This piece is adapted from the authors article, The Populist Challenge to Human Rights, published in the Journal of Human Rights Practice.
The world as we in the human rights movement have known it in recent years is no longer. The populist agenda that has made such dramatic inroads recently is often avowedly nationalistic, xenophobic, misogynistic, and explicitly antagonistic to all or much of the human rights agenda. As a result, the challenges the human rights movement now faces are fundamentally different from much of what has gone before. Human rights proponents must now rethink many of their assumptions, re-evaluate their strategies, and broaden their outreach, all while staying true to their basic principles.
The threat to the future of the human rights regime is by no means coming only from the United States but, as has been the case since the end of World War II, it continues to play an extremely influential role in shaping the regime. This matters a lot, given that President Trump, only one fifth of the way through his term of office, has made clear his support for a range of measures that would threaten the enjoyment of civil liberties for many American citizens, not to mention non-citizens.
Although Stephen Bannon has left the Administration, the overarching goals he identified in his role as the President’s Chief Strategist continue to guide and shape policy: national security and sovereignty, economic nationalism, and deconstruction of the administrative state. Each of those three sets of goals has immense implications in terms of the international human rights framework, both in terms of how the United States itself behaves, and of the signals that it sends to allies and others alike.
To the extent that the international human rights regime depends heavily on robust and well-funded international mechanisms to shine the spotlight on both good and bad practices, the steps taken to date do not augur well. Before the election, candidate Trump’s view of the UN was summed up in these terms:
We get nothing out of the United Nations. They don’t respect us, they don’t do what we want, and yet we fund them disproportionately.
The disproportionate funding critique is, of course, an old and justified one. The United States currently pays around 22 per cent of the UN regular budget and 28 per cent of the budget for peacekeeping. Although this has declined from its original peak, it still reflects the long-standing self-interest in exercising the power of the purse in multilateral institutions. In addition, the United States has been the principal voluntary contributor (some 12 per cent of the total) to the budget of the Office of the High Commissioner for Human Rights (OHCHR), albeit mainly for the Trust Fund for the Victims of Torture. The good news to date is that the swingeing budget cuts proposed to the foreign affairs and international organizations budgets have been effectively rejected by Congress. By the same token, the crash-diet to which the State Department has been subjected, and the consistent retreat from policies that seek to promote respect for human rights, are taking their toll. The Secretary of State has made clear that the ‘values’ espoused by the US should not be confused with its ‘policies’ and that human rights-type values should not be promoted in such a way as to create “obstacles to our ability to advance our national security interests, our economic interests.” While the Administration insists that it doesn’t “seek to leave the [UN] Human Rights Council’ but rather seeks “to re-establish the council’s legitimacy,” the US has taken such a low profile on most issues that it is all but invisible.
With the explicit or implicit support of the Trump administration, an increasingly diverse array of governments, from Saudi Arabia and Bahrain to Poland and the Philippines, are pushing back against key pillars of the international human rights regime. While it is certainly true that the nature and extent of the challenges differ greatly from one country to the next, it also seems that they have much in common. We are witnessing the emergence of a powerful and energetic ‘coalition of the willing’, to reprise an infamous phrase from the not so distant past. This coalition consists of governments of many different stripes which are keen to challenge and dilute existing human rights standards and especially to undermine existing institutional arrangements which threaten to constrain them in any way.
There have always been coalitions of would-be wreckers, but in the past they have met with at least some pushback from the United States and other leading Western and Latin American governments. The prospect of effective pushback is now evaporating before our eyes. We will soon know what sorts of coalitions from hell will emerge in the context of the UN Human Rights Council, the International Criminal Court, the Inter-American human rights system, and so on. Unpredictability is certain, but few targets will be off limits. In contrast to the past, the coalitions will be more diverse, less focused on particular issues, more willing to depart from established human rights understandings and conventions, and less constrained by appeals to behave responsibly or in line with their legal obligations.
The modern human rights regime emerged out of the ashes of the deepest authoritarian dysfunction and the greatest conflagration the world had ever seen. It has dueled with, and been shaped by, the eras of reluctant decolonization, the Cold War, neoliberalism, and now populism. Dejection and despair are pointless and self-defeating. It’s assuredly not a lost cause, but we should not be fooled into thinking that it’s ever going to be a winning cause; it’s an ongoing struggle.
