The Endtimes of Human Rights

Stephen Hopgood

• Publisher: Cornell University Press
• Year: 2013
• ISBN:
  9780801469299
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

"We are living through the endtimes of the civilizing mission. The ineffectual International Criminal Court and its disastrous first prosecutor, Luis Moreno-Ocampo, along with the failure in Syria of the Responsibility to Protect are the latest pieces of evidence not of transient misfortunes but of fatal structural defects in international humanism. Whether it is the increase in deadly attacks on aid workers, the torture and 'disappearing' of al-Qaeda suspects by American officials, the flouting of international law by states such as Sri Lanka and Sudan, or the shambles of the Khmer Rouge tribunal in Phnom Penh, the prospect of one world under secular human rights law is receding. What seemed like a dawn is in fact a sunset. The foundations of universal liberal norms and global governance are crumbling."—from The Endtimes of Human Rights In a book that is at once passionate and provocative, Stephen Hopgood argues, against the conventional wisdom, that the idea of universal human rights has become not only ill adapted to current realities but also overambitious and unresponsive. A shift in the global balance of power away from the United States further undermines the foundations on which the global human rights regime is based. American decline exposes the contradictions, hypocrisies and weaknesses behind the attempt to enforce this regime around the world and opens the way for resurgent religious and sovereign actors to challenge human rights.Historically, Hopgood writes, universal humanist norms inspired a sense of secular religiosity among the new middle classes of a rapidly modernizing Europe. Human rights were the product of a particular worldview (Western European and Christian) and specific historical moments (humanitarianism in the nineteenth century, the aftermath of the Holocaust). They were an antidote to a troubling contradiction—the coexistence of a belief in progress with horrifying violence and growing inequality. The obsolescence of that founding purpose in the modern globalized world has, Hopgood asserts, transformed the institutions created to perform it, such as the International Committee of the Red Cross and recently the International Criminal Court, into self-perpetuating structures of intermittent power and authority that mask their lack of democratic legitimacy and systematic ineffectiveness. At their best, they provide relief in extraordinary situations of great distress; otherwise they are serving up a mixture of false hope and unaccountability sustained by "human rights" as a global brand. The Endtimes of Human Rights is sure to be controversial. Hopgood makes a plea for a new understanding of where hope lies for human rights, a plea that mourns the promise but rejects the reality of universalism in favor of a less predictable encounter with the diverse realities of today's multipolar world.

1 MORAL AUTHORITY IN A GODLESS WORLD

We are living through the endtimes of the civilizing mission. The ineffectual International Criminal Court and its disastrous first prosecutor, Luis Moreno-Ocampo, along with the failure in Syria of the “Responsibility to Protect,” are the latest pieces of evidence not of transient misfortunes but fatal structural defects in international humanism. Whether it is the increase in deadly attacks on aid workers, the torture and “disappearing” of al-Qaeda suspects by American officials, the flouting of international law by states such as Sri Lanka and Sudan, or the shambles of the Khmer Rouge tribunal in Phnom Penh, the prospect of one world under secular human rights law is receding.1 What seemed like a dawn is in fact a sunset. The foundations of universal liberal norms and global governance are crumbling, creating a vacancy where sovereignty and religion now make dramatic inroads in the post–Cold War world.2

Universal humanist norms once served a very specific historical purpose: to inspire a sense of the secular sacred among the new middle classes of a rapidly modernizing Europe. This secular religiosity enhanced and extended the social order nineteenth-century Europeans had created and idealized. It was an antidote to a troubling contradiction, the coexistence of progress with intensifying violence, vast social and economic inequality, and fears of “the disenchantment of the world.”3 Not only has that historical purpose become defunct, but the institutions that were created to perform it now function as self-perpetuating global structures of intermittent power that mask their lack of democratic authority and systematic ineffectiveness. The best they may occasionally do, and it is often a lot even if wholly inadequate to the task, is provide relief in situations of great distress. Much of what remains is a mixture of false hope and unaccountable intervention. They survive as parts of a grand narrative that gives an ideological alibi to a global system whose governance structures sustain persistent unfairness and blatant injustice.

Responding to a widening crisis of authority after 1848, nineteenth-century middle-class Europeans sought to resurrect a voice of definitive moral authority, a new Tower of Babel, this time in secular form. This tower was embedded in an enhanced sensibility, even sentimentality, about human suffering and fears for the future of the bourgeois social order.4 Its walls were made of law written to protect the individual from harm. The International Criminal Court (ICC) and the Responsibility to Protect (R2P) bring the tower to near completion, with only the utopia of universal jurisdiction to go. When the ICC opened in 2003, its home city, The Hague, was described as “the judicial capital of the world.”5 The Coalition of ICC supporters (the CICC) wants the court’s new building to symbolize “the will of an epoch translated into space.”6 Preeminent R2P advocate Gareth Evans subtitled his recent book Ending Mass Atrocity Once and for All.7 And the deputy director of Human Rights Watch and former UN humanitarian chief Jan Egeland believes we can be “the generation that can end the suffering.”8 For true believers in humanism’s promise we are on the cusp of a hard-won future of realized justice. They are willfully mistaken, but why?

