Marx, Substructure, Superstructure and Human Rights

In an effort to convince you that my new $19.95 book is actually worth a lot more than that, I’m blogging some excerpts. (I posted the introduction when the book came out). Today, something about the marxist theory of substructure, superstructure and human rights (to which I personally don’t entirely adhere, btw).

The substructure, according to communism, is the mode of production or the nature of productive activity. Productive activity means the production, in interaction with nature, of goods necessary to survive. This production requires, on the one hand, means of production (materials, machines, land, tools, labor etc.) and, on the other hand, relations in which production takes place (relations of co-operation or ways of organization such as relations between masters and slaves, employers and employees, landowners and farmers etc.). The combination of means (or forces) of production and relations of production is the mode of production.

The available means of production determine the relations of production. A certain degree of development in the former necessarily produces a certain degree of development in the latter. This idea is the basis of the historical evolution of society that is so important in communism.

Karl Marx

In production, men not only act on nature but also on one another. They produce only by co-operating in a certain way and mutually exchanging their activities. In order to produce, they enter into definite connections and relations with one another and only within these social connections and relations does their action on nature, does production, take place. These social relations into which the producers enter with one another, the conditions under which they exchange their activities and participate in the whole act of production, will naturally vary according to the character of the means of production. With the invention of a new instrument of warfare, firearms, the whole internal organization of the army necessarily changed: the relationships within which individuals can constitute an army and act as an army were transformed … Thus the social relations within which individuals produce, the social relations of production, change, are transformed, with the change and development of the material means of production, the productive forces. K. Marx, Wage Labor and Capital

These social relations are therefore independent of the will of the participants. They depend on technology, the availability of land etc. Each major change in the relations of production and the organization of production, caused by changes in the means of production, leads to a major change in the type of society we live in.

The combination of means of production or productive forces on the one hand, and relations of production on the other, is the substructure and determines the superstructure or the collection of different forms of consciousness, such as law, morality, religion, philosophy, politics etc.

The substructure is “the real foundation, on which rises a legal and political superstructure and to which correspond definite forms of social consciousness”. “Economic production and the structure of society of every historical epoch necessarily arising therefrom constitute the foundation for the political and intellectual history of that epoch”.

Politics and law are parts of the superstructure which are determined by the substructure. They are formed by the interests of those who have economic power and they serve to defend these interests. “Political power … is merely the organized power of one class for oppressing another”. “Are economic relations regulated by legal conceptions or do not, on the contrary, legal relations arise from economic ones?” The quintessential example is the right to private property. Owners can use this right to defend their interests against the poor. They can appeal to the judiciary and the police force to defend their property and hence to maintain existing class relations and modes of production.

The right to private property makes it impossible for large groups of people to have their own means of production and hence to be economically independent and self-sufficient. In other words, it makes it impossible for people to be free.

However, the law is not only something that can be used to justify the use of force for the maintenance of the status quo. The use of force by the state for the defense of the right to property is not necessary when the poor can be convinced that this right is in their interest, that it is a human right rather than a right of the wealthy. The economic relationships and structures are maintained with political and legal force but also with legal ideology.

All ideologies are similar. Christianity can convince people to accept their situation by promising salvation in a future life, and the ideology of human rights does the same by convincing people, all people, that they have the same rights and that they are therefore equal. When this universality and equality of rights is accentuated, people do not see that others who have the same equal rights profit more from these rights. Human rights give the impression of guaranteeing freedom and equality but in reality give those who are better off tools to improve their situation even more, and at the expense of the poor. Instead of real equality there is only legal and formal equality, and the latter takes us further away from the former because the rich can use their equal rights to promote their interests. Rights give us the freedom to oppress rather than freedom from oppression.

Human rights, according to communism, are “an illusory sense of community serving as a screen for the real struggles waged by classes against each other”, an ideological veil on reality, a set of false ideas that has to cover up class rule and make it acceptable. The continuation of inequality by political and legal means is based on the combination of coercion and false consciousness. Christians are equal in heaven and thereby maintain inequality on earth, and believers in human rights are equal in the heaven of their political ideals and thereby forget the inequality that these ideals help to maintain. Again we see how the ruling class uses ideology rather than mere force to maintain its rule. It tries to instill certain beliefs in its victims and to use these beliefs as a drug, an opium to pacify them.

Like the protest inherent in the Christian ideology of a future paradise must be maintained but stripped of its ideological content, so the ideal of equality inherent in human rights must be maintained but in such a way that it becomes real equality in a real and worldly paradise, and not some kind of formal equality of rights that only aggravates real inequality and postpones paradise to the afterlife. The poor must become conscious of the fact that their formal equality only covers up their real inequality. This consciousness will be an important step in their liberation. However, as we will see later, this consciousness is conditioned by and can only come about at a certain time in the evolution of exploitation. It cannot result from education or political agitation alone.

Etc.

You can buy the book here and read something more about it here. More about Marx here.

Political Graffiti (91): Overlegislation

This quote from Tacitus means: “The greater the degeneration of the republic, the more of its laws”, or, alternatively: “The more corrupt the republic, the more numerous the laws”.

Tacitus

I have a post here detailing the reasons why this is a problem. A post on the related topic of libertarianism is here. More political graffiti here.

The Most Absurd Human Rights Violations (27): Immigration Control and Cultural Purity

From the Wall Street Journal:

When Jordan Peimer booked an Argentine band that fuses Jewish Klezmer music with tango, he thought he had the perfect act to headline his “Fiesta Hanukkah” concert.

“It is hard to imagine any band more fitting than Orquesta Kef,” says Mr. Peimer, the program’s director at the Skirball Cultural Center here. The event was designed to attract a Jewish audience and the city’s burgeoning Hispanic community.

That was before the U.S. Citizenship and Immigration Services weighed in with some cultural commentary of its own. The band couldn’t travel to the U.S., the agency ruled, because it didn’t satisfy a “culturally unique” requirement for a performer visa called P-3.

“The evidence repeatedly suggests the group performs a hybrid or fusion style of music…[which] cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe or other group of persons,” read the denial.

More about the freedom of movement. More absurd human rights violations.

Human Rights Ads (38): Hate Crime

(source)

More on hate crime:

• on the question whether hate crime laws constitute thought crime
• the reasons for having hate crime laws
• the difference between hate crime and hate speech
• some statistics on hate crime
• is hate crime caused by poverty and lack of education?
• hate crime in Russia
• a general post on hate crime.

More human rights ads here.

What is This Graph About? (4)

The answer is here. More mystery graphs.

Human Rights Facts (44): Support for Intervention in Darfur

Below are some public opinion data which confirm the numbers I posted previously. It’s very encouraging to see that large majorities or pluralities in some African and Muslim countries support some form of international action against the ongoing atrocities in Darfur/Sudan. Both the ICC’s arrest warrant for Bashir and a possible humanitarian intervention are viewed positively, despite the reluctance of most of those countries’ governments.

(source)

More on Darfur.

The Most Absurd Human Rights Violations (7): People Convicted Based on “Testimony” by Police Dog

(source)

Police and prosecutors in Orlando were convicting people of violent crimes based almost exclusively on the “testimony” of a police dog whose handler claimed has extraordinary powers.

Last weekend, we looked at the case of Bill Dillon, the Brevard County resident imprisoned for 27 years before DNA tests set him free… At least two other men suffered the same fate — and another shared link: a dog.

Not just any dog. A wonder dog helped convict all three men: a German shepherd named Harass II, who wowed juries with his amazing ability to place suspects at the scenes of crimes.

Harass could supposedly do things no other dog could: tracking scents months later and even across water, according to his handler, John Preston.

So far, three people have been cleared after collectively spending more than 50 years in prison, all of whom were convicted primarily due to the dog’s alerts, despite other evidence exculpating them. Florida criminal justice activists say there may be as 60 more people wrongly convicted thanks to Preston and his dog.

Yet Florida officials don’t seem to care, and have no plans to proactively look for other people who may have been wrongly imprisoned.

More on the concept of a fair trial.

The Most Absurd Human Rights Violations (4): Punishment for Being Raped

photo by Salman Masood

(source)

Under the Hudood Ordinances introduced by the former Pakistani dictator Zia-ul-Haq in 1979, rape victims had to have four male witnesses to the crime – a ridiculous requirement. If they didn’t, they faced prosecution for adultery, a crime that potentially carried the penalty of death by stoning. This law has been repealed, but local custom still drags behind (source). And the law is an empty shell anyway. If a woman cannot prove she has been raped – how on earth can you prove this? -  she could still fall foul of the adultery laws and she may be tried by either civil or Sharia courts.

More on rape.

Human Rights Maps (56): Legalization of Interracial Marriage in the U.S.

Interracial marriage in the United States has been fully legal in all U.S. states since the 1967 Supreme Court decision ”Loving v Virginia”, a decision that deemed anti-miscegenation laws unconstitutional. Many states had already legalized interracial marriage at much earlier dates, or never had a ban. But not so in the South:

(source)

(source)

Today, around 7% of all married couples in the U.S. are interracial, up from 2% in 1970. More on interracial marriage, on anti-miscegenation laws worldwide, and on racism.

The Causes of Human Rights Violations (13): Rights Suffering Under the Law, The Problem of Legal Human Rights Violations

This post is about the law violating human rights. I understand that this is only one of many ways in which rights can be violated, and certainly not the most important one. Genocide, poverty, torture, war etc. are all major human rights violations, but only rarely if ever do they occur because a law instructs people to kill, maim or impoverish their fellow human beings. On the contrary, many human rights violations result from breaking the law, and the law has often been the last refuge for human rights.

So we have two different types of rights violations, illegal and legal violations.

1. Illegal violations

Illegal violations are acts that violate human rights and at the same time break laws that make these violations illegal. This type of rights violation always implies some kind of inefficiency in the national justice systems. These justice systems are supposed to prosecute illegal rights violations, but often fail to do so, for two possible reasons: inability or unwillingness. They may be grossly inefficient, or they may be corrupt and complicit with the rights violators. So illegal violations may be divided into two subtypes:

1.1. Illegal violations caused by government incompetence

These violations occur because of the government’s inability to stop them. An example would be robbery or murder.

1.2. Illegal violations caused by government complicity

These occur because of the governments unwillingness to stop them. The judicial and police systems are covering for the rights violators. An example could be torture in Guantanamo.

2. Legal violations

Legal violations, on the other hand, are rights violations that are condoned or imposed by the law and by the justice system. This type as well can be further divided into two subtypes:

2.1. Violations that are imposed by the law

Some examples: capital punishment, jim crow, some aspects of Islamic law, blasphemy laws, lèse majesté laws, homosexuality laws…

2.2. Violations that are not punished by the law

These are acts which are not illegal because the law remains silent on them, but which violate human rights. This type can be further divided. Violations are not punished by the law

• either because it is believed that these violations should not be considered a crime (the contrary act is then often believed to be a crime) (case 2.2.1.)
• or because it is difficult to determine the party responsible for the violations (case 2.2.2.).

Some examples of case 2.2.1.: in some countries there is no legal concept known as marital rape; other countries do not outlaw abortion (for those who agree that abortion is a human rights violation). Some examples of case 2.2.2.: poverty, famine…

One caveat, however. “Legal” in this setting means “legal according to national law”. One could justifiably claim that there is no such thing as legal human rights violations since international law makes all violations illegal and renders national laws condoning or imposing violations, null and void. However, this is theory. In practice, national legal systems continue to impose and enforce, sometimes quite effectively, laws which either condone or impose violations.

The Ethics of Human Rights (15): Justice After Genocide

(source)

A new political regime that is installed in a society that has recently suffered human rights violations on a cataclysmic scale, such as genocide or ethnic cleansing (Rwanda and Cambodia are examples), always faces the problem of justice. What to do with the crimes of the past? This is a problem because the crimes in question usually haven’t been committed by a few individuals can that be identified and tried, but by a large majority of the citizens. You can’t put the majority in jail.

The new regime runs the risk of falling into the trap of collective guilt. One particular ethnic group or one class of society is singled out as the perpetrator (e.g. Hutus in Rwanda, forgetting that many victims were Hutu), and those members of this “criminal group” who aren’t put on trial suffer from social stigma. Collective guilt is unjust, and – worse even – mirrors the practice of the genocidaires.

But there’s another trap as well. Mark Drumbl, for example, has coined the phrase “the myth of collective innocence”. By punishing a few perpetrators only, even if they are guilty and perhaps even the “brains” behind the genocide, the impression is given that the large masses didn’t participate, whereas the genocide was only possible because of mass participation. It’s also a well-known fact that selectivity in the application of justice erodes justice. It gives the impression of unfairness, prejudice, nepotism, double standards etc. Why me and not the other guy? Society as a whole may come to see the justice system as seriously flawed. Justice, after all, should be equal and blind.

On the other hand, selectivity is a fact in all justice systems, and in all types of crimes (in the U.K., for example, only 3 % of all crimes are prosecuted). And in the case of genocide, selectivity is perhaps even necessary. The new regime cannot afford to alienate a large part of society. There has to be some kind of national reconciliation. The demands of the victims and their claims of justice for the past, have to be balanced against the future needs of a stable, reconciled society.

