What Are Human Rights? (26): The “Human” Part of Human Rights

Why do we need the qualifier “human” when we talk about human rights? Why is the word “rights” not enough? The obvious reason is that we want to broaden the class of protected persons to cover the whole of humanity. Traditionally, rights were accorded only to specific groups of persons, e.g. the nobility, guilds, citizens etc. The essence of human rights is their universality, which means that they are rights that belong to human beings whatever group they are part of and wherever they happen to live. People have certain rights for the simple reason that they are human; there’s no need for any other reason such as group affiliation, nationality, form of government, legal system etc.

Human rights can thus be seen as the end state of a long expansionary evolution during which ever broader groups of people acquired certain rights. However, the inclusiveness of human rights has often been countered by exclusionary movements. If some want to include a maximum number of people under the protection of rights, others have an interest in the continuation of rights violations. The latter have two options: challenge human rights directly (e.g. by claiming that they are western rights, godless rights etc.), or take the more indirect route: maintain the notion of human rights but at the same time exclude some categories of people from humanity.

Many rights violations are explicitly or implicitly justified by reference to an absence of humanity on the part of the targets of those violations. The terror inflicted by Al-Qaida, the televised beheadings of innocent hostages etc. proves that these people are less than human. They are “animals” and can’t therefore claim that their “human” rights are respected when they are executed extra-judicially, eliminated by way of targeted killing, tortured, or arrested indefinitely in Guantanamo. Perhaps people don’t mean it literally when they say that terrorists are animals. Perhaps they do accept that they are human – they look human after all – but at least they are lesser humans, and hence not deserving the same rights as the rest of humanity. Perhaps they are merely barbarians, a separate and inferior class of humans.

The same attitude is evident in certain non-consequentialist justifications of capital punishment: the people who are executed are “the worst of the worst”, “animals” that have proven their inhumanity by way of their crimes. Also the native populations of colonized territories were considered to be non-human or at least lesser humans. There was a time when westerners weren’t sure that these people had a “soul”, a classic if currently somewhat outmoded distinguishing mark of humans. For those who believed they didn’t have a soul, their enslavement and murder was as acceptable as keeping and slaughtering animals. It took a Papal Bull to attempt to reign in the more extreme colonizers, without much success by the way.

This raises the fundamental question: what is “human”, what does it mean to be human, what is humanity? Respect for human rights depends on the type of answer we can agree on. Ideally, we would like to have a broad definition that makes it difficult if not impossible to exclude large portions of homo sapiens from the category of humanity and to violate their rights as a result of this exclusion. Claiming that someone is human because of his or her “good behavior”, e.g. non-terrorist and non-murderous behavior, is not the right way forward. “Good behavior” is a moralistic notion that can be defined in lots of different ways. Hence we potentially exclude the large majority if not the totality of people from humanity if we go along that road.

On the other hand, a non-moralistic definition, for instance a naturalistic or biological one, isn’t necessarily better. Given the way in which we treat animals, it’s probably best to avoid a definition of humanity as a distinct animal species (in Plato’s phrase, the “featherless biped“). An animal species, however distinct from other species, still consists of animals that are in some sense like other animals belonging to other species. We don’t have moral rules that tell us to treat cats differently from dogs, so a definition of humanity as a distinct animal species is unlikely to yield moral rules that tell us to treat humans differently from cats or dogs.

However, biology can be a useful element in the definition of humanity since it’s biology that justifies some human rights. Some of the biological vulnerabilities that are distinctive of us featherless bipeds, and perhaps even some of the vulnerabilities we share with some non-human species (e.g. the ability to suffer) can be seen as reasons to respect certain human rights. (Although in the latter case the price to pay would be to grant the same rights to non-human species that have the same vulnerabilities; those human rights would then no longer be strictly “human” rights. But perhaps that’s a price we should be willing to pay).

However, for the reasons given above biology is hardly sufficient for the definition of humanity. I guess we also don’t want to use the concept of “soul” to define humanity, given its association with religion. Ideally, we want to be persuasive to the non-religious violators of human rights as well, and those won’t be swayed by soul talk (perhaps they won’t be swayed at all but at least we can try). “Human nature” is a discredited concept, dignity is excessively vague, and moral agency seems to be less typical of humanity than we once believed.

So what can we use? I’ve argued elsewhere that some values that are typical of and in certain cases exclusive to human beings – or homo sapiens – can be seen as adequate justifications of human rights, since these rights serve the realization of those values (examples of those values are the importance of thinking, of social and cultural life, of religion, of prosperity, peace etc.). Excluding certain specimen of homo sapiens from the category of humanity or “real humanity” is then an attack on values that are shared by all specimens; rights violators then unwillingly attack their own values.

However, one problem remains. People’s rights aren’t necessarily safe, not even if we can settle the question of humanity and define the concept in such a way that it becomes difficult to exclude people from humanity. Humanity itself can be the problem. If human rights can be violated when a person’s humanity is denied, it’s also the case that a person who’s merely human runs the same risk. Hannah Arendt has often cited the plight of stateless persons before and after WWII, people whose nationality had been taken away from them by their racist, fascist or xenophobic governments, and who therefore only had their “humanity” left. In the best of cases, they were refugees in foreign countries where their rights were far from safe given that many countries only protected the rights of their own citizens.

The notion of humanity inherent in human rights is also incompatible with widespread feelings of partiality: most of us care more for our family and friends than for the rest of humanity, and some of us also care more for fellow-citizens. Somehow that’s inevitable: not only is it psychologically impossible to care for all the misery in the world – there’s simply too much of it – but it also seems morally right to care more for those who are closer.

