"Human Rights" has been for a generation the chosen battlefield of U.S. worldwide propaganda. The United States, which imprisons a much larger percentage of its population than any other country, routinely sets itself up as the universal arbiter of human rights. Its propagandists argue that the sole alternative to the "universality "of human rights as set out by Jesse Helms, Madeleine Albright and George Soros is a relativism that would give a different meaning to human rights depending on whether the humans involved are Western or Chinese, Judeo-Christian or Muslim, and so on. But this is a false dilemma. Despite its pretensions, U.S. interests are not universal interests; its courts are not World Courts; its law is not international law. But there are indeed universal human rights that have emerged in the global struggle to acknowledge our common humanity. As Uwe-Jens Heuer and Gregot Schirmer argue, they are those rights set out in international law by the treaties and declarations that have obtained the concurrence of the states of the world. We must fight for the recognition in practice of these human rights worldwide. And perhaps their greatest enemy is none other than that very "Human Rights" that is no more than a tool of U.S. policy, and is proclaimed to the world ad nauseum by its media, its NGOs, and its diplomats.
- The Editors
Human rights were embodied in international law for the first time half a century ago. According to the United Nations Charter, one of the goals of the organization is international cooperation "to advance and strengthen the respect of human rights and basic freedoms for all people, regardless of race, sex, language and religion." The thirty articles of the Universal Declaration of Human Rights of 1948 set out in detail the UN Charter's goal of international cooperation for the advancement of human rights and basic freedoms. The Convention on Prevention and Prosecution of Genocide of the same year is a great advance and landmark in the body of international law, binding on the states that have ratified it. These two achievements, which came at the very moment of the inception of the cold war, were due to the continuing democratic-antifascist impetus of the struggle and victory of the Anti-Hitler coalition in the Second World War. In the verdicts at Nuremberg the Nazi leaders were not only convicted of war crimes but also of crimes against humankind. The recognition of human rights in international law is thus a lasting triumph of the great antifascist coalition that split apart with the start of the cold war. But in its aspect as ideology (as opposed to its aspect as an element of international law), "human rights" became an effective weapon of the cold war and remains a heavily used propaganda tool of the new neoliberal global regime. It is on this distinction between human rights in international law and in (neo-imperial) ideology that we focus here.
The next great advance after 1948 came with the adoption of the two International Covenants, on Civil and Political Rights, and on Economic, Social and Cultural Rights, in 1966. These treaties are legally binding, but there is only an extremely weak mechanism for their implementation. The explicit inclusion of economic, social, and cultural rights as human rights within the scope of international law was a major accomplishment. It stands today as a reproach to orthodox neoliberal ideology, although it is characteristic that social rights are formulated as general goals to be gradually reached. These treaties were made in the context of that advance in human freedoms marked by the breakdown of the colonial system and the growth of the liberation movements. The primary international political actors have not been quick to ratify these treaties, which first took effect in 1976. The United States first joined the treaty on political rights in 1992, and still does not adhere to the treaty on social rights.
The human rights established in these and other universal and regional agreements are certainly not the neplus ultra of the legal regulation of the development of human emancipation. But the world would certainly look completely different and much more just, were human rights to be realized like those recognized in Article 11 of the Covenant on Economic, Social and Cultural Rights (including the rights to food, clothing, shelter, and improvement of the conditions of life).
But the reality is different. In all parts of the world human rights were and are negated and trampled upon daily. One cause of the failure of the socialist states in Europe was the disregard of, and injury to, human rights. Today the countries which purport to be defenders of human rights, including Germany and the United States, disregard human rights in their own territories. In Germany there are continuous multiple violations of the human rights of non-EU foreign residents and of citizens of the former GDR. Hunger and poverty in the third world are denials of elementary human rights. In Rwanda, inhumane conditions degenerated into genocide.
In the case of grave injury to human rights, it seems clear that states should not remain passive in the name of non-intervention in the domestic affairs of another country. But this is just one side of the story. The other side is that the question of human rights was abused by the United States and NATO as a tool aimed at the destruction of what had been achieved in the socialist countries, is still abused as a vehicle for the assertion of hegemonic interests against the independence of states of the third world, and is ever more frequently accompanied by the use of military power. This is a dangerous development which can properly be designated human rights imperialism.
