The Story of Human Rights
|Publisher:||New York Press|
„Establish the Rights of Man; enthrone equality… let there be no privileges, no distinctions of birth, no monopolies; make safe the liberty of industry and trade, the equal distribution of family inheritances.“
IN THE BEGINNING: NATURAL RIGHTS
Any system of law – including the first written Hammurabi code, several thousand years before Christ – inferentially confers „rights“ on the citizens to whom it applies, at least in the negative and residual sense of entitling them to behave in any manner which it does not specifically prohibit. The ancient code of the Greek city states and of imperial Rome conferred such „rights“, but went on to bestow positive powers on certain classes of citizens, over and distinct from other classes. Religions, similarly, enforced within theocratic communities rules and taboos from which positive entitlements might be deduced. Christianity goes further and applies its rules to all living persons, irrespective of status or nationality: from the commandment „Thou shalt not steal“, for example, one might infer a moral right for everybody to enjoy private property. But the closest the lawyers of the ancient world came to the idea that some special rights were universal was in the Roman concept of jus gentium, those rules which they discovered to be common to all civilized societies, and which might therefore be catalogued specially as a kind of international law. Laws were thus categorized, not because of their intrinsic or self-evident merit or validity, but simply because they were in service in every civilized society.
This „lowest common denominator“ approach of jus gentium – these laws have a special quality because they are approved by rational men and regarded as binding by all civilizations – was picked up two thousand years later to justify the assertion of jurisdiction over crimes against humanity, wherever and by whomsoever committed. But in ancient times, when rules of battle were rudimentary, when the greatest of crimes were punished by the gods and the extradition was unknown, the notion that jus gentium might reflect and even protect inalienable human rights was never coherently propounded. What did emerge, however, through the church-dominated Middle Ages, was the quasi theological notion that there were „laws of nature“: rules ordained by God, to be observed by all His human creations on peril of divine punishment. This theory was highly attractive to the crowned heads of Europe – to princes and to popes with princely ambitions – for the first law of nature invariably imposed unquestioning obedience to the prince, as God“s regent on his own little patch of the Earth. The „Divine Right of Kings“ was part of the natural order of things, and from it flowed a number of legal consequences (such as the immunity from prosecution of heads of state) which international human rights law is still in the process of extirpating.
Essential to this feudal conception was sovereignty (the power of the divinely approved ruler over all his or her subjects), the exercise of which – however barbaric – could not be questioned either by those subjects or by other sovereigns. There could, of course, be treaties between two or more states, giving rise to international law, but they could only be invoked by the sovereigns who had signed them (or their heirs and successors). The only „rights“ an individual could posses, in such a world, other than vis-a-vis his own sovereign, was if he happened to be visiting a foreign country. Then, as a temporary „alien“, he was entitled to call on the protection of his own sovereign against infringements on his liberty threatened by the state in which he was sojourning. This had the consequence, for several centuries, of giving aliens abroad more „rights“ than the citizens of their host country.
The appearance of „rights“ as a set of popular propositions limiting the sovereign is usually traced to Magna Carta in 1215, although that document had nothing to do with the liberty of the individual citizens: it was signed by a feudal king who was feuding with thuggish barons, and was forced to accede to their demands. It had two symbols of a constitutional settlement, however: firstly, it limited the power of the State (in a very elementary way, since the King was the State), and secondly it contained some felicitous phrases which gradually entered the common law and worked their rhetorical magic down the centuries. For example, in Article 40 of Magna Carta, the King promised, „To no man will we sell, to no man will we deny or delay justice or right.“ This was the forerunner – what might be called the King John version – of article 6 (1) of the European Convention on Human Rights, „Everyone is entitled to a fair and public hearing within a reasonable time.“
The first appearance of „rights“ in the modern sense, declared as such and enforceable in the courts, was in the 1688 Bill of Rights which emerged in England from the so-called „Glorious Revolution“. „Glorious it certainly was not at the time, for it was popularly fuelled by a vicious anti-Catholicism and resulted in the infliction of many other disabilities upon followers of that religion. It did, however, mark in England the end of the King’s claims to absolute rule by Divine Right and imposed upon him a measure of accountability to Parliament. The „rights“ which it declared were for the most part those of parliamentarians, to veto royal decisions to raise new taxes and to enjoy freedom of debate without prosecution before the King’s judges. But by declaring themselves „a full and free representative of this nation“ assembled „for the vindicating and asserting of their ancient rights and liberties“, the Lords and Commons purported to state rights which had been acquired by prescription – i.e. by custom and tradition – and which were capable of being upheld in the courts. Chief of these were: the rights of subjects to live under the law as approved by Parliament without arbitrary royal interference; the right to due process in the selection of jurors; the right to not lose liberty through excessively high fixing of bail; and the right not to be inflicted with „cruel and unusual punishment“. In 1679 the first Habeus Corpus Act had provided the most valuable and enduring right of all: to have the lawfulness of detention tested promptly by the courts.
These „rights“ still have resonance today, although they are understood in ways which would have bewildered seventeeth-century parliamentarians. For example, the prohibition on „cruel and unusual punishment“ was inserted because of public outrage at the treatment of Titus Oates, the popular clergyman and perjuryman whose lies sent dozens of Catholics to the scaffold. Oats was sentenced to be defrocked, whipped and set in the pillory – indignities thought cruel and unusual for a Church of England minister by his fanatical fellow Protestants. The idea that the death penalty per se, or the genital mutilation, bowel-burning, and drawing and quartering which then attended it, might be „cruel“ never entered seventeenth-century heads. Hence the first rule of interpreting a bill of rights; the concepts have evolved to a meaning which reflects modern humanitarian usage rather than the contemporary understanding when they were first formulated.
What makes the English Bill of Rights the first „modern“ step towards the human rights revolution was its philosophical foundation in the work of Thomas Hobbes and its subsequent explanation by John Locke. Hobbes, whose major work Leviathon, published in 1651, is often quoted in support of state tyranny, in fact broke the nexus between God and the State, because he identified the true source of political power in the consent of the people. He rolled back civil society to its most primitive and brutal and warlike manifestation, and deduced that its terrified denizens would authorize a ruler to lay down laws for their own protection, against the environment and each other. For Hobbes, an implacable component of individual freedom, this was a once-and-for-all surrender of individual power. For John Locke, however, the people’s consent to government was continuous and capable of being withdrawn if that government broke the purpose of the compact, which was to further their majority interests. Writing in 1690, two years after the „Glorious Revolution“ and with the object of celebrating and justifying it, he was the first political philosopher to venture the principle that government was by popular consent, and was contingent upon a commitment to protect liberty:
Men, by nature all free, equal and independent, no-one can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby anyone divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe and peaceable living one among another, in a secure enjoyment of their properties…
The compact, by which men gave up certain freedoms to join a body politic, meant that they were left with those freedoms which the State did not need to take away in order to maintain and protect the public good. Since the whole object and purpose of the compact was the public good, the State „can never have a right to destroy, enslave or designedly impoverish the subjects.“ It followed that there could be circumstances when subjects were entitled to revolt, breaking the compact and renegotiating it:
The end of government is the good of mankind. And which is best for mankind: that the people should always be exposed to the boundless will of tyranny, or that the rulers should be sometimes liable to be opposed when they grow exorbitant in the use of their power and employ it for the destruction and not the preservation of the properties of their people?
