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.
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Crime and Human Rights (5): Decreasing Levels of Violence

Violence is obviously a human rights issue. Violent actions, either by the state or by fellow citizens, violate our physical integrity and personal security. Several articles of the Universal Declaration protect us against different forms of violence: art. 3 protects our right to life and personal security, art. 4 prohibits slavery, art. 5 prohibits torture etc.

Levels of violence throughout history

It’s perhaps counter-intuitive, but violence has been in decline throughout modern history.

Today we are probably living in the most peaceful moment of our species’ time on earth. When the archeologist Lawrence Keeley examined casualty rates among contemporary hunter-gatherers – which is the best picture we have of how people might have lived 10,000 years ago – he discovered that the likelihood that a man would die at the hands of another man ranged from a high of 60 percent in one tribe to 15 percent at the most peaceable end. In contrast, the chance that a European or American man would be killed by another man was less than one percent during the 20th century, a period of time that includes both world wars. … From the Middle Ages to modern times, we can see a steady reduction in socially sanctioned forms of violence. Steven Pinker (source)

This is true for most kinds of violence: war, ethnic conflict, state violence (criminal punishment, torture, repression etc.), war, one-to-one violence (homicide) etc.:

When the criminologist Manuel Eisner scoured the records of every village, city, county, and nation he could find, he discovered that homicide rates in Europe had declined from 100 killings per 100,000 people per year in the Middle Ages to less than one killing per 100,000 people in modern Europe.

And since 1945 in Europe and the Americas, we’ve seen steep declines in the number of deaths from interstate wars, ethnic riots, and military coups, even in South America. Worldwide, the number of battle deaths has fallen from 65,000 per conflict per year to less than 2,000 deaths in this decade. Since the end of the Cold War in the early 1990s, we have seen fewer civil wars, a 90 percent reduction in the number of deaths by genocide, and even a reversal in the 1960s-era uptick in violent crime. Steven Pinker (source)

A cognitive illusion

We tend to believe that the 20th century was the most bloody of all, and that the 21st hasn’t started any better. That’s probably a misconception or “cognitive illusion” fueled by unprecedented information flows. Today, we have magnificent information systems delivering facts, figures and images instantaneously. Compared to that, information about the centuries before is by definition more scarce: few images and newspaper reports, no television reports, less systematic historiography, less durable data sources etc.

That doesn’t make the present-day levels of violence acceptable. On the contrary. Rather than looking at history and concluding that man will always be violent, the recent decreases in levels of violence should encourage us to go all the way. And then it’s important to understand why the levels have gone down.

Why has violence declined?

One reason is undoubtedly the development of the modern state and its judicial apparatus. This apparatus can of course be used to inflict violence, but the risk of this happening has decreased as states have become more democratic, more respectful of the rule of law, and more sensitive to human rights. The democratic nature of many contemporary states has also diminished the risk of inter-state violence (this is the so-called democratic peace theory).

Another, and related, point is that

Thomas Hobbes got it right. Life in a state of nature is nasty, brutish, and short – not because of a primal thirst for blood but because of the inescapable logic of anarchy. Any beings with a modicum of self-interest may be tempted to invade their neighbors and steal their resources. The resulting fear of attack will tempt the neighbors to strike first in preemptive self-defense, which will in turn tempt the first group to strike against them preemptively, and so on. … These tragedies can be averted by a state with a monopoly on violence. States can inflict disinterested penalties that eliminate the incentives for aggression, thereby defusing anxieties about preemptive attack and obviating the need to maintain a hair-trigger propensity for retaliation. Indeed, Manuel Eisner attributes the decline in European homicide to the transition from knightly warrior societies to the centralized governments of early modernity. And today, violence continues to fester in zones of anarchy, such as frontier regions, failed states, collapsed empires, and territories contested by mafias, gangs, and other dealers of contraband. Steven Pinker (source)

Yet another reason for the decrease in the levels of violence is the development of the modern economy. This development has increased the costs of violence. It’s easier to be violent towards your fellow human beings of you live in a subsistence economy and produce everything you need for yourself. When you depend on others for your job and income, your consumption goods, your transport etc. it becomes more costly to act in a violent way towards them. The same can be said of nations: like individuals, nations have become more interdependent in the globalized economy. Acting violently towards other nations has therefore become more costly. Self-sufficiency is no longer an option for nations either.