First, the vast superstructure of international human rights law and organization is no longer “fit for purpose.” Indeed, once one strips away its self-justifications—that it is legitimated by unmet needs, that is a product of natural justice codified in positive law—we see it is and was always a partial, ideological answer to the question of how to handle the crisis of authority brought on by modernity. How different would the world really look without the multibillion-dollar humanitarian, human rights, and international justice regimes? How much less chronic suffering would there really be? The shallow roots of Human Rights institutions in practical political situations are the revelation of this underlying reality, exacerbated by increasingly rapid and radical change to which the one-size-fits-all universalism of global Human Rights is an outmoded response. Integral to this obsolescence is the decline of Europe, the institutional echo of its ideological ascendancy finally failing having far outlasted its imperial political power. The cataclysmic blow of the Holocaust was followed in the 1970s by the ascendancy of a more democratized and political conception of human rights under American leadership, which condemned European “secular religiosity” to marginal status. The result, by the 1990s, was Human Rights, a last moment of brightness before decline set in.

Second, the deep norms that sustain this superstructure are under attack as never before by conservative nationalist and religious forces. Few advocates see the need to argue explicitly that global norms must be secular, universal, and nonnegotiable—that they apply to everyone, cannot be authorized by a god, and cannot be traded away. But this is a claim, one that confident modern Europeans took for granted, and not a fact. Humanist moral authority remains always in play because in representing all equally it represents no one directly. Even if it privileges middle-class interests, it cannot be named as such, for to acknowledge its ideological roots would destroy its self-understanding and legitimacy. Add to this the role of spoilers, who actively seek conflict, and the difficulties of speaking with “one voice” across huge cultural and geographical distances, and the picture is even bleaker. The universal, secular, and categorical basis of global norms undermines their local political effectiveness. For example, in relation to survivors and witnessing, what is seen is often less important than who sees it. The politics of authority is critical in areas that challenge humanism’s core norms, such as everyday violence or family, gender, and sexual norms, where the impact of global human rights in the face of competing local authorities is virtually nil.

Third, a shift in the distribution of power globally, away from a unipolar American-led system toward a more multipolar world, has revealed just how much Human Rights institutions rely on liberal state power and its reinforcement by the middle classes who staff and finance humanist organizations. International nongovernmental organizations (INGOs) and Human Rights advocates gain political traction internationally only when they serve the functional requirements of powerful states. The NATO-led intervention in Libya in 2011 and NATO’s impotence in Syria in 2013 are a good illustration. NATO is the battering ram. And as power has shifted, so states large and small, particularly in Asia, feel empowered to reject human rights norms. The outlier here is the United States, a spoiler when it comes to global norms and so the key legitimizer of a shift toward sovereignty and reciprocity-based international law. In this sense, talk of “the West” is misplaced. In terms of attachment to sovereignty, self-determination, and national exceptionalism, the United States finds itself more like China and less like Europe.

The Human Rights Imperium

The speed with which human rights has penetrated every corner of the globe is astounding. Compared to human rights, no other system of universal values has spread so far so fast…. In what amounts to an historical blink of the eye, the idea of human rights has become the lingua franca of international morality.9

In recent accounts with titles like Humanity’s Law and The Justice Cascade prominent scholars agree: we are living in an era of unprecedented normative progress.10 In 1992, heralding this development, UN Secretary-General Boutros Boutros-Ghali declared that “the time of absolute and exclusive sovereignty has passed,” and the subsequent expansion of human rights discourse would appear to bear him out.11 Some date the roots of change to 1776 and 1789, most to 1945, a few to the 1970s. All agree, however, that by the 1990s Human Rights had achieved ascendancy.

During these years the United Nations High Commission for Human Rights was established by a 1993 World Conference on Human Rights in Vienna. It stated in Article 1 of its concluding declaration: “The universal nature of these rights and freedoms is beyond question.” This was followed by the remarkable story of the arrest of General Augusto Pinochet, former Chilean head of state, in London in 1998 under a warrant issued by Spanish judge Baltasar Garzón. Garzón charged Pinochet with multiple counts of torture committed in Chile, citing the principle of universal jurisdiction to demand the general be extradited to Spain. The British House of Lords enhanced the case’s impact by ruling that some international crimes were too terrible to be covered by head-of-state immunity.12 Pinochet was controversially released and returned to Chile in 2000 on health grounds, but the precedent had been set; in 2009, for example, then Israeli opposition leader Tzipi Livni canceled a visit to Britain after a warrant was issued for her arrest on war crimes charges.13

