The Causes of Poverty (77): The Lottery of Birth and the Country You Live In

Charles Kenny explains to what extent the country you live in affects your livelihood:

[P]overty in Africa and Asia isn’t the result of something about individual Kenyans and Pakistanis, it is instead something about Kenya and Pakistan. Individuals the world over have the same drives and capacities, but the societies and places in which they live present radically different opportunities to turn that drive into wealth, health, and well-being.

That’s clear from evidence compiled by Princeton economist Orley Ashenfelter for the National Bureau of Economic Research. He looks at the wages earned by staff working at McDonald’s franchises around the world and compares what they earn to the cost of a Big Mac in that same franchise. The Big Mac is a standard product, and the way it is made worldwide is highly standardized. The skill level involved in making it (such as it is) is the same everywhere. And yet McDonald’s employees worldwide earn dramatically different amounts in terms of Big Macs per hour.

In the United States, a McDonald’s employee earns an average of $7.22 an hour, and a Big Mac costs an average of $3.04. So the employee earns 2.4 Big Macs per hour. In India, an employee earns $.46 an hour. The average Indian Big Mac (made of chicken, which is cheaper than beef) costs only $1.29. Still, the employee earns only one-third of a Big Mac for each hour worked. Same job, same skills—and yet Indian workers at McDonald’s earn one-seventh the real hourly wage of a US employee. There’s a huge “place premium” to working in the United States rather than India.

The place premium affects more than just low-end service jobs. Economist Michael Clemens, a colleague of mine at the Center for Global Development, studied a group of Indians working in an India-based international software firm who applied for a temporary work visa to the United States to do the same work in the same firm, just on the other side of the Pacific Ocean. Some of them then won the lottery by which visas were issued, while others lost. The winning workers, who were still in the same firm and still doing the same type of job on the same projects, suddenly saw dramatic differences in their pay.

The ones who moved to the United States started earning double what their colleagues back in India were earning (adjusted for purchasing power). They were earning more not because they were different from the colleagues they left behind—selection was not based on education, talent, or drive but was entirely random. And once they returned to India, they went back to earning pretty much the same as their colleagues who had never left. They briefly earned more in the United States simply because they were in the United States rather than India. (source)

Some more numbers are here, regarding how much more workers in the U.S. make compared to identical workers in developing countries; e.g. Nigerians and Yemenis stand to gain upwards of 10 times as much from moving to the U.S.

The place premium is a strong argument in favor of reducing migration restrictions: it doesn’t seem just that people’s income is determined by the good or bad luck of having been born somewhere, and the use of force to keep people in their country of birth only aggravates the injustice. However, by the same logic we can also argue for a more generous welfare state: it’s not just your country of birth that affects your income. Your parents, social class, genetic endowment, health prospects, looks etc. are also a lottery that affects your income and good fortune.

More posts in this series are here.

The Causes of Poverty (76): Farmer vs. Hunter Thinking

Tim Harford mentions an interesting study about the origins of different ideas about justice. Farmer cultures seem to stress desert, whereas hunter cultures believe that solidarity is the more important focus of justice. Hunters tend to share because their “incomes” are volatile: some days they catch too much, other days not enough. Luck also determines farmer incomes, but to a lesser extent. Bad weather means bad luck, but it’s also bad luck for neighboring farms. A sharing culture won’t solve that kind of bad luck in the same way as it will in the case of bad luck while hunting. Another reason why a sharing culture will be less important in farmer cultures is the fact that farm crops can be stored more easily than meat in primitive societies.

A farmer mentality will therefore stress self-sufficiency over sharing, and perhaps this will fuel desert-based theories of justice even centuries after farming or hunting has ceased to be an important social role. That may have an impact on the way a society deals with poverty. If you adopt a desert-based theory of justice then you’re normally less inclined to enact policies that reduce poverty since you believe that poverty is deserved. If people deserve their poverty then they can’t claim assistance, and if assistance were to be given anyway that would be an injustice to those whose stock of means is used as a source of assistance, because they too deserve what they have.

It’s tempting to use this farmer-hunter difference to describe the different approaches to poverty in Europe and the US. There’s more opposition to the welfare state in the US, and desert-based theories of justice are more popular there. Hard work and self-sufficiency are common topics of political talk in the US, whereas words such as solidarity and equality are more often used in Europe.

And of course the US was founded as an agrarian society (Thomas Jefferson for instance was a staunch agrarian), with the South of the country remaining agrarian deep into the 19th century.

However, careful with national stereotypes. It’s not as if the whole of the US is hardhearted. It’s a matter of degree.

Steven Pinker has come up with a similar story, although he contrasts farmer and herder cultures.

More posts in this series are here.

The Ethics of Human Rights (67): What Kind of Redistribution Does Luck Egalitarianism Require?

Luck egalitarianism is the theory of justice according to which bad luck that falls on people through no fault or choice of their own, is an injustice that has to be remedied. Whatever the merits of this theory, it does broadly correspond to certain widely shared moral intuitions. When you lose a limb in an accident, or contract a terminal illness, you probably feel like “why me?” and ask yourself: “what did I do to deserve this?”, “why should I of all people suffer this fate”, and “why should I be worse off than others through no fault of my own?”. You’ll have the same feelings when you happen to be born in a poor country, with a disability, in a dysfunctional family or in a discriminated cast or class. Such instances of bad luck lead to vastly unequal opportunities. And it does seem to be the case that inequality that is attributable to differences in our unchosen circumstances or abilities is less acceptable – morally speaking – than inequality that is wholly attributable to the responsible choices we make.

