A Discussion Paper by Dr. Mutulu Shakur
Dated: May 5th, 2010
There is a need for a Truth and Reconciliation Commission in the U.S. to resolve the history of slavery, oppression, racism, segregation, lynching and the issues of political prisoners of the Civil Rights Black Liberation Struggle who fought against these gross human rights abuses.The Truth and Reconciliation Commission was also a process setup in South Africa to redress the gross violations of human rights by the apartheid regime. It was a tool to assist a peaceful transition to a democratic society by public acknowledgement of the gross human rights abuses by the government and its agents.
It allows the victim’s voices to be heard and the perpetrators to confess their crimes against humanity in an application for amnesty, as well as amnesty for political prisoners.
The idea of crimes against humanity comes under International law and the Geneva Convention adopted by the world at the U.N. the liability of such violations lies on nations as well as individuals who fight against the violators of human rights.
The idea is premised on the fact, to truly have a democratic society transitioning from one where human rights violations and crimes against humanity were grave and extensive, there has to be a process for reconciliation, acknowledgment of abuses, documentation of abuses, accountability, reparation and an effort to establish the facts.
Encompassing this process is the idea of amnesty to “solidify” the democratic society. As one considers these principles and ideas of the truth and reconciliation commission and considers the history of race relations and the gross human rights abuses against Blacks and particularly Black political prisoners for opposing the “neo-apartheid” in America. It must be said that the democratic process will never truly work in America without such a commission.
The idea that 400 years of gross and shocking human rights abuses against blacks in America, especially in the civil rights and black liberation struggle era of the 1950’s through the 1980’s and the mass killings and imprisonment during the black liberation struggle particularly through the infamous Co-intel-pro by the CIA and FBI cannot be overlooked or omitted as crimes against humanity under International Law and Geneva conventions and to do so is shortsighted and anti-democratic.
The same events happened in South Africa under the apartheid regime, the ANC (African National Congress) and other Freedom fighters organizations against apartheid were targeted, killed, harassed, terrorized and imprisoned for their opposition to the treatment and laws against Blacks.
But as the facts of history prove the ANC and other freedom fighters against apartheid were the pursuers of human rights and human dignity while the apartheid government was the violator of these rights and therefore violators of International law and the Geneva Conventions.
Furthermore, it must be understood that it doesn’t have to be a complicit act by the whole government but agents of the government can fulfill the obligation for culpability of crimes against humanity.
Such is the story in the US and the agents who carried out these agendas, FBI, CIA through various programs most notably the co-intel-pro by FBI director J. Edgar Hoover, with explicit intent to target, neutralize, harass, kill, destroy and imprison Black liberation movement participants who opposed the violations of human rights against Blacks in the US. Many of these victims, political prisoners, are still imprisoned today.
The argument is they should be granted amnesty under the International standards as victims of crimes against humanity committed by the US government and various agents thereof. The facts and histories are well documented that can leave no doubt as to these political prisoners being victims of state repression, prosecution, and suppression for confronting the US government and its agents for the crimes they were covertly and overtly committing against blacks in the US.
The legal quagmire of the New African/Black liberation struggle by political prisoners committees have not yet realized a process that encompasses a class or found an objective mechanism that allows for a legal review based on standard universal acceptance of political offenses.
In various court cases, our support committees, political organizations, and legal advocates have been forces to fight each legal battle on a case by case basis, while targeted individuals could not forward a process that embraces a national resolution for all political prisoners and POW’s.
In some instances the political prisoners organizations have embraced the US legal system tactically while others not so much. Most organizations, committees, and support groups acknowledge that an internal conflict exists, important regarding developing a methodology and execution of a national resolution for a Truth and Reconciliation process, the jury is still out, its desired application.
Although I have not as of yet encountered a clear and articulate opposition from the various political prisoners committees or any resistance for a Truth and Reconciliation commission (TRC) as a method to win freedom for political prisoners in the US of the co-intel-pro era. An acceptance has been muted indicated by lack of a process that realizes its application.
The indications are that the thinking is that the South African TRC with all its benefits and flaws conflicts with US political prisoners organizations ideologies and principle positions regarding the outcome of a such a TRC process that is being debated in America. We should wait and see if it fails on analysis and application in this reality within the political prisoner and prisoner of war front.
