Tag Archives: human rights

Social Rights and Political Rights: The False Divide?

My lecture at Goldsmiths College’s Annual Human Rights Law Symposium, held on 17 May 2024.

Social Rights and Political Rights: The False Divide?

Conor Gearty[*]

The division between civil and political rights on the one hand and social and economic rights on the other is an historical anachronism.  The primacy long accorded political rights has been built upon an assumption that no longer applies. By exposing this, the necessary groundwork can be laid to reorient the field along different, more productive lines.

What is the assumption that is questioned here, and from which all else set out follows?  Crudely put, it is this, divided for the sake of simplicity into two propositions: (i) that in the past political rights were assumed to lead to social and economic well-being when in fact as we now know they do not, or at least not necessarily; and (ii) (and here is the cause of (i)) that the democratic cultures into which these rights were inserted after 1945 were nothing like as robust as we came to believe they were during the social democratic era that was both first ushered in – and then protected – by the realpolitik demands of the Cold War, a war that is of course now over for over thirty years.

The focus in what follows will be on the European Court of Human Rights though it may well be thought that the argument extends beyond that judicial body. I explain first how the past landed us with the division of human rights we have today, and why what once made sense of this inheritance no longer governs, leaving us an international (and for present purposes importantly a regional) human rights system) which has no obvious contemporary rationale. I reflect, second, on the difficulties in the human rights paradigm that flow from this untethering from its moorings. This takes me to, thirdly, to what I call the present moment, a short assessment of recent European Court cases, analysed from the perspective of the argument that I will have just developed.  I return in my brief conclusion to the democratic objection to the judicial engagement I have described, and answer it (I am anticipating the argument a little here) by paying close attention to the relationship between the body making decisions of this sort – here the European Court of Human Rights – and the wider polity into which its decisions are inserted.

Let me start therefore with the history. – my first proposition.  I make the following three claims.

First the reception of democracy into pre-democratic systems of government has been necessarily imperfect. I say necessarily because history shows us that total breaches with the past, true revolutionary moments, do not usually end well, even if the rhetoric that accompanies them is at the outset optimistically democratic in nature. The democratic systems that have survived have been achieved by negotiation with the past, not the total defiance of it.  The representative government that results has always been irritatingly imperfect, the will of the majority foiled by the embedding of privilege in institutions that predated democratic reform but linger on nevertheless into the democratic era: absurd hangovers like the House of Lords but also the electoral college that elects the US president and the composition of the Senate in that country. And reactionary courts as well, determined to preserve the truths of past generations into new democratic eras. These have been the prices exacted by power for the surrender of its privilege to the people.

Second claim in these preliminary remarks about history. I say that, historically, the idea of human rights has played an important role in this anti-democratic fortification.  Whatever we call them, human rights, civil rights, common law rights (and they have had different names at different times and in different places) all have had the same effect in the past: to equip the unelected community of experts that we call judges and which non-revolutionary democracy has had to accept as ‘the rule of law’, with the power to hinder the flourishing of the democratic ideal, to hold it back, to defy its implications with a counter-rhetoric of moral absolutism. When we look at old-fashioned democratic socialists – the early Labour party in Britain; the more radical New Deal democrats in 1930s America – we can see that they were right to deplore judicially enforceable rights as obstacles to social justice, as a way of impeding the journey from democracy to socialism that many early democratic idealists thought would be inevitable.

There are countless examples in the past of the rights to liberty, property and freedom of contract trumping the interests of the wider community, particularly where these human rights have been deployed by corporate entities. Where that community has sought nevertheless to make a political mark, we have seen the efforts of its aspiring representatives being routinely impeded by state coercion, with no respect being shown for their supposed right (or liberty) to protest, and with whole political associations being banned where their objectives are judged too dangerous to permit their leaders a chance to shine, restrictions and prohibitions that are let pass without challenge by the supposed custodians of political rights. The only rights that have often seemed to have mattered in the past were those of the possessive individual, and certainly not those of the public whose interests democracy was intended to promote.

But then thirdly, and my final claim in terms of these preliminary remarks focused on the historical context. This relates to the Cold War, the time when our subject took its modern shape, the American-led West (to give it its old-fashioned descriptor) confidently promoting civil and political rights, the alternative Soviet-inspired world countering with its emphasis on social and economic rights: liberty being challenged by equality, democracy by socialism. This is where the current false divide comes from.  Not apparent in the Universal Declaration of Human Rights in 1948, it is epitomised in the not one but two agreements concluded in 1966 that make up the international bill of rights, one on civil and political, the other on the social and economic (and cultural). It is also evident in the way the Council of Europe created two bodies for the protection of rights, one broadly civil and political (the Court) the other focusing on the social and economic (the Committee on Social Rights). One has been operative since the late 1950s the Court, the other (the Committee) has been hearing cases since the late 1990s.

The West was not, however, the paradigm of the civil and political rights that it put centre-stage, not least for the reasons earlier alluded to.  And of course as we know the limitations of the Soviet approach became painfully clear as the decades rolled by before the entire regime upon which its claims were based collapsed in 1989.  A consequence of that defeat is that the old Soviet model no longer influences the contemporary discourse of human rights: we are all Westerners now.  But the West that emerged victorious from the Cold War was not the same West that had gone into it.  Whether as a protection against Soviet-inspired revolution or for some other set of reasons about which it is not necessary to speculate here, a kind of benign social democracy was permitted to settle over Europe.: trade unions thrived, collective rights flourished, non-revolutionary social democrats rose to and retained power.  By 1989, therefore, it seemed natural to assume that the victory of the West was a victory for democracy, not only in the civil and political sphere but encompassing the social and economic arena as well.  The imperfections of the system which had resulted from the incomplete reception of democracy all those years ago – and to which I alluded at the start of this talk – had been forgotten.  Civil and political rights delivered and guarded a properly functioning democratic polity that could then be relied upon to secure social and economic rights for all, and often in a more tangible form than a vague language aspiring towards such rights could ever achieve – a National Health Service Act not a right to health and so on, in other words. Political rights mattered, with all else flowing from the natural effect of their operation: social democracy, it was assumed, was bound to be the choice of a properly-informed electorate.

