A week before Samantha Power was officially sworn in as Obama’s representative at the United Nations, Mark Ländler wrote a piece in the New York Times in which he considered international law “obscure”. I responded – at length – to that comment, then almost immediately stumbled upon another piece of writing deploring the complete opacity of human rights law. It was not from a misinformed journalist- it came from the very people that currently teach one of the very few human rights law degrees in the world. In a strange twist of events, human rights law proliferation, they say, has turned in on itself and facilitated legal loopholes and obstructed the clear path to the rule of international law. I was ready to disagree, when it dawned on me, the way an anvil falls onto a coyote’s head, that human rights law – and practicing human rights – is definitely not what it used to be.
The law was meant to be for the people. It is not an instrument of oligarchy; it is supposed to be accessible. After all, ignorantia juris non excusat. Now Verdirame explains that human rights law has “the accessibility of a tax code”. The proliferation under what are called “third generation rights” – as in distantly removed from “first generation rights”, such as self-determination and freedom from torture – means that human rights is now basically what everyone wants it to be; that it slipped from the grasp of legislative international bodies; that it can be anything or everything, and are levelled against so-called “orderly” countries by less abiding ones to “shore up some political legitimacy”. And we are all lamenting the fact that we are creating second and third generation rights while the basic fundamentals of the UNDHR are still a struggle across the globe. It blurs the focus, it distracts the attention, and it begets media attention more than an inmate suffering torture in a democratic regime – because we created new risks and new threats that somehow invalidate human rights law in its current incarnation, while still accepting to legislate on third generation human rights. It’s the Roman Empire all over again: forget they’re all going to die, live under the illusion most of their citizenship rights are not violated.
Last month marked the sad 68th anniversary of the bombing of Nagasaki, the second nuclear atrocity of the 20th century and the beginning of a new type of warfare: the all-destructive, apocalyptic kind, annihilating not just human life but all living things; and this for generations to come, radioactive rays seeping into the earth and making it sterile. Oppenheimer’s scientific discovery was a war crime. But just as the Holocaust was not the first genocide in human history, we tend to believe in 1945 as an awakening: the almighty Nüremberg Trials funded modern international criminal law, created the groundbreaking case law for human rights violations, and, by extension, decided of who would sit – forever, it seems – at the Security Council table. 68 years later, the United Nations General Assembly is scheduled to open on September 17th in New York City, with on its agenda, nuclear disarmament. Over the past 68 years, despite the development in new media technologies allowing us to watch war waged live on our televisions in a green and yellow infrared glow, where unmanned weapons are directed onto faraway lands from a trailer somewhere in the American Midwest, we are still unable to stop what was the very reason we started in the first place. Human rights proliferation has blossomed like poison ivy because liberation has led to justified entitlement; once freed from colonialism throughout the 1960s, and from Soviet rule after the fall of the Berlin Wall, a new idea of what the meaning of life and the pursuit of happiness developed itself. Citizens no longer needed legal and political tools to simply survive. They wanted not just life, but a better life. They – as per the ICCPR – requested civil rights. They – as per constitutionally mandated equality – requested marriage equality. And now, environmental law has also bled into human rights law, with the increasingly pressing right to water. All those rights are natural, and should be fought for; they will become political fodder for generations to come, hopefully sooner than later. But when human rights proliferated, the way a crowd tends to rush through the tiniest of open door in a prison, we lost sight of the tree in the forest.
Maybe it’s the way I was raised, deprived of civil rights and under military rule; maybe it’s the way that I was taught, with ideals of fundamental beliefs of absolute prohibitions (such as death penalty and torture). I often claim that those “issues” are not issues; that they’ve been resolved under law by already existing treaties that have been ratified, and that adding amendments or trying to redefine the criminal components they declare is going backwards to the dark ages of sovereign impunity. 1945 was a post-Geneva Convention Ground Zero. The nation-state idea of sovereignty created by Westphalia was supreme in Europe. The ages of the never failing and unfaltering empires was dominant. No one would dare standing up to what was happening across the border; journalist Jean Jaurès was shot for denouncing war as a crime in 1914, and writer Emile Zola made history – still to this day – for pointing out racial profiling in French criminal law and the unjust, unfair and inhumane situation of penal colony. The idea of fundamental human rights existed, though not spelled out as such, in the minds of journalists, travelling souls, witnesses and observers of the madness of power and the bloodshed of imperialistic expansion. But they were rapidly silenced; there were no freedom of information, no NGOs to guarantee their safety, and disappearances were common. It was through constant writing, endless record-keeping, that we knew of abuses and tried to awaken our consciences. Winifred Carney, unsung hero of the 1916 Easter Rising, was said to have entered the Great Post Office “armed with a rifle and a typewriter”.
