Published by Belknap/Harvard UP (2010)
Reviewed by Alice Diana Beauheim
National security as law means policies that are law-governed, neither arbitrary nor wholly discretionary. It requires difficult tradeoffs among multiple social goods, starting with security and liberty; this is the premise of Lawfare, but it takes by assumption that neither pure security concerns nor pure rights concerns ought to govern, absolutely and alone, a liberal democratic society. Serious students of national security law must therefore be cognizant of arguments both conceptual and practical underlying security and rights concerns. Liberty raises, however, not only domestic Constitutional rights, but also international human rights as a normative source in national security policy. International human rights has a formal legal quality to it, of course, but just as importantly (if not more so), it is a political movement in global civil society and the international community. Organizations of many kinds, ranging from NGOs to UN bodies and officials, all seek to promote various political and legal agendas in the language of international human rights.
The political human rights movement has had profound impacts upon US national security policy since 9/11, particularly insofar as it joined and overlapped with domestic US actors to challenge and, in the final analysis, profoundly re-shape US policy around such things as counterterrorism detentions, interrogations, renditions, and potentially other issues in the future. Regardless of one’s opinion on the merits of such changes, the impact of these actors cannot be gainsayed. National security law and policy has to take account of the international human rights movement - and that requires understanding its history and trajectory. This is because not infrequently its counsels are correct - but even if for no other reason, the strategic fact that the international human rights movement is an active player of discernible influence in shaping the climate of perceived legitimacy or illegitimacy surrounding core US security policies.
Though the movement encompasses diverse and often contradictory political agendas, it has long had a dominant internal moral narrative about where it comes from and by which it justifies its claims to shepherd a universal moral, political, and legal order. It is a narrative that freely marries a heroic self-conception locating the origins of the human rights movement back in the Enlightenment (though perfectly aware of the neocolonial problem of asserting a particular (Western) origin of rights) with the claim that the values of human rights, if not the precise language of rights, can be found in all the leading religious and cultural traditions. Many critics, including within the human rights movement, have acknowledged that this amounts to much mythologizing without a defensible historical foundation.
Enter to this question of origins of the human rights movement historian Samuel Moyn, who offers a history of the 20th century human rights movement, or at least the idea of human rights and its international political impact up through the early 1980s.
Moyn’s book, The Last Utopia: Human Rights in History, systematically debunks the notion that human rights are generally the gradual culmination of humane, enlightened Western thought or even specifically a reaction to the carnage and genocide in the Second World War. Instead, he argues that the post-World War Two structures and organizations that have since been claimed by the human rights movement arose from a surprisingly specific source: the victorious powers seeking an alternative ideology to the rising post-war demand from the colonial world for national liberation, de-colonialization, and an end of empires. Among the Allied leaders planning the post-war order, to be sure, Roosevelt (like nearly all his fellow Americans) was instinctively hostile to empire and colonialism, but that was scarcely the view of Churchill or De Gaulle, seeking to preserve theirs - or Stalin, seeking to create one.
For Moyn, then, the driving motivation behind the inclusion of “human rights”—which he notes was a “throwaway line,” not a fully conceptualized program—in the founding documents of the UN was to create an alternative to national liberation and self-determination demands by extending basic civic rights to subject peoples, at least on paper. For the colonized, however, this vague idea of human rights did not stir the soul in the same way as national liberation and self-determination, let alone point to the same political ends. Human rights as a concept was left on the shelf for decades gathering dust.
It was not until the 1970s that human rights finally emerged as a force of its own. And the present ideological form of international human rights is not, as Moyn sees it, the gradual evolution of Enlightenment tenets down to today in sweet progression, but is largely a reaction to, and an attempt to regroup, after the failures of the utopian social visions of the post-war period, especially anti-colonialism and Marxism. Human rights by the 1970s (on what must be accounted a revisionist view to the dominant narrative) represents a retreat to an individualistic ethic of rights against states. This retreat is how it became a core ideological component in the East-West struggle and the struggle of Eastern European and Soviet dissidents against communist regimes, later expanded to include regimes of all ideological stripes that denied individual human rights.
