Re-thinking ‘the commons’: examining dilemmas, exploring solutions

Dr. Leila Sinclair-Bright is a Career Development Fellow in Social Anthropology at the University of Edinburgh. In this article, she reflects on the notion of ‘the commons’ as recently debated in an interdisciplinary, open forum discussion event in Edinburgh.

 

Common Dilemmas

This open forum discussion was designed as a starting point for an interdisciplinary exchange of empirical and conceptual work exploring the theme of ‘the commons’ and collective ownership across different contexts. Excellent papers were presented by Dr. Tahl Kaminer (Edinburgh College of Art), Dr. Marisa Wilson (GeoSciences) and Dr. Kieran Oberman (Politics and International Relations) and followed by open discussion with the audience.

Dr. Kaminer’s presentation focused on the influence of the idea of ‘the commons’ in contemporary urban agriculture and regeneration movements. Kaminer opened by distinguishing the commons from the public space. Originating during the enlightenment, the notion of ‘public space’ has always been linked to civil society ideals. However, public spaces have long been as much about keeping particular elements of society out, as they have been about providing an arena for open movement and debate. In contrast, within contemporary urban agriculture and regeneration, ‘the commons’ has become a political movement that seeks to undermine and critique the control of urban space, as well as current economic and political conditions. Here then, the notion of ‘the commons’ is actually used to challenge the idea of a controlled public realm by various super-structures, from the state to corporations. As a movement, Kaminer suggests that ‘the commons’ provides an ideal but unachievable horizon that ‘rallies the troops’, but does not necessarily offer activists achievable, immediate objectives. Kaminer ended by pulling into question the efficacy of the commons movement, positing it more as a conceptual spring-board deployed by a variety of movements to gain traction and raise support for their campaigns, but often not leading to practical change.

Dr. Marisa Wilson’s paper examined local modes of governing food commons and how those interact with state and market models of the commons in Cuba. At what scale do we define food sovereignty? While sovereignty is usually defined at the national scale, how do localised models of food sovereignty fit into the national project? Since the late 19th century, food sovereignty has been promoted as a national ideal in Cuba, with individual profiteering denounced as against the national interest. From 1959, this became a top down institutionalised model of food ‘commoning’ that aimed to redistribute and provide basic food needs for Cuba’s population. With the collapse of the Soviet Union, the Cuban state was increasingly unable to adequately provide for its population’s food needs, and practices of local level food provisioning increased and/or became more visible. Local food industries were, however, still justified in terms of a local level fight for collective national food commons, and denunciations of private profit from food sales were equally prevalent at this scale. Simultaneously, powers in the agro-food industry were gradually devolved. More recently, the Cuban state has even begun, somewhat ambivalently, to support local level food networks, but maintains strict controls on their capital inputs. Local food providers thus rely on transnational remittances to supplement their capital input needs. Yet these local/transnational networks are still justified and framed into terms of contributing to the national food sovereignty cause. This fascinating case study revealed the multiple complexities at play around food commoning, and raised questions about the relationship between practices of ‘commoning’ and scale which also pertain to current discussions around food sovereignty in other contexts, such as Latin America and Scotland.

Dr. Kieran Oberman’s presentation, provocatively entitled: ‘Against the commons: an egalitarian argument for privatisation’, provided a schema of three different models of ownership: egalitarian collective ownership; common ownership; and equal ownership. In the egalitarian collective ownership model, a collective body owns the resource, say land, and everyone has an equal say on how it is used. In the common ownership model, everyone has use rights, but no one has individual ownership rights (so you could not sell the land, for example). In equal division, everyone has an equal share of the property, or the value of the property (for example basic income), and can choose what to do with their share. Collective and common ownership both curb individual freedoms. In the first, one can only act according to the agreements of the collective body; in the second, one only has use rights and individuals cannot enjoy the other rights that might come with ownership. Thus, Oberman suggests that equal ownership should be the starting place for those things which the majority believe should be commonly owned, such as the planet earth and its natural resources. Individuals can then choose to opt for a collective ownership model and pool their resources if they so choose. Oberman’s schema provided a useful starting point for assessing why and how different groups chose different models or combinations thereof, as well as highlighting a consideration of what rights are gained or lost in each case.

Re-thinking the Commons

The three presentations provided rich material for further discussion. We began by identifying the need to separate out what different kinds of rights inhere in particular claims of ownership (sale rights, use rights, etc…) rather than simply working with the oversimplified binary of individual ownership/privatisation/commodification: collective ownership/commons/non-commodified realm. Four themes for further enquiry also emerged: how the transition between different ownership models works; how governance affects the very framing of the ‘problem’ of the commons; what is a common/practices of commoning, and (how?) does transitioning between different ownership models actually change the ‘object’ in question. It is hoped that this event was the beginning of a set of interdisciplinary working relationships that may lead to further collaboration as a group or between individuals whose research interests intersect.

