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Who Should Safe-Guard Human Rights?

January 16, 2012

A Senate hearing, for the uninitiated

About a month ago, I attended a Foreign Relations Senate Hearing entitled: The State of Human Rights and the Rule of Law of Human Rights and the Rule of Law in Russia: US Policy Options.  Hearings before Congress are a fascinating political structure because despite inviting experts in to testify in front of them, almost no Congressperson shows to hear them speak. Usually the room is comprised of interns, journalists, transcribers, and a few lobbyists. At this particular hearing, there was the usual blend of savory Washington characters, and four Senators, including Senator Shaheen, presiding.

To give you a quick background on the topic of this particular hearing:

The basic issue at stake in this hearing was human rights and rule of law abuses occurring in Russia. This year marks the 20thanniversary of the fall of the USSR, and in the intervening two decades, less was accomplished on the human rights front in Russia than the United States initially hoped.  Putin’s bid for a third term as President raises concerns of rigged elections, stuffed ballot boxes, political fraud and elections that “are neither fair nor free.”  The wide spread protests in Russia reinforce that this is a time of change, a time to reexamine existing US policy towards Russia.

On the table is the Sergei Magnitsky Rule of Law Accountability Act, sponsored by Senator Ben Cardin.  This act is named, unsurprisingly, for Sergei Magnitsky: a Russian tax lawyer who worked for an American firm in Moscow and whistle blew on the largest known tax fraud case in Russian history.  For this deed he was arrested, imprisoned, tortured and then died in an isolation cell.  His death remains unpunished to this day, and his killers remain in positions of authority.  This case of a gross human rights abuse is emblematic of many other, lesser publicized abuses.

The Sergei Magnitsky Rule of Law Accountability Act essentially seeks to invoke a travel ban against serious violators of human rights and freeze any assets these criminals might possess in US banks. In addition to the passing of this act, Senator Cardin urges the repeal of the Jackson-Vanik amendment, claiming that it is outdated, and actually hurts economic development without any human right benefit.

Sergei Magnitsky

Let’s do a short poll, ladies and gents. Who knew about Magnitsky’s existence before reading this blog post? Are we hearing silence punctuated by crickets?

Before I attended the hearing, I didn’t know about him either. So many human rights abuses are occurring in other countries, cultural flash bulb memory moments as stark as Pearl Harbor was to Americans, and yet we don’t hear a thing about them in our news. At work, part of what I do is monitor the going-ons in several West African countries. It was through monitoring and researching some historical background on Guinea, for example, that I came across information regarding a government initiated massacre of peaceful pro-democracy rally members in 2009.

Altogether, between 150 and 200 people were murdered, with many others raped with bayonets, soldiers telling them they deserved it because of their ethnic identity. These sorts of acts are a crime against all humanity, not just Guineans. And I just heard of this now? When ‘news’ stories about some Kardashian chick are so prevalent that even I, who has so little pop culture caché, know about her?

Back to the Senate hearing. When the experts testified about the proposed legislation, concerns about human rights violations in Russia were always juxtaposed with the economic realities of enforcing American notions of proper rule of law on others. Essentially, the Senate members, and experts, were concerned with capitalizing on Russia as an opportunity for exports- with Russia’s soon to be WTO membership, there will finally be lessened tariffs on US made goods- likely a 40% decline in taxes. Thus, preserving a good relationship with Russia is a key US policy. So the question has to be asked: are measures, such as the Sergei Magnitsky Rule of Law Accountability Act, enough of a US response to maintain the best blend of being a world leader in human rights, even while remaining profit margins? Are the sanctions of freezing bank accounts, and denying access to human rights offenders enough to deter these sorts of crimes against humanity? Should the US be in charge of policing abusive governments at all? I ask these in the format of questions because I honestly don’t know the answer, or what my opinion is or should be.

I just fear that because Americans (myself included) are in general so ignorant about some of the worst human rights offenses being committed by foreign governments, that it is up to experts, to responsible governments to take a stand. The general public doesn’t know enough to demand accountability, and besides, unless they are directly affected, the general public is certainly a sluggish mechanism for change. If the United States government doesn’t concern itself with human rights abuses in West Africa, in Russia, if there is no name-and-shame rhetoric, no sanctions or consequences, real economic and political consequences to genocide, rape and election fraud, who will?

