The Ethics of Human Rights (84): Aggregation Across Persons

Is aggregation across persons – making a decision that some people should bear losses so that others might gain more – ever permissible?

On the one hand, studies have shown that people faced with trolley problems would often sacrifice one person in order to save several others. Ticking bomb arguments – in which a single terrorist is tortured so that millions can be saved from an impending explosion – can also count on the agreement of large majorities.

On the other hand, an exchange like this one leaves most of us shocked:

Ignatieff: What that comes down to is saying that had the radiant tomorrow actually been created [in the USSR], the loss of fifteen, twenty million people might have been justified?
Hobsbawm: Yes.

The thinking in both cases is plainly utilitarian – that it’s acceptable to trade off the lives of some so that others can benefit. And yet our reactions to the two cases are polar opposites.

What can account for this difference? In the former examples, the good is more obvious, namely the saving of lives. The good that could – perhaps – have come from communist tyranny is rather more vague, more uncertain and less immediate. Trolley problems and the ticking time bomb scenario also present a balance between the good and the harm that supposedly needs to be done in order to achieve the good that is more clearly in favor of the good: it’s typically just one person that has to be sacrificed or tortured, not millions as in the case of communism.

So there’s a clear, immediate and widespread good that is supposed to come from the trolley sacrifice and the ticking time bomb torture (I say “supposed” because the hypotheticals don’t tend to occur in reality), and the harm that needs to be done to achieve the good is limited. This suggests that we favor threshold deontology: things which we normally aren’t supposed to do are allowed when the consequences of doing it are overwhelmingly good (or the consequences of not doing it are overwhelmingly bad). This theory is different from plain Hobsbawmian utilitarianism in the sense that it’s not a simple aggregation of good and bad across persons resulting in a choice for the best balance, no matter how small the margin of the good relative to the bad. A crude utilitarianism such as this does not agree with most people’s moral intuitions. Neither does dogmatic deontologism which imposes rules that have to be respected no matter the consequences.

However, threshold deontology creates its own problems, not the least of which are the determination of the exact threshold level and the Sorites paradox (suppose you have a heap of sand from which you individually remove grains: when is it no longer a heap, assuming that removing a single grain never turns a heap into a non-heap?).

The moral problems described here are relevant to the topic of this blog because the harm or the good that needs to be balanced is often a harm done to or a good done for human rights.

Other posts in this series are here.

Why Do We Need Human Rights? (40): On the Relative Unimportance of the Notion of Human Dignity

The word “dignity” features prominently in most human rights treaties and declarations. For example, the Vienna Declaration of the 1993 World Human Rights Conference affirms that “all human rights derive from the dignity and worth inherent in the human person”.

I don’t buy it. Human rights derive from human values. We need rights, not to protect our dignity, but to realize our values. I subscribe to a value-based approach to human rights. I can’t and won’t explain this approach here – you can read this older post if you want – because what I want to do now is simply argue against dignity as a basis or justification of human rights. In fact, that sounds a bit too extreme: dignity can be a basis, at least of some human rights, but it’s not the one I prefer. It’s my view that there really is no analytical or practical need for the concept of dignity in the field of human rights.

Of course, if someone decides that he or she wants to believe in human rights because of an affection for the notion of dignity, why not. In the end, what we want is full protection of all human rights, and the things that produce this protection are of secondary importance. However, I’m convinced that progress towards that end is more likely when we focus on values rather than dignity. Dignity, compared to values, is an extremely vague and contradictory notion, one that has many meanings, few of which are practically useful in grounding or justifying human rights.

1.

Let’s start with the word’s inherent contradictions. Dignity implies both radical inequality and radical equality. Originally, inequality was central to the notion. Dignity was, and to some extent still is, the state or quality of being worthy of honor or respect, or better of a certain amount of honor or respect. Some people deserve respect due to their status, standing, position or function. For example, respecting the dignity of the queen means honoring her as a person having her function. A “dignitary” is defined as a person who has a high rank or an important position. A head of state or a government respects the dignity of foreign emissaries by giving them the proper privileges. All these and many other uses of the word “dignity” reveal the inequality that the word is intended to convey.

Another use of the word shows that it is about inequality not only of people but of things as well: “I will not dignify your question with an answer” means that your question is so silly and so far below an adequate level of quality that my answering it would give it more respect than it deserves.

On the other hand, dignity also has a radical egalitarian meaning. This is a relatively recent development. There is, it seems, something like human dignity, a dignity all humans share regardless of rank and position. This comes across in certain recent uses of the word. People are said to behave in an undignified manner when they fail to show sufficient self-respect: for example, a person who is about to be executed for a grave crime and who has be to dragged kicking and screaming to the gallows. Such a person certainly does not have a high rank or status and yet is still seen as behaving in an undignified manner. Why? Because that’s not how humans should behave. Humans should show self-respect.

People can also treat each other in an undignified manner: keeping a patient in a persistent vegetative state alive against her will and against hope is often described as undignified; the same is true for a failure to give someone a proper burial. “Aging with dignity” means being old and at the same time able to continue to perform normal human functions.

All these modern uses of the word “dignity” convey equality, and more specifically an equality based on a certain understanding of humanity, of what it means to be human. Being treated with dignity means being treated in a human and non-degrading way, in a way that respects our common humanity, and in a way that all humans deserve.

Perhaps we have to thank democracy for this egalitarian turn in our understanding of dignity. Democracy offers all people the dignified prerogatives of kings. Jeremy Waldron has famously argued that the notion of human dignity comes from the democratization of the high social status once reserved for the well-born. There has been a “leveling up”: all of us deserve the same respect that was once reserved for high status people. We are all “dignitaries” now. Human dignity, as opposed to old-fashioned dignity, is considered to be “inherent” rather than given by class or status, by ritual, coronation, anointment, dress, office etc. However, while this egalitarian turn is to be commended, it looks like we have arrived at a point where dignity is no longer different from equality. It’s another word for the same thing. In what way is being treated with dignity different from being treated equally? Hard to say.

Another problem is that the two meanings of the word “dignity” – the egalitarian and the inegalitarian one – continue to exist side by side. This is confusing and it can lead to the idea that some people, on account of their actions, are no longer dignified or have lost their dignity and self-respect and hence no longer deserve their human rights.

2.

On to the matter of the practical utility of the notion of dignity. To what extent can the word be used to justify specific human rights and denounce specific human rights violations? If we understand dignity as the preciousness of each human individual then we are not allowed to treat humans in a degrading way or in a way that diminishes their humanity. Torture would be a clear case of degrading treatment in this sense. Hence, a right not to be tortured would receive strong support from the notion of dignity. A similar reasoning is perhaps possible for certain other human rights such as the right not to be enslaved and the right not to suffer poverty. A slave or a poor person can be said to be have lost his or her dignity.

