What’s So Special About the Holocaust?

History has seen many genocides and large scale killings. Some of those resulted in more deaths than the Holocaust. So why is the Holocaust special? It’s special because it was the first and last example of the industrial production of corpses. It was, quite literally, a murder machine. The murders were not the actions of specific individuals who did what they did because of their identity, motives or pathologies. They were not like the brutalities of the Roman Emperor Nero, which were clearly his. Nor were they like the crimes of Saddam Hussein or any other identifiable criminal. In the case of the Holocaust, it was impossible to recognize an identity in the deed. The killers were impersonal, insignificant, loyal, conscientious and hardworking civil servants operating together in an organized, efficient, systematic and planned extermination, characterized by division of labor and the industrial production line. Everyone knew exactly what to do, and often that was a very small part of the process. Shared responsibility is often seen as diminished responsibility, and makes it easier to produce corpses. The detailed planning, organization and execution of the project sets the Holocaust apart from other genocides. Eichmann protested against spontaneous pogroms in the east, not because he was a humanitarian but because those unorganized interventions messed up his bookkeeping and made it difficult to count how many exactly were killed by the otherwise machine-like operation.

The Holocaust was not the action of an individual or a small group of people. Nor was it motivated by egoism, the will to power, money, hate, rage, revenge, sadism, war or the elimination of opposition. The victims were not guilty of opposition or even crime. The perpetrators weren’t motivated by self-interest (for example, the Nazis prohibited private confiscation of Jewish goods for personal use). Neither was it primarily the hatred of Jews that led the Nazis to try to exterminate them. It was the love of humanity – or better what they considered to be true humanity – and the need to protect it. The Holocaust wasn’t a war crime either and wasn’t part of the normal atrocities of war. It started well before the war and the German war effort suffered substantially from it: potentially useful labor forces were eliminated, soldiers and other means that could have been used in the war were diverted to the extermination effort etc. The Jews were murdered, not because that would have allowed soldiers to fight rather than guard prisoners, but because they were Jews. The extermination continued even in the final days of the war, when Germany was losing and all military resources should have gone to the war effort. And, finally, the purpose of the Holocaust wasn’t to instill fear. Normal state terror serves to scare the population and convince it to submit and to behave in ways that are acceptable to the rulers. Not in the case of the Holocaust. Fear had become useless because it couldn’t serve to guide actions and to steer away from danger. Danger would have found you anyway. Everyone knew that you were a Jew, and tactical maneuvering motivated by fear could have helped you escape only in very few cases.

Self-interest, power hunger, sadism, revenge or other utilitarian motives were seen by the Nazis as diversions from the genocidal operation that was undertaken for the benefit of mankind. As was the military self-interest of Germany’s success in the war. The project of extermination of the Jews and the protection of mankind was more important than the risk of a possible military defeat of Germany. Pity as well could not stand in the way of the demands of nature and history. The pleas of the victims were not heard and people convinced themselves of the historical and natural necessity of the Holocaust. Like pity, the taking of money from a victim as a bribe for letting him or her live was a betrayal of nature. Germans had to be the superhumans that they were destined to be, free from all that makes us ordinary humans: pity, self-interest, hate and the will to power.

The Holocaust wasn’t a crime. A crime is a deed that goes against social order and established law and that challenges the powers that represent social order. In this case, we have an atrocity that emanated from the state and that had become the moral and legal law. Murder had become a form of government. Evil no longer had to fight the Good, and no longer had to hide and to be hypocritical. Evil ruled. There was only evil. The world was without a horizon, without hope or salvation. Another reason why the Holocaust can’t really be called a crime is the fact that the perpetrators didn’t have criminal motives. They just carried out the verdict of nature and implemented the laws of nature. A deeper legality defined the actions of government. Murder had become the law of nature as well as the legal law and the law of morality.

More on the Holocaust here.

What is Totalitarianism?

It sounds like a somewhat antiquated concept and it may very well be true that it’s useless as a descriptive device for current politics. However, I believe that it remains a necessary tool for the correct understanding of 20th century history. Nazi Germany, Soviet Russia and Mao-era China were very different countries and very different political regimes, but it can be argued that what they had in common was more important than what separated them. And what they had in common separated them from all other authoritarian governments before and after them. (Hannah Arendt was one of the first to notice this). That is the reasoning behind the concept of totalitarian government. Those three governments – and perhaps a few others – can be described as totalitarian states and were therefore instances of a separate type of government, like oligarchy or democracy. They were not just particularly brutal forms of dictatorship. We’re not talking about a difference in degree. Of course, some of the elements of totalitarian rule which I describe below can be found in other dictatorial governments as well, but other elements can’t. (Just like some elements of democracy can be found in non-democracies). And what certainly can’t be found elsewhere is the combination of all those elements.

Totalitarian government is a post-democratic form of government. It couldn’t exist in the era before mass democracy. It’s post-democratic in the sense that it is an outgrowth of modern democratic traditions. Political parties, party ideologies, mass movements and mass mobilization, the pseudo-popular legitimacy of rigged elections and referenda, the mass idolatry, the personality cults, mass indoctrination, propaganda, Potemkin constitutions, show trials etc. all show the totalitarian debt to democracy. The same is true for the focus on re-education and rectification of thought when some parts of the popular will are considered to be deviant: this is proof of the importance of popular consent (when consent is absent, it’s fabricated).

Contrary to older forms of despotism, totalitarianism admits that the state is no longer the natural property of a ruling class, the private tool of a sovereign or a gift of God. It is the expression of the will of the people. Not, as in a democracy, of a divided people or of a people who’s identity fluctuates over time as a consequence of public debate. The will of the people under totalitarian government is permanently defined as a unified whole. The people are defined as a race or a class. The people have a homogeneous project, namely racial supremacy or the liberation of the proletariat. The will of the people, which is also the basis of democracy but which is always kept vague, heterogeneous and fluctuating in a democracy, now becomes a singular, clear and permanent will. All individuals and individual projects or interests are identified with a collective project. Everything which is in accord with this project, is part of the people; everything else is not – is foreign, alien, “entartet”, bourgeois or capitalist – and must be destroyed. If it’s the whole of the people that works towards a certain project, then those with another opinion are enemies of the people and have to be destroyed to protect the people and its project.

That is the origin of the genocidal nature of all totalitarian governments but also of their less extreme forms of exclusion of the other. Every internal division is seen as external. The other is not part of the people. Society isn’t divided but is divided from its enemies. Every sign of internal division is externalized: dissidents are foreign spies, the other is a member of the international jewish conspiracy, a tool of international capitalism, the fifth column etc. For example, long after it was clear that the attack on Hitler in 1939 was the work of a single German individual (Georg Elser) the nazis maintained that the British secret service was to blame. The other attack by von Stauffenberg in 1944 was framed as the work of aristocratic officers who were alienated from the German people. This division between internal and external is consciously cultivated because it confirms the image of the people as a unified whole. If real foreign spies or class enemies can’t be found then they are created. and duly suppressed. Hence everyone can become the enemy, even the most loyal followers.

The fixed will of the people is subsequently represented by the party and the state. The party doesn’t represent a majority, but the people. Hence, other parties have no reason to exist. All people and the whole of the people are represented by a single party. And since this party perfectly represents a perfectly clear and unified popular will, it can infiltrate all parts of society: school, church, labor union, factory, the press, the judiciary, the arts and all other social organizations cease to be independent. The party is everywhere and submits every organization to its will. It believes it can do so because its will is the will of the people. And the party uses the means of the state to be everywhere: the secret service, the department of communications, the police… As a result, the state is also everywhere. Totalitarian government simultaneously bans people to the private sphere – all free and deviant public actions and expressions are forbidden – and destroys the private sphere, to the point that people can’t even trust their friends and family. All private actions are potentially public. Wiretapping, surveillance, public confessions… Even the most private things of all, your own thoughts, are attacked by way of propaganda and indoctrination. Totalitarianism strives for total control of private and public life. All spontaneous and independent individual or social projects are doomed unless they are completely trivial. They can only survive when they are part of the common project, because they make sense only when they are part. When they are not, they are potentially in opposition to the common project.

But we should understand that the identification of the party with the state is only temporary. The state in fact is bound to disappear. That becomes clear when we consider the imperialism that is typical of totalitarianism (to a lesser degree in the case of China). By definition, the projects of totalitarian governments – racial supremacy or a classless society – go beyond the borders of a state. Aryans aren’t only meant to rule within the borders of Germany. They deserve global supremacy in part because they are the best race and in part because the Jews are a worldwide threat. And the classless society can’t exist when it is surrounded by a capitalist world; the proletariat in other countries also deserves to rule.