More about the author:

Dr. Leila Sinclair-Bright completed her doctorate entitled, ‘This Land: politics, authority and and morality after Zimbabwean land reform’ in 2017 (University of Edinburgh). Her research interests are in labour, property, conflict and politics. While her regional expertise lies in Southern Africa, she is in the early stages of developing her next research project on common property regimes in the UK.

 

Just Justice – how can we achieve the fair distribution of legal resources?

The Edinburgh Centre for Legal Theory organised an author-meets-critics workshop on the manuscript of the book Just Justice by Frederick Wilmot-Smith. This workshop was funded by the Global Justice Academy’s Innovative Initiative Fund.  Lucas Miotto, a PhD candidate in the Edinburgh Law School, introduces the key issues and questions raised by this soon-to-be-published book.

Resources must be fairly distributed. Hardly anyone would disagree with this statement. Besides, most people would agree that the fair distribution of resources is something valuable which we should care about. And people do care about it. Many of the heated debates about social security, social benefits, education, public health and immigration which have recently caught the attention of the public and the media are – or at least are connected to – debates about the fair distribution of resources. It is no exaggeration to say that debates about the fair distribution of resources are at the core of past and present public debate.

Just as we talk about the distribution of economic or educational resources, we can talk about the distribution of legal resources. The public needs lawyers and courts. Like any other resource, lawyers and courts are scarce and access to them doesn’t come for free. So, how about the fair distribution of legal resources? What sort of distribution would count as fair? Curiously, and unfortunately, questions like these are under-appreciated. Not only has the public been timid in addressing questions about the fair distributions of legal resources; an in-depth philosophical treatment of the topic has been entirely missing. Frederick Wilmot-Smith’s Just Justice attempts to correct this.

The book directly engages with many puzzles associated with the fair distribution of legal resources. It starts by questioning the very object of distribution. What should be fairly distributed? To say ‘access to lawyers and courts’ would be too simplistic an answer. The object of fair distribution, Wilmot-Smith argues, is broader than this. Of course, he doesn’t deny that it is important to fairly distribute access to legal resources such as lawyers and courts. But the questions about the fair distribution of these legal resources hang on a broader debate about the fair distribution of the benefits and burdens of the justice system. It is only after we have sound principles for the fair distribution of such benefits and burdens that we will be able to address the fair distribution of legal resources (e.g., access to lawyers and courts).

The core part of the book puts forward principles for the fair distribution of the benefits and burdens of the justice system. In a nutshell, the principles defended in the book support the establishment of a justice system in which benefits and burdens are equally distributed among citizens. Practical implications are myriad, and some of the institutional reforms required to meet the proposed principles radically clash with established views about the justice system. The book, however, doesn’t shy away from defending these radical implications and objecting to established views. In fact, some of these implications are defended at length. For, example, the book has an entire chapter dedicated to defending the view that the justice system should be financed by everyone – which is perhaps the most controversial implication of the principles defended throughout the book. Discussions about the privatisation of legal resources and alternative dispute resolution systems also receive an extensive treatment. The book is no doubt an extremely timely and important contribution to legal philosophy and to the public debate in general. It sharply allies care for philosophical rigour with readability and public relevance.

The Edinburgh Centre for Legal Theory had the pleasure of hosting an author-meets-critics workshop to discuss Frederick Wilmot-Smith’s Just Justice on May 24th, 2017. The event, jointly organised by Luís Duarte d’Almeida and Euan MacDonald, featured a total of eight commentators – ranging from philosophy to criminal law and political science – each of which focused on a different chapter of the book manuscript.

Participants were keen to engage in discussion and offered both critical remarks and constructive feedback. As a result, discussion was very lively, friendly and informal. We look forward to the publication of Just Justice, and we would like to express our gratitude to the Global Justice Academy, whose support made this event possible.

Turning Off the Light: Protecting Survivors of Torture (Peace and Conflict Series)

Publicising Human Rights violations and holding perpetrators of torture accountable has been guiding practice for much human rights work. As Prof. Tobias Kelly shows in this contribution to the GJA’s Peace & Conflict blog series: rather than shining light into dark places, many victims want the lights switched off. Kelly suggests that that the need for protecting victims may be more important than the need to hold perpetrators accountable.

By Tobias Kelly

Perpetrators need to be held to account and victims need redress. This has been the central principle of human rights work against torture for the past fifty years. However, collaborative work we have been carrying out in Kenya, Bangladesh and Nepal suggests that for many survivors- especially amongst the poorest and most vulnerable in society- the emphasis might be in the wrong place. What most survivors want, above all else, is to feel safe and secure, and accountability has only an indirect relationship with the desire for protection.  Continue reading

Keeping Guantánamo on the Map

Vivek Bhatt, a Student Ambassador with the Global Justice Academy (GJA), has written this blog following a panel event he attended at the Edinburgh Law School. The event, hosted by the GJA, explored the continuing relevance of legal and political issues arising from detention at Guantánamo Bay.

