What Are Human Rights? (27): What Does It Mean To Have Rights?

When thinking about what it means to have a right it’s sometimes useful to replace the word “right” with another and similar word. Let’s review a few of those words and see how far they get us. You’ll notice immediately that those words only describe part of what we usually understand by the word “right”. Hence, they’ll allow us to clarify only part of the meaning of the phrase “to have a right”. Perhaps taken together they’ll provide an overall definition. (Some of the definitions are based on the famous work by Hohfeld).

Rights as privileges

Formally this can be stated as follows:

A has a privilege to do X if A doesn’t have a duty not to do X.
A has a privilege not to do Y if A doesn’t have a duty to do Y.

For example, in the U.S. I have the privilege to speak my mind, because I don’t have a duty to keep silent. Or, I have the privilege not to vote for our Dear Leader because I don’t have a duty to do so.

Rights as permissions

Similarly, one could say that rights are permissions. That sounds somewhat weaker than “privilege” but formally, this way of talking about rights has the same structure as “rights as privileges”:

A has a permission to do X if A doesn’t have a duty not to do X etc.

It’s about what a rights bearer is at liberty to do, not what he has to do or shouldn’t do. Hence, rights as liberties is again another way of saying the same thing. The fact that I have the privilege, the permission or the freedom to speak my mind doesn’t imply that I must speak my mind.

Rights as claims

A more relational understanding of rights focuses on the claims we may have on others. Having a right then means having a claim on someone.

A has a claim that B does X if B has a duty to A to do X.
A has a claim that B doesn’t do Y if B has a duty to A not to do Y.

For example, I have a claim that my employer pays me a fair wage because my employer has a duty to do that (see article 23 of the UDHR). I also have a claim that he doesn’t impose slave-like or dangerous working conditions on me because he has a duty not to do that.

Two girls displaying safety clothing

Usually, and at least in the case of human rights, I have such claims vis-à-vis every other human being.

Rights as immunities

This is similar to rights as claims but it’s a bit stronger.

A has an immunity if B doesn’t have the legal, moral or political ability or power to do X to A.

For example, I have immunity against self-incrimination because a judge does not have the power to force me to testify against myself.

Rights as limits

Again, similar if not identical to immunities:

A has a right to X if B doesn’t have the legal, moral or political ability or power to interfere with A doing X.

For example, I have to right to practice my religion because no one else is allowed to interfere with me practicing my religion.

Rights as provisions

Having a right can mean more than the ability to limit interference it can also mean being entitled to the provision of some goods or services.

A has a right to X if B has the legal, moral or political duty to provide A with X.

For example, I have the right to an amount of food that guarantees my decent survival. The state, among others, has a duty to provide this food if I can’t acquire it independently. But also so-called non-interference rights or negative rights fall under this heading: I have a right to be protected by Courts and the police force – to be provided with protection – if people impose a religion on me, harm my bodily integrity etc.

Rights as properties

You could say that all rights are in essence property rights. We have a right to have rights; our rights are our property. In the words of John Stuart Mill:

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it. … To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (source)

Formally:

A has a right to X if society has a duty to protect A’s possession of X.

Again, very similar to the formulation of rights as provisions. For example, I have a right to free speech if I can call on judges and Courts to assist me in my struggle against those who want to take this right away from me.

Rights as sovereignty

Very similar to the notions of rights as claims, immunities, limits and properties is the notion of rights as sovereignty. My right to freedom of opinion or my right to property make me a small scale sovereign over my mind or my possessions, in the sense that others aren’t allowed to interfere, invade, dispossess or modify. All these notions of rights focus on the rights bearer’s ability to control whether others must or must not act in certain ways.

Rights as interests

Conversely, rights as interests focus on what rights do to the rights bearer. Rights serve to further the rights bearer’s interests. People have rights because rights make them better off. What these rights imply for others is of secondary importance. Formally:

A has a right to X if X makes A better off.

Rights as abilities

Another way to focus on the rights bearer rather than the duty bearer is to view rights as abilities. That allows us to see that rights as liberties, privileges or permissions only describe part of what we understand by rights. Indeed, I have a right if I have the freedom, privilege or permission to act in a certain way. And rights as claims, immunities and limits protect me against others who would interfere with my freedom, privilege or permission to act in a certain way. And yet I can be free to do X because 1) I’m free from a duty not to do X and 2) I’m free from the interference of others, but at the same time I may be unable to do X. For example, I may have the permission and freedom to practice whatever religion I choose, and others don’t interfere, but I lack the education or mental capacities to choose and practice a religion. Rights as abilities would then provide me with the necessary education, rather than only the freedom, privilege, permission or limits on interference.