Totalitarianism is a form of rule that goes beyond the state. A particular state is just a convenient tool for a certain stage in the popular project. The people as well is a concept that goes beyond the group of citizens of a given state. There are also Aryans and workers in other states. In non-totalitarian dictatorships, political rule is essentially tied to the state. A normal dictator may attack other countries, but will do so while enhancing his state or expanding his country. His rule will never go beyond the rule of a state, suitably redefined if necessary. If necessary he’ll redraw the boundaries of the state, but he will never go beyond the state as such. Totalitarian rule, on the other hand, is ultimately larger than the state. It’s the rule of a race or a class, on a potentially global level.

As the people and the state are subject to the rule of the party, so the party is subject to the rule of one individual. The leader makes sure that the party remains unified, because a divided party can’t claim to represent a unified people. So there’s a series of identifications going on: the people is identified with a class or a race; this unified people is then identified with the party that represents it; the party in turn identifies itself with the state because it (temporarily) needs the tools of the state to realize its project (class rule or race rule); the state then takes over society and identifies with it; and ultimately a single leader takes over everything in order to guarantee unity.

The people are like a collective individual, a body with a head controlling all its coordinated movements. State terror and genocide can then be seen as the body removing sickness and parasites. The other is often explicitly identified as parasitical or infectious. Violence and oppression are medicines used to safeguard the integrity of the body of the people and their purpose. The Great Purge wasn’t called a purge by accident. The Jews weren’t depicted as pestilent rats for no reason.

The image of the body also means prophylaxis: why wait with punishment until the crime is committed? We know that certain persons are enemies of the people. Crime in the sense of opposition to the project of the people is a fatality for them, sooner or later. There may be good Jews, but we can’t take the risk that they marry an Aryan and defile the race. And some capitalists may be less harmful than others, but why wait until their presence undermines collectivization or until they betray the country and invite an invasion?

Totalitarian government isn’t like a normal lawless and arbitrary dictatorship. Of course, the laws under totalitarian government are regularly broken or changed to serve certain goals. But there are deeper laws that the totalitarian government has to protect, namely the laws of nature (in the case of Nazism, and more specifically the laws of natural selection) and the laws of history (in the case of communism, more specifically the laws that say that economic and industrial development will necessarily destroy capitalism and inaugurate communist production). Those “deeper” laws aren’t human laws; they are historical laws that drive mankind towards the realization of the project that animates totalitarianism. Totalitarian government serves to facilitate and fasten the operation of those deeper laws. Jews are exterminated because that promotes the ultimate and inevitable supremacy of Aryans. Capitalists, bourgeois, kulaks etc. are exterminated (or reeducated in order to become communists) because that promotes the ultimate and inevitable supremacy of the proletariat (the proletariat is doomed to rule given the evolution of capitalism, but its rule can be hastened).

There is no “regis voluntas suprema lex” as in previous forms of despotism. The legal lawlessness covers a deeper lawfulness. Legal laws have to be adapted to best serve the deeper laws. If terror and violence are required for the realization and hastening of the evolution postulated by the deeper laws, then the legal laws will mandate and require terror and violence. Terror and violence don’t only serve to intimidate, destroy opposition, isolate people from one another and coerce compliance. They serve the project of the people.

I think all this justifies grouping Nazi Germany, Soviet Russia and Mao-era China under a separate form of government. That doesn’t mean that everything about those regimes was new and typical only of totalitarian government. Obviously, genocides, terror, show trials etc. have occurred before and since. Those are not inventions of Hitler, Stalin or Mao. There are historical parallels, just as there are parallels between contemporary art and ancient art, but still we prefer to distinguish these two forms of art. We have to look beyond the phenomenology of despotic regimes throughout history, and identify the particular logic of different forms of despotism.

Cultural Rights (13): Their Place in the System of Human Rights

I know I’ve neglected cultural rights on this blog. That’s not because I think they should be neglected. Cultural rights are indeed important and they deserve a thorough discussion. First, what are they? Cultural rights are the rights of

  • indigenous peoples,
  • ethnic, racial or linguistics minorities or “nationalities”,
  • immigrants
  • and perhaps also other marginalized groups.

In certain circumstance, some such groups can legitimately claim cultural rights because without these rights they will be unable to preserve, experience and act in accordance with their cultural identity. This cultural identity includes institutions, beliefs, practices, a way of life, a language etc., all of which can be under pressure from another, dominant culture or from some other hostile forces (e.g. globalization, capitalism etc.). Other, more commonly accepted human rights such as religious liberty, non-discrimination etc. are of course helpful as well but sometimes insufficient for this purpose. For example, a state can’t help but to impose an official language, and the users of this official language have therefore an unfair educational, economic and political advantage. Minority groups can then claim that they need the cultural right to receive education in their own language. Non-cultural human rights won’t be much help.

The background assumption of cultural rights is the equal value of all cultures. All cultures have an equal right to survival and all groups have an equal right to preserve their cultural way of life. The pressures that threaten cultures can take various forms, going from genocide (or ethnocide, or cultural genocide) at one extreme to milder forms of acculturation at the other extreme. Some typical forms of pressure are:

  • reducing birthrates through forced sterilization
  • forcibly transferring children to other groups
  • relocating entire groups
  • interfering with education or the transmission of culture to future generations of a group
  • forced conversion
  • erasing the group’s existence or practices from the historical record
  • attacking a culture’s resource base (e.g. deforestation)
  • etc.

The concept of cultural rights should be distinguished from related concerns about economic or political domination. Marginalized cultures can indeed suffer cultural as well as other types of oppression simultaneously, and depriving a culture of its economic base can be as lethal as a direct attack on its identity. However, I think it’s useful to isolate the cultural and identity issues. So I’ll focus on those, and I’ll also deliberately sideline the thorny question of the definition of “culture”, a notoriously overbroad concept: which groups can legitimately claim to be a “culture” deserving of cultural rights? Are cultures really distinct and self-contained? Let’s just assume that there are some such groups, and that some of those are threatened.

Which cultural rights?

Apart from the general right to cultural survival, it’s not very clear which are the more specific rights that are bundled together under the general right, and it’s commonly accepted that the concrete realization of cultural rights depends on the circumstances. In some cases cultural rights can imply a right to some form of affirmative action, in other cases a right to regional self-determination etc.

Article 27 of the International Covenant on Economic, Social and Cultural Rights only mentions a right of groups to enjoy and practice their own culture. The UN Declaration on the Rights of Indigenous Peoples is somewhat more precise, but only somewhat. Hence, cultural rights are often attacked for a double vagueness: vagueness about the specific rights involved, and vagueness about the beneficiaries (which groups qualify as a “culture”?). However, we’ll see below that a more fundamental criticism of those rights is also possible.

Justifications of cultural rights

And yet, I do believe that cultural rights are an important addition to the body of human rights. The justification for these rights is based on two things:

  • the importance of culture for individuals, and perhaps also some vaguer notion of the general importance of cultural diversity and the “heritage of humanity” (in which case cultural rights are important for everyone and not just for members of threatened cultures)
  • the failure of more traditional human rights to protect culture in all cases.

People need a cultural life, a life in a community that transcends time. They want to belong to a group and share a traditional identity. These human values can only be enjoyed collectively and are often neglected in more individualist and liberal theories of rights. Individual human rights such as freedom of religion and association, anti-discrimination laws, tolerance, democratic pluralism etc. are helpful for the preservation of culture and other collective values (such as religion), but not in all circumstances. Take the example I gave before: the simple fact of an official state language and school language puts some minorities in a disadvantaged position, not just culturally but also economically and politically. And indeed there’s nothing that ordinary human rights or tolerance can do about that.

Another justification of cultural rights can be based, not on the value of culture, but on the need for reparations for past injustices. For example, indigenous people can claim that respect for their cultural rights is due to them because of the injustices perpetrated by past generations of the dominant culture, even if there are no present-day threats to their culture.

Criticism of cultural rights

Contrary to the more traditional, individual human rights, cultural rights don’t require the recognition of individuals as equal human beings, equally deserving of respect in spite of their differences. They demand, on the contrary, the recognition of differences and respect for those differences, and differences between groups of individuals rather than differences between individuals. Common identity, group difference and recognition are the keywords behind the notion of cultural rights.

This explains why these rights are often criticized in liberal democracies. Liberalism focuses on the individual. It recognizes group interests but those are typically understood as cooperative, associational and interest based. People, according to liberalism, voluntarily join groups in order to advance their interests. Groups are defined by shared goals and interests, not by the shared identity of the members. Individuals are there first, and groups are secondary. From this point of view, cultural rights can be seen as essentialist: they reduce the identity of members to the identity of the group to which they belong.

This essentialism can indeed be detrimental to individual group members. Because cultural rights are rights aimed at the preservation of cultures, there may be a temptation to use these rights in order to discipline members who deviate from the cultural orthodoxy. Such deviations can be viewed as a threat to the group’s identity and survival. In that case, cultural identity becomes a goal in itself rather than a good for the members. Ideally, cultural rights are valuable because the members of the cultural groups in question value cultural identity, cultural practices and language and can use these rights to protect what they value. It’s those members who have an interest in cultural preservation, not the cultures themselves. (Will Kymlicka has developed this argument). This means that when members lose this interest, they should be free to do so, and cultural rights should not be used to impose an identity, practices or a language. Individual members should be free to evaluate their culture and to reject it if that is what they decide.

