the assumption of responsibility for the welfare of the world
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STEWARDSHIP the assumption of responsibility for the welfare of the world |
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HUMAN RIGHTS AND THE PROBLEM OF EQUIVALENCE
O.T. FORD
Rights and crime are complementary discourses. One implies the other; one exists in the space partially demarcated by the other. There will surely always be some disagreement about what human rights are, specifically, and perhaps even how they should function, whether as non-negotiable guarantees, as classical theorists such as Thomas Paine and Jean Jaques Rousseau1 suppose, or as an ongoing social negotiation, as Michael Ignatieff suggests recently. But allowing for some distinction of language, we can say that violations of human rights are crimes in the same sense that human rights are rights. Anthony Appiah distinguishes between two kinds of group rights: collective rights belonging to the group as a whole, and membership rights belonging to each individual member by virtue of being a member. In this understanding, human rights are membership rights, belonging to humans by virtue of being human. This contrasts with a conception of rights that exist only because they are protected by the state. It is the state that determines the civil crimes that violate civil rights. The crimes that violate human rights are crimes whether they are prosecuted or even acknowledged by states. To avoid the most dramatic language of human rights, I will call these, where necessary, “human crimes”. The alternative term ‘crimes against humanity’ is generally reserved for mass crimes, and occasionally specific atrocities such as torture. Perhaps we should not hesitate to use such dramatic language, though. One of the key understandings of crime, and why crimes are prosecuted and, moreover, prosecuted in the name of the public (the plaintiff in a US criminal trial is always “the people”), is because we believe that a crime against one of us is in a way a crime against all of us, that when a violator deprives one human of rights, it is diminishing the social environment in which we enjoy our rights, and such violations must be prevented for the sake of all. It is in any case understood that a culture of accountability makes each of us safer, and a culture of impunity does the opposite. Even so, not all human crimes are equivalent. We must, then, work to understand the relative seriousness of the crimes, and we should transfer our understanding of this relative seriousness to the human rights that are supposed to shield us against these crimes. Simply put, there is a good reason why human-rights discourse, activism, and enforcement tends to favor some rights, and some kinds of rights, over others: some crimes are worse than others, and some crimes are a lot worse than others.
The mass crimes Elizabeth Oglesby and Amy Ross point out, quite rightfully, that how we place instances of crime in the hierarchy of all crimes is important; there are consequences when a crime is placed above a symbolic threshold, and there are consequences when it is placed below. They were specifically referring to findings of genocide; ‘genocide’ is perhaps the most provocative term for a human crime, in part because its emblematic example was so horrific — seven million deliberate race murders carried out in just a few years, largely while the world watched, and during the lifetimes of many who are still alive. And yet, owing no doubt to the emblematic example, genocide is not clearly understood. Genocide is understood as the Holocaust, and the Holocaust is understood as mass murder, leading, transitively, to the equation of genocide with mass murder. Since the conflict in Yugoslavia, the term ‘ethnic cleansing’ has been conflated with genocide and mass murder. ‘Genocide’ and ‘ethnic cleansing’ are neologisms of the twentieth century, designed to capture some of its signature mass crimes, but their meanings were forgotten or mislaid almost as soon as they were established.
With ‘genocide’, there is at least the 1948 Convention on the Prevention and Punishment of the Crime of Genocide to preserve a definition, and the prevalent legalistic mindset of the public gives this some weight. Taking the summary from Oglesby and Ross:
The definition clarifies that genocide, while frequently using mass murder as a tool, is a very different sort of crime on its own. There is a reason, for instance, why Oglesby and Ross can recognize a lacuna in the definition for political beliefs. If it is to be considered a crime even to try to destroy the group, even in part, even without committing crimes against individuals, then we must be certain that no group is protected that we have a legitimate social interest in destroying, and political groups do not qualify. Those working against colonialism were right that the attempted eliminations of racial or linguistic groups are acts stemming from a perception of racial and cultural superiority that does not reflect an empirical reality; no race is inherently better than another, no language is inherently better than another. From most perspectives no religion is inherently better than another, either, certainly not in their metaphysical systems, and religious groups are specifically mentioned in the Convention as protected; to this day, however, missionaries continue to operate around the world with the intent of eliminating other religious groups as such, and are seldom if ever accused of genocide. In fact, most religious believers would view their own as the truest religion, and many would view it as a service — as Christians might say, a benefit to the soul — to expand the reach of their beliefs. The largest religions are generally universalist: Christianity, Islam, Buddhism. And though I would not want to endorse any organized religion, proselytizers do have a consistent logic. Religion is not just unprovable metaphysics; religion is ethics, and particularly when we are considering human rights and human crimes, we must recognize that not all ethical systems are the same, and some are better than others. The case is more apparent when we speak of political beliefs. With the question of genocide on the table, we may as well ask if the world is not better without National Socialism, and whether a concerted effort to eliminate Nazis and neo-Nazis as a group was not and