Pluralism and Particularity Within the Human Rights Paradigm
Garrett FitzGerald, MTS '10
Guatemala is a country of contrasts and contradictions.
A persistent voice within the academic discourse around human rights has long challenged the theoretical construction of human rights as a project of excessive abstraction, disconnected and out of touch with the realities "on the ground." Richard Rorty, as one preeminent detractor of investigating the theoretical underpinnings of human rights, roundly dismissed what he termed "human rights foundationalism" as a project both outmoded and irrelevant. The following paper seeks to examine the ways in which fundamental differences in the theoretical articulation of human rights actually play out "on the ground," using the two truth and reconciliation commissions of Guatemala as a case study in which the links between the theoretical and concrete expressions of human rights, their violation, and the responses thereto might be explored.
In the opening paragraph of Toward a Theory of Human Rights, Michael Perry muses on the applicability of our shared home state’s namesake—it has been suggested that the name Kentucky was derived from a Native American word meaning “dark and bloody ground”—to the twentieth century, a time which he characterizes as “a dark and bloody time – indeed, the dark and bloody time.”1 But if we are tempted to define that century, Perry’s “dark and bloody time,” in terms of humankind’s increasingly sophisticated penchant for self-destruction, we must also acknowledge the glimmer of hope represented by the ongoing development and implementation of increasingly sophisticated responses to communal violence and atrocity. In the closing decades of the twentieth century, the same sort of institutional creativity and resourcefulness previously harnessed only to prosecute conflict became a viable tool for the development of unique programs of conflict resolution and reconciliation.
The development of the truth commission as a viable model of alternative or restorative justice has likely been the most publicized manifestation of these emergent models of reconciliation. Since South Africa’s inception of the truth commission model of restorative justice in the mid 1990s, truth commissions have been and continue to be utilized in at least twenty-four post-conflict settings across the globe, including such varied geographical contexts as Latin America, Africa, Europe, Southeast Asia, the Caribbean, and the South Pacific. Although the focus of this project rests primarily on two relatively standardized examples of the truth commission model, it is vital to recognize that other official bodies of post-conflict historical inquiry and mechanisms for “investigating, recounting, and remembering events of the past” have been developed on individual, local, and national levels around the world.2
The varied models of truth commissions have not been developed and implemented in a vacuum. Despite their apparent similarities, each truth commission operates within a specific context, or perhaps a set of specific contexts, for which the national character of many truth commissions cannot entirely account. Distinguishing characteristics such as institutional affiliations, the influence of local cultural and religious milieu, and relationships to local, national, and international law all contribute to the subtle particularities present in the implementation of any given truth commission
In this paper I propose to compare and contrast the understandings of human rights in the mandates, methodologies, and final reports of the two truth commissions hosted by Guatemala in the last decade of twentieth century: the Historical Clarification Committee (Comisión para el Esclarecimiento Histórico, CEH) and the Interdiocese Project for the Recovery of Historical Memory (Proyecto Interdiocesano de Recuperación de la Memoria Histórica, REMHI). The subtle differences in the understandings of human rights employed by these two commissions, so alike in geographical and temporal scope, offer a telling glimpse into the practical consequences that follow from the interplay between truth commissions and their varied understandings of human rights. But before beginning the analysis of Guatemala’s truth commissions, it is important to establish something of a conceptual framework through which the ideas of human rights and truth commissions will be understood in the following discussion.
Framing Human Rights and Truth Commissions
Despite its preeminent status in modern moral and legal discourse—Perry describes human rights as “the dominant morality of our time” and human rights discourse as the modern “moral lingua franca"—3 it is vital to remember that the human rights regime is itself a paradigm that remains both internally and externally contested. Any discussion of what Richard Rorty calls “human rights foundationalism,”4 namely the moral and theoretical underpinnings in which human rights are grounded, is therefore necessarily a paradigmatically self-referential exercise in that such a discussion presupposes that there are extant moral and/or legal constructs classifiable as human rights. Despite Rorty’s insistence that the exploration of human rights foundationalism is a futile enterprise, it is a close corollary of this very subject that defines the comparative endeavor at hand. As the discussion below will hopefully illustrate, differences in the theoretical groundings of human rights understandings manifest themselves in concrete and discernable forms when realized in the practical application of such rights. For the sake of exploring these real-world examples, Rorty’s admonition to abandon human rights foundationalism must remain unheeded for the moment.