Of course, bad luck is unavoidable, but we can do something about the unequal opportunities it creates. This will inevitably lead to some kind of redistribution. The redistribution required by luck egalitarianism means that the lucky among us should transfer to those less fortunate some of the advantages that have come to us through luck. For example, we should pay taxes that are used to make life easier for the disabled. We can’t redistribute luck (for example, we can’t redistribute disease, accidents etc.). Hence we have to redistribute the consequences of luck. We should make the consequences of bad luck less severe or a bit easier to carry, and we should do so by skimming some of the beneficial consequences of good luck.

The redistribution required by luck egalitarianism is asymmetric: something must be done to help the unlucky, and that means taking something from the lucky; but it’s not the case that something must be done to make the lucky less lucky. It’s bad when people are worse off because of bad luck, but it’s not equally bad when people are better off because of good luck. Merit is important in life, and we admire people who are better off not because of good luck but because of what they did and who they are. But this admiration doesn’t imply condemnation of those who are better off simply because of good luck. The latter shouldn’t be condemned but they should part with some of their advantages in order to help those who are worse off because of bad luck. Bad luck is objectionable, and good luck is unobjectionable. But unobjectionable doesn’t mean that we are not allowed to confiscate part of the benefits of good luck in order to do something about objectionable bad luck.

And here we encounter one possible objection to luck egalitarianism: it seems like the theory doesn’t allow taxation of those who have acquired their wealth without any good luck (that is, if there are such people). Normally, most of us would want to impose a duty to help also on those who are better off not because of luck but because of what they did.

Other objections are here. More posts in this series are here.

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.

Lies, Damned Lies, and Statistics (19): Fun With Percentages

A certain company discovered that 40% of all sick days were taken on a Friday or a Monday. They immediately clamped down on sick leave before they realized their mistake. Forty percent represents two days out of a five day working week and is therefore a normal spread. Nothing to do with lazy employees wishing to extend their weekends. They are just as sick on any other day.

A more serious example, now, more relevant also to human rights:

The stunning statistic that 70% of black babies are born out of wedlock is driven, to be sure, by the fact that many poor black women have a lot of children. But it turns out it is also driven by the fact that married black women have fewer children than married white women. (source)

The fact that married black women have fewer children than married white women obviously inflates the percentage of black babies born out of wedlock. If married black women had just as many children as married white women, the proportion or percentage of black babies out of wedlock would drop mechanically. But why do they have fewer children? It seems it’s a matter of being able to afford children.

It’s well known that the black middle class has a lot less in the way of assets than whites of similar income levels – hardly surprising, given the legacy of generations of discrimination and poverty. But that also means that things that a lot of white middle class people take for granted – like help with a down-payment on a house when you have your first kid – are less available. Middle class black parents have less in the way of a parental safety net than their white equivalents, so they’re less likely to have a second kid. (source)

The 70%, when compared to the national average which is about 40%, may seem high, but it’s artificially inflated by the relatively low number of black babies in wedlock. So before you go out yelling (see here for example) that all the poverty and educational problems of African-Americans are caused by the fact that too many of their children are born and raised out of wedlock, and presumably by single parents (although the latter doesn’t follow from the former), and that it’s better to promote “traditional marriage” instead of affirmative action, welfare etc., you may want to dig a bit deeper first. If you do, you’ll paint a more nuanced picture than the one about dysfunctional black families and irresponsible black fathers.

Nevertheless, while the percentages may not be as high as they seem at first glance, it remains true that black babies still make up a disproportionate share of kids born out of wedlock. And if “born out of wedlock” means “single parents” (usually mothers) then this can be a problem. Although many single parents do a great job raising their children (and often a better job than many “normal” families), it can be tough and the risks of ending up in poverty are much higher. And yet, even this is not enough to justify sermons about irresponsible black fathers. Maybe the misguided war on drugs, racial profiling and incarceration statistics have something to do with it.

Income Inequality (18): No Such Thing – Good Thing – Necessary Evil – Gone Thing?

Attitudes towards income inequality in the U.S. differ widely.

  • There are those who deny that there is any, or better that there is enough to be worried about (see here for an example, or here).
  • Others say that it’s a good thing, and that there should be more of it. People are very different in their talents and work ethic, and rewarding the highly productive and creative ones for their efforts – which is only “fair” – automatically results in income inequality, because the unproductive and uncreative will not be rewarded, or less generously.
  • And then there are those who believe income inequality is a necessary evil. They don’t particularly like huge differences in rewards for activities which are, after all, often hardly comparable in any quantitive sense (is it so much more worthwhile to invest your efforts and creativity in the development of the iPhone than in the education of your children?). But they do believe that financial rewards stimulate productivity, and that higher rewards stimulate more. And increased productivity ultimately benefits us all, even those who are worse off and on the wrong side of the income inequality. (This is a version of “trickle down” economics).
  • Still others think that income inequality isn’t a problem any longer, given the effect of the recession on high earners.

Note: these 4 views aren’t necessarily incompatible. One and the same person can, as I see it, hold at least 3 of them at the same time. (E.g. you can believe that there isn’t much inequality, that what is left will soon be gone, and that you hope it will be back one day).

