*IMNSHOMustReadandRepartie 12160*
http://oisc.wordpress.com/2013/09/17/suffocate-how-human-rights-law...

A week before Samantha Power was officially sworn in as Obama’s
representative at the United Nations, Mark Ländler wrote a piece in the New
York Times in which he considered international law “obscure”. I responded
– at length – to that comment, then almost immediately stumbled upon
another piece of writing deploring the complete opacity of human rights law.
It was not from a misinformed journalist- it came from the very people that
currently teach one of the very few human rights law degrees in the world.
In a strange twist of events, human rights law proliferation, they say, has
turned in on itself and facilitated legal loopholes and obstructed the clear
path to the rule of international law. I was ready to disagree, when it dawned
on me, the way an anvil falls onto a coyote’s head, that human rights law –and practicing human rights – is definitely not what it used to be.

The law was meant to be for the people. It is not an instrument of oligarchy;
it is supposed to be accessible. After all, ignorantia juris non excusat. Now
Verdirame explains that human rights law has “the accessibility of a tax
code”. The proliferation under what are called “third generation rights” – as
in distantly removed from “first generation rights”, such as self-determination and freedom from torture – means that human rights is now
basically what everyone wants it to be; that it slipped from the grasp of
legislative international bodies; that it can be anything or everything, and
are levelled against so-called “orderly” countries by less abiding ones to
“shore up some political legitimacy”. And we are all lamenting the fact that
we are creating second and third generation rights while the basic
fundamentals of the UNDHR are still a struggle across the globe. It blurs the
focus, it distracts the attention, and it begets media attention more than an
inmate suffering torture in a democratic regime – because we created new
risks and new threats that somehow invalidate human rights law in its
current incarnation, while still accepting to legislate on third generation
human rights. It’s the Roman Empire all over again: forget they’re all going
to die, live under the illusion most of their citizenship rights are not violated.

Last month marked the sad 68th anniversary of the bombing of Nagasaki,
the second nuclear atrocity of the 20th century and the beginning of a new
type of warfare: the all-destructive, apocalyptic kind, annihilating not just
human life but all living things; and this for generations to come, radioactive
rays seeping into the earth and making it sterile. Oppenheimer’s scientific
discovery was a war crime. But just as the Holocaust was not the first
genocide in human history, we tend to believe in 1945 as an awakening: the
almighty Nüremberg Trials funded modern international criminal law,
created the groundbreaking case law for human rights violations, and, by
extension, decided of who would sit – forever, it seems – at the Security
Council table. 68 years later, the United Nations General Assembly is
scheduled to open on September 17th in New York City, with on its agenda,
nuclear disarmament. Over the past 68 years, despite the development in
new media technologies allowing us to watch war waged live on our
televisions in a green and yellow infrared glow, where unmanned weapons
are directed onto faraway lands from a trailer somewhere in the American
Midwest, we are still unable to stop what was the very reason we started in
the first place. Human rights proliferation has blossomed like poison ivy
because liberation has led to justified entitlement; once freed from
colonialism throughout the 1960s, and from Soviet rule after the fall of the
Berlin Wall, a new idea of what the meaning of life and the pursuit of
happiness developed itself. Citizens no longer needed legal and political
tools to simply survive. They wanted not just life, but a better life. They – as
per the ICCPR – requested civil rights. They – as per constitutionally
mandated equality – requested marriage equality. And now, environmental
law has also bled into human rights law, with the increasingly pressing right
to water. All those rights are natural, and should be fought for; they will
become political fodder for generations to come, hopefully sooner than
later. But when human rights proliferated, the way a crowd tends to rush
through the tiniest of open door in a prison, we lost sight of the tree in the
forest.