That being said, it is not human rights foundationalism per se with which this project is concerned, but rather the way in which differences in the moral foundations and subsequent understandings of human rights manifest themselves in concrete, real-world examples such as the two truth commission of Guatemala. By taking an anthropological approach to human rights foundations, Victoria Sanford allows us to take a step back from the particularities of any specific moral grounding of human rights and to broaden the scope of the discussion to incorporate the reality of diverse human rights foundationalisms. Sanford suggests that any discussion of human rights implies “a series of domains” through which human rights discourse and practice is defined, created, and enacted, and in which a singular epistemological space for the discussion of human rights is neither particularly necessary nor practical. According to Sanford, these domains are constituted by the overlapping contributions of the local, national, international, and nongovernmental institutions to the meaning of being human and the rights resulting from this particular condition.5 Sanford’s model makes no claims regarding the validity of particular moral foundations or groundings for human rights, but by leaving the epistemological door open it allows for a more nuanced discussion of the multivalent influences - be they religious, cultural, political, etc. - to which any given understanding of human rights is heir.
Sanford’s rendering of the plurality of human rights discourse and practice may thus be read as theoretically akin to the Rawlsian notion of overlapping consensus, in which the overlapping points of distinct comprehensive schemes form the moral consensus upon which much of the dominant human rights paradigm rests. Like Rawls’ overlapping consensus, Sanford’s modeling of the human rights paradigm as a series of domains allows for the critical exploration of the contested particulars of human rights with sensitivity to the varied locations and contexts from which understandings of human rights are articulated. Sanford does not go so far as to identify anything resembling the free-standing human rights essentials upon which a truly Rawlsian model would rely, but these essentials may be considered at least nominally emergent, albeit from an admittedly narrow sampling, in the overlap between the understandings of human rights in the two Guatemalan commissions discussed below.
By following Sanford’s line of reasoning, the issue of human rights foundationalism writ large can be effectively bracketed and set aside in favor of more contextually specific explorations of the ways in which institutional influences shape particular conceptions of human rights. Although it may prove problematic in some instances to tie human rights domains or comprehensive schemes solely to institutions, for the purposes of this project the distinction retains its validity. As the discussion below will illustrate, both institutions to which Guatemala’s truth commissions were bound - the United Nations and the Catholic Church - enjoy distinct understandings regarding the moral foundations of human rights and the subsequent obligations which follow from these understandings.
Having outlined the contextual framework through which this project approaches human rights, it would now be prudent to establish a similar sort of framework for the concept of a truth commission. Although there is no definitive template for establishing a truth commission, many bodies labeled as such do share a number of defining characteristics, albeit with a degree of variability. The United States Institute of Peace lists the following shared characteristics of many truth commissions:
Truth commissions exist for a designated period of time, have a specific mandate, exhibit a variety of organizational arrangements, and adopt a range of processes and procedures, with the goal of producing and disseminating a final report, including conclusions and recommendations.6
Priscilla Hayner suggests that common motivations for the establishment of truth commissions range from national attempts at reconciliation through turning the page on violent chapters of history, functional precursors to criminal trials, or means for new regimes to distance themselves from human rights abuses of the past, and that truth commissions can be characterized by all or none of the following basic aims:
To discover, clarify, and formally acknowledge past abuses; to respond to specific needs of victims; to contribute to justice and accountability; to outline institutional responsibility and recommend reforms; and to promote reconciliation and reduce conflict over the past.7
In addition to the characteristics enumerated above by the Hayner and the USIP, two further variables should be mentioned for the discussion at hand. The first of these additional variables is the relationship between any given commission and local, national, or international law. Unlike trials or reparations, the emphasis placed by truth commissions on healing and reconciliation as ends in and of themselves results in commissions that are by no means strictly or even principally legal bodies. Despite their occasional legal mandates, such as the ability of the South African Truth and Commission to grant amnesty, Martha Minow describes the functionality of truth commissions as primarily moral rather legal. By contrast, Minow suggests that criminal trials and war crimes tribunals should fulfill the legal functions not assigned to truth commissions. She writes, “[a] truth commission is charged to produce a public report that recounts the facts gathered, and render moral assessment. It casts its findings and conclusions not in terms of individual blame but instead in terms of what was wrong and never justifiable.”8
Given the utilization of Sanford’s anthropological articulation of human rights, the institutional or foundational affiliation of any given truth commission represents a final variable necessary for discussion at hand. Institutional affiliations refer to the organizational body responsible for mandating, coordinating, and carrying out a given truth commission, along with presenting and implementing any findings produced by the commission. An in-depth understanding of a given commission’s institutional affiliations proves vital, as these institutions offer concrete instances of the domains that, according to Sanford, shape contextually specific understandings of human rights. Thus, the institutional affiliations of most truth commissions offer direct corollary insights into the ways in which given commissions conceptualize human rights.