The United States acquired control of Guantánamo Bay in 1903, when it entered into an agreement with Cuba for the perpetual lease of the 45 square mile area.[1] Guantánamo Bay has since been operated as a naval base, and in the 1990s, it was ‘refashioned as a detention camp for those seeking asylum in the United States.’[2] From 1991 to 1996, more than 20,000 Cuban and 36,000 Haitian asylum seekers were interned in Guantánamo Bay.[3] And, in November 2001, merely days after the declaration of a ‘global war’ against terrorism, a US Military Order authorised the indefinite detention and trial of ‘enemy combatants’ at the camp. The US promptly began transferring individuals captured during its international counterterrorist operations to Guantanamo Bay. A total of 770 have been held there through the course of the war on terrorism. Only 8 men have been convicted, with more than 500 released during the Bush administration, 198 released during Obama’s presidency, and 9 killed in custody. 41 remain in detention, with 14 considered high value detainees and 26 designated as ‘forever prisoners,’ individuals whose knowledge of practices at Guantánamo Bay renders them too dangerous to be released.

The legal justifications provided for detention at Guantánamo Bay have been vague, at best. Those transferred to the camp are characterised as ‘enemy combatants’ under the laws of armed conflict, even though many have been captured outside areas of fighting.[4] The camp’s location in Cuba has, furthermore, allowed officials to assert that detainees are not entitled to the protections of the US legal system. According to Harold Koh, Guantánamo Bay is effectively a ‘rights-free zone’ constructed by the US. [5] Its detainees, writes Agamben, ‘[Are] legally unnameable and unclassifiable beings.’[6] After the release of the Senate Intelligence Committee’s report on CIA torture in 2014, it was finally confirmed that many of these detainees have been subjected to ongoing torture practices as part of their interrogation. The camp has, therefore, come to symbolise the legal and ethical dubiousness of the war on terror, with the ‘visceral image’ of the orange Guantánamo jumpsuit now engrained in public memory and popular culture.[7] Fifteen years on, however, International attention to the legal and political issues arising from detention at Guantánamo Bay is waning. Some, it seems, believe the worst is over, while others may simply have accepted that the goings on at the camp are part of an inevitable, ‘new’ reality of the war on terror.

This was the topic of ‘International Law and Guantánamo Detention Operations: Why it Matters,’ a panel event hosted by the Global Justice Academy and the Edinburgh Law School on 9 February 2017. The event aimed to examine the range of international law and human rights issues relating to detention operations in Guantánamo Bay, and was opened by Kasey McCall-Smith, lecturer in public international law at the Edinburgh Law School. Dr McCall-Smith provided an overview of the breaches of international law at Guantánamo Bay. She began by pointing out that the United States is not solely responsible for these breaches; the international community has facilitated the detention programme at Guantánamo Bay, and has failed to react to the grave violations of human rights that have occurred there. The violations of human rights at Guantánamo Bay begin with rendition flights, which transport terrorists to the camp for interrogation, and have been allowed to land at various airports throughout Europe. Various areas of international law are relevant to rendition, but particularly the prohibition of enforced disappearance. Once at Guantánamo Bay, detainees have been denied their right to visits from a consular official of their national State, protected under Article 36 of the Vienna Convention on Consular Relations.[8] As Dr McCall-Smith pointed out, various provisions of the International Covenant on Civil and Political Rights have also been violated in the course of detention and interrogation at Guantánamo Bay. These include the right to non-discrimination,[9] the right to liberty and security of person,[10] the right to be heard before a court,[11] and the right to be treated with respect for the inherent dignity of the person.[12]

Meanwhile, Jacques Hartmann, a senior lecturer in Law at the University of Dundee, spoke of his research into arbitrary detention in non-international armed conflicts. This topic is particularly relevant to Guantánamo Bay, given that most of those taken to the camp are captured as enemy combatants. To Dr Hartmann, the detention of suspected terrorists at Guantánamo Bay is symptomatic of a much larger problem: the lack of treaty provisions that explicitly address detention in non-international armed conflict. The lack of an express provision leads many to infer the authority to detain from the authority to use lethal force. Yet Dr Hartmann warned against such inferential reasoning, reiterating that any detention without legal justification is arbitrary, and is thus prohibited under both international human rights and humanitarian law.