Rights as trumps

Following Ronald Dworkin, we can view rights as trumps. Rights are norms with a special force. They provide particularly weighty reasons to do or not to do something, reasons that are weighty enough to override other reasons or concerns. Rights give reasons to treat people in certain ways or permit them to act in certain ways, even if certain other goals or objectives would be better served by violating their rights. Within the system of rights, it’s possible to give some rights a higher trump value and hence a higher priority than others, perhaps depending on the circumstances (meaning that one right only trumps another when certain conditions are met, and not systematically).

Formally:

A has a right to X if X overrides all other concerns.

Only if we combine all these different definitions of rights can we perhaps have an overall understanding of them.

Human Rights and International Law (11): International Law Between Protecting and Obstructing Human Rights; The Rules on Immunity and Intervention

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(This post is a summary of a paper that I published in the Texas Wesleyan Law Review recently.)

In the previous post in this series, I argued that international law can contribute to human rights protection, although it shouldn’t be the preferred tool. In the current post, I will discuss some parts of international law that hinder this goal, especially the rules on immunity, self-determination, and non-intervention.

International human rights law makes violations of human rights illegal in the whole world. These violations are, by definition, caused by acts of individuals. Even if the violations are caused by states, by heads of states, or by large numbers of people, they are caused by individuals. Always. Rights violations always lead to individual responsibility.

The problem is immunity, de facto and/or de jure. When human rights are violated by people who represent a state – such as a head of state who orders rights violations or carries them out himself – it often happens that the national rights protection mechanisms, such as the courts and the police, do not assume their responsibility to protect. The individuals who have committed rights violations are not prosecuted by their own states, because they represent the state. They have control over the agencies that normally (should) prosecute rights violations. Take for example the case of Pinochet or the case of the Serbian war criminals.

This is de facto immunity. And this can extend even to the period after they have left power. Maybe they managed to make some kind of amnesty deal with the new democracy, or they just use their influence and their friends in order to pervert the justice system and the division of powers and to escape punishment.

But often these people – even when they have left power, such as former heads of state – enjoy not only de facto but also de juri immunity in national or even international law. Whatever the merits of the rules on immunity in international law, this can never be justified in cases involving rights violations. The theory of immunity says that heads of state or leading functionaries are not responsible for their actions. They represent their states and all their actions are “acts of state,” and therefore the state is responsible for these acts. Lower ranking officials are not responsible either because they can always hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible.

Only by transcending the principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment). This has been the main achievement of the Nuremberg Tribunal. The Charter of the Tribunal clearly states that individuals have international obligations that go beyond their national obligations or commands. Since Nuremberg, it is no longer possible to claim that international law only deals with “acts of state” and that individuals cannot be punished for the acts they commit as representatives of their state or as executives carrying out orders. Nuremberg has given individuals criminal responsibility in international law.

Citizens are no longer at the mercy of powerful individuals within their states. It has become more difficult for individuals to shed their responsibility and to hide behind their functions, immunities, privileges, or hierarchy. Individuals can be made internationally accountable for their actions if these actions are crimes under international law. The fact that national law is not applied, is silent in the matter, or even explicitly approves or imposes the actions does not guarantee an escape from justice.

One of the characteristics of international law is its priority over national law. Human rights especially, as far as they have become part of international law, have priority over national law. Violations of rights that are not punished by national law or that are explicitly ordered by national law can be crimes under international law, in which case international law has priority. Individuals or states can be sentenced and condemned by organs representative of the international community.

But this immediately raises the legal problem of international intervention, as does the right of international institutions to hear complaints by individuals whose rights are violated and who can’t find redress in their national courts, and the right of international institutions to monitor the human rights situation inside individual states. Intervention is forbidden under international law, and this prohibition is a part of international law which, like the rule on immunity, obstructs human rights. The Charter of the UN, although it mentions human rights as one of its aims, specifically prohibits intervention in so-called internal affairs of member states, in the intra-national relationships between states and their citizens (this is the infamous article 2, paragraph 7:

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.

This article is often used against attempts to intervene for the sake of human rights. Even merely verbal criticism of rights violations is often supposed to be the type of “intervention” prohibited by article 2, paragraph 7. The “matters” referred to in the article are never precisely defined, so that every state is free to define them. Hence, intervention becomes practically impossible.

However, some acts clearly do not belong to these “matters”: violations of international law; attacks on international peace; and, according to some, systematic and extreme violations of human rights if these violations threaten international peace. Chapter VII of the Charter allows intervention in these cases following a decision by the Security Council, and article 2 explicitly provides an exception for this kind of intervention.