is not justifiable, or perhaps even a good idea. In fact, the effort to stamp out Nazis is ongoing, and while some of the methods (outlawing Holocaust denial) are questionable, the goal has largely gone unquestioned. And yet, in a world where political groups are protected, attempting to destroy the independent existence of Nazis as a group would be genocide. Ethnic cleansing was in the beginning the attempt to create ethnically-homogeneous territories through the removal of other ethnic groups. Though mass murder can be a tool of ethnic cleansing as well, ethnic cleansing is a goal-oriented process, most often accomplished by forcible expulsion. It arose in Yugoslavia as a response to a dissolving polity and the complicated applications of self-determination that were being attempted. Each ethnicity2 was seeking its own state, and its own territory. The presence of intermingled ethnicity, especially as it existed in Bosnia and Hercegovina, made self-determination problematic; there are no modern cases of states whose territories are blended with each other spatially the way Croat-, Bosniak-, and Serb-majority territories were blended in Yugoslavia, and so either Bosnia as a whole would have to become independent, denying self-determination to its Serbs, stay with Yugoslavia as a whole, denying self-determination to its Croats and Bosniaks — or sort itself out territorially. The process of groups attempting to drive out other groups and create ethnically-homogeneous spaces was dubbed ‘ethnic cleansing’, and while this was from the beginning associated with atrocities, it was also meant to be ‘ethnic cleansing’ whether there were atrocities or not — that is, if the Serbs had simply made irresistible cash offers on all Bosniak homes and businesses, this would still have fit with the spirit and definition of ethnic cleansing. The term was only later taken to be a euphemism for mass murder or genocide.
The ICC and post-colonial equivalence
Kamari Clarke opens her significantly-titled ‘Fictions of justice’ with the following line regarding the International Criminal Court (ICC):
But Clarke cannot be correct about her analysis as to why a thing happened, if the thing has not in fact happened. Clarke is aware of, and mentions, the International Criminal Tribunal for the Former Yugoslavia (ICTY), through which only Europeans have been prosecuted, where most especially Christians have been prosecuted for crimes against Muslims; just this morning (2010 June 10), the ICTY found two Serbs guilty of genocide for the massacre at Srebrenica. Clarke is no doubt also aware of the UN Special Tribunal for Cambodia, and the more distant examples of the Nürnberg and Tokyo war-crimes trials. These tribunals existed to do what the ICC could have done had it been in existence, and they served, like the ICTY, as examples which argued for and led to the permanent international tribunal of the ICC. Many of the ICC’s forerunners were even convened in the same place, namely the Hague. So Clarke’s premise that the ICC has singled out Africans is only correct in the most technical sense, that the international tribunal known as the International Criminal Court, after several ad-hoc precursors specifically targeted towards the human crimes of non-Africans, has as yet prosecuted only Africans. The argument about special treatment misses a key point. When the ICC, as well as precursors like the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), do prosecute Africans, they are prosecuting the perpetrators of crimes against Africans. For this reason, there is plenty of support for these tribunals in Africa; the elected government of Liberia, for example, supported the extradition of its former ruler Charles Taylor from a comfortable exile in Nigeria to face the SCSL. Not everyone feels that prosecution of criminals is the right approach, and not all believe that such prosecution has a fundamentally-protective function, but for those who do, Clarke would better ask how various factors have led to conditions such that it is Africans and not Europeans, Sudanese and Ugandan citizens and not US citizens, who are offered the protection of international prosecution of those who victimize them. Anyone objecting to the fact that the tribunals are not under the jurisdiction of the African states themselves but rather international (read: neocolonial), with the suggestion that somehow the Africans cannot be trusted to administer justice, must remember that the government of Uganda requested ICC prosecution of the Lord’s Resistance Army, and that the accused in Sudan actually are the government. We could hardly expect Omar Hasan al-Bashir to prosecute himself. Finally, Clarke attempts to explain the ICC focus on Africa, but what she does not appear even to consider as an explanation is that the ICC is actually prosecuting the worst crimes. Of course, this would have to be, in fine detail, a matter of judgement and probably an exaggeration. The ICC system does not allow for simply selecting the single worst criminals in the world and prosecuting them. But would it not be possible to say that, from within its limited jurisdiction, the ICC was at least concentrating on the worst class of crimes, from the most serious situations? Clarke implies not. Does she then want to claim that the crimes of Sudan and Uganda are somehow no worse than what Europe and the United States have been getting away with during the same span of time? Clarke’s assertion is difficult to make in the specific context of the ICC, which will not prosecute when state governments are willing to investigate or when another tribunal (such as the ICTY) has authority, and which has limited jurisdiction regarding states not party, such as the US. But we could reasonably extend the critique not just to the decisions of the ICC as an institution, but to the decisions of the system that supports it. Even with this expansive interpretation, does Clarke believe that the US, or the European states outside of the Balkans, have done something comparable to the mass murder in Darfur, or that the US or a European state has behaved as badly as the Lord’s Resistance Army in northern Uganda? It may seem unfair to take Clarke to task for a single line, but it is done so on the grounds that this forms the premise to her article, and that, if she is not arguing for the truth of her assertion, then she believes it has already been proven.