With this rhetorical flourish, although he could scarcely admit it, Locke was providing a justification not merely for the revolution of 1688 but for Cromwell’s short-lived republic which in 1649 had executed Charles I on these very grounds, i.e. for warring with and murdering his own subjects. The King’s trial was an unsatisfactory precedent – his refusal to participate denied the Parliament faction the opportunity to argue the jurisprudential case for tyrannicide – but Locke drew upon the written submissions of the King’s prosecutor, John Cook, for his demonstration that rulers were not above the law that protected the liberty of their subjects.  The argument was a threat to other absolute monarchs, Like Louis („L’Etat, c’est moi“) XIV. They might be deposed, if their governance was so arbitrary and tyrannical that it cut down rather than protected the residual rights of their people. As the eighteenth century progressed, Locke’s philosophy was embraced and developed by leading European intellectuals, who found in England a constitution which seemed to guarantee political liberty through the supremacy (although it was far from that) of Parliament. By the middle of the century they had begun to identify „universal“ rights: to person and property, and hence not to be held in slavery (Rousseau: „Man is born free; and everywhere he is in chains“); the liberty of the press (Voltaire: „I know many books that fatigue, but non which have done real evil“); and the right not to be subjected to torture (as Cesare Beccaria argued, the liberty which men had been forced by necessity to yield to the State was the very minimum required for the State to defend what remained: „Punishments that exceed what is necessary for the protection of the deposit of public security are by their very nature unjust“). It was Beccaria, in his Of Crimes and Punishments of 1764, who first enunciated the credo of the modern human rights lawyer:
„…if, by defending the rights of man and of unconquerable truth, I should help to save from the spasm and agonies of death some wretched victim of tyranny or of no less fatal ignorance, the thanks and tears of one innocent mortal in his transports of joy would console me for the contempt of all mankind.“
REVOLUTIONS AND DECLARATIONS
This was heady stuff to find in philosophy, but it required politicians and propagandists and indeed revolutionaries to give it any legal force. Man was born free, but at the time of Rousseau’s observation was everywhere in chains. The first to break them were the American Founding Fathers, in 1776, making, in the potent prose of Thomas Jefferson, their claim to re-acquire their inalienable human rights from the government of George III:
We hold these truths to be self-evident, that all mean are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
This was, of course, an act of defiance and not an act of law: it was the preamble to a litany of complaints against the „tyranny“ of George III, reminiscent of those made in the 1688 Bill of Rights against the Stuart kings. There were complaints about the unfairness of trials and lickspittle judges, although taxation without consent was the motivating grudge and the clarion cry that „all men are created equal“ hardly squared with the slaves owned (in Jefferson’s case, impregnated) by many of the signatories. But it is Jefferson’s preamble which resonates through subsequent centuries, identifying the denial of human rights as the justification for the revolution foreshadowed by John Locke. The fundamental rights to life, equality, liberty and the pursuit of happiness are not drawn from any empirical source or discovered through rational argument; they may be given by God but the proof of their existence is that we all feel and think them – they attach „inalienably“ to the person, like a shadow. They are not the end product of philosophical inquiry but the starting point for it, imposing a duty on government to order itself in a way which will maximize opportunities for individual fulfillment.
It was the oppressive human rights records of the government, its „history of repeated injuries and usurpations“, which absolved the colonials from their duty of allegiance to the British Crown. With this reasoning, the Declaration of Independence identified that moment „when in the course of human events“ the boundless will of tyranny entitled the people to depose their ruler: this was straightforward Locke, dressed in gripping prose. It is this Declaration which has been more profound in its consequences than any other in history. It is the barest of statements, eliciting a pity for the oppressed which turns into righteous anger and becomes a clarion call to recover their dignity. Its „inalienable rights“ were identified by the US constitution of 1789 (guarantees of habeus corpus and fair trial) and the amendments which followed two years later. The First Amendment provided that Congress (i.e. the State) „shall make no law“ prohibiting the free exercise of religion, or abridging the freedom of speech, or freedom of the press, or the right of peaceful assembly. The Fourth Amendment secured the people in their homes and persons „against unreasonable searches and seizures“ and the Fifth and Sixth enshrined „due process“, i.e. rights against self-incrimination and double jeopardy and expropriation of property, and the rights to speedy and public, and impartial trial, with advance disclosure of prosecution evidence, the right to cross-examine hostile witnesses and to call defence witnesses, and the right to counsel. Although protection from slavery and forced servitude was not added to the US constitution until 1865 (following a civil war fought over the right of the Southern slave-owning states to secede from the Union), America had in place by the end of the eighteenth century a functioning domestic court system in which basic human rights could be enforced as such, by individual citizens. This had come about more as an act of faith than of philosophy: as the great legal architect of the American constitution, Alexander Hamilton, wrote in 1787: „The sacred rights of mankind are not to be rummaged for amongst old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the hand of divinity itself, and can never be erased or obscured.“
At an intellectual level, however, this achievement owed much, and itself gave impetus, to the dissatisfactions in France which were to culminate in that „hour of universal ferment“. Enthusiasm for the American colonists in their war against France’s historic foe gave an inspirational quality to their victory and made Lafayette, who had helped achieve it, a national hero: his popularity on his return to Paris was rivaled only by that of the American ambassador, the charismatic lightning-conductor Ben Franklin, who was succeeded in that post by Thomas Jefferson. In January 1789, Jefferson wrote to James Madison from Paris, „Everybody here is trying their hands at forming declarations of rights.“ In August, during the parliament called to solve a cash-flow crisis itself partly caused by French support for the American war, it was Jefferson who helped Lafayette with the draft of „The Declaration of the Rights of Man and the Citizen“ – a detailed description of „natural inalienable, and sacred rights“ which any citizen could advance against an oppressive government. These were birthrights, which the State was constituted to protect up to the point at which their exercise might harm others, a point which had to be defined by law rather than through arbitrary exercises of government power. The Declaration was followed in 1791 by the French constitution, providing for poor relief and free public education – the first sign of what today are called „economic and social rights“.
Up to his neck in every revolutionary movement of this incandescent era was Thomas Paine, the first writer to fuse outraged polemic and constitutional philosophy to produce a distinctive literature of human rights. This former English customs official ignited the American Revolution with his incendiary pamphlet „Common Sense“, explaining (in January 1776, when the talk was of appeasement with the Crown) why it was ineluctable that the colonists fight for their liberty. Paine helped Jefferson to draft the Declaration of Independence, fought along-side Washington and then returned to London to write (at the Angel Tavern, Islington) one of the most influential books of all time: The Rights of Man. This is a classic liberal text – Paine’s idea was minimal government, limited to protecting individual liberty, equality and enterprise – but his fervour for free market individualism was leavened by his novel and detailed plans for social security, family benefits, and public education, not out of charity, but as a right derived from membership of society. He scorned as a contradiction in terms the notion of an „unwritten constitution“, and refuted Edmund Burke’s argument for monarchies as a legitimate inheritance from our forefathers: „The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies.“ The book came peppered with attacks on Britain’s hereditary establishment sufficiently savage to have Paine prosecuted for sedition. He fled to France before being convicted in absentia by a rigged jury, whereupon crowds thronging the streets outside the Old Bailey set up a chant, „Paine and the Liberty of the Press“. In France he was elected to the National Assembly and to the committee which drafted the constitution, and spent months in prison for failing to match the bloodthirstiness of his comrades. He wrote The Age of Reason – a book for which many courageous printers and booksellers would be jailed for blasphemy in nineteenth-century Britain. Tom Paine is on postage stamps in America and there is a gold statue of Paine in Paris (Napoleon said there should be a gold statue of Paine in every city in the universe) but the prophet has been without honour in his own country. It took two centuries before the abolition of hereditary peers finally gave acknowledgement of Paine’s point that, „The idea of hereditary legislators [is] as absurd as an hereditary mathematician… as absurd as an hereditary poet laureate.“
The American declarations were shaped by the colonial experience of indignity at the hands of British soldiers and sedition laws. Dissident Frenchmen had suffered imprisonment and confiscation of property, without trial (or any other legal process), through the system of letters de cachet – warrants for arrest, search and seizure signed at the whim of the Bourbon kings. Hence the French Declaration emphasizes the presumption of innocence and the need for legal process before arrest and detention. It elevates the possession of private property to a „sacred and inviolable right“ to be expropriated only upon proof of public necessity, and then with just compensation. Freedom of speech, „one of the most precious of the rights of man“, was given special protection („No one is to be disquieted because of his opinions“) – testimony to the influence of Voltaire and reaction to the regular use of letters de cachet against critics of the King and his government. This removal of censorship had a most immediate and striking effect, releasing what Simon Schama describes as a „polemical incontinence that washed over the whole country“, propelling it to a republic within two years, and thereafter inciting each increasingly bloody phase of the Terror. Unfortunately, the class-crazed and bloodthirsty Jacobins did not see human rights as universal – as one leader wrote, „the rights of man are made, not for the counter-revolutionaries, but only for sans-culottes“.