Only after the end of the Cold War in 1990 did the human rights movement affirmatively embrace internationalism as the preferred vehicle for its own utopian vision, alongside an ever more expansive and progressive substantive human rights corpus as international law, including all manner of group, social, and economic rights. International law of human rights joins with international organizations gradually to overtake the nation-state as the source of legitimate authority, at least over questions of rights - which is to say, more or less, over everything. The extent to which the institutions of internationalism—created with the consent and power of national governments but often rooted in intellectual and historical underpinnings vastly different from those of the human rights movement—will actually serve as witting champions for the human rights movement is, however, much less certain.
Moyn is a scholar of the Left, far from a conservative critic, and these distinctions in types and sources of values matter in part because they delineate the authority and reach of this social order. He refuses to elide the historical contradictions, embarrassments even, between individual human rights and communal claims of national liberation. At its most basic, presenting the explosive growth of the human rights movement in the 1970s as a reaction to the failed utopias of the post-war era identifies human rights as separate from the civic rights—and, importantly, concomitant duties—that govern the relationship between the individual and the state.
Initially, the human rights promoted by early activists were minimal and essentially moral, delineating an individual's right to be free from government-inflicted torture or death but little more, and as such rarely if ever impinging on legitimate governance or civic rights. As the notion of human rights has evolved, however, the portfolio of rights pursued by a bevy of organizations has expanded to the point of becoming a political agenda, one characterized, on the one hand, by a deep-rooted suspicion of the institutions of government and promoting an alternative to state sovereignty and packages of rights dependent on citizenship. At the same time, the movement asserts a bewildering and essentially fanciful array of positive rights that seek to enshrine the welfare state as fundamental, without, however, providing the material basis on which these rights are to be met, except as aspirations.
Examining the difference between human rights at their inception and as currently used, Moyn thus finds human rights at a crossroads. In his preferred vision, advocates would reiterate their commitment to a minimalist vision of preventing or assuaging human catastrophe, including checking the worst practices of the worst governments. He fears, however, that they will follow their maximalist impulses and continue the headlong plunge into full-throated ideology and, like proponents of past utopias, risk failure and irrelevance.
As Moyn sees it, the main players in this struggle for a minimalist or maximalist conception of human rights are, on one side, governments which by and large adopted the rhetoric and goals of the early human rights movement only to find themselves now under attack for their rights positions, and on the other side human rights organizations and bodies promoting an uncompromising program that often conflates human and civic rights. To Moyn, the last factor seems most decisive, as the recasting of civic rights as human rights impinges on long-established principles of sovereignty, prompting pushback even from countries with outlooks and systems of government broadly sympathetic to the human rights movement.
Although not without internal contradictions, this notion of a struggle between minimalism and maximalism does provide a useful frame for examining some contemporary human rights issues that directly or indirectly affect the debate over national security and law. A stellar example of this conflict—one that encompasses many of the issues outlined above, from the distinction between civic rights and duties and human rights to the struggle over sovereignty—can be found in the headlines. Consider the tension between the British government and the European Court of Human Rights (ECtHR) over the issue of prisoner voting. The issue of prisoner disenfranchisement arose in Hirst v. UK (2005); the plaintiff, who had been convicted of murdering his landlord, alleged his rights had been violated because he was not eligible to vote while in prison. In response, the UK put forward a classic civic rights argument, asserting that prisoner disenfranchisement enhanced
civic responsibility and respect for the rule of law by depriving those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country. (Hirst v. UK, para 50)
However, in its ruling the court maintained that the right to vote is not merely a civic privilege, and that the UK's automatic disenfranchisement violated Article 3 of Protocol 1, which mandates that all Convention signatories must commit themselves to holding free elections.
The Hirst ruling and its subsequent appeal set the stage for the present clash, especially after Parliament in February 2011 affirmed prisoner disenfranchisement by a vote of 234 to 22, stymieing UK efforts to incorporate the ECtHR's ruling into domestic law as required by the 1998 Human Rights Act. To add fuel to the fire, the UK has decided to intervene as a third party in an Italian case pending before the court on prisoner disenfranchisement, and has also pledged to reform the ECtHR when the country assumed the chair of the Council of Europe in November 2011.
