Tag Archives: Universal Declaration of Human Rights

Three Jews From the City Now Called Lviv

 

Philippe Sands, East-West Street:

On the Origins of ‘Genocide’ and ‘Crimes Against Humanity’ 

        Philippe Sands is a distinguished, London-based international human rights lawyer who has written prolifically on international law, taught the subject at the university level, and handled human rights cases arising from Chile, Congo, Rwanda, and the ex-Yugoslavia, among others. He is also the grandson of Leon and Rita Buchholz, Jews who fled Vienna in the World War II era. Like many children and grandchildren of Jews who escaped Hitler’s clutches, Sands received little detail from his grandparents — or his parents — as he was growing up about the circumstances leading his grandparents and their infant daughter, Sands’ mother Ruth, out of Austria. Uncovering these details is one of several threads running through this multifaceted work, East-West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity,’ a masterful blend of family memoir, Holocaust remembrance, and legal history.

          As his subtitle suggests, Sands’ work is also about the evolution of the legal concepts of “genocide” and “crimes against humanity,” today two pillars of international human rights law; and about the leading legal scholar behind each, Rafael Lemkin and Hersch Lauterpacht, respectively.  The two scholars were at the forefront in the development of a powerful idea that began to take shape after World War I and assumed greater urgency as World War II unfolded and Nazi atrocities multiplied: that a strengthened international legal order was necessary where nation states and their key actors could be held accountable, thereby ending the notion that state sovereignty allowed a state to pursue any policy it chose toward its citizens.

         But from this common starting point, the solutions Lemkin and Lauterpacht pursued were almost polar opposites.  Lemkin nearly singlehandedly came up with the notion of genocide as a term to describe state policies that single out persons for inhumane treatment because of their membership in a particular group. Lauterpach, rejected group membership as a basis for holding states accountable.  Nation states and their actors, he countered, need to be held accountable for their inhumane treatment of individuals — for what he termed their crimes against humanity.

          Sands’ grandfather Leon Buchholz and the two legal scholars were Jews and roughly contemporaries, with links to the same city, Lviv, today part of Western Ukraine.  Buchholz was born there in 1904.  Lauterpacht, born in nearby Zółkiew in 1897, moved to Lviv with his family in 1911 and studied law there. Lemkin, born in 1900 on a farm at some distance from Lviv, moved to the city in 1921 to study law (East-West Street, Sands’ title, refers to a street in Zółkiew where Lauterpacht and Buchholz’s mother lived for a time, on opposite ends).  Lviv itself plays a major role in Sands’ story.

          Today’s Lviv reflects the upheavals of the 20th century.   When the three young men were growing up prior to World War I, the city was known as Lemberg. It was the largest city in Galacia, a province within the Austro-Hungarian (or Hapsburg) Empire, and a vibrant melting pot of Poles, Ukrainians, Jews and others.  After World War I, the city became part of a newly independent Polish state and was known as Lwów. The three young men acquired Polish citizenship at that time.  The Soviet Union occupied the city at the outbreak of World War II, in the aftermath of the secret 1939 protocol between Nazi Germany and the Soviet Union partitioning Poland (the subject of Roger Moorehouse’s Devils’ Alliance, reviewed here in May 2016).   In 1941, Germany retook the city from the Soviets, who in turn drove the Germans out in 1944.  The city then became part of Ukraine and the Soviet Union and assumed its present name. It became part of an independent Ukraine with the collapse of the Soviet Union in 1991.

        None of the three men was present in Lviv during World War II, but their war experiences were similar in one grim respect: each lost parents and most other family members left behind during the German occupation.  Those loses can be traced in no small measure to Hans Frank, a genuine villain whom Sands adds to his story of the three Jewish men from Lviv.  Frank, born in Germany in 1900, the same year as Lemkin, was Adolph Hitler’s personal lawyer and a German legal scholar of some stature who fashioned many of the Nazis’ idiosyncratic legal theories – theories that, in opposition to those of Lemkin and Lauterpacht, subordinated the individual to an all-powerful state and emphasized the inviolability of state sovereignty.  Frank became governor of German-controlled Poland after the 1939 Nazi invasion that triggered World War II, and his authority was extended to Lviv in 1941, when the Nazis dislodged the Soviet Union from the city.  As German governor, Frank oversaw the decimation of thriving Jewish communities across Poland, including that of Lviv, and crafted the policies that destroyed the three men’s families.

            With the defeat of Nazi Germany in 1945, Lauterpacht, Lemkin and Frank and the legal theories they espoused met head on at the International Military Tribunal in Nuremberg.  Frank was one of 24 high level Nazi officials placed on trial for his role in atrocities committed by the Nazi regime. Behind the scenes, Lemkin and Lauterpact competed to define the terms of the prosecution and judgment, with each lobbying to have the tribunal’s judges and prosecutors adopt his legal principle as a basis for prosecution – genocide for Lemkin, crimes against humanity for Lauterpacht — and reject that of the other. But one point was clear from the outset of the proceedings: Frank’s expansive notion of state sovereignty was categorically rejected — states were no longer free to treat their people entirely as they wished; state sovereignty no longer constituted an absolute bar to prosecution for acts of atrocity.