As the terror became the order of the day and brought wave after wave of revolutionaries tumbrilling to the guillotine after the aristocrats, so „The Rights of Man and the Citizen“, which had started it all, appeared a sick joke. The good old days of the King’s letters de cachet were contrasted with the killings ordered by the Committee for Public Safety, notwithstanding the device to reduce the length of pain invented by one assemblyman, the kindly Dr Guillotine. Victims were first put on show trial by the public prosecutor, Antoine Fouquier-Tinville. There was no „due process“ in his Revolutionary Tribunal; suspects were denied advance notice of the case against them, the right to defense counsel and the right to call witnesses; the biased jury normally convicted whenever Fouquier-Tinville asked whether they had heard enough evidence. Although blame for the barbarities of the Revolution is always fixed on its political leaders, Fouquier-Tinville emerges as the first of history’s monster lawyers, rivaling Andre Vyshinsky, the choreographer of Stalin’s show trials. At least Fouquier-Tinville met his own fate shortly after the fall of Robespierre, appealing in vain to his judges as a „mild-mannered family man who had always obeyed the law and done his duty“. What he had done, like so many state servants who only followed orders, was to deny to citizens the most fundamental of liberties guaranteed them by a law which, lacking at that time independent judicial enforcement, was just not worth the parchment on which it was written.
That was a problem for France, precisely because it left the „rights“ in the Declaration to be enforced by politicians in the National Assembly and their representatives on the Committee for Public Safety. In America, by contrast, the constitution and its Bill of Rights were enforceable by an independent judiciary, empowered to strike down government orders and even congressional legislation which violated the rights they guaranteed. This development in legal theory, achieved in 1803, by Chief Justice Marshall in the great case Marbury v. Madison, provided human rights in the US with a set of teeth, by endorsing courts rather than legislatures as their enforcement machinery:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury… (the) government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
These French and American documents became models for many constitutions drafted over the next two centuries containing human rights guarantees: the struggle has always been for independents courts to enforce them, at national and now at international levels.
THE NINETEENTH CENTURY: BENTHAM, MARX AND THE HUMANITARIAN IMPULSE
The Terror that enveloped France a few years after the Declaration provided a practical refutation of its claim that „rights“ were natural, let alone inalienable and sacred. „When I hear of natural rights,“ snapped Jeremy Bentham, „I always see in the background a cluster of daggers and pikes introduced into the National Assembly… for the avowed purpose of exterminating the King’s friends.“ It was Bentham who led the attack on „natural rights“ as vague and abstract nonsense – „nonsense upon stilts“ – which, by encouraging the obliteration of socially useful distinctions, tends to produce political anarchy exemplified by the Terror. Bentham’s attack on the declaration was logical – all the rights, he pointed out, including the right to liberty, were to be limited by law, thereby begging the question of what content the law should have to be compatible with liberty. He was also pragmatic. No one was in fact „born free“ – all were born helpless, and subject for years to parental authority. Men were not equal in rights: there was the master and the apprentice, the genius and the lunatic. Moreover, „natural rights“ were of uncertain provenance: if from God, their content (apart from biblical injunctions) was unknowable; if from „nature“ they were unprovable and unpredictable. The force of Bentham’s arguments was partly responsible for „natural rights“ falling out of fashion in the nineteenth century and the first half of the twentieth century. When they returned, it would be as „human rights“ rather than „natural rights“, sourced in the nature of humans rather than in the laws of God or the seasons.
The next formidable critic of „the rights of man“ was Karl Marx. In 1844 he wrote an essay, „On the Jewish Question“, which questioned whether the French Declaration could provide a way forward for Jews like himself, who were suffering from discrimination in Germany. His dismissive conclusion was that „the so-called rights of man… are nothing but the rights of egotistic man, of man separated from other men and from the community“. The Declaration focused, not on man as citizen, but on man as bourgeois – an individual withdrawn from the community, motivated only by whim and self-interest. For example, the right to property was „the right to enjoy possessions and dispose of the same arbitrarily, without regard to other men, independently from society: the right of selfishness“. The „political emancipation“ produced by the Revolution was the reduction of man to an egocentric and independent individual: true emancipation would rather enlarge him as a citizen, „a moral person“ – a theme Marx was to take up a few years later in The Comunist Manifesto.
The force of this early critique led Marxist thinkers in the next century to characterize human rights as a device to universalize capitalist values, notable freedom of enterprise without social responsibility. Hence socialist governments were silent or suspicious of the concept, until it proved useful to rally support for the leftist causes in the later stages of the Cold War. But Marx was actually supportive of the Declaration’s identification of citizen’s rights: citing Rousseau with approval, he perceived these communal rights as new resources which could assist social transformation to a „moral existence“. This level of abstraction always infuriated Bentham, although some content would subsequently be found in the idea of „second generation“ or „social and economic“ rights of citizens to education, housing and work, and later still in the notion of a third generation of rights, belonging to citizens of the world, to peace and development and a clean environment. But Lenin derided the English and French revolutions as uprisings of the bourgeoisie, with freedom of speech a fraud enabling the rich to control propaganda in their interests. „The capitalists have always used the term „freedom“ to mean freedom for the rich to get richer and the poor to starve to death.“ Shortly after the Bolshevik accession to power, Lenin was presented by his favourite lieutenant with a set of draft guarantees of liberty, the „Anti-Thermidorian Catechism“, as insurance against the revolution degenerating into terror. He waved it away: „Comrade, I see no need to circulate this… It is a childish idea… that we could stop or forestall so fatal a development with the help of this sheet of paper.“ The comrade in question was Nikolai Bukharin, who in 1936 was ordered by Stalin to put his catechism into the new Soviet constitution, which did not save him two years later from being wrongly arrested, dishonestly tried and peremptorily shot.
The nineteenth century did see three humanitarian impulses which were in due course to assist the development of international law. Most notable was the legislative attack on the slave trade in England in 1807 and in America after the civil war. It was finally acknowledged by European nations, in the Berlin Treaty on Africa in 1885, that „trading in slaves is forbidden in conformity with international law“. This breakthrough only applied to inter-state trading, however, and did not require states to outlaw the practice locally: the slavery convention, which did, came into force much later, in 1926, and not until 1970 did the last state – Oman – announce formal abolition of the status. None the less, this was progress – attempts made by Jefferson and Robespierre respectively to abolish slavery by the American and French declarations had signally failed. Although an international law rule did not begin to crystallize until 1885, for most of the century the British navy took upon itself a novel enforcement role, liberating victims of slavers around the African coast. Its actions in intercepting slave ships, freeing victims and even educating them in schools on the Seychelles and other islands must rate as the first example of a humanitarian enforcement mission.
Secondly, there came the notion of „a right of humanitarian intervention“ in the internal affairs of a state if its rule over some of its citizens was perceived as barbaric. Pressure was put on the Ottoman sultans in the 1880s to promulgate measures to protect Christian minorities from discrimination; when these failed, Gladstone obtained parliamentary approval to allocate ships, men and money to protect Christians from slaughter by Turks in Bulgaria. In 1898, the US declared war on Spain because its oppressive rule in Cuba „shocked the moral sense of the people of the United States“. It was government behaviour „shocking to the conscience of mankind“ which might justify intervention, but only as a matter of conscience and not of legal obligation. International lawyers adamantly refused to admit that „the so-called rights of mankind“ existed. As late as 1912, a leading textbook opined that „should a State venture to treat is own subjects or part thereof with such cruelty as would stagger humanity“ public opinion might demand intervention, but this could only happen out of Christian charity and could not be defended on the grounds of international law.
