NEITHER SETTER NOR NATIVE by Mahmood Mamdani

Excerpts from Neither Settler nor Native: The Making and Unmaking of Permanent Minorities
by Mahmood Mamdani
Belknap Press, 2020

The Human Rights Movement and the End of Legal and Political Apartheid (pp. 192-95)

The post-apartheid transition serves as a critique of Nuremberg and the contemporary human rights movement. It offers and alternative logic for societies in the throes of the civil war and mass violence.

The question posed at Nuremberg was not “why did it happen?” but “who did it?” When the challenge is to discern crime and apply punishment, the state and the constituencies it serves winds up absolved. State orders are shelved, for they cannot release officials from their individual responsibility. Above all, this responsibility is said to be ethical, not political—the fault of persons rather than political systems. Inasmuch as it is individualizes our understanding of mass violence and responsibility for it, Nuremberg should be considered a founding moment of a neoliberal understanding of mass violence. The TRC continued what Nuremberg started. State orders were, in this care, explicitly omitted as matters of interest. To be individually culpable, one had to do even worse than state orders allowed.

Victims’ justice after Nuremberg took a very particular form: state creation. Specifically, the creation of homogenous ethnic states in Easter Europe and Israel. This followed from the Allies’ nationalist political logic: winners and losers, victims and perpetrators, could not live in a single state. They had to be physically separated into different political communities. So the Allies redrew boundaries and transferred millions across borders. Perpetrators would remain in Germany and victims would depart for another homeland. The ultimate expression of this logic was the creation of Israel as a separate state for survivors of the Holocaust.

The contemporary human rights movement is permeated with this logic. It is now axiomatic that victim’s justice is the only morally acceptable and politically viable response to mass violence. Nuremberg is the model for the International Criminal Court, held up as the tribunal authorized to judge every incident of mass violence, every crime against humanity. Human rights groups have turned the Nuremberg method into a universal one, formalized into a succession of rote, clearly defined steps: catalog atrocities, identify victims and perpetrators, name and shame the perpetrators, and demand that they be held criminally accountable. The field reports of Human Rights Watch and organizations inspired by it contain perhaps a two-page pro-forma introduction to the history and context of human rights abuses cataloged; the focus is on the catalog, the naming and shaming, the demand for criminalization. Indeed, history is a distraction from establishing the human rights method as the solution to all political violence.

Yet history makes clear that Nuremberg is precisely the wrong model for the contemporary post-conflict scenario—to say nothing of Nuremberg’s failure in its own time to instantiate a rule-of-law-based global order. The logic of Nuremberg flowed from the context of interstate war. One side emerged victorious, and the losers were put on trial. This framework ill fits the context of the civil war. Victims and perpetrators in civil wars often trade places in ongoing cycles of violence. No one is wholly innocent or guilty. Each side has a narrative of victimhood that demonizes the other and excludes it from participation in the new political order. When applied to civil wars, the logic of Nuremberg drives the parties away from a renegotiated union and toward separation. The enemies remain enemies, resulting in permanent division into separate political communities. The South African transition defied this logic, as it should have. Apartheid was not a war between states; it was a civil war. The foundation of the response was not criminal trials but rather political negotiations. These negotiations provide raw material for a critique of the universal claims of the human rights paradigm.

The rush for courtroom solutions is the result of a double failure: analytical and political. Analytically, it confuses political violence with criminal violence. Politically, the focus on perpetrators comes at the expense of attention to the issues that drove the violence. The outcome is likely to be more violence rather than less. Why so? Because political violence requires more than just perpetrators, it needs supporters. That constituency is mobilized and maintained around the issues inspiring violence, not around the persons of the perpetrators. Reducing political violence to criminal violence leaves the issues unaddressed and the supporters of the violence unchastened. The TRC, the dimension of the post-apartheid transition most reminiscent of Nuremberg and itself celebrates as a touchstone of the human rights movement, exemplifies this double failure. When violence is criminalized, its nonperpetrator beneficiaries—the political constituency—get off scot free. The impact on this renegotiated union is palpable. Large percentages of white South Africans do not see the debt they owe, for they believe that they were not at fault. It is a situation little different from post-war Europe, where person-by-person denazification meant that every sin has been atoned and the homogenous German state could move on.

The solution is to displace the narrative of victim and perpetrator with that of the survivor. A survivor narrative is issue-driven. Atrocities no longer appear as so may stand-alone acts but as events comprising a history of politically motivated violence. What is more, to acknowledge that victim and perpetrator occupy the same place on the other side of the violence—or that they may have traded places—is to accept that neither can be marked as a permanent identity. The South African experience proves political identities are historical, not essential to those identified.

The logic of South African transition was the opposite of that of victor’s and victims’ justice, which are two sides of the same coin. The post-apartheid political system was informed by the assumption that yesterday’s victims and yesterdays perpetrators have no choice but to live in the same state and that they have the capacity to do so because their political identities can change—in particular, that they have the capacity to forge the new identity of the survivor. In this sense, a survivor is not simply the victim of the catastrophe who did not die. A survivor is anyone who experienced the catastrophe. All must be born again, politically.

This is an important legacy of post-apartheid South Africa: the argument that political rebirth is possible. South Africa’s political rebirth has been partial; racial identity has been depoliticized, even as tribal identity has remained an obstacle to political equality. But even partial rebirth is something. It reflects a willingness to reimagine the political. South Africa challenges us to think of political violence—civil war in particular—as potentially foundational to the creation of an inclusive political order. The response to political violence in South Africa was not separation—it was not ethnic cleansing, as in North America and Europe. It was a reframing of political identity so that formerly opposed identities could love together in a new political community. This is the heart of decolonizing the political. The point is not to avenge the dead but to give the living a second chance.