Genocide offers a justification for this selectivity. During the “implementation” of genocide, individual culpability is sometimes eroded. In a genocidal situation, social pressures to participate in mass violence can be enormous. Contrary to violence in ordinary crimes, violence in a genocide becomes the norm, the moral thing to do, precisely because it is so widespread. Refusing to participate is morally abhorrent, deviant, and can expose an individual to extreme risk. And we see that individuals quickly internalize this new “morality” and start to act accordingly. (On a smaller scale, this is apparent in the phenomenon of littering. Once it starts to be seen as “normal” to litter somewhere, the littering will become normal behavior). The notion of voluntary participation in genocide becomes problematic.

This doesn’t absolve people from guilt, but it can be attenuating, and it can justify the prosecution of only a handful of planners and organizers. And this in turn can be helpful for national reconciliation. The others may be subject to a more restorative kind of justice, compared to the retributive kind imposed on the important few. Truth commissions can play an important part in this process.

More posts in this series are here.

The Causes of Human Rights Violations (12): The Scope of Criminal Law in Different Countries or Cultures, and Its Effect on Human Rights

Different countries and different cultures make different choices about the appropriate scope of criminal law. Some actions which are legal in one country are illegal in another.

The two tables below list a number of action types (certainly not all) and whether they are legal or illegal. This table can be used to classify countries or societies according to the degree of freedom that they grant their citizens. The legalization of some actions makes countries more free, the legalization of others less free. (And the same for the choice whether or not to criminalize certain actions). This table can therefore be used to distinguish between countries or societies that are more free or more ”liberal” than others which are more authoritarian or more ”illiberal”.

The distinction between countries can be made by attributing a certain score to each action and then making the sum. The scoring could be done like this: add a point when a country or society is best described by the right column, and subtract a point for the left column. Countries with high marks are then liberal, countries with low marks illiberal.

For example, if we would like to score the U.S., this country would be given one point for allowing gun ownership, making it a bit more “liberal” (I know this label doesn’t really fit U.S. politics, in which a favorable view of gun ownership is a rather more “conservative” than “liberal” position. But “liberal” here should be understood not in the context of U.S. politics but simply as meaning “more free”). However, the U.S. would lose a point because it has allowed torture. Done for every type of action, this scoring should then give an overall impression of the country, or of any other country.

View tables: types of societies, liberal and illiberal, types of societies liberal and illiberal 2.

I don’t intend to attach any moral significance to these terms, “liberal” and “illiberal”. One isn’t necessarily good or the other bad. More freedom isn’t always a good thing. The terms “liberal” and “illiberal” merely describe the degree of freedom in a country.

Now, the interesting thing from the point of view of human rights, is that liberal societies, in general (as can be seen from the tables) are more favorable to human rights than illiberal ones. So the table can be used to classify societies according to their respect for human rights (and then the distinction does take on a moral character). But this isn’t completely true, for two reasons:

• Some human rights issues, such as health or poverty, aren’t included in the table, because they aren’t relevant from the point of view of criminal law. But they can and should change the score: a society that scores as “illiberal” from the point of view of criminal law, can improve its score as a “human rights respecting country” when it offers its citizens good health care and income (but of course this doesn’t excuse the human rights violations resulting from its criminal law). Or vice versa.
• It’s debatable whether more freedom for certain actions results in more respect for human rights. One can think of pornography or abortion. So an extremely liberal society is perhaps not the best one from the point of view of human rights.

A correct distinction between more or less liberal countries should not only include the scope of criminal law, but also the severity of punishment when a crime is committed. Societies that have the same scope for criminal law as others, but use capital punishment, corporal punishment, mutilation, stoning or torture as methods of criminal punishment, should be classified as less liberal.

Readers can also use this table, not to score countries, but themselves. For example, I did it for myself using the scoring system proposed above, and this was the result (this image is unreadable because it is reduced in size to make it fit in this blogpost; click on the links to the tables above if you want to see the real size tables):

If you consider that the scoring system goes from -37 to +37, for respectively the most illiberal and the most liberal point of view, my score of +23 is quite liberal, but not extremely liberal.  Compared to the mist liberal position, I “lost” points because of my opposition to pornography, obscenity, gun ownership, holocaust denial and hate speech, and because of my favorable views on affirmative action and sweatshops.

More on criminal law here and here.

Separation of Powers and Human Rights

(source)

The theory of the separation of powers traditionally differentiates between three branches of power:

• the legislative power (parliament)
• the executive (the government, the administration and the police)
• and the judiciary.

Separation of powers means independence of powers with regard to each other. The three powers are separated and divided organizations of the state. No power can assume the competence or functions of another power or can interfere with another power’s business. A few examples:

• The executive should not vote laws (the so-called “government by decree”).
• The legislative power should not appoint or dismiss the government or the head of the executive (this should be a prerogative of the people).
• The judiciary should be able to work without political interference from the legislative power or from the executive, and should be able to judge cases in an independent and impartial way. The judge should not be an instrument of politics or a “political worker” who executes the decisions of the executive, as was the case in Soviet Russia for example. He is subject only to the law, and the law, contrary to an order by Comrade Stalin for example, cannot be used to influence verdicts because it is general and neutral.
• Judges should not interfere in legislation or politics (they enter the stage when the work of politics is already accomplished; they apply the law as it is voted by the legislative).

(source, by Dario Castillejos)

However, this is not the end of the story. Independence does not mean that a power can do as it likes without accountability. The independence is limited because one power can control, correct, rebuke, limit or stop another power if there is an abuse of power or a violation of rights.

Some interference is necessary. Separation does not mean isolation. Powers are separated precisely because then they can check each other. If all power is concentrated in the same person or institution, then this power cannot be checked. There is no higher power than the state and hence the state must control, limit and correct itself (the “international community” is still very weak). If power has to limit itself, then it has to be divided into different parts. There must be powers and counter-powers, checks and balances. Every power moderates the other powers because every power holds the reins to force the other powers in a certain direction. A citizen must be able to go to one power in order to claim redress or compensation for violations of rights by other powers. Power protects against power and power can contradict and correct power.

Violations of human rights by one part of the state must be corrected by another part, otherwise human rights remain words without reality. Judges can control the laws of the legislature and the actions of the executive. If they find that these laws or actions are incompatible with the human rights included in the Constitution or in an international treaty, then the judges can declare these laws to be invalid or these actions to be unlawful, even if these laws and actions are supported by a democratic majority (which is normally the case in a democracy).

The power of the legislative, the executive and the majority is limited. The judiciary makes sure that both the legislative power and the executive act according to the highest law of the land, which is, after all, also an expression of the will of the majority (at least in an ideal democracy, because an ideal democracy allows the citizens to vote on the Constitution and on international treaties). Human rights and the Constitution can be used against the legislator in order to counteract the tyranny of the majority (also known as democratic oppression). When judges do this, they engage in what is called “judicial review“. The legislator can be wrong and laws can be oppressive. The law is more than just the will of the legislator. A valid law has to conform to certain requirements at the level of content, independently of the will of the legislator. A law cannot be anything, otherwise the rule of law would be a meaningless concept.

I mentioned a moment ago that the judiciary should not interfere with politics or legislation. However, is judicial review of legislation not a part of legislation? Controlling and invalidating laws, overruling the legislative power by way of a veto-right, creating a certain coherence in legislation, making sure that ordinary laws conform to the higher law (the Constitution), is this not legislation? And is it not legislation enacted by a non-elected minority which imposes its will on the majority of the people as it is represented in the legislative power, and which takes its decisions outside of the public debate? Should not an ideal democracy reject judicial review? In other words: is it not impossible for an ideal democracy to protect the rights and freedoms of the minority?

These questions are based on a false hypothesis. When a judge controls the conformity of an ordinary law and a higher law, he does not engage in legislation. He or she only makes sure that the higher law is strictly applied and respected. And as the higher law is the supreme expression of the will of the people – in an ideal democracy, the people can vote the Constitution – a judge only makes sure that the will of the people is strictly executed. There is nothing undemocratic about this and it has nothing to do with legislation. A judge who is confronted with a law which contradicts the Constitution cannot apply this law because otherwise he or she would be acting in an unlawful manner. The higher law has priority over the lower law. A lower law has to conform to the higher law, otherwise it is invalid and non-existing, “null and void”. A judge can declare the illegality of a law and can destroy a law without engaging in legislation.

The judge remains subject to the law and is not above the law or above the legislator when he or she invalidates a law. The judge remains subject to the higher law. Judicial review does not imply that the judiciary is more important or more powerful than the legislative power or than the will of the people. It only implies that the higher law is more important than the lower law and the higher legislator is superior to the lower legislator. Judicial review does not imply an exaggerated or a predominant political or legislative role for the judiciary compared to the role of the legislative power, at least as long as we consider the framing of a Constitution to be part of the legislative power. A judge can never decide on fundamental social problems or political conflicts. He or she can only apply the law, first the higher law and then the lower law.

Human rights possess a threefold significance: they are themselves standards of behavior; they constitute criteria for assessing the lawfulness of other rules (since they override all other norms, which are null and void in case of conflict); [and] they embody “instructions and guidelines” … for the creation and development of other rules. Antonio Cassese.

Antonio Cassese

(source)

Individuals whose rights are violated can coerce the state – even though most of the time it is the other way around – but only on the condition that there is a separation of powers and that one power can be used against another.

However, this means that judges should not be predominantly in favor of one political party or one political philosophy, because otherwise they will review the laws from one and the same political perspective. If the judiciary is predominantly conservative, for example, then it will treat liberal laws in a very critical way and it will tend to systematically invalidate these laws because of their conservative interpretation of the Constitution.

Judicial control of the constitutionality of laws and government actions is only one example of a power limiting another. Here are some other examples:

• A judicial verdict applies the law and is therefore dependent on the law. A judge cannot decide what is contrary to the law, which means that the legislator de facto limits the actions of the judiciary.
• The executive is accountable to and is controlled by the legislative power. It has to give account of the way in which it has applied the laws. However, the legislative power cannot dismiss the government as a consequence of this control, at least as long as the government is directly elected, which is the case in an ideal democracy.
• A president often has a veto-right and can block certain laws voted by the legislative power. This is acceptable on the condition that the president is directly elected.

Limiting Free Speech (20): Flag Burning and Flag Desecration

(source)

Flag burning (or other types of desecration of national flags) is a form of speech. It may not be a very refined or profound expression of opinions or ideas, but it is an expression nevertheless. Flag burning expresses disgust and hatred for a certain country or a country’s government and policies. It’s typically a very emotional form of speech, devoid of rational argument and reduced to simplistic slogans, and most often used in a setting of mass protest.

Given that it is a form of speech, it should, a priori, enjoy the protection of the right to free speech. However, in certain exceptional circumstances there’s a rationale for prohibiting it. It is a form of hate speech, and the rules governing limitations of hate speech apply here as well. In a nutshell: hate speech can be prohibited when it incites violence.

Now, it’s not impossible to imagine cases where flag burning can incite violence (burning the flag of Israel in front of a surrounded Jewish enclave when a pogrom is imminent, for example), but I guess that most cases of flag burning are much less harmful. So a general law forbidding flag burning doesn’t seem justifiable. There have been several attempts in the U.S. Congress to vote for an Amendment to the U.S. Constitution to allow a ban on flag burning:

On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states. (source)

Much of this is of course political posturing of politicians trying to be the most patriotic. Given the rarity of flag burning in the U.S., it’s also a typical example of a solution in search of a problem.

Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. Richard Savage (source)

(source)

The fact that patriotic people are offended by flag burning isn’t a sufficient reason to ban it. (I’ve argued here against a right not to be offended).

Limiting Free Speech (18): Lèse Majesté

(source)

Lèse majesté (a French expression but originally from a Latin expression meaning “injury to the Majesty”) is a legal rule making it a crime to say or write things that offend or insult a king or queen, or violate his or her dignity.

Fortunately, this kind of limitation of freedom of speech has become extremely rare. Most countries have done away with the archaic institution of the monarchy and hence also their lèse majesté rules. Or they have relegated their monarchies to the domain of symbolism and celebrity. Absolute monarchies or monarchical dictatorships are the exception nowadays. Oppression has become a distinctly “republican” affair. (Some of the remaining absolute monarchies are Brunei, Qatar, the southern African Kingdom of Swaziland, and Saudi Arabia).

(source)

Most of the monarchies that continue to exist have no strict practice of limiting free speech on the grounds of lèse majesté. They may have some legal rules, but they aren’t applied rigorously. So, on a global level, it’s difficult to claim that lèse majesté is a big problem for freedom of speech. However, some monarchies do impose the rule and thereby violate the right to freedom of speech to a large extent. I’m thinking of course of Thailand. The law there states:

The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action. Whoever defames, insults or threatens the King, Queen or the Heir-apparent, shall be punished with imprisonment of three to 15 years. (source)

Moreover, a precise definition of defamation of or insult to the king is lacking, making the net very tight. As a result, the law has shown itself very useful for political vendettas. There have been numerous cases of censorship, self-censorship and imprisonment, often as a consequences of rather ridiculous faits divers:

Frenchman Lech Tomacz Kisielwicz refused to switch off a reading light on a Thai Airways flight he shared with two Thai princesses and was jailed under lèse majesté for two weeks after his flight landed in Bangkok. He was acquitted after apologizing to the King. (source)

But the consequences of many cases have been much more serious than the causes. Writers and academics have been jailed, thousands of internet sites are blocked, books and magazines such as The Economist have been banned etc. It’s not impossible that the site you’re reading now will suffer the same fate.