None the less, in Theodore Roosevelt’s 1904 State of the Union message, the right, and indeed the duty, to intervene in the affairs of sovereign states which were committing what he almost called „crimes against humanity“ was persuasively articulated:
„… there are occasional crimes committed on so vast a scale and of such peculiar horror as to make us doubt whether it is not our manifest duty to endeavour at least to show our disapproval of the deed and our sympathy with those who have suffered by it… in extreme cases action may be justifiable and proper. What form the action shall take must depend upon the circumstances of the case; that is, upon the degree of the atrocity and upon our power to remedy it. The cases in which we could interfere by force of arms as we interfered to put a stop to intolerable conditions in Cuba are necessarily very few. Yet… it is inevitable that such a nation should desire eagerly to give expression to its horror on an occasion like that of the massacre of the Jews in Kishenef, or when it witnesses such systematic and long-extended cruelty and oppression of which the Americans have been victims, and of which have won for them the indignant pity of the civilized world… „
Of course, it helped that the interests of humanity coincided with the interests of the United States – Roosevelt was retrospectively justifying US intervention against oppressive Spanish dominion over Panama and Cuba – but his inclusion of Jews in eastern Europe and Armenians in Asia Minor as within the potential protection of the world’s „indignant pity“ is worthy of note. But his promise did not save the Jews from the pogroms of 1905 or the Armenians from the genocidal attacks of Turkey in 1916.
The third nineteenth-century advance was not taken for the sake of indignant pity, but rather to reduce the cost of killing soldiers in wars. The expense of new weaponry was the reason why the major powers attended a conference in St Petersburg in 1868 and later ones in The Hague in 1899 and 1907, agreeing limits on the development of poison gases and explosives and „dum-dum“ bullets. That these rules of war came to be dressed up in the language of humanity was due to the influence of the International Committee of the Red Cross, founded in 1863 by Henri Dunant, a wealthy Swiss who had been appalled at the bloody array of bodies left on mid-European battlefields after the armies moved on. His object, and indeed the object of the 1907 Hague Convention (which forty-four nations signed), was not in any way to restrict the right of sovereign states to go to war, but simply to make these wars more humane for injured soldiers and prisoners. The futility of this exercise was demonstrated in the trenches of the First World War, where a million dead bodies would mock the notion that modern war could be made humane by laws which tinkered with methods of killing.
BETWEEN WARS: THE LEAGUE OF NATIONS AND STALIN’S SHOW TRIALS
After four years of a pointless war of unprecedented ferocity and carnage, in which 8.5 million lives were lost, it might have been thought that any new world order would aspire to some protection of human rights. But the concept was never mentioned at the Versailles Peace Conference in 1919, nor in the Covenant of the League of Nations. The closest that document came was in Article 23, whereby members promised „just treatment“ to natives in Trust territories and that they would „endeavour to secure and maintain fair and humane conditions of labour“. This gesture, inspired more by fear that badly treated labourers would turn to Bolshevism than by an acceptance of worker’s rights, at least led to the establishment of the International Labour Organization (ILO), the first rights-related global agency. There was some talk at Versailles of prosecuting war crimes, but this was vigorously opposed by the US on the basis that „the laws of humanity“ were uncertain and violations were punishable only by God. One article of the Versailles treaty proposed an international tribunal to try the Kaiser for a crime against „international morality“ but this was inserted to placate public opinion in Britain and France and was never intended to take effect (see page 210).* The only lasting significance of the peace process after the First World War was the inclusion by the Allies, in peace treaties signed with some enemy states, of „minority clauses“ by which they were required to guarantee civil and political rights and religious and cultural toleration to groups (minorities) who by race or language differed from the rest of the population. These treaties were supervised by the Council of the League of Nations (which could be petitioned by individuals or associations) and were monitored through the compulsory jurisdiction of the Permanent Court of International Justice, activated by any state member. The League took this idea one step further, and in the case of several states with bad records for maltreating minorities (e.g. Albania, Latvia, Iraq) made their admission to the League conditional upon a similar obligation to safeguard the rights of minorities within their borders.
These minorities clauses bound only a few countries, and after 1922 the League lacked the resolve to extend them any further. Yet they are of some historic importance, as the first human rights limitation on sovereign states enforced by a global institution and international court. The Permanent Court of International Justice showed an early awareness of the need to protect minority cultures in its advisory opinion on Minority Schools in Albania (1935), which condemned Albania’s decision to close down private schools serving its Greek minority, and other judgements which were supportive of German settlers in Poland and of Polish nationals in Danzig (see page 142).** In 1933, shortly after Hitler’s accession to power, the League received an individual petition from Franz Bernheim (its first from a victim of Nazism), whose sacking on the grounds that he was Jewish contravened a minorities treaty for Upper Silesia. Bernheim and several other Jews were awarded compensation for discrimination by a League commission – prompting Germany to withdraw from the league. In 1939, the League’s Minorities Section was disbanded, although at least the experiment had served to disprove the American claim at Versailles that „laws of humanity“ were too vague and subjective to be justiciable.
From 1936 to 1938 there was presented in Moscow a series of „show trials“ which were to prove, in time, second only to the Holocaust in their impact on post-war human rights thinking. These were the public tip of Stalin’s iceberg of terror, the means by which he sought to justify the purge of his leading opponents, and then, less publicly, of their followers. The victims of these purges are now estimated, incredibly but reliably, to outnumber the six million Jews lost in the Holocaust. This is without precedent in human history at a time of peace: in Nazi Germany, only a few thousand lives were lost in concentration camps before the war, and in the French Revolution the Terror at its pre-Thermidorian height claimed no more than 17,000. But between 1936 and 1938, in Moscow alone, 30,000 defendants were tried in the Supreme Court and sentenced to death by firing squad. And these were trials reserved for important people: in the provinces, millions were killed after summary proceedings or through beatings and starvation in the gulag.
Andrei Vyshinsky, like Fouquier-Tinville, was a hard-working lawyer devoid of any moral scruple. It was his evil genius to produce the main show trials as forensic spectacles which persuaded many in the West that they were genuine applications of criminal law. The prosecution case – that most of the old Bolsheviks were spies for foreign powers – was incredible enough, as was the theory that the moderate groups led by Bukharin had secretly joined forces with their main enemies, the Trotskyites, to sabotage the country and the communist revolution. What made these preposterous conspiracy theories seem credible in the West was simply that the conspirators confessed, in public proceedings overseen by a judge. It was not until 1956 that Kruschev admitted what should have been obvious to observers at that time: the defendants had all been subjected to months of torture by the NKVD until they agreed to sign and speak the script prepared for them by Vyshinsky.They were put on „the conveyor“ – a disorientation procedure which alternated psychological pressures of sleeplessness and starvation with interrogation to enhance suggestibility and acquiescence. This was interspersed with beatings and physical torture, such as burning the body with a molten knife. As each victim agreed to „confess“ he was confronted with others who had broken, and together they were encouraged to elaborate further hypothetical scenarios in the basic prosecution fantasy. The few who held out were shot in the secret cellars of the Lubyanka prison, while VIP defendants were required to repeat their false confessions in public, as the price exacted for saving the lives of their wives and children. (One of Stalin’s first decrees in this terror period was to give the secret police special powers over the families of convicted traitors.)
The trials were held in an auditorium in front of several hundred specially invited observers from around the world – fellow travellers like the influential English QC D.N.Pritt, who could be relied upon to write dishonest propaganda pamphlets with titles like „The Moscow Trial was Fair“. The defendants were allowed counsel, but only to speak after the convictions, in mitigation of their confessed crimes. Vyshinsky occupied centre stage, eliciting from the dozen or so defendants their self-lacerations around which he wove his fantastical plots. The transcripts typically read like this extract, in which the old Bolsheviks Zinoviev and Kamenev play the Rosencrantz and Guildenstern of the Russian Revolution:
KAMENEV: I, together with Zinoviev and Trotsky, organized and guided this terrorist conspiracy. I had become convinced that Stalin’s policy was successful and victorious… yet we were motivated by boundless hate and by lust for power.