It follows that cultural rights should not grant groups power or priority over individuals or over individual rights. If an individual member of a group decides to use her freedom of religion to change her religion, her freedom of movement and residence to physically leave the cultural group, her freedom of expression to decide to start speaking another language etc., then there’s nothing the group can do. The group’s cultural rights can’t trump the individual’s rights. And if individual rights are threatened by cultural rights, the latter should give way. For instance, if a religious group claims the right to oppress its female members or sacrifice its children, that group can’t claim cultural rights as means to protect those practices.

That doesn’t mean a group can never legitimately limit the individual rights of its members. It can, as long as it guarantees a realistic exit right. Individuals can waive their individual rights if they think the rules and practices of their group are more important than their individual rights. This exit right, however, should be realistic and not just formal. There should be no indoctrination and alternatives should not be cut off. For example, Muslim communities should be allowed to discriminate against their female members as long as these members have a realistic right to go elsewhere, realistic meaning that going elsewhere shouldn’t imply abandoning their religion, their family etc., meaning also that they have a real choice and haven’t been indoctrinated into submission (more here).

The priority of individual rights over cultural rights does not force us to adopt an extreme individualist philosophy in which the individual is always prior to the community or in which the community doesn’t count at all. This priority of individual rights is compatible with a communitarian stance. Cultures and cultural rights are important, and they are important for communitarian reasons, but they are not so important that they can trump individual rights. Cultures or other groups have value only in so far as they are of value for the individual members. They can’t have intrinsic value. In other words, they can’t have value for themselves.

The problem of enforced internal orthodoxy within cultural groups, which I mentioned above, may be exacerbated by the possible recognition of cultural rights. Group leaders may believe that they need to enforce orthodoxy and silence “minorities within minorities” in order to present a united culture. Presenting a united culture can make it more likely that the wider society recognizes cultural rights for the minority culture. For example, a leader (or leading class) of an indigenous group may believe that it’s necessary to emphasize the distinctive nature of the group by reviving traditional practices. This revival makes the group seem more valuable from a cultural point of view, and that’s something which will make it more likely that special recognition and special rights are forthcoming. Leaders may even have a personal and selfish interests in those rights, for example their personal leading role may be cemented after the recognition of those rights or during the struggle for recognition. However, some of these traditional practices can be harmful to the individual rights of certain members (e.g. gender discrimination, polygamy etc.) or can go against one particular current of belief within the minority group which is subsequently repressed.

So cultural rights may harm individual rights and may promote internal orthodoxy before they are recognized – and as a means to achieve recognition – as well as after they are recognized – for example, regional autonomy can imply restrictions on intervention by the central authority in the case of rights violations occurring within the regional group. It’s relatively easy to make the granting of cultural rights conditional on respect for individual rights within the group demanding cultural rights (and withdraw those rights when they result in violations of individual rights), but it’s a lot more difficult to avoid the dynamic of groups violating individual rights and suppressing internal dissent in the process of a struggle for cultural rights.

Actionability of cultural rights

Individual rights trump cultural rights, but this raises the question of the actionability of cultural rights: when exactly can they be used to protect cultures? They can’t if a culture’s preservation is in danger because individual members decide to leave, for example through voluntary assimilation into other groups, or decide to fashion the group’s identity differently. Neither can they be actionable when a culture dies because of low fertility rates for instance. Artificially propping up fertility rates for the sake of cultural preservation would harm the rights of individuals in a manner which few would accept. A culture that can’t gain the uncoerced adherence of its members or promote the vitality necessary for the reproduction of its members at replacement rates, doesn’t seem to be worth preserving. Again, cultures are important for individuals. And if individuals lose their interest or change their minds, there’s not much one can do.

If one were to limit individual rights in order to prop up a culture, one would violate the principle that culture are important because they are important for individuals. One would have to adopt the unlikely view that cultures are important in themselves whatever people believe, and that they have an intrinsic value even if no one wants to be a member. Of course, it’s sad when a language dies or when some cultural practices disappear, but this sadness isn’t enough to give cultures the right to force people to do something against their will. Even if it would be somehow morally OK to force people, it would be pointless. One may succeed in getting people to speak a language, take part in rituals etc., but that would happen for the wrong reasons. A culture has to come from within. It shouldn’t be an externally imposed duty.

Perhaps cultural rights become actionable when the preservation of a culture is threatened, not by the free choices of individual members, but by economic forces, migration patterns or political oppression. Indeed, it’s not entirely unreasonable for the French government for instance to subsidize French language cinema in order to protect it against the “onslaught” of Hollywood. Or for the Tibetans to complain of Chinese “demographic aggression”. (Similar talk about Eurabia seems a lot less reasonable). Or for native Indians in the U.S. to resist forced resettlement.

Realization of cultural rights

And when we decide that cultural rights are actionable in certain cases, we still don’t know which actions short of violations of individual rights we can take to protect them. Some possibilities:

  • An obvious policy could be some kind of federalism and limited self-government, primarily but not exclusively when the minority cultures are geographically isolated and when they haven’t voluntarily chosen to live within a larger political unity (e.g. tribal sovereignty for indigenous peoples).
  • Maybe some quota systems in representative bodies could also help to give culture a voice.
  • Affirmative action.
  • Reparations.
  • Special educational provisions (for example the provision of some hours of education in a native language) or other types of assistance to do things that the majority takes for granted (e.g. multilingual ballots).
  • Certain veto powers (for example, the right of indigenous people to veto the use of land).
  • Some group-based exceptions to general laws (such as an exemption to the rule forcing drivers to wear a crash helmet).
  • Granting jurisdiction over family law to religious or tribal courts.
  • A politics of recognition (e.g. teaching black history in U.S. schools).
  • And perhaps even a right to separate from the political community if nothing else works or if the claim to authority of the central state is weak (as in the case of colonies).

It’s clear from this that cultural rights can in some cases restrict the rights of non-members. For example, the use of English is restricted in Quebec; affirmative action restricts the rights of non-group members; veto-powers over land use restrict the property rights of outsiders etc. However, it’s not the case that cultural rights necessarily restrict the rights of outsiders. Subsidies or regional autonomy for example do not, by definition, involve such restrictions. But if they do restrict some of the rights of outsiders, then we should be very careful. As stated above, cultural rights don’t trump individual rights; the opposite is true. But this general priority of individual rights doesn’t mean that there will never be cases in which it’s better to give priority to cultural rights (the good this will allow us to do may sometimes far outweigh the harm to some people’s individual rights). The general priority of individual rights over group rights doesn’t mean that there can’t be specific cases where the balance goes the other way.

A Killer Argument Against the Quantitative Approach to Human Rights?

Joseph Stalin wasn’t a very nice man. Among his lesser sins was his disdain for statistics: “kill a man and it’s a tragedy, kill a million and it’s a statistic”. What he meant of course was not just that it’s a statistic, but also that it’s not very important. Who cares if Stalin or anyone else killed one million, 10 million or 6,321,012? People care about actual persons, not numbers. (Actually, it’s a misquote; he never really said it).

Regular readers of this blog immediately recognize this as a frontal attack on our main project, the quantitative approach to human rights. I believe that it’s very important to have statistics and other quantitative data on human rights violations if we want to measure progress on human rights. In other words, I do care about numbers. We need to know how many people die of hunger, how many live in poverty etc. so that we can assess the quality and impact of our policies.

Now, I have to admit that Stalin was on to something. Numbers don’t carry a lot of meaning and don’t engender empathy. Powerful anecdotes about the fate of individual persons, testimonies and other narratives about concrete cases make it more likely that people start to care. If you tell school children for example that an estimated 850,000 people died during the Rwandan genocide or that less than 20% of China’s citizens now live on less than $1 a day compared to 80% 30 years ago, they will probably register this information, but they will only really start to care about genocide or poverty when they read about the stories of individuals. If you focus on human rights violations as quantities you may end up viewing human beings as quantities as well, and then you lose the motivating power of the individual story. There’s no room for differences between cases if you focus on numbers, and there are no individual and motivating stories without differences between cases.

The same argument against the abstraction and lack of meaning in numbers can be used against human rights talk in general, and not just quantitative talk. Human rights talk, like number talk, is abstract, devoid of specific personal stories. It’s talk about a biological species and the rights that it has, not about persons. The lists of human rights in treaties and declarations are very general and abstract sentences separated from specific circumstances and people, as they have to be. Human rights make differences between people morally irrelevant, and they have to do so otherwise you end up with privileges instead of human rights. However, we may end up not with the desired equality of rights but with sameness and interchangeable specimens of a biological species. And then we lose the motivating power of very specific and personal stories about suffering and oppression.