Yet another reason:

James Payne suggests another possibility: that the critical variable in the indulgence of violence is an overarching sense that life is cheap. When pain and early death are everyday features of one’s own life, one feels less compunction about inflicting them on others. As technology and economic efficiency lengthen and improve our lives, we place a higher value on life in general. Steven Pinker (source)

Human Rights and International Law (14): Human Rights vs. Humanitarianism?

In this post, I want to look at some of the differences – and perhaps conflicts – between human rights activism and humanitarian action (or humanitarian intervention). Obviously, some definitions to start with. There’ve been enough discussions on the definition of human rights on this blog, so I’ll focus now on humanitarianism. (Note: I’m leaving aside the more problematic issue of armed humanitarianism).

Definition of humanitarianism

According to Wikipedia,

humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. No distinction is to be made in the face of human suffering or abuse on grounds of tribal, caste, religious or national divisions.

However, the concept of humanitarianism has become more precise and restrictive over the last decades. In fact, it is now generally understood to be shorthand for “international humanitarian action“, which in turn means international emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters and other humanitarian crises representing

a critical threat to the health, safety, security or wellbeing of a community or other large group of people, usually over a wide area. (source)

When you think about humanitarianism, you think about the Red Cross, the UNHCR, MSF, WFP etc. The focus is on the alleviation of widespread suffering and the saving of lives.

Hence, there is a close link between humanitarianism and human rights activism. Humanitarianism deals with rights violations. The absence of suffering is a human right, as is life. Of course, human rights are about much more than that. Free speech, democracy, religious liberty etc. are not about suffering or death, at least not normally). Nevertheless, humanitarianism shares its goals and ideals with part of the human rights agenda, and can therefore be understood as a subset of human rights activism.

Differences between humanitarianism and human rights activism

This link doesn’t mean that there are no differences between the two approaches. I’ll try to mention a few of them here. Apart from the more narrow scope of humanitarianism, compared to human rights activism, the main differences are:

Short term and urgency

Humanitarian agencies such as those mentioned above are by definition engaged in conflict zones or disaster zones. Their only objective is the protection of civilians against immediate harm resulting from war, famine etc. Hence, they are focused on the very short term future: making sure people survive, have enough to eat and are physically secure. Human rights activism, on the contrary, will also look at longer term results and less urgent needs, such as education, institutionalized (as opposed to emergency) healthcare, poverty etc.

Forward looking

Humanitarianism is mainly forward looking, whereas human rights activism reserves a lot of its attention to the past, and more specifically to justice for past human rights violations (including criminal justice).

Immediate causes

Humanitarianism also looks at the immediate causes of suffering, e.g. a war, a disaster etc., whereas human rights activism will tend to identify the root causes behind these immediate causes, e.g. bad governance, poverty, discrimination and other “structural injustices” which surpass the timeframe and the tools of the humanitarian.

Unconditional

Humanitarianism means unconditional action. Given the urgency of the suffering they want to alleviate, agencies will go in, no matter what. The war can still be going on, the disaster can be unfolding… The human rights activist, however, will often point to prerequisites which have to be present before some specific human right can be realized, and without which action is futile (e.g. the removal of a dictator as a prerequisite for freedom of the press). A related point: humanitarianism takes a few human rights in isolation, and works on those only. A human rights activist will look at the whole system of human rights, and stress the interdependence of all human rights.

Political neutrality

Humanitarianism tries to be neutral. It doesn’t take sides in a conflict or in a (civil) war. All suffering is viewed as equally deserving of alleviation, whether it is the suffering of the victim or the suffering of the aggressor (“a universal duty to act in the face of human suffering”). This isn’t moral relativism, but a practical necessity in many cases. If the humanitarian agencies want to have access to the people who are suffering, they often don’t have the luxury of criticizing any of the parties in the conflict, of outspoken public advocacy, and of “naming and shaming”.

The human rights activist, on the contrary, has to take a stand. Human rights aren’t politically neutral. They require, to a certain extent, democratic government, and non-democratic government is often a root cause of many rights violations.

Children’s Rights (9): Child Soldiers

From Amnesty International:

Approximately 250,000 children under the age of 18 are thought to be fighting in conflicts around the world, and hundreds of thousands more are members of armed forces who could be sent into combat at any time. Although most child soldiers are between 15 and 18 years old, significant recruitment starts at the age of 10 and the use of even younger children has been recorded.