Maybe it’s the way I was raised, deprived of civil rights and under military
rule; maybe it’s the way that I was taught, with ideals of fundamental beliefs
of absolute prohibitions (such as death penalty and torture). I often claim
that those “issues” are not issues; that they’ve been resolved under law by
already existing treaties that have been ratified, and that adding
amendments or trying to redefine the criminal components they declare is
going backwards to the dark ages of sovereign impunity. 1945 was a post-Geneva Convention Ground Zero. The nation-state idea of sovereignty
created by Westphalia was supreme in Europe. The ages of the never failing
and unfaltering empires was dominant. No one would dare standing up to
what was happening across the border; journalist Jean Jaurès was shot for
denouncing war as a crime in 1914, and writer Emile Zola made history –still to this day – for pointing out racial profiling in French criminal law and
the unjust, unfair and inhumane situation of penal colony. The idea of
fundamental human rights existed, though not spelled out as such, in the
minds of journalists, travelling souls, witnesses and observers of the
madness of power and the bloodshed of imperialistic expansion. But they
were rapidly silenced; there were no freedom of information, no NGOs to
guarantee their safety, and disappearances were common. It was through
constant writing, endless record-keeping, that we knew of abuses and tried
to awaken our consciences. Winifred Carney, unsung hero of the 1916
Easter Rising, was said to have entered the Great Post Office “armed with a
rifle and a typewriter”.

If all of this sounds so common, it is because we have jumped the gun. We
have let the illusion of our freedom take over our consciousness and
awareness of our surroundings. The very erection of the Berlin Wall in 1961,
then the Iron Curtain have sealed off half of the world, across an
impenetrable gap between our revered institutions, and had made the 1945
dream of global humanitarian work a strictly western, capitalist construct
confined to the spaces outside of soviet reach. It is argued that it is still the
same. Unless the bureaucratic entanglement of the United Nations is
reformed, that the Security Council is revived to show prominence and
equality for emerging countries, that non-binding legal agreements are
scraped as conventions and that we limit the scope of what actually
constitutes human rights legislation, we will swarm in a sea of rights which
meaning differ from nation to nation, according to what their current
political agenda is; we will create agreements that are easier and easier to
violate, and harder and harder to monitor; we will finally lose sight of what
we intended to achieve, which is access to basic, fundamental freedoms as
per the UNDHR in all one hundred and twenty five member states of the
United Nations. Verdirame further explains:

In contrast, “partly free” and “not free” states have become the main
proponents of third generation rights. For most of them, of course, these
commitments in practice mean very little, since countries that do not adhere
to the rule of law at home rarely take international legal obligations
seriously. But by presenting themselves as the champions of these new
human rights, they seek to knock liberal states off the moral high ground (…)

The introduction of the concept of morality in human rights law is
interesting and extremely relevant to today. It’s the confusion of the laws we
made that created this nature of being too flexible in where they bend and
where they break; and where we allow ourselves to twist them to our own
benefit. Morality usually has no place in law; the law concerns itself with
ethics and more objective values in order to be able to protect the minority
from the majority, as opposed to a subjective moral concept that would
encompass dominance of the majority over a minority that would have little
freedom of opinion and conscience. But the very concept of human rights is
a moral concept; it was born out of the extreme outrage of a collective, the
soul-wrenching moments of human decay and bearing witness to what lack
of empathy and unrestrained means of destruction can provide. Jürgen
Habermas, in a commentary of Kant’s “On perpetual peace”, mentioned the
dual character of human rights: an inherent legality, and a “universal
validity”. According to Habermas, human rights is enacted in legality. They
carry with them more than the universal validity of what is a moral concept
– derived from religious morality, as in the first commandment – but
“belong structurally to a positive and cohesive legal order”. Human rights
law is a bridge between the general legitimisation of moral values – no
killing, no torturing, no going to war without a legitimate cause, no
infringement on state sovereignty, no submission of peoples under
colonisation – but enshrined in legality through a series of conventions and
treaties that are fully enforced through ratification by pre-approved
domestic processes. Due to this dual value, human rights are not only
embedded with legal bodies, they are also blessed with a universal
response to their implementation. Habermas continues,

… it is part of the meaning of human rights that they claim the status of
basic rights which are implemented within the context of some existing
legal order, be it national, international, or global.