Now the second of the three propositions I promised to lay before you, on why the current model does not fit so well with developments after 1989.  I can deal with this pretty shortly. Crudely put the assumption behind it – to repeat: that political rights could be relied upon to deliver social rights – was false. The foundations of our democratic culture were much shakier than anyone remembered, and its enemies (those who had unwillingly surrendered their power in the first place) were emboldened rather than silenced by the success of the West.  Universal suffrage remained safe but all around it grew hedges that restricted its capacity for transformative growth while at the same time past democratic gains were being eroded, slowly at first and then at an ever-faster pace.  The solidarity that grew out of working-class self-consciousness and which had produced political movements designed to deliver equality was undermined by emasculation of the trade unions that were at its very core. Controls on press ownership intended to prevent the concentration of power in single individuals were first ignored and then discarded. Money successfully and eventually very easily skirted around restrictions intended to keep the electoral process fair and so over time it became entirely normal to assume that political parties needed vast sums from the uber-wealthy if they wanted to survive, and even more if their hope was to thrive. Individualism replaced collectivism as the common sense of the age, the former reflecting the autonomous individual that was to underpin neo-liberalism, the second a vaguely socialist reminder of a vanquished enemy. Rights were all about liberty, and a decontextualised individual at that. Freedom was increasingly for the rich, the political was to be manipulated and the social removed altogether or at very least emasculated.

The cumulative effect of these changes in representative government, seen to a greater or lesser extent across all the democracies in the old West, has been very damaging for civil and political liberties but far more so for social and economic rights.  Life chances have diminished for many while the gap between the rich and the poor has grown astronomically, especially in what we used to think of as the Anglo-Saxon political sphere.  Despite the dysfunctionality of the capitalist system becoming increasingly apparent, the affluent have grabbed more and more of a relatively static national pie without any fear of retribution.  The anger of lost generations is directed away from the truly responsible and – in time-honoured fashion – towards those in an even worse position than themselves, the refugees fleeing the turmoil, danger and poverty of many troubled spots in the Global South.   An ersatz ethno-nationalism accompanies this anger, risking the diversity and tolerance upon which civilised democratic living depends. Police coercion increasingly prevents protest that seeks a refocus on the inequality that lies at the core of our societal malaise – that effort at truth-telling is redescribed as ‘extremism’ and closed down.

This second of my three propositions can therefore be summed up as follows: so far as the European system was concerned, the difficulties it has encountered are not the result of errors of design that could have been avoided by better construction at the moment of their conception. The failure if there is one – and it is perhaps unreasonable even to call this a failure – is in their inability to keep up with the brutal times that have followed the liberal victory in 1989.  Representative government has been reduced to a kind of shell of itself, and the political rights that were supposed to protect it likewise grossly weakened. Social rights have been among the resultant casualties.  But what could human rights bodies – international, regional, national – have done, injuncted neo-liberalism, ordered the retention of social democracy by court order?

And so to my third of my four propositions, related to the present moment.  Where do we stand today? Some extreme ideologues of the right call for the formal dismantling of our system of European human rights protection, describing it in scathing terms as a relic of a past age, as (to use a cruel cliché) ‘past its sell-by date’.  That is not going to happen anytime soon, I think. Nor is the positive transformation of the human rights framework to make it – to use another cliché – ‘fit for purpose’.  Human rights mandates remain active in the present era, with their courts and committees interpreting their charters and conventions and covenants and so on despite these documents not having been tailored to reflect the more brutal times in which we live.  To put this another way, these human rights bodies have legal mandates, which they are required to follow and which have legal effects (direct and indirect) even in those states hostile to those mandates but without their being so hostile as to dispense with the whole structure altogether.

How has the European Court of Human Rights been operating its mandate in this period of strain? The story is inevitably a mixed one, and there is no space or time to go into detail here, but with precedents to rely upon and the consequentially slow development of case-law, the Court is inevitably not well-equipped to react effectively to the changed democratic circumstances around it. The consensus about equality of esteem, the need for separation of powers and the importance of the rule of law – for years assumed to be so secure as to be beyond argument – is breaking down, at least in some states and perhaps in more than we realise.  Old school rights jurisprudence about this or that abuse of individual freedom by some state authority or other presupposes an underlying support for the ethico-legal framework within which such cases get litigated. What happens when it is the framework itself that is being undermined?

Given it will be neither abolished nor rejuvenated by state support, what is the European Court of Human Rights to do?

First the Court needs to be much clearer about fighting for the civil society space within its member states. It must in particular avoid decisions that eviscerate the capacity of civil society actors to deliver for their members, whether these be trade unions (as arguably has occurred recently, in Humpert v Germany), human rights bodies or religious groups. This is not about this or that political right (though their protection too is very important); it is about the health of the underlying body politic.

Second the Court needs to be imaginative, even creative, in the way it interprets the rights it has available to it to secure a level playing field for all political actors, across the spectrum of the electorally possible. Vehicles like article 3 of the first protocol, article 10 of free speech and article 14 on equality need to be mustered in defence of democracy itself, not subverted from within by destructive individual claims.

Third the Court needs to be alive to the deficiencies in the underlying democratic framework within many of the members states and not unthinkingly hide behind the appearance of rights-respect: subsidiarity quickly becomes surrender if it allows the domestic window-dressing of rights to replace their substantive protection.  Where the matter relates to our very democratic existence, let not the court get carried away by the margin of appreciation or by other false claims of deference.

Fourth, there is the social rights issue.  The divide with the political is already closed to some degree in the Convention itself– the right to marry; the right to education for examples. Procedural rights too have been deployed to give the recipients of state benefits and/or those disadvantaged by state action a chance to put their side of a story to decisionmakers.  Positive obligations can have the same effect. People should not have to suffer a poverty so extreme that it can be classed as inhuman and degrading treatment; abject failure to deliver promises of environmental health produce breaches of the Convention guarantee of respect for privacy; decayed health systems endanger the right to life; and so on. In developing this side to their jurisprudence the court should play its part in pushing towards an holistic human rights perspective by engaging with the complaints and conclusions issued by its specialist sister-body the European Social Rights Committee more frequently and effectively than it does at present.  The Court recently proved itself able to deal with a wide range of issues related to health and living conditions in Klimasenniorinen – why not do the same beyond the climate context?

