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Founded in 1961, Amnesty International is the world's largest human rights organization, with over one million members worldwide. The organization works to free prisoners of conscience, to gain fair trials for political prisoners, to end torture and political killings, and to abolish the death penalty throughout the world. In 1977 Amnesty International was awarded the Nobel Peace Prize. Amnesty International's main Web site is www.amnesty.org.
Last spring my friend's teenage son quizzed me about the work of Amnesty International in a conversation best described as politely aggressive. As the conversation progressed, Adam became obviously bored with my description of the rather technical mandate that guides the work of the world's largest human rights organization. To recapture his attention, I began to describe Amnesty's recent work on female genital mutilation (FGM) and efforts to promote the international rights of children, specifically girl children. His interest picked up, and the exchange grew more animated.
"Wait a minute," he challenged. "How long has this practice of female cutting been going on?"
"A hundred years or more, I suppose. In some places longer, much longer," I replied.
"Then what gives us the right to tell them what to do?"
I paused. Adam's distinction between "us" and "them" was misconceived, inasmuch as Amnesty International's members come from all over the world and represent a wide variety of cultures and creeds. As it happens, within Amnesty circles the movement to halt FGM has been pressed most vigorously by the African membership. Ironically, many Western human rights members had to be challenged by their African colleagues to consider FGM a human rights violation.
My conversation with Adam exemplifies a broader debate taking place today about cultural relativity and the universality of human rights. The issues emerge in a variety of discussions, from U.S. foreign policy to the West's responsibility to stop the atrocities in Central Africa or the Balkans. And the debate does not just center on war: is it our business if the Chinese ban home churches, or if the French ban the Islamic scarf in public schools? Where did the idea of universal human rights come from? Whose values are being imposed? How can anyone claim that human rights are universal?
Politically sensitive Americans today don the mantle of cultural guilt too readily. The narrow notion of "citizen rights" is correctly attributed to Western philosophy, but when "citizen rights" are confused with "human rights," Westerners end up taking too much credit for the wider-reaching concept. If the notion of human rights were better understood, and the history of the political construction of the Universal Declaration of Human Rights (UDHR) better known, discussions about universal human rights might be shaped differently.
Stonewalling Before the Stonewall Riots: United States Efforts to Thwart the UDHR
Together with the founding of the United Nations, human rights is a central legacy of World War II. The concept of human rights, however, remains unfamiliar to most Americans today. The rights we are most familiar with are citizen rights, which are granted under the U.S. Constitution. Even in the 1960s, the political contest over rights in this country was shaped as a battle over "civil rights," not "human rights." The more revolutionary idea - that individuals have rights simply because they are human - was first articulated by Western intellectuals after World War I but did not gain political acceptance until after World War II. While the history of the UDHR is not well known in the United States, many here are aware that Eleanor Roosevelt chaired the original UN Commission on Human Rights, which produced the draft UDHR. From that isolated fact it is often inferred that the UDHR is an American-inspired document, and an effort of the United States to thrust its own individualist ideology upon the rest of the world.
When we examine worldwide political dynamics after the close of World War II, a more complex picture emerges. President Franklin Delano Roosevelt had, of course, delivered the famous "four freedoms" speech (including "freedom from want") in January 1941, and it was he who personally initiated the international human rights project. But the idea of human rights did not figure prominently in discussions that led to the creation of the UN. By 1946 Roosevelt had died, Harry Truman was in the White House, and opponents of Roosevelt's New Deal were gaining strength. Eleanor Roosevelt frequently found herself at odds with President Truman's Secretary of State, Edward Stettinius. They were particularly divided with respect to articles promoting such socio-economic rights as education and welfare, which are not so well rooted in Western traditions as civil and political rights and which many American politicians opposed being treated as rights.
In fact, support for Roosevelt-era ideas was on the wane, and Truman only narrowly won the presidency in 1948. Throughout his time in office he was forced to do battle with an American right wing labeling itself "the Old Guard." What upset the Old Guard - which included Senators Joseph McCarthy and John Bricker as well as American Bar Association president Frank Holman - was the apparent expansion of federal power through what they labeled the "new internationalism." The University of Michigan merits at least a footnote in the story: it was a UN official's speech in Ann Arbor in 1947 that first brought to Holman's attention the work of the UN Human Rights Commission.