Based on the recorded truth commissions to date, there seem to be four recurring categories into which a commission’s affiliations can be divided: 1) local, as with the Truth and Reconciliation Commission of Greensboro, North Carolina; 2) national, as with the South African Truth and Reconciliation Commission; 3) international, as with United Nations-affiliated truth commissions such as the Commission for Historical Clarification of Guatemala; and 4) religious/ecumenical, as with the Catholic Church-sponsored Interdiocese Project for the Recovery of Historical Memory, also of Guatemala. Although I will suggest that differences in the foundational affiliations and conceptualizations of human rights are evident in the mandates, methodologies, and final reports of the latter two examples, these differences should not be taken as indication that these commissions and the historical processes they entail were entirely distinct from one another. The evidence of constructive cooperation between Guatemala’s commissions indicates that dialogue, intelligibility, and even sharing of certain quantifiable data is possible between truth commissions with dramatically different foundational affiliations operating within parameters bounded by distinct conceptions of human rights. Indeed, as later discussions will show, many of the individuals involved in Guatemala’s two truth commissions viewed the commissions as complementary.
The truth commission model itself is considered by some to be the logical philosophical extension of several overlapping provisions of international human rights law. Summarizing the arguments of such advocates, Hayner suggests that:
International human rights law obliges states to investigate and punish gross violators of human rights in most circumstances; implied within that obligation is the inherent right of the citizenry to know the results of such investigations.9
Hayner explains that according to many advocates, including human rights NGOs, Article 19, the citizenry’s ‘inherent right’ to truth, is rooted in Article 19 of the Universal Declaration of Human Rights, which affirms the right “to seek, receive, and impart information,” and that the ‘right to truth’ has been upheld in later documents, such as the African Charter on Human and Peoples’ Rights, which again affirms the “right to receive information.”10 Juan E. Mendez explains that the ‘right to truth’ is an example of an “emerging principle” in international human rights law in that, although the letter of human rights law does not always explicitly mention this right, the principle of the ‘right to truth’ has been repeatedly affirmed by “authoritative interpretations of otherwise binding norms.”11The gradual adoption by the United Nations of truth-telling as a method of achieving reconciliation and strengthening the human rights regimes of post-conflict societies has created what Mendez refers to as a “veritable ‘doctrine’” of international precedence for such principles.12
On the practical level, the international human rights regime also offers substantial contributions to the implementation of truth commissions. Members of human rights-related NGOs often staff truth commissions, including the CEH of Guatemala, and provide invaluable logistical support and expertise to the truth commission process. Even when not directly involved in staffing truth commissions, human rights NGOs provide resources, including documentation, case files, and grassroots contacts to aid the on-going investigations of truth commissions.13
Given the subject matter, a brief mention of the relationship between religion and truth commissions would also be useful. Although truth commissions are, with some notable exceptions, predominantly secular in terms of their mandates and implementation, religion provides an invaluable conceptual framework through which the local and historical processes entailed by truth commissions can be understood. In some cases, this conceptual framework offers a paradigmatic alternative to the legal/judicial model through which often-elusive justice can be conceived even in the absence of punitive measures for guilty parties. As the example of the REMHI project demonstrates, religion also plays a formative role in the conceptualization of human rights held by some truth commissions and fundamentally influences the way in which these commissions approach the definition of human rights, the violation of human rights, and the resultant processes of reconciliation required to restore and protect human rights.
Two Paradigms of Human Rights
Guatemala occupies a unique position in the history of truth commissions, having hosted two independent commissions with markedly different institutional affiliations since the end of its long-running civil war in 1996: the United Nations-sponsored Commission for Historical Clarification (Comisión para el Esclarecimiento Histórico, or CEH) and the Interdiocese Project for the Recovery of Historical Memory (Proyecto Interdiocesano de Recuperación de la Memoria Histórica, or REMHI), which was sponsored by the Roman Catholic archdiocese of Guatemala. These two commissions shared a number of readily apparent similarities that will receive brief attention before the discussion shifts to the particularities of how each commission’s institutional affiliation shaped its subsequent understanding of human rights.
In terms of the above-mentioned defining characteristics of truth commissions, similarities between the CEH and the REMHI project include: 1) significant overlap of the designated periods for which both commissions were active, 2) additional overlap regarding the historical scope of the commissions’ inquiries, 3) similarities in the mandates of the two commissions, and 4) the composition and dissemination by each commission of a final report containing its findings and recommendations. Perhaps the most important similarity between the CEH and the REMHI project exists in the legal particulars of these two commissions. Unlike the South African TRC, endowed as it was with provisional powers to grant amnesty, neither the CEH nor the R.E.H.M.I. carried the prospect of immediate legal repercussions, either in terms of amnesty or prosecution, for individuals named as perpetrators of violence. Although affiliated with the United Nations, an international body with limited prosecutory powers, the CEH was bound by both an internal policy against “individualizing responsibility” and by the broad amnesties provided by Guatemala’s postwar National Reconciliation Law. The R.E.H.M.I. project, sponsored as it was by a nongovernmental rather than an international body, was unequivocally remote from any possible legal proceedings.
