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By Michelle Maiese
June 2004
What are Human Rights?
Human rights are the basic rights and freedoms to which all humans are considered entitled: the right to life, liberty, freedom of thought and expression, and equal treatment before the law, among others. These rights represent entitlements of the individual or groups vis-B-vis the government, as well as responsibilities of the individual and the government authorities.
Such rights are ascribed "naturally," which means that they are not earned and cannot be denied on the basis of race, creed, ethnicity or gender.[1] These rights are often advanced as legal rights and protected by the rule of law. However, they are distinct from and prior to law, and can be used as standards for formulating or criticizing both local and international law . It is typically thought that the conduct of governments and military forces must comply with these standards.
Various "basic" rights that cannot be violated under any circumstances are set forth in international human rights documents such as the Universal Declaration of Human Rights , the International Covenant on Economic, Social and Cultural Rights , and the International Covenant on Civil and Political Rights . The rights established by these documents include economic, social, cultural, political and civil rights.[2]
While human rights are not always interpreted similarly across societies, these norms nonetheless form a common human rights vocabulary in which the claims of various cultures can be articulated. The widespread ratification of international human rights agreements such as those listed above is taken as evidence that these are widely shared values.[3] Having human rights norms in place imposes certain requirements on governments and legitimizes the complaints of individuals in those cases where fundamental rights and freedoms are not respected.[4] Such norms constitute a standard for the conduct of government and the administration of force. They can be used as "universal, non-discriminatory standards" for formulating or criticizing law and act as guidelines for proper conduct.[5]
Many conflicts are sparked by a failure to protect human rights, and the trauma that results from severe human rights violations often leads to new human rights violations. As conflict intensifies, hatred accumulates and makes restoration of peace more difficult. In order to stop this cycle of violence, states must institute policies aimed at human rights protection. Many believe that the protection of human rights "is essential to the sustainable achievement of the three agreed global priorities of peace , development and democracy ."[6] Respect for human rights has therefore become an integral part of international law and foreign policy. The specific goal of expanding such rights is to "increase safeguards for the dignity of the person."[7]
Despite what resembles a widespread consensus on the importance of human rights and the expansion of international treaties on such matters, the protection of human rights still often leaves much to be desired. Although international organizations have been created or utilized to embody these values, there is little to enforce the commitments states have made to human rights. Military intervention is a rare occurrence. Sanctions have a spotty track record of effectiveness. Although not to be dismissed as insignificant, often the only consequence for failing to protect human rights is "naming and shaming."
Interventions to Protect Human Rights
To protect human rights is to ensure that people receive some degree of decent, humane treatment. Because political systems that protect human rights are thought to reduce the threat of world conflict, all nations have a stake in promoting worldwide respect for human rights.[8] International human rights law, humanitarian intervention law and refugee law all protect the right to life and physical integrity and attempt to limit the unrestrained power of the state. These laws aim to preserve humanity and protect against anything that challenges people's health, economic well-being, social stability and political peace. Underlying such laws is the principle of nondiscrimination, the notion that rights apply universally.[9]
Responsibility to protect human rights resides first and foremost with the states themselves. However, in many cases public authorities and government officials institute policies that violate basic human rights. Such abuses of power by political leaders and state authorities have devastating effects, including genocide , war crimes and crimes against humanity. What can be done to safeguard human rights when those in power are responsible for human rights violations ? Can outside forces intervene in order to protect human rights?
Humanitarian Intervention
In some cases, the perceived need to protect human rights and maintain peace has led to humanitarian intervention. There is evidence that internationally we are moving towards the notion that governments have not only a negative duty to respect human rights, but also a positive duty to safeguard these rights, preserve life and protect people from having their rights violated by others.[10] Many believe that states' duties to intervene should not be determined by proximity, but rather by the severity of the crisis.