If all of this sounds so common, it is because we have jumped the gun. We have let the illusion of our freedom take over our consciousness and awareness of our surroundings. The very erection of the Berlin Wall in 1961, then the Iron Curtain have sealed off half of the world, across an impenetrable gap between our revered institutions, and had made the 1945 dream of global humanitarian work a strictly western, capitalist construct confined to the spaces outside of soviet reach. It is argued that it is still the same. Unless the bureaucratic entanglement of the United Nations is reformed, that the Security Council is revived to show prominence and equality for emerging countries, that non-binding legal agreements are scraped as conventions and that we limit the scope of what actually constitutes human rights legislation, we will swarm in a sea of rights which meaning differ from nation to nation, according to what their current political agenda is; we will create agreements that are easier and easier to violate, and harder and harder to monitor; we will finally lose sight of what we intended to achieve, which is access to basic, fundamental freedoms as per the UNDHR in all one hundred and twenty five member states of the United Nations. Verdirame further explains:
In contrast, “partly free” and “not free” states have become the main proponents of third generation rights. For most of them, of course, these commitments in practice mean very little, since countries that do not adhere to the rule of law at home rarely take international legal obligations seriously. But by presenting themselves as the champions of these new human rights, they seek to knock liberal states off the moral high ground (…)
The introduction of the concept of morality in human rights law is interesting and extremely relevant to today. It’s the confusion of the laws we made that created this nature of being too flexible in where they bend and where they break; and where we allow ourselves to twist them to our own benefit. Morality usually has no place in law; the law concerns itself with ethics and more objective values in order to be able to protect the minority from the majority, as opposed to a subjective moral concept that would encompass dominance of the majority over a minority that would have little freedom of opinion and conscience. But the very concept of human rights is a moral concept; it was born out of the extreme outrage of a collective, the soul-wrenching moments of human decay and bearing witness to what lack of empathy and unrestrained means of destruction can provide. Jürgen Habermas, in a commentary of Kant’s “On perpetual peace”, mentioned the dual character of human rights: an inherent legality, and a “universal validity”. According to Habermas, human rights is enacted in legality. They carry with them more than the universal validity of what is a moral concept – derived from religious morality, as in the first commandment – but “belong structurally to a positive and cohesive legal order”. Human rights law is a bridge between the general legitimisation of moral values – no killing, no torturing, no going to war without a legitimate cause, no infringement on state sovereignty, no submission of peoples under colonisation – but enshrined in legality through a series of conventions and treaties that are fully enforced through ratification by pre-approved domestic processes. Due to this dual value, human rights are not only embedded with legal bodies, they are also blessed with a universal response to their implementation. Habermas continues,
… it is part of the meaning of human rights that they claim the status of basic rights which are implemented within the context of some existing legal order, be it national, international, or global.
In the context of human rights proliferation, it is necessary to reconsider the history of human rights law, of diplomatic intervention, and general international relations to (re)define what constitutes basic rights. Should we, as a global community, patiently wait for the universal application of first generation rights before fighting for second and third generation’s? Or are new political and civil rights elevated to the same basic rights statutes as first generation human rights? Now that the legality of human rights has been asserted, where is the universal morality concept that we should all abide by, this all-encompassing humanity that should stop the atrocities of yesteryear? When the Martens clause referred to the “dictates of public conscience” in 1944, was it referring to morality of protecting the human, or to the ethics of stopping destruction by any possible means? On August 21, 2013, chemical weapons were used against civilians in the Goutha suburb of Damascus, Syria. A UN report published yesterday exposed that sarin gas had been used using surface-to-surface air rockets. To justify their push for unilateral intervention, Secretary of State John Kerry had described the attack as a “moral obscenity“. If the use of chemical weapons is an absolute prohibition – by the 1925 Geneva Protocol, by Commission of Disarmament, and by the almost universally ratified Chemical Weapons Convention (CWC) banning the use of gas and biological weapons against protected persons and belligerents, it was hardly implemented in practice. From the use of chemical weapons in Iran, by US with and against Iraq, Iraq against the Kurds, to Syria today, even nation-states having ratified the CWC and urging Syria to do the same emitted reservations as to the absolute character of the prohibition. Morals are fluctuant. They’re fluid. They adapt themselves to foreign policy as easily as gum molds itself to the sole of one’s shoe. It is hardly a solid pillar against which human rights law could stand to legitimize its universal application. It is just one part of the foundation, in itself more to do with the ethics of public conscience than it does to what our morals, always challenged by imperatives of national and international security, are capable of handling. Human rights law is in perpetual evolution; but through this evolution, through these unstoppable changes, we must never lose sight of what we may eventually lose.
When it comes to terrorism, the supposed universality of the moral cause is stepping down to questions of national security. If crimes of terrorism have been long enforced as gross violations of international law – first as a crime against protected persons under Geneva, then as a war crime under the 1997 Convention on Terrorism Bombings – the fight against terrorism itself has turned into a violation of human rights law. From use of torture to gather intelligence to violations of civil rights while in custody; from a justification of unilateral military force to global surveillance and data collection, the war on terrorism has become terrorism in itself. In defining the concept of “depersonalisation of the victim” (1), Antonio Cassese explains: “What matters is that the victim be murdered, wounded, threatened, or otherwise coerced so that the political, religious, or ideological purpose of the perpetrator may be attained. In the eyes of the perpetrator, the victim is simply an anonymous and expendable tool for achieving his aim.” In this case, the purpose of human rights is to clearly restore the victim to their rightful place, as a human being, an individual, bearing with them all their fundamental rights per the UNDHR, including the right to life. Proliferation of human rights law becomes dangerous as the forest is hiding the tree that is the core object of human rights law. Protection of dissent, of minorities, and of civil rights is of course a major pillar of human rights law; but as enshrined in domestic law through ratification, it is incumbent to the state to have them respected at a national level before engaging instruments of international law as transnational or international violations of Geneva Conventions. Human rights law proliferation should be minded and carefully classified as various sections and sub-sections of what are fundamentally first generation rights; for as long as we do not recognize the right of a human being to the respect of their life, their body, and protecting them from conflict and starvation, we will legitimise the violation of their subsequent civil rights as lesser offences. The hierarchy of importance we created on our own will permit the jadedness resulting from civil rights violations. Mandating human rights law statutes, principles and core treaties as being fundamental pillars always kept within sight will permit the protection of civil and political rights of those same values under the same auspices.
May human rights live long and prosper, not proliferate and lose sight of themselves.
[ it has been suggested in some corners… that this is not enough! ]
(1) dépersonnalisation de la victime, as coined by french lawyer Delmas-Marty in “Les crimes internationaux peuvent ils contribuer au débat entre universalisme et relativisme des valeurs?”