Human Rights and International Law (21): Human Rights and the Irrelevance of the Law

If you want to promote respect for human rights you’re likely to turn to the law, and not just any law: human rights are usually if not always included in constitutions and in the human rights treaties that countries have accepted. They are, in other works, part of the basic law. You hope and expect that those in charge of verifying respect for the law and enforcing this respect when it’s absent will see that the case you bring before them is a clear violation of human rights – clear on the basis of the evidence you present – and will use their legal monopoly of violence in order to force the violators to stop, to respect the law and to remedy the harm that is done to you or to those you represent. Judicial courts, including international courts, and enforcement agencies such as the police force, the military, peacekeepers and such, are believed to be the institutions that are best placed to promote respect for human rights law.

You may have many good reasons for this belief: there’s the authority of the law as a special kind of rule, stronger and more commonly accepted than rules of morality, and there’s the possibility to use violence as a means to coerce. You may also have good reasons to believe that these legal and enforcement institutions will never be perfect: there can be perjury, judges may be incapable, suspects can escape, the police may be corrupt, laws can be counterproductive etc. Still, you strongly believe that the law is the best you can hope for in a world of imperfect humans, and certainly better than self-defense or persuasion.

Many of us will recognize our own beliefs in this description. However, one could easily call these beliefs naive. Look at the Supreme Court in the U.S. for instance. Would there be so much bickering over the nomination of new Justices by acting Presidents, if the judicial protection of rights was the quasi-mechanical process that I just described? Or is this bickering not proof of the fact that the political affiliation of the Justices determines to a large degree their rulings? Why would the other political party systematically object to the Justices proposed by the President if the politics of those Justices don’t make a lot of difference in the way they rule? But if those politics do make a lot of difference, what is left of the credibility of the system of law as a means to enforce respect for rights?

Some of this skepticism is the basis of the theory of legal indeterminacy. This theory states that laws have nothing to do with how judicial cases come out; that lawyers and judges can manipulate laws and the legal system in order to justify any decision they please; and that any possible result in any legal dispute can be justified as the legally correct outcome. If laws do not determine or – according to a more moderate form of the theory – do not significantly constrain judicial decisions, then it’s often futile or even risky to ask a judge to rule on a supposed rights violation. You may get the result you want, but only if the judges share your moral, political or religious outlook. In the worst case, your tormentor is vindicated, which will only encourage him and others like him.

The theory of indeterminacy is corroborated by the historical shifts in rulings based on the same texts. Take for example the death penalty in the U.S., which has been ruled both constitutional and unconstitutional. Of course, the indeterminacy of the law is not always the fault of judges, lawyers or prosecutors. The legislators also have a role to play. Laws have to be clear and unequivocal.

On the other hand, it’s impossible to require strict determinacy: no law, however carefully crafted, will produce one and the same legally acceptable type of outcome over decades. There will always be so-called hard cases that require interpretation and choices. And because beliefs and opinions change over time, interpretations and choice will also change. Still, in all legal systems in the world, there seems to be much more indeterminacy than what most of us believe would be optimal.

Take another example: international criminal justice. Here as well it’s clear that the equal application of the law is just a sick joke. Security Council Resolutions – which can be seen as quasi-judicial – are notoriously inconsistent, and their application is even more inconsistent. The International Criminal Court, one of the best international legal institutions around, only manages to prosecute the worst violators in the poorest and geopolitically irrelevant parts of Africa. China merely has to hint at possible economic consequences and all human rights talk about China – let alone action against China – stops instantly. Never mind the fact that China has accepted human rights treaties. Russia is part of the Council of Europe and has therefore accepted the jurisdiction of the most powerful international human rights court in the world. And yet, we all know< that human rights in Russia are far from safe. International human rights law clearly suffers from collective action problems, perverse incentives, competing priorities and double standards.

So, if it's naive to rely only on the law, which other means do we have in order to promote respect for human rights? The two major alternatives to law are story-telling and honor. Read more about those here and here respectively.

Measuring Human Rights (8): Measurement of the Fairness of Trials and of Expert Witnesses

An important part of the system of human rights are the rules intended to offer those accused of crimes a fair trial in court. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  • We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
  • We also want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.

Most of these rules are included in, for example, articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights, article 10 of the Universal Declaration, article 6 of the European Convention of Human Rights, and the Sixth Amendment to the United States Constitution.

