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    Beyond Nuremberg: The Historical Significance of the Post-Apartheid Transition in South Africa

    MISTRA’s second Annual Lecture, on the 18th March 2013, was presented by Professor Mahmood Mamdani, Director of the Makerere Institute of Social Research at Makerere University, Kampala, Uganda, and the Herbert Lehman Professor of Government at Columbia University, New York.
    Nuremberg is the template through which we have come to define responsibility for mass violence in the post-Cold War period.  Whether in Rwanda or Sierra Leone, Congo or Sudan, international criminal trials are the preferred response to extreme violence.  The International Criminal Court claims to follow the precedent of Nuremberg.  Its preferred credo is that violence must be criminalized without exception, its perpetrators identified and tried in a court of law.  I want to suggest an alternative way of thinking of mass violence, as political rather than criminal.  Rather than arguing that no one be held responsible for violence, I suggest that we suspend the question of criminal responsibility to arrive at a new political imagination, a new state form, a more inclusive political participation.  The point of shifting accent from the criminal to the political is to create a political space for reform so as to reestablish the sovereignty of a reformed political order and an associated criminal law. 

    To make the point, I contrast Nuremberg with the political negotiations that brought an end to political and juridical apartheid, and that were known as Convention for a Democratic South Africa (CODESA).  The contemporary discourse on human rights is silent about the end of apartheid.  The tendency is to reduce this remarkable political development to biography – an exceptional event tied to an exceptional personality: Nelson Mandela.  Africa’s problem – the violence of civil wars – is said to require a different solution, Nuremberg-type criminal justice, calling for punishment, not political reform.  I propose to extricate CODESA from the language of compromise and pragmatism so as to highlight what is durable and translatable in this experience.  For a start, I will take CODESA as a site from which to reflect on the limitations of Nuremberg.

    Nuremberg and CODESA were responses to two great crimes against humanity.  But each was based on a radically different understanding of violence and justice, crime and punishment.  Whereas Nuremberg shaped a notion of justice as criminal justice, CODESA calls on us to think of justice as primarily political.  Whereas Nuremberg has become the basis of a notion of victims’ justice – as a complement to victors’ justice than a contrast to it – CODESA provides the basis for an alternative notion of justice, which I call survivors’ justice.  To understand the difference between them, we need to appreciate each as a response to particular human wrongs, rather than as abstract declarations of so many human rights.

    To download full text PDF of "Beyond Nuremberg: The Historical Significance of the Post-Apartheid Transition in South Africa" Mamdani.pdfMamdani.pdf

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