Thai law goes well beyond protection of the royal family. It has been used and abused to protect and justify an entire ruling elite, an autocratic and conservative social system, and even military coups.

Other monarchies are much more tolerant. It’s worth mentioning that some non-monarchies also have rules prohibiting insults to heads of states. In October 2006, a Polish man was arrested in Warsaw after expressing his dissatisfaction with the president and prime minister by farting loudly (see here).

Mr Bull farting at a poster of George III

(source)

Lèse majesté laws in one form or another, especially in countries where the beneficiaries of such protection are relatively powerful, is undemocratic. They can stifle large areas of political journalism and debate, and make it impossible to expose official wrongdoing and corruption.

Human Rights Maps (44c): Countries That Have Ratified the International Covenant on Economic, Social and Cultural Rights

(source, click on the image to enlarge)

The International Covenant on Economic, Social and Cultural Rights is, together with the International Covenant on Civil and Political Rights, the world’s main human rights treaty. Special about this treaty is that it includes so-called economic rights such as the right to a decent standard of living, the right to work, the right to a fair wage etc. Regular readers of this blog will know that we consider these rights to be very important (especially the right to a certain standard of living, i.e. the right not to suffer poverty).

Since it is a treaty, the Covenant imposes legal obligations on member states. More specifically, it forces them to work towards the implementation of these economic rights. As you can see from this map, a large majority of countries in the world have accepted and ratified this treaty (some have signed the treaty but have yet failed to ratify it), which means that they are bound by the rules that it contains. So-called “states-parties” have a legal obligation to respect the human rights mentioned in this treaty. The treaty (or ”covenant”) is, unlike the Universal Declaration which is its origin, a piece of law, and part of the international system of law.

Limiting Free Speech (16): Fighting Words

Fighting words are written or spoken words expressed to incite violence. This is related to the topic of hate speech, but it isn’t quite the same thing. Hate speech isn’t necessarily intended to incite violence (just simple hate in some cases).

In Chaplinsky v. New Hampshire (in 1942), the U.S. Supreme Court decided that “fighting words”, words that tend to incite an immediate breach of the peace, are among the

well-defined and narrowly limited classes of speech [which] the prevention and punishment of have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Speech that merely causes anger, offense, insult or outrage does not amount to fighting words. Fighting words must present an actual threat of immediate violence or must “reasonably incite the average person to retaliate.”

It’s not true that certain words inevitably provoke violent reactions by individuals. Rather, one should take into account the context in which the words were uttered, not merely the content of the words themselves.

Given the rules for limiting free speech described in this post, the case of fighting words is rather simple. Inciting violence leads to violations of individual rights to security and bodily integrity, and in many cases these rights should take precedence over the right to free speech. It seems difficult to accept that hurting someone is a lesser evil than limiting someone’s right to speak and threaten.

Human Rights Maps (44b): Countries That Have Ratified the International Covenant on Civil and Political Rights

(source, click on the image to enlarge)

The International Covenant on Civil and Political Rights is the world’s main human rights treaty. As you can see from this map, a large majority of countries in the world have accepted and ratified this treaty (some have signed the treaty but have yet failed to ratify it), which means that they are bound by the rules that it contains. So-called “states-parties” have a legal obligation to respect the human rights mentioned in this treaty. The treaty (or ”covenant”) is, unlike the Universal Declaration which is its origin, a piece of law, and part of the international system of law. See also this post on what is called the normative universality of human rights.

These are the countries that are not yet state-parties (in bold the countries that have signed up but failed to ratify):

• Antigua and Barbuda
• Bahamas
• Bhutan
• Brunei
• China
• Comoros
• Cuba
• Fiji
• Guinea-Bissau
• Kiribati
• Laos
• Malaysia
• Marshall Islands
• Micronesia
• Myanmar (Burma)
• Nauru
• Oman
• Pakistan
• Palau
• Qatar
• Saint Kitts and Nevis
• Saint Lucia
• São Tomé and Príncipe
• Saudi Arabia
• Singapore
• Solomon Islands
• Tonga
• United Arab Emirates
• Vatican City

Limiting Free Speech (15): Restricting Advertising

This is a relatively easy case, compared to the previous ones we investigated in this blog series. Advertising is a form of speech which should be protected by the right to free speech. But there are some relatively uncontroversial exceptions:

• lies in advertising
• certain types of advertising for kids
• advertising for harmful products
• and hidden persuaders (also called subliminal advertising using mostly hidden sexual images to attract attention and seduce possible buyers).

These are types of advertising that clearly cause harm. They take away people’s freedom of choice at an often very deep and unconscious level; they harm people’s health; or they mislead people and force them to buy stuff they really don’t want to buy (or shouldn’t buy in the case of children). The freedom to increase one’s profit doesn’t outweigh the benefits of limiting these kinds of advertising. And anyway, it’s a general rule that the freedom of one shouldn’t limit the freedom of another.

Often, in advertising, there’s a kind of objectification and dehumanization of women, akin to what happens in pornography. To the extent that this can be a reason to prohibit (certain kinds of) pornography (and limit freedom of speech), it can also be a reason to prohibit certain types of advertising.

And now the fun part. Some examples of subliminal advertising:

(source)

(source)

(source)

Limiting Free Speech (14): Religious Education in Public Schools

(source)

There can be nothing wrong with educating children about religion. And I say this as an agnostic. But religious education must include information about all the world’s main religions, and about atheism as well. And it also shouldn’t avoid mentioning some of the problems caused by religion. Children benefit from seeing all sides of the coin.

(source)

(source)

Even public schools, i.e. schools instituted, organized and funded by the government, should provide this kind of religious education. Banning religion from public schools is wrong, but not because it would be a limitation on the freedom of speech of religions, as some religious activists claim. It’s not because you’re not allowed to speak in a certain place that you’re not allowed to speak (freedom of speech does not include the right to say anything anywhere; if it would, then newspapers would be forced to print everything everyone asks them to print). Such a ban is wrong for another reason: it would be stupid and a disservice to children.

It would be politically and legally wrong to have public schools teach only one religion, or emphasize one religion. The separation of church and state does not allow agencies of the state – such as public schools – to be hijacked by a particular religion, even if it is the religion of the majority of citizens (I would even say, especially when it is).

If this were allowed, then a religion could then use its privileged position to compete unfairly with other religions, and the result would be the abolition of religious freedom. The choice of religion would then no longer be a free one. Children would be led to one religion. Rather than complete information on all religious options, necessary to make an educated choice between religions, children would have a one-sided view on religion.

(source)

For the benefit of their students, private schools are of course also advised to teach all religions. But since many of these private schools are religious schools, it is only fair to allow them to focus on their own religion. It would indeed be an unjustified encroachment on religious freedom if religions and churches were not allowed to organize their own system of education according to their own rules (even if it includes teaching that Darwin was wrong and that Dinosaurs and men walked the surface of the earth together – but evidently they wouldn’t do their pupils any favors).

As long as parents have a choice to send their children to such a religious school or to another, public school, then there is no problem. But this must be a real choice of course. If the public schools are of inferior quality, or difficult to reach, then there isn’t really a choice.

(source)

School prayer is quite another matter. Praying is not learning, and the demand of inclusiveness mentioned above does not appear to work in the case of prayer. Starting lessons with different prayers of different religions seems awkward. Hence, school prayer in public schools looks like the kind of hijack that is contrary to the separation of state and church.

More on education.

Limiting Free Speech (12): Obscenity

obscenity?

(source)

The words “obscenity” (from the Latin obscenus meaning “foul, repulsive, detestable”), “salaciousness” or “salacity”, are legal terms describing acts or cases of speech that are prohibited because they offend a society’s prevalent sexual morality. As such, these prohibitions are limitations of the freedom of speech and often include censorship of obscene material, punishment for obscene acts or distribution of obscene material etc. The question is whether such prohibitions are legitimate in light of the importance of the right to free speech.

What is or is not obscene differs from society to society, from individual to individual, and from time to time. What used to be considered obscene may today be banal. This makes it difficult to establish what is and is not obscene, and this difficulty has consequences for those wishing to make rules prohibiting obscenity.

Justice Potter Stewart of the Supreme Court of the United States famously stated:

I shall not today attempt further to define the kinds of material I understand to be embraced but I know it when I see it.

Justice Potter Stewart

(source)

The Supreme Court does use a somewhat more precise rule, called the “Miller test“, to establish if something is obscene and hence doesn’t merit protection under the First Amendment:

• whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,
• whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
• whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Most forms of obscenity aren’t speech: walking naked in a shopping mall, for instance, or performing sex acts in public toilets, aren’t acts intended to transfer information or opinions. Hence they cannot be protected by the right to free speech (whether or not these acts need to be protected at all, and how, is not the topic of this post).

Obscenity can, with some credibility, claim protection under freedom of speech when it is in the form of printed material (including publication on the internet), because then it is a form of speech. In many cases, obscenity in such a form can be equated to pornography (although not all pornography is obscene and not all obscenity is pornographic). In many jurisdictions, this kind of obscenity is also traditionally considered as a justified limit on freedom of speech. But is it really justified?

In a previous post in this series, I discussed pornography and the possibility to limit the freedom of speech of pornographers. I concluded that this possibility exists in certain cases, namely those cases of pornography that cause harm. For instance, child pornography, pornography in which violence or force is used against the participants in the pornographic material, pornography that is associated with human trafficking etc.

The rule should indeed be: does it harm anyone? Whether it appeals to the “prurient interest”, or whether it lacks “some artistic interest”, is essentially irrelevant. Does it cause harm in the sense of rights violations? Of course, this kind of harm isn’t always easy to establish. It is in the case of child pornography. But many feminists make a convincing case that pornography, even pornography depicting consenting adults and consumed by consenting adults, dehumanizes women, solidifies mentalities in which women are second class citizens, and glorifies violence against women.

However, depicting violence is not necessarily the same thing as incitement of violence. The latter causes harm, the former not necessarily (otherwise we would have to ban all detective stories).

Capital Punishment (10): The Gradual Abolition

I’ve argued here against the death penalty, so it’s good news to see that there’s a gradual, worldwide trend in favor of the abolition of capital punishment.Let’s first have a look at the U.S. The number of death sentences in the U.S. has dropped substantially over the last decade:

(source)

The number of executions has dropped as well:

• 98 in 1999
• 53 in 2006
• 42 in 2007.

(source)

Of course, the U.S. isn’t the most brutal in this respect:

(source)

In the U.S., public support for the death penalty is waning, especially when the people who are polled can choose the alternative of life imprisonment without parole:

(source)

(source)

(source)

When we look beyond the U.S. – which is indeed not the main culprit – we see that an increasing number of countries has abolished or limited the death penalty. At the end of 2008, almost 140 countries had either legally abolished capital punishment, or stopped applying the punishment in practice (abolitionist in practice means not having carried out an execution in over 10 years):

(source)

More on capital punishment.

Limiting Free Speech (11): The Right to Libel, Defame and Slander

tabloid libel

A libelous statement (or a defamatory or slanderous statement, which are more or less synonymous) is a lie, a statement that can be disproven by facts (and therefore not merely an opinion), which has a direct impact on someone’s reputation and image. This impact results from the public nature of the lie and the likelihood that some people believe the lie is in fact not a lie.

Most systems of law provide legal measures to deter libel and provide compensation (financial or otherwise) for libel once it has been committed.

A related but slightly different problem is the public revelation of private information which is not of public concern. This information is not necessarily false, but may be embarrassing and hence may have the same effect on someone’s reputation as libel has.

A lie as such should of course not be prohibited, and is not a sufficient reason to limit freedom of speech. Neither should the revelation of private information. Sometimes, privacy is less important than other values. Regular readers of this blog will remember the rules for limiting free speech set forth in the introductory post of this series. Some rights can harm other rights – in this case freedom of speech and privacy – in which case one of the rights has to be limited for the sake of the other right.

This choice between rights is never easy, but one rule could be the relative harm done by limiting one right or another. If the harm caused by free speech is simply embarrassment, a slightly deflated reputation, or a feeling of dishonor, then the case for limiting free speech isn’t very strong. However, many so-called libelous statements do not only cause embarrassment. People whose reputation is destroyed, either by lies or by the disclosure of irrelevant private information that is of no public concern, may lose their livelihood. So the right that is affected by libel is not only the right to privacy, but also the right to a certain minimum living standard, the right to work etc.

Human Rights Maps (40): Corporal Punishment a Crime?

(source, click on the image to enlarge)

(source)

(source)

More on corporal punishment.

