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Chapter Ten: Human Rights: The Individual In Global Politics
Review |
This chapter examines human rights and the evolving norms against human rights violations. For much of the previous three centuries, international law has protected rulers and the sovereignty of their states. Today this is changing. Since the Holocaust and World War II there has been a growing willingness to hold individuals, regardless of their position in government, accountable for war crimes and other atrocities. This chapter begins by describing the Holocaust and the developments it prompted international criminal justice. The chapter then turns to the sources, universality, and codification of human rights since World War II. It focuses on the protections human rights law affords to women.
1. The Holocaust
a) The concept of genocide—the eradication of an entire people—dates back to World War II and the Nazi effort to kill all of Europe’s Jewish people.
b) In 1948, the General Assembly passed the Genocide Convention, which made genocide a crime. Genocide involves any act committed with the intent to destroy an entire ethnic, national, racial, or religious group. In addition to killing members of the group, genocide may involve efforts to inflict conditions of life calculated to bring about the group’s destruction or imposing measures intended to prevent births within the group.
2. The evolution of international criminal tribunals
a) The idea for bringing individuals to trial for war crimes dates back to World War I, but the first trials were held in Nuremberg and Tokyo after World War II. The defendants were charged with war crimes, crimes against humanity, and crimes against peace.
b) The trials were controversial because the accused could be prosecuted even for acts that had been legal under German law at the time they were committed and for acts that occurred before the war began.
c) These trials established the principle that individuals could be held accountable for their actions in war.
d) International criminal tribunals were not used during the Cold War because the superpowers often clashed over the meaning of human rights.
e) The first post-Cold War era international tribunal was established by the UN to deal with the atrocities that occurred in the former Yugoslavia after 1991. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was the first truly international tribunal to invoke the Genocide Convention.
f) The UN established a second international tribunal after the 1994 genocide in Rwanda. Following the creation of the International Criminal Tribunal for Rwanda (ICTR), another Special Court was approved for Sierra Leone.
g) The ICTY and ICTR have been controversial for their inefficiency, political bias, and the amount of funding that has gone to their operations.
h) The International Criminal Court (ICC) was created in reaction to the problems involved in using ad hoc tribunals. The ICC came into being in 2002 as a permanent court with global jurisdiction. It is granted jurisdiction in cases were states are unwilling or unable to prosecute individuals accused of the most serious crimes in international humanitarian law.
i) The US has opposed the ICC for many of the same reasons it opposed the League Covenant.
j) Increasingly, national courts are exercising universal jurisdiction to adjudicate cases of human rights violations committed against foreigners in other countries.
3. Individual rights under international law
There is a growing recognition that individuals, as well as states, are subjects of international law.
a) Sources of human rights
- The idea of human rights is derived from the tradition of natural law and early efforts in Europe to limit ruler’s arbitrary behavior.
- Not all states accept that human rights are universal, but there are numerous precedents to support the universality of human rights: international norms and custom, and documents like the English Bill of Rights (1689) and the American Declaration of Independence (1776).
- Cultural relativism is the idea that ethical beliefs are different in different cultures and there are few, if any, universal principles of human rights.
b) The elaboration of human rights
- International organizations and legal instruments have been used to develop and expand human rights. They include the UN Office of the High Commissioner for Human Rights, the UN Human Rights Council, the 1948 Universal Declaration of Human Rights, and international covenants on civil and political rights and on economic, social, and cultural rights.
- Negative human rights are those that prevent the state from interfering with individual liberty. They usually involve political and civil rights and liberties. Positive rights, in contrast, refer to a government’s obligations to provide for its citizens’ economic and social welfare. Negative rights developed much earlier in the West, and thus are also known as first generation rights. The positive rights that developed later are known as second generation rights.
c) Explanations of human rights abuse
- Several factors explain why some governments do not respect citizens’ rights.
- When economic conditions deteriorate, people often search for scapegoats.
- Democratic governments tend to respect human rights more so than authoritarian governments.
- More abuses tend to occur in societies characterized by ethnic, racial, religious, or ideological cleavages.
d) Amnesty International
Amnesty International is a global NGO concerned about human rights. It uses publicity, education, and political pressure to press governments to approve human rights treaties and respect the human rights of their citizens.
4. Women’s rights as human rights
Women have historically been treated as inferior to men, but international law now provides explicit protection for women. These protections are advanced by the Commission on the Status of Women, the 1952 Convention on the Political Rights of Women, and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women.
a) Gender (in)equality
- The UN has developed two measures of the inequality of women: the Gender Empowerment Measure (GEM) and the Gender-Related Development Index (GDI).
- Women tend to fare best in the West and worst in Sub-Saharan Africa.
b) Violence against women
- Violence against women also exists in all societies. Some of the customs that resist elimination include female genital mutilation and honor killings of women that are alleged to have dishonored their family.
- Rape is a particularly brutal form of violence against women. It is often used in wartime to affirm male dominance over women and to produce ethnic cleansing.
c) Reproductive independence
- In the West reproductive rights are closely related to political and civil liberties; in the developing world, where maternal complications are still a leading cause of death, they are closely related to health issues.
- Since the 1994 UN Conference on Population and Development women’s reproductive rights have become a serious global issue.
d) Should women have equal rights … everywhere?-
Arguments that human rights are culture bound often arise in discussions of women’s equality. Muslim attitudes toward women are widely criticized in the West, but Muslims argue that they are victims of cultural bias.
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Focus Questions |
Q1 How did the Holocaust in World War II alter the rights and responsibilities of leaders and citizens?
