chapter 4). At the same time the particular postcolonial history of Sri Lanka adds context to both the overlooking of particular cultural forms of critique and claim making by the majority of mainstream Sri Lankan civil society and the significance of such practices to creating new possible futures. While Jonathan Spencer argues that ‘culture’ and state policies of ‘development’ have gone hand in hand throughout the postcolonial period in Sri Lanka, he limits his discussion to how culture has been used instrumentally by state political elites to woo the masses (2008, pp.621–622). Culture has not been seen as a tool for political claim making and contestation but is more often than not assumed to act as a sort of ‘opiate of the masses’, used in the service of political aims but

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From civil to political society: Post-war Sri Lanka  153 acting to disguise this fact. Alternatively it is offered as a form of ‘anti-politics’ around which opposition to the ‘dirty’ world of politics can converge (Spencer, 2008, pp.624–627). Although Spencer’s account of the necessary inter-relationship of the political and the cultural (or in his case more particularly, the national) is important, he ultimately fails to explore the possibilities of not simply reinvesting in the political but also challenging the apparently uncontested apolitical nature of the ‘cultural’. Even as he observes the necessarily conflictual nature of mass politics (2008, p.627), he leaves the anti-political claims to a transcendent realm of the cultural untouched in his analysis even as his examples seem to highlight the highly contested and ambiguous process by which the cultural is claimed. In this sense he reproduces a classic distinction between the political as a site for legitimate contestation and the cultural as an anti-political arena: an understanding that also reinforces the human rights world’s commitment to placing rights claims in opposition to culture. If, as Spencer argues, ‘it is impossible to tell the story of nationalism [in Sri Lanka] as anything but a story of the illiberal consequences of liberal democracy’ (2008, p.627) then it is equally impossible to imagine an alternative more radical democracy that does not both critically and productively engage with the sphere of the cultural. It is precisely this that I see Third Eye’s activities to be doing. The use of the cultural as a site that is considered more legitimate by people disillusioned by political processes does not render the vision and the debate anti-political. Rather it attempts to construct a new notion of the political, divorced from the elite-­ controlled, institution-driven political arena that has for so long acted to exclude or actively oppress the more marginal. At the same time, by providing space within these performances of the cultural for debate, disagreement and challenge, the cultural itself is subjected to the same processes of agonism that are identified as both inherent and invaluable to the political arena (Mouffe, 1999; Spencer, 2008). This critical rather than romanticised engagement with culture emerges most clearly in the feminist activities of Third Eye and its associates. Overcoming the rights versus culture divide Within the feminist activities of Third Eye, the place of culture has been recognised to act as a double-edged sword. It is true that often the debates about tradition, culture and ritual continue to rely upon conservative gender norms. This has posed a challenge to Third Eye in the sense of its commitment to valorising its community interlocutors while at the same time engaging in progressive politics. However, one way in which the collective has sought to overcome this has been through involvement not simply in the observation and discussion of traditional cultural performances and practices but also in active participation. In this sense, they have contributed to practices that for Chatterjee provide the possibility for critique as well as valorisation of political society: ‘it is worth investigating those works of cultural production that not merely inhabit and celebrate the modes of popular culture but self-consciously seek to transform them’ (Chatterjee, 2011a, p.171).

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154  The case studies Through not only documenting but enacting traditional art forms and rituals, Third Eye has challenged the community from within to reimagine its own values. For example, they have placed women and girls in visible roles in Kooththu (something not traditionally done). A particularly recent example was the performance by women of the traditional drumming practice Parai, normally reserved solely for men. These disruptions are not always easily accepted (the women drummers were kicked out of their regular practice space following complaints ‘about the noise’ by neighbours), but they do stimulate debate. Also, the discussion forums ask performers not only to describe their views and arts but also to explain the significance of what they do. As a result, a space has been opened up for not simply the maintenance of marginalised cultural practices but also their utilisation to stimulate internal transformation. In evaluating the evolving practice and role of these traditional performances and rituals, it seems most appropriate to follow Partha Chatterjee’s advice that, ‘it becomes necessary to suspend the totalizing structural contrasts between the modern and the pre-modern and focus instead on localized, contingent and often transient changes in actual practices’ (Chatterjee, 2011a, p.170). Chatterjee cites Gramsci’s ‘philosophy of praxis’ in which the latter makes clear: ‘it is not a question of introducing from scratch a scientific form of thought into everyone’s individual life, but of renovating and making “critical” an already existing activity’. For Chatterjee, this means that, ‘[t]he task is no longer to interrogate popular culture with the fully formed apparatus of a scientific worldview. Rather, it is to begin from the practices of popular culture, to immerse oneself in its forms, in order to develop its critique’ (Chatterjee, 2011a, p.171). It is precisely this that I see Third Eye to be doing through their engagement with traditional performances and rituals in settings like Madai. Rather than a process of external evaluation, or an attempt to apply these practices to the pre-existing framework of rights, democracy and so on (as human rights initiatives often do), a more dialogical process of engagement is created between communities and activists seeking social change. At the same time, feminists associated with Third Eye have been engaging in their own process of revisiting culture: both in terms of finding ways to counter cultural arguments used to justify gender inequality and as a means of grounding their feminism in locally relevant norms and values. For example, during a small feminist group discussion in Batticaloa in November 2014, the women observed that while traditionally that part of the country had practised a matrilineal land system, this had been superseded by the Indian cultural practice of the bride moving to live with her husband’s family. Despite the fact that this was an imported custom, it was now invoked as ‘tradition’ in opposition to feminist claims. This, the women argued, demonstrated the importance of researching and accurately documenting customs and religious practices rather than simply rejecting them. They also talked about the importance of ‘little steps’ and the development of counter-narratives to shift conservative views and practices. For example, in response to the practice of excluding women from religious and other public places during menstruation, in their conversations with the community they used

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From civil to political society: Post-war Sri Lanka  155 the example of war-time Jaffna when many people sought refuge in the Nallur Hindu Temple. The fact that women lived inside the temple for weeks and months meant, they pointed out, that at least some of them had menstruated during that time and yet nothing bad had happened. On the contrary, the Nallur Temple was the only place in Jaffna that was never bombed during the war! Through these strategies, the women felt they could more effectively engage the community and bring about a change in consciousness that was not possible simply by pointing to abstract human rights principles or laws. As one feminist activist explained, ‘when you talk about human rights, [you] talk about equality etc. but [we] haven’t gone into depth: what the meaning is of equality, dignity, respect for all of us’.39 While – as discussed earlier – the preference within dominant human rights practice has been to maintain a level of abstraction, for these activists the key to change lay in the creation of space for engagement, debate and confrontation between human rights and local cultural and social norms. Subaltern cosmopolitanism Meanwhile, one of the most interesting aspects of Third Eye activities has been negotiating the space between focusing on issues of local relevance and concern while also connecting local communities with the broader international arena where they may encounter likeminded groups and similar problems. An exploratory technique we have tried has been through a film programme funded by USAID. While funded as a means of promoting film appreciation among members of the Batticaloa community, by introducing films from different parts of the world on different issues of social justice and linking them with discussion forums, the film programme has offered up an interesting space for debate, consciousness raising and connection. For example, in October 2013, the organisers screened the film Lemon Tree, an Israeli production exploring the impact of occupation and partition through the struggle of a Palestinian woman to save her lemon orchard. While set in a completely foreign part of the world for many in the audience, the themes clearly resonated: issues of dehumanisation, constructed isolation, and division between communities that breeds mistrust, legacies of trauma and violence, and intra-communal norms (such as those around gender) that may serve to further disempower individuals fighting for justice or recognition. Not only did the film resonate and trigger a lively discussion about the role of media and language in continuing (or resolving) intercommunal conflict, it also provided an opening for audience members to talk and reflect on their own lived experiences of the war and post-war inter-communal relations. Thus using a medium such as film and focusing on situations in faraway places actually created the possibility for the community to reflect on and speak openly about their own challenges: something that is extremely difficult in a highly repressive post-conflict environment like Sri Lanka. Since then, we have experimented with other films. For international women’s day in March 2014 we screened a Bosnian film about women survivors in a village of disappeared men and a Senegalese film about women invoking a ­traditional

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156  The case studies cultural practice to protect some small girls from female genital cutting. This provided an opening for people to speak about the issue of disappearances (still a highly fraught and relevant topic in post-war Sri Lanka) and to commence a debate about the role of culture in both promoting and limiting women’s rights. In May 2014 we screened a film about peasant farmers in Paraguay who rose up in protest against the large agribusinesses that were depriving them of access to traditional land and destroying traditional plants and cultivation techniques. Again, the audience began to speak about their own land issues, the impacts of globalisation on local farming practices, issues of environmental sustainability and then the question of military occupation of land. This conversation was made all the livelier by the linking up of the audience with the film’s German director via Skype, leading to a rather convoluted but engaging debate across English and Tamil. Finally, in November 2014, the programme ended with the screening of the 2012 film Hannah Arendt, on the philosopher’s observations of the Eichmann Trial. While in some ways a less accessible film than those screened earlier (the extensive dialogue combined with a lack of Tamil subtitles made it very difficult for many in the audience to follow), it did provide an introduction to some of Arendt’s thinking. It also opened a discussion on the nature of ‘evil’ and ideas of individual responsibility in the face of highly repressive and violent regimes. Again, the significance to the local context was not lost on members of the audience. This access to the ‘outside world’ has proven valuable in a number of ways. On the one hand, as noted above, in the political and social context of Sri Lanka where so much cannot be spoken of the recent history, discussing events in other, remote places provides a safe way in which to reflect upon extremely sensitive and traumatic questions. On the other, it is also by viewing the situations and responses of others in different parts of the world that new ways of conceptualising and coming to terms with local problems potentially open up. Finally, it seems to me to provide a means of creating an alternate cosmopolitanism on which to found claims of universality. As Boaventura de Sousa Santos and César Rodríguez-Garavito (2005) have argued, too much of the focus of globalisation has been on ‘top end’ institutions and actors. This can clearly be seen in the assertions of universal human rights, which rely on abstract moral principles (often deeply entrenched in Enlightenment values), mass state consensus (through UN participation) and international law. Thus, in following Santos’ and RodríguezGaravito’s call to pay more attention to the ‘bottom’ level processes of subaltern cosmopolitanism (discussed further in the final part of this book), I see within the film programme a possibility for the identification and potential strengthening of more grassroots consensus and community building that might assist with the development of a truly universal conception of human rights. This is not only visible through the film screening programme. Some of the women’s rights activists I have spoken with do not cite Western feminists nor internationally sanctioned women’s rights language and frameworks when asked about their earliest introductions to concepts of ‘feminism’ and ‘women’s rights’. Instead, they describe being introduced to The Color Purple40 and the art of Frida

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From civil to political society: Post-war Sri Lanka  157 Kahlo as university students or being invited to villages in Tamil Nadu in neighbouring India where they witnessed Women’s Panchayats41 administering justice at the local level. These alternate linkages are equally important aspects of globalisation and cosmopolitanism. And more importantly for this book, they also present extremely important alternate ways of concretely building and establishing the universality of human rights, a universality that does not rely on mobile global elites who bring ideas and frameworks of democracy, human rights and ‘Rule of Law’ to different troubled locations but rather one that is built out of shared experiences of suffering and resistance across subaltern communities in different geographical locations. Given the much more limited access to resources, communication and exchange open to such actors, activism focused on creating possible sites for these engagements strikes me as extremely important.

From ‘good governance’ to ‘spaces for dissent’ The creation of egalitarian spaces for discussion, debate and disagreement, while not providing a solution to many of the human rights problems in Sri Lanka as such, reflects an important means of shifting the dynamic of ‘those who save and those who are always saved’. In this sense, the work of the different collectives is significant for a number of reasons. First, they aspire to create spaces for communities to discuss and conceptualise their problems among themselves. They also seek to engage intellectuals both local and international, but not as ‘knowledge imparters’, ‘experts’ or ‘educators’. Rather they are included as participants. Finally, they seek to walk the difficult but important line between valorising local means of coping with social problems, while also challenging them. In the process, these collectives provide important insights into how a more radical and truly progressive rights politics can emerge both within a highly stratified society like Sri Lanka and potentially elsewhere. At the same time as the cultural, ritual and traditional performance spheres have opened up the sites for starting discussions about rights, rights discourses have also shaped spaces within Sri Lanka and opened up possibilities for forms of transformative politics. As discussed earlier in the chapter, the women’s movement in Sri Lanka has, through engagement with the international ‘stop violence against women’ framework, forged an important role in both seeking to address gender inequality and also commenting on social and political events such as the war and the tsunami (de Mel, 2007; Kois, 2007). The activism in the area of women’s rights was also described to me as one of the more effective articulations of human rights discourses and their link to peoples’ realities. This was contrasted with other more ‘NGO-driven’ human rights agendas, which for local activists seemed motivated more by donor and other external priorities than by the needs of communities.42 As I also mentioned above, Suriya operating in eastern Sri Lanka since the early 1990s, has been a particularly prominent example of successful communitybased rights activism. Its ability (not without difficulties at times) to transcend caste, educational and ethno-religious boundaries has also meant it has provided

158  The case studies

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one of the few spaces where there is actual inter-communal interaction in the otherwise quite polarised and divided conflict-affected parts of the country. The very existence of a space where university professors, NGO and government-sector workers and community-level activists, and women from Batticaloa town, local fishing villages and neighbouring Muslim settlements come together to meet and share and strategise is a unique achievement. Commenting on this in my diary on one trip to Batticaloa, I noted: As I sat on the banks of the lagoon waiting for the women’s coalition meeting in Batticaloa to start, I watched as women from different communities arrived. A Muslim woman, veiled, arrived on a scooter driven by her husband, with a small child. She disembarked and entered the Suriya compound as her husband and child left, complicating easy images of ‘oppressed’ or ‘anti-feminist’ Muslim women and their patriarchal, oppressive men and families. The mere existence of such spaces, even setting aside the valuable work that they do, requires recognition for the role it plays in shifting local social norms and creating possibilities for alternate communities. Nimanthi Perera-Rajasingham (2007) documents something similar in her account of the women’s shelter Poorani, which ran in Jaffna between 1989 and 1991. While essentially providing a refuge for vulnerable women, the impact of Poorani was in fact far more symbolic: ‘Poorani embodied an alternative way of thinking through the process of living in the aftermath of violence’ (2007, p.147) and provided a space where critique of both private and public violence and ‘different ideals of emancipation’ could be cultivated (2007, p.154). Not only did women use the space to escape violence, they came to learn skills, gain confidence, and develop their feminist consciousness and activism. Yet Poorani has largely been left out of accounts of the women’s movement in Sri Lanka. Meanwhile, it is not the last such initiative that has developed in the highly restrictive and hostile environment of Jaffna. A more current example is the recently established association, Vallamai. While originally envisaged as a women’s safehouse – arising out of the experience of the founder working in the field of gender-based violence – Vallamai has quickly transformed into a much more fluid and radical project. Through everyday lived experience, Vallamai has tried to share an alternative way of living: one based on principles of gender equality; violence-free homes, community and nation; respect for each other and the environment and sustainable living. This is important in a place like Jaffna, which is scarred from years of war and isolation and ongoing militarisation and subject to deeply conservative religious, cultural and social codes. It has also meant that while the women involved have spent significant time and energy responding to the all-too-frequent incidents of sexual violence in Jaffna, they have also accompanied their demands for justice through the formal system with attempts at engaging the community in discussions about gender roles, challenging conservative traditional ideas, emphasising the importance of equality, and trying to open up possibilities for alternate conceptions of ­community

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From civil to political society: Post-war Sri Lanka  159 and solidarity. This seems to respond to subaltern feminist questioning of the adequacy of modernising law reform agendas without a parallel commitment to ‘challenging and reforming the actual structures of patriarchal power within the local communities which continue to flourish outside the reach of the law’ (Chatterjee, 2010, pp.300–301). This awareness comes precisely from Vallamai’s origins and location within the community (and in particular as a result of a handful of women’s personal experiences and consciousness) rather than an externally driven initiative of ‘introducing women’s rights’. As a feminist affiliate explains: Everything becomes a ‘project’: funders want detailed budgets for every advocacy activity. How can we do that for a march or some other spontaneous protest? What we are trying to do is just create feminist spaces for people to come together and discuss our own history, our stories. That is why Vallamai has been so good – everything they’ve done, it has not been under the name of any organisation. We have lost control of International Women’s Day – ­organisations like Oxfam have turned that and the 16 days of action [for ­violence against women] into ‘projects’. But we organise for other things.43 This different approach went some of the way towards what the same activist believed needed to happen within human rights: [F]or me the system needs to be dismantled. The idea of HRs has to be there but it has to be redefined, reconstructed by the peoples’ lives, not by those in power. This power structure is completely contrary to what we say we are doing. All these years of learning and talking at the ground have to be used to construct a new system, a new framework and structure.44 In this sense Suriya, Poorani and Vallamai provide powerful examples of the alternate ‘Third World’ movements that have been both vital to the development of human rights and all too often written out of its official history. However, even more importantly for the purposes of my argument, they reflect the way in which rights discourses potentially contribute not only to a depoliticisation (as in the case of top-down, technocratic versions of human rights) but also to possibly transformative new forms of politics. It is this idea that I will now turn to developing in the final part of this book.