VYSHINSKY: You expressed your loyalty to the Party in various articles and statements. Was all this deception on your part?
KAMENEV: No, it was worse than deception.
KAMENEV: Worse than that!
VYSHINSKY: Worse than deception? Worse than perfidy? Then find a word for it. Treason?
KAMENEV: You have found the word.
VYSHINSKY: Zinoviev, do you confirm this?
ZINOVIEV: Yes, I do. Treason, perfidy, double-dealing.
Nikolai Bukharin (who designed that „Anti-Thermidorian Catechism“ precisely to prevent this turn of events) was the only one of the defendants to offer any resistance, or to show and self-control after his year on „the conveyor“. Although he pleaded guilty to treason (to save his wife and baby son) he managed to blurt out that his confession had been obtained by „medieval methods“. He tried to explain that his treason consisted in feeling his own powerlessness before the totalitarian state he had helped to construct, and the impossibility of beating it at the game it chose to play with his own life. When Bukharin tried to question one of the lying prosecution witnesses, the presiding judge ruled cross-examination irrelevant. This judge was V. Ulrich, head of the military section of the Supreme Court, who reported throughout the trials to Stalin and followed his orders in respect to passing the death sentences which were imposed on most defendants. He is the archetypal scoundrel judge, but was acting in accordance with the textbook Judicial Organization in the USSR, written by the prosecutor Vyshinsky:
The laws of the Soviet power are a political directive and the work of the judge amounts not just to the application of the law in conformity with the needs of the bourgeois judicial logic, but to the application of the law as a political expression of the Party and the Government… the judge must be a political worker, rapidly and precisely applying the directives of the Party and the Government.
Stalin’s show trials came to haunt later generations because they proved how a system of law, with procedural forms and rituals calculated to impress, could be vulnerable to political manipulation by an all-powerful state. Vyshinsky perverted the trial process so that Stalin could rewrite history by eliminating those who made it. These „purge“ trials with their inevitable conclusion for „enemies of the people“ – a bullet in the head, followed by burial in an unmarked grave – cast a long historical shadow. The rights of defendants which later appeared in the UN Conventions and which are now written in the Statute of the International Criminal Court (the right, for example, even in the face of compelling evidence, to refuse to testify without fear of any adverse inference being drawn) may be traced to the reaction to Vyshinsky’s colossal frame-ups. No account of human rights in the twentieth century can ignore the Moscow trials: they became the model for political trials to the present day (and not only in communist countries). The truth about them that only novelists could tell at first, like George Orwell in Animal Farm and Arthur Koestler in Darkness at Noon, followed by Kruschev’s belated acknowledgement that they were monstrous perversions of justice, did much to persuade the European left that pace Marx and Lenin, human rights was not such a bad idea after all. (The fact that Vyshinsky’s ashes still occupy a place of honour in the Kremlin wall may be evidence that, in Russia, the lesson has not fully been learned.)
H.G. WELLS: WHAT ARE WE FIGHTING FOR?
One of the great mysteries of the twentieth century is why, for its first few years, there was virtual silence on the subject of universal human rights from European intellectuals, politicians and public figures. Even as Jews in Germany were forced out of jobs and professions and then into labour camps, even as kulaks, then old Bolsheviks and later millions of innocent citizens were exterminated in the Soviet gulag, still the notion of protecting human rights was not raised either at the League of Nations or in academic journals or the popular press. This may at a theoretical level owe much to the demolition of „natural rights“ by Bentham and Marx, but more pragmatically those nations which might have embraced the idea, such as Britain and France, were concerned lest it might make the natives restless in their far-flung colonial domains. For that reason, they squashed a proposal made at the League in 1934 by Haiti for a treaty to guarantee the human rights of ethnic minorities. Astonishingly, this was the League’s only reference to the subject before its demise at the onset of the Second World War, and the idea does not appear to have been seriously advanced by any major thinker or statesman of the period.
The revival of the human rights idea in the twentieth century really began at the instigation and inspiration of the British author H.G. Wells, in the months immediately following the declaration of the Second World War. It can be traced to letters he wrote to The Times in October 1939, advocating the adoption by „parliamentary peoples“ of a Declaration of Rights – a fundamental law defining the rights in a democracy and drafted to appeal „to every responsive spirit under the yoke of the obscurantist and totalitarian tyrannies with which all are in conflict“. The League of Nations had been too conservative, half-hearted and diplomatic throughout „the torturous Twenties and the frightened Thirties“: now, the only sane alternative was to declare remarkable tribute to Wells and a few of his friends (English socialists ranging from former labour lord Chancellor Sankey to Barbara Wooton, J.B. Priestley and A.A. Milne, creator of Winnie the Pooh) that they were able to distil into nine short and readable principles a declaration that came to attract support throughout the world. In their modest English way, they eschewed the messianic preambles of the French and American declarations in favour of the simple observation that „since a man comes into this world through no fault of his own“ he is in justice entitled
Without distinction of race or colour to nourishment, housing, covering, medical care and attention sufficient to realize his full possibilities of physical and mental development and to keep him in a state of health from his birth to his death.
Sufficient education to make him a useful and interested citizen, easy access to information upon all matters of common knowledge throughout his life, in the course of which he would enjoy the utmost freedom of discussion.
That he and his personal property lawfully acquired are entitled to police and legal protection from private violence, deprivation, compulsion and intimidation…
An so went on, and only occasionally dated style promising inter alia: „There shall be no secret dossiers in any administrative department“; „a man’s private house or apartment or reasonably limited garden enclosure is his castle“; „no man shall be subjected to torture, beating or any other bodily punishment or to imprisonment with such an excess of silence, noise, light or darkness as to cause mental suffering or infected verminious or otherwise insanitary quarters“.
Here, for the first time since the eighteenth-century, revolutions, was an attempt – by well-meaning middle-class socialists – to restate human rights in a homely way, as a talisman against the coming cataclysm. In the first months of the „phony war“ it attracted extraordinary support in England: the Manchester Guardian and the Daily Herald took up the issue and tens of thousands flocked to hear H.G. Wells speak under the banner „The New World Order – The Fundamental Principles“. What gave this campaign further momentum was the swift publication of a Penguin Special, H.G. Wells On the Rights of Man, which sold many thousands of copies in the U.K. and was translated into thirty languages and syndicated in newspapers throughout the world. For the first few months of 1940, this was the idea whose time had come – in an act of utter optimism the War Ministry even had copies of Wells‘ booklet translated into German and dropped on SS divisions, although they continued to overrun France. It had more impact on President Franklin D. Roosevelt, a friend of Wells who was much taken by his new book: it influenced his famous appeal in 1941 for a world „formed upon four essential freedoms“ – freedom of speech and worship, and freedom from want and fear. And on one January 1942, a few weeks after American entry into the war, H.G. Wells secured his objective: the Allied powers declared that „complete victory over their enemies is essential… to preserve human rights and justice in their own lands as well as in other lands“ (my italics). Human rights was henceforth a war aim, emphasized in the rhetoric of politicians while lawyers in the backrooms of the State Department and the common rooms of Oxbridge tried their hands at drafting something that was now definitely on the post-war agenda: an international bill of rights.
They did so, inevitable, in language that lacked the passion and simplicity of H.G, Wells. His achievement was to make human rights relevant to a world from many parts of which they had vanished with the secret policeman’s knock on the door and to include in his list the social and economic rights which Western governments had refused to acknowledge during the Great Depression. His Penguin Special, which must be accounted of the twentieth centuries‘ most influential books was a far-sighted demand for what he was the first to call a „New World Order“, in which fundamental human rights, enforced by law, would protect individuals against government of whatever political complexion. What made this slim volume of 128 pages so powerful was the way its author was able to mix unassuming idealism with a devastating attack on Stalin, and especially upon „the young Germany of Hitler, wearing its thick boots (that have stamped in the faces of Jewish women), its brown shirts that recall the victims smothered in latrines and all the cloacal of Hitlerism; its swastika – ignorantly stolen from the semitic stone-age peoples; oafish and historically cruel, they remind us all how little mankind has risen above the level of an exceptionally spiteful ape“. Wells was the first to argue from „those outrages upon human dignity“ in the concentration camps – outrages that others only felt after seeing the pictures of the corpse-strewn Belsen, six years later.