         But Sands starts and finishes with his family portrait, the story of his grandfather Leon, his wife Rita and their young daughter Ruth, Sands’ mother, uncovering details of their lives in those turbulent times which they chose not to reveal to the future human rights lawyer as he grew up in Great Britain.  Throughout, Sands himself is very much part of his story, which jumps between past and present as he explains how he pieced together his narrative’s disparate threads.  Among his sources are several still living individuals related to the central characters in the story, including the sons of Lauterpacht and Frank.  Sands thus packs a lot into just less than 400 pages.

* * *

           Sands explains at the outset that his motivation for writing this book stems from mysteries surrounding the life of his grandfather Leon, a man he clearly loved yet found he hardly knew. For the most part, Sands writes, Leon “locked the first half of his life into a crypt” (p.xxv).  Sands came to know Leon in the 1960s when, as a young boy, he visited the Paris apartment where Leon and his wife Rita lived.  Intuitively, the young Sands, born in 1960, came to realize that Leon and Rita’s time before Paris was not to be talked about.  It’s too complicated and not important, Leon told his grandson. But as he sought to uncover the circumstances that led his grandparents and mother from Vienna to Paris, he pieced together many additional details of their prior life.

            Leon was the youngest of four children. His older brother was killed in World War I just after its outbreak, in September 1914, and his grieving father died shortly thereafter.  Leon had two sisters, Gusta and Laura.  Gusta married in 1913 and moved to Vienna. Leon’s mother Malke took Leon and Laura to Vienna to be with Gusta, where young Leon attended primary and secondary school.  A few years later, Leon and Laura returned with their mother to Lviv.  Leon left the city definitively at age 19, in 1923, after it had become part of Poland, to make his way in Vienna. Gusta, Laura, and Malke all subsequently died in the Holocaust, along with Laura’s daughter.

         In Vienna, Leon worked for a while at the liquor store of his brother-in-law, then set up his own distillery.  He met his future wife, Rita Landes, in Vienna, and they married there in 1937. Their daughter Ruth, Sands’ mother, was born one year later, just prior to the German Anchluss with Austria in 1938.  Growing up, Sands had assumed that his mother’s family had all left Vienna at the same time, but he learned that this was far from the case. Leon was expelled from Vienna in late 1938, in the aftermath of the spasm of anti-Jewish violence known as Kristallnacht, and arrived alone in Paris in January 1939.  Rita stayed behind, ostensibly to care for her ailing mother. She did not leave Austria until November 9, 1941. The very next day “‘the borders of the German Reich were closed for refugees,’ all emigration ended, all departure routes were blocked. Rita got out at the last minute. Her escape was either very fortunate or based on assistance from someone with inside information” (p.39).

          The details of Rita’s departure eluded Sands, but an even greater mystery bedeviled him. The passport of his mother Ruth indicated that she arrived in Paris in July 1939, near her first birthday. How did the one year old get to Paris in July 1939 if Leon had been there since January of that year and Rita stayed in Vienna until 1941? The evidence pointed to a Miss Elsie Tilney, the most remarkable of the many supporting characters in this story. Sands learned that Miss Tilney was an heroic Christian missionary who spent the dark Nazi era escorting Jews, particularly Jewish children, to safer locations, and that Ruth had traveled to Paris with Ms. Tilney.   He further learned that the 11-year old daughter of Leon’s sister Laura was to have traveled to Paris with Miss Tilney and Ruth, but that Laura changed her mind at last minute, because she couldn’t face the separation. Neither mother nor daughter survived the war.

           In the process of uncovering these details about the departures from Vienna, Sands also stumbled across evidence he had not be looking for, suggesting a substantial rift between his grandparents: his grandmother may have had an affair with another man, which may or may not have been part of the reason Leon traveled alone to Paris in 1939.  Sands further came across suggestions that his grandfather too may have been attracted to another man.  Sands’ narrative assumes a spell-binding quality as he weighs the limited evidence available and comes closer to a fuller picture of how his grandparents and their daughter escaped Vienna and survived the war, while most of the rest of the family perished.

          Into this close-to-home family history, Sands adds not just the legal theories but also much personal detail about the lives of legal scholars Lemkin and Lauterpacht.  Like Buchholz, Lauterpacht found his way to Vienna as a young man, in 1919.  After beginning the study of law at the university in Lviv, Lauterpacht continued his legal studies in Vienna, where he reflected upon how the upheavals of the post-World War I era might be avoided in the future.  When a wave of anti-Semitism swept Vienna in 1923, he emigrated to Britain, where he first studied, then taught at the London School of Economics, followed by an appointment to Cambridge University in 1937.

          Lemkin studied law and linguistics at the same university in Lviv a few years after Lauterpacht, where he had the same criminal law instructor who had previously taught Lauterpacht.  Lemkin became a public prosecutor in Warsaw, while publishing extensively on international criminal law. He escaped from Poland after the Germans invaded the country in 1939, ending a circuitous journey at Duke University in North Carolina, where he taught law for many years.

             Against the backdrop of the two men’s personal lives, Sands zeroes in on the evolution of the legal thinking that began to take form for both in Lviv and blossomed in academic settings in the United Kingdom and the United States.  Lemkin and Lauterpacht shared an optimistic belief in the “power of law to do good and protect people,” and the “need to change the law to achieve that objective,” Sands writes. “Both agreed on the value of a single human life and on the importance of being part of the community” (p.385). But their solutions pointed in opposite directions.