Around the world, children are singled out for recruitment by both armed forces and armed opposition groups, and exploited as combatants. Easily manipulated, children are sometimes coerced to commit grave atrocities, including rape and murder of civilians using assault rifles such as AK-47s and G4s. Some are forced to injure or kill members of their own families or other child soldiers. Others serve as porters, cooks, guards, messengers, spies, and sex slaves.

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 (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.

The Causes of Poverty (7): Shame

The poor man’s conscience is clear; yet, he is ashamed … He feels himself out of the sight of others, groping in the dark. Mankind takes no notice of him. He rambles and wanders unheeded. In the midst of a crowd, at church, in the market … He is in as much obscurity as he would be in a garret or a cellar. He is not disapproved, censured, or reproached; he is only not seen … To be wholly overlooked, and to know it, are intolerable. John Adams

Poverty is not only an economic problem. It creates shame for those who suffer from it. For example, a study of a food emergency program in Kinshasa, Congo, found that it failed in part because people didn’t come forward to claim the food. They were ashamed. Coming forward would have meant admitting failure, failure as self-sustaining beings and as care-takers for their children. They don’t see the external causes of their poverty, such as war, government policies, climate change etc.

Cultural Rights (9): Ethnic Cleansing

Ethnic cleansing is the violent displacement of an ethnic group from a particular territory in order to create an ethnically “clean” unit, i.e. a territorial unit composed of only one ethnic group. The means used to achieve ethnic unity are:

  • direct military force
  • police brutality
  • genocide
  • the threat of force
  • intimidation
  • rape
  • pogrom
  • demolition of housing, places of worship, infrastructure
  • discriminatory legislation or policies
  • tribal politics
  • economic exclusion
  • hate speech, propaganda
  • rewriting of history, fabrication of historical resentment
  • a combination of the above.

Given these various “tools”, it is not correct to equate ethnic cleansing with genocide. There are more or less violent forms of ethnic cleansing, although all forms contain some kind of force, otherwise one would speak merely of voluntary migration. Deportation or displacement of a group, even if effected by force, is not necessarily equivalent to destruction of that group.

Given the element of force it is correct to denounce all forms of ethnic cleansing, not only on the grounds of some kind of ideal of multiculturalism, but also on the grounds of the self-determination of the people involved, of their right to settle where they want, their freedom of movement etc. It is defined as a crime against humanity.

The best known cases of ethnic cleansing are:

  • Bosnia and Herzegovina in the 1990s
  • Iraq during the Iraq war
  • India and Pakistan during their partition
  • The Georgian-Abkhaz conflict
  • Rwanda during the genocide
  • The relocation of Native American peoples from their traditional areas
  • The forced removals of non-white populations during the apartheid era
  • The Palestinian exodus
  • Central and Eastern Europe during and immediately after World War II
  • Darfur
  • etc.

However, it seems that this tactic has been known to humanity since a long time. Some even believe that the Neanderthals were victims of ethnic cleansing.

Some of the justifications given in defense of ethnic cleansing are:

  • To remove the conditions for potential and actual opposition. According to Mao Zedong, guerrillas among a civilian population are fish in water. By draining the water, one disables the fish.
  • To create a separate state for one ethnic group. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. A multicultural nation can never be legitimate according to nationalism, because one assumes that in such a state it is inevitable that some groups are ruled by others and hence do not have an authentic and autonomous existence. The only way to have homogeneous territories in our multicultural and melting-pot world with no clear territorial separation of groups within states, is the use of force.
  • To redeem a society that is literally “unclean” and “sick” because of the presence of inferior humans.

Migration and Human Rights (3): Refugees

A refugee is an involuntary migrant or a “push-migrant”. It’s the situation in the home country – usually war, famine or persecution or a combination – which forces or pushes him or her to migrate abroad, usually to one of the neighboring countries. The refugee is different from other types of migrants, such as the people who feel the “pull” of economic opportunity which, voluntarily or involuntarily (in the case of extreme poverty), drives them abroad.

Refugees who flee war, famine or oppression but do not leave their home country are called internally displaced persons.

Countries have an obligation to accept refugee on their territory. Article 14 of the Universal Declaration on Human Rights states that

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

However, this obligation is often rejected by countries. Countries often subject

“refugees to arbitrary arrest, detention, denial of social and economic rights and closed borders. In the worst cases, the most fundamental principle of refugee protection, non-refoulement, is violated, and refugees are forcibly returned to countries where they face persecution.” Human Rights Watch (http://hrw.org/doc/?t=refugees&document_limit=0,2)

The states that create the refugee problem also have obligations. Article 13 of the Universal Declaration on Human Rights states that

Everyone has the right to leave any country, including his own, and to return to his country.