I think only the third view has some relation to the truth. Regarding the first view:

The basic conclusion of this data, that the nation [the U.S.] suffers from extreme and growing income inequality, is essentially irrefutable. Bruce Judson (source)

Regarding the second view: I object to it not because I don’t want to reward people or because I think justice has nothing to do with merit. On the contrary. I object to it because it assumes that different people and different activities can be placed on a single scale of merit and reward. It’s impossible to compare activities and say that one deserves a $10.000 per year reward (i.e. income) and another activity, compared to this first, is 10 times more deserving and hence deserves a $100.000 per year reward. Merit isn’t just a financial or quantitative thing, and hence it cannot – at least not exclusively – justify income inequality. Moreover, the income inequality that we see in the real world has little or nothing to do with merit. Most people aren’t paid according to any definition of merit. In the best case, they are paid because of their talents, which isn’t anything anyone deserves. In all other cases – and in the large majority of cases – people’s pay or income is determined by factors such as luck, family, networks, playing on the stock exchange etc., and none of these things are even marginally related to merit. In a society that rewards people for their creativity and productivity, you expect to see high levels of social mobility, and that’s precisely what you don’t see in the U.S.

Regarding the third view, I do believe that it is essentially correct, but it obfuscates many of the problems caused by income inequality. Hence, even if economic efficiency doesn’t justify efforts to limit income inequality, other things do.

The fourth view would seem to make sense intuitively. A lot of the income of the very wealthy comes from the stock markets, and the recession has pushed these markets down.

Professor Saez concludes that “the most likely outcome is that income concentration will fall in 2008 and 2009.” But, he follows this conclusion by stating that in the absence of significant policy actions such declines will be temporary: “Based on the US historical record, falls in income concentration due to recessions are temporary unless drastic policy changes, such as financial regulation or significantly more progressive taxation, are implemented and prevent income concentration from bouncing back. Such policy changes took place after the Great Depression during the New Deal and permanently reduced income concentration till the 1970s. In contrast, recent downturns, such as the 2001 recession, lead to only very temporary drops in income concentration.” Bruce Judson (source)

Moreover, the poor are also suffering as a result of the recession, not in the same absolute measures as the rich, but that is because they have less to lose in the first place. However, what they do lose as a result of the recession is for them relatively more important.

Recent data show that income inequality hasn’t actually decreased in 2008. Maybe in 2009… The recession only got started late in 2008.

Income Inequality (15): Progressive Taxation

Yes, I know… another post (and a long one) on income inequality, something which isn’t even a human rights issue, strictly speaking. I repeat, the most important thing to me is the provision of basic necessities, not the unequal distribution of these necessities. The fact that someone is poor and homeless is a more important problem than the fact that some people earn more or have bigger houses. Human rights address the first problem, not the second. When human rights address the problem of inequality, it’s usually not income inequality but other types of inequality (unequal rights, discrimination, unequal representation or access to information etc.).

What’s the problem?

However, as I stated here, income inequality IS a problem. It can destroy the cohesiveness of a society when it surpasses certain limits. People lose their self-esteem when they see that they are relatively worse off (even though not necessarily poor), especially when their position in society isn’t completely their own fault, which is often the case. People’s income, even in supposedly meritocratic societies such as the U.S. and the U.K., depends heavily on their family and social environment, and not only on their own achievements. Income inequality therefore becomes a problem of justice, social justice. And it can also become a problem for democracy, in which case it becomes a human rights issue (democracy is a human right). On top of that, people tend to be healthier and to live longer in more egalitarian societies.

And finally, this paper shows that

increased income (or wealth) generally does not increase … happiness significantly, and to the extent that it does, relative income plays a greater role than absolute income. In light of this … redistribution, via a progressive income tax, will increase people’s utility (happiness) by improving their relative incomes.

What can we do?

So, there are many good reasons to reduce income inequality, or at least slow down the trend of increasing inequality. There are also many ways to do this. Progressive taxation, rather than regressive taxation or a flat tax, is one way, as stated in the quote (and here/here). Public social spending is another way, as are some measure to increase social mobility and reduce the correlation between parents’ income and that of their offspring (e.g. an inheritance tax). Better funding for education, and helping lower income people gain access to education (by way of vouchers or scholarships etc.) is also good policy.

In the current post, however, I want to focus on one aspect of policy, namely taxation. I want to defend progressive taxation against regressive or flat taxation, not because of reasons of economic efficiency – although these are important – but because it is a policy which can reduce income inequality.

What is progressive taxation?

Progressive taxation (an idea going back to Adam Smith if not before) means that those with a higher income pay a relatively larger share of their income on taxes, and that this share rises progressively when income levels rise. Earning more means paying more taxes, both in absolute terms (the amount of taxes paid) and in relative terms (the percentage of income paid on taxes). A concept often used to describe this is “increasing tax burden”, but that is misleading, as Ezra Klein has pointed out. A person paying more taxes both in absolute and relative terms, doesn’t necessarily carry a bigger burden:

A strong person carrying a 50 pound bag may feel less burdened than a weak person carrying a 20 pound bag.

Even if the 50 pound is larger compared to the body weight of the strong and healthy person than the 20 pound is to that of the weak and sick person. Klein again:

The average after-tax income of the average person in the middle income quintile is $52,100. That’s down from about $60,700 after an effective tax rate of 14.2%. In the top quintile, the after-tax income is $184,400, down from $248,400 after a 25.8% effective federal tax rate. The rich person certainly pays more, both in absolute terms and as a share of income. But is his burden greater than the middle-income taxpayer left with $52,100? It’s hard for me to see how.