            Lemkin “imagined new rules to protect ‘the life of the peoples’: to prevent ‘barbarity’, the destruction of groups, and to prevent ‘vandalism,’ attacks on culture and heritage” (p.157). Although not opposed to individual rights, Lemkin believed that an “excessive focus on individuals was naïve, that it ignored the reality of conflict and violence: individuals were targeted because they were members of a particular group, not because of their individual qualities” (p. 291).  Lemkin advanced his notion of genocide in a 1944 book, Axis Rule in Occupied Europe, which Lauterpacht reviewed in the Cambridge Law Journal in a “detached and lukewarm” (p.107) tone.

           To Lauterpacht, Lemkin’s notion of genocide and its emphasis upon group membership seemed likely to “reinforce latent instincts of tribalism, perhaps enhancing the sense of ‘us’ and ‘them,’ pitting one group against another” (p.281). Lauterpacht sought to diminish the force of inter-group conflict. The emerging international legal order needed to protect each individual, “irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it” (p.291).

         In the contest between competing legal theories at Nuremberg, Lauterpacht was the immediate winner. His ideas on crimes against humanity and the rights of the individual were “firmly entrenched in the proceedings, coloring the entire case” (p.353). The term “genocide” was by contrast barely mentioned.  Both men attended substantial portions of the proceedings, which took place between November 1945 and October 1946, during which both learned that their parents and several family members had not survived the war.  In this time frame, Leon Buchholz also most likely learned that his family members left behind in Lviv had met the same fate.

         Lauterpacht exchanged ideas on how to frame the Nuremberg indictment with American chief prosecutor Robert Jackson. But as the proceedings progressed, he exerted an even more direct influence upon British prosecutor Sir Hartley Shawcross. In his opening argument on December 4, 1945, Shawcross adopted wording Lauterpacht had proposed, “arguing forcefully that the tribunal should sweep aside the tradition that sovereigns could act as they wished, free to kill, main and torture their own people” (p.292).  The core of Shawcross’ argument came straight from Lauterpact: “The state is not an abstract entity. . . Its rights and duties are the rights and duties of men.” Shawcross thus put a radical spin on the idea of individual responsibility by “placing ‘fundamental human rights’ and ‘fundamental human duties’ at the heart of a new international system” (p.292-93).

       The prosecution’s case against Hans Frank at Nuremberg brought German actions in Lviv and Poland to center stage in the proceedings. In drafts that Lauterpacht had provided to Shawcross, Frank was the only defendant Lautherpacht mentioned, and he did so repeatedly — no coincidence, Sands writes, given that Frank was the “man in the dock most closely connected to the murder of his own family” (p.339).  While governor of Poland, Frank had kept a detailed and highly incriminating diary of his daily activities, which had fallen into allied hands as the war ended, giving him little room to maneuver.

         As Frank initially faced the tribunal in March 1946, Sands speculates that his lawyer had no sense what his client might say. When the lawyer asked Frank at the outset whether he had participated in the annihilation of Jews in Poland, the former governor astounded the Nuremberg court and his fellow defendants by responding, “yes,” adding that his conscience did not permit him to throw responsibility for the slaughters upon what he termed “minor people.”  One thousand years will pass, Frank told the court, “and still this guilt of Germany will not have been erased” (p.310).  But Frank’s lawyer appeared to walk back this confession in his closing argument the following July.

       His client’s diaries were the thoughts of the secretaries who transcribed them, Frank’s lawyer contended.  His client had never killed anyone, and he had tried to mitigate some of the most atrocious excesses of the regime. Most likely, the other defendants and their lawyers had in the time since March impressed upon Frank and his lawyer the need for solidarity among the defendants, and convinced them to reverse course. The arguments proved to be of no avail.  Frank was condemned to death by hanging and became the fifth Nazi official to go to the gallows.

        The judgments at Nuremberg “came as a relief to Lauterpacht.” His arguments on crimes against humanity, endorsed by the tribunal, were “now part of international law.  The protection for the individual, and the idea of individual criminal responsibility for the worst crimes, would be part of the new legal order. The sovereignty of the state would no longer provide absolute refuge for crimes on such a scale, in theory at least” (p.372).   But if he felt any satisfaction with the judgment, he never mentioned it to anyone.  Lemkin by contrast was devastated by absence of any mention of genocide in the court’s final judgments. This “Nuremberg nightmare” (p.372) was the worst day of his life, he told an American junior prosecutor, worse even than the day a month earlier when he learned that both his parents had perished in the Holocaust.

          But genocide gained traction as a recognized concept in international law in December 1946, when the United Nations General Assembly adopted a resolution that affirmed that genocide, which denied the “right of existence of entire human groups,” was a crime under international law.  Where the judges at Nuremberg had feared to tread, Sands notes, governments working through the United Nations “legislated into existence a rule to reflect Lemkin’s work” (p.377).  Two years later, in December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, the first human rights treaty of the modern era.  One day later, the General Assembly also adopted the Universal Declaration of Human Rights, for which Lauterpacht was a primary inspiration.