Human Rights Maps (39): Marital Rape a Crime?

(source)

Pink indicates marital rape is criminalized. More on women’s rights. More on rape.

Political Graffiti (21): Government Transparency

(source)

More on government transparency in a democracy here. More on the rule of law here.

Human Rights and International Law (13): The International Criminal Court, What Does It Do & How Does It Do It?

(source)

[This post is by guest-writer Line Løvåsen].

In an earlier post, we gave an historical overview of the birth of the International Criminal Court. In the current one, we’ll examine how the ICC functions, what it is supposed to do, what it can’t do, and what it should do. More specifically, we focus on the problems it faces bringing justice to the world.

Structure of the ICC

The ICC has its seat in The Hague, as its sibling, the International Court of Justice which is more focused on inter-state disputes and not, as the ICC, on individual responsibility. The ICC consists of several organs:

• the Presidency
• the Judiciary
• an Appeals Division
• a Trial Division and a Pre-trial division
• the Prosecutor and the Registry.

In addition to this, an institution was added as an oversight tool by state that are parties to the treaty, the Assembly of States Parties.

18 highly qualified judges are elected by the Assembly of States Parties. There is only one from a particular nation at a time. Three of these judges form the Presidency, elected by the judges. The Presidency is responsible for the administration of the Court. The Appeals Division consists of the President and four judges, while the Trial Division and Pre-Trial-Division consist of six judges. The Prosecutor is an independent organ and elected by the Assembly of States Parties (Schabas 2004, pp.176-180). The Registry is responsible for the non-judicial features of the administration, and the Registrar is also elected by the judges.

The ICC vows to respect high morality, various kinds of experience, and nationality and gender balance. The Assembly of States Parties is also responsible for administrative matters and the implementation of amendments to the Rome Statute governing the ICC. Each state has one representative (ibid. 2004, pp.182-185).

Mission of the ICC

The Court’s fundamental missions are first, to impose an international legal order based on the rule of law. The rule of law means fixed laws, free from random judgments in individual cases and the instability of interpretation. Second, the Court wants to fight the culture of impunity (exemption from punishment) and build a global culture of accountability (responsibility).

Jurisdiction of the ICC

Article13 of the Rome Statute specifies when the Court may exercise its jurisdiction:

• after initiation of a case by the Prosecutor,
• by a State Party, or
• by the Security Council.

There was a huge amount of discussion during the Rome Conference where the ICC was prepared in order to reach agreement on the subject matter of the jurisdiction, or, in other words, on the definition of the core crimes within the jurisdiction of the Court. It was agreed that the ICC should be able to take cases linked to 4 types of crimes:

• the crime of genocide,
• crimes against humanity
• war crimes
• and the crime of international aggression.

The precise definition of the first 3 has been established. The crime of genocide can be committed in both war and peace time; it does not have to be widespread or be a systematic attack on the basis of an organized plan, but it is characterized by the intent-requirement. The Statute in article 30 puts weight on the mens rea principle (guilty mind); the accused had intentions behind the crime, were aware of the consequences, and hence are personally responsible (ibid. 2004, p.108). Criminal offense thus is constituted by two elements, actus reus (the physical act), and the mental element (McGoldrick et.al. 2004, p.263).

Crimes against humanity on the other hand do require a widespread systematic attack, but are like genocide applied both to war and peace time. War crimes again do not require a large-scale and planned attack, but cover both internal and external conflicts, and apply only to war.

The crime of aggression is not defined yet as it was included in the Statute at the last minute of the negotiations, and it thus was impossible to reach a consensus on the definition. Its quite paradoxical that it is at the same time called the “supreme crime”. Thus compared to the three other crimes, the Court will not have jurisdiction over this crime until an agreement is reached (Hebel-Robinson 2002, p.81). In the meantime, this crime falls under the jurisdiction of the UN Security Council.

The temporal jurisdiction, ratione temporis, gives the ICC only jurisdiction in cases that occurred after the Statute has entered into force. This ex post facto element (no retroactivity) has been criticized, as it implies that many offenders are able to get away with their crimes (Schabas 2004, pp.69-70). The territorial jurisdiction, ratione loci, gives the Court jurisdiction over crimes committed on the territory of States Parties (ibid. 2004, pp.78-80). Personal jurisdiction, ratione personae, gives the ICC jurisdiction over persons who are citizens of a State Party, or of a non State Party that has accepted the jurisdiction of the ICC. So the Court can exercise jurisdiction only in cases where the accused is a national of a State Party or the alleged crime took place on the territory of a State Party. The only exception to this rule is when a situation is referred to the Court by the United Nations Security Council.

Problems with the ICC

The ICC faced and still faces political obstacles from some reticent states, as well as inherent challenges. A compressed time frame for the finalization of the text before a rushed signing in Rome resulted in some technical errors and unclear definitions in the Statute. Both content and interpretation have been debated, and the complexity of the Statute in general has raised problems with interpretation. The fact that negotiations were held in six languages because of the 160 participating states at the Rome Conference did not make things easier. Neither did the fact that there were distinctive legal systems and values present, all of which had to be taken into account (Lee 2002, pp.11-14).

The ICC is also a political compromise because the purpose was to have a near-universal acceptance of the Court. Some of these compromises become apparent when examining the organizational and institutional structure of the ICC. In article 21 of the Rome Statute, you can find the legal sources of the ICC.

• At the top, there is the Statute itself;
• then there are the treaties (international law and the Geneva Conventions);
• and then there is domestic law.

The third part comes into play when the Court fails to resolve an issue when applying the first two sources. This means that the law can vary depending on the place of the crime or the nationality of the criminal, which is incompatible with the universality and equality principles (Schabas 2004, pp.90-92).

There is also the complementarity principle; jurisdiction falls to the ICC when states are unwilling or unable to investigate themselves. This seems to be unfair to developing countries with relatively weak judicial systems. It also means wasting valuable time. While one takes the time to determine that countries fail, evidence gets lost, criminals flee etc.

The jurisdiction of the Court is restricted to the four core crimes mentioned above (which for the moment means only three). As a result, many international crimes, like terrorism, drug trafficking, environmental damages etc. still are within national jurisdiction. But national jurisdiction is often imperfect, a fact which initiated the ICC in the first place.

Furthermore, the Court only has jurisdiction when either the state in which the crime was committed or the state of the accused is a party to the Statute or has accepted the jurisdiction of the Court. This again excludes many crimes. The Court may be able to exercise its jurisdiction on a non-party state if this state has committed one of the 4 core crimes in a State Party, but not if it commits these crimes in its own territory and against its own citizens. And, sadly, this happens very often.

There is the possibility that the Court acts when a case is referred to it by the Security Council, and then it has jurisdiction even if the states involved are not Parties, because the competence of the Security Council is premised under chapter VII of the UN Charter. This is another development from traditional international law were the principle of consent has dominated, but unfortunately this course of action will be very rare given the veto power of the 5 permanent members of the Security Council. Moreover, when the Prosecutor initiates a case, the Security Council has the right to take it out of his hands.

The U.S. insisted at the Rome conference that consent from both the territorial and national states involved should be required for a prosecution to take place. According to the Bush administration, the ICC broke with long-standing international legal prece­dent by asserting ICC jurisdiction over nationals and military personnel from states that are not party to the treaty. The U.S. wanted to limit the power of the Prosecutor and prevent cases against U.S. troops that have committed crimes during peace-keeping or peace-enforcement efforts. For the U.S., a case can be initiated only when both the State of the accused and the state of the territory where the crime has taken place have ratified the Statute (because then a U.S. veto could protect their personnel). However, the conference decided otherwise, which resulted in the U.S. rejecting the ICC. The U.S. is also busy “convincing” other states, which have accepted the Statute, to sign bilateral agreements in which they promise not to hand over U.S. citizens to the ICC (this is possible according to article 98 of the Rome Statute).

However, even given all these problems, the ICC deserves support. Only a constructive engagement with the ICC will make it possible to improve it.

References

Badinter, Robert (2002), International criminal justice: from darkness to light, in Cassese, Antonio – Gaeta, Paola – Jones, R.W.D John (eds.), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Boos, Adrian (2002), International Criminal Court: a perspective in Lee, Roy S. (2002), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Bring, Ove (2002), International criminal law in a historical perspective: comments and materials. Stockholm
Bring, Ove – Mahmoudi, Said (1998), Sverige och folkratten. Stockholm
Broomhall, Bruce (2003), International justice and the International Criminal Court: between sovereignty and the rule of law. Oxford
Cassese, Antonio (2002), From Nuremberg to Rome: From international military tribunals to the International Criminal Court, in Gaeta, Paola – Jones, R.W.D John (2002), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Hebel, Herman von – Robinson, Darryl (2002), Crimes within the jurisdiction of the Court, in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
McGoldrick, Dominic – Rowe, Peter – Donnelly, Eric (2004), The Permanent International Criminal Court: legal and policy issues. Oxford
Osterdahl, Inger (2004), The International Criminal Court and collective security in Amneus, Diana – Svanberg-Torpman, Katinka (eds.), Peace and security: current challenges in international law. Lund.
Palme, Christian (2000), Vägen mot rättvisa: de nya krigsförbrytartribunalerna (Världspolitikens dagsfrågor 2000:10). Stockholm
Rome Statute of the International Criminal Court in Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Sadat, Leila Nadya (2002),The International Criminal Court and the transformation of criminal law: justice for the new millennium. NewYork
Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Yee, Lionel (2002), The International Criminal Court and the Security Council: article 13(b) and 16 in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

Human Rights and International Law (12): The International Criminal Court, An Historical Perspective

(source)

[This post is by guest-writer Line Løvåsen].

We’ve mentioned before on this blog that national systems of criminal justice are often insufficient and ineffective, and that an international criminal justice system is an important tool for the protection of human rights. It can help to combat impunity, to build a global culture of accountability, to achieve justice for victims and to heal and reconcile a society torn apart by oppression, injustice and dictatorship. A global culture of accountability can also prevent future atrocities.

Some claim that the International Criminal Court (henceforth ICC) is THE international institution capable of achieving this. Others say that it is not, that it is totally undemocratic and that it creates more problems than it solves. For example, a criminal accusation against a sitting head of state may force this person to cling to power, and may therefore counter efforts to negotiate his exit.

So, should the ICC be supported and encouraged to handle an increasing number of cases, or are its critics right and should it be reformed or even abolished? If it should continue, what changes are required to strengthen it? We’ll look at this in a future post in this series. First, we’ll give an historical perspective of the ICC and its genesis.

Beginning of the 20th century

Although there were suggestions of an international criminal court earlier, the birth of the idea of the ICC can be traced back to two international peace conferences held in The Hague in 1899 and 1907. These conferences witnessed the first steps towards a necessary precondition for the court: limitations on the sovereignty of states. They were held because of a worrying increase in military hardware during the previous years. Thirteen treaties or conventions were the result, including Laws and Customs of War on Land and the legal basis of Laws of Humanity. These were the first formal statements of the laws of war and war crimes in the nascent body of international law.

However, the conferences proved unsuccessful when the First World War broke out. This led to necessary changes in the conventions and some new treaties, which together became known as international humanitarian law, also known

as the laws of war, the laws and customs of war or the law of armed conflict, i.e. the legal corpus comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. (source)

To jus in bello (law of war) was added jus ad bellum, rules about when it is lawful to start a war. The crime of starting an unjust war was added to the category of war crimes.

Regulating warfare obviously implies limitations on sovereignty. Violations of treaties bring into play a state’s responsibility and liability (if the state has consented to the treaties). But what about individual responsibility? An international criminal tribunal for the prosecution of individuals responsible for war crimes was proposed from several corners several times after the war, but big obstacles were present. The first concerned national sovereignty and the right to be judged under domestic law, and the international prosecution of individuals mismatched with the fact that international law was at that time still seen as an affair between states. Second, international criminal law was still embryonic as positive law and therefore there were no clear rules to judge individuals. Third, it was a widely shared opinion that such a court would not be able to prevent war. On the contrary, the court would supposedly make peace much harder to achieve because it would start a process of recrimination and harm post-war reconciliation (Sadat 2002, pp.22-26).

The embodiment of the ICC in Nuremberg

Following the brutality caused by fascism before and during the Second World War, the idea of an international criminal court was taken up again. The belief that criminal justice stands in the way of peace and reconciliation was replaced by the belief that there can be no lasting peace without justice. After WW2, the Allies were willing to let the new German government prosecute the war criminals. But as this turned out to be less than effective, the Allies created the ad hoc military tribunals in Nuremberg and Tokyo (Palme 2000, p.3).

The war trials held there were often called political trials, which meant that the trial was an indictment of the political project of the accused, in this case nationalism and racism (the same logic was behind the tribunals for former Yugoslavia and Rwanda). It is of course perfectly justified to include in such trials the political system and ideology which made the crimes possible, but as a result the trials in Nuremberg and Tokyo were criticized for being victor’s justice disguised as a universal legal procedure (McGoldrick et.al. 2004, pp.49-50). This criticism was substantiated by the fact that only crimes on the losers’ side were tried, and that the crimes were defined after the facts (Palme 2000, p.4).