But how do violations of someone’s freedom of speech violate his or her dignity? Or someone’s right to associate and assemble on the town square? That’s not clear at all. Dignity, it seems, is of limited use in the justification of human rights. Perhaps one can make the case that dignity requires respect for autonomy, and free speech protects autonomy (see the argument here). But why not focus directly on autonomy? What is the value-added of dignity here? Looks like a detour. If anything, dignity is important because autonomy is, not vice versa. More generally, it’s entirely possible to defend the claim that people have dignity because they are rights bearers (or, somewhat less ambitious, that they have dignity because they are autonomous persons able to make rights claims). That they have rights because they have dignity may be the wrong way around.

In any case, the sweeping claim that “all human rights derive from the dignity and worth inherent in the human person” seems to be untrue. Sometimes we can say that dignity requires a certain human right but more often than not dignity does not tell us anything useful. Given that there are many better reasons to promote human rights, including those rights that can if necessary be based on dignity, I fail to see the strategic advantages of focusing on dignity. Sure, if dignity can justify some but not other human rights, we should not dismiss it. Everything that helps is welcome. However, I have the feeling that dignity is often used as the ultimate and deepest ground for all human rights. And that is plainly wrong. Our common human values are the ultimate and deepest ground for human rights.

3.

A third problem with human dignity is its religious origins. If old-fashioned dignity comes from rank, position and function, then where does human dignity come from? What’s so special about human beings? Why do we deserve a certain treatment? Many would say that dignity comes from God. Because human beings are created in the image of God they have a certain value that needs to be respected if God is to be respected. However, the religious origins of the notion of dignity may make it unappealing to non-believers or adherents of non-Judeo-Christian religions.

Of course, it’s possible to generate a plausible non-religious account of dignity. I mentioned autonomy a moment ago. Kant had an interesting view based on the idea that using people as means is an affront to their dignity. I’ve appealed to this view in the context of capital punishment and yet I’m not convinced that it is really necessary as a ground for human rights in general.

More posts in this series are here.

Terrorism and Human Rights (41): The Ticking Time Bomb Scenario

I recently wrote a blind referee report for a paper about the so-called ticking time bomb scenario (a short intro about the concept is here), and it occurred to me that it may make a useful blogpost. I can’t show you the paper itself, since it’s not published yet and I don’t know who wrote it (that’s what blind refereeing is about), but I don’t think that’s necessary in order to understand my comments. Undoubtedly, by publishing my comments here I also violate the blind refereeing process, since there’s a chance the author(s) of the paper, whomever it is, might find my comments here and hence find out who I am. It’s a small chance, since this is a small blog. But, truth be told, I don’t care because I object to the whole blind refereeing thing: it stifles discussion. I only go along with it because I get to read interesting papers.

So here goes:

While the authors do an excellent job of doing what they set out to do, I have an objection to their basic objective. The paper is intended as a defense of thought experiments in philosophy in general and of the Ticking Time Bomb scenario (TBS) in particular. That in itself is a laudable objective, and the discussion of the ways in which the use of TBS as a thought experiment has been misunderstood, especially by opponents of torture, is on the mark.

However, it is my view that the authors focus too much on TBS as a philosophical device and as a thought experiment and lose sight of common usage of TBS. As a result, they run the risk of producing a paper on a topic that is irrelevant to the main discussions regarding the topic. If one were willing to count, one would find that a large majority of citations of TBS are not in the context of strictly philosophical discussions regarding our deeply held moral intuitions, but rather in a context in which philosophical discussions about TBS are intended to have policy implications. In fact, TBS is hardly ever a purely philosophical device and almost always a philosophical slash political device. A paper on TBS – even a philosophical paper – should not lose sight of the ways in which discussions about TBS are often intended to have policy implications, especially when these intended policy implications are highly disturbing.

The authors make assumptions about the motivations of proponents and opponents of discussions about TBS. For instance: proponents are assumed to use TBS as a merely philosophical device intended to highlight our moral intuitions, whereas opponents are assumed to be motivated by their fear of the – supposedly non-existent – policy motivations of proponents. The authors seem to be arguing two things:

  1. Those who use the TBS in order to argue that a ticking bomb should perhaps authorize torture only or mainly do so in order to highlight moral intuitions, not in order to actually promote the use of torture were a ticking bomb to be found.
  2. Those who object to the use of the TBS as a means to argue that a ticking bomb should perhaps authorize torture therefore miss the point.

I believe that both arguments are wrong, sociologically speaking. The authors would probably agree and respond that they do not speak sociologically but philosophically and that their point is an “ought” rather than an “is”: even if TBS “is” used as a policy device and a means to promote torture, it “ought” to be used as a mere philosophical device (“the proper use of the TBS is not intended as a policy-making device”, p. 12). Be that as it may, the paper would benefit from

  1. A clearer statement of this difference.
  2. A clear recognition of the actual way in which a majority of citations of TBS are evidently philosophical slash political in nature rather than merely philosophical.
  3. A more thorough discussion of the respective motivations of proponents and opponents of the use of the TBS experiment.

The paper also contains some statements without arguments. For example, the already cited phrase “the proper use of the TBS is not intended as a policy-making device” (p. 12). While the usefulness of TBS as a philosophical thought experiment is very well argued elsewhere in the paper, the claim that this and only this use of TBS is the proper one is merely stated, not argued. Many actual users of TBS would disagree and would claim that it is and should be a policy making device. For example, one could make the case that the frequent use of TBS by Bush/Cheney officials was intended as a justification of actual torture. Another phrase that does not receive sufficient argument: “strenuous attempts to show that the TBS … leads to terrible social policy are misguided” (p. 26). Perhaps actual torture during the Bush/Cheney administration combined with frequent citation of the TBS by that administration would indicate that those “strenuous attempts” are not in fact “misguided”. If the authors wish to maintain the two cited phrases, they’ll have to make the argument.

More posts in this series are here.

The Ethics of Human Rights (60): Absolute Human Rights and Threshold Deontology

There’s this difficult contradiction between two moral intuitions about human rights. On the one hand, we tend to feel very strongly about the extreme importance of a particular subset of human rights. Especially the right to life, the right not to be tortured and the right not to be enslaved are among those human rights which are so fundamental that their abrogation or limitation seems outrageous. Other rights, such as the right to free speech or the right to privacy, are hardly ever considered to be absolute in this sense – which doesn’t mean they are unimportant (something can be a very important value without being a moral absolute). Some restrictions on those rights are commonly accepted.

On the other hand, the horror that is provoked by the mere thought of limiting the right to life or the right not to suffer torture and slavery doesn’t preclude the fact that there are few consistent pacifists. Most of us would decide not to submit to a Nazi invasion and to fight back. Hence, the horrific thought of abrogating the right to life does not stop us from conceiving and actively engaging in killing. There’s also the Trolley Problem: experiments have shown that most people would sacrifice one to save many. The same is the case in ticking bomb scenarios.

