Human rights: Food for a failing thought ‘HR and the justice system’
HRR 749
AT THIS PIVOTAL JUNCTURE, UNITING CLAIM HOLDERS, ACADEMICS AND THE BROADER PUBLIC IS NOT JUST AN INVITATION BUT AN IMPERATIVE. (South Center)
[TLDR (too long didn’t read): If you are reading this, chances are you care about HR. This Reader is about how the right to justice is obstructed for the have-nots and what claim holders ought to do about it. For a quick overview, just read the bolded text]. Traducir/traduire los/les Readers; usar/utiliser deepl.com
Expanding equal access to justice is one of the most powerful ways to combat the pull of populism and autocracy
–A judge from Kenya recently said: “Most judges think of their constituents as the people who appear before them in the courtroom. But I think of things more broadly. I think of my constituents as the people who should appear in my courtroom, the people who the law could help if only they were able to access it.”
1. Enforcing accountability persists* as an obstacle in many national courts. Economic actors can and do prevent the initiation of legal claims or can delay the litigation process through legal procedural maneuvers, thus securing de–facto impunity. As a result, advocates of accountability (human rights activists) must come up with legal mobilization strategies so as to guarantee that judicial investigations are not impeded or shelved indefinitely. (Gabriel Pereira et al)
*: The history of demanding accountability for human rights (HR) violations shows a string of difficulties, is perplexing and has resulted in close to no positive results. Is neoliberalism and the Western cultural chauvinism what explains why there is no international intervention in, for instance, urgent humanitarian catastrophes caused by current violence? How and by whom has the HR project failed to stop the atrocities? A clear conclusion follows: Regrettably, accountability takes decades and only partially arrives. (adapted from Daniel Marin-Lopez et al)
2. We must frankly recognize that justice systems have been failing too many people for too long. Not everyone can truly trust that their human rights (HR) are protected by the justice system. Striking data quantify the justice gap and the especially heavy price it exacts on those rendered poor and marginalized.
3. On the other hand, strong autocrats are constantly attacking the judiciary which helps to explain why their rhetoric is finding such a receptive audience. Through this rhetoric, claim holders are kept unaware that, ultimately, justice institutions have not been designed to advance their rights, but those of the powerful. As a result, they fail to vocally object-to and attack those institutions that fail them when their rights are violated.** (adapted from Ben Polk)
**: It is tempting to assume that HR violations are easy to see, but they are often difficult to discern. Perpetrators take great effort to hide them in plain sight. Before they can be brought to justice, HR defenders may need to launch years-long investigations to find evidence that an unacceptable injustice has occurred and that it will hold in court. (Sam Bowman)
4. It thus becomes necessary for claim holders to question the relevance, effectiveness, and even validity of HR in their current captured modality. Captured, because states and corporations have forever exerted their own interpretation of international HR law further perpetuating colonial, imperial and capitalist power dynamics, especially at this pivotal point where the international order stands on the edge of a knife. This is the moment for lawyers, advocates, researchers, educators, and HR activists to adopt an approach that rejects the instrumentalization of international HR law*** in the service of structures of oppression.
***: Instrumentalizing, occurs when political actors misuse existing legal institutions, procedures, and laws to exert political influence.
5. The interpretation and HR standards-setting done in offices in ivory towers cannot be accepted and is vital to challenging the status-quo. This process starts by refusing to have rogue states andinstitutions –notably those with well-recorded histories of colonization, enslavement, and despotism– dictate HR and humanitarian law as they interpret and apply both. These states have no legitimacy to define principles of proportionality, of who qualifies as a freedom fighter, nor of who is worthy of humanity. (Maha Abdalla)
6. Discussions with claim holders about human rights (HR) need to be far more conversational than didactic (top-down) in nature. Importantly, we need to create consciousness about why and how HR are essentially a tool of recolonization and imperial domination. We also need to converse with them about the extremely one-sided neoliberal assumptions that underpin so many spurious approaches to HR. It is furthermore essential to respond to the backlash against rights and the concerted challenges from authoritarian regimes that often seek not to destroy, but to reshape the interpretation of rights in their own ideological image. These needed responses will be more effective when based on de-facto claim holders’ engagement rather than mere verbal or procedural refutations. Invoking legal doctrine alone is patently inadequate.