As suggested above, the most widely discussed human rights violation at Guantánamo Bay is the continued use of torture. This was the focus of an address given by Dr Mitch Robinson, an international law specialist at the United States Department of Defense. He characterised Guantánamo Bay as a concentration camp; the only people detained there since November 2001 have been Sunni Muslim men. Dr Robinson spoke of one of his clients, a Saudi national who was accused of financing terrorism, and was in the CIAs’ torture programme for three and a half years. Though reports from early questioning suggested that he ‘does not appear to be a financing mastermind,’ the client was repeatedly deprived of sleep, sodomised and water-boarded, among other things. Robinson proposed a strategy for global human rights litigation relating to Guantánamo Bay. He refers to this strategy as ‘collateral advocacy’ for detainees’ human rights through domestic courts, regional human rights bodies, the UN’s human rights treaty bodies and high commissioner for human rights, international non-governmental organisations, civil society, and the application of legal or diplomatic pressure by other States.

Andrea Birdsall, lecturer in international relations at the University of Edinburgh, pointed out that as the international community has become aware of torture practices in Guantánamo Bay, the US government has moved along a ‘continuum of denials.’ This began with literal denial, a phase in which the Bush administration simply argued that the US Government does not commit acts of torture. This was, however, challenged by the release of the torture memos,[13] which made clear that torture was being used as a government policy. This led to ‘interpretive denial,’ in which it was argued that detainees were not subjected to torture, but to ‘enhanced’ or ‘increased pressure’ phases of interrogation that did not entail the ‘near-death’ experiences that would constitute violations of international or US domestic law. In the final stage, ‘implicatory denial,’ it was admitted that ‘mistakes had been made’ in the interrogation of suspected terrorists, but it was argued that the measures taken were justifiable in times of crisis. To Dr Birdsall, the US government’s treatment of terrorist suspects does not signify the demise of the anti-torture norm. Instead, the discourse surrounding Guantánamo Bay has legitimised the international law prohibition of torture, reinforcing a shared global understanding of the prohibition’s non-derogability.

The panel concluded that the programme of detention and interrogation at Guantánamo Bay warrants continued attention from scholars, lawyers, governments, and international civil society. There are three reasons for this conclusion. Firstly, violations of human rights are ongoing; Article 14 of the Torture Convention, for example, requires States parties to rehabilitate victims of torture, an obligation the US government has not fulfilled in relation to Guantánamo detainees.[14] Secondly, Guantánamo Bay is unlikely to be closed in the foreseeable future, and conditions may in fact worsen in coming years. And, finally, the prominence of human rights violations at the camp presents an opportunity for scholars and practitioners to reflect upon the state of the international rule of law, and to reify the value of the fundamental rights protected within the international legal order.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16(4) The European Journal of International Law 613, 616.

[2] Ibid.

[3] Ibid.

[4] Mary Ellen O’Connell, ‘The Choice of Law Against Terrorism’ (2010) 4 Journal of National Security Law & Policy 343, 353.

[5] Quoted in Joan Fitspatrick, ‘Spekaing Law to Power: The War Against Terrorism and Human Rights’ (2003) 14 European Journal of International Law 241, 242.

[6] Giorgio Agamben, State of Exception (Kevin Attell trans., University of Chicago Press, 2005) 3.

[7] This phrase was used by Mitch Robinson, a panelist at ‘International Law and Guantánamo Detention Operations: Why it Matters’, hosted by the Global Justice Academy and Edinburgh Law School on 9 February 2017.

[8] Vienna Convention on Consular Relations, signed 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) art 36.

[9] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2.

[10] Ibid art 9(1).

[11] Ibid art 9(4).

[12] Ibid art 10(1).

[13] See, for example, Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of International Law 365, 366.

[14] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 14.

Trafficking in the UK: Demands and Dilemmas for Justice

Mahlea Babjak is reading for a PhD in Religious Studies and is researching human trafficking in South Asia.  She is a Global Justice Academy Student Ambassador for 2016-17. Here, Mahlea reports on the recent Tumbling Lassie seminar on Trafficking in the UK.

The Faculty of Advocates, as well as other lawyers and justice advocates, gathered on the 28 of January 2017 to hear from key stakeholders fighting human trafficking in both the UK and abroad, due to the interlinking nature of trafficking networks.

The seminar opened with a short history of The Tumbling Lassie, followed by a compelling talk led by Andrew Bevan of International Justice Mission (IJM). When Andrew stated that the IJM’s mission to “rescue thousands, protect millions and prove that justice for the poor is possible” was an ambition being met (with IJM currently protecting an estimated 21 million), I was filled with hope and reminded that seemingly impossible justice goals are never beyond reach.