This is important for human rights, and today’s consensus on the definition of “matters” may even include grave violations that do not result in threats to peace. Some “internal matters,” which at first sight can benefit from article 2, paragraph 7, are clearly violations of other provisions of the Charter, e.g., structural violations of human rights such as apartheid (in particular article 55). In that case, some believe that the UN may take measures under Chapter VII (sanctions or even military intervention). Chapter VII can override article 2, paragraph 7, and is perhaps an instrument to enforce certain human rights in certain cases.

Self-determination and sovereignty are very important, but it is obvious that these concepts can easily be used to counter criticism of rights violations. The protection of states requires the doctrine of non-intervention and of the equality of sovereign states. Unfortunately, what is necessary for the protection of states is often harmful to human rights.

Although the views today are perhaps a bit more shaded, it is tradition to assume that the only legitimate enforcement actions of the UN agencies (so-called “collective measures” and “preventive or enforcement action” under Chapter VII) are actions directed at the protection or enforcement of international peace. This is important enough also for human rights, but it only includes actions necessary to enforce respect for human rights when those human rights are directly violated as a consequence of the absence of peace or when their violation may lead to breaches of peace.

More on impunity.

Human Rights and International Law (9): Impunity

Luis Moreno-Ocampo

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I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future. Statement made by Luis Moreno-Ocampo on the occasion of his election as first Prosecutor of the International Criminal Court by the Assembly of States Parties in New York on 22 April 2003.

Many gross violations of rights such as genocides, state oppression, torture etc. are committed by the political class of a country, and in particular by the political leaders. And if they don’t personally dirty their hands, they organize, order, facilitate and protect the executors. They view rights violations as a necessary element in the exercise of power.

For many reasons, legal and practical, these leaders often enjoy impunity, meaning literally “without punishment”. The “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” describes impunity in this way:

The impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (source)

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

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A first reason for impunity is the fact that the perpetrators are in power and have subjected the justice system and the judiciary to their command. They have, in other words, destroyed the division of powers or failed to institutionalize it. Because they are so powerful, most of them die in the saddle and only have to fear a Higher Judge.

But some do not and end their reign (or see it ended) during their lifetime. But even then they manage to protect themselves. If they still have enough influence to stay in the country, they can either negotiate immunity or amnesty (take the case of Pinochet), or they have enough friends in high places to dispense with such formalities (take Deng Xiaoping, the butcher of Tienanmen).

2. The solidarity of tyrants

Milosevic and Karadzic

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If their exit from power is somewhat acrimonious, they may have to flee to another country where a friendly dictator will do everything to avoid a precedent of justice and will harbor the criminal until the end of his days (take Karadzic). How beautiful solidarity can be.

3. The law

Donald Rumsfeld

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Sometimes the national justice system can’t help, and at other times the international solidarity of tyrants hinders an otherwise able and willing justice system. Also the law can come to the rescue. State functionaries (sometimes even former functionaries) claim to enjoy legal immunity in national or even international law for acts carried out while in office. Individual perpetrators hide behind their states. Heads of state or leading functionaries are said to represent their states and all their actions are “acts of state”, and therefore the state is responsible for these acts.

Lower ranking officials are not responsible either, because they can hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible either.

Only by transcending these principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment.) This has been the main achievement of the Nuremberg Tribunal. The Nuremberg tribunal was the first tribunal to judge the crimes of political leaders and to refuse to grant them immunity for war crimes and gross violations of human rights such as the holocaust. The charter of the fledgling International Criminal Court (ICC) also rules out defenses based on immunity:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (source)

Charles Taylor of Liberia was indicted in 2003 while still in power, and is now in the dock in The Hague. Milosevic went before him and others will follow. But they have to be extradited. Political leaders will not extradite themselves, and after they leave office they will continue to enjoy some protection at home. Taylor was arrested because he first agreed to accept exile in Nigeria.

Moreover, countries have to sign up to the ICC treaty. Zimbabwe for example has not signed up, so Mugabe will not have his day in court, unless there is a referral to the court by the Security Council. Sudanese President Omar al-Bashir is now indicted on charges of genocide, crimes against humanity and war crimes over the slaughter in Darfur, but will probably remain comfortably in his seat.

Some claim that the possibility of being handed over to the ICC after the end of their reign, forces tyrants to cling to power and use ever more violent means to do so. But then you could as well grant amnesty to all hostage takers out of fear that they would otherwise do more harm to their hostages.

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4. Institutional problems

The impunity of ordinary civil servants or members of the police is often the consequence of under-developed state institutions. Judiciaries that are malfunctioning or corrupt, policemen who are underpaid or have a lack of training etc.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. (source)

Data

The Committee to Protect Journalists has an impunity index in which countries are ranked according to the number of murder of journalists that are unresolved. More statistics are here.

Here’s a post on the related subject of universal jurisdiction.

More on justice for dictators.