Capitalism and post-colonial equivalence The centerpiece of the post-colonial critique of human rights appears to be the objection to favoring civil and political rights over economic, social, and cultural rights. Each group of rights figures in the non-binding Universal Declaration of Human Rights; but for binding treaties, they were divided into two separate documents, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights; and it is fair to characterize the latter as the neglected stepchild. It cannot be an accident that the rhetorical faultline of the Cold War fell in the same divide. The Soviet Union and its satellites could not be said to protect any variety of rights reliably; but they made frequent reference to their supposed ideology of socialism-communism to justify the lack of civil and political rights; the West was said to choose one set of protections, the East the other, and neither could be called superior. This rhetoric may represent in part a natural cleavage in our priorities, and in part a deliberate appeal to an extant cleavage in world opinion, including in the West. While it is reasonable to ask, to use clearcut examples, whether the cherished political right of voting is truly more important than the cherished (but civilly-unrecognized) economic right of eating, the anti-capitalist argument does not stop there, but proceeds to suggest a similarity between established civil crimes such as assault, and unrecognized economic crimes such as failure to provide decent jobs.
J.K. Gibson-Graham actually compare capitalism to rape, in an extended analogy that is shocking, and probably meant to be so. While considering a Sharon Marcus article on rape, they make repeated comments suggesting that for Gibson-Graham, at least, the two really can be considered equivalent:
Earlier humanitarianism and colonial equivalence
Alan Lester does us a service with his recounting of the history of Britain’s Aborigines Committee, and its Court of Enquiry into the death of Xhosa leader Hintsa. We are observing, in his narrative, an empire that would not end until the independence of Zimbabwe in 1980, at the earliest, and whose rule would continue to be brutal well into the twentieth century, but also an empire with an internal democracy that had recently forced the state to end its participation in the slave trade and to begin interventions to end it entirely. The humanitarians who had brought about the end of the slave trade were well aware of continuing problems with imperial rule, and were acting in various ways to amend that, including through the two institutions Lester discusses. This activity has not necessarily brought them credit, as Lester points out:
This, however, is objectionable from several points of view. First, plucking the humanitarians out of context to examine the ways in which they were not as sophisticated as we are is somewhat unreasonable. It takes mental and emotional effort to transcend your own time, and the humanitarians were far ahead of theirs, perhaps much further ahead of theirs than any of us is of ours. Second, that genocide may have technically been intended helps to illustrate how problematic the idea is. Third, most importantly, the suggestion that the humanitarians were just as bad as the imperialists and colonists is not only inaccurate, it is also inconsistent with an aspect of the post-colonial project. As Lester says, “Given that postcolonialism has sought consistently to particularise apparently universal notions, however, we should be distinguishing the groups which produced humanitarianism from those against whom they had to struggle” [p290]. An equivalence between the humanitarians and the imperialists and colonists would only be possible in the most undiscriminating examination.
The problem of equivalence Fouad Ajami has spoken of “the swap”, in which a new and minor crime is taken as the moral equivalent of larger crimes of great duration, and all is suddenly even. Specifically he has in mind the scandal over US practices in Iraq’s Abu Ghraib prison. While it is true that actors from George Bush down gave signals that US humanitarian standards were being lowered for the purpose of effectiveness in the War on Terror, and authorized genuine torture, and while it is true that genuine torture did take place in Abu Ghraib at the hands of US personnel, the more-salient truths are that that torture was primarily the sadistic behavior of a few soldiers, and that the scandal of Abu Ghraib had much more to do with the photographs released showing Arab men forced by a few sadistic soldiers to pose naked and in positions simulating sex with each other. It was primarily as a response to the humiliation and simulated sex that Arab opinion was inflamed, and inflamed, we were told, especially because gay sex is an object of such revulsion among Arab men. What we had, then, is a scandal in which the primary concern was not for physical suffering, but for the emotional distress that followed directly from holding views that many of us observing in the West would consider shameful. Perhaps it is understandable that, among circles in the Arab world, this became a part of Ajami’s swap: a small collection of incidents of bad behavior by the United States Army in Abu Ghraib, set against a long history of oppression and even atrocities committed by Arab states and other Arab powers against Arabs and against other peoples, including especially their neighbors but including as well the United States, with these two elements cancelling each other out, Abu Ghraib excusing every crime emanating from Arab society for the last century. It is more puzzling that the swap seemed to work so well with others, including in the West. In reality, what happened in Abu Ghraib under US control was insignificant in scope compared merely to what happened in Abu Ghraib under Ba‘thist control, to say nothing