Favourite Readings 2021 – Narratives in International Human Rights Law or seeing the world through victims’ eyes

Richard Wagemese, Indian Horse (Douglas & McIntyre, 2012)

Dilek Kurban, Limits of Supranational Justice: The European Court of Human Rights and Turkey’s Kurdish Conflict (CUP, 2020)

As in previous years, EJIL’s Review section, has invited EJIL board members and editors to offer short reflections on their favourite books of the year. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Anne van Aaken. You can read all the posts in this series here. 

This recommendation is a variations on a theme – in 2014, I recommended a book which narrated history from the view of the Muslim world: Destiny Disrupted: A History of the World Through Islamic Eyes by Tamim Ansary (2010) in order to better understand the frames and narrative of others. This time and as a follow up, I would like to recommend two books which narrate human rights violations through making the victims alive, visible and putting the violations in context: cultural, moral, and concerning their identity. In a way, it is a plea for the ‘law and literature’ approach in international human rights law.

The first one is a novel which was by serendipity given to me, just after I had read the news in May this year of the discovery of mass graves of children in Canada at the surroundings of Catholic schools for indigenous people: Richard Wagemese’s Indian Horse (2012). I was shocked to read the news but I did not really understand what had happened just reading the news. Starting in the 19th century, Canada had a system of residential schools, mostly operated by churches, that Indigenous children were forced to attend, being taken from their families. The last school closed only in in the late 1990s. Originally, the government, often in partnership with the country’s major religious bodies, sought to ‘civilize’, Christianize, and, ultimately, assimilate Aboriginal children. Starting in 1986, Canadian churches began to issue apologies for attempting to impose European culture and values on Aboriginal people. The Pope has hitherto not apologized. The Canadian government has apologized to former students. The cases were eventually resolved in the Indian Residential Schools Settlement Agreement, the largest class-action settlement in Canadian history, which was reached in 2006 and came into effect in 2007. The government also established a Truth and Reconciliation Commission to document what had happened and to reconcile Canada’s native and nonnative peoples. It issued its report in 2015.

The news made me open the novel and I could not let it go until the very end (to the chagrin of my family in the summer vacation) and it haunted me during the nights. Only reading the book, not the documents, made me feel that I could half-way understand what had happened in Canada. 

The other book is an academic book on systemic human rights violations in the Kurdish part of Turkey and the (im)possibility of the European Court of Human Rights to remedy the situation: Dilek Kurban, Limits of Supranational Justice: The European Court of Human Rights and Turkey’s Kurdish Conflict(CUP 2020). The book won the special mention of I-CON-S book award 2021 for good reasons – it is an excellent piece of scholarship but it is also special in that it is highly engaged with the situation. And it makes the victims visible.

It starts with the description of a mother leaving the house to go shopping in a curfew imposed by the government, being a bit too late coming home and shot before her front door. Her family, trying to take her in, were also shot at so they had to watch her die without being able to help, accompanying her to her death only by loudly speaking to her. It is a highly sensitive book illuminating not only to the limits of international courts, but also to the limits of legal mobilization theory. It is so captivating because it also engages in the context of the situation and visualizes the suffering.

Why do I take those two books together? Because, as different as they are – a novel and an academic book – both make the victims visible to an extraordinary extent. They narrate the happenings from a victim’s perspective. Both books made me think about how those human rights violations relate to law and judicial proceedings – and the objectivity of the law and adjudication. In any case, notwithstanding the legal philosophical discussion on the (im)possibility of different forms of objectivity, adjudication of human rights violations tend to be individualized. How can law and legal process and abstract human rights, adjudicated in a court, ever capture the cruelty of systemic violations? How does law relate to the facts, apart from trying to see them “objectively” whereas the suffering is always subjective?

In Canada, the suffering was not only physical, mental and sexual abuse, sometimes presumably leading to suicide of (very) young children, but it encompassed the attempted elimination of indigenous culture, identity, language, and way of life, the fear in the indigenous population of losing their children to those schools (often not knowing their whereabouts), coupled with a fear of the (new) Christian god (if they themselves were lucky enough to get out alive but still having been instilled with Christianity) and last but not least – an instillment of culpability in the victims. How can law, focused on individual rights, deal with those happenings destroying not only people and their cultures, but, as in Canada and elsewhere, also their diverse knowledge systems, committing ‘epistemicide’ and ‘identicide’ or ‘cultural genocide’ (the destruction of those structures and practices that allow the group to continue as a group) as the Canadian Truth and Reconciliation Commission called the events around the schools in Canada in its Report from 2015.

Not law and its procedures alone, you will say, can mitigate. But memorials, museums, and narratives are needed. Quite so, but the fundamental tension remains. Law is meant to be ‘objective’, the court proceedings (if there are any) and the administrators of justice – the judges – are supposed to adjudicate objectively. But should they? And how far? What difference will it make if the judges read the novel in the Canadian case before adjudicating? This discussion has been waged for a long time, inter alia between Judge Richard Posner and proponents of the law and literature movement. I have no answer but hopefully have instead given you some food for thought for the holidays.