There is an agenda for powerful action here, for ‘activism’ its critics might call it.  Those who would disown the entire human rights system have a secondary position as deep critics of any ‘mission creep’ on the part of the Court.  But what I have described above is not ‘mission creep’; it is a humane response (controlled by its own foundational charter) to the mismatch between what a state says it guarantees and what it truly delivers. That gap is the result of the deficiencies in our democratic framework which I earlier discussed. But these critics of the Court need to ignore all this, assuming as they invariably do that the alternative decision-making point in the system (the one that the court has ‘usurped’) is a model of democratic integrity.

The much maligned (by these anti-rights ideologues) ‘living instrument’ is simply the rhetorical flourish that underpins acknowledgement by the Court of the world it is in, one where the gap between a human rights vision of equality and the reality of the lived experiences of so many people is so stark. This takes me finally and by way of my conclusion to the recent climate litigation Klimaseniorinnen and the democratic critique. What happens if there is no ‘effective political democracy’ or even if there is that the threat is so grave that it would have difficulty generating right action, much less one that is already pockmarked by money and the abuse of power? This is not quite the same as what I have been discussing where the court forces states to take seriously their assumed obligations to the vulnerable living. What about the vulnerable young or the yet-to-be-born whose life chances are being catastrophically eroded by the failure to tackle climate change today?  To Judge Eike, the matter is one for democratic discussion; his dissent in the case is rooted in a confidence in democratic processes that much of this paper has suggested is idealistic but (increasingly) inaccurate.

If all of this involves the emergence of an actio popularis which some have argued has emerged from the Klimaseniorinnen case, then well and good.

Many of the criticisms of the climate decision assume an authority for it analogous to that of a domestic court with the power to order an immediate outcome and then demand its realisation on pain of penalty.  Like most international human rights agreements, however, the court’s power of enforcement is so qualified as to be barely present.  The judgment is legally binding for sure and carries with it an international law obligation that it be enforced, but the power of oversight and enforcement is left to others, in this case the Council of Europe’s political arm, the Committee of Ministers. But like all of this Court’s interventions, it is a stimulus to further discussion, not a declaration Deus ex Machina.

Given the democratic defects I have mentioned earlier though, would not a stronger judicial presence, a notional European Supreme Court be better, on an American model, with the Parliamentary Assembly of the Council agreeing appointments in the way that the Senate does in that jurisdiction (and with the nominations emanating as now from the states not the Council’s Secretary General acting as a presidential chief executive)? I think not.  The answer to a democratic deficit is not to double it.  The court’s relative weakness is in fact its greatest strength: and if it is to be an ethical bully pulpit then it is important to keep its sermons up-to-date. And at least the majority judges in the case can say while the waves inundate us, the storms shake us and the millions displaced by the disastrous misjudgements of the present and past generations beg desperately for us to open our doors, they can say ‘we did our best’. Bravo.

 

[*] Professor of Human Rights Law LSE; Member of Matrix Chambers.

Human Rights After Gaza

This is the annual human rights lecture at the Las Casas Institute in Oxford that I gave on 2 May 2024


The Context

Approximately 1,400 Israelis and other nationals were killed on and after 7 October 2023, according to figures reported by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), most of them civilians, including multiple members of the same family, women and numerous children. Some 224 hostages were seized, including at least one person with a disability, women, children, elderly people and Israeli soldiers.

In response, Israel ‘declared war’ on Hamas. Since then, the Israeli army has dropped thousands of US-made 2000-pound bombs on Gaza, one of the most densely populated places on Earth, home to 2.1 million Palestinians, of whom approximately half are children, and the majority of whom are refugees from villages and towns now within Israel. At least 34,000 Palestinians have been killed thus far and over 70,000 injured in Gaza. Seventy percent of recorded deaths have been women and children. Human rights groups including Amnesty International have recorded multiple instances of ‘entire families [being] wiped out in Israeli attacks even after they sought refuge in areas promoted as safe and with no prior warning from Israeli authorities’. Groups of starving Palestinian civilians waiting for food aid have been killed, as have those supplying the aid. Strikes on UNRWA facilities have led to the deaths of 400 people seeking shelter under the UN flag. At least 165 employees of the United Nations Relief and Works Agency (‘UNRWA’) have been killed as well as multiple journalists and leaders of Gaza’s now destroyed university sector. As I write, the bombing of northern and central Gaza has been resumed and the Israeli Defence Forces appear readied for an assault on southern Gaza where the vast majority of displaced Palestinians are now huddled.

The wilful violation of multiple human rights here is remarkable, with the remarks I have just made barely scratching the surface. What of the world’s main human rights cheerleaders? The US government continues to support this Israeli campaign of retributive violence with vast amounts of military aid and (at the United Nations) continued political cover. The European Union and most of its national leaders maintain their close links with Israel while doing nothing that might prevent or even merely inhibit or delay the ongoing destruction. The Parliamentary Assembly of that beacon of human rights hope, the Council of Europe, unquestioningly retains Israel as an Observer State, enjoying all sorts of favours within the organisation and able to choose which bits of its work in which to involve itself and which not (like, of course, human rights). The Council of Europe believes, it would seem, that the State ‘accepts the principles of democracy. the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’, the condition for the award of such a favoured status. But then Israel is happily appearing in the Eurovision Song Contest in Malmo on 7-11 May, and is participating in European football competitions and are now in Horizon Europe, ‘joining hands for a better future’ as the Mission of Israel to the EU and NATO put it in October 2022. Imagine if this were the Hutus in Rwanda, or the Yugoslavia of Milosevic, or – to pick a recent example not even arguably engaged in genocide – Putin’s Russia.

Human Rights Origins

How can the idea of human rights retain its current shape in light of what has been happening? To know where our subject is headed it is important to know where it has come from. The story is less unambiguous, more conflicted, less Whiggish, and more entwined with imperialism than we might suppose or want. Starting points reveal perspective and mine is to be found right here, in this Institute, in the person after whom it is called. As your website puts it, ‘Bartolomé de las Casas OP was a sixteenth-century business entrepreneur in the Spanish Empire who, when confronted by the suffering of indigenous peoples, became a Dominican friar and began to campaign as an opponent of genocide in the “new world” and a vocal advocate for human rights.’ Launching this Institute sixteen years ago I called him, not hyperbolically I hope, the ‘founder of human rights’.