We are only at the start of a long-term effort to safeguard human rights in an era of popular discontent; one that won’t be over in just over three years from now. It is not necessary to recall the ‘honor’ roll of recently triumphant populists, now seemingly joined by Austria, nor the list of those waiting in the wings, shortly to gain their moment of glory. But there are many, and no continent is immune—unless we count Antarctica, but even there climate change has produced some very alienated and angry penguins! The main characteristic of the new populist−authoritarian era is disdain for social conventions, a currency on which democratic institutions and human rights norms are inevitably heavily dependent. The devaluation of that currency opens-up immense horizons for the enemies of both human rights and democracy.
To combat this, the human rights movement needs to develop a spirit of introspection and openness. Historically, it has not responded well to criticism. As long as the critics were mainly governments seeking to defend themselves or despairing deconstructionist scholars, it was not difficult to continue with business as usual. Going forward, it will be highly desirable for the movement to be open to reflecting on its past shortcomings and to involve a broader range of interlocutors in its reflections than has been the case in the past. Most ‘lessons learned’ exercises seem to have been solely or largely internal affairs, and it is most unclear how many lessons have actually been learned. Perhaps the starting point is greater transparency in acknowledging what lessons we think we need to learn.
In terms of specifics, there are a great many issues that will demand our attention in the years ahead. I want to focus on just five, all of which seem to me to be central to the challenges that we now confront.
The first is the populist threat to democracy. While this is a complex phenomenon, much of the problem is linked to post-9/11 era security concerns, some of which have blended seamlessly into an actual or constructed fear and hatred of foreigners or minorities. The resulting concerns have been exploited to justify huge trade-offs. This is not only a strategy pursued by governments of many different stripes, but one that has been sold with remarkable success to the broader public. People are now widely convinced that security can only be achieved through making enormous trade-offs, whether in terms of freedom of movement, privacy, non-discrimination norms, or even personal integrity guarantees. The new era of internal threats, which have dramatically increased in recent years, is bringing with it a move to normalize states of emergency. For example, remarkably little attention has been paid as the French government under President Macron has moved to normalize rather draconian emergency measures by translating them into regular legislation that hugely expands the powers of the police and the military, with minimal accountability mechanisms attached. This is not for a moment to suggest that the seriousness of the threats that may have been identified, and the horrors that have taken place, should be downplayed, but the fact that the depth and scope of the emergency provisions have been so little debated is both stunning and instructive.
And it is not just in countries that are already in turmoil that there is a declining faith in democracy. The University of Melbourne’s Roberto Stefan Foa and Harvard’s Yascha Mounk, have suggested three tests that should be applied in order to assess the robustness of democracy. The first is the extent of public support. In other words, how important is it for people that their country remains democratic. The second is the openness of the public to the possibility of a non-democratic government, gauged in terms of whether individuals would countenance military rule ‘if needs be.’ If things went really wrong, would we countenance a role for the military in the governance of the U.S.? Would we countenance that in the UK or Australia? The third test is the extent to which anti-system parties and movements have grown in the society. Based on these criteria, the authors argue that there has in fact already been a radical diminution in the support for democracy in many of the world’s established democracies. In other words, there is a growing openness to considering alternatives which might be seen to offer a happier future.
The second issue is the linkage between inequality and exclusion. Populism is driven, in part, by fear and resentment. Given that economic policies are thus critical in fueling popular discontent, it is noteworthy that mainstream human rights advocacy addresses economic and social rights issues in a tokenistic manner at best, and the issue of inequality almost not at all. Similarly, the focus of most human rights advocacy is on marginal and oppressed individuals and minority groups. From our traditional perspective, that is how it should be—they are the ones who most need the help. But the reality is that the majority in society feel that they have no stake in the human rights enterprise, and that human rights groups really are just working for ‘asylum seekers,’ ‘felons,’ ‘terrorists,’ and the like. This societal majority seems far less likely today than it might have been in the past to be supportive of the rights of the most disadvantaged merely out of some disappearing ethos of solidarity. I believe that a renewed focus on social rights and on diminishing inequality must be part of a new human rights agenda which promises to take into account the concerns, indeed the human rights, of those who feel badly done by as a result of what we loosely call globalization-driven economic change.