Andrew traced the story of one woman whom IJM worked with in India. The woman was trafficked for labour and enslaved at a brick kiln under debt bondage for forty years. Our hearts grew heavy as we felt the weight of one brick that Andrew passed around the seminar from the kiln. Andrew is passionate about seeing students, businesses and lawyers in Scotland becoming advocates in anti-human trafficking. As Andrew stated, you can “use what’s in your hands to respond” to the global justice issue of human trafficking.

We then heard from the Solicitor General for Scotland, Alison Di Rollo, who emphasised her (and the Lord Advocate’s) desire to “make the invisible visible” by improving our ability of detecting, challenging, and reporting cases of trafficking in the UK (see photo).

Alison’s talk drew widely on the general approach of the justice system in Scotland and about their commitment to safeguarding human trafficking victims rights, working collaboratively with NGOs and academics, and prosecuting traffickers. While many would be surprised to hear that trafficking is indeed happening in Scotland and the UK widely, Alison noted common destinations in Scotland and discussed several cases as examples and stressed that improving our ability to detect victims of trafficking as critical.

Alison’s talk led nicely to Bronagh Andrew’s of TARA (Trafficking Awareness Raising Alliance), a sector of Community Safety Glasgow. Alison shared about how TARA offers a support service to trafficking survivors and helps to identify victims of sexual exploitation. TARA has a unique survivor-led approach, which has provided survivors with hope as their survivors re-learn how to trust people and the legal system. The work of TARA has empowered survivors through TARA’s ability to support survivors on a long-term basis, until the survivors express that they feel they’ve regained a sense of agency.

The final speaker was Parosha Chandran, an award-winning human rights barrister and receiver of the ‘Trafficking in Persons Hero Award 2015’ from former US Secretary of State, John Kerry. Parosha spoke about establishing rights recognition for victims of trafficking and she over-viewed some of the ground-breaking trafficking cases she has worked on over the past 15+ years, which have come to shape anti-trafficking efforts in the UK. A theme that would be interesting to explore further from Parosha’s presented cases is the often out-dated relationship between the justice system and Home Office. Since much of Parosha’s discussion was technical, legal language, she has offered to share her powerpoint that outlines the major human trafficking cases in the UK if requested by email.

Overall, this event sparked both hope within attendees and a desire to see more anti-human trafficking seminars combining major UK law firms and legal advocates. I would highly recommend people mark their calendars in advance for whenever the next Tumbling Lassie seminar may be.

More about the author

Mahlea is also the Emerging Fields Researcher for Tiny Hands International, an NGO fighting human trafficking globally through border and transit monitoring. Mahlea can be contacted at: mahlea@tinyhands.org.

The Tumbling lassie

If anyone is interested in this field and would like to get in touch with The Tumbling Lassie directly, you can email them here: tumblinglassie@gmail.com 

Should we have hope for the human rights project?

Vivek Bhatt is reading for a PhD in Law, and is a Global Justice Academy Student Ambassador for 2016-17. He recently attended and spoke at a conference hosted by the University of Sussex’s Human Rights Research Centre. The conference theme was Challenging Human Rights Disenchantment.

The past few years have been uncertain times for the human rights project. On one hand, the human rights discourse seems ubiquitous in contemporary international affairs. Yet on the other, the authority, legitimacy, and efficiency of international human rights law are continually being challenged. 2016, for example, saw the escalation of the refugee crisis resulting from conflict in Syria and Iraq, the rejection by several African heads of state of a UN dialogue on the human rights of same-sex attracted individuals,[1] and the election of a new American head of state, who – from the outset – has expressed an unwillingness to abide by key international human rights laws, the Convention against Torture, and the Refugee Convention.[2] In light of such developments, disenfranchisement and frustration with international human rights law seem inevitable. While some suggest that human rights are admirably idealistic but ultimately unenforceable,[3] others claim that the human rights project is but a vehicle for capitalism, the entrenchment of global power disequilibrium, and Western neo-colonialism.[4]

It was against this troubling backdrop that the Sussex Centre for Human Rights Research at the University of Sussex hosted its inaugural conference, titled Challenging Human Rights Disenchantment 50 Years on from the ICCPR and ICESCR. The interdisciplinary conference brought together human rights advocates, lawyers, and philosophers, with speakers considering various forms of human rights disenchantment, and the ways in which they can be challenged. Mona Rishwami – Chief of the Rule of Law, Equality, and Non-Discrimination branch of the OHCHR – opened the conference with an outline of the developments that galvanised the human rights movement and the profession of human rights law. Rishwami suggested that although the current legal framework for human rights was conceived in the aftermath of the Second World War, it articulates concerns and ideals that are pertinent to contemporary human experience. She was followed by Professor Pamela Palmater, who – as an indigenous woman – argued that human rights activism should no longer be left to members of the world’s most marginalised communities. Citing the disproportionate number of indigenous women in custody and the infrastructural underdevelopment of indigenous nations within Canada, Palmater suggested that human rights violations are rife even within States that are reputed as bastions of human rights. To Palmater, human rights law generates demands for state accountability, demands that we must all amplify within and beyond academic circles.