Notes 1 The Liberation Tigers of Tamil Eelam, also commonly called the ‘Tamil Tigers’. 2 All NGOs are subject to Ministry of Defence scrutiny and special permits are periodically reintroduced for all non-Sri Lankan nationals wishing to visit the north of the island. Even UN personnel have complained about being subjected to lengthy and aggressive processes to obtain short-term visas, which require regular renewal. 3 Interview with author, Batticaloa, 22 November 2014. 4 Personal conversations with author.

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160  The case studies 5 A resolution by the UN Human Rights Council requesting the Sri Lankan government to investigate and address allegations of serious human rights violations in the final stages of the war. 6 Personal conversation with author, Colombo, 4 March 2014. 7 Comments made at the ‘From Violent Conflict to Peaceful Coexistence: A Dialogue on Justice, Memory and Social Reconstruction’ conference, International Ethnic Studies Centre, Colombo, 28 February 2014. This view was also expressed independently by an activist interviewed in Vavuniya, 8 November 2014. 8 Personal conversation with author, Colombo, April 2014. 9 Interview with author, Batticaloa, 19 November 2014. 10 Interview with author, Batticaloa, 19 November 2014. 11 In fact homosexuality continues to be treated as illegal by Sri Lankan authorities under Article 365A of the Penal Code, which deals with ‘gross indecency’. 12 Trincomalee, 29 October 2013. 13 Interview with author, Batticaloa, 19 November 2014. 14 During the war Tamils residing in northern and eastern Sri Lanka were required by law to obtain permission to travel south of Vavuniya: the border town between the LTTEcontrolled north of the country and the state-controlled south. 15 Interview with author, Batticaloa, 19 November 2014. 16 Interview with author, Puttalam, 12 November 2014. 17 Interview with author, Vavuniya, 8 November 2014. 18 Interview with author, Batticaloa, 19 November 2014. 19 Tamil National Alliance, the major organisation operating at the national level representing Tamil political interests. 20 Interview with author, Vavuniya, 8 November 2014. 21 Interview with author, Batticaloa, 22 November 2014. 22 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, para. 12. 23 A socialist-inspired political movement, now a mainstream political party in Sri Lanka, the name translates to mean the ‘People’s Liberation Front’. 24 A particularly infamous case involved the disappearance of 32 Sinhalese schoolboys last seen at an army camp in Embillipitiya, Ratnapura district in 1989. 25 Sri Lanka has repeatedly been cited as a positive example, certainly compared with the rest of South Asia, of the establishment and effective functioning of governance institutions including parliamentary democracy, a functioning bureaucracy and independent judiciary. 26 Tambiah: ‘Sinhalese–Tamil tensions and conflicts in the form known to us today are of relatively recent manufacture – a truly twentieth-century phenomenon. We can see them as exhibiting themselves over the last three decades a trend toward an increasing “ethnic” mobilization and polarization previously unknown. These regimentations owe more to the ideas and polemics of contemporary “nationalist” ideologues and the politics of nation making and election winning than to earlier concerns and processes’ (1986, p.7). 27 I base this section on my involvement in both observing and researching human rights education initiatives and being involved over the last three years in the design and delivery of a human rights training package for law enforcement and security sector personnel in Sri Lanka. 28 See the 2013 Special Edition of the Journal of Human Rights Practice, dedicated to human rights education and setting out many of these arguments. 29 Human Rights Trainers Roundtable Discussion, Colombo, 2 May 2014. 30 Human Rights Trainers Roundtable Discussion, Colombo, 2 May 2014. 31 Personal conversation with author, Colombo, 12 November 2014. 32 There are of course exceptions to this, for example in the women’s movement. I will discuss one such example later in this chapter.

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From civil to political society: Post-war Sri Lanka  161 33 For a summary of the 14 commissions and 2 special mechanisms that were held between 1963 and 2002 see Pinto-Jayawardena (2010). Since then there has been a further Commission of Inquiry in 2006 to investigate a series of assassinations, murders and disappearances that had not been followed up by the Attorney-General’s department. Following the end of the war, the Lessons Learnt and Reconciliation Commission (LLRC) was established in 2010 and most recently the Presidential Commission to Investigate into Complaints regarding Missing Persons has been set up, in August 2013. 34 Personal conversation with author, Colombo, 12 November 2014. 35 Personal conversation with author, 20 October 2013. 36 A commission of four British parliamentarians sent by the British Secretary of State for the Colonies to Sri Lanka in 1927 to research and draft a constitution for Sri Lanka. 37 However, it is also important to acknowledge that the women’s franchise movement at the time advocated for the right to vote of all women, across class and caste boundaries (ICES, 2002, p.427); this is perhaps why the women’s rights movement has been one of the more effective in transcending ethnic and class barriers and producing solidarity in Sri Lanka. 38 Private conversation with author, Colombo, 1 March 2014. 39 Interview with author, Batticaloa, 19 November 2014. 40 The highly acclaimed novel by Alice Walker written in 1982 on the life of African American women living in the South of the United States in the 1930s. 41 A local, village-level council of respected elders responsible for resolving local disputes and administering justice in relation to small, everyday issues that do not make it to the formal justice system. Traditionally this was a male-dominated body, which led to women establishing their own separate councils to decide on issues most often affecting women. There are now quotas for women’s participation in panchayats at every level of government. 42 As one activist put it: ‘For feminism and gender, an organic form of activism is there. For human rights [it] is totally dominated or controlled by NGO practice’. Interview with author, Batticaloa, 22 November 2011. 43 Personal conversation with author, Batticaloa, 16 November 2014. 44 Interview with author, Batticaloa, 19 November 2014.

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Part 3

Retheorising human rights

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7 Between the universal and the particular? Reframing the rights versus culture debate

Introduction At a time when the ‘cultural turn’ is not simply a feature of the global social and political landscape but a defining framework for conflict and contestation, the asserted universality of human rights does seem to hold appeal. It provides us with the possibility of articulating shared commitments and aspirations across boundaries of culture, which, regardless of how constructed scholars may assert them to be, continue to materially shape peoples’ lives and encounters with each other. However, the existing formulation of the universality of human rights – as the case studies have shown – is flawed and in fact contributes to maintaining divisions rather than lessening them. Therefore, in order for human rights to provide a truly universal framework, a number of important shifts need to take place. It is on these shifts that I will seek to elaborate within this chapter. First, the originary story of human rights needs to be revisited and challenged. As discussed in Chapter 1, a particularly powerful critique of human rights has been the extent to which their asserted universality is undermined by their simultaneous grounding solely within the Western political tradition. This has led various scholars to embark on a project to rewrite the history of human rights in a way that more adequately reflects the impact that Third World political actors and social movements have also had on shaping human rights (Rajagopal, 2000, 2003a, 2003b, 2006; Chimni, 2006; Baxi, 2008). This is important both philosophically and pragmatically: simultaneously pushing us towards a more truly universal conception of human rights and helping counter the ‘human rights are Western’ argument that is cynically capitalised upon by both Western and nonWestern elites to maintain certain structures of power (as illustrated in each of the case study chapters). Second, and connected to the previous point: the assumed shared understanding of human rights needs to be called into question. Until now the human rights world has chosen to downplay the possibilities of substantively different understandings of what rights are and should be through a fairly superficial conception of human rights oriented around the abstractly articulated rights of international law. This, it is often argued, is the only way in which to avoid the ‘cultural trap’ and retain at least the appearance of universal application. However, asserting

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166  Retheorising human rights a ‘right to life’, for example, does not tell us very much about how this right is understood by different actors in different locations and situations. As I briefly discussed in the previous chapter on Sri Lanka, even apparently uncontested rights like the prohibition on torture (accepting that the recent geopolitical climate has somewhat changed this) in practice is invoked, interpreted and applied in a range of diverse ways depending on the particular actors involved and the ways in which this right interacts with the social worlds it encounters (see also Grewal and Munasinghe, forthcoming). Meanwhile, as described in Chapter 5, the assumption of an uncontested concept of marriage served to reduce rather than increase the possibility for delivering women’s rights in the context of Sierra Leone. It is only through engaging in the messy debates about the content of rights that they can become actual tools to be utilised and engaged with in a society. To remain at the level of abstract moral principle or legal norm may make agreement easier, but it also renders rights remote and meaningless to many. This is also why there is a need to revisit human rights’ connection to law. This is important first to highlight the ways in which law itself is far from immune from socio-cultural influences (despite its claims to neutrality) and at the same time to show that law’s effectiveness often depends on the extent to which it reflects the socio-political, economic and cultural realities of those being asked to comply (something I will elaborate upon in the next chapter). Second, a move away from (a particular conception of) law is also necessary to ‘decolonise’ the space of human rights in the sense of removing the privilege of the expert (who defines and mediates rights claims) and creating scope for a repoliticising of an arena now confined to ‘governance’ (an argument I will return to in the final chapter). Third, in opening ourselves up to different and contested meanings within human rights, the assumed inherently progressive nature of human rights must give way to a more dialogical model of human rights created through exchange. The case studies show not only that there can be no assumption of shared understanding of human rights, but also that there is nothing to suggest that the language or practice of human rights will in itself be progressive and emancipatory. Instead, as others have also observed (see Chapter 3), human rights is a highly malleable language that can as easily be invoked by conservative as by progressive forces. Rather than this being seen as a weakness, I would argue that this realisation allows us to engage with human rights in a much more productive way. Fourth and finally, alongside a more dialogical approach to constructing human rights there is a need to further deconstruct and repoliticise conceptions of culture and rights. As discussed in the case studies, the notion of ‘cultural tolerance’ has itself created a number of problems, which those of us seeking a progressive formulation of human rights as a politics of the marginalised must address. The creation of recognisable and separable cultures inevitably reproduces certain processes of domination and exclusion (as the examples of the ‘forced marriage versus arranged marriage’ debate in Sierra Leone or the ‘ancient ethnic hatreds’ of Kosovo or Sri Lanka attest). Not only does this raise troubling issues about authenticity and representation, it also serves to over-homogenise communities

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Reframing the rights versus culture debate  167 often to the detriment of more marginal but potentially progressive voices. It also creates impossible dichotomies that marginalised or multiply oppressed populations must navigate (for example, to seek women’s rights but be accused of Westernisation, to maintain solidarity with community at the expense of gender equality). Finally it fails to recognise the vast space for commonality, shared experience and solidarity that does exist across different communities in different geographic and socio-political contexts – what I see to be the true universality of human rights. What emerges as central in all of these debates about culture is the question of power. This may make many of us eager to move away from discussions of culture, wary of its essentialising and homogenising effects, preferring instead the more elucidating language of power. However, as long as culture continues to frame the ways in which not just institutions and elites but also ordinary people experience the world and encounter rights, this is a concept with which we must engage. Moreover, as the case study on Sri Lanka demonstrates, culture may not only act as an antagonist to rights but also offer up a site to be capitalised upon. It is for this reason that I do not argue for a doing away with the question of culture. Instead, I call for debates about culture and rights to be repoliticised: the former in ways I will discuss in this chapter, the latter I will consider over the course of the next two chapters.

Rewriting the history of human rights As Mark Goodale observes, non-elites (for example, peasant intellectuals, village activists, government workers, rural politicians, neighbourhood council members) are very often important human rights theorists and the idea of human rights is, ‘perhaps most consequentially shaped and conceptualized outside the centers of elite discourse’ (2007, p.25). It is therefore appropriate that the history of human rights be unmoored from the current dominant narrative, which links it to European political shifts and liberalism. One way in which this might be done, proposed by Rajagopal (2003a, 2003b), is through the development of a resistance theory of international law. While this will be discussed further in the next chapter, it is perhaps useful to note here the potential that such a shift in focus might have in reorienting the debate about how international discourses, frameworks and mechanisms should respond to particular cultural contexts. What is opened up by simply retelling the story of human rights not through a history dating back to the Magna Carta, the French and US revolutions, and the aftermath of World War II, but through the ancient kingdoms of Ashoka and Cyrus the Great, anti-colonial struggles, and contemporary popular movements resisting the environmental degradation and economic injustice of dominant models of development? Or better still, what is opened up by not attempting to develop any historical or ontological narrative of human rights but by simply seeing them as a set of tools among others that might be drawn on by groups or individuals as they reflect on their challenges and strategies for improving their lives?

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168  Retheorising human rights Some practical examples of both the importance of this strategy and how it might be done emerge from the case studies discussed in Part 2. In the case of both Sierra Leone and Sri Lanka, we see clearly the ways in which human rights advocates already struggling to overcome the accusation of being dupes to Western imperialism, are not assisted by the presentation of human rights trainings around a model of pre-existing international laws and abstract norms. Rather, it further legitimates the view of foreign imposition. So too in the case of Kosovo, the preference for utilising international norms of human rights rather than engaging and consolidating local activist traditions has led to the creation of a more divisive and disengaged public discourse on rights.

