International human rights under attack
3 January 2011
Stephen Kinzer, a New York Times journalist and author, has written a scathing article on the efforts of international human rights groups on Guardian.co.uk. The article has generated controversy but in fact keys into a long-standing debate with important implications for the future of the international human rights movement.
The Kinzer article has predictably generated significant debate, with over 300 reader comments so far. Many of the commenters are critical, as is to be expected.
Kinzer’s basic argument is that Human Rights Watch in particular and international human rights groups in general should draw a sharp distinction between open and closed societies. A closed society must be encouraged to grant its population basic rights such as food, personal security and the rule of law. Only in open societies should groups campaign for “secondary” rights such as freedom of the press and freedom of information.
If the open/closed distinction is ignored, argues Kinzer, well-meaning campaigners risk playing into the hands of dictators and imposing the wrong standards upon societies which are not ready for them.
Some misunderstand Kinzer’s argument, assuming that he means closed (read: non-Western) societies and populations are too unsophisticated or simplistic for complex rights such as freedom of expression. In fact, he is arguing that “secondary” rights such as free expression which are central, for example, to our own Human Rights Act, can only sensibly exist once more basic rights such as food, water and the rule of law are secured.
For example, in Rwanda, “jobs, electricity, and above all security is not considered a human rights achievement; limiting political speech and arresting violators is considered unpardonable”. By transposing standards from an open society without mediation, human rights campaigners are both misguided and ultimately unsuccessful.
Going forward, Kinzer argues, the question “should not be whether a particular leader or regime violates western-conceived standards of human rights”, but rather “whether a leader or regime, in totality, is making life better or worse for ordinary people.”
As many of the commenters point out, Kinzer’s argument runs the risk itself of promoting dictators, who could argue that their curbs on freedom of expression are necessary in order to improve the basic situation of the people. The “benevolent dictatorship” – for example in China – works according to these principles. The danger is that the “secondary” rights may never appear, because primary rights may be a precondition to such rights but do not necessarily lead to more freedoms.
Kinzer’s argument is not new, and in fact keys into a debate which has been raging for a number of years: namely, the proper focus of international human rights movement. Similar criticisms of overstretch and well-meaning but destructive moralising were made in a notorious 2009 New York Times op-ed piece by the founder and former head of Human Rights Watch, Robert Bernstein. He argued that
When I stepped aside in 1998, Human Rights Watch was active in 70 countries, most of them closed societies. Now the organization, with increasing frequency, casts aside its important distinction between open and closed societies.
Whilst the organisation “always recognized that open, democratic societies have faults and commit abuses” they saw that those societies “have the ability to correct them — through vigorous public debate, an adversarial press”. By rejecting the open/closed distinction, said Bernstein, HRW was losing it’s legitimacy.
Similarly, in 2007 The Economist criticised Amnesty International – the world’s largest human rights organisation – for what it perceived as a drift from its original campaigns on freedom from judicial persecution to a broader mission for political and economic improvement. By moving away from its focus on prisoners on conscience, the organisation may have lost some of its legitimacy:
Some wonder if Ms Khan [Amnesty’ head – then and now] has been too keen to impress constituencies in what NGO-niks call the “global south”: code for developing countries, where opinion—at least among the elite—supposedly favours economic development over a “northern” concern for individual rights. She vigorously contests that. But an organisation which devotes more pages in its annual report to human-rights abuses in Britain and America than those in Belarus and Saudi Arabia cannot expect to escape doubters’ scrutiny.
More recently, I posted on Professor Samuel Moyn’s new book, The Last Utopia, in which he argues that the international human rights movement has lost its way since the end of the Cold War, when the former Soviet Union provided a simpler target for human rights activists. Now human rights have come to ” promise everything to everyone” meaning they “can end up meaning anything to anyone”. This has, he argues (quoting the late Tony Judt)
misled a generation of young activists into believing that, conventional avenues of change being hopelessly clogged, they should forsake political organization for single-issue, non-governmental groups unsullied by compromise.
So, whilst Stephen Kinzer’s argument may sound unattractive to those who champion universal human rights, on a charitable reading it does at least raise a legitimate challenge to the strategy of international human rights campaigners, and one which has been raised by others before him. This debate is neither new or particularly surprising, but it is certainly healthy and raises questions, not just for international human rights groups but also as to the proper application of human rights to foreign policy, which should not be ignored.