A progressive tax system can also be defined by comparing it to the so-called flat tax. A flat tax usually means that everyone pays the same tax rate. As a result, rich people pay more taxes in absolute terms, but the same taxes as poor people in relative terms. Proponents of a flat tax system say that it stimulates economic growth because it takes away less money from the wealthy, who can then invest it in the economy. Such higher growth in turn leads to more revenue for the government, and hence more means to benefit the poor, for instance. A flat tax also leads to more revenue because lower tax rates for the rich means that they will be less inclined to cheat or avoid taxes, and because its simplicity eliminates loopholes and deductions.

However, these advantages, to the extent that they are real, don’t address the inherent injustice of the system.

How do you make taxation progressive?

The “progressivity” of taxes can be achieved in different ways:

  1. The most obvious way: a higher income means a higher tax rate.
  2. Rather than increasing the tax rate together with increases in the taxable amount (usually the wage or other types of income), one can also choose to increase the taxable amount for wealthier people while leaving the tax rate identical for everyone. Wealthier people would then have a larger “tax base”. For example, they may have less exemptions, deductions, tax credits etc., or they may have to pay taxes on luxury goods that only they can afford to buy. With one and the same tax rate for all, we still are able to introduce progressivity. This looks a bit like the flat tax.
  3. Or one can decide to have, like in the previous case, only one tax rate rather than rates rising with income levels, and exempt from taxes all income below $50,000 or something. This as well is a progressive tax, because people with higher incomes pay more taxes, both in an absolute and a relative sense.

Progressivity can not be achieved by moving the tax system away from income and towards sales taxes, VAT or consumption taxes. Such taxes are by definition regressive, because they impose a relatively higher burden on lower income taxpayers, who, after all, spend a larger proportion of their wealth and income on consumption, and therefore pay a greater share of their income on taxes.

Other options?

As mentioned above, progressive taxation is only one way to reduce income inequality, and perhaps not even the most useful one. Yglesias and Kenworthy have shown that it’s not the tax system as such but targeted government spending that equalizes things. The important thing is to have a tax system that generates enough revenue to spend on counter-inequality measures (such as education, benefits etc.). Whether this system is progressive or not is secondary. According to Kenworthy, countries with higher tax revenues but not necessarily more progressive tax systems achieve more inequality reduction.

Income Inequality (11): Why Should We Care?

It’s a fact that many rich countries – rich in terms of total GDP – have a substantially unequal distribution of income; or, to put it in other words, these countries accept that there is huge inequality of wealth between people. It’s also a fact that, in many countries and particularly the U.S., these inequalities in income or wealth have become wider over the last decades.

What’s the problem, you may ask. Well, according to me this inequality poses some problems. But these problems are of relative importance. More important to me is the problem of absolute poverty. Absolute poverty is a lack of certain resources that are necessary to meet certain basic needs. This is not a problem of inequality. People may live in a very unequal society and at the wrong end of inequality, but they may nevertheless have no problem whatsoever meeting their basic needs.

More important as well, in some aspects at least, are the problems posed by other types of inequality. Gender inequality in some countries may be much more of a problem than income inequality (although these different types of inequality are probably connected).

Nevertheless, income inequality engenders some important problems. One is self-esteem. People suffering from relative poverty – i.e. finding themselves on the wrong end of an unequal income distribution – may suffer psychologically and emotionally. It’s also likely that their relative disadvantage isn’t very fair. In other words, it’s probably not solely based on questions of merit and desert. We don’t live in a world of equality of opportunity and level starting conditions. There’s also a correlation between relative and absolute poverty, so we may have to worry about relative poverty as a cause of absolute poverty.

Income inequality can also cause a problem for democracy. The rich can use their financial means to pervert the democratic procedures and to distort the equal influence on which democracy is based. Another way in which income inequality may pervert democracy is its divisiveness. It polarizes societies and it can antagonize regions within countries. None of this is helpful for the adequate functioning of democracy.

More on income inequality here and here.

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.

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.

The Ethics of Human Rights (13): Justice and Merit According to Aristotle and Rawls

No one deserves his greater natural capacity nor merits a more favorable starting place in society. … The natural distribution of talents is neither just nor unjust; nor is it unjust that men are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts. John Rawls

The natural and social lottery – the good or bad fortune of being born in a wealthy or poor country or social class, with or without certain talents and biological/genetic assets or liabilities – has nothing to do with justice. Justice is what people and society decide to do about these inequalities of fortune.

Obviously, Rawls and many others – including myself – believe that doing nothing about them and simply leaving them as they are, is unjust. And we believe that the reason for doing something is merit or desert. None of us deserves or merits the genes we have, the fact that we are born in a certain place or group, and the opportunities that we receive from these facts and our genes.

Merit is central to the concept of justice, at least since the time of Aristotle. I think Aristotle gave the example of a teacher and his or her pupils. Would it be just for the teacher to give all pupils an equal score, regardless of the merits of each? He says no, because justice isn’t simply about equality. Justice is giving each what he or she deserves. The best pupil would have a sense of injustice if he or she would receive the same grades as all the rest, while the worst student would not necessarily have a sense of justice.

So justice means, in part at least, that people should get what they deserve (hence the derivative use of the word “justice” in the sphere of the judiciary). Matters over which people have no control, such as the place or environment where they are born or the genes that they carry, determine their quality of life, their prospects in life, their opportunities and capabilities and their stock of resources (material and other). It follows that the distribution of prospects and capabilities is to a large extent beyond the control of individuals (not completely because we can do a lot to develop and change these prospects and capabilities), and therefore also beyond merit or desert. As Rawls puts it, we don’t deserve our starting place in society.

