From “Heroes” to Criminal Perpetrators

01/02/2019

 

Collective Memory, Penal Law and Human Rights

Death by government extinguished some 200 million human lives in the course of the 20th century alone, according to political scientist R.J. Rummel (1994). This number excludes the victims of “legitimate” warfare. Government killings exceed killings in civil society by a factor of ten (Savelsberg 2010). Despite these horrifying numbers, Harvard law professor Martha Minow correctly declares that the 20th century is not so distinct from predecessors in terms of the prevalence of atrocity. It does differ as it is the first century during which humankind systematically developed institutions that respond to and seek to prevent mass violence. Human rights courts, truth commissions, reparation programs and public apologies by heads of state are among the new instruments. They helped change the perception of those responsible for mass atrocities. Perceived as heroes throughout history, from Agamemnon via Charlemagne and Genghis Khan to Mao Zedong, their bloody successors enter the collective memory of contemporary societies as criminal perpetrators. Enforcement of criminal law in the realm of human rights, and its representational power, play an important role in this truly radical change.

The spread of human rights norms and institutions is well known. It includes the Universal Declaration of Human Rights, the Convention for the Punishment and Prevention of the Crime of Genocide and the London Charter on which the Nuremberg Tribunals were based. More recently, the ad-hoc courts of the 1990s (former Yugoslavia, Rwanda, and other situations) were followed by the Rome Statute of 1998, the foundation of the first permanent International Criminal Court (ICC), which came into existence in 2002. Debates regarding the legitimacy and effectiveness of such courts are intense. Many contributors are too fast to either resign or celebrate the victory of human rights. Yet, sophisticated studies do show that criminal justice responses may contribute to an improvement of human rights records (Kim and Sikkink 2010), and that ICC prosecutions have had a significant effect on reducing killings by governments and rebel groups (Jo and Simmons, 2015).

These improvements are not the result of the existence of the courts themselves, but rather of the collective memories generated by criminal prosecutions. The latter have a cultural effect: they delegitimize mass violence. Furthermore, once court processes have generated a collective memory that de-legitimates mass violence, then the use of mass violence eventually disappears as a branch from the decision tree of those who decide rationaly on how to respond to specific situations.

Such insights must have inspired US President Franklin D. Roosevelt when he agreed, toward the end of World War II, that trials were an appropriate response to Nazi crimes. He was convinced, according to a confidant “that the question of Hitler’s guilt—and the guilt of his gangsters—must not be left open to future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents” (in Landsman 2005). Similarly, Robert Jackson, the American chief prosecutor at the International Military Tribunal argued in his opening statement: “we must establish incredible events by credible evidence” (ibid.).

Roosevelt and Jackson thus wrote a collective memory forming function into criminal trials against perpetrators who offend human rights norms. Their sentiments are in line with a Durkheimian notion of trials as powerful rituals, capable of instilling in the public moral and legal norms and a distinction between good and evil. It is also in line with a new body of neo-Durkheimian scholarship, which conceives of criminal punishment as a “speech act in which society talks to itself about its moral identity” (Smith 2008). Relatedly, Jeffrey Alexander (2004) thinks of the Nuremberg Tribunal as the creator of images, symbols, totems and stories that have instilled in a world public the sense of Nazi crimes as cultural trauma.

Criminal law thus becomes an instrument in struggles over collective memory of mass atrocities. By collective memory, I mean notions of past events that are shared, mutually acknowledged and reinforced by a collectivity. Representational power of human rights courts is the chance to impress on society, even against resistance, an understanding and memory of mass violence as a form of criminal violence. Several studies conducted by sociologists and historians have documented such representational power.

In American Memories: Atrocities and the Law, King and I show how court-produced narratives of mass violence affect public representations more than potential competitors do. An example is the trial against U.S. soldiers for a massacre committed in the village of My Lai during the Vietnam War. Competing with a narrative produced by a military commission under General Peers (Peers Commission) (Goldstein et al. 1976), and with a powerful, Pulitzer prize-winning journalistic account by Seymour Hersh (1970), entitled My Lai 4, the trial narrative most successfully colored media reports and textbook depictions of subsequent decades. In a more recent book on representations of mass violence in the Darfur region of Sudan (Representing Mass Violence), I show that the human rights and ICC accounts of the violence affected more strongly thousands of media reports in eight countries than quite different narratives from the humanitarian aid and diplomacy fields.

A word of caution is needed though as trials always tell a narrow story about mass atrocities and human rights violations. Due to the specific institutional logic of criminal law, they focus on the behavior of a few individuals, disregarding the structural and cultural conditions for mass violence that sociologists focus on. Further, bound by legal classifications, they disregard bystanders and preachers of hatred, no matter their role in the unfolding of violence. Furthermore, focusing on a limited time span, they dehistoricize, and their evidentiary rules differ from those of the social sciences. Finally, criminal law’s binary logic of guilty versus not guilty does not leave room for shades of grey that social psychologists would recognize.

In short, criminal trials can be powerful producers of collective memories of grave violations of human rights. They thus delegitimize mass violence, while also providing a knowledge basis on which deterrence effects depend. Yet, given the representational constraints of trials, they should be complemented by other institutional mechanisms such as truth commissions. The latter will cast a wider net. Jointly with trials, they will feed into collective memories that delegitimize mass violence. Those responsible for mass atrocity, celebrated as heroes through much of human history, are then more likely to enter into collective memories as criminal perpetrators.

References

Alexander. 2004. “On the Social Construction of Moral Universals: The ‘Holocaust’ from War Crime to Trauma Drama.” Pp. 196-263 in Cultural Trauma and Collective Identity, edited by J.C. Alexander et al.  Berkeley: University of California Press.

Goldstein, Joseph, Burke Marshall, and Jack Schwartz. 1976. The My Lai Massacre and its Cover-up: Beyond the Reach of Law? The Peers Commission Report with a Supplement and an Introductory Essay on the Limits of Law. New York: Free Press.

Hersh, Seymour M. 1970. My Lai 4. New York: Random House.

Jo, Hyeran, and Beth A. Simmons. 2016. “Can the International Criminal Court Deter Atrocity?” International Organization 70(3):443-475.

Kim, Hunjoon, and Kathryn Sikkink. 2010. “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries.” International Studies Quarterly 54(4):939-963.

Landsman, Stephan. 2005. Crimes of the Holocaust: The Law Confronts Hard Cases. Pennsylvania Studies in Human Rights. Philadelphia: University of Pennsylvania Press.

Minow, Martha. 1998. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon Press.

Rummel, R. J. 1994. Death by Government. New Brunswick, N.J.: Transactions Publishers.

Savelsberg, Joachim J. 2010. Crime and Human Rights: Criminology of Genocide and Atrocities. London: Sage.

Savelsberg, Joachim J. 2011. Representing Mass Violence: Conflicting Responses to Human Rights Violations in Darfur. Oakland, CA: University of California Press.

Savelsberg, Joachim J., and Ryan D. King. 2011. American Memories: Atrocities and the Law. New York: Russell Sage Foundation.

Smith, Philip. 2008. Punishment and Culture. Chicago: University of Chicago Press.

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