In this context, the UK's Attorney General, Dominic Grieve, recently articulated an outlook that very neatly encapsulates Moyn's essential argument about maximalism and minimalism in human rights. Grieve advocated—and pledged the UK during its chairmanship would pursue—a strengthened principle of subsidiarity, which would accord national parliaments more latitude to interpret ECtHR decisions in light of their own political culture and limit the ECtHR's ability to override parliamentary decisions. He also argued that the court should not interfere with what he termed political decisions, meaning a state's efforts to define and govern its own body politic. Such a program would redraw the lines between civic and human rights, re-asserting state sovereignty and returning the ECtHR to the minimalist, essentially conservative, position it had occupied before the mass proliferation of the human rights idea.
The Guardian has called Grieve's argument an effort "aimed at redefining sovereignty within the entire European judicial system." This is as neat a statement of Moyn's projected future of maximalism and backlash as one can hope for. That said, the notion of minimalist and maximalist conceptions of human rights does not prove to be as useful a framework as one might hope for understanding the conflicts between the human rights movement and the state, particularly the issue of sovereignty. For that, one must turn to institutions.
This question of international institutions raises a serious gap in Moyn’s book, at least as an account that, though historical, implies something important about the human rights movement today. The book painstakingly traces the explosion of human rights rhetoric, but does very little to identify institutional developments and draws few distinctions between advocacy and institutions. Indeed, if one looks at the instruments of power created in the name of human rights—and particularly the legal instruments designed to enforce human rights norms—one might think that the real expansion of human rights takes place not in the 1970s, when individual human rights advocacy flowered, but in the 1990s.
This is an argument advanced by Belinda Cooper in her review of Moyn's book in the New York Times. In it, she faults him for ignoring the growth of institutions, especially tribunals, that flourished in the wake of the Cold War. Cooper's review is lamentably brief, but she articulates a view that very much reflects the orthodoxy of the human rights community today. This is so both in her overall defense of the organic place of human rights in intellectual history and international law and also in her assertion that the doctrine(s) espoused by human rights organizations and international institutions, including tribunals, reflect "a viable program, rather than merely a propaganda tool employed by antagonistic political systems."
Moyn says very little about the role of human rights in the mania for tribunals that erupted in the 1990s—indeed, although he devotes a chapter to human rights and the law, he conveys no clear idea of how legal developments fit into the context of human rights, other than to say that human rights have become central to international law. Cooper, on the other hand, embraces international tribunals and other institutions as proof of the legitimacy and power of the human rights idea.Yet her assertion that they represent part of a program that is somehow separate from the international politics of nation-states is simply not credible. The Yugoslav tribunal in particular was very much formed to advance specific geopolitical goals; it was created after the failure of the Vance-Owen Peace Plan in 1993 in the hopes that threatening civilian and military leaders, especially Milosevic, with prosecution would provide the leverage necessary to induce them to halt hostilities. Cooper may not see this as "a propaganda tool employed by an antagonistic political system," but to this day many Serbs and some Croats certainly do. The ICTY has done laudable work, to be sure, but Cooper is mistaken to take her ideological agreement with its purpose as evidence that the tribunal is not itself promoting an ideology.
Other institutions and tribunals that Cooper marshals in support of the human rights idea have the same problem: they are not fundamentally about human rights - at least, not in the capacious sense that pervades the movement. For example, though the ICC's mandate forms an intellectual framework, it is not exactly the human rights framework that Cooper proposes. The court presently has jurisdiction over just three types of crimes: violations of the laws or customs of war, genocide, and crimes against humanity. This is not the promiscuous range of human rights championed in the human rights movement today, but neither is it the language of individual rights expounded by Moyn's 1970s human rights advocates. Rather, it is part of an older tradition of international humanitarian law dating back to the late nineteenth and early twentieth centuries, one that codified norms of America and Western European nation-states. International criminal law, one might say, looked at the proliferation of human rights that are claimed, as a matter solemn international law, all to be equally compelling, valid, binding, and standing on equal - and promptly reasserted the otherwise commonsense idea that there are priorities within human rights, starting with the category of "mass atrocity crimes."