Respect for many of these rules can be measured statistically. I’ll mention only one here: the rule regarding the intervention of expert witnesses for the defense or the prosecution. Here’s an example of the way in which this aspect of a fair trial can measured:

In the late 1990s, Harris County, Texas, medical examiner [and forensic specialist] Patricia Moore was repeatedly reprimanded by her superiors for pro-prosecution bias. … In 2004, a statistical analysis showed Moore diagnosed shaken baby syndrome (already a controversial diagnosis) in infant deaths at a rate several times higher than the national average. … One woman convicted of killing her own child because of Moore’s testimony was freed in 2005 after serving six years in prison. Another woman was cleared in 2004 after being accused because of Moore’s autopsy results. In 2001, babysitter Trenda Kemmerer was sentenced to 55 years in prison after being convicted of shaking a baby to death based largely on Moore’s testimony. The prosecutor in that case told the Houston Chronicle in 2004 that she had “no concerns” about Moore’s work. Even though Moore’s diagnosis in that case has since been revised to “undetermined,” and Moore was again reprimanded for her lack of objectivity in the case, Kemmerer remains in prison. (source)

The Causes of Human Rights Violations (13): Rights Suffering Under the Law, The Problem of Legal Human Rights Violations

This post is about the law violating human rights. I understand that this is only one of many ways in which rights can be violated, and certainly not the most important one. Genocide, poverty, torture, war etc. are all major human rights violations, but only rarely if ever do they occur because a law instructs people to kill, maim or impoverish their fellow human beings. On the contrary, many human rights violations result from breaking the law, and the law has often been the last refuge for human rights.

So we have two different types of rights violations, illegal and legal violations.

1. Illegal violations

Illegal violations are acts that violate human rights and at the same time break laws that make these violations illegal. This type of rights violation always implies some kind of inefficiency in the national justice systems. These justice systems are supposed to prosecute illegal rights violations, but often fail to do so, for two possible reasons: inability or unwillingness. They may be grossly inefficient, or they may be corrupt and complicit with the rights violators. So illegal violations may be divided into two subtypes:

1.1. Illegal violations caused by government incompetence

These violations occur because of the government’s inability to stop them. An example would be robbery or murder.

1.2. Illegal violations caused by government complicity

These occur because of the governments unwillingness to stop them. The judicial and police systems are covering for the rights violators. An example could be torture in Guantanamo.

2. Legal violations

Legal violations, on the other hand, are rights violations that are condoned or imposed by the law and by the justice system. This type as well can be further divided into two subtypes:

2.1. Violations that are imposed by the law

Some examples: capital punishment, jim crow, some aspects of Islamic law, blasphemy laws, lèse majesté laws, homosexuality laws…

2.2. Violations that are not punished by the law

These are acts which are not illegal because the law remains silent on them, but which violate human rights. This type can be further divided. Violations are not punished by the law

  • either because it is believed that these violations should not be considered a crime (the contrary act is then often believed to be a crime) (case 2.2.1.)
  • or because it is difficult to determine the party responsible for the violations (case 2.2.2.).

Some examples of case 2.2.1.: in some countries there is no legal concept known as marital rape; other countries do not outlaw abortion (for those who agree that abortion is a human rights violation). Some examples of case 2.2.2.: poverty, famine…

One caveat, however. “Legal” in this setting means “legal according to national law”. One could justifiably claim that there is no such thing as legal human rights violations since international law makes all violations illegal and renders national laws condoning or imposing violations, null and void. However, this is theory. In practice, national legal systems continue to impose and enforce, sometimes quite effectively, laws which either condone or impose violations.

Separation of Powers and Human Rights

The theory of the separation of powers traditionally differentiates between three branches of power:

  • the legislative power (parliament)
  • the executive (the government, the administration and the police)
  • and the judiciary.

Separation of powers means independence of powers with regard to each other. The three powers are separated and divided organizations of the state. No power can assume the competence or functions of another power or can interfere with another power’s business. A few examples:

  • The executive should not vote laws (the so-called “government by decree”).
  • The legislative power should not appoint or dismiss the government or the head of the executive (this should be a prerogative of the people).
  • The judiciary should be able to work without political interference from the legislative power or from the executive, and should be able to judge cases in an independent and impartial way. The judge should not be an instrument of politics or a “political worker” who executes the decisions of the executive, as was the case in Soviet Russia for example. He is subject only to the law, and the law, contrary to an order by Comrade Stalin for example, cannot be used to influence verdicts because it is general and neutral.
  • Judges should not interfere in legislation or politics (they enter the stage when the work of politics is already accomplished; they apply the law as it is voted by the legislative).