        Much of the vibrancy of Sand’s story comes from his resourcefulness in finding living persons to supplement the meager record of writings and photographs with oral recollections of the story’s central characters, especially the sons of Lauterpacht and Frank, Eli and Niklas.  Eli (officially Sir Elihu), born in London in 1928, followed in his father’s footsteps as an academic and lawyer specializing in international law, founding Cambridge’s Lauterpacht Centre for International Law.  Sands first met Eli when he took Eli’s course in international law at Cambridge in the 1980s.  But it was not until several decades later that Sands learned of the Lviv connection between Eli’s father and Leon Buchholz.  Eli told Sands that as he grew up in Britain his father, like Leon, never talked about life in Poland (Eli died in 2017, after Sands’ book went to press).

           Niklas Frank, born in 1939, became a distinguished journalist as a foreign correspondent for Stern Magazine.  The younger Frank came to Sands’ attention for a book he had written in the 1980s called Der Vater (The Father), an “unforgiving, merciless attack on his father, a work that broke a taboo that directed the children of senior Nazis to honor their parents” (p.224).  On one occasion, Niklas told Sands, “My father loved the Führer more than he loved his family” (p.235).  Sands and Niklas visited the Nuremberg tribunal together in 2014.  “My father was a lawyer; he knew what he did” (p.xxiii), Frank told Sands at the time.

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         The major threads of Sands’ book – his family’s exodus out of Vienna in the Nazi era; the clash of ideas between Lauterpacht and Lemkin for a new legal order that played out at Nuremberg; and the vicissitudes of Lviv – illuminate, each in its own way, the travails of Europe’s 20th century and their on-going consequences.  Each would surely merit treatment in a separate work.  Readers contemplating investing time in Sands’ book may ask themselves whether these disparate threads can be wrapped together coherently into an absorbing narrative.  My answer upon concluding this epic work was that Sands has accomplished precisely that.

Thomas H. Peebles

La Châtaigneraie, France

May 20, 2018

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Filed under Eastern Europe, European History, Gender Issues, History, Intellectual History, Rule of Law, Uncategorized

Global Hubris

Hopgood

Stephen Hopgood, The Endtimes of Human Rights 

      In The Endtimes of Human Rights, Stephen Hopgood delivers a scathing critique of the practices and institutions associated with present day global human rights. Over the course of two introductory sections and five subsequent chapters, Hopgood argues forcefully that today’s global human rights machinery is unsustainable and on the verge of collapse, as the word “endtimes” in his title suggests.  Hopgood uses initial capital letters, “Human Rights,” to describe this broken system, which he contrasts with “human rights” without initial capital letters.

     Lower case human rights refer to ground level, indigenous movements to be free from human rights abuses, which Hopwood wholeheartedly endorses. The endtimes “can never come for this form of ’human rights,’” he argues, “in the same way that nothing can stop people banding together to demand their own freedom or justice in whatever language they prefer” (p.viii).  Upper case Human Rights, by contrast, consist of a “global structure of laws, courts, norms, and organizations that raise money, write reports, run international campaigns, open local offices, lobby governments, and claim to speak with singular authority in the name of humanity as a whole” (p.ix).

    For Hopgood, upper case Human Rights are based on an elitist, one-size-fits-all approach, “overambitious, unaccountable, alienated and largely ineffectual” (p.182).  In their hubris, Human Rights advocates have sought, and have largely succeeded, in arrogating to themselves and the institutions they represent the authority to define the fundamental global norms that are “applicable always, without discretion” (p.122).  The tension between Human Rights and human rights, he argues, is “exactly” the “tension between top-down fixed authority and bottom up (spontaneous, diverse, and multiple) authorities.” (p,x).  The forthcoming collapse of (upper case) Human Rights means that locally inspired (lower case) human rights movements will have space to flourish.

    Hopgood’s arguments against Human Rights focus primarily upon international criminal justice, the process which seeks to hold accountable those who violate international norms against, for example, torture and arbitrary arrests and killings, occurring in the context of what we often term mass atrocities, war crimes, genocide and crimes against humanity.  International criminal justice institutions of concern to Hopgood include the war crimes tribunals for Rwanda and the former Yugoslavia and, especially, the International Criminal Court (ICC) in The Hague, along with non-governmental organizations such as Amnesty International and Human Rights Watch, gatekeeper organizations dedicated to identifying and publicizing human rights abuses and advocating for accountability for abusers.  Human Rights also embraces humanitarianism — the treatment of military and civilian personnel in wartime and crisis situations — and, more recently, has included efforts to secure equal treatment for women and for lesbian, gay, bi-sexual and trans-gender (LGBT) individuals.  These strains of Human Rights, although mentioned in Endtimes, are of less concern to Hopgood, a professor of international relations at the University of London and the author of Keeper of the Flame, Understanding Amnesty International.

     Readers may be surprised to discover that very little of Hopgood’s work involves a direct critique of the day-to-day practices of Human Rights. Readers need to look elsewhere if, for example, their interest is whether hearsay evidence should be admissible before the ICC.  Hopgood addresses Human Rights from a far broader perspective.  His core argument is that although contemporary international criminal justice seeks to secure accountability for human rights abusers through what purports to be a judicial process, the process is almost entirely political.  Hopgood’s interest is in exposing the political underpinnings of this process. A crucial portion of his argument against contemporary Human Rights lies in his elaboration of its European origins.