If merit is to play a part in the determination of whether a situation is just or unjust, we have to correct for the unequal and undeserved distribution of talents, genes and prospects linked to the places where we are born and the families in which we are born. Justice therefore requires that we help the less fortunate, those who are unfortunate to have been born in the wrong country or class, with the wrong genes or in the wrong family. Contrary to what libertarians want us to believe, justice is not merely a matter of avoiding to harm people and to make them worse off. It is also about helping them to be better off. And more specifically, helping them to be better off than they are as a result of the lottery of nature and birth.

Those who win from this lottery are under moral pressure to give to others who, through no fault of their own, have fared less well. It is in this context that economic human rights for instance have to be understood. These rights impose on the rich the duty to part with some of their riches and hand them over to the poor.

The Ethics of Human Rights (12): How to Deal With the Horrors of the Past?

After a country has gone through democratic reforms, it often faces the difficulty of dealing with the horrors and injustices committed by the previous dictatorial regime. In many cases, a democratic transformation is possible only because of some kind of deal with the previous rulers. They agree to give up power and in exchange receive amnesty and immunity (take the case of Pinochet or of many of Franco’s assistants).

However, things may even be worse. In some cases, the horrors have been committed, not only by a handful of rulers, but by large numbers of citizens. The transformation to a stable democracy is then sealed by a so-called “Pact of Silence”, in which the victims and their families agree to burry the past in order to make it possible for the different parts of the new democratic state to live together.

Democratic progress and democratic stability may indeed require the tragic choice of impunity for the old rulers. But they also require national reconciliation when the past atrocities were the work not only of the rulers but also of numerous civilian henchmen. A society that is not at peace with itself doesn’t have a future, especially when it is a democracy. A democracy, much more than any other state, require the support of a large majority of the people. If a substantial number of people feel that the new democracy is the state of the “victors”, a state moreover which will do everything to get back at them, then we will witness strong social division and a lack of loyalty, both of which are very dangerous for young and not so young democracies. No democracy can afford dissatisfaction and disloyalty in large groups of civilians.

Does this reconciliation, which is necessary for the proper functioning of the new democratic state, require silence about the atrocities of the past? A “turning of the page”? I don’t thinks so, because this silence will not satisfy the victims and their families. And then they will not accept the new democracy. And neither will the international community. Silence and inaction undermine the legitimacy of the new state and sends a message to future criminals.

Punishment can indeed alienate a large portion of the population, and can be detrimental for a young democracy. But so can silence. A democracy is caught between doing too much and doing nothing. However, there’s a large distance between silence and punishment, a distance which can be filled with the writing of history, the telling of the truth (as in the South-African Truth Commission), and the dispensing of forgiveness. Victims and their families will never accept silence, certainly not in the long term. The telling of the truth is very important to them, more important probably than punishment. And in exchange they may be convinced to forgive, especially if the truth-tellers can also express regret, remorse and guilt. This forgiveness in turn sends a strong message to the perpetrators, a message of inclusion and love. And this is a strong basis for a new society. Forgiveness is the opposite of forgetting. Because of the extraordinary nature of the forgiveness for an act of horror, this act will be remembered forever. A “right to truth” can be based on the right to information as expressed in art. 19 of the Universal Declaration.

The remembrance of the past may require some kind of amnesty. One can convince people to tell the truth and to ask for forgiveness by promising some kind of leniency. To fight amnesia, amnesty may be necessary. Of course, this applies to the large number of ordinary citizens who were the executors of the crimes, not to the few leaders planning and ordering them. They have to be punished, and they can be because their support is not required for national reconciliation. Their support is not necessary for the maintenance of the new regime. How can people be expected to live their lives when the most despicable murderers continue to live among them, often in luxury and without remorse? And how can the normal criminal justice system be expected to function?

Punishment of large portions of a population, on the other hand, may satisfy some short term feelings of revenge, but does nothing to build a long term future for society. There may be judicial verdicts on their crimes, but the punishments for the crimes should be indefinitely postponed in exchange for the truth. This is not impunity. It’s the correct balance between the needs of the past and the needs of the future. Turning the page without closing the book, as someone has said.

Silence is never good. Telling the story can help to avoid the horror from repeating itself. However, telling the story isn’t a sufficient conditions. Education isn’t almighty. Present-day neo-Nazis for example know all too well what happened, and they consciously want to repeat it. But forgetting is a sufficient conditions for a repetition. Some people do learn from history. And telling the truth, making things clear will force people who want to repeat it to openly take the side of barbarity. They will have a lot more difficulties to promote their case and they will only attract barbarians.

The Ethics of Human Rights (8): Mutually Advantageous Exploitation

exploitation: utilization of another person or group for selfish purposes. American Heritage Dictionary

To exploit someone means to take unfair advantage of that person. Usually, we define “unfair advantage” as somehow resulting in harm or coercion for the person who is taken advantage of. If A takes unfair advantage of B, we assume that B is harmed in some way, is forced to deliver the advantage, or is otherwise involuntary involved.

For example: A rapes B. The advantage gained by A is sex. This advantage is gained unfairly by A because the rape harms and coerces B. Otherwise it would not be rape. Rape is therefore charaterized as sexual exploitation.

However, it is possible to speak about exploitation and the taking of unfair advantage by A if A takes an action that benefits B. We can call this mutually advantageous exploitation, or mutually beneficial exploitation. A benefits, obviously, but B as well. B gains an advantage and is better off had the action not taken place, yet still is exploited.