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5 Comments leave one →
  1. Diana Camosy permalink
    January 16, 2012 8:49 PM

    I do not think any single country should be the world’s policeman, even if I were convinced that it had all the right ideas. No country has the clean past that would also be required to enforce human rights for the entire world; another state will inevitably have some grievance, even if only a perceived one (and we must never forget the power of perceptions). Besides, do you really want a single state acting unilaterally? Certainly, the US does not have the shiniest past, nor does it have the best ideas, and it should not act alone.

    When a state wants to show that human rights are universal and deserve protection, by definition it cannot act alone. It should lead by example, promising to do better when it falls on its face, and then actually fixing the problem. If it wants to fix a problem in another state, it cannot simply brush aside that other state’s sovereignty. Concerted action with other states is required. We must not forget, despite their issues, the startling triumphs of the UN tribunals for Rwanda and the former Yugoslavia, and the ICC, as well as the other special and hybrid courts, and the NATO intervention in Libya––not to mention the mother of them all, the Nuremburg trial. Given the inertia, opposition and sovereignty problems that inevitably come up, that these trials and operations occurred at all is a victory for human rights.

    What the international world can do leads to the inevitable question of what an individual state can do. Even for a country as big as the US, I would answer, “Not much.” A single state shouldn’t take upon itself the responsibility to fix every human rights violation all over the world; due to finite resources, it would abandon its domestic responsibilities which are its primary concern and purview. A single state––or its nationals, such as corporations––certainly should not add to the problems in another state. The most it can really do is divest itself of connections: remove its investments (and call upon private corporations to do the same), freeze that country’s assets in its banks, prohibit travel by that country’s officials to its territory, further prohibit tourism to and from, and perhaps cut off all diplomatic relations. These may not sound like much, but depending on the size of the country doing any or all of these things, they can hurt. Throw in several other countries doing the same, and that can be a lot of pressure.

    Countries have a lot of persuasive power short of force that can be brought to bear on states violating human rights. They turn to force or––increasingly––the rule of law to enforce human rights norms when the problems get big (e.g. Bosnia, Kosovo, Libya). The ICC, for instance, does not investigate or prosecute each and every instance of international crime, but relies on states having the willingness or capability to do so; where a state fails in this duty, the ICC steps in either at the request of a victim (or even perpetrator) state or at its discretion.

    I think your discomfort arises at how violations are prioritized, both domestically in the US and internationally. Ideally, priority is given to bigger violations of human rights––the international crimes of genocide, crimes against humanity and war crimes (called “grave breaches” in the profession). To be frank, even the human rights in the UDHR have a nebulous hierarchy, simply because no country has the resources to care about all of them equally at any one time, even if it wanted to. In reality, however, priority is also determined by which country is committing the wrongs. One reason––but not *the* reason––why I think there was an intervention in Libya is because no state that had the power to intervene wanted to keep Qaddafi around. Britain, for sure, was itching for a way to get rid of him after the Lockerbie bombing; and he was a continual thorn in everyone’s sides. Why there has been no intervention in Congo, on the other hand, is probably indifference, due to having no country having an interest there, spiked with lack of state resources.

    I hesitate to say that why state do not intervene is solely determined by a bad faith self-interest. There is an interplay among what rights are at stake, where they are committed, what the intervenor’s interests are, and myriad other factors in between. On the other hand, this does not mean that circumstances will not change. There is a growing international rule of law movement, which is helping to increase the number and improve the reputations of international courts, as well as pushing states away from military intervention. States prefer to be in a constant dialogue with one another, with different representatives for different issues continually working within an ongoing relationship, rather than throwing a country out of the negotiating room. This is because throwing that state out does not throw it out of existence; in some fashion, we do have to live with each other. Negotiation, even of a sclerotic variety, thus becomes possible.

    So what should the US do about human rights violations abroad? Certainly, no change is possible if no one here knows anything about them. Better media coverage might help create a constituency for better––note I do not say “stronger”––US action. In the meantime, having the discussion at all is a good start.