In all those examples, we see that human rights have to come back to partiality. Inherent in human rights is universal inclusiveness, but at the same time we see that human rights can only be adequately protected when they are at the same time rights of very specific subgroups of humans: citizens, soldiers, family etc.

More on dehumanization and universality.

Lies, Damned Lies, and Statistics (26): Objects in Statistics May Appear Bigger Than They Are, Ctd.

I’ve mentioned in a previous post how some numbers or stats can make a problem appear much bigger than it really is (the case in the previous post was about the numbers of suicides in a particular company). The error – or fraud, depending on the motivation – lies in the absence of a comparison with a “normal” number (in the previous post, people failed to compare the number of suicides in the company with the total number of suicides in the country, which made them leap to conclusions about “company stress”, “hyper-capitalism”, “worker exploitation” etc.).

The error is, in other words, absence of context and of distance from the “fait divers”. I’ve now come across a similar example, cited by Aleks Jakulin here. As you know, one of the favorite controversies (some would say nontroversies) of the American right wing is the fate of the prisoners at Guantanamo. President Obama has vowed to close the prison, and either release those who cannot be charged or tranfer them to prisons on the mainland. Many conservatives fear that releasing them would endanger America (some even believe that locking them away in supermax prisons on the mainland is a risk not worth taking). Even those who can’t be charged with a crime, they say, may be a threat in the future. I won’t deal with the perverse nature of this kind of reasoning, except to say that it would justify arbitrary and indefinite detention of large groups of “risky” people.

What I want to deal with here is one of the “facts” that conservatives cite in order to substantiate their fears: recidivism by former Guantanamo detainees.

Pentagon officials have not released updated statistics on recidivism, but the unclassified report from April says 74 individuals, or 14 percent of former detainees, have turned to or are suspected of having turned to terrorism activity since their release.

Of the more than 530 detainees released from the prison between 2002 and last spring, 27 were confirmed to have engaged in terrorist activities and 47 were suspected of participating in a terrorist act, according to Pentagon statistics cited in the spring report. (source)

Such and other stats are ostentatiously displayed and repeated by partisan mouthpieces as a means to scare the s*** out of us, and keep possibly innocent people in jail. The problem is that the levels of recidivism cited above, are way below normal levels of recidivism:

[In the] general population, … about 65% of prisoners are expected to be rearrested within 3 years. The numbers seem lower in recent years, about 58%. More at Wikipedia. (source)

Terrorism and Human Rights (7b): Arbitrary Arrest and Guantanamo

All democracies arrest people without a charge or conviction, but they only do so for very short periods of time, usually a very limited number of days. Also, when a charge is filed, democracies want to have a court case as soon as possible. Detention on remand, as it is called, is confinement in a house of detention prior to treatment of a case in court. Generally, this type of detention is imposed, if a person is suspected of a serious crime and if he/she is prone to escape, to tamper with the evidence, to commit further crimes etc. Democracies also want to keep this detention on remand as short as possible, because there is always the risk that an innocent person is imprisoned.

In a well-functioning judicial system, there can be no excessively long detention without a charge or detention on remand. We do not want to incarcerate innocent people. Without a time limit – usually expressed in number of days – detention without charge or detention on remand would be arbitrary arrest. And arbitrary arrest is typical of tyranny. An arbitrary arrest is an arrest of a person without evidence of this person’s involvement in a crime. If there is such evidence, then there can be no problem presenting this evidence within a very short delay, after which the person can be formally charged and a court case can be decide on guilt or innocence, also within relatively short delays. A long delay between an arrest and a formal charge or between an arrest and a court decision on guilt or innocence, would create an injustice if it turns out that the person in question is innocent. The harm done by this possible injustice can be limited is the time frames are short. All this is part of treating people fairly and doing justice.

Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile”. This is linked to habeas corpus.

Unfortunately, the U.S., still a beacon of democracy and the rule of law, has decided that its war on terror forces it to imitate dictatorships and to detain people, in Guantanamo and other places, without a warrant, without a charge, without a fair trial and conviction, and for indefinite periods. Let’s hope the new administration will close these prisons soon and, if there is evidence, formally charge the inmates.

The government in the U.K., not having an equivalent of Guantanamo, has simply decided to change the period and extend the number of days it can detain people without charge.

Terrorism and Human Rights (4): Habeas Corpus

Habeas Corpus, literally (from Latin) “(We command) that you have the body”. This is an important legal tool to defend oneself against arbitrary or unlawful arrest. Habeas Corpus is a legal action undertaken to seek relief from arbitrary or unlawful arrest, either by the person arrested him or herself, or by a representative. The court should then issue a writ (a writ is a formal written order issued by a court) ordering the custodian, i.e. the person or institution imprisoning a person, to bring this person to the court so that the court can determine whether the custodian has lawful authority to hold the person. If not, the person should be released from custody.

Any prisoner, in a well functioning judicial system, may petition the courts or individual judges for a writ of Habeas Corpus. (A petition is a request to an authority, more specifically in this case it is a legal pleading that initiates a case to be heard before a court. The purpose of a pleading is a correction or repair of some form of injustice, e.g. arbitrary arrest).

Habeas Corpus does not determine guilt or innocence, merely whether the person is legally imprisoned or not. It can also be a writ against a private individual detaining another, for example in slavery.

It has historically been and still remains today an important tool for safeguarding of individual freedom against arbitrary state action. Currently, the U.S. is trying to set very strict limits to the writ, limits previously unheard of in democratic societies. The current U.S. administration believes restrictions on Habeas Corpus are necessary in the war on terrorism.

Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile”. One can therefore claim that the writ is an important means to make this right real.