The third issue that I want to highlight is the undermining of the international rule of law. This is a potentially huge area and I will focus on just two aspects of it. The first is the systematic undermining of the rules governing the international use of force. Western countries, and particularly the United States through the global operations of the Central Intelligence Agency (CIA) and the Joint Strategic Operations Command (JSOC) and its ever-supportive, never-questioning allies such as the United Kingdom and Australia, have set us up very nicely for the era of Syria, Crimea and Yemen in which countries wishing to use force can more or less write their own rules. Having stood by and let those different agencies operate around the world carrying out targeted killings and other dubious acts, we are not well placed to then turn around and say that some of the tactics used by countries we do not like are in violation of international rules. The assiduous efforts of government legal advisers in countries like the United States, the United Kingdom, and Australia to rationalize these incursions are now reaping the rewards that they so richly deserve. It’s tragic. When I was involved in my capacity as UN Special Rapporteur on extrajudicial executions in the debate over targeted killings, I warned that the countries justifying these practices were setting precedents that would inevitably be invoked by much less well-meaning forces in the future, and by administrations that had even fewer qualms about legality (UN Human Rights Council 2010). Those practices are now coming back to haunt us. Next time you read a powerful defense of US policies relating to the use of lethal force outside areas of armed conflict, don’t forget to replace the words United States with Russia, China, or some other less admired state and see if your view of the legal regime that is being promoted is still quite so enthusiastic.
The second aspect of the international rule of law concerns the shocking breakdown in respect for the principles of international humanitarian law. In a 2016 opinion poll undertaken by the International Committee of the Red Cross (ICRC), a mere 30 per cent of American respondents considered it to be unacceptable to torture a captured enemy combatant ‘to obtain important military information’. In the same poll, taken in 1999, the figure had been 65 per cent. In Nigeria, 70 per cent supported such torture and in Israel 50 per cent did (ICRC 2016: 10). Systematic targeted attacks on medical facilities, on operations by Médecins Sans Frontières and other humanitarian groups are commonplace and barely remarked upon. The United States did apologize for one very direct and inexplicably precisely targeted attack, but its denials are not credible in the absence of any independent inquiry. At the same time, the UK Prime Minister is promising to liberate British forces from the constraints imposed upon them if they have to respect the European Convention on Human Rights. And during his campaign, President Trump made similar noises about how US troops had fought ‘very politically correct’ wars implying that they should not be constrained by laws and standards that their enemies don’t fully respect. His most specific proposal for dealing with terrorists was the insight that ‘you have to take out their families’. International humanitarian law is in for a rough ride.
The fourth issue concerns the fragility of international institutions. The International Criminal Court (ICC) is under sustained attack with various African states having sought to withdraw, even if only Burundi has so far gone ahead with the process. The Office of the Prosecutor has already announced that she is actively investigating the activities of the CIA and other forces in Afghanistan. If, as seems increasingly likely, she moves to open a formal preliminary examination it is difficult to anticipate a mature and measured response by the US as opposed to the diplomatic equivalent of a tantrum. We will then be in for an extremely tough ride in terms of trying to withstand and protect what has been achieved by the ICC and its immense potential.
An institution of central importance is the Office of the High Commissioner for Human Rights. One of the few bright spots in the overall situation is that the High Commissioner, Zeid Ra’ad Al Hussein, has been speaking up forcefully, courageously and with insight. He is doing what a High Commissioner should do and acting as the world’s moral conscience. But he has only one year left in his term of office and the Secretary-General will be under immense pressure to replace the watchdog with a poodle.
For its part, the Human Rights Council has been operating in a way that is surprisingly balanced in the last few years, especially if the issue of Israel and the occupied Palestinian territories is put to one side. When I was Special Rapporteur on extrajudicial executions, a period which finished in 2010, I left in despair at the inability of the Council to achieve very much at all. One of the key problems at that time was that the countries forming the Organization of the Islamic Conference did not hesitate to exercise their considerable powers to block initiatives which sought to address pressing problems. That changed with the Arab Spring, and it has not returned since. So in recent years the Council has been able to operate in surprisingly constructive ways in certain areas. But the new populism is certain to change this dynamic and China and Russia have both made it clear that they stand ready to introduce or to re-introduce major ‘reforms’ of the Council, a prospect which is hardly grounds for cheer.
