The End of Human Rights?
Learning from the failure of the Responsibility to Protect and the International Criminal Court.
There is no doubt that the human rights movement is facing the greatest test it has confronted since its emergence in the 1970s as a major participant in the international order.
A bellwether of this crisis has been the essays that Kenneth Roth, the executive director of Human Rights Watch, has written introducing his organization’s annual reports. One has to go back to 2014 to find Roth writing in a relatively sanguine way about the future of human rights across the globe. That year’s report is couched in the positive terms of its title: “Stopping Mass Atrocities, Majority Bullying, and Abusive Counterterrorism.” By 2016, he was musing on “how the politics of fear and the crushing of civil society imperil global rights.” And the following year, Roth warned Human Rights Watch’s supporters that the rise of populism “threatens to reverse the accomplishments of the modern human rights movement.”
And though in the 2018 report Roth claims that things may not be as bad as they have been for the previous three years, he leaves no doubt that they remain very bad indeed. Roth concludes that a “fair assessment of global prospects for human rights should induce concern rather than surrender — a call to action rather than a cry of despair.”
Strip away the activist language and what emerges is a human rights movement forced to refight and relitigate battles it once thought won. Human Rights Watch is not alone in calling for an all-hands-on-deck response from its supporters. In its own 2017-2018 report, Amnesty International states: “Over the past year, leaders have pushed hate, fought against rights, ignored crimes against humanity, and blithely let inequality and suffering spin out of control.” But, like Roth, the authors of the Amnesty report conclude that “while our challenges may never be greater, the will to fight back is just as strong.”
The question remains as to why the most prominent international human rights organizations seemed to have missed the gathering storm until, with the rise of populism in Europe, it reached them.
Of course, outside critics and scholars of the human rights movement — such as Stephen Hopgood, Samuel Moyn, and Eric Posner — had already predicted that the legalism of the human rights movement no longer sufficed. Implicit in the liberal human rights narrative is the idea that once binding legal norms are set, realities on the ground will eventually conform to them. It is a legal approach that simply has no place for German scholar Carl Schmitt’s idea of the law as inseparable from politics, rather than above it. As far as the human rights movement has been concerned, once what the writer Michael Ignatieff called the post-World War II “revolution of moral concern” got fully underway, it was a matter of when — not if — an international system based on human rights would prevail throughout the world.
But for the moment, at least, Brexit, Donald Trump’s presidency, and the steady rise of China have shattered the human rights movement’s narrative that progress is inevitable.
Nothing is inevitable in history — except of course, sooner or later, the mortality of every civilization and system — and both Human Rights Watch and Amnesty are quite right to refuse to concede defeat. It is possible, though not likely, that the human rights movement will be more effective with its collective back against the wall: an underground dissident church as it was during its beginnings, rather than the secular church of liberal globalism that it was at its apogee. What is clear, however, is that the global balance of power has tilted away from governments committed to human rights norms and toward those indifferent or actively hostile to them. Into the latter camp fall, most obviously, China, Russia, Turkey, the Philippines, and Venezuela. Roth all but admits as much when, in the 2018 report, he speaks of powers that “have withdrawn” from the struggle for human rights, even if he holds out some hope that small and middle-sized nations will fill the void.
What the human rights movement has been unwilling to do is accept some of the blame for the greatly weakened position in which it finds itself. This is predictable. If your expectations are millenarian — if you believe there is a right side of history, yours, and a wrong side of history that is doomed to defeat — skepticism about the human rights project, let alone voices of opposition, is unlikely to sway your position. Given that perspective, why consider any change in your approach that goes beyond tactical adjustments?
This is what Ignatieff, though one of the human rights community’s most important advocates, warned of in his prescient 2001 book, Human Rights as Politics and Idolatry. “In the next fifty years,” he wrote, “we can expect to see the moral consensus that sustained the Universal Declaration [of Human Rights] in 1948 splintering still further.… There is no reason to believe that economic globalization entails moral globalization.”
But this seems to have been exactly one of the main drivers of what a sympathizer with the human rights movement would call its moral serenity and a skeptic would call its hubris. Nowhere has this hubris been more evident than in the fate of institutional structures and frameworks meant to allow internationally sanctioned, state-sponsored intervention to prevent genocide, crimes against humanity, and war crimes or to bring to account those guilty of such horrors.
The first of these frameworks is the International Criminal Court (ICC), established in 2002. The second is the so-called Responsibility to Protect (R2P) doctrine, which the United Nations adopted at its World Summit in 2005 and reconfirmed in 2009.