True, there are some consistent pacifists, as well as some who oppose torture under all circumstances, whatever the consequences of failing to kill or torture. But I’m pretty sure they are a small minority (which doesn’t mean they are wrong). The more common response to the conflicting intuitions described here is what has been called threshold deontology: faced with the possibility of catastrophic moral harm that would be the consequence of sticking to certain rules and rights (catastrophic meaning beyond a certain threshold of harm) people decide that those rules and rights should give way as a means to avoid the catastrophe.

Threshold deontology means that there are very strong and near-absolute moral rules, which should nevertheless give way when the consequences of sticking to them bring too much harm. Threshold deontology can also be called limited consequentialism: rules may not be broken whenever there’s a supposedly good reason to do so or whenever doing so would maximize or increase overall wellbeing; but consequentialism is the only viable meta-ethical rule to follow when consequences are catastrophically bad or astronomically good.

If this is correct, then why not simply adopt a plain form of consequentialism? Do whatever brings the most benefit, and screw moral absolutes – or, better, screw all moral rules apart from the rule that tells us to maximize good consequences. This solution, however, is just as unpopular as strict absolutism. We don’t torture someone in order to save two other people from torture; and we certainly don’t torture someone if doing so could bring a very small benefit to an extremely large number of people (so that the aggregate benefit from torture outweighs the harm done to the tortured individual).

Unfortunately, threshold deontology is not as easy an answer to the conflict of intuitions as the preceding outline may have suggested. The main problem of course is: where do we put the threshold. How many people should be saved in order to allow torture or killing? It turns out that there’s no non-arbitrary way of setting a threshold of bad consequences that unequivocally renders absolute rights non-absolute. At any point in the continuum of harm, there’s always a way to say that one point further on the continuum is also not enough to render absolute rights non-absolute. If we agree that killing or torturing 5 for the sake of saving one is not allowed, then it’s hard to claim that 6 is a better number. And so on until infinity.

We can also think of the threshold in threshold deontology not in terms of harm that would result from sticking to absolute principles, but in terms of harm done by not sticking to them. The threshold then decides when we can no longer use bad actions in order to stop even worse consequences. For instance, we may verbally abuse the ticking bomb terrorist. Perhaps we can make him stand up for a certain time, of deprive him of sleep. At what moment should our near-absolute rules or rights against torture kick in? At the moment of waterboarding?

However, the same problem occurs here: a small increase in harm done to the terrorist can always be seen as justifiable, as long as it is very small. Again no way of setting a threshold because of the infinite regress that this provokes. Also, how should we evaluate the following case, imagined by Derek Parfit: a large number of people inflicts a small amount of harm on the terrorist, who is in immense pain as a result, and it’s impossible to tell whose infliction of harm has resulted in the pain threshold being passed. His absolute right not to be tortured is violated, but no one is responsible. This also sucks the power out of our moral absolutes.

Still, the problem of setting the threshold in marginal cases doesn’t mean that there are no clear-cut cases in which harmful consequences have clearly passed a catastrophic threshold. Nuclear annihilation caused by a ticking bomb is such a case I guess. That’s a catastrophe that may be important enough to abrogate the near-absolute rights of one individual terrorist.

However, this means that threshold deontology is useful only in a handful of extreme cases, most of which will fortunately never occur. In the real world, beyond the philosophical hypothetical, most cases of harmful consequences don’t reach the “catastrophe” level. Hence, in the case of a number of rights simple deontology is often the best system, at least compared to threshold deontology – which is most often irrelevant – and plain consequentialism – which would make a mockery of all rights and sacrifice them for the tiniest increment in wellbeing (see here). If we want to protect the right to life and the freedom from torture and slavery in day to day life, we might just as well pretend that they are absolute rights and forget about the catastrophic hypotheticals.

I should also note that although I rely here in part on the ticking bomb case in order to make some which I believe to be important points, the case in question is a very dangerous one: it has been abused as a justification for all sorts of torture with or without a “ticking bomb”. (After all, once you can establish that torture is not an absolute prohibition in catastrophic cases, why would it then be a prohibition in less than catastrophic cases? See the difficulties described above related to the threshold in threshold deontology). And not only has it been abused: one can question the practical relevance of the extremely unrealistic assumptions required to make the case work theoretically.

More about threshold deontology here.

Why Do We Need Human Rights? (31): Or Maybe We Don’t? – Exploring the “Dark Side” of Human Rights

Do human rights have a “dark side“? There are some specific complaints about the nefarious or even evil consequences of certain particular human rights, and there are complaints about the harmful consequences of human rights in general. The former complaints are a lot easier to deal with, and I’ll start with those.

Complaints about particular human rights

Freedom of expression is believed to be harmful because it protects pornography, which in turn leads to gender based violence and gender discrimination. Furthermore, it implies the free dissemination and reproduction of hate and it therefore fosters violence, racism and different kinds of “phobias”. And, finally, it allows blasphemy and hence it encourages religious tensions and violence.

Those human rights that guarantee a fair trial, and more particularly the rights of defendants, make it more difficult to have an effective criminal justice system. As a result, it becomes more likely that dangerous criminals return to society. Also, the right to life makes it harder to justify capital punishment, with the same result.

The right to privacy can support gender subordination and make it more difficult to tackle domestic violence.

Some human rights can even bring us to the edge of destruction (a ban on torture makes it impossible to deal with ticking time bomb terrorists).

Such specific complaints against particular human rights can be countered rather easily. Most if not all of the harmful consequences of rights are violations of other rights. If we grant that rights are limited by other rights, then we can balance rights against each other. Or one can argue that the supposed harmful consequences of some rights will (almost) never occur, or that they aren’t really harmful at all. For example, if we don’t torture we won’t make terrorism more likely. And some forms of pornography or hate speech aren’t really very dangerous.

Complaints about human rights in general

A lot harder to answer is the challenge that there’s something wrong, not with particular human rights, but with human rights as such. This challenge can take different forms.

Human rights are supposed to be the fig leaf of international intervention and modern imperialism. The anti-Taliban intervention in Afghanistan, for instance, was partly a reaction to 9-11 but it was also justified by reference to the brutal rule of the Taliban. It may be a meager defense, but if we were to reject everything that can be abused we wouldn’t have much left. The question then becomes one of degree: are human rights more likely to be abused for imperialist reasons, or more likely to serve the beneficial goals for which they are intended? And what is the probable balance of good and bad that will result from those different uses of human rights? I think the good that comes from human rights clearly outweighs the bad, and that the bad will happen anyway, whether or not people use the excuse of human rights while making it happen.

There’s a similar claim about the inherent cultural imperialism in human rights. Human rights, even when they’re not used to justify war, military intervention or territorial occupation, are still imperialist because they imply the imposition of western values on other cultures. Human rights are then believed to be a form of cultural aggression and part of a neocolonial effort to extend the individualist, secular and modern culture of the West elsewhere in the world, destroying the indigenous cultures in the process. This claim, however, is based on some rather shaky foundations: that human rights can only be found in the West, that intercultural transmission is necessarily aggressive, one-sided and involuntary, that human rights express a culture, that human rights are individualist etc.