In the centuries since de las Casas, and following him in spirit, human rights have been a way of getting the powerful to see people (the poor, persons with disabilities, indigenous peoples, the colonised) whom it does not otherwise notice, as humans. This is the original ‘consciousness-raising’ that I believe is the essence of human rights – a forced broadening of our understanding of what it means to be human, with all that it is hoped follows from this newly achieved empathy. Human rights adds entitlement to this compassion, asserting a right to the life chances which it was thought previously depended solely on kindness or charity from the privileged.

But how to get people unaffected by oppression to listen to this surely unwelcome message, to see what they would prefer to avoid? De las Casas was no marginalised figure himself; he was a propagandist of genius with (as we would put it today) access to and influence on those in circles of imperial power. His propagandic genius was to turn the Spanish empire’s own doctrine of morality against itself, revealing injustices that had previously been ignored. In the late 19th century, the Anglo-Irish diplomat Roger Casement did the same thing, reporting on imperial violence and dehumanisation from Congo, Peru and, eventually, from his own country, Ireland. The British lauded him when he was reported on Belgian or Spanish-led atrocities, but when he turned the same anti-imperial ethic towards the British Empire, his fate was sealed. In an echo of what we see today among the leaders of the US and the EU, the powers that be often condemn violence by other imperial forces but remain in a state of denial about the violence caused by their actions or that of their allies.

The centrality of the term ‘human rights’ drew a huge lift from its adoption as a core part of the United Nations, newly established in the immediate aftermath of the Second World War. This was when human rights started getting defined as particular obligations, things that states were obliged not to do (torture; kill the innocent; commit genocide; restrict civil liberties) but also actions that they had to take (shelter their people; feed and hydrate them) if their citizens were to have the chance to lead decent lives. As had happened with the campaigns against slavery and crimes of war, law crept in, ‘declarations of intent’ first of all (the Universal Declaration of Human Rights) but then growing via the internationally agreed covenants of 1966 and the various protocols that followed, together with many other agreements promoting the interests of the previously unnoticed, into something grander and more ambitious than had previously been achieved. Here was the de las Casas de nous jours, the bully pulpit for the marginalised to which all states had promised to listen.

But the nagging human rights question remained: how could the powerful absorb the obligations of human rights in this way without compromising their own (often imperial) positions, without damaging the inequality and injustice upon which their prosperity so often depended, both at home and abroad? Human rights victories have never been complete: slavery was replaced by entirely legalised indentured service and international humanitarian law had weak to non-existent enforcement mechanisms.

There has been a duplicity to human rights ever since they arrived on this global stage, a whiff of hypocrisy. From the outset, the UN promised never to question what the countries signing up to its Charter did at home – domestic autonomy was a guaranteed trump card. Stalin’s Soviet Union was in at the start and Mao’s China was a key member through the last years of that leader’s life. The 1948 UN declaration was all (deliberately) fine words, safely inoculated against any possible enforcement and so easy to support: none voted against. When the European Convention on Human Rights went further down the legally enforcement route, in 1950, the colonies were carefully left out if the signatories so desired, or submerged in emergency get-out clauses if they were not. The Charter of the UN and its various human rights treaties were successfully concluded precisely because they came without proper judicial oversight. But this sort of hypocrisy is not to be entirely deplored: it has a value. It creates space for the cohort of UN special representatives and rapporteurs to tour the world doing their good human rights work, like latter day missionaries of the de las Casas sort, waving not the bible but the UN charter in front of their national audiences and demanding they live by the human rights book to which they have all promised to adhere. Shame can produce change even without a court order.

Law’s Empire

This brings me to one arena of human rights protection that has managed to secure more robust enforcement than those that have relied for their power on mere shaming. This is international criminal law. Things have changed somewhat since the 1909 case of the radical Indian nationalist Vinayak Damodar Savarkar. He published an article in Britain praising an assassination of a Raj official as an act of patriotism. He was arrested and detained in the UK; while being shipped back to India as a prisoner, he escaped at Marseilles, claiming a right as a political prisoner to sanctuary, something that was clearly established in the domestic law of the UK, and wider international law. Yet, the British got him back with the assistance of unwitting local police. The matter came before the Permanent Court of Arbitration at the Hague two years later, which refused to return Savarkar to France. There had been an ‘irregularity’ it was true but no rule of international law demanded such mistakes be rectified. The five decision-makers in the case were British, French, Norwegian, Dutch and Belgian.

Times have largely changed since the days when the colonial powers could blithely determine the legality of their own actions. It is no longer as easy as it was to deploy international law in this explicitly partisan fashion. It has taken a while but the momentum has been away from colonial/neo-colonial control. After the Second World War the victorious allies found a way to describe their beaten opponents as war criminals – Nuremburg and Tokyo gave us the idea of prosecuting former leaders of places that had committed what we now called war crimes and crimes against humanity. These defeated opponents were arrested, tried and punished (often with death). Around the same time, a Convention of 1948 delivered an unequivocal condemnation of genocide, not creating a special court to prosecute wrongdoers but at least empowering the International Court of Justice, established the year before, to adjudicate on disputes between signatory states on any aspect of its terms. In the 1990s, a special UN tribunal was set up to try those guilty of particularly heinous crimes in the former Yugoslavia. The International Criminal Court for Rwanda followed, and then in 1998 a whole new regime was created to punish political leaders and others in a new court of law for commission of the ‘most serious crimes of international concern’, namely genocide, crimes against humanity, war crimes and aggression. Of course, just as with the Genocide Convention before it, states have to sign up before they can be bound by the International Criminal Court (‘ICC’), but many do and so are notionally bound by these international rules.

Law has a way of escaping its controlling roots. For all their fixing of the jurisdiction of the bodies overseeing operation of the European Convention on Human Rights, the British in the 1950s found themselves in an ugly dispute about their behaviour in Cyprus (with Greece taking the side of the at that point still colonised Cypriots). Subsequent cases involving Ireland followed with routine state violence against insurgents in Northern Ireland being condemned by no less a body than the European Court of Human Rights itself. Since then, the British authorities have been dogged by domestic as well as regional human rights litigation requiring compensation for those abused in past colonial conflicts in Africa or demanding investigation into contemporary abuses in modern day Iraq and Afghanistan. The Americans have also been drawn in, facing censure in cases brought under the now slightly legalised international human rights regime for abuses incurred in the war on terror, while its European allies have been similarly caught out for helping administer the black sites (where torture was rife) or assisting in the kidnapping of terrorist suspects from the streets of European urban centres. Not even a retired dictator can live out his life in safety any longer, as the Chilean dictator consistently supported by the United States General Pinochet discovered when he was arrested in a London hospital in 1998.

