Types of Human Rights Violations (6)

Let’s take an example of a fictional and very specific human rights violation: a Nigerian woman, let’s call her Joy, doesn’t have enough money to buy food and other necessities on a regular and predictable basis, for her and her family. And yes, poverty is a human rights violation, but if you insist you can easily rewrite this post with another example of a rights violation. Then you can also take another country. The choice of Nigeria is purely random, and nothing in this post is supposed to imply that certain rights violations are typical of Nigeria, or any other country for that matter.

Joy’s poverty can be a case of one or several types of rights violations. A first question we need to ask is whether we’re dealing with an act or a rule based rights violation. Joy’s predicament can be the result of her dominant husband, Emmanuel, who doesn’t allow her to work because he’s jealous and afraid that she may be unfaithful when given the occasion, but who also doesn’t bring home enough money himself. However, a more important cause of her poverty may be the predominant social and cultural rules against education and professional work for girls and women.

So we can try to understand whether rights violations are caused by the conduct and actions of individuals, groups, states etc. or rather by systems of rules and institutions in a society. Counterfactuals will be helpful: how would things have been different if someone had acted in another way or if some other rules had been in force?

In the case of act based violations we’ll also need to establish an agent’s intent, his ability to predict and to avert the consequences of his actions, the availability of alternative actions, the cost of alternative actions to the agent etc. It’s not Emmanuel’s intention to force Joy into poverty, but he can be expected to understand the consequences of his actions. There’s also an obvious alternative action available – let Joy work – which won’t impose a large cost on Emmanuel (most women are not unfaithful at work).

In the case of rule based violations as well we’ll need to see whether the rule’s consequences could have been predicted and averted, whether alternative rules are available, feasible, realistic and not too costly, and, if so, whether there is someone who can be held responsible for not implementing and enforcing those alternatives. If Joy’s poverty is the result of cultural rules against education and work for girls and women, then there are alternative rules available, but those may not be feasible in the short term given the cultural nature of the existing rules. However, we can perhaps point the finger at the government for not trying hard enough to impose an alternative rule such as compulsory education for girls or a law against gender discrimination in employment.

This leads us to the following point: both act based and rule based rights violations can be divided into two additional categories or types, call them active and passive types of rights violations. Rights violations may be caused by wrongful acts or by a failure to act. Or they may be caused by the wrong rules or by a failure to impose the right rules. Emmanuel can violate Joy’s rights by forcing her to stay home or by failing to help her find a job. Joy’s government can violate her rights by enforcing the cultural norms against education and work for girls and women, or by failing to enforce rules regarding compulsory education and employment discrimination.

As is clear from the last example, the rules in rule based rights violations can be either moral and cultural rules or legal and institutional rules (or both of course). And legal and institutional rules can be national or international. Joy’s poverty may be caused by national rules such as in the example above, but also by international legal rules such as those regarding trade restrictions (and even by national rules of other countries such as those restricting immigration).

Act based rights violations can of course also be national or international. If Joy’s government is corrupt and allows the country’s national resources to be expropriated by foreign companies that fill the pockets of government officials, then that will be the cause of her poverty.

In the case of national legal rule based violations, the cause of violations may be incidental or structural: the cause may be a single rule or a small set of specific rules (e.g. the enforcement of gender discrimination in education and work), but may also be a general failure of the rules in society. If Nigeria becomes a failed state, then that will be the cause of Joy’s poverty because it’s unlikely that an economy will flourish absent the rule of law and good governance – and if the economy won’t flourish, neither will Joy.

Other possible classifications of rights violations could differentiate between

  • vertical and horizontal violations: vertical violations being those inflicted on individuals by a government, international institutions etc.; horizontal violations being those inflicted by individuals or groups on each other (both vertical and horizontal violations can be either rule or act based, caused by wrongful acts/rules or a failure to act/rule, national or international, incidental or structural etc.)
  • zero sum violations, positive sum violations, or negative sum violations (Emmanuel or male citizens of Nigeria in general may profit from gender discrimination in the short run – zero sum – but may ultimately also suffer from it – negative sum – because gender discrimination reduces the pool of talent in a society)
  • inflicted or self-inflicted violations (Joy may only have herself to blame for her poverty)
  • current or transtemporal violations (Joy’s poverty may be the lingering effect of slavery)
  • etc.

Human Rights and International Law (9): Impunity

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

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

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

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

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

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

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

2. The solidarity of tyrants

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

3. The law

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

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

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

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

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

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

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

4. Institutional problems

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

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

Data

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

Why Do Countries Become/Remain Democracies? Or Don’t? (3): The Resource Curse

Why do countries with lots of natural resources tend to do worse than countries with less resource wealth, both in terms of economic growth and in political, social and human rights terms? We see that countries which own lots of natural resources such as diamonds, oil or other valuables that are found in the ground, are often relatively poor, badly governed, violent and suffering from gross violations of human rights.