Whatever the merits of this criticism, the tribunal in Nuremberg ended up making international law, setting guidelines for future trials and treaties, and in a sense was the first historical embodiment of the current ICC. It was the U.S. that convinced the Allies to have the tribunal, rather than just execute the criminals as for example the British had wanted. The tribunal overcame the earlier obstacle of sovereignty, and made the shift from state responsibility to individual responsibility and from national to international responsibility. The crimes prosecuted at the tribunal were later to become three of the four crimes in the treaty of Rome, the treaty creating the ICC:

• genocide
• crimes against humanity and
• war crimes.

The tribunals for former Yugoslavia and Rwanda, and the work of the International Law Commission (ILC)

After the Nuremberg trials, there was talk about a permanent court. Several problems with ad hoc tribunals had come to light. The time needed to establish such an ad hoc tribunal could result in evidence and lives being lost; hasty recruitment led to problems with staff competence affecting the rights of the indicted (Sadat 2002, pp.31,32). A permanent court could silence the criticism of victor’s justice, since it will not be the responsibility of the victors to set up a tribunal.

However, the journey towards a permanent court would take another fifty years from then. In 1948, the UN mandated the International Law Commission (ILC) to codify international crimes and prepare a draft statute for a permanent international criminal court. But because of the sharp political division in the Cold War world, which also led to a divided UN, the work of the ILC stagnated.

In 1989, the work took on some more momentum, but the end of the Cold War created other problems. It led to the resurgence of older conflicts, as the old world order with the “policemen” of the East and West had disappeared. As a result, the world saw internal conflicts and injustices and atrocities reminiscent of World War 2, especially in Yugoslavia and Rwanda.

Again the international community acted to punish the violations of international humanitarian law (Cassese 2002, pp.9-11), and established the International Criminal Tribunal of former Yugoslavia (set up in 1993 in the Hague) and the International Criminal Tribunal of Rwanda (set up in 1994 in Tanzania). These ad hoc tribunals were not military tribunals like the post WW2 tribunals, but were set up by Security Council Resolutions. While this avoided the charge of victor’s justice, the impossibility to judge persons in absentia caused problems because many of the leaders could not be brought to trial. They were in hiding abroad, hiding in and protected by their own country, or still part of the government and therefore unlikely to be extradited. The tribunal for Yugoslavia did not get any help from the government of former Yugoslavia. Its territory wasn’t under occupation so the tribunal did not have any control over the indicted; many therefore disappeared and resurfaced years later with a long beard (Bring 2002, p.31).

Karadzic

(source)

And it was also for other reasons a difficult process. Unlike in post-war Germany, there was no documented evidence. Neither was it a simple war between states so it took time to convince people that this was an international issue. As the Dayton process was going on, the accused managed to get immunity, and the tribunal was made to look like a potential disturber of the peace process.

In Rwanda in 1994, approximately 800.000 Tutsis were killed in four months by their rival tribe of Hutus. This led to the creation of a tribunal in Arusha, Tanzania, in 1994. This tribunal also suffered some setbacks, but together with the Yugoslavia tribunal it succeeded in convincing world public opinion and many governments that a permanent international criminal court, able to respond quickly and efficiently to gross violations of human rights anywhere and any time, is necessary.

The ILC continued its treaty-making process, and a draft statute was presented to the General Assembly in 1994. 50 years after the work of the ILC began, the final statute was adopted at the Rome Conference on July 17, 1998. 120 countries voted for, 7 against and 21 abstained (Cassese et.al. 2002, pp.14-17). It entered into force after 60 states had ratified it on July 1, 2002 (McGoldrick et.al. 2004, p.43). Here’s the current level of adoption (as you can see, some of the world’s largest countries are still out; we’ll return to the reasons for this in a later post):

(source)

References

Badinter, Robert (2002), International criminal justice: from darkness to light, in Cassese, Antonio – Gaeta, Paola – Jones, R.W.D John (eds.), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Boos, Adrian (2002), International Criminal Court: a perspective in Lee, Roy S. (2002), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Bring, Ove (2002), International criminal law in a historical perspective: comments and materials. Stockholm
Bring, Ove – Mahmoudi, Said (1998), Sverige och folkratten. Stockholm
Broomhall, Bruce (2003), International justice and the International Criminal Court: between sovereignty and the rule of law. Oxford
Cassese, Antonio (2002), From Nuremberg to Rome: From international military tribunals to the International Criminal Court, in Gaeta, Paola – Jones, R.W.D John (2002), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford
Hebel, Herman von – Robinson, Darryl (2002), Crimes within the jurisdiction of the Court, in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague
McGoldrick, Dominic – Rowe, Peter – Donnelly, Eric (2004), The Permanent International Criminal Court: legal and policy issues. Oxford
Osterdahl, Inger (2004), The International Criminal Court and collective security in Amneus, Diana – Svanberg-Torpman, Katinka (eds.), Peace and security: current challenges in international law. Lund
Palme, Christian (2000), Vägen mot rättvisa: de nya krigsförbrytartribunalerna (Världspolitikens dagsfrågor 2000:10). Stockholm
Rome Statute of the International Criminal Court in Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Sadat, Leila Nadya (2002),The International Criminal Court and the transformation of criminal law: justice for the new millennium. NewYork
Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London
Yee, Lionel (2002), The International Criminal Court and the Security Council: article 13(b) and 16 in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

Racism (5): Interracial Marriage

The degree of interracial marriage (or miscegenation) in a society is a good indicator of the degree of racial bias and racism in this society. A strong increase in the number of such marriages, combined with the repeal of laws banning them, a decrease in the number of honor killings of women having a relationship with a man from another race, and a gradual disappearance of talk about “the purity of the race” and such, are all signs of the demise of racism. In the U.S., the Supreme Court ruling in Loving v. Virginia in 1967 struck down the legal bans on interracial marriages that persisted in some states in the South.

Here are 2 graphs showing the increase in the number of people approving interracial marriage and dating in the U.S.:

(source)

And this graph shows the evolution of the number of interracial marriages:

(source)

According to some, the current dispute over gay marriage is of the same type as the now settled dispute on interracial marriage (settled in the West at least), and will know the same fate. Let’s hope so.

More on racial bias here, here and here.

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

(source)

(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 (10): Why Do Human Rights Need International Law?

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

Human rights law has globalized during the last decades. And it has done so in two ways:

• human rights have become part of most national constitutions
• and have been enshrined in widely accepted international treaties.

In this post, I will look at the relative usefulness of these two movements. The conclusion will be that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative for human rights protection.

Originally an invention of the French and American revolutions in the eighteenth century, human rights have now become part of a global legal consensus. Although there are many violations of human rights and some philosophical, ideological, cultural, or religious objections to some human rights, the fact is that these rights are part of internationally recognized legal documents (mostly treaties) accepted by the overwhelming majorities of countries. At the same time, they are included in nearly all municipal legal systems (mostly in constitutions). Human rights are the law of mankind, even though they are widely violated. They have been enshrined in the law because they need the law to be adequately protected. See here for the argument behind this statement.

Why do human rights need international law? Isn’t national law enough? These questions may seem strange and perhaps even somewhat useless. Is not the immense effort that has been invested in international human rights law during the last fifty or sixty years proof enough of its utility? I’m not convinced because there is a strong argument in favor of the assertion that the protection of human rights should be first and foremost a matter of national law and national judiciaries.

International law is far removed from ordinary citizens, and if they want to complain about human rights violations they will most likely want to use their national law and their national judiciary. Their own judiciary is closer and hence more accessible and more able to understand and punish. The first responsibility of the international community, therefore, is not regulation or the administration of justice, but assisting countries to reform their national laws and judiciaries in order to make them more compatible with human rights.

However, what if this fails? National law and national judiciaries do not always effectively protect human rights, either because of the absence of adequate national laws or because of the ineffective protection and enforcement of national laws by judiciaries and/or executive powers. And outside assistance and pressure do not always succeed in solving this kind of problem. So, if there is international law protecting human rights, this law can step in when national law fails. Local judges can invoke international law at the expense of inadequate national law. And if not the national law but the national judges are inadequate, international human rights law also provides global mechanisms and institutions allowing citizens to complain about their state’s conduct.

Imagine that such institutions would not exist. That would mean that citizens could only complain to a national organ, an organ of their own state, an organ which may be ineffective, corrupt, incompetent, or perhaps even implicated in the rights violation. And even if these national organs are effective, they are quite useless if there are no international rules for them to apply in place of inadequate national ones. So there is a strong case in favor of international human rights law combined with international monitoring of national human rights situations, and with international complaints institutions to which citizens of a country can turn in order to denounce rights violations by their country.

Ideally, international human rights law and monitoring are unnecessary, and even undesirable, because human rights protection is best carried out on a national level by a state that can correct itself. But this implies the existence of an ideal state with a well-functioning national division of powers, a national “trias politica” in which one power can control and correct the mistakes (e.g., rights violations) of another. As long as not all states are ideal states some national judiciaries need the assistance of international law when their national human rights laws are insufficient or nonexistent, and some citizens need the assistance of international monitoring and enforcement institutions when their national division of powers is insufficient or nonexistent.

As long as we are some distance from Utopia, international law and international monitoring and enforcement institutions are necessary for the universal protection of human rights and should complement national rules and institutions. Countries should be encouraged or, if necessary, pressured to accept international human rights treaties so that citizens can invoke international laws in the absence of national ones. International human rights law traditionally includes the right to monitor and to complain about human rights violations internationally, and this means, in theory at least, that individuals or groups do not have to trust their own state to correct itself and to punish its own crimes. They can involve international monitoring and complaints institutions to further their cause when their national judges are incompetent, unwilling, or unable to implement national rules. Countries should therefore also be encouraged to accept the authority of such treaty institutions wherever this acceptance is voluntary.

Furthermore, the existence of international law makes it easier to reform national law. An international system of law makes it impossible for states to take the law into their own hands and to decide autonomously what is and what is not part of their law. International law is traditionally superior to national law and it can force national law to be compatible with it. It is therefore an additional means to ensure that human rights are part of the law everywhere. By improving national law, international law makes national protection mechanisms more effective. And when it is not the national law but the national protection mechanism and institutions which are defective, international law replaces these mechanisms with global ones, or at least tries to do so (the best global complaints and enforcement procedures are still less effective than the best national judiciaries).

The individual right to denounce violations before an international judicial or quasi-judicial institution gradually took root after World War II. Today, the treatment of citizens by their state is no longer the exclusive competence of the state in question. The days are gone when states could treat their citizens as they liked. Individuals now have a right to speak in the international community and they are no longer confined to national law. They have international law to help them and international stages to voice their protest. International organizations in turn have a right to poke their nose into national affairs and in some cases even to enforce respect for human rights.

This means that citizens are no longer at the mercy of their states and that they can look for outside help if their state does not respect their rights, does not control and correct itself, does not provide mechanisms to enforce their rights (such as laws and the division of powers), or does not make sure that these mechanisms function adequately in all cases.

Most violations of human rights are the consequence of state actions or of actions by representatives of the state. Unless there is a highly effective division of powers, it is unlikely that a state will prosecute itself or its representatives, and it is necessary to have international protection. But national protection within a highly effective system of division of powers must be the first choice. Ideally, national protection is close to the people, easily accessible, legitimate, acceptable, and knowledgeable of local circumstances. It is also close to the perpetrators, which is why effective punishment is more likely than in the case of protection by another country or by an international institution, which may even fail to see the perpetrators, let alone punish them.

National protection is the best option, but also the most difficult one. The perpetrator is often the state or its representatives, which is why national protection can only function within a highly effective system of division of powers. Unfortunately, but not accidentally, most of the more serious violations of rights take place in those states that do not have such a system. National protection can only protect us against relatively minor violations because it can only function in a country with a tradition of separated powers, rule of law, etc.; in a country, in other words, that is unlikely to suffer serious violations of human rights. But still, it is a model that should be used as a universal ideal, even or especially in those countries where it is as yet far from reality. In the meantime, international jurisdiction takes the place of the ineffective national jurisdiction.

The Compatibility of Freedom and Equality (3): Freedom, Poverty and Public Life

In the previous two post in this series, I looked at the contradictions between freedom and equality, and at one way in which to bridge these contradictions. In particular, I examined the way in which limits on freedom can equalize freedom.

Freedom and poverty

Is the problem of freedom and equality solved by limiting freedom, providing security and equalizing freedom? Not quite. I can see at least three problems remaining. The first one is poverty. Poor people can’t do what they want and the laws which protect their physical security against the free actions of others will not help them. Their situation is not primarily caused by the limitations imposed on them by the free actions of others. And the provision of social security is much more controversial than the provision of physical security, which is bizarre given that both kinds of security have the same purpose, namely the equalization of freedom in the sense of the ability to do as you want.

We see here that the state, by intervening and reducing poverty, can promote freedom. People whose basic needs are met have a whole new world of choices and opportunities opened up to them and can move on to more complicated needs. Freedom from (in this case want) creates freedom to.