The Commission for Historical Clarification
The Commission for Historical Clarification was created as part of the United Nations-brokered peace negotiations to end over three decades of civil violence in Guatemala. Although the formation of such a commission was agreed upon as early as 1994, the CEH was not formally instated until three years later, following the finalization of peace agreements in 1996.14 The CEH was officially convened for two years (1997-1999) after which it presented its official report, Guatemala: Memory of Silence.
The mandate for the CEH followed from increasing international and internal pressure that a civil reconciliatory process accompanies the political and military peace agreements being brokered in the mid 1990s. According to the prologue of the Commission’s final report,
The Commission for Historical Clarification (CEH) was established through the Accord of Oslo on 23 June 1994, in order to clarify with objectivity, equity and impartiality, the human rights violations and acts of violence connected with the armed confrontation that caused suffering among the Guatemalan people.15
Based on this objective data, the Commission was tasked with the publication of a final report intended to “make recommendations to promote peace and harmony,” and to “recommend measures to preserve the memory of the victims and promote a culture of mutual respect, observance of human rights, and strengthening of the democratic process.”16
Both the mandate and methodology of the CEH were rooted firmly within a qualitative understanding of the United Nations’ paradigm of human rights as articulated in the Universal Declaration of Human Rights of 1948. With this understanding of human rights in mind, the CEH collected oral testimonies from approximately nine thousand deponents. From these depositions the details of 42,275 instances of human rights violations were extrapolated, with victims including men, women and children of every level of Guatemalan society’s ethnic and socio-economic strata. The report further qualifies these numbers by explaining that, of the recorded violations, there appear approximately 23,671 instances of arbitrary execution and 6,159 forced disappearances. Of fully identified victims, the CEH final report estimates that eighty-three percent were Mayan and seventeen percent were Latino. When these findings were added to the tallies from other independent sources, such as the REMHI project, total human rights violations were estimated at over 200,000.17
As the Commission’s United Nations affiliation suggests, the understanding of human rights and subsequent violations enumerated in the Commission’s final report draws directly from the articles of the Universal Declaration of Human Rights. Based on these understandings of human rights, the CEH adopted a legal methodology in which documentation of specific instances of violations in international human rights law was accomplished through the collection of legal evidence of human rights violations.18 Although the CEH adopted the United Nations' legal model of human rights, the Commission was, as previously noted, divorced by design from the possibility of legal redress based on its findings. In instances when justice in the legal punitive sense is not a viable option, as was the case with the CEH, Hayner suggests that “rather than displacing or replacing justice in the courts” a truth commission can reconceptualize justice into a matter of accountability in the realm of public discourse.19 But in the case of the CEH the ‘matter of accountability’ was also effectively precluded by the stipulations against the assignation of responsibility that were written into the Commission’s mandate. These stipulations, coupled with the Commission’s nonexistent legal powers, rendered the CEH largely ineffectual in achieving either aspect of the legal/moral binary by which Minow classifies the functionality of truth commissions.
Despite the contributions of the CEH’s final report to the reshaping of Guatemala’s national consciousness and the development of collective memory regarding the country’s decades of violence, the CEH has been lambasted by some critics as little more than a particularly poignant ethnography of violence. These critiques can be traced back to the distinctions between the legal and moral functions of truth commissions highlighted above by Minow. According to anthropologist Richard Wilson and other critics cited by Minow, the mandate and methodology of the CEH prevented it from functioning effectively in either a moral or a legal capacity. Wilson identifies the CEH’s “lack of legal teeth” as the Commission’s grossest oversight, an omission so severe as to earn the CEH the dubious distinction of “the weakest of any truth commissions in recent history.”1o Minow echoes Wilsons’ criticisms, adding that widespread disappointment in the CEH also resulted from “a scope too confined to incidents surrounding armed conflict and powers too frail to authorize subpoenas or to name in its final report those individuals responsible for the wrongdoing.”21 As a result of having both its legal and moral powers effectively curtailed, Wilson concludes that the CEH was able to produce
Little more than an abstract study that surveys the causes of the Guatemalan conflict, expressing a general moral sanction against institutions through which gross human rights abuses were committed. Such a report might help achieve 'reconciliation', but only in a minimalist sense.22
To the credit of the CEH, the Commission’s final report does contain conclusions with broader implications than the “abstract” and “minimalist” bounds described by Wilson. Despite deep criticism from many Guatemalans and international activists, the CEH accomplished the tasks outlined in its mandate, including a series of recommendations presented at high-profile national and international press conferences.23 According to the prologue of the Commission’s final report, the CEH was successful in achieving its “main purpose,” which is described in the report as “[placing] on record Guatemala’s recent, bloody past” in such a way that the findings of the report could be assimilated into the collective memory of Guatemala an the rest of the world.24
