Uniquely human: the basis of human rights

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The freedom from fear and the freedom from want were part of what Roosevelt would call a second or economic bill of rights. “We have come to a clear realization of the fact that individual freedom cannot exist without economic security and independence….We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all.”301 The proclamation of a freedom from want was rhetorically powerful but it is not clear how governments can guarantee such a right. The words desire and want have historically different meanings but they tend to blur together so that people say I want something (I lack) when they mean I desire something (I wish to have it). A government is responsible for its people not lacking in the necessities of life, that is, their basic wants.302 That obligation would be complicated enough without its being confused with the limitless desires of people. Similarly, governments are responsible for seeing that people have a basic security of their person but governments are not able to guarantee an absence of all fears.303

The statement in the Atlantic Charter that drew the most attention was the affirmation of a peace “which will afford assurance that all the men in all lands may live their lives in freedom from fear and want.”304 The phrase “all the men in all lands” was a late revision, perhaps mainly for its poetic sense. But the assertion had explosive implications, especially for the British Empire. Churchill was understandably wary of an implied promise to grant political freedom to all of the colonies still under British control. Churchill said of the Charter: “it is not a law – it is a star.”305

As for Roosevelt, the phrase was part of his attempt to get U.S. people to think globally. There was little doubt that the United States was inescapably tied to international happenings, even though Republicans in Congress were adamant in rejecting any international agreements. Churchill, at the meeting with Roosevelt, wished to announce a plan to set up an “effective international organization.” Roosevelt, although already envisioning a world organization, resisted such a declaration as premature. He eventually agreed to the Atlantic Charter’s somewhat vague call for all nations to abandon the use of force “pending the establishment of a wider and permanent system of general security.”

Nuremberg Trials. The trials held immediately after the war in what was left of the city of Nuremberg are usually cited as a step in the direction of the Declaration of Human Rights. Although the judges did not invoke “human rights” as the basis of their judgments, they were obviously in search of some kind of law or principles on which to base a condemnation of Nazi “war criminals.” All things considered, the court did an admirable job of trying to administer justice beyond the kind of “victor’s justice” that is typical of war and its aftermath.

World War II was, of course, not just the ordinary war. It was an unprecedented outpouring of violence on every side that killed tens of millions of people. Hitler and the Nazis had obviously gone beyond all the “rules” of war. And it is arguable that Stalin’s killing machine was as bad or worse. The United States allied itself with one war criminal to stop another.

In the course of the war, the United States itself engaged in acts that were morally indefensible. The documentary film on Robert McNamara, The Fog of War, is mainly about McNamara’s part in the Vietnam War. The movie includes a discussion of a minor role that McNamara had in World War II when fresh out of college he became an advisor to General Curtis Lemay. Starting in early 1945, Lemay’s strategy for winning the war was the firebombing of Japanese cities. He believed that the indiscriminate killing of Japanese civilians would bring a halt to the war. The carpet-bombing of sixty-seven cities culminated in the atomic bombings of Hiroshima and Nagasaki. McNamara recounts a conversation with Lemay in which the general says to the college graduate: “You know if we lose the war we will be tried as war criminals.” McNamara rightly wondered whether winning the war would prove he was not a war criminal. By a strange and ironic coincidence, the Nuremberg Charter was signed on the same day as the bombing of Nagasaki.

An obvious problem with the Nuremberg trials was the selective character of the people who were charged with war crimes.306 A few of Hitler’s closest associates were fairly easy to target. Beyond that, drawing the line of culpability was bound to be arbitrary. Stalin at one point suggested taking out fifty to a hundred thousand German officials and shooting them. Churchill said he was appalled at the suggestion but he too at first preferred summary executions to the attempt at fair trials.307 Eventually at Yalta the U.S., U.K. and U.S.S.R. agreed on the need for some kind of a judicial process. The United States clearly took the lead so that the production of the trials was almost entirely a U.S. show.

Supreme Court Justice Robert Jackson opened the trials with a stirring speech in which he acknowledged the tenuous position of the court. Nonetheless, he pointed out that the victors were attempting to transcend the usual victor’s justice: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”308 The difficulty with Jackson’s idealism was to find the law on which the court would base its judgment. Jackson’s reference to reason as winning out over power might carry the day rhetorically but not legally or morally.