Forging links: alternate forms of (subaltern) cosmopolitanism Finally, as outlined in the Sri Lanka case study, there are other ways in which human rights are in fact being introduced in particular locations: ways that not only allow participants to feel more empowered but also make them curious about the possible connections that may exist between their own struggles and those of oppressed or marginalised peoples elsewhere. This seems to support Santos and Rodríguez-Garavito’s argument that rather than simply rejecting the concept of cosmopolitanism as another example of global hegemony, there is a need to shift our understanding of what cosmopolitanism is and offers away from the Western-centric form traditionally espoused in human rights (2005, p.13–14). As they point out: Who needs cosmopolitanism? The answer is straightforward: whoever is a victim of local intolerance and discrimination needs cross-border tolerance and support; whoever lives in misery in a world of wealth needs cosmopolitan solidarity; whoever is a non- or second-class citizen of a country or the world needs an alternative conception of national and global citizenship. In short, the large majority of the world’s populace, excluded from top-down cosmopolitan projects, needs a different type of cosmopolitanism. (2005, p.14) Articulating an alternate form of cosmopolitanism requires a return to the drawing board when it comes to identifying the universal basis for human rights. This cannot be founded in international law or the top-down transfer of (generally Western liberal) values, as is the current practice of human rights (illustrated in the case studies). Alternate processes for identifying universally shared concerns and aspirations from the bottom up need to be cultivated. On the one hand, this points to the importance of creating the possibility for engagement across ethnic, national and other boundaries. On the other, it highlights the possibility of building solidarity around shared experiences of exclusion and disadvantage (the ‘oppositional variety’ of subaltern cosmopolitanism with an emphasis on social inclusion presented by Santos and Rodríguez-Garavito (2005, p.14)). Clifford Geertz, responding back in 1985 to the argument that a certain ethnocentrism was both inevitable and perhaps even desirable, expressed dismay at the

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Reframing the rights versus culture debate  169 kind of ‘vacuous tolerance’, that, ‘engaging nothing, changes nothing’ (p.268). He further argued that in the contemporary world the idea of such bounded, discrete cultures, which could co-exist in blissful ignorance and smug arrogance, was also a fallacy: ‘[i]t is not necessary to choose, indeed it is necessary not to choose, between cosmopolitanism without content and parochialism without tears. Neither [is] of use for living in a collage’ (p.274). Rather the challenge is for each of us (for as Geertz points out, ‘[f]oreignness does not start at the water’s edge but at the skin’s’, p.261) to first learn to capaciously see in order to in turn capaciously judge (p.275), meaning, ‘we must learn to grasp what we cannot embrace’ (p.274). Drawing on Geertz’s insights I reject Donnelly’s approach of relative universality based on adherence to abstract universal principles that are then to be interpreted in particular locations. We must find ways to critically engage with both the supposedly universal norm and the cultural value it apparently conflicts with. But this must be done in a way that does not simply replicate the imposition of dominant views over those more subordinated. It is this process of grasping (and the willingness to do so) that seems the only possible strategy for facing extremely difficult and in some cases irreconcilable differences of opinion in a manner that remains true to the asserted aims of human rights as tools for empowerment and emancipation. I will return to this issue in the final chapter. Meanwhile, if for Donnelly human rights offer the only adequate response to the conditions of modernity (discussed in Chapter 1), it is also perhaps worth considering the extent to which human rights currently work as a tool of modern (colonial) governmentality to shape the sites for contestation to be only those offered by a particular vision of modernity.1 Thus rather than our finding a way to resolve the ‘respect for cultural difference and tradition’ with ‘adherence to universal ethical values and principles’, what is called for is a complete reformulation of the terms of debate.

‘Death By Culture’ (Narayan, 1997) There can be little doubt that human rights have the potential to impose particular cultural norms and values in the name of ‘universalism’ (and currently, frequently do). This comes through in all of the case studies. At the same time, ‘tradition’ and ‘culture’ are often invoked as the barriers to the achievement of human rights and therefore the target of hostile intervention.2 However, as the above discussion of Clifford Geertz’s argument highlights, asserting the importance of respecting ‘cultural difference’ or ‘tradition’ is not the cure. First, such a position renders invisible the power at play in the very invocation and performance of culture/tradition. The simplified explanation of ‘culture’ as the reason behind particular situations or practices all too often allows for the collapsing and erasing of a vast array of complex social, political and economic factors. This ‘death by culture’, as Narayan (1997) so eloquently terms it, removes the agency of both those who resist – and are rendered marginal or ‘inauthentic’ (as non-Western feminists often are) in the process – and those who violate the rights of others in the name of ‘culture’. Dicle Kogacioğlu (2004) provides a

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170  Retheorising human rights powerful example of this argument through her examination of judicial responses to ‘honour killings’ versus ‘blood feuds’ in the context of Turkey’s attempts to demonstrate its commitment to human rights in order to gain accession to the EU. In the former cases (involving the murder of female members of families by their male relatives, allegedly to redress some shame brought upon the family name), Kogacioğlu was repeatedly told that it was an unfortunate but inevitable outcome of centuries of tradition and as a result judges were less inclined to impose harsh penalties on perpetrators. Meanwhile, in the latter (involving the murder of men as a result of inter-family conflicts), the response was one of horror and insistence that the law must act to eradicate an outdated and barbaric practice. This led to increased and highly punitive prison sentences in any case where a blood feud was a possible motive. In my own case studies it is possible to see repeated examples of how this ‘death by culture’ flattens complex economic and political processes in ways that do little to assist with challenging hegemonic power structures: the example of the March 2004 violence in Kosovo and the characterisation of ‘forced marriage’ versus ‘customary marriage’ in Sierra Leone provide merely two illustrations. In the case of the former, the asserted ‘ancient’ and irreparable hatred that exists between Serb and Albanian communities has served to solidify the position of conservative elites in the post-conflict political arena. Meanwhile, in the latter, the establishment of ‘forced marriage’ as an aberrant practice of war that cannot be compared with customary marriage in times of peace has given renewed legitimacy to local patriarchal order. Second, the culture or tradition being invoked in opposition to externally imposed conceptions of right is often itself not ‘pure’ but the result of particular colonial encounters that have marked and shaped the understanding of culture. As various postcolonial scholars have pointed out, there is no ‘pre-colonial’ past that can be recuperated. In fact, the version of ‘traditional authentic’ culture often reproduces classic colonial discourses. This is evidenced in the debate regarding ‘customary marriage’ in Sierra Leone, as discussed in Chapter 5. So too, the assertion that human rights are another attempt at colonising Sri Lanka is a classic rearticulation of the very justification for British colonisation in the first place: the importance of bringing ‘civilisation’ through the imposition of Enlightenment values. In this way the rejection of human rights on the basis of ‘cultural incompatibility’, far from being a form of resistance to neo-imperialism, is in fact simply the other side of the imperialist coin – the performance of the native the coloniser always believed existed. Third, and related to the previous point, this construction of the dichotomy of (Western) international human rights and (non-Western) ‘cultural difference’ operates to reinforce rather than challenge not only local but also existing global hierarchies (racial, gendered and sexual). As the Sierra Leone example of forced marriage demonstrates, the prism through which cultural difference is viewed and valorised is marked by an apparent consensus on the universality of patriarchy. Through an apparent consensus that ‘women’s rights’ must be balanced against ‘respect for culture’, the reality of misogyny, homophobia and sexism within the Western societies supposedly championing the cause of human rights

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Reframing the rights versus culture debate  171 is rendered invisible or at the very least trivial by comparison (i.e., ‘So what if women in our country don’t get paid equally, look at those poor women who are beaten for not wearing a veil!’), making human rights issues only something of concern out there. Added to this, the fact that human rights issues are seen as something affecting those societies, rather than our own, reinforces a hierarchy of civilisation. Again, by playing the ‘culture card’, non-Western actors facilitate this discourse – and those committed to both a radical and an anti-imperialist agenda are left struggling to find a voice to do justice to the very real violence and discrimination experienced by many individuals outside of the West without playing into the colonial civilising mission discourse or being accused of acting as dupes or accomplices to Western imperialism.3 Finally, the culture versus rights debate not only allows those who (often perhaps cynically) champion human rights to hide their own vices. It also inhibits the possibility of unpacking, interrogating and debating the underlying values on which human rights are built. As the example of forced marriage in Sierra Leone demonstrates, it is not only the understanding of customary marriage that is informed by patriarchal assumptions of normative gender roles within marriage. The very concept of marriage and family is assumed to be heteronormative and patriarchal. Yet this went unchallenged, not only by the Special Court but by many of the feminist scholars and activists seeking ‘gender justice’ through these prosecutions. This is precisely why, rather than assuming the progressive and emancipatory nature of human rights, we need to debate this, all the more so now that – as discussed above – human rights have become a discourse invoked by so many different interests. For this reason I call for a (re)politicising of both culture and human rights.

(Re)problematising, (re)politicising ‘culture’ To draw on the words of Florian Hoffmann, ‘human rights activism seems premised on a rigid and culturally defined “we”/“they” dichotomy: the “we” is presumed to have and understand human rights, and the “they” to lack them and to be in need of them’ (2006, p.224). Indeed, what Hoffmann seeks to highlight is that it is in fact uncertain that there is a shared understanding of what we mean when we talk about ‘human rights’, even among those who are apparently in agreement that they belong to the ‘human rights community’. For this reason it is perhaps more insightful and productive to see the issue not as one of universalism versus cultural relativism but rather in terms of the distribution of discursive power – that is, who gets to define the global (‘universal’) and who is habitually situated as the local (‘culturally specific’). When characterised in this way, the supposedly global sites of ‘universal norm production’ are more easily situated and their operation is open to interrogation. At the same time, such an approach requires a move away from the abstract sphere of normative political theory towards a more contextual and located study of empirical realities. In the words of Sally Engle Merry: ‘Empirical studies of local social movements based on rights

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172  Retheorising human rights approaches are important in understanding how global human rights shape local social action, and thus, moving beyond abstract debates about universalism and relativism’ (Merry, 1997, p.251). For example, if we look at the women’s human rights movement, what is most striking is the agreement we find among those most vocal at either end of the spectrum: that culture is patriarchal, that rights are necessarily Western and tradition the property of the non-West. This is problematic for a number of reasons, but I will identify just two here. First, as various postcolonial feminist scholars have suggested, it denies the agency of non-Western women who do choose to live within their traditions and cultures (for example, Muslim women who wear the hijab), constructing them as passive dupes. Second – and to my mind more significantly – it reinforces the power of dominant and frequently conservative non-Western actors to define what a non-Western culture does or does not believe. This creates and reinforces a false dichotomy in which women (or other more marginalised groups) within that culture must either reject rights wholesale or buy into the Western model. No alternative is possible. It is this more than any other aspect of the universalism/cultural relativism debate that condemns both human rights’ potential as a tool to empower and liberate and those who are denied these rights. As the case studies in this book demonstrate, the reproduction of this dichotomy has very real effects on the possibilities for social justice. It is therefore important to start by exploring when ‘culture’ is invoked and how it becomes a structure set up in opposition to ‘rights’. For example, while within most Western liberal democracies rights such as affirmative action, equal pay or maternity leave continue to be contested, these struggles are not characterised as one between ‘rights’ and ‘culture’. Instead, they are constructed as political battles within which there are various positions taken including among affected individuals and rights activists themselves. Yet when it comes to discussions of discrimination and inequality in most parts of the non-West the debate becomes laden with assumptions about the (foreign) nature of rights, which clash with the ‘traditional culture’ of certain locations. At the same time, the assumptions contained within the work of scholars such as Keck and Sikkink (1998) (which has had a profound influence on contemporary understandings of norm diffusion and social change) often situate civil society – both locally and internationally – as inherently progressive. As the case studies demonstrate, often it is precisely within the context of the ‘human rights movement’ that the most conservative and hegemonic notions of identity are not only preserved but reinforced and legitimated. Meanwhile, what is lost is the possibility of culture and tradition providing the basis for both rights and rights claims in particular times and spaces.

Who defines culture? The problem of authenticity and representation In a book detailing the debate regarding the universality of human rights and its place within human rights, Eva Brems (2001) sets out the legal and ­philosophical

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Reframing the rights versus culture debate  173 foundations in which the international human rights regime has emerged. She then goes on to discuss some of the critiques directed at the apparent universalism of this regime through various sections setting out ‘alternative’ worldviews: in particular, ‘Asian Human Rights Claims’ (Section II), ‘African Human Rights Views’ (Section III), and ‘Islam and Human Rights’ (Section IV). Finally, she concludes by asserting the importance of an inclusive universalism, drawing on models proposed by legal philosophers such as Will Kymlicka and Charles Taylor. In many ways this book replicates the common approach to debates about human rights universalism and cultural diversity and pluralism. Rights are presented as decontextualised legal standards, which then come into conflict with the decolonising and postcolonial critiques of Third World nationalisms. The parameters of the debate are also accepted by Third World Approaches to International Law (TWAIL) scholars when the ‘Third World’ is represented through the voices of particular state actors – in the Asian context, Singapore being frequently cited – or significant anti-colonial leaders (such as Jomo Kenyatta for Africa).4 What is all too often neglected or at least understated is the possibility of diversity within the apparently homogenous space of the Third World and the extent to which certain powerful voices are privileged when speaking about ‘non-Western culture’ to the exclusion of others. Postcolonial feminist scholars have challenged this, pointing to the ways in which patriarchal hierarchies have often influenced when engagement with outside cultural, social and political influences is acceptable and when it is not. However, there has still been a tendency to allow a common sense assumption about the individualised nature of Western rights and the collectivised cultures of the non-West to deny alternate voices within the non-West the legitimacy to speak. As I have argued in relation to controversial Somali/Dutch writer Ayaan Hirsi Ali, this can produce highly counter-productive and paralysing effects for an anti-racist feminist politics (Grewal, 2012b). The colonial residues within feminist and culturalist discourses continue to make it virtually impossible for many women to find a space that is sensitive to both the gender and race politics at stake. As with Hirsi Ali, the role played by expert witness Zainab Bangura in the SCSL (discussed in Chapter 5) seems to once again demand further interrogation of how the legacies of colonial racial and gender orders continue to be rejuvenated and reproduced through the bodies of postcolonial subjects (Grewal, 2012a; see also Grewal (forthcoming a) for a comparison of colonial discourses on sati and the SCSL forced marriage debate). I am therefore keen to find ways in which to call attention to discriminatory practices within non-Western contexts while at the same time maintaining a critical reflexivity in relation to the historical, social and cultural location. Mariane Ferme (2013) provides an example of such an approach when she juxtaposes the claims of the SCSL and other international transitional justice actors with local Sierra Leonean perspectives, not, as she emphasises, to reassert a ‘cultural relativist’ argument that relies on a depoliticised and overly homogenised version of culture and tradition, but rather to uncover the complex ways in which different sectors of Sierra Leonean society have dealt with individual

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174  Retheorising human rights needs and communal expectations (2013, pp.50–51). By looking closely at how local practices and discourses have sought to deal with the conflict and its aftermath, she actually identifies parallel efforts to those within international legal spheres to navigating the relationship between rights-bearing individuals and rights-bearing collectivities, in the process undermining the simplistic divide between the individualism of (Western) conceptions of rights and the inherent communitarianism of non-Western cultures. She has also highlighted the overtly political nature of these efforts: Arendt’s understanding of rights as essentially political – and democratic, in particular – echoed with debates among some of the marginalized groups in Sierra Leone whose grievances had fueled the conflict. In the war’s aftermath, these groups embraced in novel ways the discourse of rights, for instance to advance the interests of individuals against those of collectivities such as patrilineages and extended households, which tended to favor the older, powerful, and wealthy in these communities. In the process, they also insisted on anchoring these rights in political institutions and practices. (2013, p.51) Ferme’s conclusions are ultimately very similar to my own. As I argued in Chapter 5, while the process of international justice did little to disrupt (and in fact assisted with legitimating) existing power structures, the language of ‘women’s rights’ has been picked up and utilised by actors otherwise highly marginalised within their communities as a means of challenging social hierarchies. It is the practices of these actors that tell us most about how the language of rights can be simultaneously universal and culturally specific. Meanwhile, they also point to the important political dimension of rights and culture claims: an issue to which the final chapter of this book is dedicated.