In the context of human rights proliferation, it is necessary to reconsider the
history of human rights law, of diplomatic intervention, and general
international relations to (re)define what constitutes basic rights. Should
we, as a global community, patiently wait for the universal application of
first generation rights before fighting for second and third generation’s? Or
are new political and civil rights elevated to the same basic rights statutes
as first generation human rights? Now that the legality of human rights has
been asserted, where is the universal morality concept that we should all
abide by, this all-encompassing humanity that should stop the atrocities of
yesteryear? When the Martens clause referred to the “dictates of public
conscience” in 1944, was it referring to morality of protecting the human, or
to the ethics of stopping destruction by any possible means? On August 21,
2013, chemical weapons were used against civilians in the Goutha suburb
of Damascus, Syria. A UN report published yesterday exposed that sarin
gas had been used using surface-to-surface air rockets. To justify their
push for unilateral intervention, Secretary of State John Kerry had described
the attack as a “moral obscenity“. If the use of chemical weapons is an
absolute prohibition – by the 1925 Geneva Protocol, by Commission of
Disarmament, and by the almost universally ratified Chemical Weapons
Convention (CWC) banning the use of gas and biological weapons against
protected persons and belligerents, it was hardly implemented in practice.
From the use of chemical weapons in Iran, by US with and against Iraq,
Iraq against the Kurds, to Syria today, even nation-states having ratified the
CWC and urging Syria to do the same emitted reservations as to the
absolute character of the prohibition. Morals are fluctuant. They’re fluid.
They adapt themselves to foreign policy as easily as gum molds itself to the
sole of one’s shoe. It is hardly a solid pillar against which human rights law
could stand to legitimize its universal application. It is just one part of the
foundation, in itself more to do with the ethics of public conscience than it
does to what our morals, always challenged by imperatives of national and
international security, are capable of handling. Human rights law is in
perpetual evolution; but through this evolution, through these unstoppable
changes, we must never lose sight of what we may eventually lose.

When it comes to terrorism, the supposed universality of the moral cause is
stepping down to questions of national security. If crimes of terrorism have
been long enforced as gross violations of international law – first as a crime
against protected persons under Geneva, then as a war crime under the
1997 Convention on Terrorism Bombings – the fight against terrorism itself
has turned into a violation of human rights law. From use of torture to
gather intelligence to violations of civil rights while in custody; from a
justification of unilateral military force to global surveillance and data
collection, the war on terrorism has become terrorism in itself. In defining
the concept of “depersonalisation of the victim” (1), Antonio Cassese
explains: “What matters is that the victim be murdered, wounded,
threatened, or otherwise coerced so that the political, religious, or
ideological purpose of the perpetrator may be attained. In the eyes of the
perpetrator, the victim is simply an anonymous and expendable tool for
achieving his aim.” In this case, the purpose of human rights is to clearly
restore the victim to their rightful place, as a human being, an individual,
bearing with them all their fundamental rights per the UNDHR, including the
right to life. Proliferation of human rights law becomes dangerous as the
forest is hiding the tree that is the core object of human rights law.
Protection of dissent, of minorities, and of civil rights is of course a major
pillar of human rights law; but as enshrined in domestic law through
ratification, it is incumbent to the state to have them respected at a national
level before engaging instruments of international law as transnational or
international violations of Geneva Conventions. Human rights law
proliferation should be minded and carefully classified as various sections
and sub-sections of what are fundamentally first generation rights; for as
long as we do not recognize the right of a human being to the respect of
their life, their body, and protecting them from conflict and starvation, we
will legitimise the violation of their subsequent civil rights as lesser
offences. The hierarchy of importance we created on our own will permit the
jadedness resulting from civil rights violations. Mandating human rights law
statutes, principles and core treaties as being fundamental pillars always
kept within sight will permit the protection of civil and political rights of
those same values under the same auspices.

May human rights live long and prosper, not proliferate and lose sight of
themselves.

[ it has been suggested in some corners... that this is not enough! ]

(1) dépersonnalisation de la victime, as coined by french lawyer Delmas-Marty in “Les crimes internationaux peuvent ils contribuer au débat entre
universalisme et relativisme des valeurs?”