One of the most dramatic advances of recent decades in the international field has been how law, and its theoretical under-pinner ‘the rule of law’, has become more autonomous, more independent of the powers that first imagined them. The story that law now tells itself is of a body of work in search of its own legal truth, beholden to no-one, answering only to this or that foundational text that determines its remit. Laws last when the fashion that gave rise to them falls away. The grand language of past eras, of post-1945 human rights, of post-Cold War optimism about punishing human rights abusers, finds continued salience long after the confident idealism that gave birth to such initiatives has faded away. Much like the idea of equal humanity that de las Casas argued for, the ideal of the rule of law now has something of the quality of enabling the powerless and vulnerable to throw the morals of the powerful right back at them. To paraphrase the infamous tax avoiding millionaire Leona Helmsey, obedience to the law might once have been ‘for the little people’. No longer.

Israel and human rights

Returning to the case of Gaza, can the ideals of human rights embodied in law and embracing punitive action for egregious breaches offer support to the vulnerable, offer even justice? We shall soon find out.
I mentioned earlier Israel’s engagement with the Council of Europe. Israel has long been expert at the cherry-picking of its international obligations. But the state could hardly skip membership of the United Nations that gave birth to it and could hardly avoid too committing itself to the Genocide Convention, agreed as it was so soon after the Jewish people had suffered their own, terrible Holocaust.

This does not mean that the State supports the international community of course. Its attitude to the UN has been on crude display during the conflict in Gaza, condemning nearly all UN fact finding as at best ill-informed, at worst the work of anti-Semitic Hamas apologists. Israel has paid some $10 million dollars to the UN in compensation for damage done to its buildings in previous attacks on Gaza. Already in this short conflict over 150 UN employees have been killed, I think an unprecedented number. Belgium had its development agency building in Gaza destroyed by an Israeli attack, twenty-four hours after it had decided to continue to fund the United Nationals Relief Agency in Gaza, resisting pressure to follow the US, the UK, Germany, Canada and Japan and eleven other Member States in defunding the agency, removing some $450m from their balance sheet.


Why on earth withdraw support from the only plausible relief organisation operating in a territory whose civilian population was being subjected to unprecedented levels of bombing and destruction?

The answer takes us back not to the UN this time but to law and the Genocide Convention. An independent report commissioned on 5 February following Israeli allegations of UNRWA support for Hamas reported last month, and in the course of vindicating the Agency observed that Israel ‘had yet to provide supporting evidence’ of the allegations it had made. These allegations had apparently ‘surfaced’ (the report’s own word) in January. This ‘surfacing’ had happened at exactly the time that the International Court of Justice gave its preliminary ruling in the case alleging genocide brought by the Republic of South Africa. The Court ruling was on 26 January, and that was the day that UNRWA received the first allegations from Israeli officials regarding the alleged involvement of 12 UNRWA staff in the 7 October attack against Israel. On 28 January the New York Times ran its usual long and supportive story citing Israeli sources detailing the level of alleged complicity in its characteristically graphic terms.

Israel is expert at these contrived scandals, designed to divert. It was right to be worried about the South African case. The bar to prove genocidal intent is high but apparently oblivious of the international implications Israel appears determined to scale it. Why else embark on what looks very like a policy of forced starvation if that is not the case? Normally those accused of genocide hide from authority and when arrested disclaim all responsibility for the horrors of which they are accused. Israeli leaders have taken a different route, celebrating mass destruction, promising more, and relying on the guarantees of impunity they believe they continue to enjoy from Global North power. But are they missing the move away from US global hegemony and towards an independent rule of law to which I earlier referred?
Arrest is not something the ICJ can order. But the Chief Prosecutor at the ICC can do so. Naturally Israel did not sign up to the Rome Statute, but the fact that Palestine is now a Party means that their actions in Gaza expose them to action by the ICC: a ruling of the court handed down before 7 October 2023 confirms the possibility. And the ICC does not need genocide to act; mere war crimes and crimes against humanity will do. The principle behind the ICC is that of individual responsibility, right up to and including the leadership behind the crimes being alleged. The Russian leader Vladamir Putin has already been indicted. How can Benjamin Netanyahu not be, together with his senior political allies and the IDF leadership, as well as countless other lower level personnel whose apparent war crimes have been a source of pride to them, flaunted on social media? Warrants are indeed said to be imminent. The usual accusations of anti-Semitism have come from the Israeli prime minister; there are reports that he is terrified of what lies in store.

Human rights after Gaza

The future of our subject as a plausibly universal idea supported by sovereign powers may well depend on the ICC prosecutor Karim Khan. If warrants for the Israeli leadership are issued and Netanyahu and some of his senior political and military officers are arrested on a trip abroad or (more likely as has often been the case with African countries) handed over by successor regimes, then regardless of outcome the jurisdiction will have proved its worth. If the ICJ delivers a verdict condemning Israel’s conduct in Palestine and perhaps even castigates its conduct as genocidal, then as with an ICC outcome of the sort just referred to we can say that the system is not rigged to protect the powerful, that all are vulnerable, even those with the Global North resolutely on their side.

Even if neither of these happens, if law does not rise to the occasion, then other options remain. The performative power of the ICJ hearings, seen on television around the world, were persuasive even without a court order: the slow deliberate analysis of the South African team, all emotion bottled into a series of devastating phrases, up against the old guy losing his way in the papers and making little sense even when believing he was on top of his brief. The judges in their grand judicial gowns and ranged on one side of their grand table looked as the peoples of the world should look if we were to take a random selection of fifteen, all nationalities, all colours, all languages.