The productive capacity of culture At the same time, it is important to shift our thinking away from the binary of culture and rights to also allow recognition of the productive capabilities of culture. As the Sri Lankan case study in the previous chapter illustrates, in some cases the cultural arena is actually a more accessible and productive space for the most marginalised sections of community to engage in critique and to make their claims. Equally, the supposedly emancipatory spaces of civil society and law are actually highly exclusive, exclusionary and disempowering. This productive capacity of culture has all too often been neglected within human rights, with ‘tradition’ and ‘cultural practices’ automatically viewed as negative and antithetical to human rights values (superbly illustrated by Sally Engle Merry (2006a) in her study of UN discussions regarding ‘harmful traditional practices’ and ‘women’s rights’). Yet, in the words of Partha Chatterjee, ‘if one truly values the freedom and equality that democracy promises, then one cannot imprison it within the sanitized fortress of civil society’ (Chatterjee, 2004, p.74). As I sought to show in the previous chapter, it may be that the realms of

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Reframing the rights versus culture debate  175 tradition, culture, spirituality and superstition – while little understood by many of us in the human rights world – are also providing productive spaces. With a more political and critical engagement with the concept of culture, it may in fact be possible to mobilise new spheres. In making this argument, I do not wish to over-romanticise what is often an extremely arduous and contested process by which more marginal interpretations of culture seek to compete with hegemonic constructions. As my case studies show, these competing versions of a culture are far from operating on an equal terrain. However, these ‘subaltern counterpublics’ (Fraser, 1990) do open up a space for contestation within the culture and may be a first step towards the development of a more representative and (hopefully) progressive space. They also offer an alternative means of universalising human rights through allowing for the possibility of new forms of solidarity to emerge between marginalised communities.

Conclusion In this chapter I have sought to reconceptualise the culture/rights dichotomy. In doing so, I have highlighted the problematic assumptions underpinning both concepts. Underpinning all of the above concerns is the question of power, which is why it needs to be reintroduced as a key component of the debate around human rights. This is something that is perhaps already explicitly done in discussions about human rights within the global geopolitical order and certainly informs the projects of theorists such as the TWAIL scholars discussed above. However, I think it also requires greater integration into our analysis of human rights practices at the level of civil society engagements with those they (apparently) seek to empower as well as with our discussions of how legal, cultural, social and political factors interact at very micro levels to produce certain limitations and possibilities for human rights as a tool for empowerment. In the next two chapters I explore this further and propose an alternative framework for human rights as socio-political practices, which I hope will further open up new possibilities.

Notes 1 In making this argument I draw on that presented by David Scott (1995) in relation to the development of colonial governmentality. For Scott the distinctive feature of modern colonial governmentality was its concern, ‘not merely to contain resistance and encourage accommodation but to seek to ensure that both could only be defined in relation to categories and structures of modern political rationalities’ (p.214, emphasis in original). 2 An issue Sally Engle Merry powerfully captures in her ethnography of the CEDAW committee hearings (2006a, pp.90–102). See also the discussion in Chapter 1. 3 See Amartya Sen (1997), making a similar argument in relation to the ‘Asian Values’ debate. See also Grewal (2012b), in which I discuss the conundrum thrown up for postcolonial feminists by individuals such as right-wing conservative Somali woman Ayaan Hirsi Ali. 4 Although Rajagopal’s work is a notable exception to this tendency.

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8 Law as tool for positive social change

Introduction Following on from the previous chapter, I am also keen to move away from the dichotomised argument regarding the positives and negatives of law’s centrality to human rights set out in Chapter 2. Instead, in this chapter, I propose that while human rights law is important, this may be less so for its content or intended effects. Rather, the manner in which this body of law is engaged with, by whom and in what circumstances, is a possibly more interesting and significant and yet often ignored aspect of human rights in practice. In arguing this I both accept the criticism of the over-emphasis frequently placed on law in current human rights literature and practice and at the same time reject the view that human rights law is either completely irrelevant or automatically a tool of domination. I instead argue that the complex relationship between law and society means that states, civil society and ‘ordinary people’ make many different practical uses of law as well as developing different understandings of the law and its authority. In exploring this diversity of practice, I identify a number of ways in which the legal discourse of human rights may provide avenues for more progressive potential than is currently recognised. In particular I will focus on the following. First, I discuss the development of a ‘resistance theory’ of international law introduced in the previous chapter and inspired by Balakrishnan Rajagopal’s work. Second, I further develop the concept of ‘cosmopolitan subaltern legality’ outlined by Boaventura de Sousa Santos and César Rodríguez-Garavito (2005), which allows for a recognition of the strategic, sometimes subversive engagements with law enacted by many different marginalised populations across the globe. Finally, I urge for a shift away from the sole focus on legal institutions and professionals towards an examination of the ‘everyday life’ of human rights law.

Developing resistance within international law The criticisms of law as a tool of neo-liberal and/or neo-colonial governance (set out in Chapters 2 and 3) seem to have played out in the context of each of the three case studies. In the case of Kosovo, law played a crucial role in the

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Law as tool for positive social change  177 transformation of the conflict and post-conflict processes into a series of technical problems to be managed by technocratic ‘experts’. This produced a process of depoliticisation, which not only failed to deliver real solutions but also, at least as at 2011, seemed to have created a terrain in which more progressive, radical and marginal voices were even further constrained and marginalised. This made more meaningful political change difficult, at least from the point of view of human rights and social justice. Added to this, the legal discourses on/in Kosovo have served to reinforce the construction of highly localised, tribal, ethnic groups engaged in barbaric violence and their rational, impartial, international counterpart who enters as the arbitrator and embattled saviour. This reinforcement of the local/international binary – and the incumbent assumption that it is the latter that acts as the repository for human rights – also emerges in the context of Sierra Leone. Despite vast bodies of literature, which point to both the implication of international actors in the conflict and the complexity of local social understandings of rights, the picture painted by the SCSL ultimately flattened much of this to produce a narrative again populated by the classic neo-colonial figures of victimised black women, savage and/or patriarchal black men, and enlightened white saviours. Through all of this, law played a key role. Finally, in Sri Lanka, the battle has been between conflicting legal regimes: the international and the domestic, both of which claim to provide the most appropriate space for victims’ voices and both of which continue to marginalise the already marginalised. In this case, the battle between the legal regimes has often been fought utilising classic juxtapositions between those asserting a universal moral standard and those pointing to the continued legacy of colonialism. At the same time, the centrality of ‘experts’ and elite institutions has been reasserted by both national and international sides. Both have been focused more on good governance than on enhancing democratic practice, leading to alternative sites for political and social engagement being cultivated beyond the state and law. However, the case studies have also highlighted that alongside these processes other perhaps less noted but equally significant practices and outcomes have emerged. For example, in the case of Sierra Leone, the strategic (mis)appropriation of the SCSL jurisprudence on forced marriage by local women’s rights activists has opened up new space for debates about gender inequality. And while many are sceptical about the efficacy of legal institutions in providing redress in the context of Sri Lanka, this has not deterred individuals from seeking to acquire the language of human rights law to be used as a tool that might give them greater social capital in their interactions with authorities and others. There has also continued to be engagement with both international and national legal mechanisms even as institutions have repeatedly failed to deliver on promised outcomes. As discussed in the previous chapter and in Part 1 of this book, a major problem has been the hegemonic construction of human rights in terms of both its foundations and its sources of authority. In this sense, law’s power to define, name and set parameters has been invaluable. However, while for many this has been a reason to reject the legalisation of human rights, in this chapter I call instead

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178  Retheorising human rights for a re-imagining of both the law and our engagement with its institutions and discourse(s). This can be done in a number of ways. The first and perhaps most obvious is – as introduced in the previous chapter – through the process of developing what Rajagopal (2003a, 2003b) has called ‘a resistance theory of international law’. Through not only recognising but also valorising the role that Third World social movements have played in developing international law and its institutions, the hegemonic narrative of law’s foundations and authority is called into question in ways that are potentially democratising. In his study of Indian activists’ engagements with both domestic and international legal institutions, Rajagopal concludes: ‘international law and institutions provide important arenas for social movement action, as they expand the political space available for transformative politics’ (2003a, p.432). At the same time, recognising the hegemonic function legal institutions at all levels often play – and their methods of silencing marginal voices – Rajagopal urges for engagement with these institutions to be strategic and subversive, using them alongside other more creative or radical forums. What this requires is that we recognise as nonetheless legitimate the unconventional invocations of law that may generally be deemed illegitimate by the ‘legal experts’ who act as gatekeepers. To achieve this in turn requires two further important shifts in the ways in which we engage with and analyse human rights law. The first is the importance of recognising subaltern legality as a less empowered but nonetheless equally important feature of legal globalisation. The second is the importance of extending the scope of our analysis away from formal legal realms towards a recognition of law’s operation within society. I will deal with each of these points separately.

Cosmopolitan subaltern legality: strategic engagement with the law the role of law in counter-hegemonic globalization and the challenges that the latter poses to legal theory and practice have yet to be tackled. (Santos and Rodríguez-Garavito, 2005, p.3). In one of the most important (if not only) studies of globalisation and legality from below, Boaventura de Sousa Santos and César Rodríguez-Garavito urge for neither an uncritical celebration of the expanding field of legal globalisation, nor its outright rejection. ‘The challenge of institutional imagination’, they argue, ‘cannot be met but by privileging the excluded actors and beneficiaries of new forms of global politics and legality’ (2005, p.9). To capture this they propose a theoretical approach in the form of cosmopolitan subaltern legality: ‘The perspective of subaltern cosmopolitan studies of globalization aims to empirically document experiences of resistance, assess their potential to subvert hegemonic institutions and ideologies, and learn from their capacity to offer alternatives to the latter’ (2005, pp.14–15). To achieve this requires a rethinking of the conceptions of legality, law and politics that are generally accepted.

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Law as tool for positive social change  179 Anthony Woodiwiss (2005) has argued that rights and law are primarily instruments of government, but these instruments take on their own autonomy and become channels of power in their own right. Thus rights and law should be viewed as, ‘products of discursive formations’ but also holding emancipatory potential to generate power, ‘to serve the global majority’ (Woodiwiss, 2005, pp.32 and 136). It is true that often the law operates to narrow and confine identities in order to fit with pre-existing categories. This is perhaps best exemplified by the categories of the ‘bush wife’ in the case of the SCSL and the ‘tribal’ Serbs and Albanians of Kosovo. However, it is equally true that, as Allison Kesby writes, ‘[l]aw can be understood relationally . . . in the sense of establishing relationships where previously there were none, of seeking to establish a relationship between, on the one hand, a particular conception of humanity posited by the law and, on the other, the excluded claimants’ (Kesby, 2012, p.137). It is this potential that Sierra Leonean women’s rights activists have capitalised upon in their uses of international criminal law, described in Chapter 5. It is also this sense in which some of the individuals in Sri Lanka (quoted in Chapter 6) have invoked human rights law and it is this potential that the activists I have engaged with in Sri Lanka have sought to draw upon in their grassroots empowerment ­strategies. As Kesby rightly points out, this emancipatory potential contained within law is often left unharnessed by critics in their dismissal of human right law: ‘within the law action, disruption, and potential alternative ways of constructing the world are possible’ (Kesby, 2012, p.136). Thus for Kesby the urgent question is how best to exploit this potential (2012, pp.12 and 137). To my mind this can be done in the following way. On the one hand, it remains necessary to recognise and critique the processes of exploitation and domination that remain embedded within (and often obscured by) international law in order to engage unrelentingly with ‘imperialistic’ international organisations to try to make them more accountable to the subaltern (Kapoor, 2004). On the other, it is also necessary to go beyond this critique. This can be achieved through the insertion of the empirical ­realities of social activists’ and others’ engagement within the legal domain: the types of subaltern cosmopolitan studies of globalisation described by Santos and Rodríguez-Garavito above. For example, the ‘bush wives’ testimony in the SCSL illustrates that even in extremely constrained environments subaltern actors will still find ways of resisting. This does not mean we abandon our critique of the constraints within which they are forced to operate, but this must also be balanced with recognition of the remarkable agency these actors nonetheless show. To fail to do this is to reproduce the same processes of silencing and pacifying that we claim to be resisting through our critiques of hegemonic processes. By recognising and valorising this agency, however, we open the space for more deeply investigating and more concretely identifying the specific ways in which existing institutions disempower, silence or marginalise. By not taking it as a given that this is the nature of such institutions, we also create possibilities for imagining alternative orders.

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180  Retheorising human rights In Sri Lanka, aside from the engagement of local elites with the legal system, I have observed a desire among different constituencies to understand and to be able to use the language of the law. There have been many examples of more marginalised groups choosing to come forward and testify for the various commissions of inquiry and international and local investigations. As long as this desire for formal recognition and justice exists, it remains incumbent on us to continue to work to make these institutional mechanisms more accountable and accessible. Withdrawal is simply not an option for ethical and political reasons. Moreover, once the activism of local actors is also taken into account, it becomes possible to see that law can be a powerful ally, even as it is often regarded by activists as one tool among many for achieving their aims. As referenced above, Rajagopal reaches a similar conclusion in his assessment of the Narmada Dam activists. This is in part due to the fact that many do not have the same expectations that the legal system will deliver ‘justice’ (whatever that may mean) in an impartial and power-neutral way. This is a delusion of those of us lucky enough to be privileged and therefore have expectations of fair treatment. Rather, it seems to me that more marginal actors and activists are much more pragmatic in their expectations, seeing the legal arena as one that may well be set up to work against them but that nonetheless has benefits if used strategically. Kate Nash is critical of subaltern cosmopolitanist approaches to human rights law (such as that of Boaventura de Sousa Santos (1999, 2005)), arguing that their dismissal of the state insufficiently recognises that, ‘[h]uman rights law is state centric in that it is virtually exclusively through states that international human rights law is made and enforced’ (2012, p.808). However, this assumes that the only use for law is the officially sanctioned, formal one, rather than the perhaps more unpredictable but also potentially more subversive (mis)appropriation of legal discourses and frameworks for use within settings outside of formal legal arenas. As the Sierra Leone example illustrates, it is this parallel use of the law that allows those otherwise marginalised within formal systems (legal and other) to engage in the making of emancipatory demands. Of course I do not wish to deny the hierarchies, which give greater authority to legal ‘experts’’ enunciations of what the law says and is. However, as Santos points out, ‘[t]he politics of law involves a variety of legal knowledges and expertise among which the professional legal knowledge is only one component’ (2005, p.30). Furthermore, even where authority is preserved by formal institutional actors, to only focus on this is to miss an important feature of how human rights and law may in fact be being used as a tool of empowerment despite all the institutionalisation processes that have been rightly critiqued by others. This is something that Kamala Visweswaran (2014) also highlighted in a recent conference paper on victim participation in the Commission on the Gujarat Riots in India. In this paper Visweswaran observed that while Muslim leaders rejected the Commission, women who testified about the sexual violence they had witnessed described testifying as a joyous experience, which led others to ask, ‘Why didn’t I testify too?’ Furthermore, while the justice system clearly failed many

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Law as tool for positive social change  181 victims – captured most dramatically in the tragic case of Zaheera Sheikh1 – the Commission did create a space around which some strange alliances were formed. In particular, Visweswaran describes the train workers’ union, which became aware that, given many workers were Muslim, it had an interest in supporting the women’s cause and assisted in providing them with protection to allow them to participate in the hearings. So too Kalpana Kannabiran writes in her recent book documenting anti-discrimination cases heard by the Indian Supreme Court, ‘[constitutional] interpretation is not the exclusive preserve of constitutional courts but, importantly, may be crafted by people’s movements in their exercise of a dispersed sovereignty’ (2012, p.40). Meanwhile, writing about the rise in legal consciousness among Chinese citizens, Mary Gallagher identifies a type of ‘informed disenchantment’ shown by the individuals she spoke with. This, she explains, describes the uniformly negative evaluation of the effectiveness of the legal system by those who have sought to use it. Yet paradoxically this disenchantment did not lead to a sense of despondency or resignation. Instead, ‘plaintiffs put more emphasis on the educative aspects of legal mobilization, vowing to return to the law again, better prepared and less naïve, and also prepared to transmit their lessons to friends, relatives, and coworkers with similar grievances’ (2006, p.786). It also led them to feel more empowered and to seek out new strategies for counteracting the disadvantages they discovered worked against them within the formal system (2006, p.810). In many ways the experiences and views of Gallagher’s interlocutors mirror those expressed by the Buddhist monk in Puttalam, described in Chapter 6. This increased strategic consciousness and newfound confidence are both unanticipated consequences of engagement with the legal system and are not usually recognised by those focusing on the system. Yet they demonstrate ways in which the encounters with the law and the legal arena may provide unexpected sources of empowerment besides official recognition and redress. This also suggests that it may be worthwhile looking beyond simply the manifestation of law in its usual home: the legal arena. One of the other major findings that emerges from the case studies is that marginalised local actors, even as they may find the site of law an unsympathetic or co-opting space, can take the law beyond its formal enunciations and use it as a tool of everyday social and political discourse. It is this position of law outside of the courtroom, the legislature or the lawyer’s office that is the least examined and yet potentially most significant aspect of human rights law.