* * *

     Today’s Human Rights may be traced to what Hopgood terms 19th century European humanism, when progressive, middle class Europeans created a “secular replacement for the Christian god” (p.x) which borrowed heavily from Christian values and concepts, especially the need to alleviate suffering.  Of particular importance was the International Committee of the Red Cross, ICRC, the “first international church” of secular humanism (p.25). The ICRC, founded in 1863 in very Protestant Geneva, Switzerland, was a neutral organization dedicated to providing assistance to soldiers wounded in war.  The ICRC gave rise to the Geneva Convention of 1864, which established standards for the provision of relief in armed conflicts.

      A decade later, the Geneva-based Institut de Droit International (International Law Institute) came into being as a supplement to the ICRC. The institute, a standing council of international jurists charged with providing expert commentary on the laws of war, served as the first step toward international war crimes tribunals, Hopgood contends.  The League of Nations, created in the aftermath of World War I and also based in Geneva, constituted an “epiphany” for secular humanism, the “first truly international organization authorized explicitly by the idea of humanity, not the Christian god” (p.41).  The League was to be a “permanent, transnational, institutional, and secular regime for understanding and addressing the root causes of suffering” (p.41-42).

      This phase of global secular humanism “came crashing to the ground in 1939. The Holocaust and the Second World War destroyed the moral legitimacy and political power, if not the ideological ambition and cultural arrogance, of Europe” (p.xi).  But the Holocaust and World War II gave rise to a perceived need to create institutions better equipped to preserve and advance secular humanism across the globe.  The creation of new institutions began in 1945 with the United Nations and the Nuremberg war crimes tribunal, which served as a model for future war crimes tribunals.  The years 1945-49 were the “last time Europe held such a central place in the design of world order. It was a last moment to embed the humanist dream before the empires were gone” (p.49), Hopgood argues.  The Universal Declaration of Human Rights and the UN’s Anti-Genocide Convention, both dating from 1948, along with a revised 1949 Geneva Convention, were products of this era and remain key instruments of global Human Rights.

       Echoing a theme which Barbara Keys developed in Reclaiming American Virtue: The Human Rights Revolution of the 1970s, reviewed here in November 2015, Hopgood goes on to argue that Human Rights gained impetus in the 1970s when the United States began to prioritize human rights abroad as a key consideration in its foreign policy.  More than any other single factor, Hopgood argues, American power turned lower case human rights into upper case Human Rights, with the “secular religiosity” of European humanism giving way to a “more political, openly pro-democratic form of advocacy” that embraced the “logic of money as power” and “made explicit what had been implicit within international humanism: Human Rights and liberal capitalism were allies, not enemies” (p.12-13).  Human Rights thus became “intimately tied to the export of neo-liberal democracy using American state power” (p.xii).

     The apogee of Human Rights was from 1991 to 2008, the “unipolar moment” of American post-war dominance, with the fall of the Soviet Union and the creation of international tribunals to investigate and prosecute mass atrocities in the ex-Yugoslavia and Rwanda.  During this period, moreover, 120 countries approved the Rome Statute of 1998, the founding charter for the ICC, which Hopgood terms the “apex of international criminal justice” (p.129; the United States was one of just seven states to vote against the Rome statute, along with China, Iraq, Israel, Libya, Qatar and Yemen).  The ICC began hearing cases in 2002. The period also witnessed the emergence of an international “responsibility to protect” victims of human rights abuses, often shortened to R2P, now a recognized basis for humanitarian interventions authorized by the United Nations Security Council.

     But at the very moment when the notion of Human Rights was at its apogee, the “foundations of universal liberal norms and global governance [were] crumbling” (p.1), Hopgood argues.  The United States no longer retains the power it enjoyed after the fall of the Soviet Union in 1991 to foist its neo-liberal vision upon the rest of the world.  Nationalism and religious conviction have reasserted themselves throughout the world, and competing world powers, particularly China and Russia, are not proponents of liberal democracy.  Neither the United States nor any other entity is today capable of speaking and acting on behalf of the international community.

     Rather, we are entering what Hopgood terms a “neo-Westphalian world,” a reference to the 1648 peace treaties which ended Europe’s Thirty Years War and established a system of political order in Europe based on state sovereignty and non-interference in the internal affairs of other states.  The neo-Westphalian world is one of “renewed sovereignty, resurgent religion, globalized markets, and the stagnation or rollback of universal norms about human rights” (p.166).  The “core modernizing assumption” of Human Rights, Hopgood argues, that “history brings secularism, a sense of oneself as an individual rights holder, and the erosion of collective beliefs and loyalties” is “fracturing alongside the Western power that sustained it” (p.166). Neo-Westphalia means “more politics, less morality, and less Europe,” in which the notion of genuine global solidarity becomes little more than a “conceit of human rights advocates in Geneva, New York, and London” (p.177).

    Hopgood looks with favor at the forthcoming collapse of Human Rights, its “endtimes,” much as many Christians look forward to an eschatological endtimes that culminate with the second coming of Jesus.  As Human Rights declines with declining American power, “local interpretations of what rights are and which rights might be sustainable will be essential if human rights are to flourish” (p.xv).  Once lower case human rights replace upper case Human Rights “other alliances can grow” (p.22), with “more international funding and expertise in areas like public health, disease, communication, and mediation – the Médecins Sans Frontières approach—which is more conducive to longer-lasting and effective change than are the often symbolic efforts of large-scale global institutions” (p.21).