Following a series of thematic sessions featuring speakers from the UK and abroad, the esteemed Professor Andrew Clapham delivered a closing address. Professor Clapham shared anecdotes about the many ways in which he has been confronted by human rights disenchantment, from being told that human rights ‘are for girls,’ to seeing politicians and the press tell ‘lies’ about the competence and function of regional and international human rights bodies. While Professor Palmater highlighted the importance of human rights advocacy by individuals, Professor Clapham addressed the roles of academics and lawyers. He suggested that we must defend human rights as a binding and legitimate body of law, dispel pervasive fictions about the function and reach of human rights bodies, and challenge rhetoric that characterises human rights law as vacuous idealism.

Though they focused on different issues, Palmater and Clapham made a common argument: that there exist innumerable human rights issues around the world today, and their resolution requires engagement with individuals outside the realms of human rights law and academia. This, to Palmater, is in order to encourage widespread human rights activism. To Clapham, meanwhile, it is in order to legitimise human rights as a valid and functional category of law that can – and does – influence governance and society. Clapham’s argument resonated with Charlesworth’s description of international law as a ‘discipline of crisis’;[5] we can challenge human rights disenchantment by encouraging sceptics to look beyond the law’s most prominent failings, and to recognise the ways in which human rights laws exist as practice, constituting everyday realities.

As a participant, I left the conference with conflicting intuitions. I had spent the day speaking and hearing about the emancipatory promise of human rights, but simultaneously reading news about a travel ban in the USA and a possible escalation of torture practices in the context of the war on terror. Yet there was meaning to be found in this apparent clash between theoretical optimism and reality. Not that we should give up on human rights altogether, but that the human rights project is most important and meaningful precisely when the reasons for disenchantment with it seem most convincing. Human rights provide a basis for critical discursive and legal engagement with political institutions by academics, social movements, lawyers, and jurists. International human rights law also serves as a reminder that each individual is entitled to certain liberties and securities by virtue of his or her humanness. The policies of the Trump administration may be conspicuous and shocking, but they should not diminish the significance or urgency of other human rights issues around the world. As moral claims and as law, human rights require us to reflect on and respond to all instances of marginalisation, deprivation, and violence. This includes not only the suffering of migrants in constitutional democracies, but also indigenous communities, persecuted religious minorities, and same-sex attracted individuals, among others.

We should, therefore, have hope for and promote the human rights project. As Professor Palmater implied, inaction and despair would merely aid the demise of something we recognise as intrinsically valuable. The inaugural conference of the Sussex Centre for Human Rights Research highlighted not only the diversity of current human rights scholarship, but also the number of domestic, regional, and international practices that can be influenced (and improved) by human rights considerations. More information on the conference proceedings and speakers, including a copy of the programme, can be found at: http://www.sussex.ac.uk/schrr/pastevents/challenging-human-rights-disenchantment.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Permanent Mission of the Republic of Botswana to the United Nations, Statement of the African Group on the Presentation of the Annual Report of the United Nations Human Rights Council (4 November 2016) United Nations PaperSmart < papersmart.unmeetings.org/media2/7663738/botswana.pdf>.

[2] See, for example, Mark Mazzetti and Charlie Savage, Leaked Draft of Executive Order Could Revive C.I.A. Prisons (25 January 2017) The New York Times < https://www.nytimes.com/2017/01/25/us/politics/executive-order-leaked-draft-national-security-trump-administration.html?_r=0>.

[3] See, for example, Eric Posner, The Twilight of Human Rights Law (Oxford University Press, 2014).

[4] See, for example, David Kennedy, ‘Reassessing International Humanitarianism: the Dark Sides’ in Anne Orford (ed), International Law and its Others (Cambridge University Press, 2006) 131, 133-5.

[5] Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65(3) The Modern Law Review 377.

Peace and Conflict Series: Into the Grey Zone of Human Rights Violations with Political Theorist Mihaela Mihai

The many ways of being complicit in violence and injustice

An interview with Mihaela Mihai, Senior Research Fellow in Political Theory at the University of Edinburgh

 

Mihaela Mihai

What is your current research about?

The Auschwitz survivor and great Italian writer Primo Levi – who coined the term ‘the grey zone’ to refer to moral ambiguity in a situation of violence – said that ‘we all make our deals with power, willingly or not.’

In our research project, we are using his concept of the ‘grey zone’ and his insights into the ambiguity of moral responsibility as starting points for an inquiry into the many ways in which people are complicit in violence and injustice. We analyse complex accounts of moral and political complicity in four cases: Vichy France, apartheid South Africa, totalitarianism in Communist Romania and the military dictatorship in Argentina during the Dirty War in the 1970s and 80s.