The answer to this challenge against number talk and rights talk is obvious, however: one approach doesn’t exclude the other. Numbers and abstractions may not be very motivating but they can help to assess the success of people who are otherwise motivated. And some of us may be motivated by numbers after all.

The Causes of Human Rights Violations (21): Hate is Just a Word Away

It’s shouldn’t be surprising that there are so many human rights violations. Psychologists have shown how easy it is to induce cruelty, prejudice and hate. There’s for example the famous Milgram experiment. People seem to be very obedient to authority figures, even if they are told to be cruel to other people (giving them electric shocks in this case; the shocks were fake but the subjects didn’t know that). Milgram’s test suggested that the millions of accomplices in the Holocaust were violent and cruel because they were following orders. Authority made them do things that violated their deepest moral beliefs. If you see how much pain people are willing to inflict on another person they don’t even know, simply because they are ordered to by an experimental scientist, you can imagine how easy it is for real authority figures to “convince” them. Which doesn’t mean that ordinary perpetrators of genocide or other acts of cruelty are guiltless tools of central command.

(The Milgram experiment was recently “reproduced” in a game show on television).

A similar experiment is the Hofling hospital experiment. Nurses were ordered by unknown doctors to administer what could have been a dangerous dose of a (fictional) drug to their patients. In spite of official guidelines forbidding administration in such circumstances, Hofling found that 21 out of the 22 nurses would have given the patient an overdose of medicine, even though they were aware of the dangers.

Then there are the Asch conformity experiments. One subject and a series of fake subjects were asked a variety of questions about an image containing lines, such as how long is A, compare the length of A to an everyday object, which line is longer than the other, which lines are the same length, etc. The group was told to announce their answers to each question out loud. The fake subjects always provided their answers before the study participant, and always gave the same answer as each other. They answered a few questions correctly but eventually began providing incorrect responses. You wouldn’t expect a majority of people to conform to something obviously wrong, such as “line A is longer than line B” when it’s clear to the eye that the opposite is the case. However, when surrounded by individuals all voicing such an incorrect answer, many participants also provided incorrect responses. This kind of group pressure and tendency to conform can explain mob violence and government organized genocide.

In the Stanford prison experiment, also called the Zimbardo experiment, people were selected to play the roles of guards and prisoners and live in a mock prison in the basement of the Stanford psychology building. The participants adapted to their roles well beyond what was expected. The guards became authoritarian and effected draconian, sadistic and abusive measures which were even accepted by the suffering prisoners.

And, finally, there is the Third Wave experiment demonstrating the appeal of fascism for ordinary people.

These social psychology experiments show that government efforts to mandate and enforce cruelty, prejudice, racism, hate and even genocide fall on fertile grounds. Human nature’s dark side seems to lurk just below the surface, ready to come out, and merely awaiting the wink of the boss or the group. A negative dialectic quickly settles in between government prejudice and private prejudice.

Gender Discrimination (22): Gendercide

The Economist has a front page story this week on “gendercide”, the millions of girls missing in the world, especially in India and China. Perhaps as many as 100 million girls have disappeared in the last decades because of

  • selective abortions encouraged by new medical technology (ultrasounds and fertility technology)
  • childhood neglect of girls (nutritional, educational neglect and neglect in health care)
  • prejudice, preference for male offspring and
  • population policies such as the “one child policy” in China.

Interestingly, the skewed sex ratios that result from gendercide (in some areas of China, 130 boys are being born for every 100 girls) are coming back to haunt the men that are responsible (although many mothers probably aren’t without fault either). Because of their relative scarcity, women have found an unlikely source of power. They have a competitive advantage in the marriage market, and can demand more in marriage negotiations, or at least be more selective when choosing a mate.

Causes

In my view, the word “gendercide” is somewhat overwrought because, contrary to genocide, the word that inspired the neologism of gendercide, there’s no centralized plan to exterminate women. Femicide would be a better term since it’s obviously only one of two genders that’s targeted, but it still sounds like a government organized campaign of extermination. Gendercide is the result of a combination of causes:

  • individual choices based on
  • plain prejudice against girls
  • cultural and legal traditions, or
  • economic incentives that have been formed by historical prejudice.

Perhaps girls still need a dowry, and poor parents may find it difficult to save enough and hence prefer a boy. Or perhaps they prefer a boy because the law of their country or tribe – inspired by age-old prejudice – says that only boys can inherit land or the family business. Again, the parents may prefer a boy for this reason, not because they dislike girls. Or perhaps tradition holds that girls marry off into their husbands families, and parents simply want to be sure to have someone in their home to care for them when they are old (“raising a daughter is like watering your neighbor’s garden”, is a Hindu saying).

Consequences

The consequences of gendercide are mixed. It’s obviously horrible to the girls that are aborted or neglected to death. But, as in the “boomerang” case cited above, gendercide may ultimately empower women. However, the skewed sex ratios also spell trouble: the presence of armies of men who can’t find wives and have children (“bare branches” or “guanggun” they are called in China) may result in more sexual violence, depression, suicide, human trafficking etc. It’s estimated that in 10 years time, one in five young Chinese men won’t be able to find a bride. On the other hand, a shortage of women will encourage immigration, and immigration may help some women escape poverty, and perhaps will also result in more intercultural tolerance.

Solutions

Economic development won’t stop it. In China and India, the regions with the worst sex ratios are wealthy ones, with educated populations. Even in some population strata in the U.S. sex ratios are skewed. When people escape poverty, fertility rates drop, and when families have fewer children, the need to select for sex only becomes more important in order to realize their son preference. In poor societies with high fertility rates, families are almost destined to have a boy at some point. Female children will suffer relative neglect and may die more often and more rapidly (skewing the sex ratios), but selective abortions aren’t much of a risk: families don’t really feel the need to limit the number of children (on the contrary often, because children are a workforce), and ultrasound technology for sex determination of fetuses isn’t as readily available as in rich countries or regions. When families want few children – as they do in more developed regions – or are forced by the government to limit their number of children (as in China), they will abort female fetuses in pursuit of a son.

Ultimately, only a cultural change will help. The son preference has to die out. Education probably will help, as it always does. Ending pernicious policies such as the one child policy will also help, but then overpopulation hysterics will have to be dealt with. This policy didn’t help stop population growth anyway. Other East Asian countries reduced population pressure as much as China without brutal policies.

Old customs and discriminating laws should also be abolished. Think of the dowry system, or inheritance rights. Stigmatizing abortion, especially sex selective abortion, will also help.

Limiting Free Speech (39): From Hate Speech to Hate Crime, the Case of Rwanda

Although I take human rights, and especially freedom of expression, very seriously (I wouldn’t be writing this blog otherwise), I also believe that hate speech can produce hate crime. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. This is called incitement to violence. I do understand the problems with this justification of limits on freedom of speech: it can be abused by those who want to muzzle their opponents. If people react violently to criticism, ridicule or insults, then they may claim – wrongly in my view – that the responsibility for the violent acts lies with those making “incendiary remarks”. You can read my objections against this type of argument here.

Nevertheless, I think there are other cases in which hateful words can turn into hateful crimes. The classic example is Radio Mille Collines, the Rwandan hate radio that called for the extermination of the Tutsi ethnic minority population before and during the 1994 Rwanda Genocide (it infamously swept up the Hutu’s to start a “final war” to “exterminate the cockroaches”):

During the 1994 Rwandan genocide, Radio Télévision Libre des Mille Collines (RTLM) broadcast anti-Tutsi propaganda and called for violence against Tutsis, which many experts believe significantly contributed to the violence. An interesting new job-market paper by David Yanagizawa seeks to determine the precise role that RTLM played in the genocide. Yanagizawa relies on “arguably exogenous variation in radio coverage generated by hills in the line-of-sight between radio transmitters and village” to determine the causal effects of RTLM. He finds that RTLM played a significant role in the genocide: full village radio coverage increased violence by 65 percent to 77 percent. The effects are larger in villages with a large Hutu majority and in villages without access to other information sources i.e. villages with lower literacy rates. In total, Yanagizawa calculates that the radio station’s broadcasts explain 45,000 deaths (or 9 percent of the total death toll). (source)

If this is correct, it’s difficult to maintain the doctrinal position that freedom of speech is always and absolutely beneficial and worthy of protection without exception. Unless of course you claim that freedom of speech is more important than the right to life. I refer to an older post on balancing different human rights.