Holman and associates stirred up opposition to the human rights treaties whenever they could, even if it meant playing the incendiary race card. It may now seem implausible, but in the late 1940s Holman, one of the country's leading lawyers, argued against an international human rights treaty because it might oblige some of the federated states to pass laws against lynching. Racists working under the banner of "states rights" championed the Old Guard's case, and Dixiecrats accordingly supported Senator John Bricker's proposed constitutional amendment to limit presidential powers to sign treaties and make international commitments without the full and independent support of the states. The political climate was such that Bricker's proposed amendment failed in the Senate by only one vote.
Senator Bricker was an adamant opponent of "treaty law," and he took special exception to the human rights treaties. Lambasting the draft covenant on human rights, he told the Senate, "There is not a dictator in the entire world who cannot find in the Covenant on Human Rights support for most of his vicious practices. Approval by the United States would inform millions of oppressed people that freedom of speech, press, and religion, the right to a public trial and other rights specified in our Constitution are outmoded principles of government." When we consider the political context of late 1940s and early 1950s, it is hardly surprising that the conservatives sought to contain the doctrine of human rights nearly as vigorously as they were trying to contain communism. U.S. delegates to the Third Committee proceedings of 1948 met regularly to discuss strategy, but the written record makes clear that their principal concern was to prevent the human rights idea from getting out of hand.
If the United States was not going to champion human rights, who would? Certainly not the USSR, which supported some of the articles but argued against many others and ultimately abstained when the UDHR was put to a final vote in the General Assembly. England still had colonial matters on its mind and did not assume a leading role, despite President Roosevelt's efforts to enlist its support. Other European powers - including France and Belgium - participated actively, but while delegates devoted themselves to perfecting the text, they did little to sell the document to their home countries. The fact remains that none of the dominant world powers pushed particularly hard for passage of the UDHR. Indeed, support in the U.S. Senate had waned so much that by 1951, when the peace treaty with Japan was finally concluded, the U.S. Senate actually opposed Japan's intent to incorporate UDHR principles in its constitution.
Some have argued that the absence of enthusiasm for the UDHR by the world's two superpowers hindered the development of a potent human rights initiative. No doubt it did. While the United States and USSR readily put the human rights issue to the service of the Cold War, they found no other useful purpose for it. The USSR ratified the international human rights treaties but paid them little mind. The United States deliberately shelved the same treaties, fearful that if ratified they would have to be taken seriously. It took the United States 30 years for the Senate to ratify the Genocide Convention, and it was not until 1992 that the Senate ratified the International Convention on Civil and Political Rights.
The fact that the United States was at best lukewarm in its support of the UDHR undoubtedly slowed expansion of the human rights initiative and robbed it of strength. The absence of U.S. leadership, however, opened a space for non-Western actors to take on the cause of its institution.
Making a Declaration Universal: Chang, Malik, and the UN Special Sessions
Canadian John Humphrey, the UN's first Director of Human Rights and a former professor of international law, reports in his memoir that some of the most ardent and innovative contributions to the process of constructing the UDHR came from individual delegates and non-government organizations (NGOs). France's Rene Cassin has received well-deserved credit for his efforts to craft a legally coherent document, but important contributions of other individuals remain obscure. Individuals who made the greatest mark on deliberations, however, came from Latin America and other regions that two decades later would be recognized as "the Third World." Among them were Peng-chen Chang of China, one of two men Humphrey identifies as intellectual giants. Chang, who served as vice-chair of the Human Rights Commission, introduced Confucian perspectives to the debates, and consistently offered editorial solutions to move the Commission, and the General Assembly, past impasses. Lebanon's Charles Malik was the second towering figure. Malik embraced a Thomist philosophy of natural rights, which he promoted forcefully in discussions with European positivists and Soviet communists alike. His attachment to the idea of God-given natural rights prompted several intense debates during the deliberations, ironically helping to persuade Latin American delegates to abandon their preference for a document reflecting Christian values in favor of the secular language in the Declaration's final version.
The session that took place on November 12, 1948 demonstrates as well as any that it took a collective effort to finalize the UDHR text. On this day the committee was considering the text of what would become Article 21, which spells out the right to a government elected by the people and the right of access to civil service. The debate on this single article is covered in 15 pages of the official record. Charles Malik chaired the session, as he did every one of the 90-odd debates between September 30 and December 7. The committee had before it written amendments proposed by Sweden, the USSR, Egypt, Uruguay, Cuba, France, and a joint amendment from Colombia and Costa Rica.