In addition to these contributions, and although the CEH was prevented from naming those responsible for past acts of violence, damning testimony was included in the final report that indicted the Guatemalan military or “state-backed paramilitary forces” in approximately ninety-three percent of the country’s violence. The report states that the patterns of state violence unequivocally indicated a policy of systematic genocide against indigenous Mayan populations.25 The CEH once again drew directly from national and international human rights conventions in formulating its approach to the question of genocide. According to the Commission’s conclusions:
The legal framework adopted by the CEH to analyze the possibility that acts of genocide were committed in Guatemala during the internal armed confrontation is the Convention on the [Prevention] and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948 and ratified by the Guatemalan State by Decree 704 on 30 November 1949.26
In the instances of genocide identified by the CEH, the legal approach to human rights violations may soon lead to prosecution and the possibility of retributive justice at either the national or the international level for those responsible. As Thomas Quigley noted in his preface to REMHI’s English edition, the exclusion of genocide from the amnesty provisions of the National Reconciliation Law, coupled with the CEH’s conclusive evidence regarding the systematic genocide carried out against specific Mayan communities, “leaves open the possibility of future prosecutions” based on this evidence.27
In a nation whose judicial system was left “too battered by repression and compromised by its own past to systematically deliver retributive justice,” the CEH represented the possibility of achieving some form of justice and accountability for the perpetrators of violence.28 But with its constraints against legal prosecution and the naming of perpetrators, doubts linger about the lasting impact that the CEH will have on the peace and reconciliation processes of Guatemala.
The Recovery of Historical Memory Project
The Recovery of Historical Memory Project was conducted from 1995 until 1998 as an ecumenical corollary to the Commission for Historical Clarification, with the stated intention of supporting and supplementing the findings of the CEH. To this end, the REMHI project compiled 5,465 testimonies, from which 52,467 documented victims of human rights violations were identified.29 These testimonies and figures were summarized in the REMHI project’s final report, Guatemala: Nunca Más!, and then passed on to the CEH and used in the final statistical analysis prepared by that commission.
But unlike the CEH, which was wholly rooted in the dominant United Nations human rights paradigm, the REMHI’s understanding of human rights more closely approximates the series of domains of influence posited above by Sanford. Although the REMHI project undoubtedly drew substantial influence from the UDHR and other international human rights declarations and conventions, the mandate and methodology of the REMHI project also exhibit a firm foundation in the Roman Catholic tradition of human rights understanding, particularly as historically articulated in the natural rights tradition.
Roman Catholicism enjoys a more lengthy and explicit engagement with human rights than most of the world’s other major religious traditions. Although many contemporary human rights advocates remain deeply critical of the Vatican’s uncompromising stance on sexual and reproductive rights, the Catholic commitment to the protection of social and economic rights can be traced back over a century to Pope Leo XIII’s 1891 encyclical Rerum Novarum. Rerum Novarum, along with subsequent anniversarial encyclicals from Popes John XXIII, Paul VI, and John Paul II, and Vatican II documents such as Gaudium et Spes, have established and reiterated the centrality of values such as the common good, solidarity, subsidiarity, a preferential option for the poor, and the priority and inviolability of human rights to Catholic social teaching and social responsibility. R. Scott Appleby explains that these central tenets of Catholic social teaching, and thus the Catholic foundation for human rights, are rooted in “the laws of nature and thus the will of the Creator.” The Catholic magesterium, as the custodian and interpreter of the natural law, is therefore uniquely positioned as the arbitrator between the “revealed law of the Creator” and temporal social and economic concerns.30
Given the geographical and historical context of the discussion at hand, the contributions of Catholic liberation theology to the REMHI report’s understanding and approach to human rights must also be given their dues. The Latin American bishop’s conference held at Medellín in 1968 reaffirmed the values espoused in the papal encyclicals and Vatican II documents listed above with a palpable sense of geographical and historical immediacy. This pivotal conference reaffirmed the Vatican II emphasis on the preferential option for the poor, and decried what the bishops present termed the “institutionalized violence” that marked the lives of so many Latin Americans.31 The influence of liberation theology on the REMHI project is perhaps most apparent in that commission’s methodology, which demonstrates an understanding of reconciliation deeply influenced by the attempts of Latin American liberation theologians to bind the political, existential, and theological dimensions of reconciliation.32
From this dynamic international milieu emerged a new and distinctly Catholic moral grounding for human rights. In a dramatic departure from a tradition dating back to Augustine’s articulation of just war theory, Catholic social activists began to argue that religion, and Catholicism in particular, functions as “a transnational alternative to, and competitor with, the nation-state as the ultimate arbiter of political morality.” The reimagining of the Church as the moral conscience and judge of the modern nation-state provides a concrete political premise upon which Catholic advocates for human rights continue to structure their critiques and support for political regimes around the world.33
As a result of its Catholic foundational influence, the REMHI project remains perhaps the most overtly religious high-profile example of the truth commission model of restorative justice to date. Even the South African Truth and Reconciliation Commission, which is alternately praised and critiqued for its twining of religious themes with legal proceedings,34 cannot claim such an explicit theological influence in its mandate, methodology, and presentation of its collected data.