Therefore, countries have an obligation to create or restore the circumstances which make it possible for people to return home. It’s up to these countries, with the assistance of the international community, to address the root causes that force people to flee.

 

 

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.

Human Rights and International Law (3): Humanitarian Intervention

This post focuses on one type of humanitarian intervention only, namely so-called armed humanitarian intervention (although I’ll drop the “armed” for easier reading). Humanitarian intervention is an armed intervention in one state by another state or states with the objective of ending gross violations of human rights, such as genocide or ethnic cleansing.

Whereas the moral case for such an intervention is very strong, it remains controversial because of the fact that violence is used and that the national sovereignty of the “receiving” state is violated. One could easily justify the breach of sovereignty since the fate of the victims is obviously more important than sovereignty. Furthermore, this breach is inherently temporary because neither annexation nor interference with territorial integrity is at stake. But the use of violence is more difficult to justify.

It seems that humanitarian intervention is only justified when certain conditions are met:

1. Legitimate authority

The states that act cannot unilaterally decide that intervention is necessary. There must be some kind of general conviction that the situation is serious and that some kind of forceful intervention is warranted. A Security Council resolution can be the authority.

If there is a general conviction that action is necessary but there is no explicit Security Council approval of intervention – because of the veto or because of other reasons – then we have to be careful. If states can unilaterally decide to intervene, even against world opinion, then we have international chaos. Everybody takes the law in his own hands, and states will quickly find human rights excuses to intervene wherever they want. Some legitimate authority must have expressed something close to a world opinion regarding the necessity of intervention. Individual actors cannot decide autonomously. An approval of the General Assembly may indicate that there is consensus, but a Security Council resolution is better because this will guarantee that the intervention will not cause superpower conflicts.

2. Collaboration

As an elaboration of the previous point, one must demand that the intervening states be as numerous as possible in order to avoid accusations of self-interest, partiality and power politics. Collaboration also increases the chance of success (see condition 4.)

3. Right intention or appropriate goal

The main goal of the intervention must be the protection of human rights. The accusations that often accompany US-led interventions are generally unhelpful, except of course when they are true.

4. Probability of success

There must be a real chance that the intervention can be successful.

5. Last resort

Other and more peaceful means must have been tried first, although the urgency of the matter can make immediate military action acceptable.

6. Proportionality

The intervention must be proportional to the evil it is meant to destroy. Not enough intervention can cause more harm than before without a real chance of solving the initial problem. Too much intervention will also cause more harm than before. The costs must not outweigh the benefits. We must prevent more harm than we cause, although one must be careful when making utilitarian calculations. Violence always results in rights violations. Hence the rights violations one is willing to accept as a consequence of violent intervention cannot outweigh the violations that originally caused the intervention. How many rights violations can one cause when fighting rights violations? Theoretically, one cannot sacrifice certain people’s rights – for example, the rights of innocent civilian victims of air bombardments – for the sake of other people’s rights – for example, the victims of the dictatorship that is the target of the bombardments. However, most of us believe that in extreme circumstances, it is acceptable to sacrifice some rights or the rights of some in order to protect many more rights or the rights of many more. This means that violence is only acceptable in extreme cases, namely when the rights of many or many rights are violated.

7. Ius in bello

The laws of warfare must be respected.

8. Peace

If there is a threat to international peace, then the intervention will have a stronger claim to legality. But this is not a necessary condition.

What is Democracy? (23): Democracy is Peace, Ctd.

Tyrannies, compared to democracies, are more likely to cause wars. Tyrannies violate human rights and these violations make it very difficult to maintain the rule of law (different human rights institute the rule of law, and the indivisibility of human rights means that the whole body of human rights is in danger when some human rights suffer). Without the rule of law, it is very hard to maintain a justice system which that can channel conflicts away from violence. As a consequence, these conflicts can escalate and can become violent. People start to take the law in their own hands. They start to steal, to compensate for goods stolen, and to murder, to compensate for murder. Revenge is seen as the only alternative for justice, and revenge tends to escalate. Large-scale conflict and civil war become a very real threat. And civil wars have a tendency to become international wars.

Moreover, violations of human rights create anger, frustration and revolt (this is true for all types of rights, economic rights included), and can therefore be a direct cause of civil war. And civil war can lead to international war.

