Ron Slye is a Professor at the Seattle University School of Law, served as one of three International Commissioners for the Kenyan Truth, Justice and Reconciliation between 2009-2013, and has also served as an international consultant to the South African Truth and Reconciliation Commission. He is currently writing a book about both commissions. He will join a panel discussion on February 18th addressing the power and limits of current human rights approaches to confronting mass atrocities in Africa, as well as the possibilities of alternative models. DHRC at KIE Project Director Suzanne Katzenstein conducted this interview electronically.
Suzanne Katzenstein: Where did you grow up and what were your early years like?
I mostly grew up in the New York City area – the suburbs, and then in the city itself. I was in a mediocore (actually quite poor) public school through 9th grade. From 10-12th grade I went to a very demanding private school in New York City. The change to a more academically rigorous educational environment was a revelation, as well as humbling (I was working far more than I had in the public school, and unlike my previous experience I did not excel in all of my classes).
SK: How did you become interested in international human rights and transnational justice issues specifically? Did you work on other issues before focusing on this issue?
I think I first became interested in human rights and justice issues more as an academic issue. My eyes were opened in college (my freshman year at Duke; then three years at Columbia). I became engaged with issues of global justice through three contemporary issues at that time (early 1980s): US policy in Central America (and specifically the US support of the contras fighting the Nicaraguan government); the anti-nuclear movement; and apartheid in South Africa, more specifically the divestment movement. I would like to say that I was an activist during those years, but I don’t remember being that active other than following and debating the issues.
After college I went to Cambridge University for an M.Phil. in International Relations. This was primarily a thesis degree, with some supporting course work. I enjoyed writing a thesis, but felt a bit isolated and removed from “the world” in such an academic setting. I decided I wanted to go to law school, as I wanted to explore issues of justice more deeply, as well as acquire a skill that I could use to further those justice issues that up until then I had mostly been studying. During the year between finishing my master’s degree and going to law school I worked on a number of issues, primarily in Harlem: with the East Harlem Committee on the Aged; the Schomburg Center for Research in Black Culture; and the Council on Inter-Racial Books for Children. I also did some work for a number of international relations think tanks.
As I began to become more deeply involved in international human rights issues, I noticed that many people who were passionate about injustices in, for example, South Africa, seemed less engaged with or knowledgeable about what I would then call domestic human rights issues. I thought it was important to engage with those issues for a number of reasons: 1) it would better inform, and challenge, my perspective if I examined more closely those injustices in my own society that I had perhaps not seen or had minimized; and 2) as someone working on these issues from the global north, it would increase my credibility with those in other parts of the world who might reasonably ask why I was fighting injustice in their society but not in my own. It is easier to see injustice in another society; the challenge is to use that same critical eye to look at one’s own society, and to use one’s own blindness to local injustices to better approach similarly situated people in other societies.
Serendipitously, when I arrived at Yale Law School I discovered that the Yale clinical program had just started a clinical class on representing the homeless. I enrolled in that class during my first year, and spent the next two and half years working extensively in Yale’s clinical program, primarily on issues of homelessness, housing, and economic development. I joined with a group of professors, students, and community actors to start a new transactional clinical class in which we had law, business, public health, and architecture students working on issues of housing and economic development. I taught that course for two years after I was graduated from law school, then went to New York to work in a small private public interest law firm that specialized in environmental law and real estate, but also did some international human rights work. After close to five years primarily focused on issues of homelessness and housing in the US, I wanted to move back to my original passion of international justice issues. At the same time a relatively new human rights program at Yale was looking to hire an associate director. I applied for and was hired as an associate director working with the new director of that program, Harold Koh.
I spent the next three years working directly on international human rights issues: academically through organizing conferences and other related academic activities; and practically through assisting with the international human rights clinic at Yale and other advocacy projects. This was the mid-1990s, and much attention was focused on Argentina and Chile and the truth commissions and transitional justice processes engaged in by both of those countries. In fact one of the legal advisors to the Argentinean president on prosecutions and amnesties, Carlos Nino, was a visitor at Yale during this time. I thus became interested in transitional justice issues, and after three years at Yale I decided to move to South Africa to get first-hand experience from a country undergoing such a transition. That experience with the South African Truth and Reconciliation Commission marked the start of what has become a major focus of my teaching, scholarship, and consulting.
SK: What did your work for the Kenyan Truth, Justice and Reconciliation Commission and the South African Truth and Reconciliation Commissions entail?
I was a consultant to the research department of the South African Truth and Reconciliation Commission. In that capacity I provided advice on issues related to international human rights law and international law generally. Two of the debates in which I provided some advice concerned 1) whether acts of violence committed by the state and similar acts committed by the liberation movements should be treated the same given that one was furthering a crime against humanity and the other was fighting a crime against humanity; and 2) whether apartheid qualified as a crime against humanity. The commission concluded that 1) they would adopt the international law position separating the justice of a cause (the ius ad bellum) with the means by which a cause was pursued (the ius in bello); and 2) that apartheid was in fact a crime against humanity. On the latter, while it seemed obvious to me (and most people outside of South Africa) at the time that apartheid clearly met the criteria to qualify as a crime against humanity, this was a serious debate both within South Africa generally and within the commission itself. I also drafted and edited some of the sections of the TRC’s final report, and provided some information and advice on how to approach and talk about their somewhat controversial amnesty process.