7. To link this to the above, the reality is that courts are increasingly less important than a range of other institutional actors when it comes to HR issues. (Philip Alston)
Bottom line
8. The time has come for claim holders to act, to go from being impassive spectators of what is happening to very determined actors. “Not a day more silent listeners”! It is time for action, not to be mere receivers of often biased information, but actors who participate and influence, each in his or her own field, bearing in mind the maxim: “No one makes a greater mistake than s/he who does nothing because s/he thinks s/he could only do very little”. All seeds, without exception, are necessary. All the grains of sand. Every drop. Public interest civil society now has, in addition to its undeniable leading role in solidarity and HR work****, the possibility, not only of making itself heard, but also of making itself Heard. (Federico Mayor Zaragoza)
****: We must make a distinction between what we can perhaps call emotional solidarity and principled solidarity. For the latter, a violation of any HR is a loss to all of humanity regardless of where or to whom it happens. A principled solidarity is hard to achieve, precisely because it is somewhat disinterested. While knowledge of a particular circumstance is important, it is not this knowledge that decides the position, but rather a foundational political or moral commitment. (adapted from Azhar Sholgami)
9. As said, the moment has come for HR activists to reject the deliberate delay in the instrumentalization of international HR law that basically serves the structures of oppression. What is thus, more than ever, needed is a union of actors that can reverse the status-quo of violence and impunity while exposing its root causes. Now is the time to use the HR framework, not only as as human and moral value, but as a political tool that contributes to mobilizing the masses of claim holders to confront and dismantle the structures that are leading humanity simply to an accelerating downward spiral. It is imperative to make the HR framework apply universally —with real teeth. (D. Marin-Lopez et al)
Claudio Schuftan, Ho Chi Minh City
Your comments are welcome at schuftan@gmail.com
‘Moving HR beyond Capitalism/Mover los derechos humanos mas alla del Capitalismo’. Claudio Schuftan with Howard Waitzkin, 87 pp bilingual booklet, Jan 2024, available from Claudio.
Postscript/Marginalia
You may have heard about Transitional Justice: What is it?
—Transitional justice (TJ) includes criminal prosecutions, truth commissions, reparations and other policies to provide redress for victims of human rights (HR) violations committed during a period of conflict or authoritarianism. Among other, one question it raises is: How should TJ address gender, defined as the socially constructed roles, status, and identities of girls, women, boys, men, and gender-diverse people in society? The TJ field has experienced a ‘corporate turn’ in recent decades. This turn breaks with the liberal and statist bias in traditional approaches to TJ that tends to focus on state or state-like (rebel or paramilitary) perpetrators. However, including corporate accountability in these efforts sheds light on the economic, corporate and political power structures underlying authoritarian regimes and armed conflict. This approach acknowledges the fundamental role certain economic actors play in that violence. Although still marginal, international attention regarding corporate complicity has begun to grow. Nevertheless, obstacles to such accountability persist in many national courts. (G. Pereira et al)
—Transitional justice (TJ) includes criminal prosecutions, truth commissions, reparations and other policies to provide redress for victims of human rights (HR) violations committed during a period of conflict or authoritarianism. Among other, one question it raises is: How should TJ address gender, defined as the socially constructed roles, status, and identities of girls, women, boys, men, and gender-diverse people in society? The TJ field has experienced a ‘corporate turn’ in recent decades. This turn breaks with the liberal and statist bias in traditional approaches to TJ that tends to focus on state or state-like (rebel or paramilitary) perpetrators. However, including corporate accountability in these efforts sheds light on the economic, corporate and political power structures underlying authoritarian regimes and armed conflict. This approach acknowledges the fundamental role certain economic actors play in that violence. Although still marginal, international attention regarding corporate complicity has begun to grow. Nevertheless, obstacles to such accountability persist in many national courts. (G. Pereira et al)