Then there’s the claim that the abstract nature of human rights removes the personal and the specific from cases, and removes therefore the things that make us care about cases. I dealt with this complaint before, so I won’t repeat myself. The core of the reply would be that one approach – an abstract one – doesn’t exclude a more contextualized and specific one. For instance, one can talk about the abstract desirability of the right not to be tortured and about the errors in reasoning of those arguing for exceptions to this right, and at the same time one can talk about specific cases of torture.

Another complaint is the classic marxist one: the individualism of human rights spills over into egoism and capitalist greed. Again, I refer to an older post for a detailed reply. Suffice it to say that human rights as claims on others can indeed lead to divisiveness and a lack of social harmony, and that human rights as claims for your rights can promote selfishness. These tendencies, however, are canceled by the more communitarian nature of other uses of rights (religious liberty, tolerance, freedom of association etc.).

Still another complaint is about the victimization inherent in human rights. Focusing on people’s human rights violations means focusing on their status as victims, and talking about people as victims is somewhat infantilizing. Human rights activists do indeed often view non-whites, non-males and non-westerners as passive victims, incapable of agency, waiting to be rescued by do-gooders. This obviously reinforces their subordination. (More on self-defeating human rights policies here). This complaint is more about the way people act when trying to promote human rights than about human rights as such.

A final complaint about human rights is that they give people false hope, at least those people in the poorest countries of the world. What is the point of having a right when you don’t have the means to realize that right, when there’s no way of securing the things you have a right to? For billions of people all over the world, the right not to suffer ill health, poverty or homelessness is just a sick joke. Why should we have rights when there’s no way to make them real? Good luck going to a judge in a famine infested country and asking him to respect your right to food. And even if we can make our rights real, it’s better to use politics, science and economics than abstract rights that don’t tell us how to move forward. The reply to this complaint would focus on the benefits of having rather ambitious goals, even if the complete realization of those goals is not yet possible. At least one can measure progress. And it would also focus on the realistic nature of most human rights goals. For example, it’s simply not true that poverty eradication is utopian.

More posts in this series here.

The Ethics of Human Rights (54): Torture, Consequentialism and Tainted Goods

Those who defend torture normally do so on consequentialist grounds. They posit cases such as the “ticking time bomb” in which the harm done by torture is insignificant compared to the good it does. The consequences of torture are clearly beneficial, overall: OK, it does some harm to an individual terrorist who has hidden the bomb but at the same time it saves thousands or millions of lives. When so many lives are at stake, a utilitarian calculus will clearly show that the good that will follow from torture outweighs the good that will follow from the refusal to torture.

Usually, we see a kind of threshold consequentialism rather than a pure consequentialism at work in such arguments: if torture can produce one more unit of “utility” (wellbeing, life, etc.) than the refusal to torture, most consequentialists wouldn’t allow torture. The good consequences of torture must far outweigh rather than marginally outweigh the harm it clearly does. Hence the hypotheticals in examples such as the ticking bomb, in which it’s posited that very many lives are at stake. We are allowed to supersede the deontological rule that one shouldn’t torture only beyond a certain threshold of harmful consequences that would result from sticking to the rule. As someone has said, lost lives hurt a lot more than bent principles. Strict moral absolutism, whatever the possible consequences, can indeed land you in all sorts of problems.

However, let’s look a bit closer at this seemingly convincing argument. We can overlook some of the possible difficulties and still conclude that the argument is unsatisfactory. Let’s not dwell on the likelihood that in real cases, the numbers of possible terrorist victims is rather small, while the number of people who have to be tortured is probably higher than one: you may need to torture some people before you find the one who has the necessary information about the location of the bomb; then you may need to torture his friends and family because he’s trained to resist torture and because he knows that if he resists for a short time, the bomb will go off. So let’s forget that the utilitarian calculus will most likely be less unequivocal than assumed in the argument above: we’ll never or only very rarely have cases in which torture produces a very small harm and at the same time a very large benefit. The harm and benefit will be much closer to each other.

Let’s also not dwell on the fact that the greater good thinking of the argument puts the torturer on the same footing as the terrorist. The latter also assumes that he fights for a greater good and that the harm he does is small compared to the benefits this harm will produce. The similarity between torturer and terrorist is all the more striking if the torturer has convinced himself that it’s necessary to torture the innocent (when the terrorist himself doesn’t speak fast enough). Putting ourselves on the same level as terrorists means giving up our identity to save ourselves, which really is pointless. If that is correct then we have to remodel the utilitarian calculus: the harm done by self-destruction is probably greater than the suffering caused by exceptional terrorists attacks. So even the utilitarianism of the greater good doesn’t justify torture.

But let’s assume that none of this speaks against the standard consequentialist justification of torture and that we manage to use torture in a way that saves many many lives, that doesn’t impose a high cost, and that doesn’t put us on the same level as the terrorists. So we can save ourselves, our identity and the lives of many of our fellow citizens. Still, the “good” that we achieve through torture is tainted by the methods necessary to achieve it. The notion, inherent in the consequentialist justification of torture, that certain goods can be attainted by problematic means, is itself problematic. We can save ourselves, but once we are saved we believe that our success has been tainted by the immoral methods used to achieve it. We may not be willing to enjoy this success and the goods we have if they have been secured by way of torture.

Jeremy Waldron has interesting things to say about tainted goods. Read this for example.

What Are Human Rights? (24): Absolute Rights?

One of the great puzzles in human rights theory is the possible existence of absolute rights. It’s commonly accepted that most if not all human rights are “relative” in the sense that they can be limited if their exercise results in harm done to other rights or to the rights of others. Freedom of speech for example doesn’t offer “absolute” protection for all kinds or instances of speech (see here).

If there are any human rights that do offer absolute protection without exception, the right to life, the right not to be tortured and the right not to suffer slavery would be good candidates. Whereas it seems quite reasonable to silence someone when he or she incites violence or hatred, it’s much harder to imagine cases in which it’s reasonable to kill, torture or enslave someone. I’ll focus here on the right to life.

How would you go about justifying the absolute nature of that right? First, you could claim that life is the supreme value. Life is indeed supreme in one sense of the word: it’s lexically prior as they say. It comes first. You can have life without freedom or equality, but not vice versa. (Of course, there are also other more or less promising ways to argue for life’s supremacy in the universe of moral values. I won’t go there now, and neither will I point to the fact that people often sacrifice their lives for a higher purpose. Let’s just assume for the sake of argument that the lexical priority of life suffices, in general, to ground life’s supremacy in the system of values).

If life is the supreme value, that means that no life can be sacrificed for an inferior value. You can’t go about killing poor or handicapped people for the sake of aggregate wellbeing. And neither can you execute criminals in an effort to deter future attacks on people’s security rights.