     In the endtimes, only “issues of security, natural resources, and trade will excite multilateral engagement” (p.20), along with “very practical but time-limited relief work in logistics, search and rescue, medicine, disease control, and food and shelter” (p.21).  International Human Rights organizations will “turn increasingly to self-promotion. They will be concerned more than ever with themselves” (p.20). The one area where Human Rights seems likely to retain some clout is sub-Saharan Africa, precisely because this is the globe’s single area where Europe retains at least limited influence. “Africa will remain a laboratory for European moral spectatorship, although given Europe’s’ relative global decline, self reliance and church support will likely be the future for the poor and the suffering south of the Sahara” (p.21).

     Despite his searing rhetorical assault on contemporary Human Rights, Hopgood’s specific criticisms of the ICC and, by extension, international criminal justice, are tepid and hardly unconventional: the ICC’s prosecutions have been primarily against lower level state actors, rather than heads of state; they have focused almost exclusively on Africans, with few actions against persons from other regions; and the United States, having refused to ratify the Rome convention, remains an “embarrassing outlier for claims about liberal global norms” (p.129). The “true tragedy” of the ICC is that it is a court that “cannot conceivably exercise political jurisdiction over great powers, creating a permanent two-tier justice system in which strong states use global institutions to discipline the weak” (p.167).

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     Hopgood’s polemical and passionately argued case against modern Human Rights is problematic in several respects.  He offers maddeningly few specifics to support his broad theme that international Human Rights elites, in their hubris, have foisted “universal” and “secular” norms upon unwilling local populations.  The scattered examples he provides are drawn from efforts to secure greater rights for women and LGBT individuals in certain non-Western cultures, difficult and delicate exercises to be sure but well removed from his primary focus on international criminal justice.  Further, it is facile to argue that “renewed sovereignty” threatens international criminal justice. Nationalism and state sovereignty have always been, and are likely always to be, challenges to the aspirations and objectives of international institutions and organizations across the board, not simply to those of international criminal justice — just ask the mavens in Brussels charged with trying to hold the European Union together.

     Hopgood stops short of explicitly recommending abolition of the ICC and other publicly financed international criminal justice institutions and organizations, but his arguments lead inescapably to this recommendation. His contention that the resources presently applied to these institutions and organizations should be redirected to humanitarian relief means that any process seeking accountability for human rights abusers will have to be locally driven.  Given the weak state of domestic justice systems in much of the world, this means still less accountability for those who commit war crimes and mass atrocities than is the case with today’s admittedly imperfect international criminal justice machinery.

Thomas H. Peebles
La Châtaigneraie, France
March 4, 2016

5 Comments

Filed under American Politics, Politics, Rule of Law

Moralizing Credibly to the World

Keys

Barbara Keys, Reclaiming American Virtue:
The Human Rights Revolution of the 1970s 

     During the 1970s, political liberalism in the United States embraced the notion of international human rights as a priority consideration in shaping American foreign policy. The liberal argument that gained traction during the latter portion of the decade was that the United States should not support or provide assistance to governments that engaged in practices violating international human rights norms, particularly torture and repression of dissent. But this liberal argument could gain its traction only after the end in early 1973 of America’s role as a belligerent in the Vietnam War.  Such is the premise which Barbara Keys, a Harvard-educated Senior Lecturer in American and International History at the University of Melbourne, Australia, expounds in her thoroughly researched and solidly written work, Reclaiming American Virtue: The Human Rights Revolution of the 1970s.

    Human rights as a “liberal foreign policy paradigm” was an “intellectual impossibility” while America was mired in Vietnam, Keys contends, and therefore “unthinkable in the circumstances of the war” (p.53).  As long as the war continued, a “profound fatigue with and abhorrence of the very idea of intervention precluded the development of any new, systematic effort to inject American power or values abroad . . . Only once the war was over would American liberals feel they could credibly moralize to the world” (p. 53-54).  What Keys describes as the “human rights revolution” of the 1970s in the United States was for American liberals an “emotional response to the trauma of the Vietnam War” (p.8) – or, as Keys’ title indicates, a means to reclaim American virtue.

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     The term “human rights” came into vogue only after World War II, with the United Nations’ 1948 Universal Declaration of Human Rights, or UDHR, which established norms defining the basic rights that all humans were entitled to demand from their governments. Arising out of the destruction and devastation of World War II, the UDHR was one of the first international instruments to refer to human rights in general, rather than to the rights of specific groups. But the UDHR was mostly aspirational, a document “intended to be a beacon, not a guide to actual behavior” (p.22). It contained no enforcement mechanisms and numerous clauses indicated that it did not seek to infringe upon state sovereignty.

     Throughout the 1950s and 1960s, the term “human rights” was largely dormant in the United States, except as associated with the ineffectual UDHR, and played little discernible role in American foreign policy. These were also the decades when the term “civil rights” became part of the national vocabulary. Although civil rights might be thought of as the specific name for the movement for human rights for African-Americans, the two terms have different lineages. The notion of human rights Keys emphasizes, seeks “legitimacy and solutions in international law resting above the authority of the nation-state,” whereas the civil rights movement in the United States above all sought “American remedies to American injustice” (p.33-34).