The Catholic foundations of the REMHI project endow Guatemala: Nunca Más! with meaning that transcends the hard data and statistics contained in the report. Although Nunca Más! contains qualitative data on human rights violations similar to those found in the CEH final report, these figures and the stories behind them take on new layers of significance when considered in the light of the religious underpinnings of the REMHI project. Thomas Quigley, a United States Catholic Conference policy advisor, described the REMHI final report as “a martyrology, an alternative truth commission report, and a work of pastoral theology.”35 Monsignor Juan Gerardi, who was murdered by members of the Guatemalan armed forces two days after the publication of the REMHI final report, described the REMHI project as “an inspiring testimony to the social ministry of the Catholic Church in Guatemala.” In a speech delivered at the presentation of the REMHI report, Gerardi explained the theological underpinnings for the REMHI project:
This is a pastoral approach. It is working with the light of faith to discover the face of God, the presence of the Lord. In all of these events it is God who is speaking to us. We are called to reconciliation. Christ’s mission is one of reconciliation. His presence calls us to be agents of reconciliation in this broken society and to try to place the victims and perpetrators within the framework of justice.36
Gerardi’s appeal to justice is telling in this instance, since the REMHI, as discussed above, was at no time intended to be an instrument of legal redress. The final report makes clear, however, that though many Guatemalans would welcome the criminal prosecution of those responsible for the atrocities, the scope of reconciliation in the REMHI report is significantly wider than the justice ostensibly attainable through criminal prosecution.
An understanding of justice distinct from the punitive legal variety is intimately related to the REMHI’s understanding of and approach to human rights. In a poignant example of the reconceptualization of justice, Wilson explains:
While the project does not pursue punitive conceptions of justice, partly because it works within a Christian paradigm of forgiveness and reconciliation, it has encouraged a broad range of processes to deal with the past at local level, including legal investigations, symbolic acts of remembering and exhumations of clandestine cemeteries.37
The methodology of the REMHI deposition process was intentionally structured to include more than the “self-consciously qualitative” facts and figures of the human rights violations, in a manner “emotionally and psychologically supportive of the deponent.” As Hayner explains:
Beyond gathering the facts pertaining to the specific human rights violation, the interviewer would ask the deponent to describe the victim, including the person’s personality (was he a good father? was he cheerful or fun?); to describe how the event affected the deponent and the community as a whole; and to talk about why it happened and what the deponent and the community would like to do now.38
The emphasis on reconciliatory work in addition to the documentation of individual human rights violations is perhaps the most overt methodological difference between the REMHI and the CEH, and can be traced directly to the pastoral and theological underpinnings of the REMHI project and the understanding of Catholic obligations to human rights that follow from these understandings.
Although the REMHI project cannot be properly understood outside of its religious and theological context, the understanding of human rights exhibited in the REMHI final report is by no means entirely theological, but rather an amalgamation of the Catholic social tradition and elements of the dominant international human rights paradigm. As the report indicates, those responsible for compiling the data were well versed in the dominant legal conceptualizations of human rights at both the national and international level. To this end, the REMHI report makes reference to both “fundamental international norms” and “basic provisions of domestic legislation” in its explanations of the criteria by which human rights violations were defined. In its discussion on violations of the right to life, for example, the REMHI report cites definitions from the Guatemalan Constitution, the American Convention on Human Rights, the International Covenant of Civil and Political Rights, the Universal Declaration of Human Rights, and the Geneva Convention.39
Taken together, the CEH and the REMHI project offer a unique example of the way in which truth commissions with significantly different institutional affiliations and approaches to human rights can work in cooperation to produce a more holistic rendering of violent conflict and a more nuanced assessment of a nation’s post-conflict needs. But despite the relative success of these commissions in accomplishing the tasks outlined in their mandates, it is important to remember that the truth commission model should by no means be considered, if the reader will pardon the grim irony, a silver bullet for reconciliation in post-conflict societies. Indeed, there are many contexts in which the use of a truth commission, or a specific model of truth commission, would be inappropriate or counterproductive. To this end, it is vital that the functionality of a truth commission, be it legal or moral, adequately reflect the needs of the post-conflict society in which it is to be implemented.