My analysis is that the US political prisoners committee see the South African-TRC as a “brand” where one size fits all, which is an erroneous perspective based on the objective reality of the wide application of TRC internationally to resolve internal conflict. The Black/New Africans call for a process to politicize the legal obstacle within the context of international standards for amnesty, freedom, and relief for our PP’s and POW’s predate the South African brand of TRC therefore its application as to the New African nation as a political process should be viewed in this new light.
Clearly the US state department its domestic intelligence apparatus and the political parties have work to limit the church committee report to an internal domestic perspective while strategically various members of the PP’s and POW class have reached relevant political solutions within the US legal context that has gained relief for some while politically pacifying the development of a process for the class of New African PP’s and POW that could expose the nature and breathe of the conflict providing relief.
The New African/black PP and POW classes have been denied any relevant prisoner class relief politically.
I don’t consider the freedom of Geronimo Pratt, Angela Davis, Dhoruba Moore, Huey B. Newton and many of the paroled, exonerated freedom fighters as a representation of a process for our class within a historical context, that objective still needs to be realized in a true post internal conflict process as compared to standards set in other post internal conflict resolutions it falls far short.
The review of applying the truth and reconciliation commission to resolve internal conflict of nation states and the various methodology principles and justification is in my opinion an important analysis to resolving the suffering, isolation, and in some cases abandonment of our political prisoners.
The conflict that existed between the United States and the Black/New African liberation struggle particularly the FBI Cointelpro low intensity counterinsurgency against civil rights, Black liberation struggle represented a specific era.
The US and South African historical racial policy parallel each other for most of the 19th and 20th century. The historical development and distinction of the racial policy is very important for study and analysis particularly as we evaluate the process of resolution.
The institution of a Truth and Reconciliation commission encouraged by International parties governments and corporations was a method of an “alternative dispute mechanism” to resolve the intensity of war and the casualties on both sides. The nature of apartheid and the resistance to apartheid did not present a perfect pathway to military and political settlement in south Africa the acts committed by all parties in the conflict repression and war also presented our comrades in the throngs of struggle believing in a revolutionary vision that could exist post apartheid and they were also relentless in their resistance.
Conversely the military political protectors of apartheid were repressive by the use of extra judicial counter intelligence low intensity warfare tactics to extend the white minority domination over the Black majority.
While the war was brutal and in may cases it shocked the conscience by extent of gross violations of human rights and the International norm. The international body never saw the need to charge the South African Apartheid regime with attempted genocide or to bring the regime up on war crimes (clearly this discussion paper can not cover the breadth of the International Community and security council of the UN posture but it should be reviewed and analyzed.)
Facing the dilemma the negotiators searched for a process internally that could resolve the contentions that existed between warring elements for the post apartheid resolution in a negotiated settlement.
One that would allow the various sides to save face and provides relief to their imprisoned comrades giving comfort to the victims and allowing the parties of the conflict to move forward in establishing a new post-apartheid existence in South Africa.
So in order to come to a negotiated peace, an alternative dispute mechanism was reached that could develop a method to establish politically motivated action within some form of judicial review for resolution requiring both sides to accept as well as distinguish the deviant criminal actions from an amnesty pardon for political offenses.
In the end the solution was the realization of the South African Truth and Reconciliation Commission. So this process and definition, which we’ll explore more completely was applied as the TRC to our history.
The historical struggle to have the United States to admit its human rights violations during its low-intensity warfare-counterinsurgency program general accepted, as the Co-intel-pro articulated under the FBI director J. Edgar Hoover has not yet identified a black prisoner class that acted in response to that era of political repression. As political prisoners and prisoners of war we are duly entitled to amnesty under some form or a process that acknowledges the bilateral process of an alternative dispute mechanism where there are no winners. For too many years the process for freedom and recognition of our political freedom fighters has been buried in a legal process that has been based on distinguishing untangling the criminal act from political intent with no allowance for political motivation to be considered in judicial proceedings.
The TRC that addresses our specific reality legally and politically must be based on the same foundations of an alternative dispute mechanism (an alternative to a judicial process, a political process offering something to both parties) that would require that the left and right of our movement to come to a political conclusion also that the right should be willing to acknowledge that New African/black political prisoners do exist and they waged legitimate resistance to oppression, in the civil rights Black liberation era and is deserving of their support.