However, this is not the end of the story. Independence does not mean that a power can do as it likes without accountability. The independence is limited because one power can control, correct, rebuke, limit or stop another power if there is an abuse of power or a violation of rights.

Some interference is necessary. Separation does not mean isolation. Powers are separated precisely because then they can check each other. If all power is concentrated in the same person or institution, then this power cannot be checked. There is no higher power than the state and hence the state must control, limit and correct itself (the “international community” is still very weak). If power has to limit itself, then it has to be divided into different parts. There must be powers and counter-powers, checks and balances. Every power moderates the other powers because every power holds the reins to force the other powers in a certain direction. A citizen must be able to go to one power in order to claim redress or compensation for violations of rights by other powers. Power protects against power and power can contradict and correct power.

Violations of human rights by one part of the state must be corrected by another part, otherwise human rights remain words without reality. Judges can control the laws of the legislature and the actions of the executive. If they find that these laws or actions are incompatible with the human rights included in the Constitution or in an international treaty, then the judges can declare these laws to be invalid or these actions to be unlawful, even if these laws and actions are supported by a democratic majority (which is normally the case in a democracy).

The power of the legislative, the executive and the majority is limited. The judiciary makes sure that both the legislative power and the executive act according to the highest law of the land, which is, after all, also an expression of the will of the majority (at least in an ideal democracy, because an ideal democracy allows the citizens to vote on the Constitution and on international treaties). Human rights and the Constitution can be used against the legislator in order to counteract the tyranny of the majority (also known as democratic oppression). When judges do this, they engage in what is called “judicial review“. The legislator can be wrong and laws can be oppressive. The law is more than just the will of the legislator. A valid law has to conform to certain requirements at the level of content, independently of the will of the legislator. A law cannot be anything, otherwise the rule of law would be a meaningless concept.

I mentioned a moment ago that the judiciary should not interfere with politics or legislation. However, is judicial review of legislation not a part of legislation? Controlling and invalidating laws, overruling the legislative power by way of a veto-right, creating a certain coherence in legislation, making sure that ordinary laws conform to the higher law (the Constitution), is this not legislation? And is it not legislation enacted by a non-elected minority which imposes its will on the majority of the people as it is represented in the legislative power, and which takes its decisions outside of the public debate? Should not an ideal democracy reject judicial review? In other words: is it not impossible for an ideal democracy to protect the rights and freedoms of the minority?

These questions are based on a false hypothesis. When a judge controls the conformity of an ordinary law and a higher law, he does not engage in legislation. He or she only makes sure that the higher law is strictly applied and respected. And as the higher law is the supreme expression of the will of the people – in an ideal democracy, the people can vote the Constitution – a judge only makes sure that the will of the people is strictly executed. There is nothing undemocratic about this and it has nothing to do with legislation. A judge who is confronted with a law which contradicts the Constitution cannot apply this law because otherwise he or she would be acting in an unlawful manner. The higher law has priority over the lower law. A lower law has to conform to the higher law, otherwise it is invalid and non-existing, “null and void”. A judge can declare the illegality of a law and can destroy a law without engaging in legislation.

The judge remains subject to the law and is not above the law or above the legislator when he or she invalidates a law. The judge remains subject to the higher law. Judicial review does not imply that the judiciary is more important or more powerful than the legislative power or than the will of the people. It only implies that the higher law is more important than the lower law and the higher legislator is superior to the lower legislator. Judicial review does not imply an exaggerated or a predominant political or legislative role for the judiciary compared to the role of the legislative power, at least as long as we consider the framing of a Constitution to be part of the legislative power. A judge can never decide on fundamental social problems or political conflicts. He or she can only apply the law, first the higher law and then the lower law.

Human rights possess a threefold significance: they are themselves standards of behavior; they constitute criteria for assessing the lawfulness of other rules (since they override all other norms, which are null and void in case of conflict); [and] they embody “instructions and guidelines” … for the creation and development of other rules. Antonio Cassese.