In Kenya I was one of nine commissioners on the Kenyan Truth Justice and Reconciliation Commission. I was thus one of the principals who had responsibility for and oversaw much of the work of the commission. In the case of South Africa I had some insight into some of the issues that were being addressed internally – and in many of those cases I had a very limited view of what was being discussed. In Kenya I was in the middle of everything. For much of our operational life I chaired our Human Rights Violations committee, which set policy and oversaw much of the core work of our mandate; as well as chairing our Administration and Finance Committee. As a commissioner I also participated in many of our public and in camera hearings as a listener and questioner.
SK: What were the most rewarding and challenging parts of serving on those commissions? For instance, what led you to announce your resignation from the Kenyan Commission and then to decide to stay on? Was that a difficult decision?
There were many rewarding moments in both cases. In South Africa there was an enormous amount of optimism, with Archbishop Tutu at the Commission and Nelson Mandela as President. That optimism was palpable within the commission, though there were also serious disagreements (about whether apartheid was a crime against humanity) and the influence of apartheid and race on the composition and operation of the commission.
In Kenya, some of the more rewarding moments occurred during the year that we traveled throughout the country holding public hearings. The gratitude of those who were able to testify – particularly those in the more remote parts of the country – was both rewarding and humbling.
One of the most challenging parts of the Kenyan commission was the conflict of interests posed by our chair – he was linked to three human rights violations we were to investigate, including a political assassination, and the worst massacre in the history of Kenya (the Wagalla Massacre of February 1984 in which we estimate about 1000 were killed and, from what we can tell, every woman and girl was raped). For the first year of our existence it was not clear if he was linked to the massacre, though we were aware of allegations and weak circumstantial evidence placing him at an important security committee meeting right before the massacre. He was later to admit that he remembered that he had been present at that meeting back in 1984, and that he could now with this memory assure us that there was no discussion of the pending security operation at that meeting held over 25 years ago. Prior to his admitting that he was present at that meeting, we had petitioned the chief justice to establish a tribunal to investigate our chair and advise whether he should continue to serve on the commission given the allegations against him. Our chair in fact had insisted on this process. Six months after we submitted the petition the chief justice had yet to respond. At the same time, in October 2010, our chair revealed publicly that he had been present at the security committee meeting in 1984 just prior to the Wagalla Massacre. At that point I announced that I would be resigning on November 1. Given our chair’s revelations, and the prospect that no process would be undertaken to investigate the allegations raised against him, the decision to resign was an easy one.
At the same time as I announced my intention to resign, other pressures were brought to bear, leading the chief justice finally to establish a tribunal in response to our petition. With the creation of the tribunal the chair announced that he would “step aside” from the commission while the tribunal proceeded with its work. With the creation of the tribunal and the chair’s announcement that he would step aside, I announced that I would not be resigning because of the changed circumstances. Our chair was away from the commission for about fourteen months, which was the year in which we did most of our work, including hold all of our regional public hearings. There is far more to this story, including how our chair successfully terminated the work of the tribunal; how he came back to the office and threatened our staff to give him access to documents related to investigations of the matters in which he was linked; how we went to court to enjoin him from returning to the office and threatening our staff, a lawsuit that failed and resulted in judgments against each of us in our personal capacities; and how we ultimately recommended in our final report that he be investigated and, if the evidence warranted, prosecuted – the only example of a truth commission making such a recommendation against one of its own members, much less its chair. Completely separate from this was the intervention by President Kenyatta to remove references to members of his family in our report concerning their illegal land acquisitions; an intervention that included bribes and threats, and that ultimately resulted in the writing of a dissent by me and the other two international commissioners.
SK: In what ways did serving on the Kenyan and South African Commissions change or reaffirm your views about transitional justice processes in those contexts, or more generally, in Africa and beyond?
I think the most important insight – which I knew intellectually but did not fully appreciate – was how political these processes are. In addition, I have come to conclude that the political nature of these processes is not necessarily a bad thing, though of course it can be (i.e. the intervention of the president to change our report). I think the relative success of the South African commission had as much to do with broader political forces (Mandela’s presidency, and other processes undertaken in South Africa at the same time), and that the success of the Kenyan commission was limited by the political forces in the government that opposed much of the work of the commission. Finally, I think governments have increasingly agreed to establish a truth commission as though they were checking a box to appear to be dealing with an unsavory past. I think in some cases such a commission can be extremely valuable; but I also think they should not be undertaken unless there is strong political support among various constituencies within the country in question.
SK: You are in the relatively rare position of having worked on transitional justice issues both as a practitioner and as a scholar. How do these compare? What is your view on the academic-practitioner divide in your area of work?
Working in this field as a practitioner has been humbling. It has made me appreciate more fully the achievements of some of these processes that, from a distance, often look compromised and incomplete. While they often are compromised and incomplete, my work in the field, and in particular with these two commissions, has led me to be more nuanced in my academic approach and judgement about such processes. I do think as a general matter academics should try their hand at some of the processes that they study and critique. Such involvement may benefit those processes, as an academic may bring new or innovative insights, but will also benefit their academic work by lifting the veil on the real world dynamics that preclude certain outcomes and lead to others.
SK: What advice do you have for students who want to work on transnational justice issues?
First, master the field in an academic sense. Understand the arguments and scholarship concerning transnational justice (or international human rights law, or international criminal law). More broadly, master and understand the law generally. A good human rights lawyer needs to first be a good lawyer. Second, get out into the field, whether it is in a country facing transitional justice issues, or domestically engaging with a human rights issue. Such experience will give you a better sense of how and where you want to do this work, and of course will begin the process of creating a network that will inevitably benefit you in the future.