Policy-Oriented Jurisprudence and Human Rights Abuses In Internal Conflict: Toward A World Public Order of Human Dignity
Studies in Transnational Legal Policy
Real problems, like the problem posed, are not amenable to simple solutions. Human rights abuses in internal conflicts usually have roots deep in history and the collective psyche of the individuals and groups involved. To prevent them, the certain prospect of a swift punitive reaction on the international plane might have a useful deterrent effect. But if a violent conflict or genocide is in progress, the expectation of punishment may not by itself be likely to end the conflict. Ironically, it may, prolong the plight of the persecuted, since persecutors may conclude that they have no alternative but to fight to the bitter end to avoid the consequences of their misdeeds. To deal with major incidents of unauthorized coercion and violence, an amnesty for the violators might contribute to a lessening of the toll in blood of a particular ethnic or religious rage. But that, again, might be an incomplete reaction, since the victims of the atrocities committed will not find solace, satisfaction or rehabilitation. Nor will persons who may be pathologically violent be removed from circulation. Where society remains unreconciled, jarred, conflicted- in a state of continual animosity between warring families, clans or ethnic, religious or social groups--"cold" war might heat up and erupt at any time in the future even more violently than before. Thus, truth commissions have been established in various contexts at least to shine the light of searching inquiry on situations in which truth has always been the first casualty. Still, such agencies alone might not suffice to bring about social reconciliation and restoration. Neither might bodies set up to mete out justice in the form of civil compensation. International criminal courts may send a message to people elsewhere contemplating massive violations, but they may do nothing to reconstruct the civil society that has been disrupted. The problem posed for this symposium engages a range of goals for the international community, including restoring minimum order where it has been breached, reducing the expectation of violence, reestablishing practices of a productive civil society, eliminating or mitigating the factors that could, in varying combination, reignite particular conflicts, and deterring the occurrence of comparable offending behavior in the society at issue and in others that are watching. Seen in this comprehensive, problem-oriented way, the subject matter discussed includes quite a variety of factual contexts and decision variables. Given the space constraints of this symposium, a thorough treatment of the range of circumstances involving human rights abuses in internal conflict is not feasible, even though our approach is well suited for such a study. In fact, our jurisprudence has yielded a variety of detailed case studies with specific recommendations. While we could have delved into an exacting analysis of one particular context of atrocities, we would have been forced to leave out other important and possibly differing factual and decision contexts. The Holocaust, for example, presents factors and variables at variance from those relevant to Pinochet's Chile, Rwanda, Cambodia or Kosovo. Thus, to be true to the inclusive, nonreductionist goals of our theory of and about law, we will provide the reader with a set of intellectual tools that can be used analytically and prescriptively to deal with any circumstance involving abuses of human rights. We will highlight, and illustrate with examples, the topics and steps of inquiry suggested by our approach as relevant to the symposium and will leave detailed consideration of the multiplicity of factors in any given context to a more expansive forum.
Siegfried Wiessner & Andrew R. Willard, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 36 Stud. Transnat'l LEGAL POL'y 47 (2004).