Here’s an example to make this counter-intuitive statement more acceptable. Take the case where A and B have unequal bargaining power. A sells bread in an isolated village where the people don’t have the means to produce their own bread. A overcharges for the bread because B and friends don’t have the strength to find another seller or to wait. The sale of bread makes B etc. better off, because without bread they would be worse off. Yet A takes unfair advantage of the buyers’ condition. A exploits but doesn’t cause harm. However, A does coerce B. The transaction isn’t completely voluntary. B doesn’t have a choice.

It seems that the old maxim, volenti non fit iniuria – no injustice can be done to the willing – is still valid. Injustice implies coercion. But the other maxim, that injustice implies harm, can sometimes be wrong, unless the simple act of coercion by itself means harm.

A similar and politically more salient example would be if A were a transnational company offering to buy cacao from local cacao producers (B).

The Ethics of Human Rights (3): Civil Disobedience

An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law. Dr. Martin Luther King, Jr.

Civil disobedience is non-violent and public disrespect for a law which one considers to be unjust, accompanied by a willing acceptance of the consequences of this disrespect. The purpose of civil disobedience is to highlight the injustice of a law and hence to work for the abolishment of the law. The assumption is that actions which highlight an injustice can contribute to its abolition, which is an reasonable assumption at least in a democracy. In a democracy, there should be other procedures to abolish injustices, such as representation, free speech, freedom of assembly and association etc., but no democracy is perfect and therefore a more extreme measure such as civil disobedience may be necessary. The American Civil Rights Movement, which operated in a manifestly imperfect democracy, was an example.

However, civil disobedience is a dangerous thing. Laws are important, because without laws and judges and police forces to protect them, human rights are just moral claims, unenforceable and at the mercy of those who are stronger and more powerful.

So you have to be careful when allowing yourself to defy the law. Civil disobedience is not the same thing as the freedom of conscience. You do have the absolute legal right to believe what you want and what your conscience forces you to believe. But it is another thing to be able to act according to your conscience and to break the law because of your conscience; or not to act because of your conscience, as is often the case with conscientious objectors. If you state that everything, even a breach of the law, is allowed as long as it conforms to your conscience, then you go down a very dangerous path.

The freedom of conscience is something different from the right to do or not to do something because of objections based on conscience. You may be forced to do something that goes against your conscience while retaining your freedom of conscience and your beliefs about wrong and right. You can even force yourself to act against your conscience, perhaps because of a sense of duty or because of respect for the rule of law. You only lose your freedom of conscience when you are forced to believe something, which can only happen in extreme circumstances.

Conscience as the ability to know wrong from right is a kind of self-legislation. But because this is fallible (in German they say, “das Gewissen ist kein Wissen”, conscience is not knowledge), and more fallible than common legislation (more fallible because you are alone – two people know more than one – and because you miss the opportunity to learn from discussion and arguments), it should not determine actions when it is incompatible with the laws that are valid in a well-functioning democracy. Only if the external law, as opposed to the internal law, is clearly dysfunctional or unjust as in the quote above, can there be a reason to appeal to your conscience and engage in civil disobedience.

However, civil disobedience is an individual choice, and can it be allowed that individuals decide for themselves whether a system of law is “clearly dysfunctional”? It is dangerous at least, which is why civil disobedience should be an emergency measure only. The risk of anarchy can sometimes convince us to accept a supposedly dysfunctional law or judge, even if our conscience tells us to rebel. Civil disobedience should only be tried when everything else has failed.

Discrimination (1)

Discrimination, in its non-political and non-legal sense, simply means the recognition of differences. In the political and legal sense, it means unjustifiable differences in treatment between groups of people, most often the unjustifiable denial of the equal enjoyment of human rights.

Groups of people are discriminated because they have certain group-specific attributes that set them apart from the rest of society and that warrant, in the eyes of the people who are discriminating, less favorable treatment. One can make the following distinctions:

  • Discrimination can come in different degrees, affecting large or small numbers of people to a large or small extent: from government policy to an unspoken mentality of a small part of the population, and everything in between (such as states not acting to counter discrimination, very active and outspoken discrimination in some parts of the community, entrenched cultural practices such as the caste system etc.).
  • It can be exercised in different ways. People may be discriminated on the grounds of their race, gender etc. They can be discriminated in relatively harmless ways (denial of a promotion because of a likely pregnancy for example) or very brutal ways (slavery, denying of equal education etc.). They can also be discriminated in many different fields of life: education, employment, justice, health care etc.

Some people have the misfortune of finding themselves in a state which has an overt and active policy of discrimination, and in different discriminated groups at the same time (black lesbians in Apartheid South-Africa for example). As a result, they may also be discriminated in different fields of life at the same time (employment, family law, education etc.).

There are many types of discrimination, and the concept of discrimination is often linked to others such as racism, agism, sexism, xenophobia, intolerance, religious fundamentalism, genocide, ethnic cleansing etc. Whereas all these phenomena undoubtedly have a dose of discrimination, they are not the necessary result of discrimination. Discrimination can be much more limited.

One can distinguish between types of discrimination according to the groups that are discriminated, and the ways in which these groups are discriminated.