of the Anfal, the Iran-Iraq war, and the mass killings of Shi‘ites, Kurds, and dissident Sunni Arabs — to take the example of just one Arab state. And yet ‘Abu Ghraib’ is now a byword for US neoimperial criminality, and hardly ever associated with Saddam. And the pictures have served in the West to help discredit the end of Saddam’s thirty-five year reign, which itself cost millions of lives — not European but Arab and Kurd and Persian lives, lest that be forgotten. The problem of equivalence is in part one of relativism. It is evident when crime A is committed both by the European diaspora and by Africans, and yet only brings condemnation to the Europeans. It is evident when two crimes, B and C, are clearly hierarchical when committed by the European diaspora, with crime B considered much worse, and yet Africans who commit crime B and Europeans who commit crime C are condemned equally. The problem of equivalence is also in part one of values. The massacre of Mayans in Guatemala, as described by Oglesby and Ross, can be condemned as mass murder, it can be condemned as political murder, or it can be condemned, as it eventually was, as genocide. Which is the strongest statement? As the authors and the Mayan survivors recognize, condemnation as genocide is the most powerful, both legally and emotionally. But should this be so? If a squad of thirty Guatemalan soldiers kills thirty Mayans because they are Mayans, and another squad of thirty soldiers kills thirty Mayans because they are members of a separatist group, and finally thirty individual soldiers kill thirty Mayans for having affairs with the soldiers’ wives, why is the first so much worse than the others, and the second worse than the third? The price in lives has not changed. The victims in all cases are innocent, unless we want to agree with the aggrieved husband that adultery is a capital offense. We can desire a broad and deep improvement of the world, reaching into the lives of both the miserable and the more miserable, we can refuse to accept that we must sacrifice economic welfare to have full political rights, we can, indeed, recognize the limitations of capitalism, while still developing some perspective in our understanding of human crime. The infliction of physical suffering is a greater crime than the infliction of emotional suffering. The intentional infliction of physical suffering is a greater crime than the unintentional indirect infliction of physical suffering through economic practices. The infliction of suffering is a greater crime than allowing suffering to happen. Crimes against human individuals are greater than those against groups as such; individual rights are more important than collective rights.4 Where death and physical suffering are involved, the gravity of the crime is commensurate with the number of those killed or made to suffer. Where oppression is concerned, the seriousness of the crime is determined not only by the means and the number of victims, but by the duration of the oppression. Crimes are not more or less serious based on the social position of the victim, or the social position of the criminal. If we accept this perspective, then mass murder is a greater crime than genocide per se, which is a greater crime than ethnic cleansing per se. Indeed, mass murder is unsurpassed as a crime, and genocide becomes its equal only when genocide involves mass murder. Physical torture is a greater crime than deliberate humiliation. The person who has been denied a vote or the right to speak is a victim of crime; the person who has been unable to find a decent job has not by that fact alone been the victim of a crime, though a crime may have been committed. If we accept this perspective, then the occupation of Arab Palestine by Israel is suddenly not the greatest crime taking place in the present world, and suicide attacks on Israeli citizens are not justified by the colonization of the West Bank. Abu Ghraib becomes historically associated with the brutality of Saddam Hussein. The US occupation of Iraq is not worse than the attacks of September 11, and the Qa‘idist and Sadrist terrorism in Iraq is not somehow justified, as David Harvey implies, by the imposition of neoliberalism on Iraqi society. The fact that the first few cases pursued by the ICC originate in Africa is not neocolonial; it is rather an indication of an appropriate desire to end the suffering of individuals who have already suffered enough. If we accept this perspective, capitalism is simply a flawed system, not a criminal enterprise, and the crimes that take place under it are attributable to the individuals who commit those crimes. The fact that some are left behind in the system is a shame, not a crime, and we should seek remedies for this neglect in fixing or if necessary replacing the system, but should not wave our hands in exasperation and bundle it with every other misfortune in the world. Some misfortunes are greater than others. And some are more deliberate. Something becomes a human crime only when it is an intentional violation of human rights. It may seem too mechanical and statistical simply to tally the victims and place the greatest weight on the greatest numbers. That would be, however, a tremendous improvement to our public consciousness about human rights and human crimes. As it is, we have great failures of proportionality, of perspective, of equivalence. Our energies are devoted to protesting causes célèbres, and often when we find the time to act on other worthy causes, that action is protested as well, because it does not fit in with a post-colonial framework. Meanwhile human crimes go on and humanitarian crises continue to appear. A cold and unsatisfying utilitarianism about the problem would, nonetheless, have the best chance to reduce the suffering from those crimes and those crises.
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