  2. January 17, 2012 10:42 AM

    I have only watched a few of these via internet and often scratch my head wondering where the other Congress members were for them. I concur, most people do not know anything about other countries, especially third world or developing countries. The media does not find stories there “sexy” enough to report on and have their own agendas that gain attention of the advertisers who pay their wages. I only learned about the atrocities in Africa while doing my graduate project on several African Countries ( I can email you the documents if you are interested in seeing them). I was shocked to learn that those people in countries like Nigeria, Somalia and Uganda had so poor of conditions and especially DRC. I was in awe to see how quickly a country like Zimbabwe could go downhill and how their store shelves emptied and how infrastructure failed under the rule of a horrible dictator. I remember thinking to myself, “no wonder they do not trust Americans in certain areas”. I read blogs that noted the unnacceptance of AFRICOM bases being set up throughout the continent…so it remains in Germany.

    Maybe our academic institution in America does not want our children to learn of those things in public school. I think back to my public school experience and the most profound thing they taught back then was the slaughter of Jewish people under Hitler, actually showed black and white movies with pictures of piles of bodies thrown out like garbage…that had an impact as I still can think of it today…more than twenty years later.

    Diana is correct in saying we would not want one single governing body…we do need separate influence and no one power. I hope more people will read about this and see the need to teach their own children things that the schools “forget” or rather ignore…there is just too much out there worth knowing and my view of the John Q. Public from my position sees a lot of people walking around sort of asleep…they have no idea what is out there beyond their home, job, commute, and the pub or whatever social place they like to frequent. They are ignorant to international issues, and to security issues…like the border and threats or terrorism; to human rights violations (even those that are ongoing even in the US) and so much more…if I stopped to think of all of that, it becomes depressing.

    I wish I could have another 12 hours each day to read about all the things I want to know.

  3. January 19, 2012 4:45 PM

    Thank you both for these insightful comments- I agree that unilateral action is not the way, but question whether the ICC and the UN have enough strength and resources to really stand by their claims and missions of aid. For instance, Gbagbo is the first world leader that the ICC has ever been allowed to try- and that was because no one in Cote d’Ivoire could be deemed unbiased enough to judge him. Still, I guess I should see it as a cause for hope…

    Diana, are you in the human rights field at law school?

  4. Diana Camosy permalink
    January 19, 2012 7:39 PM

    Luca, I’m sort of in the human rights arena, insofar as it’s inseparable from international criminal law and military law, which are what I really want to do.

    Also, I feel like you’re mischaracterizing what the ICC does. The ICC doesn’t answer to anything except the international community, policing itself with the 1998 Rome Statute that created it. It’s not like anything else really forbid it from bringing Gbagbo to book. The ICC, by its Statute, depends on the principle of complementarity: that it will not intervene when the state(s) concerned are willing and able to to try the individuals accused in a fair and just way. (When I visited the ICC this summer, I asked what willingness and ability meant, and the prosecutor I was talking to said that they were still being worked out through experience. They’ve basically only dealt with the extreme cases of inability or unwillingness to have fair trials, which makes it easy to intervene; but they haven’t yet had a case on the margins.) Usually, they’re petitioned by nationals of a victim state, which triggers an investigation into whether they should take the case; the UN Security Council can also ask for an investigation. And the prosecutor can open an investigation at his discretion, which isn’t to be used except in big cases (e.g. Omar al-Bashir in Sudan). Moreover, the ICC is meant to adjudicate the “grave breaches”––i.e. the major international crimes: war crimes, crimes against humanity and genocide. These are larger-scale than your run-of-the-mill human rights violations (not to denigrate them), and also can encompass such violations in the midst of the death and destruction it’s investigating. That is, the ICC only gets involved when the violations are big. The ICC, in short, intends to be a court of last resort––where to go when the domestic courts fail, and when the crimes are huge. (The ICC also can only investigate and prosecute grave breaches occurring after 2002, when the Statute took effect.) It’s not for every human rights violation.