Groups:

  • racial discrimination
  • gender discrimination
  • discrimination based on one’s sexual orientation
  • discrimination based on one’s language, culture or national origin
  • discrimination based on one’s religion or one’s status within a religion
  • discrimination based on one’s political convictions
  • age discrimination
  • health discrimination (e.g. discrimination of HIV patients, disabled persons or obese persons)
  • etc. (when it comes to cruelty, man’s imagination has no limits I’m afraid)

Ways:

  • economic discrimination (e.g. persistent differences in poverty levels between groups)
  • employment discrimination (e.g. discrimination in career opportunities, pay, “Berufsverbot” etc.)
  • housing discrimination
  • family law discrimination (e.g. the inability of homosexuals to marry or to adopt)
  • education discrimination, different levels or quality of education for different groups
  • discrimination of the access to public service or elected positions
  • judicial discrimination, discrimination in the justice system
  • health discrimination, different levels or quality of healthcare for different groups
  • cultural practices such as honor killings, female genital mutilation,…
  • legal discrimination such as Jim Crow or segregation
  • etc.

Causes of discrimination:

  • racism, sexism etc.
  • a history of discrimination, creating a burden on future generations
  • immigration
  • xenophobia
  • recession or economic scarcity
  • education
  • cultural practices (e.g. the caste system)
  • religious doctrine
  • legislation (e.g. the Jim Crow laws or other types of legally enforced discrimination)
  • etc.

Article 2 of the Universal Declaration prohibits discrimination:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Although poverty has many causes, discrimination is undoubtedly one of them. Large differences in wealth between groups (for example racial groups) may indicate the existence of discrimination.

Statistics on the differences between races in incarceration or execution rates may indicate the existence of discrimination in the justice system, although these differences may have other causes besides discrimination, e.g. differences in poverty rates (see above), differences in levels of education etc. Of course, the latter differences may be caused by discrimination so that discrimination is indirectly the cause of the differences in the application of justice. Here again are some data on the situation in the US, showing that blacks, although they make up only 12% of the population, account for more than 1 in 3 of the prison population and of the executions. 5% of black men are in jail, compared to less than 1% of white men.

 

 

Blacks are also about twice as likely as whites to be a victim of a crime.

The Causes of Poverty (8): Lack of Economic Freedom

Open markets offer the only realistic hope of pulling billions of people in developing countries out of abject poverty, while sustaining prosperity in the industrialized world. Kofi Annan

Africa must be allowed to trade itself out of poverty. Bob Geldof

Human rights do not include a right to have economic freedom or to have a free market. But one can argue that economic freedom is a necessary consequence of human rights and that the absence of economic freedom is an indication of a country’s disrespect for human rights. The right to do with your property as you like, to move freely and to associate freely are all human rights and are prerequisites and causes of economic freedom.

There’s also a strong case in favor of the theory that economic freedom promotes prosperity and hence also respect for economic rights.

Economic freedom consists of personal choice, the ability to make voluntary transactions, the freedom to compete, and security of privately owned property. This is the definition of the Fraser Institute. This institute tries to measure the degree to which the policies and institutions of countries support economic freedom. Their index measures:

  • size of government
  • legal structure and security of property rights
  • access to sound money
  • freedom to trade internationally and
  • regulation of credit, labor and business.

They conclude that economic freedom has grown considerably in recent decades and that economic freedom is correlated with income.

 

The complete list of countries is here. I don’t want to suggest that economic freedom should be absolute. There has to be regulation of markets (for health reasons, safety reasons, reasons of fair competition etc.) as well as political corrections of the effects of markets on issues of social justice, poverty and equality.

Moreover, when discussing economic freedom we shouldn’t only think of the internal structure of states but also their interaction: import tariffs, quota, subsidies and other protectionist measures also inhibit free trade, often at the expense of poor traders and farmers in developing countries.

The Causes of Human Rights Violations (5): Lack of a Fair Trial

A characteristic element of modern democratic states is their ability to offer fair trials to those accused of crimes. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  1. 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.
  2. We 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.

One important condition for a fair trial is publicity. Justice must not only be done, it must also be seen to be done, not only to deter other criminals and to give consolation to victims, but also because publicity makes it more likely that the real perpetrator is punished. Every trial is therefore a show trial. The publicity of a trial makes it possible to judge the judge and hence to correct mistakes if necessary.

The secret trial is typical of authoritarian regimes because it allows for abuses of power. It makes it easier to use the justice system for other purposes than the identification and punishment of proven criminals. It is very hard to use a public trial for power games or oppression.

On top of that, false accusations or false testimonies are more likely to remain undiscovered in a secret trial. After all, it is not only the state that can gain from a secret trial. Interested third parties can also benefit from an unfair trial.

However, publicity alone does not guarantee that trials and verdicts are fair and just (which is clear from the phenomenon of communist show trials). The following elements are just as important (as with publicity, most of them are included in the main human rights instruments, for example articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights):