Our claim is that the ambiguous roles of collaborators, bystanders and beneficiaries has not been properly reckoned within the current theory and practice of transitional justice in post-conflict societies. We ask how historical sources, cinematic and literary representations illuminate this murky reality of political conflict.

Can they then reinvigorate efforts at justice and reconciliation in societies wrought by violence and division?

To give one example, we’re exploring how powerful films that touch on this space between victims and perpetrators can promote debate, public engagement and historical understanding. Think of how Louis Malle’s classic film Lacombe, Lucien unsettles viewers’ preconceptions about the motivations of perpetrators in its portrayal of the thoughtlessness and divided loyalties of its lead character. Likewise, the disturbingly ambivalent relationship between a torturer and his young female victim in the powerful 1999 Argentinian film Garaje Olimpo challenges the way we normally think about responsibility and culpability.

 As you can imagine, this research takes in many disciplines, including philosophy, history, political science, law, literature and cinema. Within that general project, each of the four team members has developed specific interests.

As the principal investigator in this project, I am currently exploring two themes of relevance. First, I am working on delineating an account of the epistemic functions of artworks. The main question is: by virtue of what characteristics do films, novels and poems help us better understand the thorny issue of complicity?  In addition, I explore the significance of feminist theories of responsibility and complicity for the ‘grey zone’. Feminists have long worked on unpacking the issue of how one becomes complicit with an unjust structure. Their insights into this phenomenon bear a great relevance for any sophisticated attempt to illuminate the ‘grey zone.’

Hugh McDonnell has recently published his book, Europeanising Spaces in Paris, c. 1947-1962, which examines contested conceptions of ‘Europe’ and ‘Europeanness’ in the post-World War Two French capital. He is now undertaking historical research on aspects of the ‘grey zone’ in Vichy France, and is also working on an article on Jean-Paul Sartre’s varied engagements with the idea of Europe and what it means to be European.

Maša Mrovlje is currently exploring ways of judging instances of violent resistance to oppressive systems, looking particularly at South Africa’s anti-apartheid struggle. More generally, she is interested in how existential philosophy illuminates the dark realities of conflict. She is also finalising a book manuscript on existentialism and the ambiguity of political judgement, with a focus on transitional justice as the area where these philosophical frameworks clearly show their value.

Last but not least, Gisli Vogler’s PhD project focuses on the issue of responsibility and is located between social and political theory. Gisli draws on the work of Hannah Arendt and Margaret Archer to provide an account of political judgement that takes seriously its situatedness and limited emancipatory power. This has great relevance for transitional justice in general, and for our understanding of resistance and complicity in particular.

How does your research contribute to global justice and peace?

We address what we consider to be weaknesses in current approaches to transitional justice: their unsatisfactory take on the ‘grey zone’. Post-conflict societies worldwide understandably seek clear answers and solutions, but these obscure the messiness and ambiguity of human interaction. We argue in favour of sustained efforts to understand the shadowy zone of collaborators, bystanders and beneficiaries of violence. By grappling with invisible injustices in various historical and geographical situations, we call attention to the fragility of peace and the incompleteness of justice in societies that have neglected the ‘grey zone.’

We should also say that our work is not about dismissing or overthrowing existing approaches to transitional justice processes. Rather, it is about supplementing or enriching the toolkit of scholars and practitioners of transitional justice. As already mentioned, one innovative aspect of our work is our belief that art might be better placed to provoke societal processes of reflection on invisible forms of participation in violence and injustice.

What impact has your work had so far, and what impact do you hope it will have?

Not least because of the broad scope of our work, we are excited about its future impact. In the first place, it raises awareness of the dangers involved in ignoring general complicity with violence and allowing undemocratic attitudes to reproduce across generations. In this vein, it aims to make a convincing argument about why and how cinema and literature should be used in civic education aimed both at deterrence and reconciliation.

And as part of giving wide exposure to our research goals, last April the team organised and participated in the prestigious European Consortium for Political Research – The Joint Sessions in Pisa. We organised a workshop on “Imagining Violence: The Politics of Narrative and Representation,” which brought together scholars from all over Europe and North America to discuss the role of imagination in understanding and responding to the complex issues of political violence. The fruitful discussion has in turn led to a special journal issue on Imagination and Violence, forthcoming with Critical Review of International Social and Political Philosophy.

We also aim to translate our academic work for a broader public audience, to promote dialogue between academia and the wider community, and to develop cultural and educational resources on the issue of ordinary complicity in injustice. We are especially excited about our film series on “Complicity and Resistance” that will be held in March 2017 at Cameo cinema in Edinburgh. Films like The Secret in Their Eyes and The Headless Woman from Argentina, Une Affaire de femmes and Lacombe Lucien from France, Quad Erat Demonstrandum and The Paper Will Be Blue from Romania, or Fools and Skin from South Africa will be screened to highlight exactly these sorts of troubling questions about complicity, difficult choices and agonising dilemmas confronting individuals in the grey zone.