Don’t get me wrong, freedom of speech is absolutely vital, for many different reasons (some as fundamental as thought itself, see here), and no regular reader of this blog can say that I’m ambivalent about it. But what I do object to is the school of thought that believes free speech is the uppermost value, trumping all others in all cases and all circumstances. Maybe this quote from Isaiah Berlin can help to get my point across:

I came to the conclusion that there is a plurality of ideals, as there is a plurality of cultures and of temperaments. I am not a relativist; I do not say “I like my coffee with milk and you like it without; I am in favor of kindness and you prefer concentration camps” — each of us with his own values, which cannot be overcome or integrated. This I believe to be false. But I do believe that there is a plurality of values which men can and do seek, and that these values differ. There is not an infinity of them: the number of human values, of values that I can pursue while maintaining my human semblance, my human character, is finite — let us say 74, or perhaps 122, or 26, but finite, whatever it may be. (source)

This description of Berlin’s value pluralism is from the Stanford Encyclopedia of Philosophy:

According to Berlin’s pluralism, genuine values are many, and may—and often do—come into conflict with one another. When two or more values clash, it does not mean that one or another has been misunderstood; nor can it be said, a priori, that any one value is always more important than another. Liberty can conflict with equality or with public order; mercy with justice; love with impartiality and fairness; social and moral commitment with the disinterested pursuit of truth or beauty; … knowledge with happiness; spontaneity and free-spiritedness with dependability and responsibility. Conflicts of values are “an intrinsic, irremovable part of human life”; the idea of total human fulfillment is a chimera. “These collisions of values are of the essence of what they are and what we are”; a world in which such conflicts are resolved is not the world we know or understand. … “we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others”.

The Ethics of Human Rights (20): Why Are There Genocides?

How can there be genocides? Genocides, and especially the holocaust, seem to be impossible to understand. They leave even the most astute thinkers perplexed. What is it that makes ordinary people, people who have never before engaged in violence or crime, turn on their neighbors and even friends in the most extreme way, without any apparent rational reason or provocation?

Hannah Arendt has written a lot about this, and she made the following observation while watching the trial of Eichmann in Jerusalem:

Eichmann committed his crimes under circumstances that make it well-nigh impossible for him to know or to feel that he is doing wrong. (source)

Under extreme circumstances people seem to lose their “moral compass”. They are

swept away unthinkingly by what everybody else does and believes in. (source)

This is what Heidegger called the “dictatorship of the They“: society, the general cultures or mores and the common practices force individuals to act in certain ways and undermine their independent judgment.

It is indeed difficult to tell right from wrong, independently, if almost everyone around you tells you that wrong is right. People’s sense of morality – or moral compass – is deeply influenced by the society they live in and grow up in. If you live in a racist society, chances are high you end up being a racist.

When this “dictatorship of the They” is purposefully cultivated by political elites, propaganda, indoctrination etc, and when, furthermore, it is combined with thoughtlessness or the willingness to give up on thinking – as was the case of Eichmann – then evil and genocide are just a small step away. Thinking, according to Arendt, makes it hard to engage in evil. Thinking is the silent dialogue with yourself. Since people generally want to be in harmony with themselves, it’s better to be the victim of an injustice than the perpetrator (in the words of Socrates), because the perpetrator has to live with the criminal. In this way, a conscience is a byproduct of thinking (Arendt), and the absence of thinking leads to immorality.

However, this explanation of evil, immorality and genocide is unsatisfactory, because it abandons moral responsibility and the possibility of moral and legal judgment. Arendt was acutely aware of this. If we again take the case of Eichmann, how can we possibly judge and convict him if his actions were the result of social pressure and his inability to think? Civilized legal systems as well as moral systems understand that the intent to do wrong and freedom of choice are necessary prerequisites for the commission of a crime.  No responsibility without mens rea: “actus non facit reum nisi mens sit rea”, “the act does not make a person guilty unless the mind be also guilty”.

It’s good to understand how morality is influenced by circumstances and culture, and how crime can result from education, society and thoughtlessness, but that’s not the whole picture. People aren’t just products of their environment. They can think and choose, except perhaps under the most extreme circumstances (such as torture). And I don’t think Eichmann lived in such extreme circumstances. This element of moral freedom is shown by the fact that evil people can arise from the best of circumstances.

Human Rights and International Law (18): Responsibility to Protect (R2P)

The “Responsibility to Protect“, or R2P in U.N.-speak, is a humanitarian principle that aims to stop mass murder, genocide, ethnic cleansing, war crimes and crimes against humanity. It refers initially to the responsibility of states to their own citizens, but in case states can’t or won’t protect their own citizens, other states can step in, respecting the Security Council procedures. However, this is a last resort, especially if the intervention is of a military nature.

The concept is closely linked to, if not indistinguishable from, humanitarian intervention. Often it’s also called the principle of non-indifference, a sarcastic pun on the principle of non-intervention. Some for whom national sovereignty and non-intervention is still the main and overriding rule in international affairs, see R2P as an excuse for Western interference. Noam Chomsky is a notable if unsurprising example. You can read his arguments here. He is joined by a number of governments that risk being a future target.

However, most in the West aren’t jumping the queue to enter into a legal obligation that can force them to undertake expensive and risky interventions in the name of humanity. The fact that these interventions aren’t only expensive and risky but often also without collateral benefits, doesn’t help either. R2P is not yet a legal rule, more a quasi-legal rule. Some legal or quasi-legal texts include the concept. The Constitutive Act of the African Union includes “the right of the Union to intervene in a member state pursuant to a decision of the African Union assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. The same is true for the Security Council of the UN. The concept was endorsed unanimously by heads of state during the World Summit of 2005, so it can be argued that the principle is part of international common law (i.e. international law established by coherent and unanimous state practice).

Crime and Human Rights (5): Decreasing Levels of Violence

Violence is obviously a human rights issue. Violent actions, either by the state or by fellow citizens, violate our physical integrity and personal security. Several articles of the Universal Declaration protect us against different forms of violence: art. 3 protects our right to life and personal security, art. 4 prohibits slavery, art. 5 prohibits torture etc.

Levels of violence throughout history

It’s perhaps counter-intuitive, but violence has been in decline throughout modern history.

Today we are probably living in the most peaceful moment of our species’ time on earth. When the archeologist Lawrence Keeley examined casualty rates among contemporary hunter-gatherers – which is the best picture we have of how people might have lived 10,000 years ago – he discovered that the likelihood that a man would die at the hands of another man ranged from a high of 60 percent in one tribe to 15 percent at the most peaceable end. In contrast, the chance that a European or American man would be killed by another man was less than one percent during the 20th century, a period of time that includes both world wars. … From the Middle Ages to modern times, we can see a steady reduction in socially sanctioned forms of violence. Steven Pinker (source)

This is true for most kinds of violence: war, ethnic conflict, state violence (criminal punishment, torture, repression etc.), war, one-to-one violence (homicide) etc.:

When the criminologist Manuel Eisner scoured the records of every village, city, county, and nation he could find, he discovered that homicide rates in Europe had declined from 100 killings per 100,000 people per year in the Middle Ages to less than one killing per 100,000 people in modern Europe.

And since 1945 in Europe and the Americas, we’ve seen steep declines in the number of deaths from interstate wars, ethnic riots, and military coups, even in South America. Worldwide, the number of battle deaths has fallen from 65,000 per conflict per year to less than 2,000 deaths in this decade. Since the end of the Cold War in the early 1990s, we have seen fewer civil wars, a 90 percent reduction in the number of deaths by genocide, and even a reversal in the 1960s-era uptick in violent crime. Steven Pinker (source)

A cognitive illusion

We tend to believe that the 20th century was the most bloody of all, and that the 21st hasn’t started any better. That’s probably a misconception or “cognitive illusion” fueled by unprecedented information flows. Today, we have magnificent information systems delivering facts, figures and images instantaneously. Compared to that, information about the centuries before is by definition more scarce: few images and newspaper reports, no television reports, less systematic historiography, less durable data sources etc.

That doesn’t make the present-day levels of violence acceptable. On the contrary. Rather than looking at history and concluding that man will always be violent, the recent decreases in levels of violence should encourage us to go all the way. And then it’s important to understand why the levels have gone down.

Why has violence declined?

One reason is undoubtedly the development of the modern state and its judicial apparatus. This apparatus can of course be used to inflict violence, but the risk of this happening has decreased as states have become more democratic, more respectful of the rule of law, and more sensitive to human rights. The democratic nature of many contemporary states has also diminished the risk of inter-state violence (this is the so-called democratic peace theory).