Freedom and public life

(source)

A second problem with limited freedom is revealed by the bigot. Take the example of the bigot who isn’t poor but doesn’t want anything else in life than watching sport, drinking beer and shouting to his wife. He can do as he wants, but is he free? Here we see that it may be necessary to redefine freedom and not only to limit it. Freedom means not only the ability to do what you choose, but also, and in the first place, the fact of having significant choices, the ability to expand the options you can choose from, the ability to make an educated choice between examined options and to choose the options which are best for yourself and for the people around you. In other words, freedom is the ability to choose the options which make ourselves better persons and allow us and our fellow-humans to develop.

Now, how do you widen the available choices, and check if what you want is really what you want? Only if all possible options and choices are flooded with the light of publicity and education. When you see which options are available, when you hear people discussing the merits of different options and objects of volition, only then can you make an educated choice.

Freedom and human rights

This publicity, and hence freedom as the possibility to develop your self, requires a legal system. Legally protected human rights for example open up the world of culture, art, science, history, education, etc. They open up the options, show the merits of all options and hence can improve your volition. Constraining rules are also enabling rules. By limiting certain kinds of behavior they make other behavior possible, for example public discussion of objects of volition. Only in a public space protected by legal rights, where everybody is equal and where everybody can speak and listen in an equal way, can we examine our opinions and options and can we self develop. So we see that freedom needs equality in the sense of the equal participation in public life.

The law is necessary for freedom because if there is no external control, then rights will be violated, security rights but also rights which protect the public space in which choices can appear. Some people will be victims of others and will not be free, not in any sense of the word. They cannot do as they like and they have no public life in which to determine what they like. And we can all be victims in certain circumstances. Laws and obedience are not just obstacles or impediments, limits on our freedom or elements of oppression. They are prerequisites for public life and therefore prerequisites for freedom as well because freedom needs public life.

Laws do not only limit the actions of people; they also link the actions of people because they create a public space. And these links make freedom possible. Laws are rules for public life and should not disappear. The state is a mechanism to coerce people, but this is not necessarily negative. On the contrary, coercion creates possibilities. The state creates, by way of coercion, the prerequisites for public life — such as security and human rights — and therefore creates the possibility of freedom.

Check out this post for the rest of the argument.

More on freedom.

The Compatibility of Freedom and Equality (2): Limited Freedom

(source)

What is freedom? The ability to do as you like

In the previous post in this series, I described the ways in which freedom and equality can be incompatible. I also mentioned that the reason for this opposition has something to do with the way in which we normally define freedom. In the current post, I want juxtapose this standard definition with another one.

Traditionally, freedom is believed to be the absence of coercion and the ability to do as you want. Hobbes gave one of the canonical descriptions:

By LIBERTY, is understood, according to the proper signification of the word, the absence of externall Impediments: which Impediments, may oft take away part of a mans power to do what hee would.

Thomas Hobbes

(source)

This is a negative definition of freedom because it focuses on the absence of impediments, constraints or limits on actions (limits imposed by other human beings, by the state, by nature or perhaps even by our own passions).

Is this kind of freedom possible? And is it acceptable? It will definitely be a very unequal freedom. If everybody can do as he or she likes, then we create offenders and victims rather than free citizens. Victims obviously cannot do as they like. And we can all become victims. Not even the strongest among us can do as he likes, because he has to sleep now and again and we are weak when we sleep. Unlimited and lawless freedom as in the definition of Hobbes therefore cannot exist, or only in a very precarious fashion. And it should not exist because if it did, most people’s freedom, human rights and other important values such as security would suffer. Hobbes clearly understood this.

What is freedom? The ability to do as you like, within limits

That is why this absolute negative freedom has to be limited. Freedom is always freedom in the state and freedom within the limits of the rule of law. Freedom can only exist together with obedience because only a state with its rules and laws can create equal and durable freedom for all. Obedience to rules opens up a space in which people can be free without fear of insecurity, coercion, domination, intolerance etc. Freedom is, therefore, not incompatible with rules, obedience and coercion.

Strictly speaking, none of this invalidates the definition of freedom as the ability to do as you like without impediments. One can say that the state merely limits our freedom defined in this way, in order to make it safer, more secure and more lasting. So we are still speaking about the same kind of freedom, but now it’s limited.

Much of social contract theory – of which Hobbes is an example – posits a kind of natural, unlimited freedom, a part of which people give up when entering into a contract with a state. And instead of saying that they give up a part of their freedom or their ability to do as they like in order to gain security, one could say that they give up a part of their freedom to make the remainder of their freedom more secure. That’s the same thing. They choose not to do certain things – e.g. break the law – in order to have more freedom to do the other things they want.

According to this definition of freedom, all coercion is bad but some kind of coercion is necessary. If people were always friendly to each other, the state would not be necessary and people would not have to accept a limitation of their freedom. State coercion in the form of laws limits freedom because it forces people to act in a way that is contrary to their wishes. Yet coercion can actually promote freedom. Coercing one person and thus limiting his or her freedom can promote the freedom of other persons. And since we can all be these “other persons”, coercion promotes the freedom of all. Coercion in fact equalizes freedom. It makes it impossible that the freedom of one harms the freedom of another. So it already becomes apparent how freedom and equality are intertwined.

Limiting the limits

However, because of the importance of freedom as the ability to do as you like, the proponents of limited negative freedom want to keep the area of the law and the state as small as possible. Libertarians and conservatives generally believe that the only way in which the state can promote freedom is by guaranteeing the physical security of the weak. The state should only protect the weak against the strong. In this way, it makes it possible for the weak to do as they want. It puts the freedom of the weak on the same and equal level as the freedom of the strong who can do what they want even without protection.

For the rest, they say, the state should not do anything and should keep itself as inconspicuous as possible. It should create an area which is free from state coercion and in which people can do as they like. In a certain sense, this freedom is a stateless freedom even though the state must act to protect it. The area of non-interference must be as large as possible in order to allow freedom to become as comprehensive as possible. Freedom and politics can only go together because and insofar as politics guarantees freedom from politics.

Contrary to anarchists, libertarians and conservatives believe — correctly I think — that the area of freedom or non-interference cannot be unlimited because this would result in insecurity, chaos and war. But in a sense they all believe in unlimited freedom. For anarchists it’s an ideal for the future, for libertarians and conservatives it’s something which belongs to a perhaps mythical past (before the time of the “contract”) and which can only be desirable in the unlikely event that human beings learn to behave and to respect each others security.

In the next post of this series, I will argue that this limited freedom, although obviously preferable to unlimited freedom, doesn’t solve all problems. It does equalize freedom and therefore renders freedom and equality more compatible, but libertarians and conservatives only see what the freedom of others can do to freedom, and not what poverty and bigotry can do. Moreover, their separation of politics and freedom is problematic.

Check out this post for the rest of the argument.

More on freedom.

Human Rights Maps (24): Abortion Laws in the World

Here’s another version (click on the images to enlarge):

And yet another version:

(source, click image to enlarge)

An interactive map is here. More on abortion here.

Human Rights Maps (15): Homosexuality Laws

(source, click on the image to enlarge)

This is an updated version:

(source, legal – male to male relationships: 118 countries; legal – female to female relationships: 145 countries; illegal – male to male relationships: 80 countries; illegal – female to female relationships: 46 countries; death penalty: 8 countries)

India legalized homosexuality in 2009.

(source)

Here’s an overview by region:

(source, click image to enlarge)

More on gay rights.

Related Articles

• Breaking the Chains of Anti-Gay Fervor in Uganda (gayrights.change.org)
• Iranian teen sentenced to death under anti gay legislation (politics.ie)
• Harsh Laws Against Homosexuality Fuel HIV in Asia (gayrights.change.org)
• Pastor decries “misrepresentation” of “kill the gays” bill (salon.com)

Human Rights Maps (4): Sharia Law

These are the countries which apply, to some degree, Sharia law:

(source, click on the image to enlarge)

More on sharia law.

The Shrinking of Development Space in the Global Knowledge Economy: The Era of Intellectual Property Rights (4)

[This post is by guest-writer Line Løvåsen. Please first read the previous posts in this series: part 1, part 2, part 3].

(source)

This post is by guest-writer Line Løvåsen.

Impacts of the IPR regime

I begin with mentioning some socio-economic impacts of the Intellectual Property Rights regime (IPR’s). Access to basic needs such as medicines and food have for many indigenous peoples become difficult. People are forced to buy food from the international market, but have difficulties to pay for it. Because of liberalization, exports aren’t profitable and imports costs more. Economic opportunities for everyday survival thus are stolen. What have been the means of production for them, have become patented commodities.

Posey has in his text summarized the problems with IPR’s:

• They undermine free exchange of commonly held resources like indigenous knowledge (IK), cultural and genetic materials.
• They only benefit innovative persons and global corporations, not collective entities.
• IK becomes unprotectable because it is considered to be in the public domain.
• They do not accommodate non-Western systems of ownership.
• They serve to stimulate commercialization and distribution, the opposite of indigenous concerns.
• They recognize only market economic values.
• They are subject to manipulation by economic interests that exercise political power.
• They are expensive and time-consuming.
• The intellectual law is constructed around the notion of the innovator as an individual; people of collective communities who do not fit this model have no protection.

The system of IPR’s covers a double theft; it allows theft of knowledge, and allows patents on stolen knowledge. And, global corporations not only commit theft but also destroy agricultural systems with their massive industry. This situation has led to huge debts among poor people, especially in countries like India where 75% of the people make their livelihood on agriculture. Industrial agriculture leads to impoverishment, but is hidden behind a myth that it is “necessary to reduce hunger” and also that it saves resources. Farmers are robbed from the freedom to choose what to grow, and consumers from the freedom to choose what to eat.

The destruction of agricultural systems brings us to the environmental impacts of IPR’s. The environmental impacts of genetic engineering are many. The hybridization of seeds (in addition to forcing farmers back to seed breeders every year and stealing nature’s regenerative powers) requires more pesticides. Agrichemicals are necessary on sterile seeds as they are resistant to weeds, and so they use herbicides which kill all plants (agrichemicals like these are also mirrored in Western medicines, like antibiotics). Also, parasites used in moving genes are polluting. In addition to chemical pollution, genetically engineered organisms (GEO’s) are both resistant to population regulation factors, pass transgenes to related species and change the nature of the predator-prey relationship, and results in so-called biological pollution.

Some development impacts. In a comment to the Patent Agenda of WIPO, Médecins Sans Frontiéres (MFS) said – on the basis of their experience in the field – that the current IPR regime is undermining research and development for drugs and that its heightening of prices is making drugs unaffordable for poor people. Also, many diseases are not being researched, as they mainly affect people who cannot afford their drugs. Protecting intellectual property should not be a goal in itself. Keeping citizens alive is more important than encouraging them to make inventions.

This leads us to ethical impacts. Life has become instrumental rather than intrinsically valued. There are no barriers for how humans or animals are treated. Pigs with human growth hormone have a body weight that is more than its legs can carry. The behavior and health of animals change. Their capacity to heal and repair breaks down, and they get addicted to inputs. Interestingly, what happens in nature happens in society. Globalization is not cross-cultural integration as claimed, but the imposition of one culture on all. When imposing homogenization on social systems, it results in disintegration and violence. This must be enough evidence to show that monocultures do not work out.

I have shown how “natural” power structures threatening people’s lives are dominating the third wave of globalization. Last I want to see if, aside from the morally wrongfulness of the IPR’s, there are any written laws sinking its legality.

How legal is the political?

TRIPS is not the result of democratic negotiations, though democratic values are supposed to be one of the core values of Western culture. Rather it was shaped by the interests of transnational companies (TNC’s) from the US, Japan, and Europe. Indigenous peoples did not have any say in the negotiations which led to the agreement, even though this agreement influences them a lot. Through TRIPS they are forced to accept patents on innovations.

But the article 27:1 of TRIPS mentioned earlier, states that patents shall have access in areas of technique, but not all innovations are technique; they may be written sources, and according to several treaties are therefore exempt from patents. But praxis has developed that innovations can be patented on the grounds of their further technical effects. Indigenous organizations have called for amending TRIPS, but not surprisingly they talk to deaf ears.

Indigenous peoples have a full right to complain also according to several treaties that are worth mentioning. The Convention of Biological Diversity (CBD) from 1992 is, with its 188 ratifications, the broadest supported global legally binding treaty. It promotes sustainable development and the fair and equal sharing of the benefits from the use of genetic resources. Article 8(j) of the CBD states that governments shall respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities in biodiversity conservation and encourage equal sharing of benefits arising from this. Its implementation, however, is hampered by the patent monopolies and private rights of the TRIPS agreement. The CBD is a bit ironic in that it gives governments the sovereignty over indigenous resources and states are also the ones signing the agreement, not indigenous groups.

The WIPO Declaration is meant to make real those rights found in the Universal Declaration of Human Rights. This is not evident. According to articles 3 and 25, everyone has the right to share in scientific advancement and its benefits and have access to essential medicines, but as shown, strong patent protection on medicines, food and other basic goods compromise human rights commitments. Yet there has been little assessment of the human rights implications of IPR’s. On the basis of their field experience, MSF highlight the importance of addressing the current problems of public health before moving towards a substantive patent law.