Henry Kissinger argued in his book, The Reason of Nations, that where Nixon, Ford, and Carter had found "human rights" to be useful in their political language, Reagan and his advisors went further and put "human rights" into the toolbox to be actively used in the destruction of "communism" and the "democratization" of the Soviet Union. How the ideology of "human rights" was used to deprive hundreds of millions of people of their social and economic rights requires more attention than it has so far received.
The following ideological pattern lies behind the instrumentalization of human rights:
First, the sphere of law (" Right") and human rights are (conceptually) separated from the state and from politics. But Right, and with it, international law, is a social product, the result of social struggles, and only comes to be when it is set out as law and sanctioned by the state. Once thus set out, law does take on a certain degree of autonomy and in turn affects the society and politics from which it arises.
But the separation of Right from the state and politics leads to its mythification. It now seems to come from the heavens above. The question of democratic legitimation of Right (through historical social struggles) disappears, as if the decisions of courts could somehow legitimate themselves. In Anglo-American legal thinking, these notions have played an important role for a long time. In international law the separation of Right from states and politics similarly disguises how crisis-reaction military intervention and ad hoc adjudication, as is being tried presently in Bosnia, occur by means of the exclusion of the international community of states.
Second, human rights are separated from the governing principles of international law. Instead, human rights are presented as a species of natural law self-evident to the elect. The controlling principles of the UN Charter, of sovereign equality, non-intervention, international cooperation, and prohibition of violence, are no longer of interest. But human rights can only be realized through the respect of these principles. The UN Charter puts human rights in the context of cooperation of the member states, not in confrontation. The Declaration on the Principles of International Law, approved by the General Assembly in 1970 by consensus, sets out that universal protection and respect for human rights and basic freedoms for all (as well as the abolition of all forms of racial discrimination and religious intolerance) are to be secured through international cooperation.
Since the demolition of the USSR and the end of the cold war, there have been a number of cases where the United States and NATO have reacted militarily to the injury of human rights in other countries ("humane intervention"), justified as supposedly the only remaining way to preserve the peace and to save human life. But such military violence is a totally inappropriate means for human rights enforcement. The threat and use of violence in international relations is forbidden (Article 2 no. 4). Lacking compliance with the provisions of the UN Charter, "humane intervention" is in violation of international law.
Third, the unity of all human rights is then dissolved. Human rights get divided into two categories (political/civil and economic/social). The purported defenders of human rights are only interested in political/civil rights; economic/social rights are of no interest to them. Indeed, they deny their existence as rights. But unemployment, for example, is not just a temporary state of affairs but of the very nature of capitalism, and a permanent and grave injury to human rights. The untimely death of millions (without peacetime parallel in our times) in Yeltsin's capitalist restoration in Russia due to hunger, disease, and despair (in the forms of narcotics and alcohol abuse) are not considered human rights crimes although brought about with callous brutality.
Each human right stand in a relation of reciprocal dependence with each other, and thus forms a unity which cannot be destroyed. Political and civil rights are unconditionally necessary and can not be compensated through economic and social rights. This we had to learn painfully in our country, the GDR. But now we are having the no less painful experience that these (political and civil) rights exist primarily in the space of pious imagination, and are experienced by the former citizens of the GDR as a welcome but very limited increase in freedom, because these political rights are not sufficiently supported by the realization of social rights. The wretched of today's world - the poor, the starving, the homeless, the children condemned to starvation and disease, the women without rights, the old people left to live out their lives in want, even when in full possession of civil and political rights are not free. Nor are people really free when they are socially secure but politically disempowered.
Fourth, these reduced human rights become the ground for the generalization of "human rights injuries," with no specific reference to international norms. With no anchor in international law, human rights end up in the juridically dubious sphere of natural law. No explicit definition of human rights injury remains. One refers to the "idea" of human rights. This makes it easy to impose onto the current target of "structural adjustment" whatever notions of human rights are formulated by the lickspittles of such as Rupert Murdoch or the currency speculator George Soros. The development of human rights in the European Enlightenment, the independence struggles of the western hemisphere, and the bourgeois revolutions in Europe is a great historical accomplishment. It negates these human rights to make them into tools of neoliberal immiseration or to extend them through pressure and violence.