But these examples were used to illustrate a broader thesis, namely that Western tradition required, as a response to totalitarianism a reassertion of individual liberty, and for that liberty to be protected by an international order that relied on law rather than diplomacy. This was the prescience of Wells’s vision, as astonishing in its way, as his first novel The Time Machine half a century before. Wells’s grasp of international law was negligible, and he offered no answer to the problem of how his declaration, which to be incorporated in the domestic law of every state, might be enforced in states without independent legal systems. He was, however, positive that it would take more than diplomacy to bring them into line, and that pleas of states sovereignty must not be allowed to prevail: „there was an extraordinary mass of foolish talk after 1918 about not interfering in the internal affairs of this, that or the other member of the League of Nations. It is time we recognised fully that the making of any lethal weapon larger than what may be required for the control of big animals is a matter of universal concern… “
Universal concern would call forth a universal legal order, but when war aims began to crystallize as defeat loomed for the Axis powers, this was too radical for the Allied governments to contemplate. It was to a strengthened League of Nations model that they turned, at the four-power conference at Dumbarton Oaks in late 1944 which led to the Charter of the United Nations, signed by forty-four nations in San Francisco on 26 June 1945. The original „Great Power“ plan was to leave the promotion of „respect for human rights and fundamental freedoms“ as merely an incidental aspiration of the new organization: that this was elevated into one of the Charter’s primary purposes was due to last-minute pressure exerted on the US delegation by a group of American non-governmental organizations (notably the American Jewish Congress and the National Association for the Advancement of Colored People). It was the US, then, which took the lead in giving human rights its prominent position in the UN Charter, both in its preamble (which evinces a determination „to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women“) and in Article I, which sets out as a chief purpose of the UN:
To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.
The Charter established an Economic and Social Council with power to set up a Human Rights Commission. Significantly, Article 55 says that „universal respect for, and observance of, human rights“ is essential for „conditions of stability and well-being which are necessary for peaceful and friendly relations among nations“. To achieve this, members pledge themselves in Article 56 to take „joint and separate action“ in co-operation with the UN. But members must never forget Article 2(7), which sets up the rule which H.G. Wells identified as the road block for human rights, and at whose barrier their progress was halted for much of the remaining century:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
By reference to this crippling rule, the UN and its instrumentalities declined to act against any state which objected to having its internal repression investigated or condemned. It was a restriction over which diplomats could wring their hands, whilst having no desire at all to intervene to stop barbarities perpetrated by their allies or to create precedents which might later justify intervention in the affairs of their own governments. It was not until 1993, after the Cold War was over and as the spectre of „ethnic cleansing“ returned to Europe, that there was sufficient superpower resolve to apply the proviso to Article 2(7), namely that it could be overridden by Chapter VII. This is the chapter of the Charter which permits the Security Council to order armed intervention against any state once it has determined that such a response is necessary to restore international peace and security. Since Article 55 expressly makes the observance of human rights a condition necessary for peaceful conditions, the appalling crimes against humanity which occurred after 1945 could have been forcibly combated by the UN under its Chapter VII power, but until the Balkan atrocities in the 1990s the Security Council never sought or even thought to invoke military action upon human rights grounds.
Nevertheless, the UN Charter was the first treaty to make human rights a matter for global concern. By identifying violations as a danger to world peace and security it provided a mechanism for international intervention, as a last resort, in the affairs of nation states. What it did not do was impose and legal duty on members of states to comply with human rights standards. This could have been accomplished, as several small countries urged, by incorporating a bill of rights in the Charter: the move was opposed by all the major powers, conscious of the motes in their own eyes (France and the UK had no desire at the time to grant any form of democracy to their colonies; all the Southern states in the US had „Jim Crow“ laws discriminating against blacks; there were millions still consigned without trial to Soviet gulags). For this reason the Charter pledges on human rights were circumscribed: the duty was to promote human rights, not guarantee them as a matter of law for all citizens. This vagueness was quite deliberate: no Great Power was prepared in 1945 to be bound by international law in respect of the treatment of its own subjects. The only positive rule of law to which they committed themselves was to refrain from threatening or using force against the territory or independency of any other state (Article 2(4)), subject to their „inherent right of individual or collective self-defence if an armed attack occurs against a member“ (Article 51). It was the application of this formula which was mostly to exercise the Security Council in its efforts to broker peace, until the internecine bloodbaths in former Yugoslavia and Rwanda caused it to exercise a power to punish crimes against humanity that it had actually possessed from the outset.
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
In closing the San Francisco conference, President Truman had promised that under the newly minted UN Charter „we have good reason to expect the framing of an international bill of rights (which) will be as much a part of international life as our own Bill of Rights is a part of our own Constitution“. The momentous task of drafting this constitution for humankind was allotted to the newly formed Commission on Human Rights, set up by the Economic and Social Council pursuant to Article 68 of the Charter. It was chaired by Eleanor Roosevelt and served by a secretariat headed by a Canadian law professor, John Humphrey, who over the next two years was instrumental in putting before the delegates drafts he culled from many sources – notably the American Law Institute, the constitutions of Latin American countries (which contained social and economic rights); drafts by Sir Hersch Lauterpacht, H.G. Wells and the Sankey Committee, and the eighteenth-century declarations. The Commission’s most severe division turned on whether the bill should be legally enforceable (either as annex to the UN Charter or as a multilateral human rights convention) or merely take the form of a declaration – of principles without powers of implementation, other than by the slow process of acceptance as customary international law. The Soviet Union and its puppets were implacable foes of enforceability, while Britain and Australia led the demand for a binding document. Australia’s delegates were the first to propose an international court of human rights, pointing out the obvious: „a mere declaration of principles would not offer assurance against the revival of oppression“. The Americans blew hot and cold. Roosevelt initially inclined to the American Bar Association call for „a new Bill of Rights that will be a part of law enforceable against governments which deny human rights“ but she shifted towards the Soviet’s position the more that US relations with them worsened: neither of those sparring superpowers wanted rules, or even a referee, when the gloves had to come off. The idealistic nations gave in, and this had, with hindsight, two negative advantages: the declaration was agreed, with superpower involvement, by the end of 1948 (it might not have been agreed at all thereafter), and it came with no enforcement machinery to be discredited (as discredited it would undoubtedly have been) during the years of the Cold War.
What emerged was not a legal guarantee but a „declaration“ made by the General Assembly, putting beyond doubt the nature and meaning of the pledge to respect human rights contained in Article 55 of the Charter. The Universal Declaration of Human Rights was adopted by forty-eight members of the General Assembly on 10 December 1948. It is poignant to recall the eight member states which abstained from voting: the USSR, Czechoslovakia, Poland and two communist satellites, Yugoslavia, South Africa and Saudi Arabia. (The six communist abstentions were opportunistic – these countries had played an important part in the drafting and insisted on a non-binding declaration, then abstained on the grounds that it would have little effect. South Africa could not square the non-discrimination clauses with its apartheid laws, and Saudi Arabia – unlike other Muslim countries – objected that the right to change religion prevented it from punishing apostasy.) It was to be a measure both of the triumph of human rights as an idea, and of the failure to make it a reality, that these nations came in later years consistently to endorse the Declaration, as did well over a hundred countries which emerged to independence after 1948. This is the Declaration’s achievement of sorts, that no state has ever been prepared to boast of its breach.
Although it was the first modern human rights text to be drafted in the pedestrian prose of a UN committee, there is anger flashing from the Charter“s preamble. After the briefest of natural law nods towards „inherent dignity“ and „inalienable rights“ (and a welcome non-sexist substitution of „human family“ for „man“), it recites as its rationale that contempt for human rights results in „barbarous acts which have outraged the conscience of mankind“ and so human rights „should be protected by the rule of law“ in order to avoid the need to revolt against tyranny. For members of the drafting committee, and speakers in the General Assembly debate, the Holocaust had supplied human rights with the most utilitarian of justifications: the alternative to them is war.