So life is then the supreme value in the sense that it can’t simply be traded against another inferior value. That already makes a lot of potential limitations of the right to life unacceptable, and the right to life therefore moves a significant distance towards absoluteness. However, if life is the supreme value, it’s still theoretically possible to trade the lives of a few for the lives of many others. So not life as such, as an aggregate or abstract concept needs to be the supreme value, but individual life. If individual life is the supreme value, the lives of some can’t be put on a scale to see if their sacrifice could protect a higher number of other lives. Robert Nozick gives the following example to make this point salient:

A mob rampaging through a part of town killing and burning will violate the rights of those living there. Therefore, someone might try to justify his punishing [i.e. killing] another he knows to be innocent of a crime that enraged a mob, on the grounds that punishing this innocent person would help to avoid even greater violations of rights by others, and so would lead to a minimum weighted score for rights violations in the society. Robert Nozick

So, if you accept the argument made so far, does this mean that you have established the absolute nature of the right to life and that this right therefore can never be limited? It would seem so. If life is the supreme value, it’s hard to find a reason to limit it, since this reason would then have to be a superior value. And if individual life is the supreme value, you can’t play a numbers game to conclude that the sacrifice of some is necessary in order to save a higher number of other lives.

However, categorical claims like this always seem to me to make things too easy. Something else is necessary. Take four cases in which lives are commonly sacrificed without universal or often even widespread condemnation:

  • individual self-defense
  • war as national self-defense
  • capital punishment and
  • the murder of a terrorist (and perhaps his hostages) about to kill many others (e.g. the shooting down of a commercial plane hijacked by terrorists and about to be used as a weapon).

In all these cases, the lives of some are sacrificed for the lives of others (assuming that capital punishment has a deterrent effect, which is probably not the case). If the right to life is really absolute, none of these actions would be morally or legally acceptable. In order to make them acceptable, there has to be something more than a mere quantitative benefit in terms of numbers of lives saved. I believe the sacrifice of life is acceptable if in doing so one doesn’t violate these three rules:

  • we should only sacrifice life in order to save life, and not in order to promote other values, and
  • we shouldn’t treat other people as means, and
  • we shouldn’t diminish the value of life.

In the case of one of the four actions cited above, namely capital punishment, we do treat other people as means and we diminish the value of life. Murderers are used as instruments to frighten future murderers. Capital punishment is supposedly intended to further respect for life, but in fact normalizes murder. (See here for a more detailed treatment of this issue). In the three other cases, we don’t necessarily use people as means or diminish the value of life. Hence these case can be acceptable limitations of the right to life.

So the right to life is only quasi-absolute: limitations are possible but extremely rare because a number of very demanding conditions have to be met:

  • you can’t kill for the promotion of values different from life
  • you can’t generally count lives and kill people if thereby you can save more lives
  • and if you do want to kill in order to save lives, you have to do it in a manner that doesn’t instrumentalize human beings or diminishes the value of life.

What Are Human Rights? (23): Alienable Rights?

One of the most commonly cited characteristics of human rights is their inalienability. Human rights aren’t granted to people by a sovereign, a law or a tradition, and hence can’t be taken away. They can of course be violated, but violating rights doesn’t mean taking them away. If you’re tortured you still have a right not to be tortured. In a sense, you only have rights – or, in other words, your rights are only real – when they are violated. When rights aren’t violated they move to the background, as self-evident facts not even worthy of being mentioned.

The question here is not whether rights can or cannot be taken away, but whether people can give them away. I think people can’t give away their rights – people are human and hence they have certain rights – but what they can do is waive their rights, meaning that they insist that they don’t want others or the state to intervene in order to enforce respect for their rights. If someone wants to sell herself into slavery, submit herself to cruel treatment, sell her organs, let herself be cannibalized or used in a dwarf-throwing competition, then that person should be free to do so, even if it means that her rights are violated. If those rights violations are her free, conscious and informed choice, we’ll have to respect that choice. She still has her rights but chooses to allow violations of her rights.

Rights are important because they are important to people. They aren’t important as such. If certain people no longer deem them important, then they are no longer important for them. We can’t force people to have their rights respected. That would be a lack of respect for people’s moral autonomy, their dignity and freedom, even if their choices imply giving up their dignity and freedom.

The assumption here is of course that people have a real choice in the matter. If they are forced in some way to renounce their rights, then society and the state still have a duty and a right to intervene in order to enforce respect for people’s rights, even if these people explicitly state that they don’t want this intervention. A masochist who freely chooses to be a masochist – and isn’t suffering from a mental illness or from sadistic pressure – should be free to have her rights violated. A dwarf or a prostitute who has no other means of income than dwarf-throwing or commercial sex respectively is clearly forced and didn’t freely choose to have her rights violated, in which case society has a right to intervene, even if that person opposes such intervention. But of course she will only oppose the intervention if it is merely a prohibition: if the state merely prohibits dwarf-throwing or commercial sex it will make things worse. The person in question loses her income on top of her rights and dignity. Hence, intervention should also mean the provision of an alternative income not implying rights violations. Lack of income is also a rights violation, and you can’t solve one rights violation by violating another right. You can’t free someone from sexual slavery by taking away her income.

The obvious difficulty here is to ascertain whether people’s renunciation of their rights is a free choice.

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality.

Human Rights and Risk

Obviously, we all run the risk of having our rights violated. Depending on where you live in the world, this risk may be big or small. For some, the risk always remains a risk, and their rights are always respected. But that’s the exception. Many people live with a more or less permanent fear that their rights will be violated. This fear is based on their previous experiences with rights violations, and/or on what they see happening around them.

I see at least two interesting questions regarding this kind of risk:

  • Is, as Nozick argued, the risk or probability of a rights violation a rights violation in itself? Do people have a right not to fear possible rights violations?
  • And, to what extent does this risk of rights violations lead to rights violations?

The first question is the hardest one, I think. It seems that the risk of suffering rights violations is there all of the time, although it may be very small for some of us. If there is a right not to live with this risk, then this right would be violated all of the time. What good is a right that is perpetually violated?

However, it would seem that in some circumstances, where the probability that rights are violated is very high, people do indeed suffer. Imagine that you live in a society in which there is a high probability that you are arbitrarily arrested by the police. Even if you are not actually arrested – and your rights are therefore not violated – you are living in fear. It would seem that a right not to live in fear of rights violations does have some use in these high-risk environments.

But if we limit the right not to risk rights violations to situations in which there is a high probability of rights violations, we will have to decide on a threshold: when, at what level of high probability of rights violations, does the right not to risk rights violations become effective? This means introducing arbitrariness.

And another problem: what if you don’t know about the risk? There may be at certain moments a high probability that your rights will be violated, but you don’t have to be aware of this. In that case, you don’t fear the rights violations, and hence there is no harm done to you. It’s difficult to conceive of a right when its violation doesn’t (always) cause harm of some kind, and hence the right not to risk rights violations seems impossible in this case.

The second question is more straightforward. Everyday we see how the risk of rights violations leads to actual rights violations. The perception of risk, and people’s counter-strategies designed to limit the risk of rights violations, makes them violate other rights. The war on terror is a classic example. Ticking bomb torture is another.