Individuals whose rights are violated can coerce the state – even though most of the time it is the other way around – but only on the condition that there is a separation of powers and that one power can be used against another.

However, this means that judges should not be predominantly in favor of one political party or one political philosophy, because otherwise they will review the laws from one and the same political perspective. If the judiciary is predominantly conservative, for example, then it will treat liberal laws in a very critical way and it will tend to systematically invalidate these laws because of their conservative interpretation of the Constitution.

Judicial control of the constitutionality of laws and government actions is only one example of a power limiting another. Here are some other examples:

  • A judicial verdict applies the law and is therefore dependent on the law. A judge cannot decide what is contrary to the law, which means that the legislator de facto limits the actions of the judiciary.
  • The executive is accountable to and is controlled by the legislative power. It has to give account of the way in which it has applied the laws. However, the legislative power cannot dismiss the government as a consequence of this control, at least as long as the government is directly elected, which is the case in an ideal democracy.
  • A president often has a veto-right and can block certain laws voted by the legislative power. This is acceptable on the condition that the president is directly elected.

Human Rights and International Law (10): Why Do Human Rights Need International Law?

Human rights law has globalized during the last decades. And it has done so in two ways:

  • human rights have become part of most national constitutions
  • and have been enshrined in widely accepted international treaties.

In this post, I will look at the relative usefulness of these two movements. The conclusion will be that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative for human rights protection.

Originally an invention of the French and American revolutions in the eighteenth century, human rights have now become part of a global legal consensus. Although there are many violations of human rights and some philosophical, ideological, cultural, or religious objections to some human rights, the fact is that these rights are part of internationally recognized legal documents (mostly treaties) accepted by the overwhelming majorities of countries. At the same time, they are included in nearly all municipal legal systems (mostly in constitutions). Human rights are the law of mankind, even though they are widely violated. They have been enshrined in the law because they need the law to be adequately protected.

Why do human rights need international law? Isn’t national law enough? These questions may seem strange and perhaps even somewhat useless. Is not the immense effort that has been invested in international human rights law during the last fifty or sixty years proof enough of its utility? I’m not convinced because there is a strong argument in favor of the assertion that the protection of human rights should be first and foremost a matter of national law and national judiciaries.

International law is far removed from ordinary citizens, and if they want to complain about human rights violations they will most likely want to use their national law and their national judiciary. Their own judiciary is closer and hence more accessible and more able to understand and punish. The first responsibility of the international community, therefore, is not regulation or the administration of justice, but assisting countries to reform their national laws and judiciaries in order to make them more compatible with human rights.

However, what if this fails? National law and national judiciaries do not always effectively protect human rights, either because of the absence of adequate national laws or because of the ineffective protection and enforcement of national laws by judiciaries and/or executive powers. And outside assistance and pressure do not always succeed in solving this kind of problem. So, if there is international law protecting human rights, this law can step in when national law fails. Local judges can invoke international law at the expense of inadequate national law. And if not the national law but the national judges are inadequate, international human rights law also provides global mechanisms and institutions allowing citizens to complain about their state’s conduct.

Imagine that such institutions would not exist. That would mean that citizens could only complain to a national organ, an organ of their own state, an organ which may be ineffective, corrupt, incompetent, or perhaps even implicated in the rights violation. And even if these national organs are effective, they are quite useless if there are no international rules for them to apply in place of inadequate national ones. So there is a strong case in favor of international human rights law combined with international monitoring of national human rights situations, and with international complaints institutions to which citizens of a country can turn in order to denounce rights violations by their country.

Ideally, international human rights law and monitoring are unnecessary, and even undesirable, because human rights protection is best carried out on a national level by a state that can correct itself. But this implies the existence of an ideal state with a well-functioning national division of powers, a national “trias politica” in which one power can control and correct the mistakes (e.g., rights violations) of another. As long as not all states are ideal states some national judiciaries need the assistance of international law when their national human rights laws are insufficient or nonexistent, and some citizens need the assistance of international monitoring and enforcement institutions when their national division of powers is insufficient or nonexistent.