Another, and related, point is that

Thomas Hobbes got it right. Life in a state of nature is nasty, brutish, and short – not because of a primal thirst for blood but because of the inescapable logic of anarchy. Any beings with a modicum of self-interest may be tempted to invade their neighbors and steal their resources. The resulting fear of attack will tempt the neighbors to strike first in preemptive self-defense, which will in turn tempt the first group to strike against them preemptively, and so on. … These tragedies can be averted by a state with a monopoly on violence. States can inflict disinterested penalties that eliminate the incentives for aggression, thereby defusing anxieties about preemptive attack and obviating the need to maintain a hair-trigger propensity for retaliation. Indeed, Manuel Eisner attributes the decline in European homicide to the transition from knightly warrior societies to the centralized governments of early modernity. And today, violence continues to fester in zones of anarchy, such as frontier regions, failed states, collapsed empires, and territories contested by mafias, gangs, and other dealers of contraband. Steven Pinker (source)

Yet another reason for the decrease in the levels of violence is the development of the modern economy. This development has increased the costs of violence. It’s easier to be violent towards your fellow human beings of you live in a subsistence economy and produce everything you need for yourself. When you depend on others for your job and income, your consumption goods, your transport etc. it becomes more costly to act in a violent way towards them. The same can be said of nations: like individuals, nations have become more interdependent in the globalized economy. Acting violently towards other nations has therefore become more costly. Self-sufficiency is no longer an option for nations either.

Yet another reason:

James Payne suggests another possibility: that the critical variable in the indulgence of violence is an overarching sense that life is cheap. When pain and early death are everyday features of one’s own life, one feels less compunction about inflicting them on others. As technology and economic efficiency lengthen and improve our lives, we place a higher value on life in general. Steven Pinker (source)

Lies, Damned Lies, and Statistics (10): How (Not) to Frame Survey Questions

I’ve mentioned before that information on human rights depends heavily on opinion surveys. Unfortunately, surveys can be wrong and misleading for so many different reasons that we have to be very careful when designing surveys and when using and interpreting survey data. One reason I haven’t mentioned before is the framing of the questions.

Even very small differences in framing can produce widely divergent answers. And there is a wide variety of problems linked to the framing of questions:

  • Questions can be leading questions, questions that suggests the answer. For example: “It’s wrong to discriminate against people of another race, isn’t it?” Or: “Don’t you agree that discrimination is wrong?”
  • Questions can be put in such a way that they put pressure on people to give a certain answer. For example: “Most reasonable people think racism is wrong. Are you one of them?” This is also a leading question of course, but it’s more than simply “leading”.
  • Questions can be confusing or easily misinterpreted. Such questions often include a negative, or, worse, a double negative. For example: “Do you agree that it isn’t wrong to discriminate under no circumstances?” Needless to say that your survey results will be infected by answers that are the opposite of what they should have been.
  • Questions can be wordy. For example: “What do you think about discrimination (a term that refers to treatment taken toward or against a person of a certain group that is based on class or category rather than individual merit) as a type of behavior that promotes a certain group at the expense of another?” This is obviously a subtype of the confusing-variety.
  • Questions can also be confusing because they use jargon, abbreviations or difficult terms. For example: “Do you believe that UNESCO and ECOSOC should administer peer-to-peer expertise regarding discrimination in an ad hoc or a systemic way?”
  • Questions can in fact be double or even triple questions, but there is only one answer required and allowed. Hence people who may have opposing answers to the two or three sub-questions will find it difficult to provide a clear answer. For example: “Do you agree that racism is a problem and that the government should do something about it?”
  • Open questions should be avoided in a survey. For example: “What do you think about discrimination?” Such questions do not yield answers that can be quantified and aggregated.
  • You also shouldn’t ask questions that exclude some possible answers, and neither should you provide a multiple-choice set of answers that doesn’t include some possible answers. For example: “How much did the government improve its anti-discrimination efforts relative to last year? Somewhat? Average? A lot?” Notice that such a framing of the question doesn’t allow people to respond that the effort had not improved or had worsened. Another example: failure to include “don’t know” as a possible answer.

Here’s a real-life example:

In one of the most infamous examples of flawed polling, a 1992 poll conducted by the Roper organization for the American Jewish Committee found that 1 in 5 Americans doubted that the Holocaust occurred. How could 22 percent of Americans report being Holocaust deniers? The answer became clear when the original question was re-examined: “Does it seem possible or does it seem impossible to you that the Nazi extermination of the Jews never happened?” This awkwardly-phrased question contains a confusing double-negative which led many to report the opposite of what they believed. Embarrassed Roper officials apologized, and later polls, asking clear, unambiguous questions, found that only about 2 percent of Americans doubt the Holocaust. (source)

Human Rights and International Law (16): In Defense of Universal Jurisdiction

Universal jurisdiction, according to Wikipedia, is:

a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. (source)

Universal jurisdiction departs from the standard principle that there should be some kind of connection between an act and the state asserting jurisdiction over it. In other words, the normal rule is that states exercise justice in relation to crimes committed on their territory or crimes committed by their nationals abroad. Indeed, this departure is the main criticism of universal jurisdiction: by allowing a state to prosecute individuals who are not its citizens, and who have committed crimes in other states, against people who are citizens of other states, we in fact allow this state to violate the right to self-determination of other states.

However, universal jurisdiction is nothing new, and most countries accept some kinds of universal jurisdiction. For example, few now oppose the right of Israel to judge Adolph Eichmann. The discussion, therefore, centers on the proper extent of universal jurisdiction. Human rights activists claim that states should be able to exercise universal jurisdiction in cases of genocide, crimes against humanity, torture, war crimes and slavery.

The reason behind this list is also the main justification of universal jurisdiction. These crimes affect all of us, the whole of humanity, and not just the immediate victims. Those who commit these offenses are hostis humani generis, enemies of humanity. And this has to be taken literally: these crimes are attacks on humanity, not just on individual human beings. The torturer dehumanizes his victim, but also himself. And he infects the society in which he operates. A society that allows torturers in its midst, can no longer be called a society. The same can be said of genocide and the other crimes in the list.

Universal jurisdiction is the act of reclaiming humanity. It is a statement by different parts of the world community, claiming that humanity does not accept such crimes. It is, therefore, an expression of humanity against those who attack humanity. And it’s a powerful expression of humanity precisely because it emerges from different parts of humanity, different countries and nations which all have an interest in the preservation of humanity.

I can imagine that some would object to all of this and would insist that crimes are committed against individuals, and not against an abstract entity such as “humanity”. But then I would invite those people to explain how they differentiate between a single anti-semitic murder and the holocaust. Or between a single case of an individual torturing another individual, and a case of state organized torture. I do believe that the concept of “crimes against humanity” makes sense, and that universal jurisdiction is a good way to respond to those crimes, maybe not from a purely legal point of view (universal jurisdiction isn’t the most effective jurisdiction) but from a human point of view.

The Ethics of Human Rights (15): Justice After Genocide

A new political regime that is installed in a society that has recently suffered human rights violations on a cataclysmic scale, such as genocide or ethnic cleansing (Rwanda and Cambodia are examples), always faces the problem of justice. What to do with the crimes of the past? This is a problem because the crimes in question usually haven’t been committed by a few individuals can that be identified and tried, but by a large majority of the citizens. You can’t put the majority in jail.

The new regime runs the risk of falling into the trap of collective guilt. One particular ethnic group or one class of society is singled out as the perpetrator (e.g. Hutus in Rwanda, forgetting that many victims were Hutu), and those members of this “criminal group” who aren’t put on trial suffer from social stigma. Collective guilt is unjust, and – worse even – mirrors the practice of the genocidaires.

But there’s another trap as well. Mark Drumbl, for example, has coined the phrase “the myth of collective innocence”. By punishing a few perpetrators only, even if they are guilty and perhaps even the “brains” behind the genocide, the impression is given that the large masses didn’t participate, whereas the genocide was only possible because of mass participation. It’s also a well-known fact that selectivity in the application of justice erodes justice. It gives the impression of unfairness, prejudice, nepotism, double standards etc. Why me and not the other guy? Society as a whole may come to see the justice system as seriously flawed. Justice, after all, should be equal.

On the other hand, selectivity is a fact in all justice systems, and in all types of crimes (in the U.K., for example, only 3 % of all crimes are prosecuted). And in the case of genocide, selectivity is perhaps even necessary. The new regime cannot afford to alienate a large part of society. There has to be some kind of national reconciliation. The demands of the victims and their claims of justice for the past, have to be balanced against the future needs of a stable, reconciled society.

Genocide offers a justification for this selectivity. During the “implementation” of genocide, individual culpability is sometimes eroded. In a genocidal situation, social pressures to participate in mass violence can be enormous. Contrary to violence in ordinary crimes, violence in a genocide becomes the norm, the moral thing to do, precisely because it is so widespread. Refusing to participate is morally abhorrent, deviant, and can expose an individual to extreme risk. And we see that individuals quickly internalize this new “morality” and start to act accordingly. (On a smaller scale, this is apparent in the phenomenon of littering. Once it starts to be seen as “normal” to litter somewhere, the littering will become normal behavior). The notion of voluntary participation in genocide becomes problematic.

This doesn’t absolve people from guilt, but it can be attenuating, and it can justify the prosecution of only a handful of planners and organizers. And this in turn can be helpful for national reconciliation. The others may be subject to a more restorative kind of justice, compared to the retributive kind imposed on the important few. Truth commissions can play an important part in this process.