What the Nazi leaders had done was beyond all reason but so is all war. Since the early Middle Ages numerous attempts had been made to keep war within some boundaries although the phrase “just war” strikes a preposterous note. Carl von Clausewitz’s classic treatise, On War, is often criticized for describing war as an extension of national policy, but Clausewitz’s intention was to keep war within bounds. He feared that after Napoleon’s escapades the rules of war had been destroyed. If war could not be kept within the rational limits of a nation’s policy there would be no limit to war’s destructiveness. His 1815 book was a warning of what would happen in the 1940s and the problem that confronted the Nuremberg judges.309

It is sometimes said that the Nuremberg judges tried to reinstate some version of “natural law.” They did not actually use that term nor did they talk about human rights. They admitted that it was an unusual case to judge the leaders of another nation according to some version of law applied retroactively from outside the nation. The judges did not appeal to a law of nature or to a basis in human reason. Their judgments were based on behavior that was unacceptable within the rules of war. Nazi Germany had waged a “war of aggression” and committed atrocities within that context. The Court avoided consideration of what Germany had done during peacetime, including the persecution of the Jews in the 1930s.

The Nuremberg trials were thus not about the “Holocaust,” a term that was not available in 1945. The word “genocide” had been coined in 1944 by Raphael Lemkin.310 Like the term “crimes against humanity,” genocide’s primary referent was the Turkish killing of Armenians in 1915.311 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide was a remedy for Nuremberg’s limiting itself to wartime.312 Genocide whether in peace or war was made a crime under international law. There is a continuing debate whether use of the term genocide has had much practical effect. When terrible slaughters have occurred, the word genocide is usually avoided which allows international bodies not to do anything to stop the slaughter.313

The Nuremberg Court delivered the expected guilty judgments though the judges did try to discriminate among the defendants. Seventeen of the convicted were executed which may have seemed the appropriate punishment to most people. From the standpoint of human rights, however, the state execution of prisoners seems to violate the first human right, the right to life. The question always is not whether a criminal “deserves to die” but whether the state has the right to kill him. Of course if there was little moral protest over the incineration of the people of Dresden, Tokyo, Hiroshima and Nagasaki, the lack of moral questioning at that time over killing a few Nazis is not surprising.314

Whatever shortcomings can be attributed to the Nuremberg Trials, the fact that they were held at all and administered swift justice is amazing. The judges did the best they could under difficult circumstances. It seems unlikely that anything similar could be achieved today. In 2011, the United States government, after numerous delays, conceded that a civilian trial of Khalid Sheikh Mohammed was impossible. He was accused of involvement in the 2001 bombing of the World Trade Center. The proposed trial in lower Manhattan near the scene of the crime was judged to be prohibitive in both cost and the disruption of people’s lives. Only a military court in hidden surroundings was deemed possible.

Many people in the 1940s hoped that Nuremberg would serve as a ground-breaking precedent. Looking back from today, one could argue that it has.315 However, it found no immediate successor during the four decades that followed. Only after the end of the Cold War was it a practical possibility to establish an international court to try people accused of war crimes. Even then, the United States of America refused to be a participant in that undertaking. From being the leader of a search for justice in 1945, the United States opted out of the International Criminal Court in 2002 because of a fear that it might indict U.S. citizens.

Whether the International Court will be a great success remains to be shown. What was clearly the lasting effect of the Nuremberg Trials is that it highlighted the question of a law beyond national laws. The lawyers have not provided an answer other than international treaties that depend on the consent of the states that are a party to any treaty. The world’s resistance to atrocities is unlikely to be secured by written or positive laws although laws are worth writing so that at least there is pressure on offending nations.

The larger point was made by Geoffrey Robertson, a distinguished jurist involved in recent trials for crimes against humanity: “Nazi offenses were crimes that the world could not suffer to take place anywhere, at any time, because they shamed everyone.”316 His view coincided with Justice Robert Jackson’s opening speech which said that these wrongs were “so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”317

The Charter of the United Nations. Although the League of Nations after the First World War did not prove up to its task, it was evident during World War II that a new attempt at an international organization would be needed. Foremost among the believers was Franklin Roosevelt, the president of the United States. Roosevelt’s State Department began laying the groundwork for an international organization as early as 1939. In January, 1942, a meeting of twenty-six nations in Washington issued a “United Nations Declaration” to conquer the Axis powers.318 By February, 1942, Roosevelt was already thinking of “United Nations” as the name for the planned organization.

