I have long been puzzled as to why individuals as well as entire nation states have such troubles accepting Human Rights which are moral principles based on standards of human behavior and which demand the protection of national and international laws.
Don’t all human beings have genuine rights by birth? If so, why did 103 countries in December refuse to support a UN text expressing “deep concern” about violations in Iran which included torture, the execution of minors, violence against women, as well as abuses against religious and ethnic minorities? Why was the International Criminal Court in the Hague unable to engage in hearings for justice and human rights against the Presidents of Kenya and Sudan (thus seriously lowering the credibility of “human rights law” as well as the standing of the court?) And why was there such concerted opposition to Senator Dianne Feinstein’s long delayed release of her intelligence committee’s report in which she condemned the tortures exercised by the US intelligence agencies as standing “in stark contrast to our values as a nation.”
Is all of this because human beings and their representative institutions are reluctant to confront their misdeeds? Professor Diane Orentlicher of Washington’s American University wrote that, as a teacher of international law, she was surprised “that Americans would find it so hard to acknowledge the full extent of torture committed by agents of our government and, harder still, to condemn their acts without equivocation.”1 Many public officials, and even speakers on Fox News, were so embarrassed by the word “torture” that they resorted to euphemisms like “enhanced interrogation techniques” (EIT) and “rectal rehydration” for anal abuse. Some apologists excused the torture on the ground that other governments ignored International Human Rights Law and showed little regard or its enforcement. Inevitably, those who may have been responsible for violating human rights are fearful that their exposure might lead to their being brought to justice and rightly punished.
Such concerns partly explain the lack of transparency in the UK regarding any possible collaboration with the US in the notorious rendition “programs” or other illegal activities. Before the publication of Senator Feinstein’s 528 page Congressional report, it was “sanitized” by British intelligence officials to avoid any embarrassment to their government. In the UK accountability is such that no one in the intelligence services nor in politics has been held publicly responsible for breaches in human rights. Officially commissioned reports by the government such as the Chilcot or the Gibson inquiries into possible involvement in the torture of terrorists or the rendition of suspects have simply not been made public. Rather than exposure, successive governments prefer the cover-up as a way to protect individual participants and those who commissioned them.
A recent study commissioned by ITV’s “Tonight” program revealed that just over half of the 2,000 people questioned in the poll thought the Human Rights Act interfered with British Justice. This is an astonishing result for a land which prides itself on the Magna Carta! A debate regarding Britain’s membership in Europe’s Human Rights Commission is currently simmering as the national elections in May approach. The UKIP leader, Nigel Farage, who wants Britain out of Europe, has been gaining popular support by suggesting that those who break the law are being protected by an inept Human Rights Commission in Strasbourg which is also telling Britons that those being held in prison should have voting rights. The ruling Conservative Party has responded by shifting away from the center in its stance on human rights issues.
As it currently stands, the ECHR has little legal power and Britain’s international Human Rights treaties are hard to enforce. Should the UK break international Human Rights law there is no way the judges in Strasbourg could demand accountability. Nevertheless, Prime Minister David Cameron pledged to scrap the Human Rights Act passed by the Labour government some 15 years ago if he wins the May elections. Cameron specifically expressed his right to deport suspected terrorists, his opposition to protecting prisoners of war and he saw no place for human rights when it came to protecting British servicemen involved in combating Isis in Iraq or Syria.
Britain’s Justice Secretary, Chris Grayling, joined in at the Party Conference by declaring: “We cannot go on with a situation where crucial decisions about how this country is run and how we protect our citizens are taken by the ECHR and not by our parliament and our own courts. We also have to be much clearer about when human rights laws should be used and that rights have to be balanced with responsibilities.” He concluded that it was important to “make sure that we put Britain first and restore common sense to human rights in this country.”2 A spokesperson for the Council of Europe responded that the plans unveiled by Cameron and Grayling were inconsistent with remaining a member, citing article 46 of the convention which states that the signatories “undertake to abide by the judgment of the ECHR in any case to which they are parties.”
Moral rights are generally understood as fundamental givens to which every human being is entitled at birth regardless of their gender, ethnicity, religion or national status and impose an obligation on all to respect the human rights of others. Historically, human rights can be traced to the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration of the Rights of Man and of the Citizen (1789) and the Bill of Rights in the US Constitution (1791). The peoples of early civilizations did not have our contemporary conception of universal human rights. Indeed there was no word for “right” in any language before the 15th Century. John Locke examined “natural rights” from the philosophic perspective in the 17th Century, identifying them as “Life, liberty and estate” (or property). He contended that such fundamental rights could not be surrendered to the state. The term “human rights” only came into popular use after Thomas Paine’s book, The Rights of Man, in the early 19th Century.