The Causes of Human Rights Violations (10): Prejudice According to Allport’s Scale

People who are aware of, and ashamed of, their prejudices are well on the road to eliminating them. Gordon Allport

Gordon Allport, a psychologist, created Allport’s Scale in 1954. It’s a measure of the manifestation of prejudice in a society. The scale contains 5 stages of prejudice, ranked by the increasing harm they produce.

Stage 1: antilocution

Antilocution (“speaking against”) means making jokes about another group,’a0but also’a0the expression of hateful opinions. In the former case it’s also called derogatory speech, and in the latter case it’s called hate speech. Both cases can be examples of prejudice, prejudice in the sense of an opinion reflecting negative stereotypes and negative images based on preconceived judgments rather than facts.

Antilocution is often believed to be harmless (“sticks and stones will break your bones but names will never hurt you”), but it can harm the self-esteem of the people of the targeted group, and it can clear the way for more harmful forms of prejudice. The line between violent words and violent acts is often very thin. The self-image of a group can be hurt, which can sometimes become a self-fulfilling prophecy.

Stage 2: avoidance

People in a group are actively avoided by members of another group. Harm is done through isolation and by preparing the way for more harmful acts. Xenophobia, or the fear of foreigners or strangers or of that which is foreign or strange, results in exclusion.

Stage 3: discrimination

A group is discriminated against by denying them equal access to opportunities, goods and services. Discrimination is intended to harm a group by preventing it from achieving goals, getting education or jobs, etc.

Stage 3b (added later): subtle aggression

This is an assumption of hierarchy, particularly hierarchy of power, an assumption that somebody has less knowledge because of their age, gender or race or other characteristics and that these people can be excluded in some way.

Stage 4: physical attack

This has become known as hate crime. Groups are the victim of vandalism, the burning of property or violent attacks on someone’s physical integrity such as lynchings, pogroms etc.

Stage 5: extermination

The extermination of a group through genocide, ethnic cleansing etc.

Human Rights and International Law (9): Impunity

I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future. Statement made by Luis Moreno-Ocampo on the occasion of his election as first Prosecutor of the International Criminal Court by the Assembly of States Parties in New York on 22 April 2003.

Many gross violations of rights such as genocides, state oppression, torture etc. are committed by the political class of a country, and in particular by the political leaders. And if they don’t personally dirty their hands, they organize, order, facilitate and protect the executors. They view rights violations as a necessary element in the exercise of power.

For many reasons, legal and practical, these leaders often enjoy impunity, meaning literally “without punishment”. The “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” describes impunity in this way:

The impossibility, de jure or de facto, of bringing the perpetrators of violations to account ’96 whether in criminal, civil, administrative or disciplinary proceedings ’96 since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (source)

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

A first reason for impunity is the fact that the perpetrators are in power and have subjected the justice system and the judiciary to their command. They have, in other words, destroyed the division of powers or failed to institutionalize it. Because they are so powerful, most of them die in the saddle and only have to fear a Higher Judge.

But some do not and end their reign (or see it ended) during their lifetime. But even then they manage to protect themselves. If they still have enough influence to stay in the country, they can either negotiate immunity or amnesty (take the case of Pinochet), or they have enough friends in high places to dispense with such formalities (take Deng Xiaoping, the butcher of Tienanmen).

2. The solidarity of tyrants

If their exit from power is somewhat acrimonious, they may have to flee to another country where a friendly dictator will do everything to avoid a precedent of justice and will harbor the criminal until the end of his days (take Karadzic). How beautiful solidarity can be.

3. The law

Sometimes the national justice system can’t help, and at other times the international solidarity of tyrants hinders an otherwise able and willing justice system. Also the law can come to the rescue. State functionaries (sometimes even former functionaries) claim to enjoy legal immunity in national or even international law for acts carried out while in office. Individual perpetrators hide behind their states. Heads of state or leading functionaries are said to represent their states and all their actions are “acts of state”, and therefore the state is responsible for these acts.

Lower ranking officials are not responsible either, because they can hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible either.

Only by transcending these principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment.) This has been the main achievement of the Nuremberg Tribunal. The Nuremberg tribunal was the first tribunal to judge the crimes of political leaders and to refuse to grant them immunity for war crimes and gross violations of human rights such as the holocaust. The charter of the fledgling International Criminal Court (ICC) also rules out defenses based on immunity:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (source)

Charles Taylor of Liberia was indicted in 2003 while still in power, and is now in the dock in The Hague. Milosevic went before him and others will follow. But they have to be extradited. Political leaders will not extradite themselves, and after they leave office they will continue to enjoy some protection at home. Taylor was arrested because he first agreed to accept exile in Nigeria.

Moreover, countries have to sign up to the ICC treaty. Zimbabwe for example has not signed up, so Mugabe will not have his day in court, unless there is a referral to the court by the Security Council. Sudanese President Omar al-Bashir is now indicted on charges of genocide, crimes against humanity and war crimes over the slaughter in Darfur, but will probably remain comfortably in his seat.

Some claim that the possibility of being handed over to the ICC after the end of their reign, forces tyrants to cling to power and use ever more violent means to do so. But then you could as well grant amnesty to all hostage takers out of fear that they would otherwise do more harm to their hostages.

4. Institutional problems

The impunity of ordinary civil servants or members of the police is often the consequence of under-developed state institutions. Judiciaries that are malfunctioning or corrupt, policemen who are underpaid or have a lack of training etc.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. (source)

Data

The Committee to Protect Journalists has an impunity index in which countries are ranked according to the number of murder of journalists that are unresolved. More statistics are here.

Human Rights and International Law (7): Crimes Against Humanity

A crime against humanity is a large scale atrocity against a civilian population, such as genocide, ethnic cleansing or the massive killing of civilians during war, and is the highest level of criminal offense. It is either a government policy or a wide practice of atrocities tolerated, condoned or facilitated by a government. Atrocities such as murder, torture and rape are crimes against humanity only if they are large scale and part of a widespread or systematic practice organized or condoned by a government. Isolated atrocities are certainly human rights violations, and can perhaps even be war crimes, but they don’t fall into the category of crimes against humanity. (And acts which do not violate human rights can never be crimes against humanity, even if they are widespread and systematic and even if they cause suffering).

Crimes against humanity can take place during a war or in peace time, and can be committed by a state against its own citizens or against the citizens of another state.

Cultural Rights (11): Genocide

 

Genocide is the deliberate, systematic and violent destruction of a group (an ethnic, racial, religious, national or political group). This destruction can take many forms:

  • the outright murder of (the majority of) the members of the group
  • inflicting conditions of life calculated to bring about destruction
  • measures intended to prevent births
  • systematic rape as a means of terror and a means to “dilute” the identity of the group
  • forcibly transferring children of the group to another group
  • destroying the (cultural) identity of the group (forceful assimilation; imposition of a language, religion etc.)

“Systematic” is important here. Short-term outburst or pogrom type actions will probably not amount to genocide.

The “intent to destroy” is also crucial when labeling actions or campaigns as genocidal. The destruction, however, doesn’t have to be physical (i.e. large-scale murder). As is obvious from the list above, cultural destruction or destruction of the groups’ separate identity is also genocide.

Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide states that genocide is

“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group…”

The “in part” bit has led to some confusion. When is the part of the group that is being destroyed big enough to warrant the label of genocide? There is still some discussion about absolute numbers of victims, percentages of the total population of the group, degree of killing in the territory controlled by the killers etc.

Of all the generally recognized genocides that have taken place throughout human history, the most infamous ones occured in the 20th century (the Holocaust, Rwanda, Armenia, Cambodia, Stalin’s forced famines, Mao’s Great Leap Forward etc.).

Before a genocide is actually carried out, the perpetrators usually take a number of “preparatory” steps:

  • dehumanization of a group (vermin, insects or diseases…)
  • promotion of narratives of “us and them
  • hate propaganda, polarization
  • criminalization of a group (group has to be eliminated “in order that we may live”; them or us)
  • identification of victims (“yellow star”)
  • concentration of victims (ghettos)
  • mobilization of large numbers of perpetrators
  • state support and logistical organization (arms, transport, training of militias etc.)

The causes of genocide are often hard to pin down. They include:

  • long-lasting tensions
  • imbalances in political power
  • imbalances in wealth or economic power
  • scarcity
  • religious incompatibilities
  • indoctrination and propaganda
  • civil war
  • ideals of cultural purity and autonomy
  • ethnological constructs (e.g. the creation of “hutuness” in Rwanda) which get a life of their own
  • colonial heritage
  • outside indifference
  • etc.

Migration and Human Rights (6): Xenophobia

Xenophobia, the contempt or fear of strangers or foreign people, often people of a different race or ethnic group, is not considered to be a disease like other “phobias”. It is part of a political struggle against adversaries, much like racism is. (Whereas racism is certainly xenophobic, xenophobia doesn’t have to be racist; it can be directed against groups which are not racially different from the xenophobes).