During the proceedings on this single article, 28 delegates from a wide range of countries rose to speak to the article's content and form. They included delegates from Belgium, Uruguay, the United States, Greece, Brazil, Venezuela, Iraq, China, Haiti, Cuba, Sweden, the USSR, Lebanon, the Philippines, and Saudi Arabia. Haiti spoke against inclusion of the idea of a secret ballot on the grounds that secret balloting is valid only when voters are literate. The Ukraine delegate expressed regret that despite constitutional guarantees to electoral participation, some countries practiced exclusion on the basis of race, color, sex, political opinion, property, or birth. He pointed out that of 547 million subjects in the British Empire, 499 million were not represented in British Parliament. The Chilean delegate rose, in turn, to note that will of the people is not reflected in countries where "one and the same government remains in office for years." The United States, reflecting the McCarthy era, agreed that access to civil service should indeed be free, but defended the idea of a loyalty oath. France, ever mindful of the text, argued at some length that the word "shall" was preferable to "is" in the phrase, "the will of the people shall be the basis of the authority of government."
At the close of the session, the Dominican Republic delegate Minerva Bernardino expressed her satisfaction that the final wording had not restricted these rights solely to citizens, as some countries still regrettably denied citizenship to women. There was nothing extraordinary about the debate on November 12. On a daily basis, the construction and negotiation of the UDHR was a multi-national and multi-cultural affair that engaged representatives of governments from all over the world.
Our perception of human rights as a uniquely Western construct has been promoted by congressional and presidential efforts to incorporate human rights concerns into U.S. foreign policy. There is no doubt that Western philosophy and Western legal traditions lent considerable substance to the document known as the Universal Declaration of Human Rights. But the historical record also documents the active participation of many states in the document's construction. Nearly every day in the fall of 1948, delegates to the UN General Assembly devoted energy to the draft text of the UDHR, and often met in evening and weekend sessions to finish their work. Line by line, phrase by phrase, they considered the text that had been forwarded by the Commission. Votes were taken on more than 150 proposed amendments.
These sessions produced a carefully negotiated text of remarkable breadth (see sidebar, p.16). The UDHR is comprised of 30 articles ranging from due process and freedom of association to education and leisure. The UDHR prohibits the use of torture and outlaws slavery. It establishes the right to nationality and to a decent standard of living. When put to a vote by the UN General Assembly in 1948, the UDHR was adopted without a dissenting vote (though eight countries abstained). It was subsequently elaborated in two covenants that have been ratified by 137 countries, a number sufficient to warrant the claim that human rights claims constitute customary international law. The UDHR, moreover, has been subjected to extensive political scrutiny. It was reviewed by UN members in 1969 (Teheran) and again in 1993 (Vienna). In 1992 a series of UN-sponsored regional meetings reviewed and commented on the original text, leading up to its re-examination by the full array of UN members at the1993 World Conference on Human Rights. At that meeting, just five years ago, it was formally reaffirmed without change and without dissent.
The Living Document of the UDHR
Questions sometimes arise about the extent to which the delegates of non-Western countries who participated in drafting of the UDHR truly represented their peoples, but similar questions can also be posed with respect to the U.S. delegation. In fact, the degree to which delegates were to take their cues from their governments was debated several times over the 30 months it took to negotiate the text of the UDHR. At the very least, delegates from around the world tested ideas against their knowledge and understanding of the Nazi Holocaust, the new apartheid regime in South Africa, the experience of colonialism, the plight of Palestinian refugees, and racial discrimination in the United States. If those drafting the UDHR did not always feel bound to represent a position endorsed by their governments, the same cannot be said of the UN ambassadors who, on December 10, 1948 cast formal votes to endorse the Universal Declaration. Likewise, the votes cast by state participants in the 1993 UN-sponsored World Conference on Human Rights, reaffirming the UDHR, must be taken to reflect official positions of sovereign states.
Human rights advocates as well as Cold Warriors share responsibility for the conflation of human rights with Western thought, and it has been an implicit part of U.S. political strategy to present human rights as a Western idea (and thereby non-threatening to us). In the 1990s, it is only an inflated sense of our own role in international politics that allows us to claim the notion of human rights as an exclusively Western construct. The concept of human rights does not belong exclusively to the legacy of World War II, but traces its roots through many cultures around the globe. Most importantly, the historical record establishes the contribution of non-Western individuals and non-Western thought to the creation, and arguably the rescue, of the document that sets a worldwide policy for human rights practice. While there is resistance to the idea of universal human rights in parts of the non-Western world, or in certain segments of non-Western society, people in the West - who are themselves divided on this issue - cannot reasonably claim that the UDHR represents an attempt to foist "our" concept of human rights on the rest of the world.