However, the doctrine of human rights itself continues to provoke skepticism and debate about its extent, nature, justification and applicability. Indeed the exact meaning of “right” continues to be debated by philosophers, politicians, and the legal profession. Do human rights include education? Free Speech? Right to a fair trial? Or basic living standards? There is little agreement as to which of these should be included into the more general framework of a social human rights contract. Even philosophers are divided into two camps: The human “interest” camp, which argues that the principal function of human rights should be to advance our essential human needs, and the “will” camp, which promotes the human rights based on the fundamental human demand for freedom.
When the United Nations was created, following the horrors of two World Wars, the international community was determined to complement the UN Charter with a plan to guarantee the rights of all people. The document they considered and which was to become The Universal Declaration of Human Rights was taken up at the first General Assembly in 1946. The Commission on Human Rights was established, made up of 18 members from various political and cultural backgrounds – with Eleanor Roosevelt, the widow of the President, as the chairperson. She was painfully aware that the United States itself had serious short-comings in its exercise of basic human rights for African-Americans as well as for women. Senators from the former slave-states in the South would oppose any legally binding covenant or even a simple declaration of rights. A major point in The Universal Declaration of Human Rights, which was endorsed by the General Assembly in Paris in December 1948, was the guarantee against discrimination because of race, creed or color which had been the particular concern of Eleanor Roosevelt.
The UDHR was a non-binding resolution urging member nations to promote not only Human Rights but also economic and social rights as part of the UN’s desire to lay “the foundation of freedom, justice and peace in the world.” As such, it was the first international effort to limit the brutal behavior of states, but its charter did not contain specific legal rights nor did it mandate the essential enforcement procedures which would protect the vaguely defined human rights.
Torture was declared to be unacceptable by Article 5 of the UDHR and also by additional Protocols of June 1977 banning the torture of those captured in armed conflicts. Torture was also prohibited by the UN Convention Against Torture which was ratified by 156 nations. Despite such agreements the widespread use of torture was reported by Amnesty International (as well as other human rights monitors) with estimates that over 80 world governments still practiced torture. This is a global scandal.
Most significantly, before the attacks of 9/11 the US Congress had prohibited torture including such techniques as water-boarding and sleep deprivation. After 9/11, lawyers for the Bush administration issued dubious legal opinions arguing that such techniques did not constitute torture. This made a mockery of both human rights laws and the UN convention against torture. Towards the end of the Bush Administration these dubious legal interpretations were rescinded and repudiated and further denounced by President Obama when he took office. However, a dozen years after these violations of the law, not a single individual is being brought to justice for any aspect of the widespread use of torture by military personnel, the CIA nor its shady, outsourced corporations.
In a major editorial page judgment, The Observer stated that the United States was not justified in acting above and beyond the international and domestic laws regarding torture which accompanied President Bush’s “global war on terror.” The US government “circumvented congressional oversight, furtively recruited or suborned more or less willing overseas partners such as Britain, and embarked on a covert, worldwide campaign of illegal arrests, kidnap, rendition, torture, incarceration without trial and, in some cases, assassination.”3
So where are we now? How can Washington preach against human rights abuses or torture in the Middle East when it admits to abuse taking place in its own intelligence agencies? The new Republican-controlled Senate will not change America’s stance on Human Rights as it will continue its obstinate refusal to endorse
such treaties agreed upon by most western democracies. The US also has failed to ratify HR covenants on economic and social rights. Perhaps President Obama was justified in saying it was more important to look forward and not dwell on past errors and violations. However, it is irresponsible to simply pass over those who flagrantly violated Human Rights laws. Until Washington, or London for that matter, finally enforce a zero-tolerance policy against both torture and the abuse of Human Rights, it is unlikely that we shall see any reduction of these violations in the rest of the world. That is a conclusion which I do not see how humanity can accept.
1Diane Orentlicher “The damning truth: we breached the core values of humanity,” The Observer, December 14, 2014. p.36
3“Playing to the right”, The Economist, October 11, 2014. p.33
3“UK and torture: time for a judicial inquiry,” The Observer, December 14, 2014. p.38