The ‘everyday life of the law’ One possible way in which a ‘resistance theory’ in international law can be articulated is by destabilising the authority of law to name itself. Michael McCann in his review of scholarship on the relationship between law and social movements notes that legal scholars have largely, ‘remained court-centred, sticking close to official case law and actions of legal elites while remaining distant from grassroots movement activity’ (2006, p.17). As Chapter 5 details, this was also

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182  Retheorising human rights a ­shortcoming of my initial attempts to engage critically and empirically with the SCSL as an institution for local and global justice. This produced a limited view of the relationship between international legal institutions and local rights discourses and struggles. It also reproduced what McCann describes as a ‘cabining’ of law to formal legal institutions, actors and discourses: a process that, ‘mischaracterize[s] other more expansive understandings of law as cultural norms that have a life in resistances to and transformative mobilization apart from, and often at odds with, mainstream elite constructions of law’ (McCann, 2006, p.20). It is somewhat puzzling that the pertinent observations made by Sally Falk Moore back in 1973 regarding the importance of situating analyses of law within specific social contexts (and the other rules’ regimes contained therein) do not seem to have had an impact on more recent studies of human rights and international law.2 After all, Moore’s comments regarding the ways in which legislation implemented to produce progressive social change interacts with other deeply entrenched social structures (1973, p.743) and her criticism of the ways in which formal state law’s interaction with social processes often over-estimates the former’s influence and under-estimates the latter (1973, pp.744–745), would seem to be extremely relevant to the field of human rights. So, too, is Moore’s observation that, ‘important aspects of the connection between law and social change emerge only if law is inspected in the context of ordinary social life’ (1973, p.743). It is for this reason that I have sought in the case studies to expand my analysis to what Laura Nader (2002) has called the, ‘life of the law’. Drawing on the insights of socio-legal scholars and legal anthropologists, I have tried to examine not simply the legalistic impositions and interpretations of human rights but also the ways in which these concepts are appropriated, reinterpreted, subverted, challenged, adopted or rejected through everyday actors’ engagements. In doing this I do not under-estimate the unequal terrain within which this exchange takes place. I do, however, see this as an important means of challenging the law’s hegemony as a way to expand on the understanding of ‘law’s complex life throughout society’ (McCann, 2006, p.22): a life manifested not simply through the actions of elite legal actors but also in more ordinary and remote sites. As Anna-Maria Marshall and Scott Barclay (2003) describe, the ways in which individuals interpret law shapes new versions of legality (p.618). Drawing on Ewick and Silbey’s (1998) work, they note that, ‘law is what people think it is, what they say it is, and what they do to implement the meanings they create’ (2003, p.621). This does not always lead to emancipatory outcomes, but, as the case studies on Sierra Leone and Sri Lanka show, this is also an important dimension to understanding the impact of international legal norms. In both countries we can see examples of how the language of human rights, as enshrined in law, has created opportunities for changes in social relations, which are crucial to effecting social change (Moore, 1973, p.734). In this sense, rather than conceptualising law only through its formal content as articulated by legal actors, it may be more productive to see it as, ‘encapsulat[ing] social meaning in a manner that can be mobilized to create new possibilities of choice and action

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Law as tool for positive social change  183 that may enjoy the legitimacy associated with the state. Thus, law may be conceptualized as an arena for struggle and resistance’ (Marshall and Barclay, 2003, p.623, references omitted). In this regard, the legalistic aspect of human rights may also be seen as a strength. By mobilising the power and legitimacy of law, disempowered and marginalised populations may gain a powerful ally in their attempts to demand change/rights. As Chapter 5 shows in the case of Sierra Leone, parts of the women’s movement have clearly done this using the SCSL even as the legal institution and the discourse it produced was conservative and potentially disempowering. So, too, the examples given by activists in Sri Lanka demonstrate a more varied way in which law may be invoked, alongside other possible vocabularies, for the authority it bestows, thus providing otherwise marginal individuals with greater social and cultural capital. For this reason, it seems that rather than rejecting the role of law in human rights it is more pressing for us to reposition our interrogation away from simply formal law (in the form of conventions and legal principles, legal institutions and professionals) towards what Ewick and Silbey (1998) have called ‘legality’ in the everyday life of ordinary people. This ‘decentring’ of law (Marshall and Barclay, 2003) may help us to neither over- nor under-estimate the value of legal discourses to the human rights and social justice agenda.

Engaging with law Admittedly the argument I am making here relies on the ability of actors to engage with and make strategic, productive use of the legalistic framework and discourse of human rights. Yet I am resistant to accepting that this type of strategic engagement is only possible for those with an understanding and appreciation of the law. In fact I wonder if, on the contrary, those of us who have been schooled within the logic of the law are less capable of freeing ourselves from its hegemonic form and engaging with it in more irreverent and disruptive ways. In the case of Sierra Leone, regardless of the effectiveness of formal legal measures – through the SCSL or local legislative reforms – it is undoubtedly the case that there has been a shift in local consciousness and public debate. This has been achieved not through the outreach activities of formal actors but through the appropriation of legal norms – albeit in a strategic and sometimes subverted (subversive?) way – by local social actors as a powerful ally in their claim-making practices. Meanwhile in Sri Lanka, it is perhaps more similar to the tactics described by Rajagopal where, despite the highly restrictive and authoritarian environment prevailing in the country, individuals have flocked to the quasi-judicial bodies of Commissions of Inquiry as a venue – among others – to voice their grievances and make claims for justice. To treat these actions as merely the pathetic acts of desperate individuals with no other choice is, I think, to do a disservice to the courage and agency they exhibit. Given Sri Lanka’s modern history and the lack of tangible outcome from the numerous earlier commissions, I do not see the choice of all of these individuals to reflect a naïve belief in the system. Rather, I choose to read

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184  Retheorising human rights this – as Rajagopal does in relation to the Narmada Dam activists – as a strategic choice to use legal arenas as one site among many for claim making. As I have tried to show, this resort to legal arenas is accompanied by many other non-legal strategies, including the performance of local rituals, establishment of collectives, and grassroots political and social action. As Santos has observed, there is a need to expand our understanding of legality and the politics of legality: ‘[u]nder conditions of conflicting globalizations, collective legal practices combine political mobilization with legal mobilization, and the latter may involve legal as well as illegal and non-legal actions’ (2005, p.30). It is also worth considering the implications of Gallagher’s conclusion: ‘Engagement with the law may leave one with a better sense of one’s rights but with reduced belief in the law as a capable protector of those rights’ (2006, p.810). Could this increased awareness, the creation of ‘critical citizens’ (2006, p.788), combined with the solidarity created through legal mobilisation, in fact assist with the repoliticisation of human rights? This question becomes all the more pressing in light of the final theoretical debate I wish to explore: the radical potential of human rights. It is to that debate I will now turn.

Notes 1 The key witness in the Best Bakery case, which involved the murder of 14 people, Sheikh repeatedly changed her testimony throughout the trial (allegedly as a result of threats) and was ultimately charged with perjury. 2 See Hilhorst and Jansen (2012) and the work of Sally Engle Merry as notable ­exceptions.

Conclusion

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Reinvigorating the radical potential of human rights

Introduction The case studies in this book have highlighted both the oppressive nature of much institutionalised human rights discourse and practice and the spaces that nonetheless exist – or rather, have been created – by marginalised peoples to make claims for justice. So what are we to conclude from this contradiction? Where does it leave those of us working within the field of human rights? In this, the book’s Conclusion, I explore the implications of the ambiguous emancipatory potential of human rights. I do this by drawing particularly on the work of French political theorist Jacques Rancière. Engaging with Rancière’s thought opens up some important avenues for reconceptualising human rights as socio-political practices: avenues that do not lose the critical lens but also allow us to account for otherwise under-valued practices, voices and actors. Employing a Rancièrian conception of politics makes possible a reimagining of the subject of human rights away from an image of passive victimhood towards a constrained but creative agent. At the same time, for such a shift to be possible, we need to take up Rancière’s challenge to reimagine the political: not as a set of institutions but as a form of resistant practices that exist on the margins and call into question the entire system and its claims to represent. It is in this sense that human rights can (and should) be repoliticised as a complement to the repoliticisation of culture called for in Chapter 7 and the valorisation of the everyday uses of law by ordinary people described in Chapter 8. This creates opportunities both for ongoing critique of, and resistance to, the dominant articulations and frameworks of human rights, and for productively maximising the utility of human rights.

The subject of rights One of the recurring problems highlighted in the case studies is the divide created in human rights between those assumed capable of saving and those who can only ever be saved. In this way, even as human rights are presented as a device for redressing injustice and emancipating those oppressed, in practice they often serve to reinforce dominant power structures. At the heart of this paradox lies the problem of political subjecthood.

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186 Conclusion The dilemma is captured in the figure of the destitute woman in West Bengal described by Partha Chatterjee in his 2011 book Lineages of Political Society: Studies in Postcolonial Democracy (also mentioned in Chapter 6). Doing daily rounds of the offices of local political parties and petty government officials to beg for support, this woman survived, ‘by daily manipulating the local levers of an utterly banal political machine’ (Chatterjee, 2011a, p.148). Should we characterise this woman as a passive victim? Or a self-interested exploiter of the system? For Chatterjee – and I agree – both interpretations do a disservice. Her story highlights the realities of inequality, the difficulty (if not impossibility) that those living on the margins face in challenging the system and the creativity they nonetheless demonstrate in finding ways to make the system provide for them (however inadequately). Chatterjee therefore asserts the importance of recognising such individuals’ political subjectivity and of continuing to call for an overhaul of the system (‘I will voice my full-throated support for a political order that will bring destitution of this kind to an end’: 2011a, p.148), while simultaneously paying attention to the ‘condition of un-heroic everyday politics’ (2011a, p.149). As the case studies in the previous part of this book demonstrate, ‘everyday politics’ may take the form of strategic engagements with law, cultural performance, or simply the actions of everyday life. They often, ‘test . . . rather than overtly violate . . . the limits of conventional political practice’ (Chatterjee, 2011a, p.150), but in the process they may open up the possibility for shifting what is taken for granted. It is this political capacity and agency of the disempowered subject that Rancière so illuminatingly theorises. Exploring the historical foundations of philosophical accounts of both aesthetics and politics, Rancière highlights the classical distinction drawn between animals who have voice to express pleasure or pain and humans who not only have this capacity but also, ‘the specific power of the logos that allows them to reveal and discuss what is useful and what is harmful and thus what is just and what is unjust’ (2009, p.4). In identifying this distinction, Rancière notes that historically this human capacity was not assumed to be shared by every human – ‘there are human beings who are not entirely human beings’ (2009, p.4). Moreover, the distinction between the mere expression of pleasure or pain and properly articulated speech is often hard to draw and hotly contested. To demonstrate, Rancière refers back to Aristotle’s division between the passive capacity for understanding words ascribed to slaves and the active ability of citizens to articulate and debate notions of justice. In the context of human rights, these observations have a particular significance. As the case studies have shown, the distinction between the objects of human rights and those empowered to ‘save’ them all too often seems to replicate the distinction between those humans who have an animal capacity for expressing pleasure and pain and those who are assumed able to turn this into an articulation of justice or injustice. Added to this is the significance of location. In Rancière’s account it is the worker who, ‘[s]ince he has no place to be elsewhere, he has no capacity to understand the relation between different places that

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Conclusion  187 make up a community, which means that he has no political intelligence . . . [he] cannot be anywhere other than the place where the objects of desire and consumption are produced’ (2009, p.4). For Rancière, ‘[t]he ethical law thus is a law of differentiation between the class of sensation and the class of intelligence’ (2009, p.4). This description equally applies to the located subject of human rights interventions. Whether it is the Kosovar trapped in a primordial battle of ancient ethnic hatreds, the Sierra Leonean woman ‘protected’ by the patriarchal tribal family, or the Sri Lankan rural poor forever caught between brutal local assertions of nationalism and the salvation of Western liberal values promised from afar, in each it is assumed that the scope for agency is limited to brute sensation. Theirs is an expression of pain and desire but with no intelligible language within which it can be presented, hence the assumed need for the external actor to translate these sensations into the legal and political languages of justice. And yet Rancière’s work does not stop here with the mere description of the existing political and ethical order. And it is his attempts at articulating the ignored or suppressed but ever-present possibilities for and practices of aesthetic and political resistance that open up important ways of reconceptualising the power and potential of human rights. Drawing on Kant’s conception of aesthetic judgement, Rancière seeks to disrupt the existing order in which, ‘you are either ignorant and subjugated or have knowledge and are free’ (2009, p.8). To illustrate, he provides an example of a joiner who, while being an artisan (and therefore assumed to have no ability beyond the appreciation of the activity he is compelled to complete), describes in a revolutionary workers’ newspaper his experience of stopping to enjoy the beauty of the house within which he is employed to lay the floor (2009, p.7). In this moment, Rancière argues, the joiner has not forgotten the order within which he works. Rather, he is simply choosing to act as if that order did not exist for the moment in which he pauses to engage in an act of aesthetic judgement (something that is generally assumed to be only possible for those who are free of the time constraints of manual labour). For Rancière, ‘[t]his ignorance is by no means the illusion that conceals the reality of possession. Instead it is the means for building a new sensible world, which is a world of equality within the world of possession and inequality’ (2009, p.8). Similarly, in those moments of claiming one’s human rights, the marginalised subject is not forgetting or covering up for the system, which has and will continue to deny her. She is simply acting for a moment as if it does not exist – staking her claim to the equality that is promised but not delivered. As with the worker who temporarily disrupts the dominant order by stopping to admire the beauty of his labour, the subject of human rights also periodically disrupts the system. She does this by utilising or appropriating the language of human rights (maybe even misappropriating), by making claims that do not conform with what is expected of her, speaking rather than being spoken for, or by seeking to manipulate the system to achieve her own ends. While these actions do not overthrow the dominant order, they do interrupt it from time to time and in doing so open up a possible radical potential.