However, there is an even more direct link between rights violations and international conflict. Rights violations can create tensions with neighboring countries because of refugee flows, which result from rights violations or civil war. Neighboring countries can decide to intervene in these rights violations or in a civil war, to protect their own safety and prosperity. This intervention can, of course, lead to an international conflict. It is, however, the internal situation in a country and not the intervention from the outside, which causes the conflict. It is the country in which human rights are violated, which creates international instability.

Terrorism and Human Rights (4): Habeas Corpus

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

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

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

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

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

The Causes of Poverty (5): Overpopulation

Some blame overpopulation for many of the world’s problems such as poverty, famine and war (which are obviously rights violations). There are supposed to be too many people for peaceful coexistence and sustainable food production. The areas of the world which are inhabitable and useable for agriculture are too small compared to the number of people living in them. These people are followers of Thomas Malthus or of malthusianism, and often even predict major catastrophes which will reduce the population significantly. They also advocate some quite draconian measures for limiting the human population.

In scientific terms: overpopulation occurs when an organism’s numbers exceed the carrying capacity of its habitat; carrying capacity = [available sustainable resources > current and projected needs of the organism].

For example, imagine a population of 10 living in a habitat of 10 square kilometers. These 10 square kilometers can produce food, drinking water, shelter etc. for 15. Then there is no overpopulation. But if the population grows or is expected to grow at a rate of 10% annually, without an equal or superior growth in resources, then overpopulation threatens. There would also be overpopulation if the material resources are adequate but other needs such as space, privacy etc. are not met. For example if the available space is too small to guarantee peaceful co-existence.

So overpopulation can result from changes in the population (increased births, reduced deaths, better healthcare, migration etc.) or from changes in the resources – material or psychological – in the habitat (for example desertification, natural disasters, technological innovations etc.), or from a combination of both.

The current state of the world’s population is the following:

  • Present world population – 6,500,000,000 but unequal distribution of world population (see graphs below). The main population clusters are East Asia, South Asia, Southeast Asia and Europe.
  • Average world growth rate – 1.4% annual, but also unequal distribution of growth rates: fastest growing areas are the Middle East – over 4.0% annual – and the slowest growing areas are Central and Eastern Europe – 0% or less. Southern Africa even sees negative growth rates as a result of the HIV epidemic.
  • Forecasts are notoriously difficult but the world’s population is expected to rise by 40% to 9.1 billion by 2050.

 

 

Blaming everything on overpopulation is misguided and reductionist. Problems such as poverty and war have a complex set of causes, including in some but not all cases overpopulation, government policies, cultural factors, repercussions from colonialism, religion etc.

One can also question whether there is indeed a problem of overpopulation. Per capita food production has risen the last 50 years, and poverty (expressed as the number of people living on less than 1$ a day) has decreased while the population has increased. So poverty and war may not have anything to do with the size of the world’s population. However, ecological problems may have something to do with it. If so, the solution would surely not be population control, which is much too difficult and often dictatorial. Changes in consumption patterns are a much more promising route.

What is Democracy? (19): Democracy is Peace

The democratic peace theory, stating that democracies do not wage war among themselves, is one of the main arguments in favor of the international promotion of democratic governance. It has been around since Immanuel Kant who, in his essay Perpetual Peace, postulated that constitutional republics, or what we now would call democracies, was one of the necessary conditions for a perpetual peace. Recently, this theory has been abused by the US government in order to justify a war against a non-democracy – Iraq – in order to bring lasting peace to the world, but this abuse has not diminished the strength of the argument.

Democracies do not wage war among themselves mainly for the following reasons:

  • Democracies are able to make and keep international agreements and to create mechanisms which make it possible to solve international conflicts in a peaceful way. Publicity, as we find it in a democracy, tends to enhance respect for agreements because it makes it harder to cover up violations of agreements. A mentality of respect for the law, which is typical of a democracy because the rule of law is typical of a democracy, promotes respect for international agreements.
  • Democracies are able to avoid civil strife because they have judicial systems for solving conflicts between persons or between groups. Civil strife often spills over to other countries and can cause international conflicts (international violence is often the consequence of internal violence). Therefore, avoiding civil strife means avoiding international conflicts. Tolerance, respect, religious freedom and non-discrimination, as guaranteed by human rights and democracy, also protect civil peace and therefore international peace.
  • Democracy promotes peace because it provides mechanisms for the peaceful transition from one ruler to another. There is no need for a violent succession struggle which can have international consequences. Opposition movements do not have to resort to extreme tactics in order to prove their point or to take over power. Leaders do not need to engage in dangerous international adventures in order to increase their legitimacy etc.
  • Governments which treat their own people with tolerance and respect tend to treat their neighbors in the same way.
  • Governments which cannot force people to do something against their will, will find it much harder to go to war. The people most often do not want to go to war, because it is they who suffer in the first place. To some extent, a tyranny does not need the agreement of the people to start or continue a war.