      When American involvement in the war in Vietnam ended in 1973, “emotions spilled into new areas, casting old questions in fresh light and creating novel possibilities for action. Slowly, as a process of accumulation rather than epiphany, human rights became one of those possibilities” (p.127-28). The end of combat activities in Vietnam “opened the way for members of Congress to vent long-brewing anger at the conduct and content of U.S. foreign policy” (p.133-34). A loose group of Congressmen dubbed the “new internationalists” pursued support for human rights abroad as part of an American foreign policy orientation that also prioritized economic cooperation, cultural exchanges and support for democracy, with less emphasis upon military assistance.

     Among the new internationalists, a now-obscure Democratic Congressman from Minnesota, Donald Fraser, more than any other national official, was “responsible for creating a framework that linked disparate global problems under the heading of human rights” (p.76). In the House of Representatives, Fraser led hearings in late 1973 that are “often regarded as the moment when a movement for international human rights in the United States began to take off,” generating a “blueprint for much of the congressional human rights efforts of the next few years” (p.141). The blueprint included several changes to the administration of American foreign aid that made it more difficult for the United States to provide assistance to foreign governments that engaged in human rights abuses, especially torture and detention of political prisoners. Section 32 of the 1973 Foreign Assistance Act, which came to be known as the “Fraser Amendment,” provided for “reductions (or, more often, the threat of reductions) in security aid for gross violations such as torture, coupled with the requirement that the State Department issue reports critiquing foreign countries’ human rights records” (p.165).

     In the aftermath of the Fraser Amendment, Congress used country-specific public hearings to “shape public opinion and signal concern about human rights abuses”(p.176). It focused on “sensational abuses, torture above all,” and made cuts in aid to “friendly but strategically expendable governments” (p.176). The results were “inevitably ad hoc and inconsistent, with some countries and some abuses drawing attention and sanctions while others were largely ignored” (p.176). Liberals hoped that cutting aid would stimulate reforms and reduce repression but, as Fraser and others admitted, they had “little evidence that targeting aid would work as planned” (p.160). Tangible effects were not, however, the measure of success. The crucial task was to “restore a commitment to American values by dissociating from regimes that tortured and murdered political opponents” (p.160) – and thereby reclaim American virtue.

     In Paraguay, for example, a country with “little significance to the United States,” human rights abuses were met with a “solid front: diplomatic isolation, total cutoffs in aid, and blocked loans in international forums” (p.257). Between 1974 and 1976, liberals also pushed through aid measures that reduced or cut off aid to South Korea, Chile, and Uruguay. Allies in these years included conservatives who supported dissidents in the Soviet Union, mostly Jewish, who wished to emigrate, most frequently to Israel.

     The spokesman for this group was another Democrat, albeit one considered highly conservative, Senator Henry “Scoop” Jackson from the State of Washington. Joining his cause were several intellectuals who were later labeled “neo-conservatives,” including Jeanne Kirkpatrick, Irving Kristol and Daniel Moynihan. With Senator Jackson leading the charge in Congress, “unrepentant Cold Warriors took the rhetoric of human rights newly popularized internationally by Soviet dissidents and fashioned a straightforwardly anticommunist policy around the universalist language [of the UDHR]. It was a stunning shift in the rhetoric of conservative anticommunism, which in the 1950s and 1960s had been overtly hostile to the UN and . . . had seen UN human rights instruments as a dangerous threat to American values” (p.104).

      But this neo-conservative embrace of human rights was driven by a fervent rejection of the shame and guilt that had characterized the anti-Vietnam War movement and the campaign rhetoric of 1972 presidential candidate George McGovern. For the conservative proponents of Soviet Jewry, the Vietnam War “required no apology;” it had been not immoral but rather an “admirable expression of the nation’s moral principles, as well as a strategic necessity, and consonant with America’s consistently beneficent role in the world” (p.116).  Jackson and his cohorts believed that the “self-doubt provoked by the Vietnam War threatened to weaken America’s resolve in what remained a life-or-death struggle against communism” (p.104).

     The cause of human rights in the Soviet Union pulled liberals in two directions. While sympathetic to Jews who wished to emigrate, they also “strongly supported improved U.S.-Soviet ties, reduced tensions, and the broad aims of détente” which the Nixon and Ford administrations were pursuing. Their aims therefore “diverged from those of hardliners like Jackson who sought to derail détente” (p.125). The foil to this odd liberal-conservative alliance was Henry Kissinger, Secretary of State to Presidents Nixon and Ford.

      Kissinger expounded a realpolitik approach to foreign policy, which gave priority to America’s geo-political interests and allowed little room for judgments about a country’s internal human rights record. Kissinger argued that it was dangerous to “make the domestic policy of countries around the world a direct objective of American foreign policy” (p.133) at a time when the administration was seeking to reduce tensions with the Soviet Union and thereby reduce the risk of nuclear war. Although Kissinger believed that human rights initiatives would hurt relations with America’s allies, what most spurred his opposition was resentment at what he considered congressional intrusions into executive branch prerogatives to shape the nation’s foreign policy.

