Is the Legalization of Human Rights Really the Problem? Genocide in the Guatemalan Historical Clarification Commission

Abstract

At the same time as the globalization of human rights increased in pace and scope after the Cold War, there has been a growing sense of the shortcomings of human rights for addressing legacies of mass atrocities. Critics have noted how human rights commissions have often failed to document past violence adequately, and how establishing fundamental human rights in new constitutions has done little to address the pressing socio-economic needs of the population. In analyzing why this is often the case, some observers have pointed to the legal character of human rights as the main source of their inadequacy. The legalization of human rights, understood as the positivization of norms in international conventions and tribunals, national constitutions and domestic courts, exacerbates the tendency of human rights to overlook the wider political, social and cultural contexts that generate mass violations. This seems to be one of the most severe criticisms of human rights; they operate without sufficient awareness and understanding of the macro-historical context (e.g. apartheid, the Cold War, economic inequality) in which mass violations occur. Since they hold no theory of why violations happen in the first place, human rights institutions are powerless to prevent them in the future. In this chapter, I argue that the problem is not the legalizing of human rights, in and of itself. The application of legal norms in historical investigation can be beneficial, depending on the kind of legal categories being employed. In the case of the Guatemalan Historical Clarification Commission, the rigorous legalization of norms on genocide in the last 10 years has led to some favorable outcomes, including obliging human rights institutions to develop an explanation for why violence occurs in particular societies. So it is not ‘legalization’ that matters, but how that legalization unfolds. Some aspects of the legalization of human rights are indeed detrimental to a full account of how and why human rights violations occurred and how victims experienced these abuses. The creation of new human rights institutions employing the category of genocide has also led to an in-depth exploration of the collective and systematic nature of violence, and the shared intentionality of actors. As in the case of Guatemala, the category of genocide can lead to a fuller and more contextual account which draws in questions of racism, material inequalities and US foreign policy. If this argument is correct, then it might be more constructive for scholarly commentators to dedicate more energy to influencing and channeling the process of legalization in a direction which encompasses both the legal imperatives and the moral dimensions of human rights.