It is possible to find, behind the adoption of most of the articles, some reference to the perversions of Nazism. Thus „master race“ ideology is refuted by Article 2, which entitles everyone to rights „without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status“. The Declaration was drafted by the Human Rights Commission after receiving a detailed report on the prosecution evidence at the Nuremberg trials. The killing of „useless eaters“, the Einsatzgruppen orders to kill indiscriminately, the gas chambers, Mengele experiments, „night and fog“ decrees and the extermination projects after Kristallnacht were at the forefront of their minds and provided the examples to which they addressed their drafts. Thus the first draft of Article 3 („Everyone has a right to life, liberty and security of person“) originally went on „exscept in cases prescribed by law“ – until it was realized how many had been put to death under perfectly valid laws passed by the Nazis. (The African Charter, drafted many years later, also makes this mistake (see pp.62-3)*** The Article 19 guarantee of freedom of expression and Article 20 guarantee of freedom of peaceful assembly were incorporated by reference to Hitler’s crackdown on dissent after the Reichstag fire, and Article 21 – the right to participate in government through secretly balloted and free elections – was an attempt to address the fascist habit of rule through decree, without reference to any democratic body. The addendum to the right to education in Article 26, which reads as a controversial support for private schooling („Parents have a prior right to choose the kind of education that shall be given to their children“) was a heartfelt reaction to Nazi brainwashing: as Roosevelt explained, it was „designed to avert situations such as prevailed in Nazi countries where education, which was entirely under state control, tended to atrophy children’s intellectual facilities“. The rights to an effective remedy (Article 8) and to a fair hearing by an independent tribunal (Article 10) were reactions to the puppet courts, packed with Nazi judges, established to enforce the Party’s decrees.
Of course, many of these rights are to be found in similar language in H.G. Wells‘ draft and in the eighteenth-century declarations, but the Nazi record and the even more indiscriminatingly brutal Japanese record (which was also before the Commission in digests of the Tokyo trials) gave an emphasis to those individual rights which seemed incompatible with totalitarianism. What amazes today is the contemporaneity of the document, over half a century on. Roosevelt and her drafting committee produced an imperishable statement that has inspired more than 200 international treaties, conventions and declarations, and the bill of rights found in almost every constitution adopted since the war. There were, in retrospect, a few errors: it was not necessary to spell out as a universal right „periodic holidays with pay“ (Article 24); and the special copyright provision for the profits of scientists and authors in Article 27(2) is surely out of place (it was probably inserted because a conference on the Berne Copyright Convention coincided with the main drafting session). These are quibbles: more serious is the failure (thanks to communist objection) to make political rights depend on democracy, and the failure to provide and protection at all for minority rights. This was largely due to the prevailing fallacy that if you look after individual rights, group rights will take care of themselves (see p.143)****, and by way of reaction to Hitler’s exploitation of German minorities as an excuse for invading Poland and Czechoslovakia. But colonial attachments and racist assumptions played a part: for example, Australia argued that „the principle of assimilation of all groups was in the best interests of all in the long run“ – a principle of white superiority for which indigenous people in that and other countries would tragically suffer. Otherwise, the Universal Declaration has stood time’s test, and what resonates most loudly today is Article 28:
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realized.
This was a right without precedent in the eighteenth-century declarations. It called for some international enforcement system, harking back to the provisions of the Charter which permitted Security Council intervention under Chapter VII in the event of human rights violations on a scale which threatened world peace. The French delegate, Renè Cassin (who played an important part in drafting the Declaration), was aware that the Charter made it possible to penetrate the sovereignty of the State: „This was specifically put into the Charter in the hope of avoiding a repetition of what happened in 1933, when Germany began to massacre her own nationals and when other nations refused to consider this a matter of international concern.“
At this point, the true significance of the Charter and the Universal Declaration for the still-distant human rights movement can with hindsight be appreciated. It lies in the nexus both these documents assert between grave human rights violations and international insecurity: atrocities within a sovereign state are a matter for international law because they upset neighbouring states in a manner likely to disturb world peace. This was the assumption of Article 55 of the Charter (promotion of respect for human rights helps create „conditions of stability and well-being“) and the preamble of the Universal Declaration („recognition of… equal and inalienable rights of all members of the human family is the foundation of… peace in the world“). Today the rationale for humanitarian intervention might be stated differently – with more sophistication (in terms of psychological necessity to eradicate behaviour that diminishes everyone’s humanity) or less (a crime-free global village). But in 1948, US Secretary of State George Marshall explained the link that the framers had in mind:
Governments which systematically disregard the rights of their own people are not likely to respect the rights of other nations and other people and are likely to seek their objectives by coercion and force.
This was true of Hitler, of course, and of Saddam Hussein: it describes Libya and Iran and Afghanistan in the grip of the Taliban, but not Singapore or Nigeria or Burma, where domestic repression to a lesser or greater extent does not coincide with an aggressive foreign policy or a desire to export revolution. None the less, by making the somewhat questionable assumption that a state“s respect for human rights was a precondition of international peace, the Charter and the Declaration provided the legal mechanism which could later be triggered to challenge the sovereign right of states to oppress groups of their own people.
Although a product of Allied war aims, with an intellectual provenance described above, the final draft of the Universal Declaration emerged a geographically and culturally mixed committee on which major contributions were made by delegates from India, China and Lebanon, with further input from representatives of Chile, Iran and Egypt. Many of today’s African and Asian countries had not at this stage been granted independence, but fourteen members of the 56-state General Assembly were Asian, four were African and twenty came from Latin America. The communist abstainers had given assent to the individual freedom provisions: what they feared was the Declaration“s bias towards democracy (to assuage them, the word itself is only mentioned once, in Article 29). So there is little historical merit in the criticism raised decades later, that the Universal Declaration embodies only liberal Western values. On the contrary, it vouchsafed economic, social and cultural rights of enormous importance to developing countries. These include the right to work and the basic standards of health, housing and education. The drafting committee, conscious of the need to avoid „cultural imperialism“, took evidence from anthropologists who warned of ethnocentrism, the assumption of the superiority of one’s own cultural values. The actual drafting history reveals very few cultural divides, other than over the rights to marry and change religion – a sticking point for the Saudis but not for other Muslim nations like Syria, Iran and Pakistan. The USSR and its henchstates championed the non-discrimination clauses and the rights to work and housing, whilst it was the bloc of Latin American states, supported by delegates from China, India and the Philippines, which successfully insisted on the inclusion of the „new“ or „second generation“ social and economic rights, despite opposition from the US and its „liberal“ Western allies. These communitarian rights are made in some cases contingent upon „national effort“ or „the organization and resources of each state“, but their inclusion was at the behest of representatives of poor and underdeveloped countries. The Australian Labour government, with its strong trade union ties, first broke Western ranks, pointing out (to the embarrassment of his widow, who chaired the session) that the third of President Roosevelt“s „four freedoms“ was freedom from want.
There is nothing in the Declaration that is hostile to developing countries, or to Asian and African countries, or to the culture and aspirations of ethnic groups or tribes. It sets bedrock standards, beyond which diversity is encouraged. As matter of history, the allegation that the Declaration was intended to be an instrument of the Western hegemony fails: it was a righteous and at the time largely uncontentious response to the horrors of concentration camps in Europe and of Japanese military occupation in Asia, pithily defining the freedoms which would have to be upheld to prevent any repetition of this intolerable state behaviour. At the time, these rights were not perceived as Western or Eurocentric, but as obvious. That over the following half-century the Declaration would be flouted with regard to geography, by governments of every creed and colour and often by or with the connivance of the US and its European allies, amply demonstrates that its guarantees are not „Western“ in any meaningful sense. „Liberal“ the Declaration is not, in any consistent way: philosophically it embodies a lowest common denominator of post-war decency, imbued with the dour moral conservatism of the time (adopting, for example, the family as „the natural and fundamental group unit of society“) allied to some emerging socialist ideals such as a basic wage, favourable conditions of work and the right to join trade unions. As for the individual freedom clauses, these were all made subject to the sweeping exceptions of Articles 29 and 30, which embody the communitarian philosophy that „Everyone has duties to the community in which alone the free and full development of his personality is possible.“ So the real failure is not to be found in a perspective skewed towards Western values, as Asian leaders like Mahathir, Suharto and Lee Kuan Yew were much later to allege, but in its lack of enforcement machinery: that could only come from progressive incorporation of its clauses into treaties and in due course into customary international law. Its original purpose was to serve as „the measuring rod of illegitimacy and illegality of practices of power“ and without it, as the leading Indian scholar Upendra Baxi concludes, „there would have been no objective way of measuring and combating State-caused human deprivation and suffering“.