Moyn’s relative neglect of this question of institutions and their origins tends also to undermine the answer to the question he poses in his final, brief chapter: what is the future of human rights? Moyn reiterates his now-familiar distinction between minimalist and maximalist agendas and expresses support for a minimalist platform that promotes protection for a few core values, but he does little to advance the conversation any farther. However, if one adds the issue of institutions to the discussion, one wonders whether Moyn has in fact overstated the power he attributes to the human rights movement and the degree of its penetration into international affairs.
Considering institutions introduces a different element, one briefly touched upon above: international law, especially international humanitarian law, which has its own values and traditions, only some of which (despite several decades of conceptual convergence) coincide with the aims of the human rights movement. Moyn does not spare much time for traditional international law in his book—a pity, given that Geneva and organizations like the ICRC have arguably done more in real terms to alleviate human suffering than Amnesty’s agitation. What he does note in a brief discussion of early international law is that in certain cases the Great Powers “condition[ed] the sovereignty of weaker powers on sufficiently enlightened rule.” Moyn drops this point far too quickly; it seems to be pertinent to his concerns about sovereignty under the aegis of the human rights movement, and helps draw a distinction between human rights and international law.
Moyn notes, properly, that proponents of human rights make demands that infringe on the sovereignty of the nation-state; however, the institutions that actually infringe on sovereignty do so only on a limited basis, and, most importantly, only on the sovereignty of certain states. The institutions that Belinda Cooper hails as a milestone for human rights provide a good illustration of this. The ad hoc tribunals of the early to mid-1990s for the former Yugoslavia and Rwanda limit themselves to the respective conflicts, and as such do nothing to threaten the sovereignty of other states. Even in the case of the ICC, the court’s jurisdiction is not universal but complementary; the ICC can only prosecute when the nation-state is unwilling or unable, effectively exempting the US and Europe from its reach. Whatever the purpose—the tribunal for Yugoslavia, for Rwanda, or even the ICC—one thing is constant: these bodies of international law are something that happens to someone else. (This is not meant to extend to the international institutions that adjudicate inter-state disputes or to the conventions that regulate weapons and warfare, only to those that seek to actively enforce humanitarian norms as individual criminal law.)
This is not to say that the human rights movement did not contribute major impetus to the formation of these international institutions; it doubtless did, and indeed, the goals and vocabulary of the human rights movement and international humanitarian law did substantially converge in the 1990s. This convergence leads both to Moyn’s concern about the explosive growth of human rights and to Cooper’s assessment of that decade as a golden age for human rights. Maintaining the distinction between the two is important, though, and helps answer Moyn’s question about the future of the human rights movement.
Moyn writes about human rights advocates and humanitarians as though the former had subsumed the latter, and in the 1990s one might be forgiven for thinking that it had. However, that period of harmony ended abruptly in 2001. In the last ten years, the distinction between the two groups has come into sharp focus, with Guantanamo as a good example: human rights organizations want detainees released; proponents of international humanitarian law want detention legislated. The two have become uncomfortable bedfellows, and this divergence—caused in large part by the human rights movement’s unwillingness to deal with the realities of war and terrorism—has robbed the human rights movement of much of the real power that it appeared to enjoy in the previous decade, power that never actually belonged to it.
With the two movements thus separated, the future of human rights appears less dramatic but, on the other hand, less dire than the vision Moyn articulates in his final chapter. Human rights advocacy continues and likely will continue to motivate people on an individual basis. Nevertheless, the movement lacks a unifying ideology—indeed, Moyn notes correctly that “human rights provide a minimal language in which radically different agendas [can] fuse”—and therefore probably will be limited to advocacy in the foreseeable future. While advocacy can change government policy, those changes are more likely to be incremental than wholesale, belying the worst of Moyn’s fears about the future of human rights.
Alice Diana Beauheim works for the United States government; views expressed here are solely in her personal capacity and not attributable to her employer.