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‘As critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means of oppression and abuse of others who do not present that sort of threat.’
Sandra Day O’Connor, US Supreme Court, Hamdi v. Rumsfeld June 2004
Britain was an enthusiastic early signatory to the 1950 European Convention on Human Rights, which its lawyers had helped to draw up. In 1998 the Convention was also incorporated into UK law by the Human Rights Act, and Tony Blair said he had fulfilled his promise ‘to bring rights home’. But the HRA is now suffering erosion by new counter-terrorism laws, and by evasion of human rights laws that get in the way of ‘security’. There have also been lapses in protecting vulnerable people, such as mental health patients and children. Britain now has one of the worst human rights records in Europe, and faces investigation into its failure to comply with rulings made by the European court.
Eleanora Roosevelt holding the new Universal Declaration of Human Rights 1949.
‘We hold these truths to be sacred and undeniable: that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.’
Familiar, yet not quite? They come from the original draft, not the final version, of the American Declaration of Independence. In the latter, human beings ‘are endowed by their Creator with certain inalienable rights’, a sectarian assertion which diverts attention from what’s more interesting: that everyone is born free. The draft was made by Thomas Jefferson, later to be America’s third president. Though a slaveowner himself, he recognised that slavery was an evil and took steps to limit it. Full prohibition in the 1770s was as likely as abolishing the arms trade in the 1970s, and for similar economic reasons.
Some people still find it hard to see some others as ‘equal’. Too many, still, are guilty of such prejudice, fuelled by fear as well as dislike of ‘difference’. Too many are still willing and able to treat some fellow humans as inherently inferior and even as slaves. The old-style slave trade was abolished in the British Empire back in 1807, and slavery itself in 1833 (a few years after Jefferson’s death). America followed suit in 1863, but integration of black citizens is still incomplete. In parts of northern Africa traditional slavery continues.
Who are the world’s slaves today? The millions trapped in poverty from which there’s no escape. The bond-slaves trapped by debts they can’t repay except with their labour, which may take a lifetime, or even several generations. The sex slaves and cheap labour, lured by criminal trappers with false promises of freedom and the chance of ‘a better life’. In short, not everyone is either free or equal.
So all the more praise and respect should be heaped on the increasing numbers of organisations and individual campaigners working to get humanitarian laws passed (and kept) and Human Rights Acts signed (and ratified). They remind us that human beings all share ‘human nature’ and the same human needs, and that armed struggle is not the way to resist abuse. War itself is one of the greatest abuses human beings inflict on each other.
The European Convention on Human Rights, Article 4, prohibits ‘slavery or servitude’. No one, it says, shall be required to perform ‘forced or compulsory labour’. There is a proviso: the ban does not include ‘any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service’. Equally, and ironically, it also doesn’t include ‘any service exacted in case of an emergency or calamity threatening the life or well-being of the community’ either. Take lives, save lives, under orders.
There are no provisos for Article 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Torture is prohibited under several international laws, including the Geneva Conventions. Most countries have their own laws banning torture, but in times of conflict the judiciary can sometimes appear disturbingly reluctant to challenge security forces or the military. There is also usually a problem getting hold of evidence. So the widely publicised photographs from Abu Ghraib were all the more shocking. People did not associate liberal democracies with torture carried out for, as the pictures made clear, fun.
But liberal and other democracies (all claiming respect for human rights) have not, so far, totally rejected torture. The French used it on its ‘civilising mission’ in Algeria. The British applied it in their ‘depth interrogations’ in Northern Ireland. Israel has used what is euphemistically called ‘moderate physical pressure’ on Palestinians. Torture only became part of public and media debate after the revelations from the US prison camps at Guantanamo Bay, and the emergence of phrases like ‘stress and duress’, ‘all appropriate pressure’. At Abu Ghraib, as a student of wartime dehumanisation noted: ‘There is no moral confusion here: the photographers don’t even seem aware that they are recording a war crime.’
Particularly worrying are the efforts made in states such as the USA and the UK to find arguments for the legality of torture and other kinds of degradation. The US defence department believes that covenants against torture don’t apply outside the USA, or to ‘unlawful combatants’. Legal advice to the US president maintained that treatment of Al Qaida and Taliban detainees was immune from international law ‘because it is not federal law’. In Britain the court of appeal has ruled that British courts could, in the case of terrorist suspects, use evidence obtained under torture ‘as long as British officials were not complicit in the torture’. Clean hands, impure heart.