The objective of avoiding risk creates risks, namely the risks that our actions designed to avoid risk cause harm. We may have to learn (again) how to live with risk.

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

Universal jurisdiction, according to Wikipedia, is:

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

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

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

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

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

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

Terrorism and Human Rights (15): Does Respect for Human Rights Reduce Terrorism?

Here is an extremely interesting paper by James Walsh and James Piazza. Quote:

Some hold that restricting human rights is a necessary if unfortunate cost of preventing terrorism. Others conclude that such abuses aggravate political grievances that contribute to terror. We demonstrate that theory and data support the latter position. (source)

They focus on what they call physical integrity rights, or rights which protect people from physical harm. The more a state respects these rights, the less terror attacks it suffers. It will also be less engaged in some way or other in transnational attacks.

These findings are opposed to two similar and widespread beliefs: unstable states can only guarantee security is they are authoritarian (see here), and even well-developed democracies have to limit some human rights in order to fight a terrorist threat. In the former case, the threat comes usually from within; in the latter case from abroad.

States that seek to preserve human rights and political freedoms are limited in their ability to monitor and detain terrorism suspects, are prohibited from making broad police sweeps to catch terrorist perpetrators and their sympathizers, limit coercive interrogation of suspects, and must afford suspected terrorists access to a lawyer and a public trial. Freedom of assembly and of the press allows terrorists and their supporters to publicize their grievances. … The implication is that states that protect human rights are more vulnerable to terrorist attacks. (source)

In fact, the opposite is true. Protecting human rights, and especially security or integrity rights, reduces terrorism, and violating them promotes terrorism. Terrorism is a complex phenomenon, but I think it true to say that grievances and injustices (and many of those are caused by rights violations) are important motives. Democracies and states that respect human rights supposedly give too much freedom to terrorists, allow them to organize, recruit, mobilize and plan, and make it very hard to efficiently combat terrorists (rule of law, free speech, humane treatment and torture prohibitions etc. are all said to hamper counter-terrorism). But authoritarian regimes create injustices on which terrorists feed. They also make it hard to express and redress grievances in non-violent ways,  and use ruthless methods that only make their opponents more radical, fanatic and popular.

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

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

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

1. Illegal violations

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

1.1. Illegal violations caused by government incompetence

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

1.2. Illegal violations caused by government complicity

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

2. Legal violations

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

2.1. Violations that are imposed by the law

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

2.2. Violations that are not punished by the law

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

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

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

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

Terrorism and Human Rights (8): Torture and the Ticking Bomb

If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information. … no one who doubts that this is the case should be in a position of responsibility. Richard Posner

During numerous public appearances since September 11, 2001, I have asked audiences for a show of hands as to how many would support the use of nonlethal torture in a ticking-bomb case. Virtually every hand is raised. Alan Dershowitz

People have come up with many arguments to justify torture, but the most famous one is the “ticking bomb argument“: suppose we capture a terrorist, and we know that he or she knows where the ticking bomb is hidden that will soon kill thousands or millions, or where and how another type of terrorist attack will take place. However, this person will only reveal the information under torture. Are we not allowed to use torture in order to get the information and save numerous lives? Are we not morally forced to torture given the enormous benefits for large numbers of people compared to the limited costs for the tortured individual?

This argument is flawed, because it is based on a number of untenable assumptions:

Assumption 1: A real-life case

This seems to be a thought experiment rather than a real-life dilemma. The example of the captured terrorist with information about a ticking bomb is unlikely to happen in real life. Law enforcement officers or military and intelligence personnel usually do not arrest terrorists or accomplices before the terrorist act takes place (usually they make the arrests afterwards, and sometimes they don’t even manage to do that). We all know that most real cases of torture have absolutely nothing to do with the example given in the ticking bomb argument.

Assumption 2: Knowledge and knowledge about knowledge

But let’s assume that it does happen, and that one is, in exceptional cases, able to arrest someone before the terrorist act takes place. For the ticking bomb argument to be valid, we have to be positively sure that the terrorist or accomplice has the information that is required for us to stop the attack or explosion to take place. How can we be sure about this? And if we’re not sure, can we start torturing this person in order to know that he or she has the information?

The latter would mean that we don’t just torture in order to get life saving information. We torture in order to know whether this person has or doesn’t have such information. It’s obvious that in this case we will torture many people who don’t have information. And if they don’t have information, we may be torturing innocent people, or at least people who, although accomplices, are not justifiable objects of torture since the argument is that torture is justified because it is necessary to obtain life saving information. These people don’t have such information, and hence their torture isn’t justified. Some other justification is required in order to be able to use torture on people who do not obviously and undoubtedly possess life saving information. This seems to fall outside the ticking bomb argument, an argument which is therefore incomplete.

And, by the way, torturing people in order to find out if they have information is the worst kind of torture: since many of them don’t know anything, they will be subject to the longest and deepest forms of torture.

Assumption 3: It works

Again, let’s assume that all of the above is irrelevant, that we do hold someone who has vital information, that we know for certain that he or she has this information, and that we didn’t have to use torture to be certain. These are already a lot of assumptions, but a further assumption of the ticking bomb argument is that torture is a efficient tool to extract reliable information. We all know that it isn’t (see here). People who are tortured say anything in order to make it stop.

And what if torturing the terrorist doesn’t make him or her speak? In that case, the ticking bomb argument also justifies torturing the terrorist’s family and children (a kind of indirect torture aimed at “convincing” the terrorist to give information). If torturing him or her is insufficient, then further options are equally justifiable. The cost-benefit analysis on which the ticking bomb argument is based justifies torturing the family. The guilt or innocence of the family, or of anybody else who is tortured, is irrelevant. What counts is that the cost of torture doesn’t outweigh the good it does, i.e. the number of lives it saves.

But this begs the question: how many lives have to be saved if the cost of torture is to be acceptable? A million? 10.000? 10? … Difficult to tell in borderline cases, but then the answer would be: at least it’s clear when we go into the really big numbers. Torturing even a few dozens of people in order to safe a million is a “no-brainer” (in the words of former Vice-President Cheney). The reality is however, that most terrorist attacks do not kill millions or even thousands.

Assumption 4: No alternative

Again, let’s accept all the above assumptions, for the sake of argument. One of the supposedly strong points of the ticking bomb argument is the lack of an alternative to torture. There seems to be nothing else one can do. But there is something wrong with the timing in the argument:

On the one hand, to represent some type of ticking bomb scenario, the timing of attack must be far enough in the future that there is a realistic chance of doing something to stop it. On the other hand, if it is so far off in the future that the loss of life can be prevented in some other way (evacuation, for instance) then the supposed “need” for torture simply disappears. (source)

Assumption 5: Exceptional

Given the urgency in the example of the ticking bomb, and given the fact that terrorists are often trained to withstand torture, a free society would have to

maintain a professional class of torturers, and to equip them with continuously-updated torture techniques and equipment. Grave dangers to democracy and to individual freedoms would be posed by an institutionalized professional “torture squad”. (source)

Torture corrupts people, and it is not farfetched to assume that a “torture squad” would infect an entire society. The squad members themselves will not remain well-intentioned, and the mere existence of such a squad corrupts morality in a society. This shows that torture in the ticking bomb argument starts as an exception but tends toward institutionalization.