United Nations delegates did not have female genital mutilation specifically in mind when they drafted the UDHR, any more than the framers of the U.S. Constitution and Bill of Rights envisioned the political enfranchisement of Black slaves or women. But like most foundational texts, the UDHR is a living document that opens possibilities for continuous interpretation and innovative application. The UDHR must constantly be tested against the political process of its construction and reaffirmation. Asian human rights defenders advanced this argument themselves in 1992, proclaiming in their Bangkok Declaration:
Universal human rights standards are rooted in many cultures. We affirm the basis of universality of human rights which afford protection to all of humanity... While advocating cultural pluralism, those cultural practices which derogate from universally accepted human rights, including women's rights, must not be tolerated.
As their words suggest, debate over the cultural and philosophical origins of the ideas embedded in the Universal Declaration is misplaced: the UDHR belongs to all of us, even as it seeks to protect us all. The formal reviews of the UDHR in 1969, 1992, and 1993 have not led to changes in the original 1948 text. To the contrary, national governments, under scrutiny of world public opinion, have reaffirmed their attachment to the Universal Declaration of Human Rights. The time has come to stop talking about the standards it sets, and turn attention to its full implementation.
Human Rights Laws Seize the Future: the Pinochet Case
When General Augusto Pinochet traveled to England last October to seek medical treatment, he wasn't thinking about an esoteric concept like the universality of human rights or the subtle evolution of international human rights law. He should have been.
When the British Law Lords handed down their judgement on March 24 of this year, the Chilean plane waiting to return the former dictator to his refuge in Santiago had to return to its hangar. The judges ruled that while Pinochet may have enjoyed immunity in the United Kingdom in the past, he lost it when England ratified the International Torture Convention on December 8, 1988. Pinochet has now been judged in the U.K. by standards of U.K. law, but that law has gradually come to incorporate international standards. Six of the seven Law Lords agreed that the incorporation by domestic law of provisions in the Torture Convention removed any shred of immunity for charges of torture filed after 1988.
More recently, on April 15 Home Secretary Jack Straw decided to allow the application for extradition to proceed against Pinochet. U.K. law courts will now decide whether to authorize extradition on 42 cases of torture or conspiracy to commit torture which took place after December 8, 1988, as well as 1,198 "disappearances" which took place before that date but constitute continuing cases of human rights violations under international law. Regardless of the ultimate decision on extradition, those who have worked to implement and expand universal human rights laws have won an important victory.
After leading the military junta that overthrew the elected government of Salvador Allende in 1973, Pinochet established himself as Chile's head of state. Until his abdication in 1990, he presided over a "dirty war" that resulted in the disappearance of thousands of Chileans and foreign residents. The reports of international human rights groups and testimony of survivors bear witness to a system of political repression that included torture and political killings. Chile's own official Truth and Reconciliation Commission found that Pinochet was personally implicated in the planning of large-scale abuses. Fortunately for Chile, the dark days of the dirty war are over. Under Chile's new democratic constitution, however, Pinochet enjoys a most un-democratic privilege: "Senator for Life." The Chilean government has formally argued that his arrest violates Chile's national sovereignty and that the only place he can be tried in is Chile. But in Chile, a broad amnesty protects him from prosecution. To the world, this immunity sends the message that he will not be held accountable for human rights crimes he committed during his rule, at least not in Chile.
Those who suffered under Pinochet's regime find it intolerable that he should continue to enjoy immunity. In Spain, claims have been filed on behalf of Spanish citizens tortured and killed by the Chilean military. Successful suits led to an extradition request, and on October 17 Pinochet's past caught up with him. Honoring the Spanish appeal, Scotland Yard arrested the general while he sought medical treatment in a London hospital. Since then, his fate has been tied up in court.
The decision by the Law Lords complements a number of important developments in the 1990s that have at last opened the way for human rights law to become internationally enforceable. Over the past 30 years, human rights law has been enforceable only on an exceptional basis. But over the past decade two important developments have breathed new life into these internationally endorsed principles. The first subtle change was ushered in by the creation of international criminal tribunals for the former Yugoslavia and Rwanda. Differing views as to the nature of the Yugoslav conflict - alternatively regarded as civil war or international war - opened the door for UN legal advisors to establish the Yugoslavian Criminal Tribunal on principles derived from laws pertaining directly to the conduct of international war (otherwise known as "humanitarian law"). These standards were incorporated into the Tribunal's main directive, namely to investigate and prosecute serious violations of international humanitarian law reflected in both conventional and customary law. The same principles were applied to the Rwanda Tribunal, set up to adjudicate crimes committed during a civil war. As a result of the work by both tribunals, the difference between crimes against humanity (war crimes) and gross human rights violations (including political killings and torture committed outside the context of war) is becoming more difficult to distinguish. In the process, the international community has established its jurisdiction to prosecute a wide range of human rights crimes that take place in the context of war.