  • No punishment or imprisonment without an indictment and without swift information on the nature of the indictment. If the purpose of the justice system is to punish criminals, it’s very easy to tell the suspect who we want to imprison before his or her trial about the crime he or she is suspected of having committed. After all, the crime has been committed and the accusers surely must know the nature of this crime. It must be awful to be imprisoned without knowing why. The absence of indictments indicates that the authorities merely wish to use the justice system to terrorize the population, not to punish crime.
  • No excessively long detention on remand (detention without a lawful and fair trial and conviction). We do not want to incarcerate innocent people.
  • The possibility of an appeal to a higher court. Mistakes can be made.
  • A competent and impartial judge; fairness, according to the dictionary, means impartiality. A partial judge is an absurdity. Such a judge would be completely useless, and people would be better off fighting their cases amongst themselves, one against one instead of one against two.
  • The possibility to defend yourself and to receive free legal assistance. The possibility to argue and to give counter-arguments, to call witnesses for the defense and to question witnesses for the prosecution. This requires time, hence this must be balanced with the point mentioned earlier about the excessively long detention without a trial. Swift justice can be as unjust as detention without a trial.
  • Innocent until proven guilty. The burden of proof rests on the accusers. This is necessary to discourage wrongful accusations and also because the purpose of the trial is precisely the establishment of guilt. If guilt is assumed beforehand, then why have a trial in the first place?
  • No forced confession, because that would defeat the purpose of convicting the real perpetrator. And no obligation to incriminate yourself (the right to remain silent), which is linked to the rule that the burden of proof rests with the accusers.
  • No excessively tough penalties. The purpose is to punish, to prevent repetitions of the crime by the same criminal and to deter other criminals, not to balance the wrong that has been done by an equally painful punishment.
  • “Ne bis in idem”: no two trials for the same offense. If people can be retried continuously for the same crime, then the purpose is obviously not the punishment of proven criminals, but punishment per se. Anyway, if all the rules listed here are respected, there is no need for a retrial. This rule is also called double jeopardy.
  • “Nulla poena sine lege”: no crime or punishment without a law voted and published before the criminal deed. In other words, no retroactive laws, no laws with retroactive effect (laws which make deeds punishable after they have been committed). One cannot punish people for acts that were not a crime at the time when they were committed, because people should know what is or is not allowed so that they can plan their lives as law-abiding citizens.
  • For the same reason, laws should be predictable and should not change all the time. Nobody is responsible for a violation of a law if the law changes from day to day, because if the law changes constantly, then nobody knows the law and then nobody can respect the law. Predictability and permanence of the law are prerequisites for obedience, just as knowledge and publicity.
  • There should not be too many rules, otherwise the judges and the police will not have enough time to enforce them all or to punish all violations of all rules, which leads to injustice. Too many rules also leads to involuntary violations of rules, because citizens do not know what they are or are not allowed to do. The purpose of the justice system is to punish crimes, not mistakes; criminals who knowingly violate rules, not law-abiding citizens who unknowingly do what they shouldn’t.

All these elements put together make the justice system just, and protect the citizens against the state or against fellow citizens that want to abuse the justice system. If one element is missing, then all the others may become useless.

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.

Why Do We Need Human Rights? (3): Physical Security

Those human rights that protect a person’s security, bodily integrity and life, and that prohibit physical assault, dismemberment, torture, cruel punishment etc., acknowledge deep-rooted needs such as the wish to survive and to avoid pain.

Now, if it is reasonable to presume that some or even all people will not always be able to avoid violence and that it is preferable to avoid having other people revenging violence, then it is also reasonable to create an impartial institution that is above the people and that is strong enough to counter violence. This institution is the state. In many cases, the only way to eliminate or avoid violence is to threaten and punish the perpetrators. In order to be able to threaten and punish, you must be stronger. Citizens are seldom stronger than other citizens because even the strongest have to sleep. Only a state can be strong enough to counter or avoid violence by way of punishments. It can act as a third party which restricts the conflicting parties. It is above the parties, both because of its impartiality and because of its superior power. This superior power makes it able to enforce a decision on the conflict. Its impartiality means that it is not involved in the conflict and that it has a clear and impartial view of the problem and the possible solutions. The state uses the “security-rights” to control conflicts.

The state controls or limits conflicts and protects the life and body of its citizens in different ways, by punishing violence, but also by using systems and institutions that formalize, ritualize and soften conflicts, for example court proceedings or the democratic power game (the discussions in parliament and the ritualized changing of leaders in a peaceful way make it possible to avoid revolutions and other violent reactions of opposition movements). Security, peace and the protection of life are the first mission of the state and especially of the judicial power and the police, because this mission, once fulfilled, makes all other human activities possible.

Of course, the state has other missions as well. Some of them, such as public life, justice and freedom, are even more important, albeit perhaps less urgent. Urgency, however, is a debatable matter. One could say that public life, freedom or justice should come first because they promote peace and security. Furthermore, it often happens that missions that are more important than peace and security – because they correspond more to human life (after all, animals also want peace and security) – are overshadowed by peace and security (as for example in the theories of Hobbes and Kissinger). This is of course reprehensible, and self-destructive. Too much attention to peace and security can endanger peace and security.

People whose economic rights or whose right to free expression are violated because the rulers think that these rights are less important than peace and security, or that they should be sacrificed for the sake of peace and security, will revolt, and revolt automatically creates insecurity.

The problem is that human rights should do more than just regulate the peaceful coexistence of people with conflicting ideas. They should also regulate public interaction (e.g. culture, art, education, science). For this reason, we should avoid concentrating too much on security. Human rights protect security, not for the sake of security but for the sake of our public life, which of course needs security. However, security alone is not enough, and neither are those human rights that explicitly protect security. Human rights in general and the state acting as guardian of human rights do more than just guarantee peaceful and secure coexistence.

Concentrating too much on security also leads to a narrow view of the nature of citizenship. Citizens are more than people who try to achieve contradictory private interests, who come into conflict with one another, who cause violence and then require a state and rights in order to regain their security. They also create relationships and groups, they try to convince each other, they debate, they express themselves and they try to find a common interest. The state makes sure they can do so, both by limiting violence and by creating the structures in which debate and common actions are possible (structures such as elections, parliaments, court procedures, human rights etc.).