It’s important to mention when Ambassador Andrew Young publicly proclaimed in 1979 before an International audience that there were hundreds of political prisoners in America. He expended all of his political capital even President Jimmy Carter could not save his job. Cynthia McKinney suffered a similar defeat when she held the Co-intel-pro hearings.
The political capital necessary to support our specific style of TRC is not dissimilar to South African model, which also confronted specific political challenge on the left and right of the anti-imperialist/apartheid movement.
Our movement must accept our sojourn of struggle consisted of both legal and “illegal” tactics (but legitimate under international law). The context of the US legal system is designed to ignore on the one hand the oppression and on the other the right of those to resist that oppression irrespective of the findings of the Church Committee or revelation of Co-intel-pro without a process to resolve the fundamental that addresses the freedom of our PP’s or POW or that memorializes the history that provides a relief for the victims of the quasi-apartheid system in the U.S.
Brother Mumia Abu-Jamal presents a crisis in our movement to prevent his execution. It’s at a critical stage. There have been heroic efforts on the International support level as well as within the US court system; he is in need of a process because none of the above has gained any relief.
As of the last 3 decades no Black/New African freedom fighters has received amnesty politically from executive branch or judicially on a state level. The Mississippi Rider received exoneration after 50 years, I’m not sure if it was from the state of Mississippi or the government of the United States. I do think many of our efforts on the International Tribunal front did create pressure that gained the freedom of Puerto Rican PP’s and POW and white anti-imperialists in the United States. This could be considered the Clinton era.
The era that represented the civil rights/Black New African liberation struggle is now becoming a fading memory. It’s our responsibility to not let that happen.
From the 1960’s we followed the Malcolm X doctrine, we were rightfully inclined to pursuing a posture that looked toward an International body to resolve the internal contradictions with the United States.
Pre-1990’s this rationale was the correct perspective because International NGO’s, non-aligned nations and human rights advocates did in fact impact various internal conflicts around the world.
The US posture of sanctions and embargoes has intimidated other nations from confronting US support for fascist regimes as well as holding racist regimes against international intervention. The application of International law against violations of human rights was tread upon cautiously by nations and NGO’s that did not want to incur the wrath of US foreign policy.
In that era Malcolm X was right, as long as the nonaligned nations maintained a principle position in the various world body there was a support mechanism for our struggle in presenting the International body with the human rights violations of the US government but when non aligned nations dissolved and unity unraveled around the world our struggle in the US felt the consequences tremendously because there was no International body to support our struggle, therefore we should have evolved a new tactic and analysis of our plight and put forward a new or parallel strategy.
As I noted before the 1979 admission bay ambassador Andrew Young that there existed hundreds of political prisoners in the US resulted in his termination at the post of UN representative to the United Nations.
In the convening years most black elected officials took a public and private position as to our existence. It was not unusual for some state representative’s to give support to celebrated cases of PP’s and POW or show for PP’s support committees but its very rare did they petitioned the government or introduced legislation that could create a process to free PP’s and POW’s.
The exceptions are important to mention: In September 14, 2000 Congresswoman Cynthia McKinney held a forum before the congressional black caucus forcing them to take apposition on the unfinished story of political prisoners and victims of Co-intel-pro in Washington, DC with congressman John Conyers leadership.
November 27, 2000 at the request of the honorable Brother Sonny Abudidika Carson congressman Charles Rangel requested directly to President William J. Clinton for him to pardon black political prisoners of which he listed 11 black/new African PP’s and POW with a copy to John Podesta.
The offices of the Clinton White house acknowledged receipt and promised to give it a meaningful consideration. The reply came on December 21, 2000 from Kay Castevens, deputy assistant to President Clinton.
There was an attempt by the Jericho committee, attorney Bob Boyle and attorney Saffiyah Elijah to do the same within a different context.
Before leaving office in 2000, President Clinton freed Puerto Rican Freedom fighters and three white anti-imperialist comrades, a great victory indeed.
In order to reasonable move toward an process to free our PP’s and POW we must solicit on a local and national level black politicians that will be willing to present the narrative that outlines a process which demands our freedom – not slogans.
Councilman Charles Barron 2002 campaign of amnesty for NY black political prisoners established a political narrative that did enlist allies from within our ranks that have been elected to public offices.
