Human Rights and Groups: Beyond the Particular/Universal Dichotomy

Abstract

Human Rights and Groups:Beyond the Particular/Universal Dichotomy Leora Bilsky (bio) James Loeffler's new book entitled Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century suggests that our contemporary understanding of international human rights as fundamentally opposed to national politics is based on the false dichotomies between particularism and universalism and between politics and law. By turning our attention to the history of the human-rights field—and particularly to the struggles of five Jewish founding fathers of international human rights—we find that from their perspectives, human rights were actually closely related to national-group politics; that specifically Zionism, as a national movement, was not contrary to international law or human-rights law or human-rights law but was rather a catalyst for legal creativity; and that human-rights law was not created out of indifference or hostility toward group politics but was rather integrated into attempts to protect and provide political maneuvering space for the group. In fact, the struggle for collective group recognition and protection was at the heart of the legal tools and institutions that they proposed, including the Genocide Convention, the Universal Declaration of Human Rights, the recognition of crimes against humanity, and others. Could this historical understanding of the development of human rights through the biographies of its Jewish founders, who tried time and again to tie the particular with the universal and the political with the legal, shed light on the legalism that characterizes the field today? Is there indeed a necessary tension between human rights and national politics? And if not, what is the reason behind our collective amnesia of the different possibilities to integrate both? What could explain the contemporary limitation of our legal and political imagination in this regard? What is the force behind the anachronistic story we tell ourselves about this false dichotomy? And especially today, at a time when [End Page 162] human rights, international law, and globalization are portrayed by populist leaders as chief threats to the protection of national collectives and identities, could Loeffler's book provide new answers that do not reinforce the validity of this false dichotomy? In my research, I have dealt extensively with a puzzle relating to a similar difficulty—that is, the difficulty of integrating law and politics in a manner compatible with the liberal conception of law, in order to account for the phenomenon of political trials, prevalent in transitional settings. This question is not new and has been studied by numerous jurists through the years, but since the mid-1990s, it has been redefined as the field of transitional justice, a term that has attempted to allow for political trials in times of transition from military or dictatorial regimes to democracy. Transitional-justice literature views the restoration of the rule of law (accountability, end of impunity) and the unveiling of the truth about the previous regime's crimes as essential and central components of the transition process and examines the unique legal and political tools that were developed to address such transitions, including truth and reconciliation commissions, international criminal law, restitution, and reparations. Despite the strong links between the fields of transitional justice and human rights, they differ in their prevalent approaches to the relation between law and politics. While prominent transitional-justice scholars are willing to accept political action as an integral part of the legal field, the human-rights field is characterized by an apolitical legalism that is seen as necessary for its very legitimacy.1 Here we can find an important contribution of Loeffler's book to contemporary legal debate. Today, the transitional-justice field is going through a transformation as it moves away from the earlier recognition of the necessity of accommodating politics and balancing strict legalism with the political needs of particular communities toward a return to a hegemony of criminal law over transitional-justice processes (under the struggle to end impunity and the transition from national to international law), and over the human-rights field more generally.2 This flight from "politics" in order to strengthen the legitimacy of international law is questioned by Loeffler's historical narrative. [End Page 163] The political in Loeffler's book relates to national...