There are two kinds of humanitarian intervention involving the military: unilateral interventions by a single state, and collective interventions by a group of states.[11] Because relatively few states have sufficient force and capacity to intervene on their own, most modern interventions are collective. Some also argue that there is a normative consensus that multilateral intervention is the only acceptable form at present.[12]
There is much disagreement about when and to what extent outside countries can engage in such interventions. More specifically, there is debate about the efficacy of using military force to protect the human rights of individuals in other nations. This sort of debate stems largely from a tension between state sovereignty and the rights of individuals.
Some defend the principles of state sovereignty and nonintervention, and argue that other states must be permitted to determine their own course. They point out that the principles of state sovereignty and the non-use of force are enshrined in the charter of the United Nations , which is regarded as an authoritative source on international legal order.[13]
This argument suggests that different states have different conceptions of justice, and international coexistence depends on a pluralist ethic whereby each state can uphold its own conception of the good.[14] Among this group, there is "a profound skepticism about the possibilities of realizing notions of universal justice."[15] States that presume to judge what counts as a violation of human rights in another nation interfere with that nation's right to self-determination. Suspicions are further raised by the inconsistent respect for sovereignty (or human rights for that matter); namely, the Permanent Members of the UN Security Council have tremendous say over application of international principles. In addition, requiring some country to respect human rights is liable to cause friction and can lead to far-reaching disagreements.[16] Thus, acts of intervention may disrupt interstate order and lead to further conflict.[17] Even greater human suffering might thereby result if states set aside the norm of nonintervention.
Others point out that humanitarian intervention does not, in principle, threaten the territorial integrity and political independence of states. Rather than aiming to destabilize a target state and meddle in its affairs, humanitarian intervention aims to restore rule of law and promote humane treatment of individuals.[18]
Furthermore, people who advocate this approach maintain that "only the vigilant eye of the international community can ensure the proper observance of international standards, in the interest not of one state or another but of the individuals themselves."[19] They maintain that massive violations of human rights, such as genocide and crimes against humanity, warrant intervention, even if it causes some tension or disagreement. Certain rights are inalienable and universal, and "taking basic rights seriously means taking responsibility for their protection everywhere."[20]
If, through its atrocious actions, a state destroys the lives and rights of its citizens, it temporarily forfeits its claims to legitimacy and sovereignty.[21] Outside governments then have a positive duty to take steps to protect human rights and preserve lives. In addition, it is thought that political systems that protect human rights reduce the threat of world conflict.[22] Thus, intervention might also be justified on the ground of preserving international security, promoting justice and maintaining international order.
Nevertheless, governments are often reluctant to commit military forces and resources to defend human rights in other states.[23] In addition, the use of violence to end human rights violations poses a moral dilemma insofar as such interventions may lead to further loss of innocent lives.[24] Therefore, it is imperative that the least amount of force necessary to achieve humanitarian objectives be used, and that intervention not do more harm than good. Lastly, there is a need to ensure that intervention is legitimate, and motivated by genuine humanitarian concerns. The purposes of intervention must be apolitical and disinterested. However, if risks and costs of intervention are high, it is unlikely that states will intervene unless their own interests are involved.[25] For this reason, some doubt whether interventions are ever driven by humanitarian concerns rather than self-interest.
Many note that in order to truly address human rights violations, we must strive to understand the underlying causes of these breaches. These causes have to do with underdevelopment, economic pressures, social problems and international conditions.[26] Indeed, the roots of repression, discrimination and other denials of human rights stem from deeper and more complex political, social and economic problems. It is only by understanding and ameliorating these root causes and strengthening both democracy and civil society that we can truly protect human rights.