The pardon approach does speak to an alternative instead of purely relying on the benevolence of this legal process to resolve this political prisoner paradigm.
The question: a Truth remains, in light of our efforts to secure pardon and/or amnesty or legal acknowledgement, is have we failed? We must now make a critical analysis of which process is possible, where can we draw a meaningful parallel example that will work? And develop it to meet our unique conditions.
I believe the application of TRC “brand” with an alternative dispute mechanism process that address the complexity of the para-military issues of the New African/Black Paradigm is doable. The question: Is there a possibility of amnesty through a TRC that highlights a progressive process made in light of the many sacrifices of our people and freedom fighters, a legitimate transition that averts continued political/military conflict persisting during the black liberation struggle era? Or as in Northern Ireland, will it signal an end of the past stage of the “troubles” while the political process is taking form?
Amnesty is not punishment for wrongs, either to individual or a society. It is a political remedy at a national level at a certain stage of an internal conflict in a nation state. It’s a political remedy at a national level to begin reconciliation and rebuilding a divided society through a TRC process.
If we accept this process it will still leave outstanding political moral and principle issues the question of reparations for the violations of human rights, Jim Crow segregation, quasi-apartheid, Coin-tel-pro, low-intensity warfare. All of the above violations set the stage that establishes resistance from our Freedom Fighters, when civil disobedience was confronted with state violations.
The above rational and form of resistance was envisioned when the United Nations codified the additional protocol I and II to the Geneva Convention of 1977. President Jimmy Carter signed it into law at the time when Andrew Young was US ambassador to the U.N.
Under various International experience many other internal conflicts have used similar a TRC processes from 1974 to 1999, see Priscilla B. Haynor Fifteen Truth Commission human right quarterly 597 (1994) with different formulas and standards
So again, the principles that qualify our political prisoners and prisoners of war as candidates for amnesty, stem from the South African concept of a political offense drafted by Carl Aage Noorgard, a Danish national and president of the European Commission on Human rights, the foundation he drafted as guidelines defining the concept of political prisoners for use in the Namibia Settlement to be applied in a context of reconciliation. The qualifications were based on the concept of political offenses found in extradition law. The concept adopted by the South African TRC in 1990.
Full disclosure in 1986, during the trial of Dr. Mutulu Shakur and Marilyn Buck, revolutionary armed task force “Brinks” case Mutulu Shakur and black/New African PP’s were at that time defining a process searching for a standard that would parallel our POW petition submission to the trial court Judge Charles Haight, hoping for a jury charge that would allow the jury to consider political motive and the political nature of the acts charged in the indictment.
Political offense exceptions are the International test that establishes the political offense as distinguished from criminal acts vs. political crimes. There two types of political offenses exceptions the “pure” political offenses that involves acts directed solely against the state such as treason, espionage and sedition and the “relative” political offenses in which the act is a common crime so connected with a political act that the entire offense is regarded political.
We set before the court in our POW POEE petition two interrelated but distinct arguments 1. The prisoners of war petition applied to Dr. Shakur, and
2. The applicability to present indictment (1981) against both defendants of the political offense exception. He requested the court to address the proposed relief for each argument separately.
The government response is instructive. The court order of the government to answer issues about whether the 1977 protocols to the 1949 Geneva Conventions on Prisoners Of War (16 UST 3316 TIAS No. 3364) are applicable and whether it would be appropriate for the court to evaluate the act charged as part of an armed conflict.
In our cases the prosecution’s witness had testified to the completely political goals the participants in the alleged offenses held.
Further the fact that Judge Abraham Sofaer, legal adviser to the department of State as well as attorney for the department of the Army and the department of defenses answered Judge Charles Haight’s question rather than the criminal division of the United States Attorney Office indicated the US executive branch recognized the intensely political context of the cases.
The political offenses found in extradition law, we argued should be the basis for the jury to determine political motive both petitions were denied after a lengthy hearing, which addressed the third question the judge posed:
“Was whether the 1977 protocol reflected the current state of International law on the issue of when prisoner of war status treaties such as the American Convention on Human rights that afford even wider protection to those captured pursuant to armed conflict” This is one example of the black/New African political prisoner to define their principle motive and status, in an attempt to embrace a process that establishes an objective criteria for political motive and a class of Black /New African Freedom Fighters under International standards.”