Xenophobia often takes places within a society rather than between societies. A group present within a society is not considered a legitimate part of that society and has to be expelled or assimilated in order not to corrupt or damage the interests of the rest of society. Hence the link to ethnic cleansing or genocide.

Causes of xenophobia include:

  • Ethnically-based nationalism (e.g. xenophobia in the Balkan countries)
  • Migration, although xenophobia may be directed against a group which has been present for centuries, or against very small numbers of immigrants or foreigners (e.g. Japan in the 19th century)
  • Perceived threats to culture or national identity
  • Religious doctrine (e.g. the attitude of some Muslims towards unbelievers)
  • Perceptions of neocolonialism (e.g. present-day Zimbabwe)
  • Political imbalances (e.g. one group holding a disproportionate share of political power, e.g. anti-Tutsi xenophobia in Rwanda before and during the genocide)
  • Terrorism (e.g. anti-Muslim xenophobia following 9-11)
  • Competition for scarce resources
  • A mix of the above.

Cultural Rights (9): Ethnic Cleansing

Ethnic cleansing is the violent displacement of an ethnic group from a particular territory in order to create an ethnically “clean” unit, i.e. a territorial unit composed of only one ethnic group. The means used to achieve ethnic unity are:

  • direct military force
  • police brutality
  • genocide
  • the threat of force
  • intimidation
  • rape
  • pogrom
  • demolition of housing, places of worship, infrastructure
  • discriminatory legislation or policies
  • tribal politics
  • economic exclusion
  • hate speech, propaganda
  • rewriting of history, fabrication of historical resentment
  • a combination of the above.

Given these various “tools”, it is not correct to equate ethnic cleansing with genocide. There are more or less violent forms of ethnic cleansing, although all forms contain some kind of force, otherwise one would speak merely of voluntary migration. Deportation or displacement of a group, even if effected by force, is not necessarily equivalent to destruction of that group.

Given the element of force it is correct to denounce all forms of ethnic cleansing, not only on the grounds of some kind of ideal of multiculturalism, but also on the grounds of the self-determination of the people involved, of their right to settle where they want, their freedom of movement etc. It is defined as a crime against humanity.

The best known cases of ethnic cleansing are:

  • Bosnia and Herzegovina in the 1990s
  • Iraq during the Iraq war
  • India and Pakistan during their partition
  • The Georgian-Abkhaz conflict
  • Rwanda during the genocide
  • The relocation of Native American peoples from their traditional areas
  • The forced removals of non-white populations during the apartheid era
  • The Palestinian exodus
  • Central and Eastern Europe during and immediately after World War II
  • Darfur
  • etc.

However, it seems that this tactic has been known to humanity since a long time. Some even believe that the Neanderthals were victims of ethnic cleansing.

Some of the justifications given in defense of ethnic cleansing are:

  • To remove the conditions for potential and actual opposition. According to Mao Zedong, guerrillas among a civilian population are fish in water. By draining the water, one disables the fish.
  • To create a separate state for one ethnic group. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. A multicultural nation can never be legitimate according to nationalism, because one assumes that in such a state it is inevitable that some groups are ruled by others and hence do not have an authentic and autonomous existence. The only way to have homogeneous territories in our multicultural and melting-pot world with no clear territorial separation of groups within states, is the use of force.
  • To redeem a society that is literally “unclean” and “sick” because of the presence of inferior humans.

Human Rights and International Law (3): Humanitarian Intervention

This post focuses on one type of humanitarian intervention only, namely so-called armed humanitarian intervention (although I’ll drop the “armed” for easier reading). Humanitarian intervention is an armed intervention in one state by another state or states with the objective of ending gross violations of human rights, such as genocide or ethnic cleansing.

Whereas the moral case for such an intervention is very strong, it remains controversial because of the fact that violence is used and that the national sovereignty of the “receiving” state is violated. One could easily justify the breach of sovereignty since the fate of the victims is obviously more important than sovereignty. Furthermore, this breach is inherently temporary because neither annexation nor interference with territorial integrity is at stake. But the use of violence is more difficult to justify.

It seems that humanitarian intervention is only justified when certain conditions are met:

1. Legitimate authority

The states that act cannot unilaterally decide that intervention is necessary. There must be some kind of general conviction that the situation is serious and that some kind of forceful intervention is warranted. A Security Council resolution can be the authority.

If there is a general conviction that action is necessary but there is no explicit Security Council approval of intervention – because of the veto or because of other reasons – then we have to be careful. If states can unilaterally decide to intervene, even against world opinion, then we have international chaos. Everybody takes the law in his own hands, and states will quickly find human rights excuses to intervene wherever they want. Some legitimate authority must have expressed something close to a world opinion regarding the necessity of intervention. Individual actors cannot decide autonomously. An approval of the General Assembly may indicate that there is consensus, but a Security Council resolution is better because this will guarantee that the intervention will not cause superpower conflicts.

2. Collaboration

As an elaboration of the previous point, one must demand that the intervening states be as numerous as possible in order to avoid accusations of self-interest, partiality and power politics. Collaboration also increases the chance of success (see condition 4.)

3. Right intention or appropriate goal

The main goal of the intervention must be the protection of human rights. The accusations that often accompany US-led interventions are generally unhelpful, except of course when they are true.

4. Probability of success

There must be a real chance that the intervention can be successful.

5. Last resort

Other and more peaceful means must have been tried first, although the urgency of the matter can make immediate military action acceptable.

6. Proportionality

The intervention must be proportional to the evil it is meant to destroy. Not enough intervention can cause more harm than before without a real chance of solving the initial problem. Too much intervention will also cause more harm than before. The costs must not outweigh the benefits. We must prevent more harm than we cause, although one must be careful when making utilitarian calculations. Violence always results in rights violations. Hence the rights violations one is willing to accept as a consequence of violent intervention cannot outweigh the violations that originally caused the intervention. How many rights violations can one cause when fighting rights violations? Theoretically, one cannot sacrifice certain people’s rights – for example, the rights of innocent civilian victims of air bombardments – for the sake of other people’s rights – for example, the victims of the dictatorship that is the target of the bombardments. However, most of us believe that in extreme circumstances, it is acceptable to sacrifice some rights or the rights of some in order to protect many more rights or the rights of many more. This means that violence is only acceptable in extreme cases, namely when the rights of many or many rights are violated.

7. Ius in bello

The laws of warfare must be respected.

8. Peace

If there is a threat to international peace, then the intervention will have a stronger claim to legality. But this is not a necessary condition.

Human Rights and International Law (2): Universal Jurisdiction

Some countries have granted their courts so-called “universal jurisdiction” in certain matters. Traditionally, courts only have national jurisdiction and can only punish crimes committed on the national territory; crimes committed elsewhere should be handled by the courts of the country in question or by international courts. Laws of one country are also generally understood to be applicable in that country only. Universal jurisdiction in effect leads to extra-territoriality of the law. Some laws are valid outside the territory as well and national judiciaries can apply these laws to acts committed elsewhere.

Belgium, for instance, at one time allowed its courts to prosecute genocide, even if the crime of genocide was committed abroad and no Belgians were involved either as perpetrators or as victims. This was a commendable initiative from a moral point of view, but there are several reasons why universal jurisdiction is not very effective and cannot replace national and international law.

  1. The victims of genocide, or the representatives of these victims, if they already know that Belgian courts can possibly help them, will find it difficult to go to Belgium to plead their case. These people will probably live in some Third World country and will not have the financial means to start court proceedings in Belgium (where the hell is Belgium anyway?)
  2. The perpetrators are mostly not in Belgium and can therefore not be punished by the Belgian courts. If convicted, they will simply avoid Belgium and it is unlikely that they will be extradited by their home state since they generally occupy a leading function in the government of their state. The only tangible result is a number of diplomatic crises between Belgium and other states, sometimes traditionally friendly states.
  3. The Belgian courts quickly find themselves in the position of Atlas, carrying the whole burden of global suffering. There is no way in which these courts, already suffering serious delays, can handle all submitted cases.
  4. Political agitators will use the Belgian law to make publicity for their case. They will be tempted to file spurious charges against their political enemies. For example, friends of Saddam Hussein filed charges against President George W. Bush and some other leading members of his administration for waging war against Saddam. The Belgian courts, of course, could not refuse these charges without examination. So an investigation was launched, which deeply upset the Americans, who even threatened to move NATO headquarters out of Belgium, supposedly to protect American officials visiting these headquarters. After all, the Americans know that they are no saints and that Belgian courts can one day decide that there is a case to be made against some of their officials, and can try to arrest them.
  5. What if several states decide to start cases simultaneously against one and the same offender, each using its right to universal jurisdiction? That would create judicial uncertainty and many practical problems.

However, in the absence of effective national or international jurisdiction, universal jurisdiction may be the only alternative. And even if it’s not effective for the reasons given above, it sends a signal.