Another key institution is the European Court of Human Rights, for which we know that there is a waning affection in the United Kingdom, not to mention many other states. We also know that Russia and Turkey are virtually unresponsive members these days, and that there is increasing pushback from a range of other states. The Inter-American Commission on Human Rights announced in mid-2016 that it was going to have to lay off 40 per cent of its staff, a fate that was headed off at the very last moment by new contributions. But there is no certainty that this rescue operation will be sustainable in the future and it is noteworthy that the United States has traditionally played an outsized role in funding the Commission’s work. And finally in institutional terms, the slashing of developmental assistance budgets, which is an ongoing process, is likely to be accelerated in the years ahead. Governments that are driven by nationalistic and xenophobic agendas are unlikely to want to send a lot of money to other states, unless to support their authoritarian friends. In the past, much development assistance has gone to support human rights institutions in different places. That funding will soon be under threat.
The fifth and final major issue is the role of civil society. It is now fashionable among human rights proponents to decry the fact that the ‘space for civil society is shrinking’. But this phrase is all too often a euphemism, when the reality is that the space has already closed in a great many countries. The opportunities for civil society to operate are being closed down, and very effectively so in many countries. I was in Mauritania last year in my capacity as UN Special Rapporteur on extreme poverty and human rights. In principle, one can set up a human rights NGO in Mauritania. All that is needed is prior authorization from the Ministry of Interior. But that can take a very, very long time to get; and if you are serious about human rights, it is unlikely ever to come. Many organizations thus have to operate without authorization, which brings the possibility of being arrested and imprisoned at any moment. The one sector that is absolutely thriving is that of government-sponsored NGOs. I have had meetings in Geneva with NGO representatives who flew over to Geneva just to meet me. They let me know that I had completely misunderstood all that was going on in their country and that in fact the government was totally dedicated to promoting respect for human rights and was the best chance there is in this regard; this was the NGO sector. A month or so after my visit to the country, during which I met with some of the most prominent and respected activists, four of them from the Initiative pour la Résurgence du Mouvement Abolitionniste, the leading NGO fighting against the rather considerable ‘remnants of slavery,’ were arrested on charges that are widely considered to have been trumped up, and given long prison sentences. While most were eventually released, the message was loud and clear. So much for civil society’s shrinking space. In many countries it has shrunk to the size of a prison cell. And as The Economist recently observed, the tax authorities in many countries are now on the frontline of neutralizing media and civil society groups which are increasingly likely to be subject to debilitating fines for miraculously discovered fiscal irregularities.
I also visited China, in August 2016. It was appropriate for the government to have invited a rapporteur dealing with poverty given the immense and certainly admirable progress it has made towards eliminating extreme poverty. But a visit by an independent expert to China was an interesting experience. Through research and suggestions, I obtained the names of a range of distinguished scholars, some of whom worked on human rights issues but most of whom were in development-related fields. I contacted them by phone, email, text, or whatever and sought meetings. But almost to a person, they informed me that my visit would coincide with time they had set aside to visit their parents in the countryside. Now I know that the values of familial loyalty are highly prized in China, and indeed are enforceable by law, but this seemed like a very strange coincidence. The reality was much more likely that a loud and clear message had been sent by the authorities that none of them was to speak to a UN Special Rapporteur. One of those who did manage to meet with me, a well-known human rights lawyer named Jiang Tianyong, was subsequently arrested and after months in incommunicado detention pleaded guilty in August to inciting subversion of the state. Others were subsequently harassed systematically immediately after meeting with me. And in case the powers of the security services prove insufficient, the government has adopted a law making it virtually impossible for any but entirely innocuous foreign NGOs to work in China, and a separate law regulating charities which leaves funding for human rights work entirely at the government’s discretion. Between them these new laws and regulations have basically succeeded in closing all space for any groups that consider themselves to be working on human rights. As I noted in my end of mission statement for the UN, the overall strategy involves ‘a carefully designed law and order Pincer Movement.’
Other countries are excellent students in this domain. Egypt recently passed a law limiting NGO activity to social and development work, and banning all NGOs from cooperating in any way with any international body without governmental approval. This effectively marks the end of authorized human rights-related NGO activity in Egypt. So much for the prescription of those who say that we need to abandon the international human rights regime and move all of our efforts back to the national and local level.
Toward an agenda
Perhaps that is enough gloom and doom, so let me try to be a little bit more constructive. What sort of strategies does the human rights community need to start considering in response to the fundamentally new circumstances that we are now confronting?