Sociology specialists working for an Israeli human rights group have identified the social and political conditions in which torture is likely to become institutionalised. What they list is disquieting. First, a national emergency or other perceived threat to security. Then: the need to process a large number of suspects, and the dehumanising of perceived ‘outsiders’ whether national, religious or ethnic. With the added presence of high-level authorisation to violate normal moral principles, and of a ‘mission’ that authorises almost anything, anything goes; and human rights go to the wall.
The horrors of the slave trade, made public by the people who ardently and successfully fought to end them, led to clearer realisation that laws to protect individuals were needed. The Universal Declaration of Human Rights, drawn up after the horrors of the Second World War, wasn’t a legal document: it listed recommendations, not obligations. But it has been the basis for other charters, conventions, agreements and undertakings that have been made law though unable to prevent the continuing horrors of 20th century conflict.
The local application of international law is bound to be problematic. Different countries even within the EU have different priorities, attitudes, traditions and aspirations. But there is also a wider problem. International law is ‘Western’ law, based on Western concepts. Not all of these have the same value elsewhere. In China, for example, a well-organised society as a whole is more important than the rights of single individuals. In the developing countries, economic and social rights are the ones that matter most, whereas the West foregrounds civil and political rights. These problems are recognised and debated in the United Nations, but there’s still some way to go. And across the board, countries may have signed human rights treaties but not yet ratified them. Lip-service, but no hard commitment.
Even when there is agreement on principle, the problem of practice remains. State leaders make public declarations against gross human rights abuses, but there has seldom been agreement on what action to take, who should take it, how, and with what real aims. The abusers often, as in the case of Sudan for example, the government itself pursue their agendas regardless of criticism abroad. There is a tendency to demand that ‘the UN should take action’ but the UN is a bureaucracy dependent entirely on its member states, many of which resent interference or demands from the others. And what action? There may be a knee-jerk demand for armed intervention, or ‘peacekeeping’ by armed threats, but these solutions only make new problems. They are at best cosmetic, at worst a violation of many human rights.
Reform of the UN is urgently needed. In Kofi Annan’s report this year, he listed the grim challenges of today’s world, all in some way affecting human rights: wars, civil violence, poverty, avoidable disease, destruction of environments, organised crime, terrorism, weapons of mass destruction. He asked for more decisive preventive action and more effective peacekeeping. He proposed a peacebuilding commission to help countries emerging from conflict. He insisted that treaties protecting civilians should be ratified by every signatory to them. Fine: but, as a professor of international law remarked, ’these seem empty words’ in the face of continued failure of UN member states to take action.
The professor went on to grasp a very large nettle. If the UN cannot be reformed, she said, and the major powers hog most of the world’s resources, a new organisation must be invented, and soon. States that bear the brunt of globalisation should consider quitting the UN, and set up a new organisation. It could have its HQ in Jerusalem (this has already been seriously suggested) or in Africa or Latin America as a symbolic move away from the West. ‘The main challenge would be to define and defend humankind’s common resources. Peacekeeping could then become more than a belated, often useless, stopgap.’
This new UN would ensure that the complexity of modern society, which combines inter-state with inter-personal relations, is recognised and catered for. It would also acknowledge the need for democracy (of a kind appropriate to each culture) removing all prerogatives that benefit only a few states. Its legal institutions would be efficient and effective. International law would prevail, and justice according to those laws including human rights laws could be seen to be done.
Well, this professor thinks it’s possible. Perhaps it is. We really do have to hang on to a clear and campaigning commitment to human rights: however insubstantial, over-ambitious, unworkable, idealistic or impossible they may seem, they remain a blueprint of how human society can work at its best. After all, in most parts of the world, at local level most rights are preserved. Most people have an understanding of what is fair, what is just, what is right, what is good.
Archbishop Desmond Tutu, chairman of South Africa’s Truth and Reconciliation Commission, believes in restorative justice, ‘which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships.’ In Sierra Leone, it is the victims of amputation who are speaking up for acceptance and reconciliation. An American refugee worker, wheelchair-bound for life after a Baghdad explosion, wastes no time on bitterness but resolves to work harder, inspired by the disabled Iraqi people he meets daily, ‘who are finding all kinds of ways to build their lives’.
You may see human nature as essentially inclined to what some people call evil. Civil laws and, for some, religion, provide restraints. Or you may think human nature is essentially well-meaning, aspiring to behaviour prescribed by what we call morality. For centuries many have believed that ‘natural’ justice was built into the very state of being human. Management of society is much harder now there are so many of us. But turn to the Universal Declaration of Human Rights, where there’s something worth hanging on to: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience…’ Reason and conscience: the way the future of the world is looking, the human race is going to need both, and in good working order.