     For 1970s liberals, Kissinger was the personification of all that was wrong with the way American foreign policy was conducted. But neither did he have many fans among the neo-conservatives pushing the Soviet Union on Jewish emigration. They regarded détente with the Soviet Union, pursued by both the Nixon and Ford administrations, as wrong headed and dangerous. Kissinger’s adamant defense of realpolitik and executive prerogatives backfired, playing a “pivotal role in moving human rights from the sidelines to the center of American diplomacy,” Keys argues.  Ironically, Kissinger would be a serious contender for designation as the person “most responsible for advancing the cause of international human rights in the mid-1970s” (p.153), she writes.

      Jimmy Carter, who won the presidency in the 1976 election, is often thought of as the catalyst for bringing human rights into the mainstream of American foreign policy. As a presidential candidate, however, Carter had been skeptical about elevating human rights to a foreign policy priority position. He did not share the deep emotional concern of Jackson and his cohorts for Soviet Jews, “nor was it his instinct to identify with political prisoners around the world” (p.236). His embrace of human rights was “both late and serendipitous” (p.215). But Carter “eventually came around to the issue because it resonated with his theme of restoring morality and, more pragmatically, because it would enhance his standing among Jewish voters” (p.236).

     Discovering what human rights promotion meant in practice was for the Carter administration “far more complicated than anyone had anticipated. The difficulties the administration encountered in formulating a human rights agenda attest both to a lack of specific planning and the sheer novelty of a human rights based foreign policy. There were no precedents to draw on, no prior models from which to borrow,” leaving the impression of “incoherence and muddle” (p.250). Given inflation, gas lines and above all the 444-day hostage crisis in Iran, which the Carter administration was unable to resolve, Carter’s four-year term was frequently viewed as a failure.

     Ronald Reagan, who defeated Carter in the 1980 presidential election, explicitly disavowed human rights as a priority consideration in the foreign policy of his administration. But, thanks especially to a credible human rights lobby that had taken shape during the Carter administration, Reagan could not ignore human rights entirely. In particular, Keys emphasizes how the American branch of Amnesty International, AI USA, evolved during the Carter administration into an organization with serious clout on Capitol Hill and with the State Department.

      AI USA focused initially on political prisoners, lobbying for aid cuts to regimes that tortured and jailed opponents in large numbers, a narrow focus “ideally suited to the Zeitgeist of the seventies” (p.181), Keys argues. Rather than seeking to effectuate wholesale structural changes within selected governments, AI USA aimed more modestly at making specific and targeted changes to practices and individual behavior within those governments. Amnesty “resolutely portrayed itself as nonpartisan – indeed as beyond politics” (p.192). But despite its apolitical mantra, its “most prominent activities and the majority of its leaders and grassroots members were on the left of the political spectrum” (p.192). Charitable tax law enjoined the organization from directly lobbying the government and AI rules prohibited it from taking a position on foreign aid. The office nonetheless worked closely with State Department officials and sympathetic members of Congress, providing information, requesting action, and prodding them to ask questions.

      Keys concludes that in light of the terrorists attacks of September 11, 2001, and the United States’ protracted military involvement in Afghanistan and Iraq, “Americans seem to be losing interest in the idea [of human rights] as a guide to U.S. foreign policy” (p.277). While American public sentiment could well be turning inward, repudiation of human rights in the formulation of American foreign policy would be far more difficult today than in the Reagan administration. Several other human rights organizations have cropped up beside AI USA, such as Human Rights Watch and Freedom House, to convey human rights concerns to Washington policy makers and the public. The clout of these organizations alone would make a repudiation of human rights unlikely. Moreover, the State Department is required to address human rights in a multitude of contexts.

      The Department’s annual country-by-country human rights report, coordinated by a vast bureaucracy within the State Department, the Bureau of Democracy, Rights, and Labor, details individual countries’ human rights records in a strikingly broad array of areas. The report is read closely and taken seriously around the world.  Further, the United States’ anti-human trafficking legislation requires the State Department to produce another report, coordinated by another bureaucracy within the Department, which sets forth individual countries’ progress in curtailing human trafficking. The legislation provides for sanctions for those countries deemed to be making insufficient progress. During my career working in U.S. Embassies, I was frequently involved in the preparation of these reports.

       I was even more involved in what is termed “Leahy Vetting,” a process established by an amendment to the Foreign Assistance Act of 1961 sponsored by Vermont Senator Patrick Leahy. Leahy Vetting mandates a formal State Department determination that any specific instance of U.S. assistance to overseas law enforcement and security units will  not include officers or units that had engaged in serious human rights abuses. Although realpolitik of the Kissinger variety has hardly disappeared from the United States’ foreign policy formulation process, today it competes with human rights and a wide range of other institutionalized considerations in determining that policy.

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     As a means of “coming to terms with the Vietnam War” and a “way to heal the country” (p.3), the human rights revolution of the 1970s which Keys depicts represents still another legacy of the traumatic Vietnam conflict.  But Keys also demonstrates that human rights rose to its prominent position as a result of diverse pressures and motivations, which she methodically ties together.  Writing  in straightforward if not quite riveting prose, Keys  casts incisive light on an often overlooked aspect of modern American liberalism, now thoroughly mainstream; and on how and why the human rights records of other governments came to play a prominent role in defining America’s relationship with the rest of the world.

Thomas H. Peebles
La Châtaigneraie, France
November 3, 2015

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