Restoring Human Rights in the Peacebuilding Phase
In the aftermath of conflict, violence and suspicion often persist. Government institutions and the judiciary, which bear the main responsibility for the observation of human rights, are often severely weakened by the conflict or complicit in it. Yet, a general improvement in the human rights situation is essential for rehabilitation of war-torn societies. Many argue that healing the psychological scars caused by atrocities and reconciliation at the community level cannot take place if the truth about past crimes is not revealed and if human rights are not protected. To preserve political stability, human rights implementation must be managed effectively. Issues of mistrust and betrayal must be addressed, and the rule of law must be restored. In such an environment, the international community can often play an important supporting role in providing at least implicit guarantees that former opponents will not abandon the peace.[27] Because all international norms are subject to cultural interpretation, external agents that assist in the restoration of human rights in post-conflict societies must be careful to find local terms with which to express human rights norms. While human rights are in theory universal, ideas about which basic needs should be guaranteed vary according to cultural, political, economic and religious circumstances. Consequently, policies to promote and protect human rights must be culturally adapted to avoid distrust and perceptions of intrusion into internal affairs.
To promote human rights standards in post-conflict societies, many psychological issues must be addressed. Societies must either introduce new social norms or reestablish old moral standards. They must design programs that will both address past injustice and prevent future human rights violations . Human rights must not become just another compartmentalized aspect of recovery, but must be infused throughout all peacebuilding and reconstruction activities. Democratization implies the restoration of political and social rights. Government officials and members of security and police forces have to be trained to observe basic rights in the execution of their duties. Finally, being able to forgive past violations is central to society's reconciliation .
Rights Protection Methods
Various methods to advance and protect human rights are available:
- During violent conflict, safe havens to protect refugees and war victims from any surrounding violence in their communities can sometimes help to safeguard human lives.
- As violent conflict begins to subside, peacekeeping strategies to physically separate disputants and prevent further violence are crucial. These measures, together with violence prevention mechanisms, can help to safeguard human lives. Limiting the use of violence is crucial to ensuring groups' survival and creating the necessary conditions for a return to peace.
- Education about human rights must become part of general public education. Technical and financial assistance should be provided to increase knowledge about human rights. Members of the police and security forces have to be trained to ensure the observation of human rights standards for law enforcement. Research institutes and universities should be strengthened to train lawyers and judges. To uphold human rights standards in the long-term, their values must permeate all levels of society.
- Dialogue groups that assemble people from various ethnicities should be organized to overcome mistrust, fear and grief in society. Getting to know the feelings of ordinary people of each side might help to change the demonic image of the enemy group. Dialogue also helps parties at the grassroots level to discover the truth about what has happened, and may provide opportunities for apology and forgiveness.
- External specialists can offer legislative assistance and provide guidance in drafting press freedom laws, minority legislation and laws securing gender equality. They can also assist in drafting a constitution, which guarantees fundamental political and economic rights.
- Those who perpetrate human rights violations find it much easier to do so in cases where their activities can remain secret. International witnesses , observers and reporters can exert modest pressure to bring violations of human rights to public notice and discourage further violence. Monitors should not only expose violations, but also make the public aware of any progress made in the realization of human rights. In order to ensure that proper action is taken after the results of investigations have been made public, effective mechanisms to address injustice must be in place.
- Truth commissions are sometimes established after a political transition. To distinguish them from other institutions established to deal with a legacy of human rights abuses, truth commissions can be understood as "bodies set up to investigate a past history of violations of human rights in a particular country -- which can include violations by the military or other government forces or armed opposition forces."[28] They are officially sanctioned temporary bodies that investigate a pattern of abuse in the past. Their goal is to uncover details of past abuses as a symbol of acknowledgment of past wrongs. They typically do not have the powers of courts, nor should they, since they do not have the same standards of evidence and protections for defendants. As such, they usually do not "name names" of those responsible for human rights abuses, but rather point to institutional failings that facilitated the crimes. Finally, they conclude with a report that contains recommendations to prevent a recurrence of the crimes and to provide reparations to victims.
- International war crimes tribunals are established to hold individuals criminally responsible for violations of international human rights law in special courts. The international community rarely has the will to create them. As the experiences with the war tribunals for Rwanda and Yugoslavia indicate, even where they are created, they are imperfect. They cannot hold all perpetrators accountable and typically aim for the top leadership. However, it remains difficult to sentence the top-level decision-makers, who bear the ultimate responsibility for atrocities. They often enjoy political immunity as members of the post-conflict government. Incriminating a popular leader might lead to violent protests and sometimes even to relapse into conflict. Leaders may be necessary to negotiate and implement a peace agreement.