The enforceability of human rights law has also been boosted by progress in establishing a permanent international criminal court. In the long run such a court will be required to ensure that no government, or individual leader, can commit human rights crimes with impunity. The idea of an international criminal court has surfaced periodically during the twentieth century, but the political moment had never been ripe. However, by the time Trinidad and Tobago reintroduced the idea in 1989 (inspired by efforts to control the international drug trade), the world had grown more receptive. Human rights activists lobbied hard for this initiative, and their work was rewarded in July 1998, when the UN voted overwhelmingly (120 in favor, 21 abstentions, and seven against) to establish a permanent International Criminal Court. The ICC treaty establishes individual criminal responsibility for the worst atrocities: war crimes, genocide, and other crimes against humanity (including rape). Once the treaty has gone into effect (60 states need to ratify it first), the court will accept responsibility for prosecution where national courts are unable or unwilling to protect human rights.
In these ways, human rights and humanitarian law are becoming subject to universal jurisdiction. Like piracy and the slave trade in earlier epochs, human rights atrocities by their heinous nature have come to be recognized by the world community as international crimes. In a way difficult to imagine just a few decades ago, the most serious human rights abuses have become the business of the world community, regardless of who commits them or where.
Arguments concerning Pinochet and other instances of impunity and legal accountability raise questions about the nature of human rights and the extent to which human rights norms can be applied around the world. The initial questions are simply, what are human rights? And, can they be applied universally? Western philosophy helps us understand and appreciate the notion that every individual has rights that extend from her or his humanity alone, but it does not help us understand the political dynamics that have shaped the content of international human rights law. Most importantly, Western philosophy does not provide a compelling answer to the fundamental challenge posed by differing perspectives on rights: rights according to whom? An alternative approach to questions about human rights settles squarely on the political dimension: "human rights" is a political construction, a set of negotiated norms and standards. In the most pragmatic sense, human rights at the end of the twentieth century are what the community of sovereign states declares them to be.
Since the UDHR was acclaimed in 1948, more than a dozen international and regional human rights treaties have entered into force in international law. There is more than one irony buried here. Although many legal advisors, scholars, non-governmental organizations and UN staff may offer advice and draft resolutions, it is states that implement the human rights laws regulating their own behavior (or, of course, that of other states). Except as they become the customary standards of the community of nations, human rights principles are not imposed upon states. States may be pressured by their own citizens, or by international partners, but they subscribe to formal instruments voluntarily.
It is worth noting in this respect that the highly respected Chilean delegate Hernan Santa Cruz participated actively in the final debate of the draft UDHR. Chile has also signed and ratified the legally binding International Covenant on Civil and Political Rights (ICCPR), which expressly forbids torture and arbitrary (non-judicial) executions. The supreme irony is that during Pinochet's own time in power, Chile - like the United Kingdom - of its own volition acceded to the International Torture Convention under whose provisions Pinochet is today being judged.
Perhaps heads of state - and former heads of state - are to be pitied for imagining that no one will ever hold them accountable for pledges made by nations around the world to uphold international human rights standards. But people are tired of pledges honored only in the breach. Nothing can compensate families for the pain of losing loved ones to state-sponsored acts of torture, long-term political imprisonment, "disappearance," or execution. And yet, there is both hope and healing in the prospect that those responsible may be held to account for their acts before a court of law.
It is in this regard that the Pinochet case represents a milestone for international human rights law. Those responsible for perpetrating crimes against humanity should see in the Pinochet ruling a powerful lesson about the limits of impunity. The fact that a number of states around the world - including Switzerland - have filed their own requests for Pinochet's extradition amplifies the message that those who commit crimes against humanity cannot expect to get away with it permanently, whether or not they are or were heads of state. Those who commit such acts must at the very least make travel plans carefully, or face legal action. If the Pinochet case does not give pause to those who abuse their power, it should.
Susan Waltz is a member of Amnesty International's International Executive Committee and from 1996-1998 served as international chairperson of the organization. During the 1998-99 academic year she was a visiting scholar at the Center for Middle Eastern and North African Studies, on sabbatical leave from Florida International University.