R2P sets up an elaborate series of nonviolent measures that need to be tried before resorting to international military intervention on human rights or humanitarian grounds. Force, according to proponents of R2P, should only be used if both a reasonable chance of success and the proportionality of the response are possible. But as an internationally binding norm, it nonetheless obliges outside powers, albeit only if sanctioned by the U.N. Security Council, to intervene to halt a genocide or crimes of mass atrocity in countries where either the government of the country in question is committing the crimes at hand or is otherwise unable to prevent these horrors from continuing.
The claims made for both R2P and the ICC were sweeping. One of R2P’s principal architects, former Australian Foreign Minister Gareth Evans, wrote that its emergence brought us much closer to “ending mass atrocity crimes once and for all.” The promise contained in the vow “Never Again” — first coined by the prisoners of the Buchenwald concentration camp just after their liberation and repeated ad infinitum, if hollowly, since that moment in 1945 — was at last to become a reality.
The promises regarding what the ICC was going to accomplish were only slightly less extravagant. When the Rome Statute, the treaty that paved the way for the court, was signed, then-U.N. Secretary-General Kofi Annan hailed it as a “gift of hope to future generations and a giant step forward in the march toward universal human rights and the rule of law.” Indeed, Annan concluded, “It is an achievement [that], only a few years ago, nobody would have thought possible.”
But only a few years later, both R2P and the ICC look like just that: doctrines that are not possible in the world as it actually exists. Some of these wounds were self-inflicted. Politically, it was a huge mistake on the part of the ICC’s first chief prosecutor, Luis Moreno Ocampo, to appear to focus his investigations almost exclusively on Africa — even if he was right on legal grounds, since a disproportionate number of the early referrals to the court were from African governments themselves. The result has been a widespread perception that Africa is being unfairly targeted. In 2017, a number of African countries even attempted to organize a massive withdrawal of African Union members from the ICC. The fact that this effort was beaten back should not be taken as evidence that the ICC’s crisis of legitimacy in Africa is over and done with.
And the global obligation, articulated in R2P, to act militarily in extremis to stop mass atrocity crimes has taken place only once: in Libya in 2011. But the intervention in Libya to protect the civilian population soon morphed into regime change, as a minority of supporters of R2P have since conceded. The widely held view among R2P champions is that the Libyan intervention was right — it’s just that the implementation was faulty.
Regardless of whether it was right or wrong, there is very little likelihood of another R2P intervention in the foreseeable future. Syria, Yemen, and the ethnic cleansing of the Rohingya in Myanmar have demonstrated that all too painfully.
Deeper moral and political reasons explain why the ICC and R2P have failed to live up to what, in retrospect, seem like completely outlandish expectations for what they could achieve. In the case of the ICC, the court was created without a police force to carry out its instructions. Moreover, several of the world’s most powerful states — China, the United States, India, and Russia — haven’t ratified or joined the Rome Statute. A legal institution that is only in a position to target war criminals who don’t enjoy the protection of powerful states is likely to be intermittently effective at most. It will also be of questionable legitimacy no matter how many other nations officially recognize it. Legitimacy and legality, of course, do not necessarily go together. The intervention in Libya was legal; the intervention in Kosovo in 1999 was not. It is anything but an outlandish view to believe that the former was morally illegitimate and the latter undertaken on a far sounder moral basis.
An institution that is based on a double standard, as the ICC seems likely to remain for the foreseeable future, cannot be seriously considered to be an important step toward universal justice.
In the case of R2P, the nonmilitary features of the doctrine have been successful in a number of instances. Annan invoked R2P in his back-channel negotiations with the Kenyan government after deadly riots broke out during the country’s national elections at the end of 2007, which almost led to civil war. But useful as it was as a negotiating tool to Annan in Kenya, R2P has not transformed classical diplomacy. Instead, its moral force came from its claim to be able to halt genocide and mass atrocity crimes.
Defenders of R2P and the ICC might argue that the world is better off in the long run, as the court and the doctrine will eventually lead to the desired transformations of reality on the ground. But this is precisely the same mistaken assumption that has thrown the human rights movement into crisis as democracy is rolled back across the globe. Both the ICC and R2P were, from the beginning, unworkable ideas for the world we live in, one in which authoritarianism is growing stronger.
Calls to action by human rights activists, therefore, are not enough, given that the move away from democracy and toward authoritarianism may be resisted but is highly unlikely to be reversed in the foreseeable future. If the human rights movement has a future at all, it should consist of defending what remains of Ignatieff’s revolution of moral concern, not pretending that — for now at least — it can be expanded.ƒ
This article originally appeared in the April 2018 issue of Foreign Policy magazine.