Although the presence of a truth commission can itself certainly be considered constitutive of a restorative and reconciliatory process, the methodology of such a process must remain in keeping with the commission’s stated goal. As was stated above, the limitations placed on the CEH prevented that commission from functioning effectively in either a legal or moral capacity. The reconciliatory potential of the CEH was thus limited on an individual level to the not insignificant process of truth-telling, and on a national level to the vague but nevertheless damning indictments of the state military’s role in the violence. The commission’s focus on “gross human rights violations” as defined by international law provided a “single, recognizable, and politically neutral benchmark” by which the CEH could objectively judge actions committed by parties on both sides of the conflict. Yet critics contend this legal methodology left many grievances from Guatemala’s violent past unaddressed, both through its overly narrow scope of inquiry and the lack of persecutory powers for the gross human rights violations that were identified in the CEH final report.
By contrast, Wilson describes the findings of the REMHI project as “far more substantial and provocative” than the CEH, and cites REMHI’s longer mandate, reconciliatory work within local communities, and ability to name both perpetrators and victims as examples of the way in which the REMHI project “[fulfills] some of [the CEH’s] neglected functions.”40 The REMHI project, functioning with an understanding of human rights steeped in the Catholic and broader Christian paradigms of reconciliation and forgiveness, possessed theological resources to foster these ends through a pastoral approach to Guatemala’s human rights violations, a methodology inconceivable for the CEH.
The dominant international conceptualization of human rights as articulated within the UDHR assumes a negative legal stance regarding the prohibitive legal obligations that follow from the assertion of human rights contained therein, in that the supposition of individual rights presupposes the obligation of others not to violate said rights. The Catholic paradigm of human rights which informed the REMHI project seems to redefine this obligation in a positivist light. In a broad sense, according to the Catholic human rights paradigm instantiated in the REMHI project, the religious duty of the individual Catholic transcends the legally prohibitive level of non-violation of human rights to a more prescriptive obligation for the safeguarding of the rights of others as an extension of Catholic social duty.41 This obligation to human rights does not end with the individual, but extends up the Catholic hierarchy as well. According to the Catholic human rights paradigm, the Church magesterium remains the ultimate arbiter of moral authority, and with this power comes moral and pastoral responsibility for the protection and restoration of human rights. The REMHI project was thus able to conduct its far-reaching investigation by utilizing the resources and infrastructure of the Catholic Church’s Guatemalan municipalities, and the dedication of individuals who considered their work with REMHI to be a pastoral or religious duty.42
The pastoral approach to human rights infused the methodology of the REMHI project and resulted in substantive differences in the recommendations put forward by the REMHI project compared to those of the CEH. While the CEH report restricts its recommendations to national political institutions, the REMHI report enumerates specific demands and expectations of Guatemala’s religious communities, both Roman Catholic and otherwise. The REMHI report repeatedly stresses the unique social position occupied by religious institutions in post-conflict Guatemala, and calls upon these institutions to not only join with other social and political institutions in monitoring Guatemala’s fragile peace, but to utilize tools inherent within the diverse religious traditions to aide in Guatemala’s social reconstruction. The Catholic Church is tasked by the REMHI report to “play a key role in educating and guiding communities to combat stigma, foster community life, and prevent all forms of violence.”43 Similarly, the REMHI report charges other denominations to “reframe the concepts of reconciliation forgiveness, and peace from the standpoint of the values of truth and justice,” which the report claims are, at present, “widely exploited.”44
My intention in this comparison is not to take the U.N. to task for its lack of a pastoral approach, nor to challenge the “outright secularism of the [UDHR]”45 and its corresponding paradigm of human rights. I think there is tremendous value in an articulation of human rights in which, as Johannes Morsink explains:
We can all come to know that people have inherent dignity and moral rights by our natural and unaided epistemic equipment. No priests, clergy, or any kind of sacred texts are needed to come to an understanding of the inherent rights enshrined in the declaration.46
However, in light of the U.N.’s recent ‘veritable doctrine’ of employing truth commissions as a means of uncovering human rights abuses and reaffirming the value of human rights in post-conflict societies, it is vital that the U.N. recognize that there is more than one understanding of human rights, and that the application or imposition of a standardized model of human rights to some situations will result in neither effective justice nor reconciliation. Embracing a plurality of human rights understandings at the international level is especially important in situations in which the legal system of a country is too weak or a political situation too unstable to allow for the criminal prosecution of perpetrators of past violence. In such situations, alternative institutions and their approaches to human rights violations, such as the REMHI project’s pastoral approach, can effectively fulfill moral and reconciliatory functions in a manner sometimes limited by the particulars of given truth commissions or by the broader legal paradigm of human rights itself.