A1 The unprecedented atrocities committed by Germany and Japan during World War II, especially the genocidal murder of millions of Jews and other "undesirables" in death camps stunned the world and led to the trial of those deemed responsible for these policies and the adoption of the Genocide Convention by the UN General Assembly in 1948. That convention made genocide—the destruction of an ethnic, racial, religious or national group—a crime. The most important of the postwar trials was the international tribunal set up by the victorious powers in Nuremberg, Germany. Those accused of crimes at Nuremberg were not permitted to claim that they were merely carrying out the orders of their superiors, nor could they claim that they were simply serving their country's national interest. In other words, the accused could not shift responsibility for what they did to others. At Nuremberg, defendant were charged with three types of crimes—wars crimes, crimes against humanity, and crimes against peace. The first charge was already a part of international law, but the second and the third was not. Crimes against humanity referred to abuses of civilians, including those that the Nazis had legalized as well as abuses committed before the war began. The third charge was even more controversial because it seemed to run counter to the sovereign right of a state to wage war. Similar trials were held in Tokyo of alleged Japanese war criminals and led to the controversial conviction and execution of General Tomoyuki Yamashita who, it was agreed, was unable to control the troops who had committed the abuses.
Q2 In what ways has the international community built institutions since Nuremberg to hold leaders and other individuals responsible for crimes against humanity?
A2 The Nuremberg precedent has led in recent decades to the establishment of a number of special international tribunals to try individuals for crimes alleged to have been committed in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. The trials of former Serb President Slobodan Milošević (who died before his trial ended) and of former Liberial President Charles Taylor, as well as the charges brought against former Chilean dictator Augusto Pinochet by Spanish and later Chilean courts, illustrated that even heads of state were liable for war crimes and crimes against humanity. In 2002, the International Criminal Court, a permanent court, was officially established despite American opposition and has begun to take cases of individuals accused of crimes in Uganda and the Darfur region of Sudan.
Q3 What are the sources of human rights?
A3 Although most international law requires the consent of states that are subject to it, those who believe in universal human rights claim that there are higher rules of international morality called jus cogens ("compelling law"), and those who advocate normative hierarchy theory argue that states must respect human rights derived from jus cogens. This view is in the natural law tradition in which legal principles are derived from nature, right reason, or God. Although imperial China and other cultures have traditions than enjoin rulers to respect human dignity, the idea of human beings enjoying inalienable rights is largely a Western tradition. Among the precedents for human rights, the most significant are the English Magna Carta (1215), much of which found its way into the American Constitution, the English Bill of Rights (1689), the American Declaration of Independence (1776), and the French Declaration of the Rights of Man (1789). In recent decades, the United Nations, especially its Office of the High Commissioner for Human Rights, have tried to press governments to observe human rights, and a number of UN declarations and treaties enshrine human rights law. The most important is the 1948 Universal Declaration of Human Rights, which along with the international covenants on civil and political rights and on economic, social and cultural rights constitute what is called the International Bill of Human Rights. The first of these covenants deals with "negative rights" that constitute limitations on state interference in the lives of citizens, and the second lists "positive rights" that consist of obligations states have to improve the well-being of citizens.
Q4 What factors explain violations of human-rights?
A4 Several factors—economic, political and social—help explain why states violate citizens' human rights. Declining economic conditions may trigger a search for scapegoats. Political factors, notably regime type, are also associated with human-rights abuses. Thus, although democracies may violate citizens' rights during wartime as the US did in the case Japanese-Americans during World War II, they are generally less likely to do so than authoritarian regimes. Social factors, too, especially the degree to which a society is cleaved along ethnic, religious, or racial lines, are associated with the likelihood of human-rights abuses. Homogeneous societies are less likely than heterogeneous ones to permit violations of human rights. The existence of dedicated NGOs like Amnesty International may improve human rights. Using publicity and advocacy, Amnesty International, as well as other NGOs, has worked tirelessly to free political prisoners and shame regimes that violate citizens' human rights.
Q5 To what extent are women deprived of equal rights globally, and should such rights be extended to women everywhere regardless of existing local customs and cultural norms?
A5 Although a variety international conventions and declarations are designed to prevent discrimination against women, nowhere are women equal to men. Both the Gender Empowerment Measure (GEM) and the gender-related development index (GDI) reveal that women fare best in the West and suffer the greatest deprivation in sub-Saharan Africa and in traditional societies where men control public life and women are relegated to the home and have little control over their own bodies. In such societies, men are more highly valued because they work in the fields, serve in the military, and provide economic security for their elders. Violence against women perpetuates gender inequality, reflects unequal power relations, and is major cause of women's ill health. In addition to domestic violence, women are subject to rape, sexual slavery, forced pregnancy, enforced prostitution, and enforced sterilization—all of which are now deemed war crimes. Rape was used a form of systematic terrorism in Bosnia and Rwanda. In addition, female fetuses are frequently aborted in countries such as China and India where there is a preference for males and prenatal amniocentesis and ultrasound scanning make it easy to determine to determine the gender of a fetus. Genital mutilation and honor killings of women also remain widespread in some traditional societies. Islamic treatment of women is especially controversial with many Muslims arguing that their customs are intended to protect women and encourage modesty and family stability, while women's groups contend that these customs brutalize women and perpetuate their inferior status. Reproductive issues such as the right of abortion and access to birth control technology are politically contentious. Only when women have control of their bodies can they achieve economic independence and social equality with men. Societies in which resistance to gender equality is great frequently advocate cultural relativism; that is, respect for local customs that may vary significantly from the universal human rights advocated in the West. This claim is highly controversial and is hotly debated. |
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