- Various democratization measures can help to restore political and social rights. For sustainability and long-term viability of human rights standards, strong local enforcement mechanisms have to be established. An independent judiciary that provides impartial means and protects individuals against politically influenced persecution must be restored. Election monitors who help to guarantee fair voting procedures can help to ensure stable and peaceful elections. And various social structural changes , including reallocations of resources, increased political participation , and the strengthening of civil society can help to ensure that people's basic needs are met.
- Humanitarian aid and development assistance seeks to ease the impact that violent conflict has on civilians. During conflict, the primary aim is to prevent human casualties and ensure access to basic survival needs. These basics include water, sanitation, food, shelter and health care. Aid can also assist those who have been displaced and support rehabilitation work. Once conflict has ended, development assistance helps to advance reconstruction programs that rebuild infrastructure, institutions and the economy. This assistance helps countries to undergo peaceful development rather than sliding back into conflict.
The expansion of international human rights law has often not been matched by practice. Yet, there is growing consensus that the protection of human rights is important for the resolution of conflict and to the rebuilding process afterward. To achieve these goals, the international community has identified a number of mechanisms both to bring an end to human rights abuses and to establish an environment in which they will be respected in the future. They are not alternatives, but each provides important benefits in dealing with the past and envisioning a brighter future.
[1] Little, David. "Universality of Human Rights," [available at: http://www.usip.org/research/rehr/universality.html ] (no longer available as of March 5th 2013)
[2] endnote goes here**
[3] At the same time, some would argue that the hegemonic power of the West, whether through normative pressure or economic, is responsible for widespread ratification.
[4] Antonio Cassese, Human Rights in a Changing World . (Philadelphia: Temple University Press, 1990), 2.
[5] Little, "The Nature and Basis of Human Rights," United States Institute of Peace.
[available at: http://www.usip.org/research/rehr/natbasis.html ] (no longer available as of March 5th 2013)
[6] "Human Rights Today: A United Nations Priority," The United Nations, 2000. [available at: http://www.un.org/rights/HRToday/ ]
[7] Cassese, 3.
[8] Cassese, 58.
[9] Don Hubert and Thomas G. Weiss et al. The Responsibility to Protect: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty. (Canada: International Development Research Centre, 2001), 144.
[10] Hubert and Weiss, et al., 147.
[11] Kithure Kindiki, "Gross Violations of Human Rights in Internal Armed Conflicts in Africa: Is There a Right of Humanitarian Intervention?" in Conflict Trends , no. 3, 2001. ACCORD.
[12] Martha Finnemore, The purpose of intervention: changing beliefs about the use of force . (Ithaca, Cornell University Press, 2003), chapter 3.
[13] Kithure Kindiki, "Gross Violations of Human Rights"
[14] Hubert and Weiss, et al., 132.
[15] Hubert and Weiss, et al., 133.
[16] Cassese, 58.
z[17] Hubert and Weiss, et al., 133.
[18] Kithure Kindiki, "Gross Violations of Human Rights"
[19] Cassese, 55-6.
[20] Hubert and Weiss, et al., 135.
[21] Hubert and Weiss, et al., 136.
[22] Cassese, 58.
[23] Hubert and Weiss, et al., 136.
[24] Hubert and Weiss, et al., 137.
[25] Hubert and Weiss, et al., 141.
[26] Cassese, 59.
[27] See for example, Barbara F. Walter, Committing to peace: the successful settlement of civil wars . (Princeton, N.J., Princeton University Press: 2002).
[28] Priscilla B. Hayner, (1994). "Fifteen Truth Commissions - 1974 to 1994: A Comparative Study." Human Rights Quarterly. 16(4): 604.
Use the following to cite this article: Maiese, Michelle. "Human Rights Protection." Beyond Intractability . Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: June 2004 < http://www.beyondintractability.org/essay/human-rights-protect >.
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