In defence of human rights

Abstract

35 years ago there was a bomb scare at the International Secretariat of Amnesty International where I was running the legal office; the building was evacuated while the police and bomb squad checked out a suspect package. A police officer communicating with her station reported, in a matter-of-fact way, that she was calling from the premises of “a subversive organisation”. In those days, then, the notion of an organisation that challenges governments was not easily accepted. The UN itself had notoriously abstained from discussing—much less criticising—its members' human rights performance.Yet by the mid-1990s, human rights had catapulted into the mainstream and the UN had a web of human rights laws and mechanisms to address violations of them. The club of governments was belatedly ready to promote human rights accountability. There are now committees of individual experts set up under treaties dealing with human rights: general ones on civil, political, economic, social, and cultural rights and subject-specific ones for such issues as torture, racial discrimination, and women's rights. Meanwhile, the UN Commission on Human Rights began to establish what came to be called “special procedures”. The first ones, working groups or individual Special Rapporteurs, dealt with human rights violations in specific countries. But some countries could muster sufficient votes to avoid such unwelcome attention, so the Commission began to address particular violations. The first thematic special procedure was set up in 1980, a working group on enforced or involuntary disappearances. In 1982 a Special Rapporteur on summary or arbitrary executions was appointed, and, in 1985, a Special Rapporteur on torture. Since then, another 34 thematic special procedures have been created, including one on the right to health.Successive UN Secretaries-General have praised the treaty bodies and special procedures for their contribution to the promotion and protection of human rights. For Stephen Hopgood, however, the 1990s were the high point for human rights and he asserts that we are witnessing their demise. This analysis seems to be based largely on what he perceives as the failure of two important initiatives that aimed to respond to mass atrocities such as the 1994 Rwandan genocide: the creation of the International Criminal Court (ICC) in 1998 and the adoption by the General Assembly in 2005 of a resolution that the UN may use force if necessary to exercise its “responsibility to protect” (R2P) people from “genocide, war crimes, ethnic cleansing and crimes against humanity”. An immediate problem here in my view is that neither the ICC nor R2P targets human rights as such: their focus is on mass crimes taking place in contexts where there has usually been a breakdown in public order. By contrast, the human rights paradigm traditionally presupposes a powerful state having broadly uncontested power over its subjects.Hopgood observes that atrocities still take place, notably in Syria, and he attributes this to factors such as the widespread rise in militant religious belief (in opposition to what he calls the “secular religiosity” of human rights discourse) and a decline in US power and influence, which have caused the aspiration of universalism to be overcome by local, cultural realities and a return to attitudes that prioritise state sovereignty. None of these concerns is without foundation, and their impact on the institution of the ICC and the promise of R2P warrants examination. As outgoing UN High Commissioner for Human Rights Navi Pillay said recently in her parting shot to the UN Security Council—the one UN body endowed with coercive powers—in the face of warning briefings from her office and other human rights mechanisms, “greater responsiveness by this Council would have saved hundreds of thousands of lives”.But ultimately Hopgood's thesis in The Endtimes of Human Rights does not succeed. After less than two decades of the ICC and less than 10 years of R2P, a conclusion of their failure seems palpably premature. And the world's inability to prevent all mass crimes hardly justifies concluding that the core human rights programme, of which he questionably considers the ICC and R2P the most relevant manifestation, has failed too. Indeed, if it had, local and international human rights NGOs would not expend serious resources and effort to provide information and ideas to the UN committees and special procedures. Of course, there are criticisms to be made about the general UN human rights machinery: there may well be more committees and special procedures than necessary; they are all starved of resources, even though their members or mandate-holders are unremunerated; they have no coercive power. Such limitations do not in my view justify a notion like “endtimes”. Rather, a less nihilistic approach would perhaps advocate more and better activity from the existing machinery and, like Navi Pillay, promote the traditional human rights work of mobilising shame, to spur those with power to do more to prevent humanitarian catastrophes, and to hold the perpetrators of atrocities to account.Nigel Rodley is Chair of the Human Rights Committee under the Civil and Political Rights Covenant and was Special Rapporteur on torture from 1993 to 2001. 