The economics of rights
Economic and social rights must be an important and authentic part of the overall agenda. In a recent report to the Human Rights Council I argued that a surprisingly small proportion of self-described human rights NGOs do anything much on economic and social rights. Is that a problem? The United States government and many others have tacitly argued that it is not; if people enjoy political freedoms they can stand up for their social rights. But empirically, the argument does not hold up. The enjoyment of civil rights has not brought social rights to a great many residents of the United States; and it has not on its own brought them to most other countries. We need to start insisting, in fidelity to the Universal Declaration of Human Rights, that the catalogue of human rights includes equally both categories of rights. That does not mean that every human rights group must suddenly devote itself to economic and social rights, but all groups should reflect on ways in which they can constructively contribute to both sides of the agenda. Amnesty International has tried, but they have not yet succeeded. They have been reluctant to grasp the real nettle which is the need to treat economic and social rights as full-fledged human rights. What is not needed is to move the focus to the blight of poverty, or to denials of dignity, or even to the need for more resources for development.
What is needed, in broad outline, is to follow the recipe that we have developed for civil and political rights promotion at the domestic level. Take the fight against torture, for example. The first thing we say to a state is that we do not just want blind assurances that it will not torture; rather we want legislation in place to ban the practice. We then ask institutions that are able, to follow up by promoting good practices and monitoring. And finally, we insist upon accountability, so that torturers can be prosecuted and governments held to account.
In terms of these essential elements of recognition, institutionalization, and accountability, economic and social rights are no different. Yet they remain fundamentally misunderstood by the great majority of governments and I would say even by most human rights activists.
The rights are conflated or confused with development, or poverty alleviation. As a result, the agenda seems huge and overwhelming, and so it is unsurprising that when governments are called upon to respect economic and social rights their reaction is that it is impossible because it would be too costly. But economic and social rights proponents should not be focusing their attention initially on, for example, ensuring that everyone enjoys immediate access to all types of health care. Instead, we need to start by constructing an appropriate human rights framework to achieve that goal. That involves the same three elements as a campaign against torture: recognition, institutions, and accountability. We need to start with legislative and other forms of recognition of a right to health. Next, we need to build up specialized institutions which are going to promote the right in ways that are meaningful in that society. And finally, we need to build up accountability mechanisms.4
A great many human rights proponents still resist this sort of analysis by insisting that economic and social rights are fundamentally different because of the resources they require for their full implementation. But this distinction has long ago been discredited. All rights cost money and society is always called upon to make choices. The current choice whereby civil and political rights are privileged and economic and social rights are all but ignored works fine for elites. It suits me, for example. As an older white male, I suffer no discrimination, I have a tenured professorship at one of the world’s foremost law schools providing me with a generous salary, pension and excellent health insurance. All I really need from the state is for my civil and political rights to be protected so that I am not arbitrarily arrested, nor prevented from expressing my views, and that I am secure in public. But that list of priorities does little to capture the principal threats facing the great majority of the population. If the concept of human rights is to have strong universal appeal, the other side of the balance sheet also needs to be promoted.
Linked to the populist agenda is a resurgence of the neoliberal agenda with a renewed push to shrink the state, promote privatization across the board, reduce taxation and social protection, and encourage forms of economic activity premised on radical employment insecurity. This agenda not only undercuts any efforts to respect social rights but also puts a lot of civil and political rights in peril as well. In other words, the struggle over resources and distribution are at the heart of both the economic agenda of populist governments and the human rights agenda, but the two agendas are pulling in opposite directions.
The Brazilian government, which came to office by impeaching Dilma Rousseff and has shown the way on this front. President Michel Temer, who is facing multiple allegations of corruption and is personally ineligible to stand in the October 2018 elections, and his supporters in Congress recently passed legislation amending the Brazilian Constitution to cap all public spending for the next 20 years. Temer’s government has also set ambitious goals for reducing budget spending, and has proposed dramatic reform of Brazil’s pension system, while spending on the environment, science, police, education, health, and social protection have all been drastically cut, potentially to remain at levels below society’s needs for two decades to come, until 2037. This will apply regardless of population growth, regardless of changes in circumstances or priorities, and regardless of even dramatic changes in the political makeup of the government. The justification for this extraordinary and unprecedented assault on the general welfare is to assure the ‘market’ that spending will be firmly controlled in the years ahead.
