Wars and the Efficacy of Human Rights
“Right is the child of law; from real laws come real rights, but from imaginary law, from ‘laws of nature’, come imaginary rights. Natural rights are simple nonsense, natural and imprescriptible rights rhetorical nonsense, nonsense upon stilts.” – Jeremy Bentham
Why Human Rights Are Not Legal Rights
As used here, a “right” means an entitlement involving the exercise of a particular freedom or the protection of certain freedoms from outside intervention. Most rights are part of common law or are subject to the provisions of a Constitution or a Bill of Rights, or by treaty, statute, or judicial fiat. As such, they place constraints and obligations upon the actions of and interactions between individuals, groups, governments, and social institutions. However, unless there is a means, or at least a threat, of enforcement and a method for obtaining a remedy for claimed violations, then rights are meaningless. Thus, the exercise or the protection of a right is only valid if there is a judicial system to consider it. And, judicial systems are an integral part of government, whether local, national, or international. Therefore, rights must be legally enforceable under positive law, if they are to have any meaning.
“Human rights” on the other hand, is a term of art that encompasses a number of related concepts. As described in Part 1 of this series, such rights are intended to represent certain defined claims of entitlement due each human being by virtue of his or her birth, which thereby serve as the imperatives of morality that are not contingent upon laws, customs, or beliefs, or economic, cultural, social, or political systems. Of course, many so-called human rights have been made a part of positive law, which are then actualized as legal rights.
James Madison, the acknowledged father of our constitution, was very lukewarm to including a Bill of Rights in the Constitution, though he later recanted. In a letter to Thomas Jefferson, October 17, 1788. Madison writes, in part:
“My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.”
Madison’s opinion, then, was that a Bill of Rights would be superfluous and that, in any case, it should fall into the “it-goes-without-saying” category. However, many believe the full panoply of human rights ought to be recognized and enforced whether covered under the rule of law or not. But this ideology is transient and relational, and, because it parallels relativistic morality, lacks universal meaning and understanding. Therefore, in the opinion of your humble scrivener, establishing a usable set of principles regarding human rights, equality, freedom, and justice for all that can fit the economic, political, social and cultural diversity of all the Peoples and nations of the world is a virtually impossible task. Indeed, we are witness to, and sometimes the victims of, the unimpeded spin of the world’s moral compass.
From the League of Nations to the International Bill of Human Rights
In the spring of 1919, at the Paris Peace Conference, which was convened to, among other things, develop the “Covenant of the League of Nations,” Japan’s representative, Count Nobuaki Makino, proposed a sentence to be added to the Covenant’s preamble to read:
“The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord as soon as possible to all alien nationals of states, members of the League, equal and just treatment in every respect making no distinction, either in law or in fact, on account of their race or nationality.”
Count Makino was asking members of the League to accept the principles of the equality of nations and races, and the just and equal treatment for nationals of all countries, in effect, making the first effort to establish universal human rights. Australia, New Zealand, the United Kingdom, and the United States strongly objected to this provision, citing potential conflicts with their respective immigration restrictions on Japanese citizens.
So, although Count Makino’s heart was in the right place, his proposal failed. In 1930, Japan put militarists in power and they had no particular interest in “the principles of the equality of nations and races.” Of course, that kind of negative attitude eventually resulted in two atomic bombs being dropped on their heads. The League of Nations went out of business in 1946, never having been effective at stopping war nor instituting world peace. It was replaced that same year by the United Nations.
Learning from the failures of the League of Nations, and with the savagery and horror of World War II still fresh on everyone’s mind, the United Nations set out a bold and ambitious agenda for the future. To this end, the preamble to the UN Charter declares, in part, that the UN intends,
“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 of nations large and small. . .”
In the wake of testimony describing the severity of war crimes and crimes against humanity coming out of the Nuremberg and Tokyo Trials, and in an effort to unify all the Peoples of the world, some United Nation members urged having a separate resolution to specifically address human rights (in much the same way as our Founding Fathers wanted a Bill of Rights.) Begun in 1946, and shepherded through the drafting and approval process by the tenacious and formidable Eleanor Roosevelt, the final version of the “Universal Declaration of Human Rights” (UDHR) was adopted December 10, 1948, by 48 out the then 56 member General Assembly. Expanding on related provisions in the UN Charter, the UDHR preamble reads, in part,
“. . . recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and,
“. . . disregard and contempt for Human Rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people . . .“
The UDHR goes on to enumerate no less than 30 Articles to address these “equal and inalienable” Human Rights. They cover the full range of what we might call today “liberal ideology,” including prohibitions against slavery and discrimination, and the right to vote and have an education, plus legal rights, children’s rights, women’s rights, and many others. So, the “highest aspiration of the common people” is a plea, it seems, for an egalitarian world where everyone is treated exactly the same. The UDHR, then, was to help provide closure and to begin the healing process of a dystopian world ravaged by war.