The Declaration was proclaimed by the General Assembly as „a common standard of achievement for all peoples and all nations“, to be promoted by education and, more optimistically, by „progressive measures, national and international, to secure their universal and effective recognition and observance“. This coy phraseology conceals the awkward fact that this proclamation lacks legal force, whilst articulating the hope that it might come to possess such force through „progressive measures“ by states and through its adoption by international law. Although its drafters had drawn heavily on the eighteenth-century declarations, they had wisely refrained from incorporating appeals to God and to nature. Instead, they invoked the „categorical imperative“ familiar from the moral philosophy of Immanuel Kant: „Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.“ Kant located the seat of universal laws in national respect for intrinsic human worthiness, which he termed „dignity“ – the key word in the preamble, which opens by recognizing „the inherent dignity of all members of the human family“ and goes on, by secular and rational argument, to affirm faith in „the dignity and worth of the human person“ which needs protection (a) because securing the „four freedoms“ is the highest international aspiration and (b) because of the empirical evidence that violating human rights conduces to war and barbarism. The preamble advances, through seven powerful propositions, the logical and moral argument that human rights are universal, and proceeds to state their content: it is an exercise in persuasion rather than law. Eleanor Roosevelt prophesied that the Universal Declaration „might well become the international Magna Carta of mankind“. But she warned the General Assembly that it would not initially have that status: „It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or legal obligation.“ What was intended to have precisely that status was the accompanying Convention on the Prevention and Punishment of Genocide, which was presented for signature the following day (it entered into force in 1951). This required states to punish, either domestically or „by such international criminal tribunal as may have jurisdiction“, acts which were intended to destroy, in whole or in part, a national or ethnic group, committed by anyone „whether they are constitutionally responsible rulers, public officials or private individuals“.
These two documents – the convention placing an international law obligation on every state to act against genocide and the inspirational Universal Declaration – provide the UN with its finest historical moment. (The Geneva Conventions, presented in March 1949, completed the post-war human rights triptych.) But the starry eyed delegates and self-congratulating diplomats present at the Palais Chaillot, in the shadow of the Eiffel Tower, at the birth of the first New World Order in December 1948 failed to heed the lesson of the Berlin airlift, made necessary by Stalin“s petulant decision to seal the city against road and rail transport. The USSR, for no good reason, was threatening two million West Berliners with starvation, having just abstained from voting for a declaration that every man has the „right to a standard of living adequate for the health and well-being of himself and his family, including food“. The Soviet ambassador to the UN gave a tight, abstemious smile as he explained the Soviet abstention to newsmen: the Declaration, he said, was „just a collection of pious phrases“. This was Andrei Vyshinsky, the century’s most polished legal liar, who had commenced his new career as communism’s arch-diplomat.
Although Article 227 of the Versailles Treaty formally proposed the establishment of a special international tribunal to try Kaiser Wilhelm II „for a supreme offence against international morality and the sanctity of treaties“, it was designed as an empty gesture to Allied public opinion – Lloyd George’s slogan, „Hang the Kaiser“, required token acknowledgement. The Kaiser remained in Holland, unhung, as a guest of the Dutch government, until his death in 1941.
So between the wars the international community was alive to the significance of minority rights and the attention given to the subject recognized its importance as a precondition for peace in Europe. The Permanent Court of International Justice began to develop a jurisprudence which addressed the problem of reconciling, on the one hand, demands for equality and non-discrimination with, on the other, the special need to preserve the characteristics and culture of minority groups. Thus its advisory opinion on Minority Schools in Albania (1935) condemned that government’s decision to close private schools serving the Greek minority, on the grounds that „there would be no true equality between a majority and a minority if the latter were deprived of its own institutions“. The Court upheld that peaceful co-existence required two legally enforceable objectives:
The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the state. The second is to ensure for the minority element suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics.26
Note 26: Minority Schools in Albania (1935), PCIJ Ser. A/8, no.64, at p.17.
 Under Glasnot, a Politburo commission was established to investigate archival material relating to the show trials: its report in 1989 established without doubt that the confessions had been obtained by torture an that the defendants had been seduced into their public performances at first by promises of clemency and later by promises to protect family members. See Laqueur, n. 17 above, p.297 ff.
The African Charter deserves a final word, if only to explain why it has become a sad joke for a continent where some of the world’s worst atrocities have been committed since the Charter came into force promising „third generation“ rights to peace, development and a satisfactory environment. The first draft, by a distinguished Senegalese judge, Keba Mbaye, was no doubt a worthy attempt to fuse statements of individual liberty with cultural duties believed to be distinctly African (such as the duty to „respect parents at all times, to maintain them in case of need“). However, the Charter became the creature of the Organization of African Unity, a rabidly political organization which has been dominated by some of the worst violators of human rights, such as Mengistu, Barre, Mobutu and Idi Amin (whose barbaric rule in Uganda no member state except Tanzania had the decency even to criticize). The OAU, ironically for all its commitment to anti-colonialism, has as its central concern maintenance of Africa’s old colonial borders, drawn haphazardly in the nineteenth century, and has mindlessly opposed any form of intervention in the internal affairs of states ruled by one party, or one man. Thus, the preamble to the Charter promises the elimination of „neo-colonialism“ and „Zionism“, while the duties of the African are „to serve his national community by placing his physical and intellectual abilities at its service… not to compromise the security of the state whose national or resident he is… to preserve and strengthen social and national solidarity… and the territorial integrity of his country“. These are all euphemisms for the duty to follow the leader, whose „law“ circumscribes all the individual „rights“ and „freedoms“ which are sonorously declared. Thus, under Article 10(I), „Every individual shall have the right to express and disseminate his opinions within the law“ – and if the law prohibits any criticism of the ruler, that’s perfectly all right according to the African Charter on Human and Peoples“ Rights, which might more honestly have been entitled the African Charter for Keeping Rulers in Power.
The Court adopted these principles to support German settlers in Poland and Polish nationals in Danzig, but these promising beginnings came to a sudden end in1939, when the League’s Minorities Section was disbanded and its subjects thrown to the werewolves of the Second World War. What emerged from that darkness – in which minorities suffered horrifically – was a new way of thinking about human rights which ironically denied them any special protection. It was the notion, which seemed blindingly obvious to Eleanor Roosevelt and the Brahmins of war free Washington as they planned a New World Order, that all relevant human rights belonged to individuals: take care of the rights of persons, and the rights of peoples would as a matter of logic take care of themselves. As Sumner Wells, US Secretary of State, concluded in 1943, „in the kind of world for which we fight, there must cease to exist any need for that accursed term „racial or religious minority“. So it came to pass that neither the Charter of the United Nations in 1945 nor the Universal Declaration of Human Rights in 1948 made any mention of minority rights. The UN adopted the position that everyone would be protected by guarantees of rights for individuals and adherence to the principles of equality and non-discrimination.
Veröffentlicht am 25. August 2011 in Empfehlungen, Literatur, Meinungen, Politik und mit Human Rights, Iran, Medien, Menschenrechte, Politik getaggt. Setze ein Lesezeichen auf den Permalink. Kommentare deaktiviert für The Story of Human Rights.