The shame of these proceedings should have been enough for Israel to draw breath. But shame – an essential part as I have said of the human rights repertoire – appears not to work with contemporary Israel. It, its leadership and its supporters around the world appear to have convinced themselves that none of what is happening is Israel’s fault – that Hamas are solely responsible, and anyway even if it is Israel’s responsibility it is anti-Semitic to call the country out in the way its critics do, that the suffering of their ancestors gives them a blank cheque today.

Tougher measures are required, and they are coming – from the bottom up. Israel’s artistic and cultural engagements with the outside world are coming under pressure, with organisers finding themselves forced to deny Israel participation or lose their events. Malmo next week should be a reminder of the days when apartheid South Africa saw its European sporting events disrupted, The extraordinary protests on US campuses shame those of us in Europe who collude in continuing to treat Israel as a normal academic partner: a recent book by Maya Wind (Towers of Ivory and Steel: How Israeli Universities Deny Palestinian Freedom) has demonstrated the collusion between the country’s universities and its increasingly barbaric occupations, of both Gaza and the West Bank. The churches, led by the estimable Pope Francis, are reaching across sectarian divides to build new alliances with their Muslim co-religionists. Disinvestment campaigns are taking off everywhere. Israel is at risk – a substantial risk in my opinion – of becoming a pariah State, its own actions disowned not only in the Global South, but across the whole of progressive opinion in the Global North too.
This is not a clash between South and North: it is between corrupted power and (to use proudly a hackneyed term) ‘the people’. We must celebrate social media for showing us what has been happening in real time. When the Lebanese Christian militias murdered (with IDF support) unknown numbers of Palestinian refugees in the camps of Sabra and Shatila after Israelss brutal siege of Beirut of 1982, no cameras recorded the massacre in real time. No longer.

But social media carries its own risks, reflective of a wider hollowing out of a global audience’s capacity to focus on anything for any length of time. What happens when the killing finally stops, when the global community comes in to try to rebuild Gaza after Israel’s latest bout of destruction? Will the supporters of the Palestinians move on to their next cause, forgetting the passion they will have now spent and forsaking the cause that seemed so central just a short while before. Will some successor of Netanyahu receive the Nobel peace prize from an exhausted world, glad it has all stopped. Will Blinken join the late Dr Kissinger in such hallowed ranks?

The future of human rights depends on none of this happening. I have spent little time here on ordinary civil and political rights, and even less on the economic and social rights necessary to make a full life possible. These are utterly and in almost every way disregarded by Israel so far as Palestinians in the occupied territories are concerned (and also for many Palestinians within Israel). There is a reason why both of the UN human rights covenants of 1966 start with a people’s right to self-determination: without freedom human rights do not stand a chance.

The future of human rights depends on Israel being driven to recognise the need for a State of Palestine, and then to make the necessary changes to bring this about. For if large sections of a people can be destroyed with utter impunity by Global North military power, their culture destroyed, their lives eviscerated by deliberate destruction, if all this is possible, why should irregular asylum seekers not be next, and then asylum seekers proper, and then refugees and then – who knows? Martin Niemöller’s famous warning about for whom authoritarianism comes and in what order should be echoing in our ears, plausible more than ever since the 1930s, especially now at this time when a new, nasty brutalism is in the air.

The Government’s Plans for Human Rights

The consultation on the Human Rights Act

 

The Conservative Government in general and the Secretary of State for Justice Dominic Raab in particular have a problem with human rights.  It is one of their own making and from which the convoluted consultation paper published on Tuesday is an effort to escape – but it is very unlikely to succeed.

On the one hand the UK government preaches human rights around the world, insisting that various countries of whose conduct they disapprove adhere to them, with Liz Truss playing the role of a latter-day Lord Palmerston, just as Mr Raab did when he was Foreign Secretary.   We cannot pause here to reflect on the absurdity of this mid-ranking, rather friendless country barking instructions at the likes of China and Russia because we must move briskly on to an even greater silliness – the fact that in the Tory vision of the world the only people who can’t have human rights are the British.

This bizarre position is a legacy of the Brexit wars. In the early pre-Brexit days, the Eurosceptics (as they were then called) made a fuss about the European Convention on Human Rights and the European Court of Human Rights in Strasbourg because they were a useful proxy target in the war against the real Europe, the entirely different EU. That war is now won (ho! ho!) but the proxy war against the European Convention’s domestic incarnation the Human Rights Act continues on a kind of auto-pilot, with no one knowing quite how to stop it.

The brave thing for Mr Raab and his colleagues to do would be to repeal the Human Rights Act entirely and without replacing it, at the same time withdrawing from the Council of Europe and so ditch the European Convention on Human Rights and the authority of the European Court of Human Rights altogether, truly taking back control. Theresa May actually suggested this before the Referendum in 2016, but it is proving too much for even these most red-blooded of Brexiteers.  It would be brave but suicidally bonkers, leaving the UK alone with Belarus outside the Council’s large tent (in which Russia and Turkey are among the 47 states to be found) and thus debilitating sad Brexit Britain’s diplomatic reach even more. It would also incur the wrath of the Americans (what about Northern Ireland’s Good Friday Agreement!) and the EU (to which human rights promises were made during the withdrawal process).

The result of this sensible failure of nerve is a dogs-dinner of a proposal full of grand but fairly empty gestures to please the anti-Europeans and imperial nostalgists who run the country these days, with a few bullying attacks on the weak and vulnerable thrown in just to show off how tough, how hard our leaders truly are.

The gestures first. It is to be a British bill of rights but with the same content as that never-to-be-mentioned Voldemort of documents the European Convention. There will be ‘some mention’ of responsibilities. Britishy things will be added (a qualified (shame!) right to a jury; er is that it?) and the Strasbourg court can be ignored by the UK courts (it can be already) while other countries courts can be referred to in judgments (ditto).  The power to twist things to fit with rights will be modified but probably not removed so the twisting will need to be a bit more carefully done.  The Daily Mail sort of gets its wish to have privacy removed so they can start ruining people’s lives again now Paul Dacre is back in charge but then again maybe it will survive – the government doesn’t plan to remove privacy altogether and anyway it is now weaved into the common law which of course they love so much.