188 Conclusion In this way, political subjects are by definition anyone:

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A political subject is a subject constituted through a process of enunciation and manifestation that plays the part of the demos. What does it mean to play the part of the demos? It means to challenge the distribution of parts, places and competences by linking a particular wrong done to a specific group with the wrong done to anyone . . . . (2009, p.11) And it is at its essence this power that the language of human rights holds: a language within which to articulate oneself as if constituting the demos. The asserted universality of human rights provides a useful tool with which to assert the applicability to anyone. Meanwhile, ‘[h]uman rights are indissociable from the subjective meanings actors bestow on them in concrete situations’ (Hoffmann, 2006, p.230). The radical potential therefore lies in highlighting the meanings given by those who have traditionally been excluded, marginalised or ignored and placing these alongside the meanings ascribed by dominant, hegemonic actors. To achieve this requires a reconceptualisation of the framework of cosmopolitanism, globalisation and legality within which human rights have until now been situated (the exercise of analysing counter-hegemonic globalisation and cosmopolitan subaltern legality described by Santos (2002, 2005) and discussed in the previous two chapters). It also requires us to look beyond the realms of the international and the national, formal institutions and civil society into the ambiguous, fragmented and unorganised sphere of political society (Chatterjee, 2004, 2010, 2011a; Menon, 2010; discussed in Chapter 6). This achieves two important and to my mind desirable outcomes. First, it resists the dominant logic of those who save and those who are saved. For example, by reinterpreting the joiner’s words (discussed above), Rancière opens up the possibility for seeing them, ‘not [as a description] of a lived situation but [a] reinvent[ion of] the relation between a situation and the forms of visibility and capacities of thought that are attached to it’ (2009, p.17). Similarly, by identifying and taking seriously the claims made in the name of human rights by marginal(ised) actors and not only those who claim to speak for them, we open up the possibility for a more egalitarian social and political order. Second, the reconceptualisation provides a reinvigoration of the political potential of human rights. This is achieved not only through a recognition – as Chatterjee calls for – of marginal actors within the political domain but also through a reimagining of the very conception of the political in human rights. It is to this issue that I now turn.

Reimagining the political Following Rancière, human rights are a political tool, which find their meaning in the very act of being claimed by those marginalised. As outlined in Part 1 of this book, politics in human rights has tended to be treated as a dirty word

Conclusion  189

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(with law, governance and ethics stepping in to occupy its place). However, if politics ‘typically involves a struggle by subaltern groups to be seen and heard as speaking subjects within a social order that denies that they are qualified to participate in politics’ (Schaap, 2011, p.30), then the language of human rights is a form of politics par excellence. This is because: [T]he subject of human rights emerges through political action and speech that seeks to verify the existence of those rights that are inscribed within the self-understanding of the political community. In doing so, political subjects demonstrate the reality of both their equality as speaking animals and of their inequality within the social order. (Schaap, 2011, p.34) In making the claim that one has human rights, the claim maker is simultaneously highlighting what she has been denied and asserting her capacity for making demands as an agent in her own right. The act therefore serves a double purpose. On the one hand, it calls attention to the injustice of the existing order. On the other, it allows for another challenge through the assertion of a place within the order for a voice that has otherwise been excluded. In this way, Rancière introduces the possibility for a different conceptualisation of politics. He remarks: ‘politics is not primarily a matter of laws and constitutions. Rather, it is a matter of configuring the sensible texture of the community for which those laws and constitutions make sense’ (2009, p.8). It is this aspect of politics that seems to have been erased in current human rights practices, as the case studies highlight. With the focus on ‘experts’ and ‘best practice’ and ‘ideal structures’ and the constant reference back to the system as a source of redress, the fundamental principle of democracy Rancière alludes to – the qualification, ‘of those who have no particular qualification’ (2009, p.10) – is all too often erased within institutionalised human rights interventions. This is a failing of existing critiques of human rights too, which also tend to take the dominant narrative and system as a given. They seem to replicate the problem Rancière identifies with Derrida’s conception of justice: ‘In [Derrida’s] view there can only be either the normal, consensual application of the rule operating as a machine or the law of unconditional justice’ (2009, p.13). As I sought to argue in the previous chapter, all too often the content and scope of human rights (law) is assumed to exist unchallenged: either to be embraced and worked with or to be critiqued and rejected. This seems to ignore the potential for an approach that is subversive through the articulation of an alternate meaning and/or use of the discourse itself. Although this action may not succeed in overthrowing the dominant order, and is a battle pitched from very different positions of power, it is nonetheless a political act that requires recognition and valorisation. For this reason I am keen to sustain the vital critiques of the existing system of human rights, while working to constantly draw attention to the political subjects operating within this order. In doing this, it is not so much a matter of shifting our focus from this system towards imagining another order (for example, from human

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190 Conclusion rights to some other, more emancipatory discourse). Rather, it is about shifting our understanding of who constitutes the political subject and what is characterised as political action. In this way, we can repoliticise human rights. The shift from politics to governance facilitated by human rights has undoubtedly undermined progressive political action. This is the ‘police’ aspect of politics Rancière (1999) outlines (described earlier). However, there remains another aspect – what Rancière describes as ‘politics’ – and while challenging the ‘police’ it does not exist separate from it: Politics does not stem from a place outside of the police. I agree on this point with some of my contradictors. There is no place outside of the police. But there are conflicting ways of doing things with the ‘places’ that it allocates: of relocating, reshaping or redoubling them. (2011, p.6) It is this aspect of human rights that can only be seen if we pay attention to the specific conditions within which human rights are invoked. While there is the ‘police’ aspect of human rights – the technocratic governance model discussed particularly in Chapter 4 but present in all the case studies – there is also the process by which those whose voices or bodies have been rendered outside of politics resist. In doing so, the very questions of not only who has human rights but also who is a political subject and what issues are the rightful domain of politics, are explicitly raised. This seems to confirm Ingram’s argument (drawing on Balibar) that, ‘[h]uman rights have . . . become a central site of the emancipatory logic of modern politics, an expression of how the principle of equal freedom cannot be contained with existing institutions or conceptions of right but rather invites its extension to new domains, settings, and scales’ (2008, p.411). If we accept that the potential of human rights will always exceed the reality of political and social institutions, then the radical possibilities are re-enlivened. This approach also allows us to see some of the actions and practices described in this book by different marginal actors as human rights practices. Meanwhile, this form of politics is not about particular institutions or even a particular sphere but rather about process (Rancière, 2004, p.305; Kesby, 2012, p.120). There is an essential struggle that must continuously be enacted: between the attempts at pacification by institutions and the potential for disruption by political subjects. By understanding human rights in this way, it also becomes clear that the issue at stake is not how to achieve some consensus on what constitutes the social good but rather how to maintain spaces for disagreement: a question introduced in the final part of Chapter 6 (describing the activities of the Third Eye collective) but upon which I will now elaborate.

Human rights as a politics of dissensus In a critique of Derrida’s concept of ‘democracy to come’, Rancière points out that such an approach becomes primarily an ethical rather than political exercise and in the process loses sight of the existent political subject and her/his

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Conclusion  191 p­ olitical capacity (2009, p.9). In the context of human rights, to juxtapose the current ­system – with all its inequalities and oppressions – with some conception that would more accurately embody principles of equality, justice and democracy still produces the same problem of assuming such values can exist without contestation and differing demands. It is once again an order without political subjects who engage in the process of producing and dismantling it. As an alternative, Rancière urges for a politics that, ‘refuses to ground [itself] on an ethical idea of the common’ and is instead, ‘a specific practice of antagonism, capable of soothing the violence of ethical conflict’ (2011, p.4). When related to human rights, what this means is a rejection of any common ethical foundation on which human rights is built. Rather, human rights politics comes into being in the very process of debate and disagreement about the underlying value of the right. Florian Hoffmann has argued: ‘Human rights discourse cannot manifest itself other than through the mutually incommensurable human rights consciousness of those actors engaged in human rights talk, regardless of the institutional context within which they are situated’ (2006, p.230). The ‘institutional context’ within which human rights become intelligible remains currently a legal one, with the role of the law being to institute, legitimate and authorise particular notions of rights. And Hoffmann may be correct when he adds that, ‘ultimately the decision rests with those empowered to decide right or wrong, i.e. legality or illegality, within a particular language game. There can be no firmer foundation for such an inherently foundationless decision’ (2006, p.231). However, as discussed in the previous chapter, the law’s authority can also be appropriated and subverted within its reiteration in everyday life. So too, while human rights education aims to instill ‘correct’ understandings and interpretations of human rights, the ways they are invoked by individuals in different situations remain arbitrary, contingent and open to interpretation. Hoffmann also acknowledges the pressure placed on the institutionally prescribed formulation of human rights (and the underlying assumptions contained therein) when ‘wrong’ claims are made (he gives the example of a favela dweller’s claim to the Brazilian Human Rights Commission to have a right to his underage lover). This pressure, however slight, forces some reflection and implies, ‘no particular interlinkage of human rights discourse and human rights consciousness at any one point in time is ever safe from subsequent modification’ (Hoffmann, 2006, p.232). Herein lies the radical potential of human rights. Focusing on the site of disagreement opened up by particular assertions of rights provides a means for our shifting away from the dichotomised world of those who know, have, teach and protect rights and those who are forever ignorant and in need of education and saving. As Ingram explains: What democraticizes politics is a durable transfer of power from those who have too much of it to those who have too little. The only reliable agent of such a transfer is the claimants themselves, which Arendt helps us to see is a matter not of advocacy but of action. (2008, p.413)

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192 Conclusion As the case studies demonstrate, the idea that human rights can be ‘delivered’ is not only difficult in practice, it actually produces the opposite effect of potentially disempowering the very recipients of these rights. Rather, it is the process of demanding and claiming rights that makes human rights a tool of empowerment and potentially for justice. This can only be done by those who have been excluded, not by others on their behalf. It is in this sense that we need to shift our conception of human rights towards being a type of ‘politics’ (as opposed to ‘police’) as described by Rancière: There is politics when this presupposition [of the appropriateness of those who rule] is broken by the affirmation that the power belongs to those who have no qualification to rule – which amounts to saying that there is no ground whatever for the exercise of power. There is politics when the boundary separating those who are born for politics from those who are born for the ‘bare’ life of economic and social necessity is put into question. (2011, p.3) In other words, we must rearticulate human rights as a politics that challenges exclusion through acting as if one were equal: a process made possible through the assertion of the status of being human.1 Linking back to Partha Chatterjee’s argument regarding ‘political society’ (set out in Chapter 6), for those of us attempting to understand the social and political effects of human rights in particular locations, this requires us to pay much greater attention to the articulations of human rights that may be emerging far from the traditional settings of institutional power and authority. Rather than our seeking one ‘true’ representative to speak of ‘authentic’ ­suffering – as in the case of Zainab Bangura in Sierra Leone – there is a need to destabilise everyone’s certainty that they know human rights, as I have demonstrated in my discussion in the previous chapter of Third Eye’s activities in Sri Lanka. This assists with what Hoffmann calls the ‘de-exoticisation of the “other”’: ‘granting it the same degree of irreducible complexity as is characteristic of the I/we’ (2006, p.241). Instead, we need to recognise that any number of rights claims can be made at any time, by anyone (Ingram, 2008, p.411), and that it is precisely this reality that makes human rights a powerful tool for democratising and bringing social justice. The advantage to adopting this conception of human rights as Rancièrian politics is that it allows us to move away from the problematic question of whether we can (or even want to) identify a shared common understanding of the basic foundation of human rights. Not only does this mean we are no longer wedded to identifying the ontological foundation of human rights, it also allows us to much more pragmatically tackle the fact that human rights is, ‘a plural, polycentric and ultimately indeterminate discourse amenable to use by everyone (nearly) everywhere’ (Hoffmann, 2006, p.225). As various earlier chapters of this book have shown, the ambiguous and fluid nature of rights discourses that allows them to be invoked by very different interests to mean very different things has often been seen as problematic. And it is, so long as there is an assumption that we must

Conclusion  193 first agree to a foundation/definition before that right can be upheld. However, Rancière gives us another alternative. Rather, it is precisely in the process of a claim being made as a right that the political potential of human rights opens up. This is because for Rancière it is on dissensus rather than consensus that true politics is based.

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The dangers and potential of incommensurability Naming the sites of disagreement and contested meanings within human rights inevitably opens up spaces for conservative or even reactionary versions of rights to emerge. This requires us to think further about how, while maintaining a commitment to a dialogical understanding of rights and the importance of allowing diversity, the progressive potential is retained. It is not an easy task. However, the attempts to shut down this type of debate mean we will only ever produce the thinnest veneer of universal commitment to human rights. It will always rest upon the fact that everyone can say they agree in principle while continuing in whatever way they wish in practice. These practices in turn, as I have demonstrated in the case studies, all too often not only do little to produce positive outcomes in terms of delivering on human rights’ promises to justice and empowerment, they in fact can operate to make them even more remote. At the same time, engaging with the ambiguous realm of political society is both dangerous and necessary for anyone genuinely committed to an emancipatory political project, as Chatterjee explains: There is violence in the air. Not everything that happens here [in the realm of political society] is desirable or worthy of approval. But then, how can we be sure that what we desire or approve is what is truly good? Who can decide that except those who go through the dangerously creative process of politics itself? (Chatterjee, 2010, p.201) If this is true for the ‘good’ by which we choose to govern our lives and societies, it is perhaps even more pressing when it relates to the ‘good’ that we assume and seek to implement into the lives of others (as so much of human rights activism involves). There is a need to expand the scope of human rights to not only espousing principles of equality, democracy and inclusion but also to enacting them in the very practice of human rights. As the case study on Sri Lanka has sought to show, this requires a focus less on achieving particular outcomes and more on the process by which different actors are able to contribute their own meanings and challenge each other’s views.2 This renders highly visible the significance of power and the necessity of human rights advocates to more consciously and reflexively create processes that allow for genuine power sharing. It requires the suspension of ‘expertise’ and often the foundational logics of ‘proper’ civil society engagement. In return, the human rights advocate is left confused, troubled and less sure, but this lack of certainty also creates the first truly radical possibilities for shifts in the status quo.

194 Conclusion

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Conclusion: the emancipatory possibilities of human rights In questioning the potential of human rights to take up the project of emancipatory politics, Boaventura de Sousa Santos observes that this will only be possible if the politics of human rights is, ‘radically different from the hegemonic liberal one is adopted’, and only if human rights politics are, ‘conceived as part of a broader constellation of struggles and discourses of resistance and emancipation rather than as the sole politics of resistance against oppression’ (2007, p.3). In this book we have seen the limitations of existing rights regimes. All too often they contribute to enhancing and legitimising hierarchies through the establishment of institutions and governance models that disempower the very people supposed to be their reason for being. At the same time, the case studies have also shed light on other and often unseen facets of human rights as socio-political practices. Ultimately the jury remains out on whether the project of human rights can be sufficiently recuperated and/or reimagined to deliver on its emancipatory potential. However, it is also clear that, in the absence of an alternate politics of resistance, complete rejection of the human rights framework is not an option (I also do not see the two as mutually exclusive). This recognition perhaps best explains why so many actors in so many locations – including those who are otherwise extremely marginalised – continue to engage with human rights. As the case studies have sought to show, this engagement is not necessarily naïve. It is often highly strategic, sometimes subversive and always contingent. For this reason, I urge for a politics of human rights that is simultaneously unrelentingly critical and committed to recognising and valorising the various ways in which the discourse is utilised beyond its hegemonic, institutionalised form. The mere recognition of the varied socio-political practices of human rights may in itself provide an important tool in the resistance of global inequality and domination, breaking down little by little the divide between those capable of saving and those who can only ever be saved.

Notes 1 Andrew Schaap explains this point well when he contrasts Rancière’s vision of the human with that adopted by Hannah Arendt: ‘whereas Arendt views “the human” in human rights ontologically as a life deprived of politics, Rancière views “the human” polemically as the dismissal of any difference between those who are qualified to participate in politics and those who are not’ (Schaap, 2009, p.3). 2 Baxi makes a similar argument when he asserts that the new paradigm of globalisation with which the human rights movement must come to terms requires a shift towards being ‘more process and less result-oriented’ (2008, p.319, emphasis in original).