Assumption 6: The Greater Good

It’s not obvious that the rights of one person can be sacrificed for the benefit and rights of others. Once you start this kind of trade off, you will quickly find yourself in a world in which it is allowed to “break some eggs if you want to make an omelet”. Terrorists also assume that they fight for a greater good and that they are allowed to sacrifice some in order to save others. Torture then puts the tortures on the same level as the terrorist.

What motivates the ticking bomb argument?

It’s not difficult to see some of the underlying motives of those using the argument. It seems to me that the dramatic force and moral clarity and simplicity of the example, even if it is very unrealistic and far removed from the much murkier and complex cases that confront us in reality, can be used by those who are in favor of torture in order to open the door and make some cracks in what is still, for many, a moral absolute (similar to the prohibition of slavery and genocide).

The United Nations Convention Against Torture, which took on the force of federal law in the U.S. when it was ratified by the Senate in 1994, specifies that

No exceptional circumstances, whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The ticking bomb argument is intended to show that an absolute ban on torture is unwise and ultimately detrimental to the survival of a free society. Opponents of torture are labeled moral absolutists, unwilling to confront the darker sides of reality and isolated from the tough problems that people in the field have to deal with. By making it impossible to “deal” with these tough problems, absolutists endanger the nation.

Once the absolute is broken, and some forms of torture are allowed in some circumstances – and even necessary if we want to protect freedom – then those who fight for democracy and for the right of people to express their opposition to torture, are able to do their jobs and make their hands dirty.

The torturer becomes the patriot; those defending the moral values of a nation are ivory tower intellectuals unaware of the realities of life and de facto allies of the terrorists. It’s not the example of the ticking bomb that is simplistic; it’s the moral absolutism that obscures that complex choices of real-life anti-terrorism.

The obvious objection to breaking the absolute is of course the slippery slope. I mentioned above that the ticking bomb argument would allow torturing many more people than just the captured terrorist holding vital information.

Terrorism and Human Rights (6): The War on Terror

The War on Terror, started by the U.S. government as a response to the September 11, 2001 terror attacks and later joined by other governments, has had and continues to have grave consequences for the human rights of their citizens and of citizens of other countries. This is a high price for an uncertain gain.

However, before I list these consequences, I would like to make it clear that I believe, as any rational human being, that terrorism is evil, that it has to be destroyed and that democracies have a right to defend themselves against violent, anti-democratic fanatics.

I also believe that democratic governments should be especially vigilant because the freedoms that they are elected to protect, offer opportunities for those who hate freedom, opportunities that do not exist in other political systems. Potential terrorists find it relatively easy to enter a democracy and operate in it. A democracy is a very vulnerable form of government because of the freedom it gives to everyone, even those who don’t mean well.

The freedoms of a democracy can be and are abused, but this, it seems, has frightened democratic governments to such an extent that they have decided to limit these freedoms up to the point that they are in danger of abandoning their values, and hence doing the work of the terrorists for them. It can be acceptable to limit certain rights for the protection of other rights, but the right to security has taken on an absolute priority, at the expense of all other rights. There is no reasonable balance anymore. Some have called the war on terror a “war on freedom” (source).

1. Civil liberties

Governments try to defend their countries against terrorist attacks by limiting civil liberties in their territories.

  • The right to privacy has been limited: CCTV has become ubiquitous, DNA databases have been created, eavesdropping and wiretapping have been legalized etc.
  • “No-fly-lists” have come into force, limiting the freedom of movement of even those who have written critically of the government or attended peace-protests.
  • Hate speech laws have been voted to silence jihadist hate preachers, silencing others at the same time.
  • “Racial profiling” by the police has turned innocent people into possible suspects, often inverting the burden of proof.
  • Habeas corpus has been limited, periods of detention without charge extended, sometimes indefinitely (for “enemy combatants”).

However, in spite of all this, the constraints on a government’s actions within its territory are sometimes still considered to be inhibiting:

  • “Extraordinary rendition” has been covertly practiced, allowing suspects to be tortured outside of the territory by professional torturers in other countries.
  • Extra-territorial prisons have been created, in Guantanamo, but probably elsewhere as well, where suspects can be tortured or held indefinitely and where the Geneva Conventions supposedly don’t apply.

2. Mentalities

The war on terror has also changed people’s minds and attitudes.

  • The media have started to censor themselves. Solidarity with the government at war and the commander-in-chief, or the fear of being perceived as unpatriotic, appeasers, “useful idiots” or even open allies of the enemy has turned them into uncritical supporters of the war.
  • Citizens have turned on Islam and Muslims. Xenophobia and more specifically islamophobia have undermined the ideals of tolerance and multiculturalism, and have in certain cases even led to hate crimes against Muslims.
  • A “culture of fear” has been created by the terrorist but also nurtured by irresponsible western politicians. This fear has damaged democracy. Not only have the media relinquished their traditional role as watchdogs. Politicians as well, and especially incumbents, have abused the fear of terrorism to harness support. Alert levels seem to go up just before elections.

3. Preemptive war

The US government has elaborated and implemented the strategy of preemptive war, a war

waged in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war. (source)

The Iraq war was deemed a preemptive war because Iraq was allegedly about to attack the US with weapons of mass destruction, or supply these weapons to terrorists. Whatever the merits of the case against Iraq – and with the passing of time these seem to become weaker and weaker – the war has been framed, correctly or not, as a necessary stage in the ongoing war on terror. It has, however, resulted in massive numbers of casualties on both sides. The human rights violations caused by the war stand in no relation to the violations caused by terrorism or the violations that could have been caused by Saddam.

In any case, you can’t solve the problem of terrorism by violent means only. Terrorism has causes, and there will be terrorism as long as these causes exist. (Mind you, I don’t want to excuse or justify terrorism).

4. Counter-productive

It is now widely believed, even in US government circles, that the war on terror is counter-productive. Especially the wars in Iraq and Afghanistan, the torture in Abu Ghraib and the detentions in Guantanamo have produced a backlash and have increased rather than reduced the terror threat. The 2007 National Intelligence Estimate issued the following among its “key judgments”:

The Iraq conflict has become the “cause celebre” for jihadists, breeding a deep resentment of US involvement in the Muslim world and cultivating supporters for the global jihadist movement. (source)

The war on terror has created and exacerbated resentment, hatred of the West and anti-americanism. And with anti-americanism often comes hatred of democracy and freedom and Islamic radicalization. Apart from the removal of the Taliban in Afghanistan, there is no evidence that any of the strategies in the war on terror has done any good (source).