That is it, pretty much. The controls placed by the present Act on public authorities are broadly fine as is the current system of unenforceable declarations of incompatibility which are occasional made against statutes. The institutional restraint shown by the courts is also good (and Lord Reed’s Supreme Court has certainly been making things easy on that score, with yet another decision reining itself in handed down the day after the Consultation Paper was published.  Of course you will find lots wrong with any statute if you resource an independent team to write a 580 page critique of it, as the government did as a prelude to this consultation. Most of the critique in that worthy and dense report belongs at the dreary end of law reform, not the front pages of the right-wing press, however Mr Raab talks his plans up.

In truth the government is hemmed in by facts. Northern Ireland requires the Convention and no end of knit-picking about the difference between that document and the case-law in Strasbourg can get away from this capital fact.  The Convention is likewise baked into the devolution settlements of Scotland and Wales and pulling it and/or its Strasbourg cases out of these frameworks against the wishes of the locals is likely to generate a series of chaotic constitutional wars.   Not following Strasbourg while keeping access to that court open merely returns us to the 1980s and 1990s – constant ill-tempered complaints from the UK about Strasbourg cases to which they invariably acquiesce in the end. The spies at GCHQ noticed this and forced Mr Raab to keep the extra-territoriality of the current law in his new Bill, depriving him of a headline-grabbing ‘the military can infringe human rights abroad’ boast, but thereby avoiding the exposure of our spies and soldiers to public scrutiny in Strasbourg when our courts here in the UK have been proving themselves so very accommodating about secret hearings and secret witnesses and so on.

The bullying is clearer than the grandstanding, aimed at a predictable array of vulnerable people for whom tough lives will be made even tougher. This includes the usual asylum seekers and foreigners fighting deportation but also – bizarrely – children whom the State has been trying to protect from their parents and those (usually baddies the government claims) whom human rights law insists should be told when their lives are at risk.  ‘Enough of this human rights nonsense’ might not be a sufficient answer if a campaign against whatever emerges from the consultation gathers momentum. The Labour leader Keir Starmer is mentioned a number of times in his previous capacity as a human rights expert, and there are odd little anti-wokish sentences now and again which are clearly intended to incite. Labour should relish the fight.   This is one they can win.

 

16 December 2021

The Glory of the Hamlyns

How a little-known benefactor established an academic series of immeasurable value

 

(as published in Prospect)

Emma Warburton Hamlyn was born on Guy Fawkes Day 1860 in Torquay. Her father was a law clerk and after a while started work as a solicitor, a successful one of sorts, becoming a commissioner for oaths, doing a little bit of work from time to time for the province of Nova Scotia and eventually making it onto the magistrates’ bench. Emma was an only child, with her mother mainly at home but helping out in the local schools and generally doing her bit for the Methodist faith which she shared with her husband. The family lived in Torquay pretty well all their lives, Emma never seems to have budged after her parents’ death: the most assiduous of searches have revealed membership of nothing, visits to nowhere, relationships with no one. She died in 1941, aged 80, in the house in which she had spent most of her life.

Anonymous in life, Emma Hamlyn has been immensely celebrated in death. Generations of lawyers recall her name with affection. In the decades since her apparently lonely demise, the greatest jurists of their day have grabbed the chance of her imprimatur to reach global audiences in the tens of thousands. Lucky law students have the chance to attend a “Hamlyn” lecture if their enterprising professors have managed to secure one for their university; many more study the lecture texts published annually as a book under her name. How can all this have happened?

Against legal advice and out of the blue, Emma Hamlyn chose to leave the residue of her considerable estate for the “furtherance by lectures or otherwise among the Common People of this Country of the knowledge of the Comparative Jurisprudence and the Ethnology of the Chief European countries including our own.” Her express intent was that, as a result, “the Common People of our Country may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them.” Legal action in the Chancery Division was needed (as Miss Hamlyn had been warned) before the show—a set of annual lectures was the agreed format—could be got properly on the road, with (what is now) the University of Exeter leading in their organisation and the universities of London, Leeds, Belfast and Wales helping out with trustees.

The first lecture, Freedom under the Law, was delivered at the University of London’s Senate House in 1948 by Lord Denning and set the standard for the subsequent lectures. He wasn’t Lord Denning then of course, just plain Sir Alfred Denning, new to the Court of Appeal. But what a booking, a bit like getting the Rolling Stones to launch a series of concerts before anyone knew who they were. Denning went on to become a legal rock star, lived long, wrote much and in that era before mandatory retirement hung on as a judge Ruth Bader Ginsburg-style until the early 1980s (when a recklessly unchecked book did for him). Reviews of this first set of Hamlyn lectures stressed the beauty of Denning’s writing and the ability he had to reach both the “common people” and the legal glitterati. The course of the Hamlyn lectures was set. In the 1950s, Lord Devlin lectured—famously—on juries as “the lamp that shows that freedom lives” and the legendary legal polymath Glanville Williams on “the proof of guilt.” The 1960s saw the first woman (Baroness Wooton, on crime, bursting the format with a book in two parts) and moves into foreign jurisdictions: maybe the organisers thought — heretically! — that those abroad might have the occasional good idea. Reflecting the times as well was a new interest in welfare law, a sign of the innovative instincts of the trustees. Perhaps the most famous Hamlyns of all are those of Lord Scarman in 1974—English Law – the New Dimension—talking about human rights before anyone really knew what they were. Constitutional Fundamentals by Professor William Wade in 1980 nearly launched a recherché legal revolution to impose those self-same human rights, with a wonderfully bonkers argument about how all it took to achieve a revolution was a few swear words from judges. (“Changing the judicial oath” was how this old-school but wildly fresh thinker put it.) Another early booking, Denning-style, was Brenda Hale, 1995, a newbie in the High Court’s Family Division. Cambridge University Press took the lectures over in 2005 and they now have a glossy website, lovely photos and an energetic publicity drive behind them. Eleanor Sharpston QC gives the first of her three—remotely, of course but notionally from Edinburgh—on 29th October, on the European Union and the rule of law: as a senior advocate within the European Court of Justice until Brexit there will be much of topical as well as academic interest for sure.