In the United States, the Trump Administration has appointed officials at the head of the bureaucracies dealing with health, education, housing, energy, and budget who are deeply committed to radically reducing the role of government in providing social services, and the Speaker of the House who is a key player in the Republican-controlled Congress has long advocated major cuts in welfare and the privatization of various functions currently entrusted to government. One of the President’s major campaign initiative involved major new infrastructure spending, but it now appears that the plan to create $1 trillion in infrastructure spending includes both $200 billion in spending and $255 billion in cuts to existing infrastructure programs that it calls wasteful, thus leading to a net $55 billion decrease in infrastructure spending. Many other examples could be given of similar economic ‘reform’ initiatives being promoted by various neoliberal governments around the world. The point for present purposes is that despite all of their past reluctance to do so, the major human rights groups need to start paying closer attention to budgets, tax policy, and fiscal policies in general. This is where a huge amount of the action is going to be and if the major human rights groups persist in their view that issues of redistribution are beyond their realm of concern, they will soon find that many of the things they care most about have been redistributed out of existence.
Broadening the base
The next challenge is for the human rights community to start expanding its horizons in terms of thinking about which other actors it can work with. The renewed push for privatization, along with the continuing abdication of governmental responsibility for various functions, guarantees that the huge role already played by corporate actors will only grow in the years ahead. While I think engagement with corporate actors is necessary and indispensable, I have always been deeply skeptical about the proposition that businesses are going to be persuaded to act as great proponents of human rights. While the Guiding Principles on Business and Human Rights and other such initiatives have achieved a breakthrough in some respects, we also need to begin more of a big-picture conversation with the larger corporations about whether an authoritarian, anti-rights, and anti-welfare future is really in their interests. But we also need to start thinking about where, how and when they can legitimately and constructively stand up to policies that cross certain lines and how they can use their influence and power to make the case for more human rights-friendly approaches. And it is not just corporations. We need to start thinking more creatively about other potential allies with whom the human rights movement can cooperate.
Next, we need to acknowledge the need to devote more time and effort to being persuasive and convincing, rather than simply annunciating our principles as though they were self-evidently correct and applicable. By way of example, in 2016 I wrote a report on the responsibility of the United Nations for bringing cholera to Haiti. I started by observing that ‘arguments based on human rights or international law often do not suffice to convince Member States, or even the United Nations, to take the necessary steps’. I added that those ‘in authority also need to be convinced of the unsustainability and costliness of existing policies, and of the feasibility of change’ (UN General Assembly 2016). A human rights defender, for whom I have immense respect, and who saw the draft, suggested that the statement be taken out on the grounds that the role of human rights proponents is to state principles and remind actors of their responsibilities, not to acknowledge that they might need more broad-based encouragement as well. I demurred because I strongly believe that we need to be much more instrumentalist than we have been in the past. We need to start thinking why the other side is not doing what we consider to be the right thing. While there are egregious violations to which this doesn’t apply, a great many human rights issues are quite complex and a concerted effort to understand the other side, to address their formal as well as their real concerns, and to seek to identify constructive ways forward, will bring much better results.
An example of this, which is by no means an ideal model, is the approach that the World Bank has long adopted to women’s rights. The Bank generally refuses to have anything to do with the formal rights dimension or the relevant international human rights framework. But it has made very effective use of instrumentalist arguments in trying to persuade governments that even if they don’t care in the least about women’s rights for reasons of dignity, humanity and law, there are nevertheless strong economic reasons for moving towards greater gender equality in order to unleash the economic potential of women to contribute to the labor force. I hasten to add that this is not my own preferred way to go, as I have made clear in my critique of the Bank’s role as a human rights-free zone (UN General Assembly 2015), but I accept that such instrumentalist reasoning is not a bad secondary argument to use to persuade reluctant governments to do the right thing. In general, I think there are many instances in which human rights proponents do not take enough time to outline all of the other arguments that might be more successful at the end of the day in persuading both governments and the population at large.