Last, Article 27.3 (b) of TRIPS legitimizes private property rights in the form of intellectual property over life and processes entailed in modifying life forms. But these are rights for individuals, corporations and states, not for indigenous peoples and local communities. Discussions on indigenous knowledge should find support in ILO 169 and the Draft Declaration on the Rights of Indigenous Peoples (strengthening Article 27 of the UN International Covenant on Civil and Political Rights), which states that rights to indigenous knowledge, innovations, and practices cannot be discussed in isolation from indigenous people’s rights to their own territories and resources.

Sadly, the ILO 169, the only legally binding treaty to protect indigenous peoples, still has a weak legal status. Law does not necessarily mean justice and absence of discrimination. And indigenous peoples, which are a kind of nation within a nation, have no representation; they are not a category in official records. Governments, which mostly consider themselves to be the voice of all peoples within their territory, usually ignore indigenous peoples (Saugestad).

(read part 1) (read part 2) (read part 3)

Human Rights Poem (52): The Laws of God, the Laws of Man

A.E. Housman

(source)

The laws of God, the laws of man, A.E. Housman

The laws of God, the laws of man,
He may keep that will and can;
Not I: let God and man decree
Laws for themselves and not for me;
And if my ways are not as theirs
Let them mind their own affairs.
Their deeds I judge and much condemn,
Yet when did I make laws for them?
Please yourselves, say I, and they
Need only look the other way.
But no, they will not; they must still
Wrest their neighbour to their will,
And make me dance as they desire
With jail and gallows and hell-fire.
And how am I to face the odds
Of man’s bedevilment and God’s?
I, a stranger and afraid
In a world I never made.
They will be master, right or wrong;
Though both are foolish, both are strong.
And since, my soul, we cannot fly
To Saturn nor to Mercury,
Keep we must, if keep we can,
These foreign laws of God and man.

The Causes of Human Rights Violations (9): Overlegislation and the Big State

(source, Pavel Constantin)

I agree that a complex contemporary society needs a complex system of law, and I’m the last one to adopt a libertarian philosophy in which the state is evil (necessary evil or not) and should be kept as small as possible. I accept that the state has a role to play in poverty reduction and redistribution, for example. Laisser-faire leads to injustice.

However, the more rules there are, the more restrictions on individuals’ freedom to act. The rule of law, as opposed to a simple system of legislation, was designed precisely to limit the realm of state action and to open up a realm of society, distinct from the state, in which freedom can rule and laws do not apply (see also this post). The more laws, the smaller this space of freedom (although one very general and vague law can also reduce this space to nothing). A big state is an enemy of freedom.

The rule of law limits the state and opens up the realm of society in the following way. It limits the number and scope of laws because it allows only laws that are discussed, voted and published according to formalized procedures, and that stay into force until the same procedures result in another conclusion. Moreover, laws in a system of rule of law must respect the fundamental laws, the constitution, and cannot go beyond what is allowed by the constitution (for example civil rights, in a democratic constitution). So the rule of law creates a legal system in which laws are limited and stable. The rule of law therefore creates freedom (from the law) and is incompatible with an ever expanding system of law.

By comparison, the legal system in an autocratic rule by a dictator (as opposed to the rule of law) can result in whatever law the dictator decides, and whatever change in the law he decides (if he bothers at all to use laws for the purpose of his rule). Such a system is inherently unstable, unpredictable, unlimited and expanding.

(source)

More on the rule of law.

Another reason why laws should not be too numerous, distinct from the concern for freedom, is that an extensive system of law makes it very difficult to respect the law and without respect for the law, there is no rule of law. People should be given the opportunity to plan their lives in such a way that they can respect the law and can avoid running foul of the law. That’s very difficult when there are too many laws.

Knowing what things the law penalizes and knowing that these are within their power to do or not to do, citizens can draw up their plans accordingly. One who complies with the announced rules need never fear an infringement of his liberty. Unless citizens are able to know what the law is and are given a fair opportunity to take its directives into account, penal sanctions should not apply to them. John Rawls

John Rawls

For the same reason, i.e. giving people the possibility to respect the law, it is also unacceptable to have secret laws, retroactive laws (laws that punish acts that have occurred before the law came into force) and unstable laws (laws that change all of the time). Bad law as well is unacceptable, again for the same reason (by bad law I understand complex, incomprehensible and contradictory law, which are types of law that make it impossible for citizens to respect the law).

A related but not altogether identical problem is the risk of rights inflation. I’ve posted about this before.

Calvin and Hobbes

(source)

The Ethics of Human Rights (5): China, Confucianism and Authoritarianism

Confucianism, the traditional Chinese ethical and philosophical system based on the teachings of Confucius (551 BCE – 479 BCE), is often blamed for the lack of freedom and the authoritarian and anti-democratic form of government in China. This post examines the merits of this attack.

Confucianism is not a religion, although many believe it is, perhaps because of its emphasis on morality and the extent to which it has shaped and become synonymous with the culture of much of East-Asia, including of course China but also Japan, Korea, Taiwan, Singapore, Vietnam and many other countries with large Chinese communities. It is rather a philosophy and a culture.

Although vigorously attacked by the Chinese communists, it is beyond doubt that Confucianism still remains a strong force in Chinese thinking.

Confucius

(source)

Arguments against the link between Confucianism and authoritarianism

Confucianism does not have to lead to authoritarianism. Indeed, Confucianism places more value on internalized morality than on external repression of deviant behavior:

Confucius argues that under law, external authorities administer punishments after illegal actions, so people generally behave well without understanding reasons why they should; whereas with ritual, patterns of behavior are internalized and exert their influence before actions are taken, so people behave properly because they fear shame and want to avoid losing face. (source)

The exercise of rituals or rites (not in the religious sense but in the sense of everyday ritual actions or routines) teaches people to internalize norms and respect them voluntarily, not because of fear of punishment. Formalized behavior through rituals becomes progressively internalized. Laws and governmental power are relatively unimportant to Confucianism.

Another reason why Confucianism is not necessarily autocratic is the teaching that the king’s personal virtue spreads a beneficial influence throughout the kingdom. With a virtuous king, the need for the use of force is limited.

Confucius

(source)

Arguments in favor of  the link between Confucianism and authoritarianism

Rituals are not only used to internalize morality and to instill a sense of propriety or politeness, but also to assign everyone a place in society, a kind of relationship to others and a form of behavior towards others.

While juniors are considered in Confucianism to owe strong duties of reverence and service to their seniors, seniors also have duties of benevolence and concern toward juniors. (source)

This leads to a strict hierarchy in society, which is opposed to equal rights, universality of rights and the equal influence that is found in a true democracy.

Social harmony is the ideal that results from every individual knowing his place in society, assuming his role and responsibilities towards others and establishing the right kinds of relationships and forms of behavior. However, this social harmony is clearly opposed to adversarial democratic politics.

There is government, when the prince is prince, and the minister is minister; when the father is father, and the son is son. (Confucius, Analects XII, 11).

There can be no objection to filial duties and filial piety. But the duty of benevolence and concern of the older towards the younger, and the extension of this duty to the rulers with regard to the people, can lead to paternalism and an infringement of the right to chose one’s own style of life.

Confucianism sees a moral role of government, and a responsibility of the government for the physical and moral well-being of the people. Filial piety is extended within Confucianism to political loyalty of the subjects of a state or even outright submission to authority. This leads to political inequality and elitism which is hard to reconcile with democracy.

However, the original teachings of Confucius forced the subjects to obey only as long as the rulers showed moral rectitude and responsibility for the well-being of the people. When the rulers assume their duties, strict obedience is required. But when they fail, the people can rebel. So no “might is right” or absolute power. Later rulers of course interpreted Confucianism in a more authoritarian way, for their own benefit.

Other aspects of Confucianism, such as the priority of the state and the community over the individual, meritocracy etc. make it hard for a democratic culture of freedom to take root.

Incompatibility of Confucianism and democracy, human rights and freedom?

I’ve argued elsewhere against any incompatibility theory. Democracy, rights and freedom are not the exclusive product of the West and they are compatible with all cultures and religions. However, all cultures and religions also contain elements that inhibit the development of freedom. But it is possible to change these elements.

Other causes of authoritarianism

One should also be careful not to overstate the importance of culture. First of all, culture is often used by rulers to justify themselves, and in doing so they tend to distort the real meaning of the culture in question. As is evident from the examples above, many elements of Confucianism cannot justify authoritarianism. Secondly, authoritarianism has other, non-cultural causes. In the case of China: the legacy of communism, the priority accorded to the economy (a priority that is supposed to warrant human rights violations) etc.

More on China. More posts in this series are here.

Limiting Free Speech (3): Hate Speech

(source)

Hate speech (or antilocution, or fighting words) is speech that incites other people to hate a certain group in society defined by common characteristics (race, gender, religion etc.). It usually also incites to commit violence and discrimination based on hatred.

The most famous case is that of the Danish Muhammad cartoons. These cartoons led to worldwide protest and expressions of anger and hate, not only against the cartoonists in question, their newspaper or their country, but against liberals and democrats in general.

However, hate speech is by no means an exclusively Muslim matter. It can be found everywhere where there is hate: it can be racist, anti-gay, islamophobe, etc. It can also be framed in anti-terrorist language: many western countries have initiated legislation outlawing hate speech that is part of Muslim mobilization of terrorists (in militant mosques for example).

(source)

Given the importance of freedom of expression, it is not universally accepted that hate speech can be legally prohibited. There is of course article 20 of the International Covenant on Civil and Political Rights which outlaws hate speech:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, contrary to hate crimes, such as attack on gays or muslims or writers/movie makers/cartoonists critical of Islam etc., the basic rule should be that speech as such is not a crime, even speech expressing or inciting hatred, violence or discrimination. Speech is protected by the right to free speech.

However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity, the right not to suffer discrimination etc.). The general defense of hateful speech has therefore some exceptions. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. Hate is taught. The example of the Muhammad cartoons protests is again telling in this respect. Many protesters were encouraged by some Muslim leaders to commit acts of violence.

(source)

But much depends on the circumstances, the context and the manner of speech. Islamophobia in front of a crowded mosque is obviously not the same thing as islamophobia in an obscure publication. Examples of speech, in the wider sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, are more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

When speech has implications for the rights of some people, it is legitimate to consider limiting this speech, according to the rules set out in the introductory post of this series.

An important distinction here: all this is about hate, not about speech that is merely offensive, insulting, ridiculing etc. That’s the topic of another post. The distinction, however, can be blurred. What is hateful and what is merely offensive is a matter of personal conviction, it differs between groups and it changes over time. Some groups may be more sensitive than others. If one decides to legislate the matter, this can complicate things.

Moreover, what to someone can be seen as hate – for example homophobia – may be a central tenet of someone else’s religion and therefore protected by the freedom of religion. However, the freedom of religion is not absolute either.

And finally, some examples of speech that were once considered to be hateful – such as “nigger” – have been reclaimed by the groups that were previously targeted, and are sometimes even used as a badge of pride.

Another distinction: it is perhaps possible to imagine hate speech that is not directly or indirectly inciting violence and/or discrimination. Obviously, this kind of hate speech is less dangerous. However, like derogatory speech or offensive speech it does create a problem. It perpetuates negative stereotypes, devalues collective identities, deepens social cleavages and conflicts, makes it more difficult for the community to accept new identities, and it makes debate more difficult. So it makes it more difficult to create and uphold a tolerant, diverse society in which there can be civilized debate and discussion leading to better knowledge.

However, is this reason enough for a legal prohibition on hate speech? I don’t think so. Is it reason enough to combat hate speech with other means? Sure. The remedy for harmful speech is not necessarily prohibition but counter-speech, and sometimes it is best to just ignore some kinds of speech. Engaging the hate mongers, let alone prosecuting them, gives them legitimacy, publicity, and under-dog or victim status.

In general, it is not unwise to be concerned about political correctness, thought police and censorship.

Human Rights Poem (48): The White House

Claude McKay

The White House, Claude McKay

Your door is shut against my tightened face,
And I am sharp as steel with discontent;
But I possess the courage and the grace
To bear my anger proudly and unbent.
The pavement slabs burn loose beneath my feet,
A chafing savage, down the decent street;
And passion rends my vitals as I pass,
Where boldly shines your shuttered door of glass.
Oh, I must search for wisdom every hour,
Deep in my wrathful bosom sore and raw,
And find in it the superhuman power
To hold me to the letter of your law!
Oh, I must keep my heart inviolate
Against the potent poison of your hate.

Human Rights and International Law (9): Impunity

Luis Moreno-Ocampo

(source)

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

(source)

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

(source)

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

(source)

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.

(source)

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.

Hate (1): Hate Crime

Al Gore

(source)

We must send a clear and strong message to all who would commit crimes of hate: it is wrong, it is illegal, and we will catch you and punish you to the full force of our laws. Al Gore

A hate crime (or a bias crime) is a crime committed against a person that is motivated, in whole or in part, by the offender’s prejudice against

• a race
• a religion
• a sexual orientation
• an ethnicity or national origin.