As long as we are some distance from Utopia, international law and international monitoring and enforcement institutions are necessary for the universal protection of human rights and should complement national rules and institutions. Countries should be encouraged or, if necessary, pressured to accept international human rights treaties so that citizens can invoke international laws in the absence of national ones. International human rights law traditionally includes the right to monitor and to complain about human rights violations internationally, and this means, in theory at least, that individuals or groups do not have to trust their own state to correct itself and to punish its own crimes. They can involve international monitoring and complaints institutions to further their cause when their national judges are incompetent, unwilling, or unable to implement national rules. Countries should therefore also be encouraged to accept the authority of such treaty institutions wherever this acceptance is voluntary.

Furthermore, the existence of international law makes it easier to reform national law. An international system of law makes it impossible for states to take the law into their own hands and to decide autonomously what is and what is not part of their law. International law is traditionally superior to national law and it can force national law to be compatible with it. It is therefore an additional means to ensure that human rights are part of the law everywhere. By improving national law, international law makes national protection mechanisms more effective. And when it is not the national law but the national protection mechanism and institutions which are defective, international law replaces these mechanisms with global ones, or at least tries to do so (the best global complaints and enforcement procedures are still less effective than the best national judiciaries).

The individual right to denounce violations before an international judicial or quasi-judicial institution gradually took root after World War II. Today, the treatment of citizens by their state is no longer the exclusive competence of the state in question. The days are gone when states could treat their citizens as they liked. Individuals now have a right to speak in the international community and they are no longer confined to national law. They have international law to help them and international stages to voice their protest. International organizations in turn have a right to poke their nose into national affairs and in some cases even to enforce respect for human rights.

This means that citizens are no longer at the mercy of their states and that they can look for outside help if their state does not respect their rights, does not control and correct itself, does not provide mechanisms to enforce their rights (such as laws and the division of powers), or does not make sure that these mechanisms function adequately in all cases.

Most violations of human rights are the consequence of state actions or of actions by representatives of the state. Unless there is a highly effective division of powers, it is unlikely that a state will prosecute itself or its representatives, and it is necessary to have international protection. But national protection within a highly effective system of division of powers must be the first choice. Ideally, national protection is close to the people, easily accessible, legitimate, acceptable, and knowledgeable of local circumstances. It is also close to the perpetrators, which is why effective punishment is more likely than in the case of protection by another country or by an international institution, which may even fail to see the perpetrators, let alone punish them.

National protection is the best option, but also the most difficult one. The perpetrator is often the state or its representatives, which is why national protection can only function within a highly effective system of division of powers. Unfortunately, but not accidentally, most of the more serious violations of rights take place in those states that do not have such a system. National protection can only protect us against relatively minor violations because it can only function in a country with a tradition of separated powers, rule of law, etc.; in a country, in other words, that is unlikely to suffer serious violations of human rights. But still, it is a model that should be used as a universal ideal, even or especially in those countries where it is as yet far from reality. In the meantime, international jurisdiction takes the place of the ineffective national jurisdiction.

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 (5): Enforcement of Human Rights

Complaints, verdicts, judgments, condemnations and recommendations are not enough. Words do have some power. They may be able to influence those who violate rights or those who are unwilling to protect rights. And the language of rights is a tool that victims can use to recognize their predicament, to organize their struggles, to rally supporters and to protect themselves. It helps them to understand that their situation is not their fate; that their suffering is not a necessary contribution to the general welfare or to the course of history. Knowing that you have rights can already change a lot. Protest requires consciousness, and protest can sometimes be effective.

But words sometimes need to be followed by actions. Force and coercion, or an executive power, is often necessary. Law enforcement can require military force, policing, sanctions, interventions etc. The international community, or those who represent this community, need to be able to go against the will of individual states and force them in a certain direction.

The judiciary, according to Montesquieu, does not really have power. It depends on the executive for the execution of its judgments. However, in an international environment, it has always been very difficult to enforce law and judicial judgments. The independence of states, the right to self-determination and national sovereignty have always inhibited international coercion of individual states. These principles sometimes even inhibit effective monitoring. So, if you cannot even look and judge, it is obvious that it is even more difficult to enforce your judgment.

There are global monitoring institutions, but no world executive, no world government, no world police, no strong arm of the international law, and no global monopoly of violence. Perhaps the Security Council could become the world police, but it has to rely on the military force of member states and it has to deal with the veto system. Victims of rights violations are often left in the hands of their butchers.