What is Democracy? (15): The Willingness to Live Together

Democracy is impossible when there is fundamental hostility between large groups in the state, when one group fears that a political victory of another group will harm its fundamental interests and when, as a consequence, groups are unwilling to live together. The tensions between communities resulting from this kind of situation makes the functioning of democratic procedures impossible and can lead to rights violations and even to civil war.

To some extent, national unity is a prerequisite for the preservation of any form of government, although an authoritarian state is undoubtedly better equipped to suppress communal hostility. The ability to survive in a situation of communal hostility and to maintain communal peace is a classic argument in favor of authoritarian forms of government. Indeed, these forms of government seem to be able to separate warring factions, to avoid chaos, violence, separation and disintegration and to focus attention on loyalty, patriotism and the community. They limit the use of rights because rights are a means to incite or aggravate divisions. These regimes are able to violate rights if this is deemed necessary in order to keep antagonists apart.

However, what is the cost of authoritarian peace? Grave violations of human rights in the first place, and more violence than before. Rights violations often create more violence than the violence which was the initial reason to violate rights. If you hit me, I will hit you back and if I hit you back, you will hit me back again, and so on. Violating rights in order to suppress communal tensions is counterproductive in the long run. A strong hand always causes revolt and violence, the opposite therefore of what is intended. Rights violations, which are deemed necessary for the preservation of communal peace, cause violent opposition and revolt. They can lead to violent revolt even when they do not imply the use of violence. Without human rights, it is impossible to express claims and people who cannot claim something will resort to more extreme means in order to get what is theirs. Authoritarianism promotes the evil it wants to combat, although in the short run rights limitations and the use of violence may seem the only alternative.

The Causes of Human Rights Violations (3): Absence of Peace

If man does find the solution for world peace it will be the most revolutionary reversal of his record we have ever known. George C. Marshall

Peace or the absence of war and violent struggle is, of course, another important prerequisite for democracy and human rights. Human rights and the principles of democracy are heavily violated in times of war and this is even necessary. And although many human rights violations committed in the course of a war are not necessary, it is impossible to insist that all human rights and democratic principles be fully applied in a war situation. 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 unity of command, discipline, strong leadership, the absence of criticism, uniformity instead of diversity and so on. Needless to say that a war also means human rights violations. The war industry as well can harm human rights, for example the rights concerning free choice of labor, good working conditions etc.

A right to peace would, therefore, be very useful. Here I argue that democracy and human rights do a lot to create and maintain the peace they need for their own functioning.

Religion and Human Rights (3): The Historical Origins of Religious Liberty

The European religious wars not only caused harm and tyranny (tyranny because it led to the creation of absolutism by the European monarchies trying to restore peace and tranquility). It also led to the institution of religious liberty. After all, the state had no choice but to put itself above the factions. Only by loosening its ties with a favoured religion and guaranteeing a free and equal space for every religion, was it able to channel the struggle away from violence. As religion had become a dangerous and dividing power, it became clear that the state had to separate itself from the church, not only to keep the peace, but also to maintain itself.

The duty of the state to support one particular religion was replaced by the duty to protect the plurality of religions. Religious freedom gave citizens who belonged to a religious minority the power to claim protection from the state. In this way, the state not only liberated the people from the horrors of religious wars, but also from the pressure of religious conformity.

The fact that, in our day and age, global mobility and globalization encourage competition between and coexistence of different religions, makes it likely that the local historical events which resulted from the struggle between Catholicism and Protestantism in Europe – which have been events limited to the history of the West – will be reproduced elsewhere in the world. Different states in different parts of the world will feel the same need to pacify competing parties by putting themselves above these parties. They can only put themselves above competing religious communities if they separate themselves from religion and if they grant religious liberty. Only religious liberty can produce peaceful coexistence in a plural society. The option of suppressing one or all of the competing parties (as is attempted in China for instance) will only produce revolt and will lead us away from rather than towards peace and security.

These contemporary historical developments justify and promote the universality of the right to religious liberty.