The name was not quite accurate. The members of the organization are states so that logically it should have been called the United States, but that obviously was not feasible. It could have been called the Uniting States to indicate that the creation of an effective inter-state organization is still in the making (the initials U.S. would have doomed that idea). The point is more than a fussy concern for linguistic accuracy. In the decades that have followed the founding of the United Nations, a central issue has been the rebellion within states in the name of a people or a nation.

The conference in 1945 that established the United Nations was preceded by at least four meetings of the “great powers” and several regional and international gatherings starting in 1943. One international conference dealing with economics was held at Breton Woods, New Hampshire, in July, 1944. Forty-four nations met to create a world monetary system. The United States and Great Britain were in the lead and their representatives, Harry Dexter White and John Maynard Keynes, seem to have done their best to create a genuinely cooperative international system which got the world through the next few decades. Henry Morgenthau, the U.S. Secretary of the Treasury, said of the meeting: “None of us found any incompatibility between devotion to our countries and joint action. Indeed, we have found on the contrary that the only genuine safeguard for our national interests lies in international cooperation.”319 Some of that feeling of solidarity was fostered by the war; fortunately a cooperative attitude survived for the meetings that followed at Dumbarton Oaks and San Francisco.

The meeting at Dumbarton Oaks in Washington D. C. lasted from August to October in 1944. A first draft of a United Nations Charter had been hammered out over a long period of time. The United States had the benefit of a brilliant and tireless Leo Paslovsky who had worked at this project in the U.S. State Department since 1940. His draft of the Charter was “the basic frame of reference for building a plan of world organization.”320 The search was for an organization more effective than its predecessor, the League of Nations. Roosevelt had long believed that the four great powers – the United States, United Kingdom, Soviet Union and China – had to act as the world’s policeman and maintain a balance of international power. At a February 1944 meeting, Paslovsky persuaded Roosevelt to accept an eleven member Security Council (instead of just the four great powers). Issues of security would be decided by the Council rather than by the whole assembly as was provided in the League of Nations.321

The Security Council’s power was restricted by the veto power of any member, a provision that had a paralyzing effect on the UN during the Cold War. The General Assembly was not given a prominent role but in time, with the addition of dozens of new states, the General Assembly took control of the rhetorical power of the organization.

Regional associations of power, which had been a topic in the Charter discussions, sometimes filled a power vacuum when the United Nations would not or could not act. A meeting in Mexico City in February, 1945, had proposed a regional security organization. The United States did not agree to that but a negotiated settlement specified that an attack on one American country would be considered an attack on all and would demand immediate consultation.322

In the preparation for the meeting at Dumbarton Oaks there is no record of a diplomatic discussion of human rights.323 At the meeting itself the United States did bring up the issue but Great Britain and the Soviet Union rejected the inclusion of human rights as a main purpose of the United Nations. The preliminary draft of the Charter was widely circulated and submitted to detailed criticism. The draft was severely criticized by the respected black leader W.E.B. Dubois for its failure to attend to issues of justice, including individual rights.324

The fact that the United Nations is composed of states creates difficulties in its being a defender of human rights. The state is often the institution which suppresses those rights. The United Nations was not founded as a human rights organization. Over the decades its rhetoric and its mission have shifted in that direction. When the Charter of the United Nations was drawn up, “human rights” was not a common term. In the original draft of the charter there was no mention of human rights. After advocacy by several groups, “human rights” found a place in the charter’s preamble and in articles one and fifty-five.325

In article one, the third paragraph, which refers to the promotion of human rights, follows a paragraph that proposes “to achieve international cooperation in solving international problems of economic, social, cultural or humanitarian character.” The relation between these two sets of concerns is left unclear. Are human rights separate from economic, social, cultural or humanitarian problems? Or are human rights intrinsically related to the solution of economic, social, cultural, humanitarian problems?

Article fifty-five is on International Economic and Social Cooperation. Instead of clarifying human rights and indicating what might be done to promote them, the article does little more than repeat what is in article one. After saying that the UN will promote “solutions to international social, health and related problems; and cultural and educational cooperation, the article concludes that the UN will promote “universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Whether “human rights” are especially concerned with solutions to economic and social problems or whether human rights are in addition to the solutions of those problems is left unclear. The question would surface immediately at the United Nations and the problem has bedeviled the idea of human rights ever since.