What other research questions are you discovering which you think need to be addressed, and others you would like to move on to?

It’s certainly the case that our research is always generating further avenues of fruitful inquiry. For instance, an examination of the ‘grey zone’ of resistance as the other side of the coin of complicity in injustice. What are the moral dilemmas, tragedies and human cost involved in (violent) struggles against oppressive systems?

Another example would be the further investigation into the distinct nature of complicity and responsibility of artists and intellectuals, and the significance of varying representations of the grey zone.

The project also raises the problem of how the political effects of failures to engage complicity in human rights violations might be transmitted and reinforced not only over time, but across different geographical and spatial contexts. The questions we raise are of course applicable far beyond our case studies. Similarly, the colonial links or global interconnections in histories of complicity in violence need to be further addressed.

We are also finding that the issue of complicity raises new questions about silence and memory, betrayal and revenge, friendship and trust – notions that remain at the margin of transitional justice scholarship, which yet contain important insights.

Finally, the exploration of cinematic and literary narratives poses the question in turn of the potential moral and political significance of other art genres, such as music or architecture, and their relevance to the issue of ‘grey zone’ and transitional justice more broadly.

Peace and Conflict Series: What is so ‘Modern’ about Modern Conflict?

Eavesdropping on a roundtable conversation at the Centre for the Study of Modern Conflict…

‘Modern conflict’ is commonly used to refer to conflicts in recent history that used particular modernised means of waging war and share a number of other elements. Why the label ‘modern’ is used to describe some conflicts and not others, and what its analytical purpose should be was heavily debated during a roundtable organised by the University of Edinburgh’s Centre for the Study of Modern Conflict. Hosted by Emile Chabal, four young experts put their own research into the context of the debate on the utility of Modern Conflict as a concept.

For Fraser Raeburn, the label ‘modern’ explained ‘for how long we can look back in time and find things we recognize in conflicts’. It was thus a question of familiarity and continuity. Researching the Scots who fought against fascism among the International Brigades in the Spanish Civil War, Raeburn suggested that the concept of Modern Conflict allows for comparisons between similar types within a particular time period. Moreover, he suggested that a certain cultural continuity defines Modern Conflict – that it remains central and defining in one way or another within a given society’s culture.

The first modern war

However, Catherine Bateson, whose research explores the American Civil War (1861-1865), suggested a different approach. Speaking about songs invoked about the Civil War, she said that a whole sub-culture of war and music relates modern conflicts back to the origins of war. In this sense, the ancient practice of songs about and within wars represents continuity across time, but also deeply “unmodern” roots of supposedly modern conflicts.

The American Civil War is in many ways considered to be an early, or even the ‘first modern war’.  The role of mass mobilization, industrialization, new technology such as submarine prototypes, and the number of deaths are among many other factors that are known to distinguish this war as ‘modern’.

Yet one of the most important aspects, explained Bateson, was the fact that modern conflicts were and continue to be much more visible than earlier ones: they were photographed. ‘Photography opened a new lens, it changed how the image of war was perceived’, said Bateson.

Sounding the taps in the Civil War / Flickr, Cc license

Modern civilisation

Anita Klingler has been researching political violence and political culture in interwar Germany and Britain, saying that one important concept attached to modern conflict is civilization: the emergence of the Second World War shows that the ‘protective shell of civilization was not thick enough’.

At the heart of this realisation lies the question of whether violence is an enemy of civilization or one of its central characteristics. Or, as Klingler asked in reference to the interwar period, ‘how did violence become the enemy of our civilisation?’

Don’t say war

However, violence has also been institutionalised and legitimised as a motor of civilisation, whether in the wake of colonialism or contemporary interventions. Indeed, as Sissela Matzner argued in the case of Libya, France has defined its military intervention as an extension of its own national culture and global leadership ambitions.

Matzner’s research compares the foreign policy of Germany and France on Libya from the perspective of political parties. Her findings suggest that the military intervention was framed in ways that may relate to a particular periods of contemporary modern warfare:  responsibility as a central elements in their ‘national role conceptions’, and the fact that most interventionists avoid using the word war altogether. ‘The categorical avoidance of the term war reflects the changing nature of war itself, and the controversy around interventions’, said Matzner.

As the nature of conflict and war is changing, so should the concepts that help us to understand and compare them. But as Catherine Bateson put it: ‘How long can modern conflicts remain modern? What about 50 or 100 years from now, will we still talk about these wars as modern conflicts?’