It should be noted, however, that no political process of any kind was made available to those people whose rights were being established. No election was held in any country. No referendum, or any other form of test, was made to approve the text. And since the UDHR is not a treaty, there was no ratification procedure of any kind by participating nations. In fact, no individual whose rights were being enumerated ever formally consented to the document. And, to add insult to injury, there was no procedure for changing, revising, rescinding, or amending any part or all of the document. Human Rights were to last forever.
In addition, the UDHR’s authors failed to take notice of the Orwellian maxim that “some animals are created more equal than others.” For example, the masculine pronouns “he, his, him, and himself” appear 31 times in the text, the same frequency as the gender neutral “anyone.” However, the feminine pronouns “she, her, her’s, and herself” are conspicuously absent; appearing zero times – none, nada, zilch. Thus, for a document that asserts the universal need for and demands the international recognition of equality for all of humankind, this Declaration begins its life by implicitly diminishing equality for half the world’s population. But to be fair, political correctness was virtually unknown in those days. Many of the future women’s libbers were still in diapers.
Since its adoption, the UDHR has become a wellspring of inspiration for altruists to promote global peace, humanitarianism, and multiculturalism. As a result, there are now 19 core documents addressing universal human rights, including various conventions, covenants, and protocols. Collectively, these are sometimes referred to as the International Bill of Human Rights (IBHR). By 1976, The IBHR had received enough signatures of UN members that it became recognized as international law. The UN has also established and staffed the Office of the High Commissioner for Human Rights, the Human Rights Council, and a plethora of committees to monitor and report on specific Human Rights activities within the world community of nations. All of this sounds really swell, hopeful, and exalting. But there is trouble afoot.
Human Rights with a Get-Out-Of-Jail-Free Card
When a 13 kiloton atomic bomb called “Little Boy” detonated 1,900 feet above the Shima Surgical Clinic in Hiroshima, Japan on August 6, 1945, killing 70,000–80,000 people outright, there was no outcry from human rights activists at the time to arrest pilot Paul Tibbets and his crew on the Enola Gay, the plane that dropped the bomb, nor President Truman, who gave the order, nor any of the scientists at the Los Alamos National Laboratory where the bomb was developed, for war crimes and crimes against humanity.
The use of an atomic weapon in Hiroshima, and subsequently in Nagasaki two days later, remain controversial. The moral dilemma presented by these events continue to be debated. But, notwithstanding this controversy, the massive collateral damage inflicted upon the civilian non-combatants in these cities demonstrates the fragility of human rights on many different levels.
It should be noted too that legal enforcement of the provisions in the UDHR and the IBHR has so far proved to be extremely difficult. For example, the case against Augusto Pinochet for genocide, terrorism, and torture committed during his tenure as dictator of Chile, involved courts in the U.K., Spain, and, of course, Chile. While the legal complications of amnesty, extradition, immunity, and related issues of international law were still being worked out, Pinochet died in December, 2006, at the age of 91, quietly, at home, and never having been convicted of any crime.
Likewise, former Yugoslav President Slobodan Miloševic was brought to trial in 1999, for crimes against humanity, breaches of the Geneva Conventions, and genocide (“ethnic cleansing”) in Croatia and Bosnia. Miloševic died in custody on March 11, 2006, before his trial could be concluded. It is also highly doubtful that former President George W. Bush and key members of his administration will ever face formal charges for violations of international law, including Common Article 3 of the Genova Conventions, having to do with the humane treatment of non-combatants, combatants who have laid down their arms, and combatants who are “hors de combat” (out of the fight).
Since the UN’s International Court of Justice (a.k.a. the World Court) was created primarily to handle disputes between member states, and since courts with appropriate jurisdiction had to be set up for each instance where crimes against humanity were alleged, the International Criminal Court (ICC) was established on July 1, 2002, for the purpose of prosecuting individuals for certain Human Rights violations. Unfortunately, the ICC cannot prosecute crimes committed before 2002. And, although more than 100 nations have ratified the “Rome Statute,” which created the ICC, a number of states, including China, Russia, India and the United States, are critical of the court and have not joined. With no authorization to prosecute terrorists or drug traffickers, and with no universal jurisdiction, the ICC is severely limited in its ability to provide any jurisprudence or relief for those who have claimed human rights violations.
In the years since the Universal Declaration of Human Rights was adopted, armed conflicts involving terrorism, torture, genocide, crimes of aggression, and other crimes against humanity have continued apace all around the world. According to Wikipedia.org’s lists of wars, there were 92 such conflicts from 1900 through 1944, but during the next 45 years, from 1945 to 1989, there were 97. On the UDHR’s sixtieth birthday, Globalsecurity.org lists 42 armed conflicts that are were still ongoing. This, in spite of the worldwide trend toward democracy. According to freedomhouse.org., there were just 69 out of 167 countries (41%) that had “electoral democracies” in 1987. However, by 2008, there were 119 countries out of 193 (62%.)
If these numbers mean anything, then it may be legitimate to ask whether the UDHR and its progeny have had any impact whatsoever in establishing “equal and inalienable” human rights and making progress toward achieving the “highest aspiration of the common people.” The reality on the ground is not encouraging.
Continued in Part 3 – Universal Human Rights and the Third Estate