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Index

Abdela, Lesley 68, 85 Abu-Lughod, Lila 3 accountability: international administration in Kosovo 60, 61, 76; and NGOs 43 activism: feminist 21, 116; human rights 24, 26, 27, 171; lesbian/gay/bisexual/ transgender and intersex (LGBTI) 131; of local actors 180; Sri Lanka 131, 136–7, 157–8; Sri Lanka - Narmada Dam 180, 184; Sri Lanka - Third Eye collective 140, 149–57; Western feminist 21; Women in Kosovo 85–8; women’s rights 157 advocacy, human rights 11 AFRC, Sierra Leone 94, 111 Africa, and justice 21 African Charter on Human and Peoples’ Rights 18 Afshari, Reza 25, 26, 104 Agamben, Giorgio 63 agency: and culture 116; of non-Western women 172; recognising and valorising of 179; of victims 101–3 Ahmeti, Sevdije 69 Ahtisaari, Martti 87–8 Amnesty International (AI) 11, 31, 47, 57, 75–9, 93 Anghie, Antony 34 Annan, Kofi 44, 75 anti-universalist position 19 Arbour, Louise 35 Are Women Human? 19 Asad, Talal 20 Asian Values argument 18 authenticity, and culture 172–4 authoritarian order, Kosovo 60–3 Azem Berisha’s One and Only Flight to the Castle 56, 81–5

Baars, Grietje 44 Bangkok Declaration 18 Bangura, Zainab 94, 103–4, 105–10, 123, 173 Barclay, Scott 182 Bassiouni, Cherif 31 Baxi, Upendra 43–4, 80, 137 being human 19–20 belonging, disrupting existing forms of 80 Berbati, Vlora 65 Bhuta, Nehal 60 Blair, Tony 64 Blumi, Isa 71, 82–3 Bodu Bala Sena 135 bombing campaign, NATO in Kosovo 55, 57, 64, 82 Brems, Eva 172–3 Brown, Wendy 19, 36, 44, 46, 49 Brysk, Alison 51 Buchanan, Ruth 43 bureaucratisation, of state building 59 ‘bush wives’, Sierra Leone 94, 95–103, 105, 107–9, 112–13, 179 see also forced marriage Buss et al. 6 capitalism 12, 41–2, 44 Chandler, David 37–8, 62, 71, 88 Charlesworth, Hilary 36 Chatterjee, Partha 13, 140, 141, 146, 147–8, 153, 154, 174, 186, 192, 193 Cheah, Pheng 24, 45–6 civilisational superiority, imperialist 60 civilising missions, colonial 22, 28n.3 civil society: building of in Kosovo 67–8; exclusive/exclusionary/disempowering nature of 174; global 46–8; problematisation of 43; Sri Lanka 144–5 collectivist/individualist identities 114

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214 Index colonial discourses, reproduction of 173 colonial feminists 173 colonial governmentality 169, 175n.1 colonialism: contemporary 60–1, 62; and culture 170; and human rights 17, 20, 22–4; and international criminal trials 103; and international law 34; and international legal institutions 108–9; legacies of 95, 177; and non-Western women 115; postmodern 34; Sri Lanka 146–7; and Western feminists 124 Comaroff, Jean and John 34, 37 Committee for Understanding, Tolerance and Co-existence (CUTC) 78 conflict: culturalisation of 27; economic/ social roots and consequences of 35 consent, and forced marriage 109–12 conservatism: and counter-narratives 154–5; and women’s rights 120 Convention on the Privileges and Immunities of the United Nations 1946 64 Coomaraswamy, Radhika 129 Corrin, Chris 68 cosmopolitanism: alternate forms of 168–9; and globalisation 157; subaltern cosmopolitanism 155–7, 168–9, 180 cosmopolitan subaltern legality 178–81, 188 Council for Defence of Human Rights and Freedoms (CDHRF) 78 counter-narratives, and conservatism 154–5 Cowan, J.K. 6 Crane, David 21–2, 23 crimes against humanity 30, 70 criminal justice: institutions 91; transitional and international 31, 35 criminal law component, of human rights 30 criminal law, international 7, 36 criminal trials, international 32, 93, 97–105 crisis, and suspension of human rights 63 crisis focus, international law 36, 134–5 cross-examination, experience of 97–9 cultural capital, appreciation of human rights as 119 cultural difference: Eastern/Southern 24; and human rights 116, 152, 170 cultural imperialism 23 culturalisation of conflict 27 cultural relativism, and forced marriage 111

cultural relativism/universalism debate 17–27 cultural rights 35, 47 cultural sensitivity, Kosovo 68 cultural turn, in global politics 12, 17, 165 culture: and agency 116; and authenticity 172–4; and colonialism 170; death by 169–71; of human rights 4; importance of in Sri Lanka 151; of international institutions 124; legalization of 37; oral cultures 97; and patriarchy 116; and power 167, 169; productive capacity of 174–5; repoliticising 152–3; (re) politicising/(re)problematising 171–2; and representation 172–4; and rights 7, 23–5, 47, 153–5, 166, 171, 172, 175; of Rule of Law 9, 30; who defines it? 172–4; and women’s rights 156, 170 Dayton Agreement 57 Del Ponte, Carla 59 Dembour, M.B. 5, 6, 27 de Mel, Neloufer 130 democracy: democracy to come 190; and elites 38; and human rights 192; and the international community 88–9; and Kosovo 79; neo-liberal 42 democratisation, and nation building 59 depoliticisation: of human rights 46; Kosovo 177; strategies 42 Derrida, Jacques 189, 190 development, and human rights 45 development assistance 37 development/rights projects, evaluation of 45 discourses: human rights 4, 5, 21; social justice 36 disempowerment, and legal positivism 32–3 dissent: rituals as 151; spaces for 157–9 diversity, Third World 173 ‘Dividends of International Criminal Justice’ 59 Doherty J. 111–12 domination: and human rights actors 143; and human rights law 12 Donnelly, Jack 18–19, 20, 22, 26, 44, 58, 169 donor-driven agendas 121 Donoughmore Commission 147 Douzinas, Costas 22, 46, 50 Eaton, Shana 93 Eckert et al. 39

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Index  215 economic aspects, human rights interventions 44 economic development, and human rights 37 economic interests, of the U.S. 59 economic processes, of globalisation 45–6 economic rights 35, 45, 47, 78 economics, neo-liberal 12, 42 economic/social roots and consequences, of conflict 35 educational programmes: dealing with disagreement 141–2; human rights 29, 45, 118, 119–20, 137–42, 191 effectiveness: of development/rights projects 45; of human rights 144 Eide, Kai 75 Elaziz, Sherif Abd 64–5 elites: and democracy 38; expert 45; and the international framework 133–4; Kosovo 67, 85; legal in Sierra Leone 118–19; political 39; self-interested 18; Sri Lanka 136, 147 Ellis, Stephen 47 emancipatory potential, of rights 3, 194 Empire: as assertion of globality 50; and human rights 22–3 empirical studies, of human rights 2–3 empowerment: and ‘bush wives’ 112–13; and education 141; and human rights 175, 192, 193; and the legal system 181; of women in Sierra Leone 122 engagement: with human rights 194; with the law 183–4 Enlightenment values 22, 34, 170 ethical turn: humanitarian interventionism 45–6; international politics and policy making 71 ethics-based training 141 ethnic conflict, Sri Lanka 134–7 ethnic hatreds, Kosovo 66, 73, 81, 88 ethnographic turn, human rights scholarship 25–6, 27 ethnography, multi-site 7–8 European gender norms 21 European imperialism 20 European Union law and justice mission (EULEX), Kosovo 9, 57, 67, 71 evaluation: effectiveness of human rights 144; field experiment models of 45 Evans, Tony 36, 43 Ewick, P. 183 exception, state of 63 exclusion, and the law 33, 97, 174

expert knowledge: and human rights 38; and Rule of Law 80 experts: choice of 103–7; human rights 44–5, 49; and human rights education 120; international 47; power of 12, 43, 124, 177 exploitation, and human rights law 12 failed states, intervention in 74–5 family, Western/non-Western views of 115 Fassin, Didier 106, 143 feminism: colonial 173; Sierra Leone 120 feminist activism 21, 116 feminists: Sri Lanka 154–5; Western and colonialism 124 Ferme, Mariane 107, 122, 173, 174 film programme, Sri Lanka 155 forced marriage 93, 94–103, 107–12, 113, 115, 116, 122, 124, 171 see also ‘bush wives’ foreign policy, human rights as 74 fundamental rights 19 Gallagher, Mary 181, 184 Geertz, Clifford 32, 123, 168–9 gender: agenda in Kosovo 68–70; and human rights 19–20 gender-based violence, Sierra Leone 93 gender crimes: within international criminal law 7; and Special Court for Sierra Leone (SCSL) 93–5 gender mainstreaming 7 gender norms, European 21 genocide, Rwanda 30 global, and the local 26–7, 105, 145–6 global capitalism 12 global civil society 46–8 globalisation: and cosmopolitanism 157; counter-hegemonic 188; economic processes of 45–6; and legality from below 178 Global South, law and lawlessness within 34 Golder, Ben 2, 59 Goodale, Mark 167 governance: global 22; humanitarian 11; and human rights 37; and human rights training 139–40; and law 37, 44; neoliberal/neo-colonial 176; and politics 44–5; shift to 36–9 governmentality: human rights 58; modern (colonial) 169, 175n.1 Gramsci, Antonio 154 grassroots mobilisation 10

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216 Index Halley, Janet 36 Handrahan, Lori 110 Hannah Arendt 156 Hannerz, U. 8 Hardin, Kris 112 Hardt, M. 50 Hartmann, Michael 69 Hastrup, Kirsten 37 Hilhorst, D. 4 Hirschl, Ran 36 Hirsi Ali, Ayaan 105, 173 History is Herstory Too 56, 85–8 Hodgson, Dorothy L. 115 Hoffmann, Florian 27, 123, 171, 191 humanitarian imperialism, Kosovo 60–3 humanitarian interventionism 45–6, 55, 64, 70–1 humanitarianism: and human rights 11, 48–9; international military 63; language of 106; violent interventionism in the name of 55 human-ness 19–20 human rights: creation story of 21–2; and empire 22–3; as foreign policy 74; global/local 50; radical potential of 41–51, 188, 191; repoliticising 190; rewriting the history of 167–8; sociopolitical practices of 194; as a Western notion 23 Human Rights Commission of Sri Lanka 132 human rights framework: and criminal justice institutions 92; perceptions of usefulness 130; pros and cons of engaging the 133–4 human rights industry 120–1 human rights law see also law(s): contributions made by 132–3; and regulation 20 human rights movement 38 human rights practices 11 Human Rights Quarterly 25 human rights scholarship, ethnographic turn 25–6, 27 Human Rights Watch (HRW) 11, 31, 47, 72–5 Husanović, Jasmina 77, 80–8, 152 identity(ies): collectivist/individualist 114; of the ‘international’ 65 Ignatieff, Michael 60 imperialism: cultural 23; European 20; humanitarian in Kosovo 60–3; and human rights 22–3; and the international

community 65–6; and international law 34; and the law/postcolonialism 33–5; militaristic 55 incommensurability, dangers and potential of 193 indigenous minorities, Sri Lanka 150 see also minorities indigenous populations, and the law 97 individualism/communitarianism, and rights 174 inequality: and political subjectivity 186; social in Sri Lanka 144 Ingram, J.D. 190, 191 institutions: criminal justice 91; international human rights 5 international action, human rights justifying 20 international actors, lack of accountability of 60, 61, 76 international, and the local see global, and the local International Committee of the Red Cross 48 international community: exclusion of women 87; and human rights and democracy 88–9; and imperialism 65–6; in Kosovo 64–6; who is the? 64–6 International Covenant on Civil and Political Rights (ICCPR) 33 International Covenant on Economic, Social and Cultural Rights (ICESCR) 33 International Criminal Court 7, 30–1 international criminal justice (ICJ) 11, 31 international criminal law 7, 36 international criminal trials 32, 93, 97–105 international criminal tribunals 93 international experts 47 international human rights, and Sri Lanka 129–31 international human rights framework, pros and cons of engaging the 133–4 see also human rights framework international human rights law 3 international human rights organisations 72–80 international institutions, culture of 124 International Judges and Prosecutors Programme, Kosovo 61 international law: and colonialism/ imperialism 34; crisis focus of 134–5; resistance theory of 167, 176–8; subaltern voices in 95–103

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Index  217 international legal institutions: and colonialism 108–9; and patriarchy 108, 112; value of 123 international military humanitarianism 63 international politics, ethical turn in 71 see also politics intervention, in failed states 74–5 interventionism, in the name of human rights 45–6, 55, 64, 70–1 Iraqi Special Tribunal 34 Jain, Neha 111 Janasansadaya 131, 138 Janatha Vimukthi Peramuna (JVP) 135 Janjić, Sana 67 Jansen, B.J. 4 judicial system, Kosovo 59, 61–2 juridification of rights 12 justice: and Africa 21; and human rights 192, 193; and law 12; post-conflict in Sierra Leone 9; social see social justice; white man’s 21, 22 Kalungu-Banda, Agnes 69 Kannabiran, Kalpana 181 Kapetanović, Radmila 87 Kapur, Ratna 20, 32–3, 116 Keck, M. 172 Kelly, T. 5, 27 Kennedy, David 37, 39 Kesby, Alison 39, 179 Kessel, Ineke van 47 KFOR 62 knowing, disrupting existing forms of 80 knowledge transfer, human rights education 118 Kogacioğlu, Dicle 169–70 Kois, Lisa 130 Koskenniemi, Martti 31 Kosovar Gender Studies Centre (KGSC) 56, 68, 69, 86, 87 Kosova Women’s Network 78 Kosovo: activism of women in 85–8; background 56–7; building local civil society 67–8; constructing the local 66; creating human rights/good governance/ the rule of law 58–60; crimes against humanity 70; and democracy 79; depoliticisation 177; economic aspects of human rights interventions 44; elites 67, 85; engaging local power-brokers 67; ethnic hatreds 66, 73, 81, 88; European Union law and justice mission (EULEX) 9, 57, 67, 71; gender agenda

68–70; humanitarian imperialism 60–3; human rights governmentality 58; international administration v. barbaric locals 70–2, 88; international community in 64–6; international human rights organisations 72–80; legitimate violence in 60–3; local engagement 70; minorities 77, 78–9, 80–1; and NATO 55, 57, 62, 64, 82, 88; non-governmental organisations (NGOs) 67, 87; patriarchy 68, 69, 86; politics of everyday life 80–8; Provisional Institutions of SelfGovernment (PISG) 75, 76; as research site 8–9, 10; resistance in 56–7, 84; violence against women 69; violence in March 2004 72–3; war crimes 70, 76, 81; women’s rights 68–70 Kosovo Judicial and Prosecutorial Council 60 Kosovo Police Service (KPS) 75 Kosovo Women’s Initiative (KWI) 69 Kouchner, Bernard 48, 60 Krasniqi, Vjollca 62, 69 language: of humanitarianism 106; of human rights 4, 50–1, 131–3, 134, 174, 182, 187–8, 189; of resistance 48; of rights 174 law(s): contributions made by human rights law 132–3; crisis focus of international law 36, 134–5; emancipatory potential of 179; engagement with 183–4; everyday life of the 181–3; and exclusion 33, 97; exclusive/exclusionary/disempowering nature of 174; and feminist activism 116; gender crimes within international criminal law 7; and governance 37, 44; human rights 27; and human rights 29–39, 176; and imperialism/ postcolonialism 33–5; and indigenous populations 97; international human rights law 3; and justice 12; limits of 96–7; and marginalisation 97; and neo-liberal/neo-colonial governance 176; and oral cultures 97; parallel use of the 180; and politics 30–2, 180; and regulation 20; resistance theory of international law 167, 176–8; and rights 38; silencing effect of 32–3; and social movements 181; strategic engagement with 178–81; as tool for social change 176–84; violence underpinning 12 LDK party, Kosovo 56, 85