There are many possible causes of this curse (also called “the paradox of plenty”):

1. Lack of economic diversification

Other economic sectors tend to get neglected by the government because there is a guaranteed income from the natural resources. These sectors therefore cannot develop and cannot become an alternative when the resources are taking hits. The fluctuations of the international prices of the resources can cause extreme highs and lows in national economic growth. This is bad in itself, but also makes it difficult for the government to do long term planning, since the level of revenues cannot be predicted. Dependence on one economic sector means vulnerability.

Another disadvantage of concentrating the economy on one resource sector, is that these sector often provide few jobs, especially for local people. The oil industry for example needs highly specialized workers, who are mostly foreigners. On top of that, these sectors do not require many forward or backward connections in the economy (such as suppliers, local customers, refiners etc.), which again doesn’t help the local job creation.

Even if the government tries to diversify the economy, it may fail to do so because the resource sector is more profitable for local individual economic agents.

Resource dependent countries also see their best talents going to the resource industry which pays better wages than the rest of the economy or the government sector. As a result, the latter are unable to perform adequately. See point 4 below.

2. Corruption

Corruption tends to flourish when governments own almost the entire economy and have their hands on the natural resources. More on corruption in a future post.

3. Social division

Abundance of natural resources can produce or prolong violent conflicts within societies as different groups try to control (parts of) the resources. Separatist groups may emerge, trying to control the part of the territory most rich in resources. This is often aggravated by existing social or cultural division. Division may also appear between parts of the government (e.g. local government vs central government, or between different parts of the central administration).

The resources therefore may cause divisions and conflict, and thereby cause deficiencies in government, economic turmoil, and social unrest. But the resources may also prolong conflicts because groups which manage to take control of (parts of) the resources may use these to arm themselves or otherwise gain influence and power.

4. Government’s unaccoutability and inefficiency

Countries which do not depend on natural resources are often more efficient in taxing their citizens, because they do not have funds which are quasi-automatically generated by resources. As a result, they are forced to develop the government machinery in an efficient way, hence a reduced risk of government break-down. The citizens in return, as they are taxed, will demand accountability, efficient spending etc.

Conversely, the political leaders in resource-dependent countries don’t have to care about their citizens. They create support by allocating money, generated by the resources, to favored interest parties, and thereby increasing the level of corruption. And if citizens object, they have the material means to suppress protest. They don’t appreciate an effective government administration as this carries the risk of control, oversight and other anti-corruption measures (see point 2). So they have an interest in bad government.

It is obvious that bad government, rights violations and economic stagnation have many causes. The resource curse is only one. There are countries which are blessed with resources and which do well at the same time. And there are mismanaged countries that don’t have any resources. As in all correlations, the causation may go in the other way: bad government can create dependence on exports of natural resources.

“When a country’s chaos and economic policies scare off foreign investors and send local entrepreneurs abroad to look for better opportunities, the economy becomes skewed. Factories may close and businesses may flee, but petroleum and precious metals remain for the taking. Resource extraction becomes ‘the default sector’ that still functions after other industries have come to a halt.” (source)

What to do about it?

Leif Wenar has argued that a strict application of property rights could help reduce or correct the resource curse. When dictators or insurgents sell off a country’s resources to foreigners or multi-national companies, while terrorizing the people into submission, they are in fact selling goods that they stole from those people. They have no right to sell what they don’t own. The natural resources of a country belong equally to all the people of that country. Article 1 of the International Covenant on Civil and Political Rights states:

All peoples may, for their own ends, freely dispose of their natural wealth and resources.

And

“the people, whose resources are being sold off, become not the beneficiaries of this wealth but the victim of those who use their own wealth to repress them”. Leif Wenar (source)

One could take legal action in western jurisdictions to try to enforce the property rights of the citizens of resource cursed countries and to charge multinational corporations with the crime of receiving stolen goods.

Western countries, investors and consumers could also boycott companies that invest in resource-cursed countries, or try to pressure campaign them to get out of these countries, or they could stop to invest in these companies.

When people finally get a grip on their resources, they open the path to better government, a better economy and better protection for human rights. Perhaps then they will not have to die trying to recapture a tiny part of the resources that are their lawful property, as happened in many cases in Nigeria, for example, where people often try to tap some oil from the pipelines channeling their property to the west. In doing so, they risk their lives. As a consequence of their actions, the pipelines can explode.