Hate crimes are traditional offenses such as murder, harassment, rape, violent assault, vandalism, arson etc. but they are motivated by the offenders’ bias.

Islamophobia, homophobia, xenophobia, antisemitism etc. are ideologies, biases or prejudices which foster hate crime.

Hate crime statistics

This FBI statistic shows the distribution over the different types of hate crime in the U.S. in 2004:

(source)

In 2004, these percentages cover 7.649 incidents involving 9.035 offenses directed at 9.528 victims. Of course, this covers the US only. About 30% of the offenses involved the crime of intimidation, another 30% assaults, and 35% crimes against property (vandalism etc.). Most of the anti-race crimes were anti-black. Most of the anti-religious crimes were anti-Jewish. Most of the crimes based on sexual prejudice where anti-male homosexual. The anti-ethnicity crimes were mostly anti-Hispanic. Most offenders were white. In 2006 the data were very similar.

After 9-11 there was a sudden increase in the number of anti-Muslim hate crimes, but this was a very temporary phenomenon:

(source)

These are the numbers in the U.K.:

Nationally, in 2006-07, police reported 5,619 hate crimes in which someone was injured, 4,350 hate crimes without injury, and 28,485 cases of racially or religiously motivated harassment. There were also 3,565 cases of criminal damage related to hate crimes. The typical hate offender is a young white male (most homophobic offenders are aged 16-20, and most race hate offenders under 30). (source)

Data on the rest of the world are difficult to come by.

Official crime statistics always understate the true extent of criminal behavior. And in the case of hate crime it is reasonable to state that many hate crimes are not counted separately but disappear in the global crime statistics, because the policeman or woman who records the crime may not be aware of the motivation or may not care.

Hate crime legislation

There is some controversy over the necessity of specific hate crime laws, as most of the actions concerned, if not all, are already illegal under normal law.

In the United States most states have laws that impose extra punishment for crimes that are motivated by hate, in excess of the usual punishment for the same crimes when motivated by other reasons. (source)

Whereas the intention of the criminal has for centuries been a factor in establishing the degree of the punishment, hate crime laws are often seen as punishment of ideas, as an example of the “thought police”. Proponents argue that hate crimes hurt the victims more than the same crimes committed for other reasons because they stigmatize people and erode their self-esteem. Furthermore, hate crimes not only hurt the immediate victims but also other people in the same group because they create a climate of fear. One can even claim that they harm the very fabric of a free and diverse society.

Article 20 of the International Covenant on Civil and Political Rights outlaws hate crime:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Hate speech

(source)

There is also some controversy over whether incitement to hatred should also be called a hate crime. Contrary to the offenses described above, speech as such is not a crime, even speech expressing or inciting hatred. Speech is protected by the right to free speech. However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity). It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech.

Examples of speech, in the wide sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, is obviously more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

Some also call Islamic terrorism a hate crime. Hate and prejudices are certainly motivations behind many terrorist attacks. Examples from history are lynching, cross burning (intimidation), the medieval witch hunt, the many genocides, the Roman persecution of Christians…

More on hate speech. More on free speech.

The Ethics of Human Rights (3): Civil Disobedience

Martin Luther King Jr with LBJ

(source)

An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law. Dr. Martin Luther King, Jr.

Civil disobedience is non-violent and public disrespect for a law which one considers to be unjust, accompanied by a willing acceptance of the consequences of this disrespect. The purpose of civil disobedience is to highlight the injustice of a law and hence to work for the abolishment of the law. The assumption is that actions which highlight an injustice can contribute to its abolition, which is an reasonable assumption at least in a democracy. In a democracy, there should be other procedures to abolish injustices, such as representation, free speech, freedom of assembly and association etc., but no democracy is perfect and therefore a more extreme measure such as civil disobedience may be necessary. The American Civil Rights Movement, which operated in a manifestly imperfect democracy, was an example.

However, civil disobedience is a dangerous thing. Laws are important, because without laws and judges and police forces to protect them, human rights are just moral claims, unenforceable and at the mercy of those who are stronger and more powerful.

So you have to be careful when allowing yourself to defy the law. Civil disobedience is not the same thing as the freedom of conscience. You do have the absolute legal right to believe what you want and what your conscience forces you to believe. But it is another thing to be able to act according to your conscience and to break the law because of your conscience; or not to act because of your conscience, as is often the case with conscientious objectors. If you state that everything, even a breach of the law, is allowed as long as it conforms to your conscience, then you go down a very dangerous path.

The freedom of conscience is something different from the right to do or not to do something because of objections based on conscience. You may be forced to do something that goes against your conscience while retaining your freedom of conscience and your beliefs about wrong and right. You can even force yourself to act against your conscience, perhaps because of a sense of duty or because of respect for the rule of law. You only lose your freedom of conscience when you are forced to believe something, which can only happen in extreme circumstances.

Conscience as the ability to know wrong from right is a kind of self-legislation. But because this is fallible (in German they say, “das Gewissen ist kein Wissen”, conscience is not knowledge), and more fallible than common legislation (more fallible because you are alone – two people know more than one – and because you miss the opportunity to learn from discussion and arguments), it should not determine actions when it is incompatible with the laws that are valid in a well-functioning democracy. Only if the external law, as opposed to the internal law, is clearly dysfunctional or unjust as in the quote above, can there be a reason to appeal to your conscience and engage in civil disobedience.

(source)

However, civil disobedience is an individual choice, and can it be allowed that individuals decide for themselves whether a system of law is “clearly dysfunctional”? It is dangerous at least, which is why civil disobedience should be an emergency measure only. The risk of anarchy can sometimes convince us to accept a supposedly dysfunctional law or judge, even if our conscience tells us to rebel. Civil disobedience should only be tried when everything else has failed.

More posts in this series are here.

Religion and Human Rights (8): Sharia

The term Sharia literally means “path” or “way” (“way to the water source”). So, originally, it wasn’t a legal code or a set or rules as it is now. With the passing of time, the word has come to mean the body of legal rules which were produced through a very long process of scholarly interpretation of the divinely sanctioned material of the Koran (or Quran). This interpretation is known as fiq (or fiqh), literally “understanding” or, more specifically in this context, “jurisprudence”, and involves such things as debate, precedent reasoning by analogy etc. The Sharia, therefore, is – in part at least – a human creation, unlike the Koran which is believed to be the word of God told through Muhammad.

Nowadays, many Muslims believe – mistakenly according to their own religion – that the early interpretations of the Koran – which, together with the rules contained in the Koran, form the Sharia – are also of Godly origin and therefore just as sacred and unchangeable as the Koran itself. The reason is that they lump together the rules in the Koran and the subsequent interpretations, thereby lumping together the revealed with the unrevealed, the sacred words of God and the subsequent human interpretations of these words. According to Islam, however, the Koran is the immutable Basic Code which should be kept separate from ever-evolving interpretive law (fiqh).

The diagram below, drawn by Dr Moojan Momen, shows the sources of Sharia. (In order to accommodate the differences between Sunni and Shi’i, the latter are shown in red).

(source – hadith are the sayings and doings of Muhammad and his companions)

As is apparent from this diagram, Sharia is understood in different ways by different groups within Islam. So the monolithic Sharia which we know from many scaremongering news-stories does not exist.

Sharia deals with many issues of day-to-day life, including politics, economics, banking, business, family, sexuality, hygiene etc. Some aspects of Sharia lead to violations of human rights, in particular the treatment of women and the punishments for certain “crimes” such as homosexuality, adultery and apostasy prescribed by certain schools of jurisprudence. These include amputation, flogging and stoning.

(source)

The rules prescribed by the Koran and the Sharia are a sufficient basis for the laws of a Muslim country. At best, human rights or other laws can only play a role when they do not contradict the law of God. At worst, the execution of the law of God is the only legitimate role of the state, even if this implies violating human rights. The problem is that changing the Koran or the Sharia is believed to be the same thing as changing the word of God, which is said to be impossible. Human rights advocates can try to convince people that part of the Sharia is clearly not of Godly origin, not even according to the Muslim faith.

These are the countries which apply, to some degree, Sharia law:

(source)

Most countries mix Sharia with other legal traditions, or apply Sharia only in some parts of the law, or some regions. There’s even talk of allowing Muslim minorities in western countries to apply Sharia law within their own communities.

Here’s an opinion poll in some Muslim countries on the desirability of Sharia:

(source)

Human Rights Quote (41): Habeas Corpus and Guantanamo

Anthony M. Kennedy

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say what the law is. Justice Anthony M. Kennedy of the U.S. Supreme Court, on its 5-4 decision yesterday asserting that foreign terror suspects held at Guantanamo have an inherent constitutional right to challenge their detention in American courts.

Everyone who believes that America is a country devoted to the rule of law should celebrate because this ruling says that the executive needs to be accountable to a neutral judicial forum in its decisions to imprison people — and that is the basic restraint on tyranny that animated the American Revolution. Eric M. Freedman, Maurice Deane distinguished professor of constitutional law at Hofstra

More on habeas corpus here.

What Are Human Rights? (12)

(source; Chinese symbol for Humanity, and the words humanity – people – no – enemy, which are an idiom meaning humane people won’t have enemies)

Human rights are rights which belong to humanity, to all persons of all cultures, nations, states, color, gender etc., whether or not the legal system in which they live explicitly protects these rights. And which belong to all of us equally. No one has more or less rights than the next person.

Human rights are therefore essentially moral claims, and claims which are superior to the legal rules which happen to be in force in the country in which one lives. If necessary, they can be used to challenge these legal rules.

In many countries, these moral claims have been incorporated in the legal rules, often even in the supreme legal rules such as the constitution. This means that people can go to court to have their rights enforced in case of violation, violation either by way actions committed by the government or fellow-citizens, or by way of legislation. In the latter case, a constitutional court may decide that certain laws are invalid and “null and void”.

Different human rights are interdependent. They need each other. Freedom of expression can be quite useless without education and food. But the struggle for social justice also requires freedom of expression. More on the interdependence of rights.

Rights can be limited. The system of human rights is not a harmonious whole. Rights come into conflict, even in a country that tries its best to respect all rights. Freedom of expression can harm the right to privacy of someone, for instance. Then there has to be a decision: which right takes precedence?

An important characteristic of human rights is their link to democratic government. One right which humans have is political participation. And a democracy is the best way of guaranteeing this participation. Read also art. 3 of Protocol I to the European Convention:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.

But the link to democracy goes further. All human rights must be respected, and respected simultaneously, in order to have a proper democratic process. Many tyrannies allow the existence of opposition groups and even, sometimes, a limited degree of political participation, but these groups are harmless because they do not have equal access to publicity, because they do not have the freedom to organize as they wish, or because the people lack the material or intellectual resources necessary to be able to choose wisely among candidates.

It is apparent from this enumeration that the link between democracy and human rights (all human rights) is quite intense. Choosing political leaders is the expression of an opinion. There is obviously a reason for the etymological link between the words “vote” and “voice”. Democracy is the application of human rights to the field of government. Human rights are democratic rights because they are necessary for democracy, just as democracy is necessary for human rights.

The latter is also hinted at in the considerations preceding the articles of the European Convention:

“those fundamental freedoms which . . . are best maintained . . . by an effective political democracy”.

But human rights are not just a necessary prerequisite for democracy. They bring about democracy. When you have the right to express your opinions and to call all kinds of things into question, why would you stop at the government? You will automatically express an opinion on the government and call the government into question. And because it is futile and sad to express an opinion that has no consequences in the real world, people will begin to claim the implementation of their political opinions, which will be the birth of democracy.

Democracy and human rights cannot function separately. They need each other and reinforce each other. Where you have one, you also have the other. And where you have one without the other, there is something missing in what you have. A democracy without human rights is not an ideal democracy, because it cannot function adequately. Human rights without democracy are not complete because one of the most important uses of human rights – calling into question the work of the government and creating a common point of view on the work of the government – is not allowed, or, if it is allowed, does not have any useful consequences because it is impossible to have a democratic vote.

Human rights are not politically or ideologically neutral. They require democracy and are required by democracy. This supports the statement that human rights are not something primarily directed against politics or a way to limit politics. There are an essential part of democratic politics.

What is Democracy? (18): Self-Government and Self-Legislation

Self-government (the equality of rulers and ruled, government of the people by the people instead of government of the people by an elite sprung from the people) is an important value because it gives people control over their own lives. Most people want to be masters of their own lives and want to be involved in the creation or transformation of the conditions and circumstances of their lives.

These conditions and circumstances include, of course, legislation. You have self-control and self-government only when the laws you have to obey are laws that you agree with; “quod omnes tangit, ab omnibus approbetur”, what concerns all has to be approved by all. And the best way to have this kind of approval is to allow the people to make the laws themselves or at least to allow them to participate in the process of legislation, for example by way of the election of the legislators.

More on self-government.

Human Rights Quote (24): Racism

Martin Luther King Jr.

It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that’s pretty important. Martin Luther King Jr.