5. Misnomer

There is something fishy about the concept of a “war on terrorism”. This “war” is in fact no such thing. It is in essence crime prevention and law enforcement. There is no well-defined enemy. Anyone can at any time become an enemy. For this reason, there is no conceivable end to the war. And if you claim to wage a war on terrorism, you might as well claim to wage a war on carpet bombing. Both are tactics or strategies, not something you wage war against.

If you insist on calling anti-terrorist actions a war, then you give too much credit to the riffraff you’re opposing. Rather than deranged criminals they can call themselves soldiers. And soldiers defend something. You legitimize them. You turn a crime into a two-sided struggle in which each side defends its positions. This in turn leads to the view that the war on terror is a war of the West against the rest, bringing back images of colonialism, imperialism and the crusades, again legitimizing the terrorists, helping to consolidate their often internally opposed forces, and making them honorable in the eyes of ordinary citizens outside of the West.

I can understand that the concept of a “war on terrorism” is useful for the executives in the West, because an executive that is at war has more powers, less oversight, more popular support and less criticism, but it’s a meaningless and dangerous concept. Let’s give it up.

Human Rights and International Law (9): Impunity

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

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

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

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

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

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

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

2. The solidarity of tyrants

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

3. The law

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

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

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

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

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

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

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

4. Institutional problems

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

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

Data

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

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

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

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

What Are Human Rights? (13): Not Absolute – The Case of the State of Emergency

Article 4 of the International Covenant on Civil and Political Rights, the main human rights treaty, creates the possibility for states to declare a so-called “state of emergency“, a temporary suspension of mechanisms for the protection of some human rights when this is required by a national crisis:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Paragraph 2 states that the emergency can never warrant the violation of the right to life, the right not to be tortured or held in slavery, the right to due process, or the freedom of thought and religion.

This provision seems to be very reasonable. It is the case that human rights can be misused for the destruction of a human rights protecting community. And the democratic mechanisms can be misused for the abolition of democracy. (This is the famous theory of the suicide of democracy, the best example of which is the Nazi take-over in Weimar Germany). When this misuse develops to a certain scale, one can indeed speak of a regime crisis and a state of emergency suspending certain human rights protections may be the only alternative left to save the community.

For example, in times of war or civil war it is impossible to insist that all human rights and democratic principles be fully applied. The enemy should no be allowed to use human rights for the destruction of a democratic and human rights supporting community. Furthermore, a war, because of the urgency it creates, makes it very difficult to respect certain democratic habits, such as the consultation of large parts of the population, the thorough examination of all alternatives etc. A strong, individual leadership seems better adapted to the urgencies of war. On top of that, the war effort and the war industry require a unity of vision and a high level of cooperation without dissent. Dissent can harm the struggle for survival. It weakens the effectiveness of common actions and it can be exploited by the enemy. In a state of war, society and politics take over many of the undemocratic habits of the military, such as discipline, secrecy, strong leadership, the absence of criticism, uniformity instead of diversity and so on. The war industry as well can harm human rights, for example the rights concerning free choice of labor, good working conditions etc.

Perhaps there are also non-war situations, or warlike situations which do not resemble traditional warfare (such as the “war on terror” if there is such a thing), which may warrant temporary suspension of human rights protection. However, the goal of this post is not to disentangle this notoriously difficult question.

Why Do We Need Human Rights? (5): Property Rights

Private property often does not have a good press. It’s unequal distribution has often been criticized. However, there is a recognized human right to private property (or, more specifically, the right to legal protection of private property and the right to use it freely) and this right is important for different reasons.

First of all, private property is a means to protect of the private space. Without private property, without your own house or your own place in the world, and without your own intimate and personal things, it is obviously more difficult to have a private life. The four walls of your private house protect you against the public.

Without private property, there is no private world (another example of the indivisibility and interdependence of human rights).

Just as there is no light without darkness, there is nothing common to all people and no public space without private property. So private property protects publicity, commonality etc. Independence, self-reliance, autonomy, and therefore, also freedom, are important values, and these values rely heavily on private property.

Private property is also important for the creation and maintenance of relationships. You have your own house and your own place in the world, but not in the world in general. You live in a particular world, in a very concrete social context of friends, enemies, neighbors and other types of relationships. A place in the world is always a place in a particular community, even if you have to transcend this community now and again.

Furthermore, property is an important tool in the creative design of your personality, especially, but not exclusively, when you are an artist.

Finally, it is obvious that without private property there can be no help or generosity. Generosity and the absence of egoism are important for the preservation of a community.

The right to private property, and in particular, the right to your own house, is linked to the freedom to choose a residence, which again is linked to the freedom of movement (again another example of the indivisibility of human rights).

The right to private property is, just as most of the other human rights, a limited right. There can and should be redistribution of private property from the rich to the poor, if other human rights of the poor suffer as a consequence of insufficient private property (for example, the economic rights of the poor). Taxation and expropriation, however, should be used carefully, in view of the numerous important functions of private property. The more property a state acquires, the weaker the citizen becomes. Weaker not only compared to the state, but also compared to fellow citizens. His fellow citizens will find themselves in a position whereby they can control and intervene in his weakened private space.

You also own your own body. Your body is part of your private property. It is something that is yours; it is the thing par excellence that is your own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination, and therefore, the right to die. You carry prime responsibility over your own body and life.

The property of your body can justify private property of material goods. The power of your body and your labor is incorporated in the goods you produce. By working on an object, you mix your labor with the object. If someone wants to take this object away from you, he also takes away your labour, which means that he takes away the power of your body. He therefore uses your body, which is incompatible with your right to possess your own body. See John Locke for a more elaborate exposition of this argument. If man owns his body, he also owns the power of his body and the objects in which this power is incorporated, to the extent that he has not stolen the objects. This can also be used as an argument in favor of some form of communism.

The right not to be a slave is the negative version of the right to possess your own body. Those who commit slavery (but also those who steal) act as if the bodies of other people are their property, a property that can be bought and sold. Considering other people as your property diminishes the value and dignity of these other people. Other people should not be considered as a means.

Terrorism and Human Rights (3): Torture

A few words on the infamous “ticking bomb argument” in favor of torture: suppose we capture a terrorist, and we know that he knows where the ticking bomb is hidden that will soon kill thousands or millions. Are we not allowed to torture him in order to get the information which can save these people? Are we not morally forced to torture him?

I don’t believe this simple cost-benefit analysis (low-cost torture to individuals compared to enormous gains for large, threatened groups) is a realistic description of torture, given the facts that

  • the example of the captured terrorist with information about a ticking bomb is unlikely to happen in real life, and
  • most actual torture cases are very different.

One should also consider the consequences of allowing torture, even in extreme cases:

  • installing a certain mentality in the minds of the torturers, sometimes destroying their mental health
  • the damage to judicial and democratic institutions
  • the reciprocity of our enemies (they will also use torture if torture is inflicted on them) …