Daily Archives: 7 November 2006

The ICC: An International (Neo-)Colonial Court?

In June 1998 the treaty for the International Criminal Court was signed in Rome…. Despite the positive publicity the court has already received from the human rights movement, it can only magnify the dangers of the ad hoc tribunals. The standard of justice that will be delivered has already been widely questioned, as the odds will be stacked high against defendants with the court structured to enable close co-operation between the judges and prosecution at the expense of impartiality and even-handed justice. The dependence of the court on the support of the major powers indicates that those brought to account for ‘international crimes’ will be little different than under the present ad hoc system. Like its ad hoc predecessors, it will be little more than the backdrop for show trials against ‘countries like Rwanda and former Yugoslavia where none of the combatants have superpower support’.

The human rights NGOs have been heavily involved in these international institutional developments. Amnesty International and Human Rights Watch led the lobbying of nearly 200 NGOs with delegates involved at the 1998 Rome Conference. The main message of the NGO reports was summed up by Human Rights Watch: ‘Delegates are urged to ensure that the Rules do not add to the burdens of the Prosecutor, create additional procedural steps or further limit the Court’s jurisdiction.’ Even legal commentators supportive of the new court were taken aback by the desire of these groups to abandon judicial neutrality in the search for ‘justice’. Geoffrey Robertson QC notes ‘what was truly ironic was their zeal for a court so tough that it would actually violate the basic human rights of its defendants’. Amnesty International, an NGO that established its reputation by prioritising the rights of defendants, has even called for the abolition of traditional defences, such as duress, necessity and even self-defence, for those accused of crimes against humanity. The rapidity with which established human rights NGOs, such as Amnesty, which previously defended the rights of all defendants, have taken up the agenda of international institutions, illustrates the shift away from universalist approaches to ‘justice’ today….

The developments in international law since 1990 have been greeted by the human rights community as universalising and extending the law, providing greater protections for the least powerful…. In fact, the reverse is true. Attempts to strengthen international law, without the development of any global authority able to stand above powerful nation-state interests, have instead reinforced the political and economic inequalities in the world. Removing the rights of non-Western states to formal equality in international law has not led to a redistribution of power away from the powerful to the weak, but reinforced existing social and economic inequalities, institutionalising them in law and politics. Despite their rhetorical critiques of the old Westphalian order, the advocates of ‘international justice’ have done much to resurrect it. As we have seen in the Middle East, Africa, the Balkans and Afghanistan, the development of new international jurisdictions has heralded a return to the system of open Great Power domination over states which are too weak to prevent external claims against them. As Simon Jenkins notes:

Augusto Pinochet of Chile is seized from the authority of his own people for inquisition by Chile’s former ruler, Spain. President Saddam Hussein [was] being bombed by Iraq’s one-time overlord, Britain … Post-colonial warlords are summoned from Africa to stand trial for ‘war crimes’ in once-imperial European capitals.

What is different in the twenty-first century is that this open domination is not legitimised by a conservative elite, on the basis of racial superiority and an imperial mission, but by a liberal elite, on the basis of ethical superiority and a human rights mission.

SOURCE: From Kosovo to Kabul and Beyond: Human Rights and International Intervention, new ed., by David Chandler (Pluto Press, 2006), pp. 147-148, 155-156 (reference citations removed)

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Human Rights vs. Human Agency

With little agreement on the substance of human rights, or the means of implementing them, it is easy to see why the claims made are often declared to be normative ‘wish lists’. To achieve the good ends of human rights advocates … is ‘to reshape political and social relations so that this moral vision will be realised’: ‘Human rights thus are simultaneously a “utopian” vision and a set of institutions – equal and inalienable rights – for realizing at least an approximation of that vision.’

The lack of an autonomous human subject means that human rights advocates’ aspirations for a better and more just society must necessarily focus on a beneficent agency, external to the political sphere, to achieve positive ends. There may be a duty to act to fulfil human rights needs but there is no politically accountable institution that can be relied upon. In order to help bridge this gap, between the ideal critique of the real and solutions which are necessarily part of the profane reality, human rights advocates tend to privilege the role of institutions which can stand above politics.

In the world of realist political and international relations theory, the focus is on existing institutional arrangements. This focus makes it difficult to accept the possibility of institutions that stand independent from social and political pressures. When addressing practical alternatives, the advocates of human rights are forced either to take existing political institutions, at state or interstate level, out of the political sphere or to posit some form of alternative institutional arrangement, which is independent of politics. For some theorists of human rights, the solution is to bring the state back into the analysis. But, of course, only if the political sphere is subordinated through the institution of forms of regulation independent of elected government. This can occur through political actors being bound by a bill of rights and, therefore, capable of acting morally, that is, independently from the economic pressure of the world of business and the political pressure of parliamentary competition.

The idea of the state acting morally to guarantee a set of moral ends seems to fly in the face of the democratic political conception of the state, based on the need to achieve consensus between competing interests within society. To justify the subordination of politics to moral ends, human rights theorists often stress the protective and morally progressive role of the state as the guarantor of democratic political rights as well as potential human rights….

What was lost in the promulgation of human rights theory in the 1990s was the connection between rights and subjects who can exercise those rights, which was at the core of political accountability and democracy. Once the historical and logical link between rights and the subjects of these rights is broken, then democracy is a meaningless concept. The epistemological premise of democracy is that there are no final truths about what is good for society that can be established through the powers of revelation or special knowledge…. If we accept that people are the best judges of their own interests, then only self-determination can be the basis for collective self-government. Democracy, therefore, is only a means to an end, to the realisation of the public good because it allows people to define what that good is, as well as to control the process by which it is realised….

All human rights advocates share the view that social justice, the righting of ‘human wrongs’ should stand above the formal political equality of liberal democracy. The protection of women, national minorities, children, the environment, peace, multi-ethnic society and many other rights-causes are considered, by their advocates, to be too important to be left to the traditional instruments of domestic and international government. Whereas representative government works to realise the derivation of the state from the will of the people, human rights theorists seek to subordinate the will of the people to ethical or moral ends established by a less accountable elite. The traditional conservative critique of democracy was that of the ‘despotism of the multitude’; today’s human rights advocates dress these nineteenth century arguments in the twenty-first century garb of normative rights theory….

In place of the democratic participatory society, assumed as the basis of the political conception of rights, the role of the individual is a much less empowered and passive one. In place of politics, we have the moral advocacy of a liberal elite. The voices of the human rights victims and politically excluded are not expressed through the ballot box but are the raw material for their self-appointed liberal advocates in the media, academia and the international NGOs….

Once humans are universalised, not as competent and rational actors capable of determining their own view of the ‘good’, but as helpless victims of governments and the forces of the world market or globalisation, then democratic freedoms and civil liberties appear meaningless. Under the guise of ‘ethical’ universalism the human subject is degraded to the lowest level, in need of paternalist guidance from the ‘great and the good’ who can establish a moral agenda of human rights to guide, educate and ’empower’ the people. The assumptions and processes of representative democratic government are turned on their head.

SOURCE: From Kosovo to Kabul and Beyond: Human Rights and International Intervention, new ed., by David Chandler (Pluto Press, 2006), pp. 110-111, 114, 116, 119 (reference citations removed)

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