35 years ago there was a bomb scare at the International Secretariat of Amnesty International where I was running the legal office; the building was evacuated while the police and bomb squad checked out a suspect package. A police officer communicating with her station reported, in a matter-of-fact way, that she was calling from the premises of “a subversive organisation”. In those days, then, the notion of an organisation that challenges governments was not easily accepted. The UN itself had notoriously abstained from discussing—much less criticising—its members' human rights performance. Yet by the mid-1990s, human rights had catapulted into the mainstream and the UN had a web of human rights laws and mechanisms to address violations of them. The club of governments was belatedly ready to promote human rights accountability. There are now committees of individual experts set up under treaties dealing with human rights: general ones on civil, political, economic, social, and cultural rights and subject-specific ones for such issues as torture, racial discrimination, and women's rights. Meanwhile, the UN Commission on Human Rights began to establish what came to be called “special procedures”. The first ones, working groups or individual Special Rapporteurs, dealt with human rights violations in specific countries. But some countries could muster sufficient votes to avoid such unwelcome attention, so the Commission began to address particular violations. The first thematic special procedure was set up in 1980, a working group on enforced or involuntary disappearances. In 1982 a Special Rapporteur on summary or arbitrary executions was appointed, and, in 1985, a Special Rapporteur on torture. Since then, another 34 thematic special procedures have been created, including one on the right to health. Successive UN Secretaries-General have praised the treaty bodies and special procedures for their contribution to the promotion and protection of human rights. For Stephen Hopgood, however, the 1990s were the high point for human rights and he asserts that we are witnessing their demise. This analysis seems to be based largely on what he perceives as the failure of two important initiatives that aimed to respond to mass atrocities such as the 1994 Rwandan genocide: the creation of the International Criminal Court (ICC) in 1998 and the adoption by the General Assembly in 2005 of a resolution that the UN may use force if necessary to exercise its “responsibility to protect” (R2P) people from “genocide, war crimes, ethnic cleansing and crimes against humanity”. An immediate problem here in my view is that neither the ICC nor R2P targets human rights as such: their focus is on mass crimes taking place in contexts where there has usually been a breakdown in public order. By contrast, the human rights paradigm traditionally presupposes a powerful state having broadly uncontested power over its subjects. Hopgood observes that atrocities still take place, notably in Syria, and he attributes this to factors such as the widespread rise in militant religious belief (in opposition to what he calls the “secular religiosity” of human rights discourse) and a decline in US power and influence, which have caused the aspiration of universalism to be overcome by local, cultural realities and a return to attitudes that prioritise state sovereignty. None of these concerns is without foundation, and their impact on the institution of the ICC and the promise of R2P warrants examination. As outgoing UN High Commissioner for Human Rights Navi Pillay said recently in her parting shot to the UN Security Council—the one UN body endowed with coercive powers—in the face of warning briefings from her office and other human rights mechanisms, “greater responsiveness by this Council would have saved hundreds of thousands of lives”. But ultimately Hopgood's thesis in The Endtimes of Human Rights does not succeed. After less than two decades of the ICC and less than 10 years of R2P, a conclusion of their failure seems palpably premature. And the world's inability to prevent all mass crimes hardly justifies concluding that the core human rights programme, of which he questionably considers the ICC and R2P the most relevant manifestation, has failed too. Indeed, if it had, local and international human rights NGOs would not expend serious resources and effort to provide information and ideas to the UN committees and special procedures. Of course, there are criticisms to be made about the general UN human rights machinery: there may well be more committees and special procedures than necessary; they are all starved of resources, even though their members or mandate-holders are unremunerated; they have no coercive power. Such limitations do not in my view justify a notion like “endtimes”. Rather, a less nihilistic approach would perhaps advocate more and better activity from the existing machinery and, like Navi Pillay, promote the traditional human rights work of mobilising shame, to spur those with power to do more to prevent humanitarian catastrophes, and to hold the perpetrators of atrocities to account. Nigel Rodley is Chair of the Human Rights Committee under the Civil and Political Rights Covenant and was Special Rapporteur on torture from 1993 to 2001. Nigel Rodley is Chair of the Human Rights Committee under the Civil and Political Rights Covenant and was Special Rapporteur on torture from 1993 to 2001. Nigel Rodley is Chair of the Human Rights Committee under the Civil and Political Rights Covenant and was Special Rapporteur on torture from 1993 to 2001.