The universality of human rights must be understood as a process of peaceful cooperation, as an effort to have the participation of as many states as possible in the ratification of the already existing treaties, the drafting of new treaties, and the fulfillment of responsibilities. The universality of human rights is not an abstract principle but rather the binding character of the concrete norms of the UN Charter (and other agreements) for those states party to them.
Now, as before, the realization of human rights is - granted, not exclusively, but for the most part - the responsibility of the state concerned. But no state can appeal to its sovereignty and the principle of non-intervention in order to withdraw itself from its international human rights obligations. The other states, insofar as they have also taken on such obligations - and the UN within the bounds of its jurisdiction and powers - can demand of another state that it meet its obligations. They can use to this end the agreed-on procedures permitted by international law, but military force does not belong among the permitted steps. The UN is not a suprastate with police and judicial functions which can arbitrarily govern the individual states. And these functions are certainly not in the jurisdiction of the United States and NATO.
But how should a state act, if civil unrest in another state puts its nationals there in danger? Does the state have the right, or perhaps even the obligation, to rescue its citizens from such dangers, even with military power?
We would like to report for the English language reader an event which found little echo in the media, but is illustrative of the above problem. At the time of civil-war like conditions in Albania (in March 1997), German soldiers entered Albanian territory by helicopter in order to remove German and other foreign citizens. Shots were fired. That there were no dead or injured was pure chance. Consent of the Albanian government was not given. Germany acted alone. Neither the UN nor NATO was consulted beforehand. The explanation given was that this should become the usual way of dealing with complicated situations. The German army (Bundeswehr) is being trained for such situations. But are such actions legally, morally, or politically justifiable? We think not.
Such actions are in violation of international law. There are only two exceptions to the UN Charter's strict prohibition of force: the right of self defense against armed aggression; and coercive measures of the UN Security Council, when the Security Council has established that a threat to peace or an act of aggression has occurred. These exceptions did not apply to the case of the German action in Albania. It is unconscionable that a state would act above the law and with armed force to enter another state to rescue its really (or purportedly) endangered citizens. Who decides whether such a threat really exists, or whether no other option but military force remains? Who can exclude the possibility that such actions could develop into wars?
But what should happen when, within a sovereign state, human rights are systematically and gravely injured to the point of genocide? Regrettably the 1948 Genocide Convention gives no guidance on how it is to be enforced. Such cases are no internal affair of the state concerned. Should not the international community intervene as quickly and effectively as possible - that is, with all, even military, means? In answering this difficult question we think the following points must be considered:
First, who actually intervenes, and where? As a rule it is the powerful of this world, not the weak. The intervening powers are the United States, NATO, other Western states. Only they are in the military, economic, or financial position to carry out actions like those in the Persian Gulf or Somalia. In the case of Security Council resolutions, it is certain among the veto-powers (the United States, England, France) who are the key interveners. The "New World Order" in fact consists of a small group of powerful states playing world policeman.
Second, against whom is such intervention taken? Naturally never the capitalist great powers, NATO or European Union members. Certainly not against Great Britain in Northern Ireland, nor in Chechenia against the weakened but still nuclear Russia, nor against China in Tibet, nor against the United States in South Central Los Angeles. What remain as possible objects of intervention are a small number of weak states forsaken both by God and their allies. And even among these states a selection of the weakest is made. Political opportunism, not the gravity of the human rights injury, determines when and where the big guns are brought out.
Third, which grounds justify military intervention, and who decides in each case if such grounds obtain? No norms of international law define such grounds. The Security Council can resolve to take military measures when a threat to, or breach of, peace occurs (Article 39 of the UN Charter). But under which circumstances are human rights injuries at the same time breaches of peace or a threat to peace? That is a purely political decision by the Security Council, that is, by the five holders of veto-power. There are no certain criteria. The grounds for military intervention are defined by those who intervene. The absence of criteria regrettably opens the way to arbitrary action in the name of human rights, and often to imperialist action in this disguise.
Fourth, for whose benefit, and in whose interest, does the military intervention take place? We do not want to deny that military interventions like those of the Soviet Union in Afghanistan, of Vietnam in Pol Pot's Cambodia, or of the United States in Somalia may well have saved human lives, and may well have worked to the benefit of those threatened by hunger and terror. But in all these cases, and in others as well, the altruism of the intervening parties was a mere secondary phenomenon to crude self-interested efforts toward the expansion of political and military power, spheres of economic influence, and the like.