    I also think that the UN should get a little more credit. When the UN Security Council wants to flex its muscles, the effects can be big. I’m thinking here of Bosnia, Kosovo and Libya, as well as the tribunals that followed Bosnia and Rwanda. Those tribunals were under the UN’s Chapter VII authority––how to act in an international conflict. The ICTY (the Balkan tribunal) now has all 161 of its defendants either fully tried (and convicted, if that’s how it went) or in the dock; and, despite his death (suicide?), it did bring Slobodan Milosevic to book when he was a sitting president. From all accounts, though it has more defendants to try, the ICTR (the Rwandan tribunal) is steaming along nicely. And we mustn’t forget all the special courts (e.g. Sierra Leone and Lebanon) and the hybrid courts (e.g. Cambodia, Timor-Leste, Guinea-Bissau) that, because national law is applied, are somewhere in between all-out UN authority trumping national sovereignty and the ICC complementarity. The Special Court for Sierra Leone, for instance, tried and convicted Charles Taylor while he also was a sitting president. Once again, as with the ICC, these are reserved for the grave breaches––if only because, as you said, the UN may not have the strength and resources to take on every violation. It tries to lead by persuasion and example (soft power), and occasionally outright intervention (hard power). I think its effect is bigger than you may realize: the existence of the UN has completely changed the discourse about human rights––even states that are flagrant violators accept the terms of the discussion, understanding that it’s costly to be a pariah. All states want things from other states, which means there’ll be a willingness to meet certain (if perhaps low) conditions to get what they want.

    I think the problem you’re gesturing at is whether things like greater international cooperation, the ICC and the UN––with all their incremental changes––can really deter violations. That’s hard to prove, if not impossible. This is because you can’t count the crimes that aren’t committed. For the crimes that are committed, noticed how they’re excused, especially by developed states: when the Bush administration wanted to allow torture of Gitmo detainees, its lawyers bent over backwards to define “enhanced interrogation techniques” as not torture so that there’d be no violation. Speaking of Bush, I think there’s some fear of prosecution on his part: he canceled a speaking engagement in Switzerland, fearing arrest for war crimes.

    Keep in mind, too, that the idea of human rights is quite young––the UDHR was only ratified in 1948––compared to the more ancient ideology that denies fundamental human equality. It took a little over a century for the abolitionist movement in the Western world to succeed at getting rid of slavery. (It was a longer fight to get rid of things that were de facto slavery.) And slavery was something that originated further back in time than we have recorded history, and was practiced by just about every culture at some point. To expect such a recent paradigm as human rights to take over the world so quickly is rather unrealistic. Norms take a long time to sink in, even in this era of instant communication. (2011 may be a banner year; I’m starting to think it was the year of a great opening up. We’ll see what’s done with that opening in the coming years.) And incremental changes have to be applauded because anything done on a global scale, and/or in countries that are starting from a major deficit of progress, is going to be slow––especially if we don’t want to enforce human rights at gunpoint. No one ever said this was going to be easy.

    What I’m getting at is that there has been progress––progress which is always too slow for its proponents. That’s why I’m asking for you to give a little more credit to the UN. When the progress made is pointed out, I hear that it’s not enough. There are calls for more attention to be paid to human rights, but I think they’re always hovering in the background, for, after a fashion, what else do international organizations pay attention to? They try to increase trade––and thus economic ties––so that countries are more hidebound when they want to go to war; they increase foreign development to make human rights violations a non-rational economic choice; they promote liberal democracy; and so on. Major strides have been made; progress is ongoing and a lot of work remains to be done. I think you have more than a mere cause to hope.

  5. Diana Camosy permalink
    January 21, 2012 1:07 PM

    I’d also like to add a point to the paragraph on deterrence. At least as far as the grave breaches go, by the time a state––or a sub-state group––reaches the point where it’s a powder keg for an international crime, it may be too late to deter anything. Ethnic, national, racial, religious or other social conflicts will completely overwhelm any international commitments and obligations. States are still mostly inward-looking (as they should be), and when a state is riven by conflict or tension, expect international soft-power deterrence to fail. On the other hand, with the advent of the doctrine of responsibility to protect (R2P), there may be a greater push to intervene in states where the government advocates or imposes a policy of human rights violations against a given group––before those violations morph into an international crime. The problem with this is that no one knows what the conditions are––or when they’re ripe––for an international crime. They change with the circumstances of each case.

    I think the fundamental thing that I’d like to point out is that not all human rights violations are international crimes. While I do believe that the ICC should have more teeth, turning it into a court of first resort for every violation would overwhelm its capabilities and probably provoke a backlash by even member states. (Can you imagine the response in the US? We signed, but did not ratify, the Rome Statute on paranoid fears that––gasp!––Americans would be brought before the ICC for just anything.)

    We’re in something of a new era of human rights and international criminal law, I believe, and right now is the transition period. Keep supporting efforts like the ICC and UN intervention, not to mention the European Court of Human Rights. We’ll see what the future holds.

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