Friday, August 15, 2008

When does the statute of limitations for past injustice apply?

Sandy Levinson

David Rivkin and Lee Casey have a piece in today's Wall Street Journal on the Russian incursion against Georgia that includes denunciatory references to Russian's "previous 1803 and 1922 invasions and annexation of Georgia." Without in any way trying to justify these invasions, I do find myself wondering about their willingness to look back to American history with equal scrupulousness. If one should honor grievances that go back 205 years, in the case of the 1803 invasion, then what about American Indian tribes who certainly have grievances equal to those of the Georgians vis-a-vis the United States? And, of course, there was nothing particularly virtuous about the U.S.-initiated war against Mexico in 1847 as part of James Polk's altogether successful expansionist policy. Or I wonder what Rivkin and Casey's response would be to an attempt to declare Puerto Rican independence, given the circumstances of our taking rule of what remains the world's largest colony.

There are, presumably, all sorts of ways to distinguish these examples, not least because the US, unlike the late USSR, has maintained control over all of the territory it seized and certainly would not recognize the legitimacy of any secessionist movements. Still, I do wonder about the consequences of casually invoking such past injustices.


I do not think there is any statute of limitations.

Try asking the Irish nationalists - or for that matter the Scots nationalists who may yet succeed in their desire to obtain complete independence from England.

Interestingly, the guy who wrote Slavery By Another Name, about the use of what were basically slaves in the South between the Civil War and WWII, was a WSJ reporter who discovered this story when he asked himself: I wonder what would happen if we scrutinized US corporations the way we scrutinize German corporations who were in business under the Nazis?

If anyone hasn't read the book, do it. It's really good, and its story really isn't well known (afaik.)

I'll second hilzoy's recommendation. That is one outstanding book.

Examine the native hawaiian ceded lands case.

And then there's the former Yugoslavia, Asia Minor, the Caucasus other than Georgia, the Middle East, Central Asia, Africa, South America, East Asia, South Asia, Australia, New Zealand, in addition to the British Isles, North America, etc. Probably only Antarctica has not had ethnicity issues going back in time (unless we include fauna). History is replete with injustices that tend to be repeated in various forms. There is apparently no statute of limitations as ethnic memories of injustices are passed on to generation after generation as if in their DNA. Consider the recent NYTimes report that in about 20-30 years whites will no longer be in the majority in the U.S. Will memories of past injustices of minorities be revived and create new injustices for the then white minority which will steep and stew in their succeeding generations?

Shag from Brookline wrote:-

"There is apparently no statute of limitations as ethnic memories of injustices are passed on to generation after generation as if in their DNA."

I agree. I was in Iran shortly after the Iran-Iraq war. I was surprised to find that mothers told their children: "If you don't behave, Sikander's soldiers will come and take you away!"

The memory of Alexander in Persia has thus survived from 323 BC to this day.

An excellent post. Every border today is the product of a long accumulation of injustices (on all sides). I have this pet theory that there should be a 30 year statute of limitations for wars. Ongoing injustice and oppression today are grounds for war, but no wars over anything that happened more than a generation ago. To do so would simply inflict new injustices on a new generation and give cause for wars in the future.

The obvious question is how would you enforce such a statute of limitations. You can't, of course. A 30-year statute of limitations will no more stop wars over older grievances than international treaties against chemical weapons stopped Saddam Hussein from using them against the Iranians. But the ban on chemical weapons at least made use something shameful the Iraqis wanted to conceal. If the principle is widely accepted that wars for any event over one generation ago are illegitimate, I am hoping people will at least try to find a more recent justification.

Man is the only Patriot. He sets himself apart in his own country, under his own flag, and sneers at the other nations, and keeps multitudinous uniformed assassins on hand at heavy expense to grab slices of other people's countries, and to keep them from grabbing slices of his. And in the intervals between campaigns he washes the blood off his hands and works for "the universal brotherhood of man"-with his mouth.

from "the lowest animal" .. Mark Twain

If the principle is widely accepted that wars for any event over one generation ago are illegitimate, I am hoping people will at least try to find a more recent justification.

Hm. That might well be a case of be careful what you wish for.

Uh, you may be right there.

Come on, people, you should be smarter than this. It is ridiculous to assert that ethnic disputes are passed down through generations "as if in their DNA."

Saying things like that reflects an ignorant attitude towards the world. It says, first, that the utterer doesn't care to take the time to understand current conflicts--that they would rather just use some easily imposed framework for understanding the some event in an obscure part of the world. "It's not about the economy, it's just centuries old ethnic conflict!"