Rejection of military force as the means of enforcing human rights does not imply exclusion of all means. There are provisions for "civil" means in international law (diplomatic steps, economic sanctions, political isolation in international organizations). An example of a qualified success, partially achieved by these means, is the international campaign against the apartheid regime in South Africa that commenced in the 1960s and 1970s. These peaceful means were never, in any of the more recent cases of military "humane intervention," fully exhausted before the resort to arms. We are conscious of the ambivalence in such "civil" reactions. They are not to be approved casually merely because they are "civil." They are also subject to power politics. They are often directed against the people whose rights ought to be protected, instead of against the holders of power who disrespect these rights, and are often used arbitrarily and selectively. But non-military means are much more humane than wars waged in the name of human rights.
At times hopes are placed in an international criminal jurisdiction, the organ of which would be an international criminal court. This court would judge cases of grave human rights injuries according to agreed-upon norms of international law, and impose sentences on the offenders. We ought not to reject efforts in this direction a priori, but a severe skepticism is necessary. Perhaps a definition of human rights crimes (and corresponding norms which define liability to criminal prosecution) could be agreed upon. But it is totally improbable that the states of the world in which we now live would ever consent to enforcement of international arrest warrants against their own officials within their own territory, or to the extradition of their own officials to an international authority for prosecution and punishment.
The Rwanda and Yugoslavia tribunals are not hopeful steps toward international criminal law - they are ad hoc courts established to judge weak states, in violation of the principle of the equality of states. To try the responsible U.S. officials in a Vietnam tribunal or Yeltsin and his crew in a Chechenia tribunal is in practice impossible. The violent manner in which NATO soldiers carried out warrants against two Bosnian Serbs in their own country (in which one Serbian was killed) without the permission of the state authorities must not be allowed to become a common and tolerated practice.
Experience has shown that as things stand today, international criminal law is either impossible or degenerates into an instrument of imperialist politics. Under current conditions, with the United States the sole global superpower and with neoliberal (and U.S.) hegemony both asserted and contested on every continent, there simply cannot be a Nuremberg tribunal with universal authority valid for all countries and people.
The question remains whether and how, in light of this critical and pessimistic picture, conditions in conformity with human rights can ever be realized in this world. If one recognizes that the causes of human rights injuries lie in a specific set of social relations, in which the highest goals are the extraction of profit from commodified human labor and the accumulation of capital in the centers of imperial power, then the solution lies in the struggle against these relations.
At the international level this is a struggle for peaceful and equal relations between all states and peoples, large and small, strong and weak. This path is one of peace and disarmament, of securing autonomous economic development and humane conditions of life in the third world, and conserving of the natural environment.
A new generation of human rights - of an individual and a collective nature - are being voiced: the rights to peace, development, and an intact environment. The question of human rights thus recovers the dimension eliminated in the process of its instrumentalization in U.S. policy. But to realize these rights the following are necessary: a rigorous democratization of international relations; a reduction of the power of multinational corporations and finance capital; and the increased importance of a democratically reformed UN as a center of cooperation for problem solving, with human rights in a most prominent place. This really new world order would have to uphold the rule of law instead of" might makes right." And international law, and therefore human rights, must cease to be a cynical instrument in the policy of great powers, but become the measure and limit of state power.
A utopian view of international law? The attempt must be made to change the world, even if it is not clear whether it will succeed. The alternatives are barbarism or (a stage on the same road) the global dictatorship of the United States and its accomplices. In this dictatorship the decision to enforce human rights or to tolerate (or even approve and carry out) human rights injuries would be made, as it is today in Washington, as is convenient for the reproduction of the current polarized "world order." This would be the final perversion of the idea of human rights into human rights imperialism. Although under present conditions it may seem a daunting task, the attempt must nevertheless be made "to vindicate the simple laws of morals and justice, which ought to govern the relations of private individuals, as the paramount rules of the intercourse of nations" (Karl Marx, Inaugural Address to the International Working Men's Association, October 1864).
Prof. Dr. Uwe-Jens Heuer is a member of the German Bundestag and spokesman for the Party of Democratic Socialism Bundestag group on questions of law and justice. Prof. Dr. Gregor Schirmer is his staff assistant and colleague.…