International Law

Gabor Rona Responds to Eric Posner on Human Rights Treaties

By Benjamin Wittes
Thursday, December 27, 2012, 9:45 AM

Gabor Rona of Human Rights First writes in with the following comments on Eric Posner's Slate article, to which I linked the other day:

Eric Posner's dismissal of "the human rights regime" would come as a surprise to the last three generations of activists, diplomats and political leaders who have struggled to establish it, and to the millions whose lives have been saved and whose dignity has been upheld by it.

Here's a typical snippet from Mr. Posner's armchair: "The human rights regime is a vast international Potemkin village, a kind of communal effort among states to deceive one another and mainly their citizens, or an excrescence of the bureaucratic imperative to deny error and bad intentions."

I had to look up "excrescence" but I only had to consult my own experience to know that his characterization of the human rights regime is more fiction than fact.

I used to work for the ICRC and saw firsthand what important work human rights and humanitarian law did in our hands to protect detainees and victims of armed conflict. I'm now a member of the U.N. Working Group on Mercenaries, one of many thematic and country-focused mandates of the Human Rights Council who conduct country visits, take on individual communications (complaints), and report to the General Assembly and Human Rights Council on both advancement and compliance with human rights law. I've read the Hamdan decision, which rejected the Bush administration's premise that Guantanamo detainees have no legal right to humane treatment, and did so on the basis of advances in international law that did not exist before WW II. While on mission for the UN, I spoke to members of the Congolese armed forces who asked with nervous curiosity about this new thing called the International Criminal Court.

I could go on for pages about others, like me, who work to promote human rights and have witnessed first-hand the real-world progress that has coincided with the growth of the international human rights regime, even as we bear witness to unspeakable atrocities.

In fact, if one wants to make assumptions about cause and effect, one would first take note of all the treaties and mechanisms and soft-law and practice and opinio juris that have come into being since the U.N. Charter and the Universal Declaration of Human Rights heralded the start of the modern human rights era---not just the major human rights treaties, but the treaty bodies, the regional mechanisms, the international courts (both civil and criminal), the considerable weight of the Human Rights Council's Universal Periodic Review and many special rapporteurs and working groups. Second, one would ask whether humans enjoy more rights in more places since the end of WW II. Newsflash to Mr. Posner: they do, big time. Third, one would then consider that there may be a correlation between the two.

Now I admit, as my 14 year old daughter on the debate team knows, that correlation is not the same as causation. Growth in the human rights regime is not necessarily the cause of growth in human rights, but there's a pretty good hypothesis there. And so, the fact that human rights abusers are party to human rights treaties proves little about the value of those treaties, except of course, the adage that hypocrisy is the homage that vice pays to virtue.

Bottom line, I can't agree with Ben that Eric Posner's laundry list of bad actors who have endorsed human rights treaties is a "money quote." I think it's at best, an indicator of Mr. Posner's detachment and at worst, a wildly misbegotten and dangerous insult to the real progress that has given rise to, and been reflected in, the "human rights regime."

And I would like to know what Mr. Posner is doing, or suggests that the rest of us do, to replace this so-called Potemkin Village.