Linked to this approach of seeking to be more persuasive, we need to take a step back from the absolutism that sometimes manifests itself. We pride ourselves, sometimes rightly and unavoidably, on being uncompromising. We fear that if we make any concessions along the way we are selling out on the basics of human rights. As an antidote to this type of thinking, it behooves us to recall a lecture given some 25 years ago by José (‘Pepe’) Zalaquett. He is a very distinguished human rights defender, former head of Amnesty International’s International Executive Committee, and a member of the Chilean National Commission for Truth and Reconciliation. In it he explained the choice that the commission had made in giving priority to truth over justice (Zalaquett 1992). His lecture conveyed messages that today’s human rights movement needs to keep very much in mind. First, the path forward in strongly contested situations is rarely straightforward. There are many dilemmas to be confronted and choices to be made. There are, as Pepe said, ‘no hard and fast rules on how to proceed’. Second, the politics of absolutism and ideological purity can easily be self-defeating:
In the face of a disaster brought about by their own misguided actions, politicians cannot invoke as a justification that they never yielded on matters of conviction. That would be as haughty as it would be futile …
Third, there is a need to strike a balance between the principles involved and the ‘actual political opportunities and constraints,’ argued Pepe. And fourth, while none of this should involve compromising on fundamental principles, it requires a creative exploration of the art of the possible.
He finished his lecture by urging us to have ‘the courage to forgo easy righteousness, to learn how to live with real-life restrictions, but to seek nevertheless to advance one’s most cherished values day by day to the extent possible. Relentlessly. Responsibly.’
Although his exhortations emerged within the context of transitional justice, specifically the debate over truth versus justice in the Chilean context, his approach has a far broader resonance and a continuing relevance to many of the challenges that we face today.
Adopting a more calibrated approach that acknowledges the times in which we live and the context in which we function might also mean breaking with some of the old certainties.
An example of this which I expect will be highly controversial within the human rights community involves the potentially existential threat to the International Criminal Court. In championing opposition to the Court, a number of African governments in particular have been motivated by their opposition to the principle that sitting heads of state are subject to the Court’s jurisdiction. Many of the states that are planning to, or contemplating leaving the ICC, claim to be doing so because they consider it unacceptable that a head of state can have charges brought against them and be required to appear before the Tribunal at The Hague.
While one of the great achievements of the Rome Statute is precisely the principle that everyone is subject to the Court’s jurisdiction, including heads of state, if they are alleged to have committed any of the grave crimes listed in the statute. In principle, it seems clear to the human rights community that few individuals could be more deserving of such an indictment than a sitting president undertaking such criminal acts. But we might also need to step back for a moment and acknowledge the extraordinary importance of the ICC enterprise in historical, legal, cultural and other terms and the fact that there is a huge amount at stake which goes far beyond the principle of head of state immunity. The fact is that in a great many countries sitting heads of state are not able to be prosecuted. France is a well-known example in this regard, and many argue that the United States President would need to be impeached rather than tried in a criminal case if major wrongdoing were to be alleged. And in some such contexts, there even continues to be a deep reluctance or unwillingness to bring the full force of domestic law to bear against a former President. So the question is whether supporters of the ICC should not contemplate making some sort of concession? It would not, and should not involve an amendment to the Statute, but it could well involve a readiness to consider agreeing that the Security Council can use its existing authority to defer the commencement of any proceedings in such circumstances. This can only be done on a year to year basis, but it would respond to the concerns that many states have that international practice has moved dramatically ahead of what many countries are prepared to accept. I don’t want to exaggerate the importance of this particular example, but I do think that we need to start thinking more creatively about what might take some of the wind out of the sails of the principal opponents to some key initiatives. As Pepe Zalaquett’s comments suggest, this does not mean a surrender. We cannot give up on fundamental principles but there are strategies for moving in the right direction and they might not be all or nothing approaches.
The role of scholars
What role do scholars have in all of this? As teachers, as researchers, as publicists, we have obligations to our students and to our readers. It has become fashionable, especially at elite universities in the West, to disparage human rights by accentuating in dramatic and sometimes destructive ways the undoubted shortcomings of international human rights norms and institutions. At a range of law schools that I have visited I have encountered students who have become deeply disillusioned or cynical because they have been taught that the human rights enterprise is largely an illusion, that it is not something that they really should be putting their time into, that it is built on sand, and that it has no future. I remember a talk given at New York University by one of the world’s leading international legal scholars which was essentially about the illusion of human rights; why there can be no such thing as a valid meta-norm and why there could not reasonably be universal rights to strive for; that there could be no way of proving or justifying any particular rights; and that most are heavily contingent and subjective. A student stood up and explained that she found the lecture rather distressing and was seeking a solution because she had come to law school hoping to find a job working to defend and promote human rights. The professor responded that he was sorry she felt that way, but that his role was only to show the audience that there was an abyss in front of anyone seeking to take human rights seriously; it was not to suggest alternative strategies but simply to ensure that students were aware that the abyss was there.