The list of the honorable PP’s and POW’s who helped to prepare the above POW and POEE is an indication of the comprehensive voice for such a strategy.
If we look at the guidelines of the Norgaard Principles there is few distinctions between the two applications, the US black/New African PP’s and POW and the South African process.
Motivation of the offender
Nature of the political objectives
Legal and factual nature of the offenses
The object of the offense
The relationship between the offense and its political objective (directness, proximity, proportionality)
Act’s requirement: it is an act associates with a political objective committed in the course of the conflict of the past and applicants have made a full disclosure of relevant facts.
Acts covers acts against the state and acts of liberation organizations, against each other, acts of state against liberation movements and acts of state against other states. It includes armed and security forces of the state, as well as Inter-organizational conflict acts, excludes offense committed for personal gain or out of personal malice.
Our brief was prepared by Mutulu Shakur, Marilyn Buck and their allies and comrades listed below:
- Elmor Geronimo Pratt, San Quentin State Prison
- Albert Nuh Washington, Albern State Prison
- Sekou Abdullah Odinga, Leavenworth Federal Prison
- Cecilio Chui Ferguson-El, Lewisberg Federal Prison
- Susan Rosenberg, Lexington Kentucky Federal Prison
- David Gilbert, Clinton State Prison
So our position on TRDC is not only its application in South African reality rather our PP and POW struggle construction of a process predates Carl Norgaard correct analysis.
In 1986 we stated the objective of the PP’s and POW, POEE application we present this brief in the interest of al political prisoners, freedom fighters and prisoners of war who have been denied the protection of international law, and have unjustly suffered criminalization of their participation in the liberation struggle. It is toward a just recognition of their sacrifices and just resolution of this conflict that this brief is filed.
Dr. Mutulu Shakur.
April 27, 1988
There are still very pressing material conditions that our people faces that must be resolved the TRC is not to be the answer for the overall struggle. The struggle will continue in whatever form the people will. The outstanding issue of reconciliation will be the question of reparations and the freedom of our political prisoners. Barack Obama’s election has established a symbolic milestone in the minds and hearts of our people, a view of a new political reality that changes the narrative of the black liberation movement. Will.
I think it also provides a strong case for a TRC argument that addresses the BLM decade of conflict, we fought in the liberation struggle. So how do we distinguish our TRC process from the ongoing political prisoners defense committee work, can we realize a vertical approach?
The mantra “search for the truth and closure” our vision of TRC through its amnesty process is /could be statutorily permitted to intervene in the judicial process both procedurally and substantively, as in Mumia Abu-Jamal case, which seems to have run its legal course procedurally.
The commission would not be a substitute for criminal justice. It is not judicial body where objective is to dispute legal justice. The commission serves a specific political objective as the product of a negotiated settlement with the granting of amnesty for acts of past as it’s control point.
The alternative dispute mechanism functions as an alternative to the judicial process aiming to achieve a solution that offers something to both parties, but not determining which of the parties is the “winner”. I define the ADM again because I know it’s a great political lead that must be weighed strategically.
The TRC generally is not the conventional alternative dispute mechanism from this stage in our conflict. Human Rights violations which included murders, torture, illegal detention, COINTELPRO, low-intensity warfare, are all acts by agents of the government they could/would receive amnesty with this process. The act charged against our PP’s and POW’s, our exiles and freedom fighters could as well receive amnesty under reconciliation.
- Do we have the political capital to convince the black legislature?
- Do we impact the masses of Black people that such a process and resolution is in our best interest and that it honors our struggle?
- Is the Obama factor a realistic change in the political narrative to push for TRC at this time if not, when?
- Can we have a broader coalition to promote the process among the younger generation?
- Can we build a strong interfaith coalition?
Personalities that have demonstrated interest in the question of PP’s and POW must be surveyed.
As I’ve said before the Brother Charles Barron, Irv Joyner, North Carolina, TRC, sister Cynthia McKinney, Sister Maxine Waters, Quincy Jones, Rev. Jeremiah Wright, we are standing in a special place in history, this process will take hard work internally and externally. Finally, “ it is said in the bible in the book of Leviticus, that every 50 years prisoners should be freed and all debts forgiven, this is the 50th anniversary of the freedom fighters.
Nations neglect no people more shamefully than the heroes of their wars – are we a Black Nation? Will we do the same?
Dr. Mutulu Shakur