Ramesh Thakur in THE HINDU DECEMBER 05,2009
In most cases, the gravest threats to the human rights of citizens emanate from states.
The Universal Declaration of Human Rights, signed on December 10, 1948, transformed an aspiration into legally binding standards and spawned a raft of institutions to scrutinise government conformity and condemn noncompliance. It remains the central organising principle of global human rights and a source of power and authority on behalf of victims.
A human right, owed to every person simply as a human being, is inherently universal. Human rights are held only by human beings, but equally by all; they do not flow from office, rank, or relationship. Universalising the human rights norm was one of the great achievements of the twentieth century. Numerous U.N. conventions, declarations and protocols produced this progressive result. They are our “firewalls against barbarism” (Michael Ignatieff).
Human rights establish boundaries between individuals, society and the state. The assertion of a human right is a claim on protection from threats from people, groups or public authorities. Human rights are endangered in conditions of anarchy when there is no functioning law enforcement and judicial machinery to defend them. In most cases, however, the gravest threats to the human rights of citizens emanate from states.
Over the past decade state-based threats to human rights have taken several forms. Many civil liberties have been curtailed in recent years through law or by administrative decisions and infringements on freedoms that would have been challenged in the pre-9/11 environment. Western governments have sometimes abandoned nationals overseas if their detention or abuse is carried out in the name of anti-terrorism. Their troops in Afghanistan may have colluded in handing over suspects to local interrogators skilled at breaking more than toothpicks. Their law enforcement officers have transferred the burden of risk of death and injury to innocent people, for example through lax protocols governing the use of tasers.
Border agents everywhere seem to be drifting into a make-my-day machismo as their default mode of dealing with the travelling public. Banning the gadfly British MP George Galloway from visiting Canada in March 2009 was especially egregious and counterproductive in giving him dollops of extra oxygen for free publicity. The banning of minarets by the good citizens of Switzerland is illiberal democracy at its worst, fanned by the flames of group hysteria against the backdrop of post-9/11 Islamophobia. The ceremony of innocence will be truly drowned if the western centre of civilisation cannot hold.
The problem was aggravated with the former chief champion of human rights becoming a leading delinquent. U.S. abuses in Guantánamo and Iraq significantly weakened the world’s ability to protect human rights. When a dominant country like the U.S. openly defies the law, others mimic its policy and its leverage over them is reduced: Washington cannot call on others to uphold principles it itself violates.
In a landmark case involving the CIA’s extraordinary rendition programme as part of the war on terror, on November 24, an Italian judge convicted 23 Americans of kidnapping an Egyptian cleric on a Milan street in 2003. They were tried in absentia and may never see jail time. But they are in effect fugitives in the 25 EU countries and subject to arrest and extradition to Italy. The case thus is another nail in the coffin of impunity and sends a warning shot across Washington’s bow that if the U.S. fails to hold its officials accountable for breaking foreign laws, other countries will.
Once, torture was acknowledged to be so abhorrent that no one publicly approved the practice. The post-9/11 climate of fear encouraged debate on whether torture is justified if it prevents mass terrorist attacks. A posture of moral relativism can be profoundly racist, proclaiming in effect that “the other” is not worthy of the dignity that belongs inalienably to one. Those of us who live in zones of safety, activating “the moral imagination to feel the pain of others” (Ignatieff) as our own, have a duty of care to those living in zones of danger.
A second set of threats is posed by the creation of human rights machinery that has become a monster mocking the meat it feeds on. Human rights seek to protect individuals from oppression by political, social and religious authorities. The responsibility for enacting laws and constructing the bureaucratic, police, and judicial machinery to monitor and enforce human rights lies with the state. Social and religious groups can capture the political agenda and subvert the process to “protect” group human rights by penalizing individuals who dissent and depart from community sanctioned views and behaviour.
Criminalising hate speech is a case in point, especially when offence is established not by the intent of the doer but the hurt sensibilities of a complainant. University campuses, which should be among the frontline defenders of free speech — a defence that has no meaning if it does not include the freedom to offend — have been among the first to succumb to political correctness or lobby group pressure. Yale University Press sunk to a new depth in low farce recently in publishing a book on the Danish cartoons controversy but pre-emptively censoring itself and not reprinting the cartoons.
In some jurisdictions, in hearings before quasi-judicial bodies like human rights commissions (with members appointed by governments), complainants suffer no financial or other penalty even if their case is found to be frivolous and wholly without merit. Defendants can have their lives ruined financially, professionally and socially. Eventual vindication is inadequate solace or compensation. Thus has machinery meant to defend human rights become politically motivated attack organs, using taxpayers’ money to chip away at their freedoms. They are paradigms of a bureaucratic solution: well-intentioned, labour intensive and expensive. The value of an end — promoting human rights — is used to set in motion a self-defeating means to achieve it.
The final source of state-based threats to human rights is from intergovernmental organizations. International norm shifts in human rights include outlawing genocide, delegitimising institutionalised racial discrimination (especially apartheid), moving from sovereign impunity to international criminal accountability, improving the status of women, and developing the concepts of dignity and the protection of minorities and vulnerable groups.
Here too there has been a distressing reversal, for example a Canadian citizen being put on a secret U.N. blacklist with no judicial oversight on the basis of unknown and therefore unchallengeable evidence — some of which can turn out to be flimsy. Abousfian Abdelrazik spent almost six years in detention in Sudan and may have been tortured before being returned to Canada in 2009. No national or U.N. official has been held to account.
Somewhere along the line, the U.N. human rights machinery got captured and subverted by its enemies. Its actual performance was scandalous and a travesty of the noble vision and ideals animating the global movement. The protection of internationally recognised human rights will remain fraught in the years to come. The U.N.’s main collective body on human rights affairs is made up of states. Claims by citizen against governments are unavoidably political. States are less eager to create enforceable police and judicial machinery than to endorse human rights in the abstract, and less open to effective U.N. enforcement of rights than to weak supervision of policies.
Even liberal democratic states often sacrifice human rights on the altar of national security and commercial profit. Western governments have not been notably anxious to use the U.N. machinery to criticise China or Saudi Arabia. Changing the nomenclature of the Commission on Human Rights to the Human Rights Council will not change the reality of double standards based on national interest calculations.
States can band together at the U.N. to proscribe injuries to religious sensibilities, for example by publishing cartoons that some spokesmen of some religion find offensive. In March 2009, the U.N. Human Rights Council passed a Pakistan-sponsored and Organisation of Islamic Conference supported resolution calling on all countries to pass laws banning criticism of religion. The resolution was dressed up in the language of human rights (freedom of religion).
This is why, even as advocates seek desirable advances in the global governance of human rights, they must constantly hold fast to the critical kernel of truth that human rights is about protecting individual beliefs and actions from group-sanctioned morality at local, national and global levels of governance.
(Ramesh Thakur is director of the Balsillie School of International Affairs, Distinguished Fellow at the Centre for International Governance Innovation, and Professor of Political Science at the University of Waterloo.)