I do not underestimate the extent to which the best of critical scholarship in this field has taught us important lessons. But I also do not underestimate how much of critical scholarship is formulaic, and unfocused in meaningful or instructive ways on the real challenges that confront us, or the challenges that are becoming more and more real by the day. I am not suggesting that all human rights scholars should become activists, or cheerleaders. But I do think that critical scholars should take responsibility for what they often warn others about; the problem of unintended consequences that result from much of their work. This is not for a moment an attempt to diminish the importance of critical scholarship. Many of my own ideas have drawn from some of the best of that scholarship. But there is a great deal of unenlightening dead-end scholarship which simply leads us to despair and does no favours to our students, let alone our fellow humans.
We need to reflect on how better to ensure effective synergies between international and local human rights movements. The large NGOs have still not achieved the right balance. Human Rights Watch is perhaps the classic example, but it is by no means alone. Its original model relied heavily on the assumption that the US government or congress or both would be responsive to reporting and lobbying, at least in response to significant violations in a reasonable range of countries. It then broadened its template so that recommendations were also addressed to as many other entities as possible, but the basic assumptions remained. As it became more apparent that there is no substitute for (also) advocating at the country level, it made a huge effort to establish national offices at the country level. But it is not clear that the fundamental model has changed significantly, even if the geographical scope has expanded. The deeper challenge is to see how the activities of international NGOs can have less of an extractive character (extracting information and leaving) and focus more on building or complementing national capacity. Of course, this is not always possible, but where it is, it is the key to sustainability. For its part, Amnesty International has undergone dramatic decentralization, but it is far from clear that it has yet found the best formula for strengthening local and national capacities. And it is increasingly clear that we can no longer rely on one level or the other operating in isolation. There will be times when only international groups can function effectively; but there will also be situations in which exclusively international advocacy will be ineffective and perhaps counterproductive.
What each of us can do
A crucial element in responding to the populists and autocrats is for each one of us to reflect carefully on what contributions we can make. All of us can stand up for human rights, but each in our own way. In my travels around the world as a UN Special Rapporteur, one of the most instructive questions that regularly pops up about half way through my time in a country is along the lines of, ‘who invited this bastard?’ It is usually a very good question and the answer informative. An invitation rarely comes on the personal initiative of the Foreign Minister and it is almost certainly not from the President. Eventually it emerges that a less prominent minister or a behind the scenes bureaucrat has taken the initiative because he or she believes that it will be beneficial for their nation to have the scrutiny that comes with such a visit. The often-unpopular actions of these lone bureaucrats and obscure ministers demonstrate that each one of us is in a position to make a difference if we want to do so. Despondency or defeat is not the answer, because there is always something we can do. It might be a rather minor gesture in the overall scheme of things, but it makes a difference. It might be merely a financial contribution. Quite simply, now is the time to get involved in any way possible. It is absolutely essential for us to strengthen the frontline organizations that are best placed to defend human rights against the threats posed by the new populism.
I want to finish by adapting the old admonition Pastor Martin Niemöller made during the period between the two world wars. Today’s version, at least for a New York resident like myself, would be simply:
First they came for the Hispanics, and I did not speak out—because I was not a Hispanic.
Then they came for the Muslims, and I did not speak out—because I was not a Muslim.
Then they came for the Black Lives Matter activists, and I did not speak out—because I am not Black.
Then they degraded and belittled women, and I did not speak out—because I am not a woman.
Then they came for me and there was no one left to speak for me.
We cannot wait, we need to start acting; we need to do whatever we can to strengthen respect for international human rights. We need to commit to the principles in our own lives, in our own areas. We must operate in a much more creative fashion both internationally and locally. There is going to be a complex relationship between these two levels but, there are always places where we can make a difference. These are extraordinarily dangerous times, unprecedentedly so in my lifetime. Even during most of the cold war there was a degree of certainty, but today we have lost much of that and almost anything seems possible. The response is really up to us.
Image: Dondi Tawatao/Getty