International justice has been the vanguard of this transformation. Nominally born out of developments in international humanitarian law and domestic mechanisms of transitional justice, these institutional innovations have been heavily influenced by the idea of human rights.14 The United Nations Security Council created international criminal tribunals for Bosnia (1993) and Rwanda (1994) after mass atrocities in both countries. It also referred the situations in Darfur (2005) and Libya (2011) to the ICC. A Special Court for Sierra Leone (SCSL), as well as tribunals for Lebanon and Cambodia were established, and since 2002 the ICC has been a standing, permanent court in The Hague to try individuals accused of genocide, crimes against humanity, and war crimes (and eventually, its supporters hope, aggressive war). Now, ten years after its founding, it has had its first successful prosecution, that of the Congolese militia leader Thomas Lubanga Dyilo on charges of recruiting, enlisting, and using child soldiers. In May 2012 former Liberian president Charles Taylor was also convicted by the SCSL (sitting in The Hague) of aiding and abetting war crimes and crimes against humanity in Sierra Leone and sentenced, pending appeal, to fifty years in prison. Overall, it is estimated that by 2015 the major international criminal courts will have cost nearly $6.3 billion. The largest burden was initially carried by the United States, but as the ICC comes to take up a bigger percentage of tribunal spending, the Europeans will soon provide 60 percent of all funds for the courts.15

While the Rome Statute of 1998 establishing the ICC is a state treaty, a 2005 International Committee of the Red Cross study on international humanitarian law concluded that most provisions of the Geneva Conventions were also customary international law, meaning they apply even if a state has not ratified the conventions (more than 190 states already have).16 Finally, in 2011, the principle of the Responsibility to Protect was, its advocates argued, fully recognized in two Security Council resolutions that authorized military action in Libya. This doctrine, the successor to humanitarian intervention in the 1990s, emerged out of post-Kosovo concern that NATO’s bombing campaign against Serbia had been illegal. R2P was intended to resolve this dilemma, putting pressure on states to protect their own citizens and legitimating the international community to step in if states failed. Critical to these developments has been the idea of crimes against humanity. Nominally part of international humanitarian law—and codified in the Rome Statute—the charge of crimes against humanity is set to be the jus cogens (natural law) for our age. In the ICC and R2P, in other words, global human rights are embedded as the fundamental normative principle by which the behavior of all political entities—states, non-state armed actors, communities, and individuals—is to be judged.

The foremost lobbyist for international criminal justice, and first president of the International Criminal Tribunal for former Yugoslavia (ICTY), Antonio Cassese, claimed that the first international war crimes prosecution since Nuremberg in 1945 (of Bosnian Serb torturer Duško Tadić), with which he was intimately involved, was the moment when Human Rights finally triumphed over state power in principle. For Cassese, Tadić’s trial shifted the world community from a “reciprocity-based bundle of legal relations, geared to the ‘private’ pursuit of self-interest, and ultimately blind to collective needs, to a community hinging on a core of fundamental values, strengthened by the emergence of community obligations and community rights and the gradual shaping of public interests.”17

This transformation comprised a space of impartial judgment over and above sovereignty legitimated by the “interests of humanity” and the specific content of those judgments. It tied primary and secondary rules together. Primary rules are norms and obligations of behavior (e.g., against torture, war crimes, or crimes against humanity); secondary rules specify which primary rules are valid so that “the fact of their violation [can be] conclusively determined.”18 Recognition as an authority on secondary rules confers the ultimate power to adjudicate primary rules, that is, to validate the law. This is the humanist utopia: to speak in the name of Human Rights is to put the neutral, objective, and universal ahead of the partial and subjective. It is to become The Authority. If we imagine Karl Popper’s “open society” as a place of tolerance for all ideologies except those that threaten tolerance itself, humanists like Cassese aspire to enlarge and defend that archetypally liberal space.19

The true achievement of humanists has been to embed their authority claims in tangible, concrete institutions like the ICRC and the ICC. It is political strategy 101: turn your ideology into facts on the ground. Make laws, set up courts, prosecute people; build the power of law through political action. Selling Babel to skeptical states and nations for more than a century meant persuading people to believe the authority of secular norms was as infinite and absolute as that of the Christian god had once been. But this claim to wield superior authority is “never more than an act of social magic that works.”20 Trust, in reality neither natural nor transcendent, must be constructed. As a result, it remains always and permanently contested.

Humanist social magic has successfully rendered “humanity” objective enough that crimes can be committed against it and subjective enough that it can defend itself with massive violence (R2P) and pursue retribution against its enemies (ICC). The original “constitutional moment” was the Geneva Convention (1864) born out of the traumatic wounds of the battle of Solferino in 1859. Advocates have been striving for more than a century since to use moments of extreme suffering to ground the architecture of law, seeking always to establish their preeminent authority. This means fusing the secular word of god (natural law) with positive law, that is, law to which states have explicitly agreed, and customary law.21 Being based on agreement, positive law is alw...