Secondly, claiming that it's just "ethnic conflict" acts to relieve individuals of their responsibility. Saying that it's "in their DNA" is the green light to nationalists like Milosevic because it means that you aren't going to hold them to any standard. After all, if you've been fighting the Croats for centuries, then it's acceptable to keep fighting them.

But that's really just bullshit. Nationalist movements rely on this sort of obfuscation in order to justify their acts against other people. They want their followers to believe in inevitable conflict and nurse centuries old grievances--grievances that they have probably either made up or stoked simply to gain support from otherwise decent people.

The reality is that people have a lifespan of about 70 years, less in many parts of the world, and someone who is 70 cannot truly be connected to fight that happened hundreds or thousands of years ago. They live today as we do and are responsible for their own interactions with the world.

As for a statute of limitations, we already have one. The UN Charter made the principle of territorial integrity central to the international legal framework. Since the creation of the UN, it is no longer acceptable to invade another country to expand your own or to use war as a method of politics. These are the norms we live under. Our statute of limitations was passed 60 years ago.

Just to point out that, in the specific case of Puerto Rico, I doubt there would be any issue. There have been three plebiscites in PR since 1967, which have all come down in favor of PR's continued quasi-autonomous state. I like to think that if the outcome were different (either statehood or independence) the US Congress would oblige PR's wishes.

As a former imperial power, Britain was not exactly caring about the rights of the indigenous inhabitants of the territories into which we expanded, be it British North America (Canada and the USA), Australia and New Zealand, Africa, the Indian sub-continent, etc. It would be wrong for us to expect unconditional forgiveness for the many historic wrongs we inflicted.

Our descendants in Australia, Canada and New Zealand have gone some considerable way to recognising and apologising for those wrongs and I believe there has been some progress in recognising the rights of First Americans in the USA too.

Equally, the stain of slavery is something where the USA is still coming to terms with the consequences of an evil which we British played a large part in fostering.

European history is littered with examples of frontiers which have not historically been immutable and where there are to this day tensions based on differences of language, religion, etc. Think of the language question in Belgium let alone more serious problems in, say, the Balkans.

As Reece rightly says, "The UN Charter made the principle of territorial integrity central to the international legal framework. Since the creation of the UN, it is no longer acceptable to invade another country to expand your own or to use war as a method of politics.. But the UN Charter did not prevent the USA (and, sadly, the UK) invading Iraq.

I think the principle we derive from the UN Charter is that it is unacceptable for one state to invade another. But the post war consensus has also developed to the point that it is unacceptable for a state within its borders to abuse the rights of its people or of a minority of the people. To a great extent that has been achieved in Europe by the European Convention on Human Rights and the expression given to those rights within EU legislation. Further progress has been made by the Torture Convention and the creation in Europe of a single judicial space.

I think there is also a developing consensus that secession is not the bugbear it once was. the Czech Republic and Slovakia split up without too much fuss - principally because they are now within a single pan-European economy. The artificial post-war Yugoslavia has disintegrated, not without problems, but again hopefully the new states will all in time integrate within a single economy.

As George H suggests, the USA will doubtless allow Puerto Rico to adopt whatever constitutional arrangement it wishes, just as the UK will with Scotland. There will be no need for Australia, Canada or New Zealand to go to war should they wish in the future to adopt Republican Constitutions.

But, suppose that 50 years from now, New Mexico (say) with a minority Anglo and majority Hispanic population wished to give equal status to the Spanish language in all government dealings (as with the French in Canada) would the rest of the Union react ? After all, the (American) songwriter of "My Fair Lady" had Rex Harrison declaim, with some justification "There even are places where English completely disappears, why in America, they haven't used it for years".

And in the regions formerly part of the Soviet Empire, the ethnic and regional complexities are such that they may take some years to sort out - and I do not think the gung-ho simplistic approach of the present Administration is at all helpful.

I think one possible difference is that while the United States/other nations may have recognized Georgia and perhaps established diplomatic channels there before Russia's previous incursions there, no nation recognized a Native American tribe as a sovereign government.

Following from this, it can be argued that while Native Americans may have a general and legitimate claim against the United States government, they do not have a specific claim to arbitrate because the Native American nations were not diplomatically recognized. This makes it much more messy to determine land boundaries of a new sovereign state--unlike Georgia which has recognized, historically established borders.

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