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218 Index legal analysis, limits of 35–6 legal consciousness, of Chinese citizens 181 legal focus, of human rights 138–9 legal globalisation 178 legality: cosmopolitan subaltern 178–81, 188; politics of 184 legal positivism, and disempowerment 32–3 legal system: and empowerment 181; Sri Lanka 143 Lemon Tree 155 lesbian, gay, bisexual, transgender and intersex (LGBTI) activists, Sri Lanka 131 liberal democracy, Western 20, 38 liberalism, Western and human rights 20, 21 Lineages of Political Society: Studies in Postcolonial Democracy 186 local: and the global 26–7, 105, 145–6, 177; unpacking the 142–7 local actors, activism of 180 local engagement, Kosovo 70 local/international binary see local, and the global local practices and discourses, and international transitional justice actors 173–4 Lomé Agreement 1999 92 LTTE, Sri Lanka 129, 134, 151 Macdonald, Alice 113 MacKinnon, Catharine 19 Mama, Amina 115 marginalisation, and the law 97 market friendly human rights 43–4 markets, power of 19, 20 Marks, Susan 35, 39, 72 Marshall, Anna-Maria 182 Mattler, Suzanne 104, 111, 115 Mbembe, Achille 34 McCann, Michael 181, 182 McCurdy, Sheryl 115 McFalls, Laurence 145 Médecins Sans Frontières 48 mega-politics 36 Mégret, Frédéric 32 Menon, Nivedita 32, 33, 116, 148, 152 Merry, Sally Engle 105–6, 171 Mertus, Julie 68, 69, 100 Mibenge, C.S. 115, 116 militaristic imperialism 55 military humanitarianism, international 63

Milosevic government 56 minorities, Kosovo 77, 78–9, 80–1 Mitchell, Jon 6, 32 mobilisation, grassroots 10 modernity 19, 20, 22, 23 Mohanty, Chandra 23, 124 Moore, Sally Falk 182 moral superiority, assumption of Western 63 Moyn, Sam 49 multiculturalism, imposed models of 74 multi-site ethnography 7–8 Muppidi, H. 22 Mutua, Makau 20, 22 Nader, Laura 182 Nagy, Rosemary 34 Narayan, Uma 23, 124, 169 Narmada Dam activists 180, 184 Nash, Kate 3, 10, 38, 180 nationalism 56, 153 national kinship 80 nation building 58–9 NATO, and Kosovo 55, 57, 62, 64, 82, 88 Negri, A. 50 neo-colonialism, and Special Court for Sierra Leone (SCSL) 177 neo-liberal capitalism 41–2, 44 neo-liberal economics 12, 42 neo-liberal/neo-colonial governance, and the law 176 Nesiah, Vasuki 45, 71 networks: Kosovo Women’s Network 78; transnational 47 non-governmental organisations (NGOs): and accountability 43; international 47, 48, 69, 70, 72–80; Kosovo 67, 87; motives of workers within 120–1; rise of 42–3 Nuremburg tribunal 30 Ombudsperson’s Office, Kosovo 60 oral cultures, and the law 97 Orford, Anne 2, 34, 56, 64, 70 OSCE, Kosovo 68 Other: construction of 22; de-exoticisation of the 192; stereotypes of non-Western 24 Otto, Dianne 23 Pahuja, Sundhya 43, 50 paternalism 62, 145 patriarchy: and culture/traditional practices 116; defence of 23; and forced marriage

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Index  219 113; within the international arena 124; and international legal institutions 108, 112; Kosovo 68, 69, 86; and nonWestern women 115–16; universality of 170 peacekeeping missions: expansion of 49; Kosovo 55; torture by peacekeepers 63; UN Assistance Mission in Sierra Leone (UNAMSIL) 92 People’s Tribunal against Torture, Sri Lanka 132 Perera, Chitral 138 Perera-Rajasingham, Nimanthi 146, 158 Pillay, Navi 131 ‘police’ aspect, of human rights 190 policy, incorporating gender perspective 7 policy making, ethical turn in 71 political: reimagining the 188–90; rituals as 151–2 political elites 39 political life, of human rights 4 political potential, of human rights 188–90 political power, Sri Lanka 146 political society 147–9, 188, 192, 193 political subjecthood 185–6 political violence 71 politics: crisis of 36–9; cultural turn in 12, 17, 165; and culture 152–3; of dissensus - human rights as 190–3; emancipatory 194; ethical turn in 71; everyday 186; of everyday life Kosovo 80–8; global 178; and governance 44–5; humanitarian 143; and human rights 38, 46, 137, 174, 189–90, 191, 192, 194; and human rights rhetoric 55; judicialization of 36; and law 30–2, 180; of legality 184; mega-politics 36; and NGOs 43; of resistance 194 Poorani 158 postcolonialism, and the law/imperialism 33–5 post-conflict interventions, and women’s rights 7 post-conflict justice, Sierra Leone model 9 post-conflict/post-atrocity states, human rights in 6–7, 88 post-conflict reconstruction 58 see also nation building postmodern colonialism 34 power: and culture 167, 169; of experts 12, 43, 124, 177; and human rights 12, 175, 187, 193; and human rights education 140–1; of international human rights institutions 5; and legal institutions

97; of markets 19, 20; political in Sri Lanka 146; of states 19, 20; of strategic misunderstanding 121–3; and use of human rights language 131–3 practices, human rights 11 prejudice, of judges in Kosovo 61 projects, incorporating gender perspective 7 Provisional Institutions of SelfGovernment (PISG), Kosovo 75, 76 Pula, Luleta 85 punishment, acceptable/barbaric 20 Qosja, Rexhep 67 racialised stereotypes 64–5 racialism, and international criminal trials 103 radical potential, of human rights 41–51, 188, 191 Rajagopal, Balakrishnan 21, 34, 124, 167, 178, 180 Rambouillet Accord 1999 67 Rancière, Jacques 13, 38, 39, 79, 80, 106, 185, 186–7, 189, 190–1, 192, 193 RAND Corporation 58, 59 Razack, Sherene 63 regional human rights instruments/ mechanisms 18 regulation, and human rights law 20 relative universality 18–19, 169 repoliticisation, human rights 190 repoliticising culture 152–3, 171–2 representation, and culture 172–4 Reproductive Health Response in Conflict Consortium 94 research, human rights 2–3 resistance: and human rights 24, 50, 190, 194; Kosovo 56–7, 84; language of 48; NGO-ization of 42; politics of 194; rituals as 151–2; by witnesses at international trials 101–3, 179 resistance theory of international law 167, 176–8 Responsibility to Protect (R2P) 48–9 Revolutionary United Forces (RUF), Sierra Leone 92, 94, 114 rights: content of 24; cultural 35, 47; and culture 7, 23–5, 47, 153–5, 166, 171, 172, 175; economic 35, 45, 47, 78; emancipatory potential of 3, 194; fundamental rights 19; juridification of 12; language of 174; and the law 38; social 35, 45, 47, 78

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220 Index rights-based approaches, to development 45 Right to Intervene 48–9 Rikalo, Nevenka 87 Riles, Annelise 33, 35 rituals, as political 151–2 Rodríguez-Garavito, César 156, 168, 178 Roy, Arundhati 42 Rugova, Ibrahim 56, 57, 67 Rule of Law: culture of 9, 30; and expert knowledge 80; and human rights 37, 43; international order 22 Russell, Jane 147 Ruwanpura, Kanchana 145 Rwanda, genocide 30 Santos, Boaventura de Sousa 13, 37, 156, 168, 178, 180, 184, 194 Schaap, Andrew 189 Scharf, Michael 103, 104, 105, 111, 112, 115 Schmidt, Carl 63 Security Council Resolution 1244 (1999) 55, 57 Security Council Resolution 1325 ‘Women, Peace and Security’ (SCR 1325) 7, 138 Serbia and Montenegro (Kosovo/Kosova) – The March Violence: KFOR and UNMIK’s failure to protect the rights of the minority communities 75 ‘Sexual Movements and Gendered Boundaries: Legal Negotiations of the Global and the Local’ 6 sexual slavery, Sierra Leone 93, 94 sexual violence: legal regime prohibiting 21; Sierra Leone 93; Yugoslav wars 86 Sheikh, Zaheera 181 Shepler, Susan 121 Sierra Leone see also Special Court for Sierra Leone (SCSL): AFRC 94, 111; ‘bush wives’ 94, 95–103, 105, 107–9, 112–13, 179; forced marriage 93, 94–103, 107–12, 113, 115, 116, 122, 124, 171; legal elites 118–19; and the legal system 183; post-conflict justice 9; as research site 9, 10; Revolutionary United Forces (RUF) 92, 94, 114; sexual slavery 93, 94; Truth and Reconciliation Commission (TRC) 44, 92, 115–16; women’s movements 183; women’s rights 92, 93–5, 116–21 Sierra, M.T. 42

Sikkink, K. 172 Silbey, Susan 34, 183 Simič, Igor 61 Sivanandan, Ambalavaner 136, 146 Snyder, J. 35 Social and Legal Studies 6 social capital, appreciation of human rights as 119 social change, law as a tool for 176–84 social justice: hijacking of initiatives 121; and human rights 1, 36, 49, 192; and NGOs 43 social life, of human rights 4 social movements, and the law 181 social ordering, and Rule of Law 37 social rights 35, 45, 47, 78 sociology of human rights, developing the 2–4 socio-political practices, of human rights 194 Somalia, torture by peacekeepers 63 spaces, for dissent 157–9 Special Court for Sierra Leone (SCSL): background 91–3; and ‘bush wives’ 32, 33, 179; choice of expert witnesses 103–7; and culture 124; and forced marriage 109, 116, 122, 124; and gender crimes 93–5; and human rights debate 117; and international justice 21; legacy of 9, 117–19, 121–3; and neocolonialism 177; and patriarchy 116; and the women’s movement 183 Speed, Shannon 42, 51 Spencer, Jonathan 135, 152–3 Spivak, Gayatri 95 Sri Lanka: activism 131, 136–7, 157–8; background - post-conflict setting 129; civil society 144–5; colonialism 146–7; economic aspects of human rights interventions 44; elites 136, 147; engagement with the law 180; the ethnic conflict 134–7; human rights education in 137–42; importance of culture in 151; indigenous minorities 150; and international human rights 129–31; and the legal system 183–4; the local in 142–7; LTTE 129, 134, 151; Narmada Dam 180, 184; pros and cons of engaging the international framework 133–4; as research site 9–10; social inequality 144; and solidarity 143; spaces for dissent 157–9; subaltern cosmopolitanism 155–7; Suriya 149, 151, 157–8;

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Index  221 Third Eye collective 140, 149–57; and use of human rights language 131–3; women’s movements 130, 157; women’s rights 129–30 Stammers, Neil 35 state of exception 63 state responsibility, human rights law 36 states, power of 19, 20 stereotypes: of Third-World communities 23; of non-Western cultural others 24; racialised 64–5 structural, violence 73, 113–15 subaltern cosmopolitanism 155–7, 168–9, 180 subaltern voices, in international law 95–103 Suriya 149, 151, 157–8 Surroi, Veton 56, 67, 81, 85 symbolic valence, of human rights 50 technocratic governance model, of human rights 190 technocratisation, of democratic state building 59 Thaçi, Hashim 67 Thiranagama, Sharika 152 Third Eye collective 140, 149–57 Third World, and human rights 21 Third World Approaches to International Law (TWAIL) movement 34, 173, 175 Third-World communities, stereotypes of 23 Third World movements, and human rights 159 Third World Woman, voice of 105, 123, 124 Tokyo tribunal 30 torture by peacekeepers 63 trade-related human rights 43–4 traditional practices, and patriarchy 116 training and awareness raising programmes, human rights 34–5, 104–5, 119–20, 132 training, ethics-based 141 training in human rights, and governance 139–40 Trajković, Momčilo 67 transitional justice 31, 35 transnationalization 26 transnational networks 47 trauma, of victims 99–100 Truth and Reconciliation Commission (TRC), Sierra Leone 44, 92, 115–16

UÇK (KLA), Kosovo 57 United Nations: establishment of 30; humanitarian missions 6–7; and peacekeeping/institution building/civil administration 55, 58; peacekeeping missions 8; Responsibility to Protect (R2P) 48–9; Security Council Resolution 1244 (1999) 55, 57; Security Council Resolution 1325 ‘Women, Peace and Security’ (SCR 1325) 7, 138; and Sri Lanka 130–1 United Nations Assistance Mission in Sierra Leone (UNAMSIL) 92 United Nations Emergency Peace Service (UNEPS) 11, 51n.8 United Nations Interim Administration Mission in Kosovo (UNMIK) 9, 57, 59, 60, 61, 67, 68, 70, 75–6, 78, 79, 88 United Nations Special Rapporteur on Violence against Women 129 United States, legitimacy of nation building operations 58–9 Universal Declaration of Human Rights (UDHR) 30, 33 universal human rights 18, 19 universalism: chastened 25–6; and human rights 33, 157, 167, 169, 175; and human rights law 29; relative universality 18–19, 169; Western liberal 20 universalism/cultural relativism debate 12, 17–27, 119, 172 Vallamai project 158–9 Vann, Beth 94 Vasuki, Kamala 151 victim participation, Commission on the Gujarat Riots 180–1 victims: agency of 101–3; desire to testify 100; experiences in international criminal trials 97–105; and forced marriage 116; the ideal African victim 112–13; within the international trial process 97–9; non-white women as 33; passive victim status of women 115; trauma of 99–100 Vienna World Conference on Human Rights 7, 18 Villmoare, Edwin 61 Vinjamuri, L. 35 violence: gender based in Sierra Leone 93; imperialist justifications for 63; Kosovo March 2004 72–3; legitimate in Kosovo 60–3; political 71; sexual 21, 86, 93; Sri Lanka 135; structural 73, 113–15;

222 Index

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underpinning law 12; against women in Kosovo 69 violent interventionism, in the name of humanitarianism 55 Visweswaran, Kamala 180, 181 Wahl, Rachel 24 war crimes, Kosovo 70, 76, 81 Western cultural imperialism 23 Western feminists, and colonialism 124 Western human rights 172 Western liberal democracy 20, 38 Western liberalism 20, 21 Western liberal universalism 20 Western superiority 23, 63, 84 Wilson, Richard 4, 6, 32 women: activism in Kosovo 85–8; empowerment of/Sierra Leone 122; and human rights 19; international community’s exclusion of 87; nonWestern subaltern 23; non-white as victims 33; passive victim status 115;

violence against in Kosovo 69; voice of ‘Third World Woman’ 105, 123, 124 Women’s Forum, Sierra Leone 122 women’s movements: Sierra Leone 183; Sri Lanka 130, 157 see also Third Eye collective women’s rights: activism 157; and culture 156, 170; as human rights 7, 119–20, 129; as an industry 120; Kosovo 68–70; movement 47; and post-conflict interventions 7; Sierra Leone 92, 93–5, 116–21; Sri Lanka 129–30; and universalism/cultural relativism 23 Woodiwiss, Anthony 179 World Bank 46 World Conference on Human Rights 1993 45 World War II, and human rights 30 Yugoslavia 30, 55, 86 Zarkov, D. 62, 66