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…and there’s this from Belarus
I have long held the view that our society is made up of
closed prisons (the penal estate) and open prison
(liberty/freedom). For the first time in English penal history New
Year’s Day saw a riot in an open prison. Wonders never cease, in
the Daily Mail online today is this from Peter McKay: “Was it
sensible for officers at Ford Open Prison to breathalyse prisoners
around midnight on New Year’s Eve? During the subsequent riot,
fires destroyed six blocks, a mail room, gym, snooker room and pool
room (it sounds grander than White’s club). The management of the
prison knew alcohol (as well as other forbidden items) was being
carried into Ford. Local residents told them all about it. So why
not just find the stuff before it’s consumed? Breathalysing
prisoners around midnight on New Year’s Eve is stupid. By all
means punish the rioters (as prisons minister Crispin Blunt
suggests), but discipline whoever was responsible for the untimely
breath test”. On Days Like These/This is the self-preservation
society… Picture the scene, the coalition battle bus is hanging
over the White Cliffs of Dover… “Hang on a minute lads, I’ve got
a great idea…”. It is respectfully submitted that Burton J, in
para. 13, of Chester  EWHC 293 (Admin) was wrong when he
stated: “Since the Government is proposing to put primary
legislation before Parliament, it is thus neither necessary nor
sensible for them to consider the alternative route of remedial
action pursuant to s.10 of the HRA 1998, in the light of the
Declaration of Incompatibility” in Scott v Smith  SC 345. In
the light of the threatened Tory rebellion over the issue of
convicted prisoners and the vote, it is submitted that a
constitutional crisis may be averted if the Secretary of State for
Justice, Kenneth Clarke, took this course of action to fully comply
with Hirst v UK (No2). Lord Lester of Herne Hill, QC, has
previously suggested this as an option in one of the reports from
the Joint Committee of Human Rights. The right wing media and 1922
Committee appear to be rioting. Hotheads do not make for good
interpretations (if they can be called that) of Hirst v UK (No2).
Quite apart from the fact that under European law the UK has no
authority to interpret my judgment. This is a matter for the ECtHR
and Committee of Ministers of the Council of Europe. James Forsyth
on the Spectator Blog yesterday is up in arms about the
Government’s proposals of allowing those convicted prisoners
serving 4 years and under to vote. He claims that the coalition’s
no option but to comply claim is false. He states: “In truth, it
could have complied with the court’s verdict by setting the cut-off
point at, say, a year”. It is submitted that both the coalition’s
proposals and Forsyth’s claim are wrong. My case is the leading
authority on the subject, and it is arguable that I am the foremost
leading authority on my case in the country. I refuse to go along
with the King’s New Clothes lie, because the naked truth is, it is
clear to me that the judgment states that all convicted prisoners
must get the vote. As the Grand Chamber states: “The present case
highlights the status of the right to vote of convicted prisoners
who are detained”. This reasoning is based upon the text of Article
3 of the First Protocol. Including “having regard to the
preparatory work” behind the Article “and the interpretation of the
provision in the context of the Convention as a whole”. While the
right may rant and rave in the media (including new media), and in
backrooms in the Houses of Parliament (1922 Committee), and
claiming to be speaking for public opinion: “The Court has had
frequent occasion to underline the importance of democratic
principles underlying the interpretation and application of the
Convention… and it would use this occasion to emphasise that the
rights guaranteed under Article 3 of Protocol No. 1 are crucial to
establishing and maintaining the foundations of an effective and
meaningful democracy governed by the rule of law…As pointed out
by the applicant, the right to vote is not a privilege. In the
twenty-first century, the presumption in a democratic State must be
in favour of inclusion, as may be illustrated, for example, by the
parliamentary history of the United Kingdom and other countries
where the franchise was gradually extended over the centuries from
select individuals, elite groupings or sections of the population
approved of by those in power. Universal suffrage has become the
basic principle…Any departure from the principle of universal
suffrage risks undermining the democratic validity of the
legislature thus elected and the laws which it promulgates.
Exclusion of any groups or categories of the general population
must accordingly be reconcilable with the underlying purposes of
Article 3 of Protocol No. 1…There is, therefore, no question that
a prisoner forfeits his Convention rights merely because of his
status as a person detained following conviction. Nor is there any
place under the Convention system, where tolerance and
broadmindedness are the acknowledged hallmarks of democratic
society, for automatic disenfranchisement based purely on what
might offend public opinion”. Human Rights, Democracy and Rule of
Law are what my case is all about. The UK had argued that it was
entitled to disenfranchise convicted prisoners because it was
claimed that that is what public opinion demanded. In the
concurring opinion of Judge Caflisch: “…the decisions taken by
this Court are not made to please or indispose members of the
public, but to uphold human rights principles”. I do not support my
country right or wrong. Rather, as a human rights defender, I
support the European position of human rights being higher law. The
battle lines are being drawn. I would contend that the losers will
be ignorance, prejudice and fear. In my view, Paul Goodman over at
ConservativeHome is a loser for his suggestion that David Cameron
maintains the status quo, that is, no votes for prisoners, “and
returning the matter to the court, thus meeting its challenge”.
Excuse me, but the challenge was mine and the UK lost, the Court
decision is final. There is a mistaken belief that the Council of
Europe will tolerate a Member State being not a democracy but
totalitarian or authoritarian, and which ignores human rights and
the rule of law. Think again. If Hirst v UK (No2) returns to the
Court, it will be my doing, and the UK will be deemed a rogue or
pariah state and an outcast in Europe. That is, an outlaw. No trade
with either Council of Europe or EU countries, sanctions imposed by
the UN. As for Raab: “Who is seriously suggesting that Britain
would be kicked out of the Council of Europe?”. I am, and so are
the other 46 Member States. Don’t forget since the Lisbon Treaty
the UK will also get kicked out of the EU. As a consolation, I
suppose we could become the 51st state of America…
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