Of course you cannot have a lecture series with mega stars every year. We jobbing professors get a look in too, from time to time. I gave the Hamlyns in 2005, on the catchy title (for which I had one of the organisers to thank) Can Human Rights Survive? It is still easily my best-selling book (not a difficult achievement admittedly). I started mine at LSE (where I work) and then went to Durham (where some of my friends who violently disagreed with me worked and who were gagging to have a go at me) and from there to Belfast. (Dublin was ruled out: a bit too foreign for Miss Hamlyn it was decided.) The bequest paid my way, rewarded the attendees with a drink afterwards and laid on a lovely dinner at each venue. (My mother drove across the border for the Belfast one, got herself into the dinner of course even though she was unexpected, and then mortifyingly made an after-dinner speech about what a good little boy I had been; in memory, though, this has grown into the highlight of my academic career.) The Hamlyns do that—bring people together (and not just relations), and when done well focus attendees’ thoughts on a legal issue which has been rendered accessible by a speaker who knows both their stuff and the nature of the audience, and who can do it all with panache.

Covid-19 has pinched all our lives even if it has not destroyed them, and this year’s distinguished speaker will have to make do without the canapés and conviviality. In giving the lectures at a time when over 800 lawyers have felt compelled to sign a letter to the Prime Minister and Home Secretary calling on both to desist from using hostile language against those in the law profession, Sharpston will surely be choosing to reassert the importance of the rule of law. I used to be pretty scathing about judges and lawyers and the Inns of Court and all their paraphernalia of privilege—one of my Hamlyns went on and on about this (hence my Durham friendly enemies finding lots to attack on the night). But now I am not so sure. I guess my hostility was all the wilder for what I had for so long taken for granted about the United Kingdom—that the government would respect the law; that separation of powers would not be regarded as dispensable; that the executive would not exploit the vagueness of the UK constitution to hoard power without regard to the consequences. It is thought that Emma Hamlyn founded her trust in memory of her father, though she never said so. I like to think that the magistrate would have been pleased with what his daughter has set in train, and that there will be many in the (remote) audience nodding in agreement, and many Emma Hamlyn’s too—decent, quiet observers of the UK who know something has gone decidedly rotten.

 

The Overseas Operations Bill: a license for atrocity

The Overseas Operations (Service Personnel and Veterans) Bill is what happens when the pub bore takes over British defence policy and there is no one left to prevent his cranky anger being turned into law. A rambling hostility to Johnny foreigner combines with a maudlin concern for the stresses faced by British troops on duty abroad to produce a measure which is almost as embarrassing to good governance as it is to those who care about contemporary British values.

The plan outlined in the bill is to compel prosecutors to let soldiers off the hook for crimes committed overseas as long as five years has elapsed since their alleged occurrence. We still say we have independent prosecutors and the rule of law in this country so a sweeping indemnity bill was out of the question. Instead the circumstances have to be “exceptional” for such proceedings to continue, with “particular weight” being given to factors that “reduce… culpability” such as the “adverse effect (or likely adverse effect)” of a suspect soldier’s “experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action).” This “adverse effect” might relate to a soldier’s “mental health” or even “their capacity to make sound judgements or exercise self control.” Just in case your accused soldier is left exposed for his or her crimes while more vulnerable criminal colleagues walk free, the prosecutor is also required (emphasis added) to “have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.” (Yes, all these quotations are directly from the bill, not a ministerial speech, or a letter to the Telegraph.) And just in case things go wrong, there is a long-stop guarantee against inappropriate prosecutions in the shape of a requirement for the consent of the attorney general. That office is held at the present time by Suella Braverman.

The protections afforded these criminal suspects among the armed forces are explicitly extended to cover those accused of a range of domestic criminal law as well as the great majority of even the most serious international crimes (genocide; crimes against humanity; war crimes). They do not apply if the victim is a Brit rather than a foreigner. Other provisions aim to curb the capacity of human rights law to reach military actions overseas, and then—revealingly—anticipate departures from human rights law? in relation to future “significant … overseas operations,” retaking Calais perhaps, or laying siege to Brussels. The UK the promoters of this bill have in mind is one that has recovered its imperial greatness and the wonderful impunity that comes with being the international hegemon. Oh happy days!

Why has the government done this? Many senior figures in the armed forces are certain to be unhappy at this unravelling of their brand as modern, rule-based, civilised and so on. The International Criminal Court is bound to see it as a direct challenge to its authority.


The bill is part retaliation, part provocation.

So far as the first of these is concerned, since the invasion of Iraq the courts have been robust in their pursuit of the armed forces in relation to a series of alleged violations abroad of ordinary and international criminal law. In a recent article included on this site (TORTURE THEN AND NOW: THE ROLE OF THE JUDGES) I have detailed the extent to which the judges have had to overcome high levels of hostility, obstruction and deliberate obfuscation from the authorities in cases of this nature. Nor has it only been the judges: on one occasion even the government’s lawyers went so far as to consider sending in the Metropolitan Police to try to find relevant materials within the Ministry of Defence. This is all a far cry from the good old days when, in the analogous context of Northern Ireland, judges like Lord Widgery, Lord Denning and Lord Diplock went out of their way to protect the forces of law and order from close scrutiny. The government has not liked the result, and nor have many parliamentarians. A Defence Select Committee report in 2017 attacked the use of the law in this context and then the exposure of one solicitor’s wrongdoings in the field of evidence-gathering gave the antagonists of what they call “lawfare” their chance. This bill is the result.

Then there is the provocation. The government appears desperate to get the leader of the opposition Keir Starmer off Covid-19 and onto “elite metropolitan issues” like the rule of law, human rights and the prosecution of patriotic soldiers for “doing their job.” It was the same in the mid-1990s when a then-rampant shadow home secretary Tony Blair was constantly being forced to defend his party’s hostility to UK anti-terrorism laws—to his intense embarrassment. Starmer has not yet risen to the bait. So far as this bill is concerned that has been hugely disappointing. It can surely not be doubted that the British public know the difference between doing your duty and murdering and torturing innocent people. This was a conversation Starmer could have afforded to have, and where he might well have been persuasive. Next up will be the Human Rights Act. Labour will have a big decision to make then about whether to defend it or let it go. That will tell us a great deal about how they will govern: compromises of this serious a nature may be made in opposition but their moral contamination is hard afterwards to shake off.

With this bill we have further evidence of what the UK does not stand for: human rights, an ethical military and the rule of law. With Brexit we know it rejects regional co-operation too. What’s left? Trade deals with the Old (aka White) Commonwealth? The display of imperial power? You cannot govern a country on the basis of nostalgia however loud you shout.