Despite Richard Rorty’s call to abandon human rights foundationalism, a nuanced understanding of the moral grounding for human rights is sometimes essential to discerning ways in which theoretical differences manifest themselves as practical approaches to the protection of human rights. In the instances of Guatemala’s two truth commissions, the institutional affiliations of both commissions shaped each commission’s fundamental understandings of human rights, and the influences of these institutional affiliations is evident in the mandates, methodologies, and final reports produced by two commissions with ostensibly similar goals. Yet although the CEH and the REMHI projects shared significant overlap in terms of the periods during which they were active and the periods of Guatemalan history with which they were concerned, the subtle differences in their respective understandings of human rights produced two commissions with fundamentally different approaches to the issue of human rights and the ways in which the violation of such rights should be handled. Given the reliance placed on specific human rights understandings by the truth commission model of restorative justice, sensitivity to the ways in which the theoretical differences in human rights understandings manifest themselves as concrete responses to atrocity and communal violence remains essential for the continued application of truth commissions as processes of reconciliation, justice, and healing in post-conflict settings.
1 Michael Perry, Toward a Theory of Human Rights (Cambridge: Cambridge University Press, 2007), 3.
2 Tristan Anne Borer, ed., Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies (Notre Dame, Indiana: University of Notre Dame Press, 2006), 2.
3 Perry, Toward a Theory of Human Rights, 4
4 Ibid., 27
5Victoria Sanford, Buried Secrets: Truth and Human Rights in Guatemala (New York: Palgrave Macmillan, 2003), 23.
7 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2002), 24.
8 Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), 78.
9 Hayner, Unspeakable Truths, 31.
11 Juan E Mendez, “The Human Right to Truth: Lessons Learned from Latin American Truth Telling,” in Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies, ed. Tristan Anne Borer (Notre Dame,Indiana: University of Notre Dame Press, 2006), 116.
12 Mendez, “The Human Right to Truth,” 118.
13 Hayner, Unspeakable Truths, 236.
14 David Tombs, “The Theology of Reconciliation and the Recovery of Memory Project,” in Explorations in Reconciliation: New Directions in Theology, ed. David Tombs and Joseph Liechty (Burlington, Vermont:Ashgate Publishing, 2006), 88.
15 Commission for Historical Clarification, Guatemala: Memory of Silence, Prologue.
16Mendez, “The Human Right to Truth,”127.
17 Commission for Historical Clarification, Guatemala: Memory of Silence, Conclusions I, 1-2.
18 Sanford, Buried Secrets, 65.
19 Hayner, Unspeakable Truths, 29.
20 Richard Wilson, “Violent Truths: The Politics of Memory in Guatemala,” Accord: An International Review of Peace Initiatives 2 (1997), 18.
21 Minow, Between Vengeance and Forgiveness, 129.
22 Wilson, “Violent Truths,” 18-19.
23 U.N. press briefing, Press Conference by Members of Guatemalan Historical Clarificaiton Commission, 1 March 1999.
24 Comisión para el Esclarecimiento Histórico [Commission for Historical Clarification], prologue to Guatemala: Memory of Silence (Guatemala, Guatemala: Comisión para el Esclarecimiento Histórico), n.p.
25 Hayner, Unspeakable Truths, 48.
26 CEH, Guatemala,108.
27 Thomas Quigley, introduction to Juan Gerardi, Guatemala: Never Again!, Recovery of Historical Memory Project (Maryknoll, New York: Orbis Books, 1999), xvi.
28 Wilson, “Violent Truths,” 19.
29 Tombs, Explorations in Reconciliation, 88.
30 R. Scott Appleby, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation (Lanham, Maryland: Rowman and Littlefield, 2000), 42.
31 Ibid., 48.
32 Tombs, Explorations in Reconciliation, 97.
33 Appleby, The Ambivalence of the Sacred, 48.
34 Rosalind Shaw’s “Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone” offers a thoughtful a discussion of the potential aides and hindrances which religion brought to the TRC-SA.
35 Quigley, introduction to Guatemala: Never Again!, xvii.
36 Juan Gerardi, Guatemala, Never Again!, Recovery of Historical Memory Project (Maryknoll, New York: Orbis Books, 1999), xxiii.
37 Wilson, “Violent Truths,” 21.
38 Hayner, Unspeakable Truths, 84.
39 Recovery of Historical Memory Project. Guatemala, Never Again! (Maryknoll, NY: Orbis Books, 1999), 293.
40 Wilson, “Violent Truths,” 21.
41 Appleby, The Ambivalence of the Sacred, 46.
42Sanford, Buried Secrects, 65.
43 REMHI, quoted in Gerardi, Guatemala, 318.
45 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia, Pennsylvania: University Press, 1999), 294.
Garrett FitzGerald recevied his Master of Theological Studies from Harvard Divinity School in May 2010. His interests include the interplay between religion and human rights, religious contributions to communal violence, and the role of religion in post-conflict reconciliation.