At least the United Nations Charter did give a push to the idea of human rights while leaving the articulation of the idea until later. One should acknowledge that the founding of the United Nations was an extraordinary achievement. The United States government, and especially Franklin Roosevelt, provided not only intellectual leadership but the logistics for all of the countries of the world to meet and come to an agreement. It is a sad fact that Roosevelt died thirteen days before he planned to speak at the opening of the conference, but it was fortunate that a totally inexperienced President Harry Truman was determined that the conference would be held.

The fact that would have saddened Roosevelt is that his own country has been so stubbornly resistant to the United Nations which has its home location in the United States. The United States Senate approved the U.N. Charter by a vote of 89 to 2. However, when President Dwight Eisenhower succeeded Truman in 1953, one of the first acts of his administration was to announce that it would not sign any treaty or covenant on human rights.326 Secretary of State John Foster Dulles opposed any references to “international law” and praised those people “who voiced concern that treaties might impose ‘socialistic conceptions’” on the country.327 Up to the present, any U.S. cooperation with the United Nations involves a struggle with right-wing forces that are dismissive, suspicious or contemptuous of the United Nations.

Much of the credit for success at the San Francisco conference goes to Leo Paslovsky’s work on the Charter and to Edward Stettinius who, although considered by some people in Washington to be an intellectual lightweight, proved to be skillful in handling the organization of the conference and the details of its meetings.328 Soviet insistence on a right to an “absolute veto” had threatened the existence of the organization. Eventually, Stalin gave in to an agreement that none of the permanent members of the Security Council could veto either the discussion of a topic or a peaceful settlement of a problem involving that individual state. Stettinius noted later that “if Stalin had adamantly supported Molotov [his representative at the conference], there would have been no United Nations formed at San Francisco.”329

The Charter of the United Nations accepted and affirmed the sovereignty of each nation-state. There would be no intervention in domestic matters. Article two did indicate that the United Nations would act to maintain international peace. The seventh chapter then spelled out in detail what steps would be taken, including military force, when peace is threatened. Article fifty-one allows for a state or a regional association of states to act in necessary self-defense and report their action to the Security Council. That provision allowed the United States, often as the leader of NATO, to use its massive military force when it has wished to use it.

The system of nation-states which went back three centuries was thus left in place by the United Nations Charter. In fact, what seemed desirable was a strengthening of the system. Many people see a contradiction between the sovereignty of each state and a rhetoric of human rights. Who will defend human rights against the state itself? One answer that developed over time was the NGO, the hundreds of non-governmental organizations that have often led the fight for human rights. There is a plaque in the Garden Room of the Fairmount Hotel in San Francisco commemorating the contribution of NGOs to the UN Charter. Charles Malik said that the NGOs were “unofficial advisors to the various delegations, supplying them with streams of ideas and suggestions.”330 However, the plaque is more a signal about the future than the actual contribution to the Charter in 1945.331

Paslovsky had persuaded Stalin to accept an Economic and Social Council to deal with the causes of war, such as poverty and famine.332 In the Charter discussion, the Australian delegate, Herbert Evatt, led the support for an Economic and Social Council as a “principle organ” of the U. N. The intent was to relieve the Security Council of its burdens, although keeping those concerns separate had questionable implications. The Economic and Social Council established a Human Right Commission; it was the single exception that the United States made in its opposition to special commissions in the Charter. Stettinius announced at the San Francisco conference that this Human Rights Commission would prepare an International Bill of Rights and in May, 1946, the Commission was told to proceed with the writing of such a document.

In President Truman’s speech at the signing of the United Nations Charter on June 26, 1945, he said that he looked forward to the framing of an International Bill of Rights. He was picking up a theme that President Roosevelt had used in calling for “a second bill of rights.” When the United Nations talked of an “international bill of rights,” it was promising something that was very ambitious, namely, to produce a legally binding set of rights that the United Nations would enforce. Although the phrase “bill of rights” was soon replaced, the idea of two kinds of human rights, political and economic, persisted, especially given the conflict between the United States and the Soviet Union.

Statements of Human Rights

A brief excursion into the difficulty of stating human rights will be helpful for understanding what the authors of the Universal Declaration of Human Rights struggled with. In June, 1947, the Executive Board of the American Anthropological Association sent a letter to the Human Rights Commission. The anthropologists opposed “a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America.” They argued that the discussion must “take into account the individual as a member of the social group of which he is a part.”333 Their concern was well-founded. Coincidentally, in that same month the writing committee had changed the name of its document from “international declaration” to “universal declaration.”

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