The major changes in the human rights field

by Basil Fernando

" Without the respect for basic civil rights, the poor cannot have an environment within which they could participate in the processes of dealing with improvements of their own lives."

(January 28, Hong Kong, Sri Lanka Guardian) There have been a number of developments in the human rights and international justice fields over the past 5-10 years. However, some very serious problems in the field of human rights and international justice have concurrently arisen.

In the human rights field, the founding of the international criminal court was a great achievement. With this, there has been more awareness regarding the realization of the possibility of justice for serious human rights abuses and consequently, many studies, trainings and educational materials have been formulated.

On the other hand, from the point of view of international justice, some very serious problems have come to light. The international framework (i.e. the United Nations) that has been used to deal with human rights abuses since 1948 has been undermined. The undermining of the UN is extremely disturbing; several eminent human rights experts have noted that this undermining could result in a serious crisis. The weakening of the UN has occurred for several reasons. Firstly, since the United States became engaged in diplomatic confrontations with other countries, the country has played a less prominent role within the United Nations’ human rights field. The United States has felt threatened on several fronts, particularly after the events of 9/11, and has become more defensive in the promotion of international justice and human rights. Moreover, the accusation of duplicity and double standards has become a common propaganda tool in the hands of those who have long attacke d the international justice field and United Nations’ human rights system. This has created a crisis of leadership within the United Nations’ human rights institutions, as well as a moral crisis on a larger scale.

Torture, which was once seen as an absolutely unacceptable act, increased during the 9/11 period. Even though numerous governments expressed agreement with the Convention Against Torture (CAT) there has not been a breakthrough in the elimination of torture on a practical level. The structural problems and administrative inadequacies which hamper the development of the rule of law in many countries has contributed to this, as well as a number of political and ideological factors. While once the absolute prohibition against torture was a settled issue, the western world has been questioning this absolute indictment of torture, creating a major problem for human rights and international justice on a global level.

While discussing issues of human rights and international justice, it is necessary to understand the impact of vast changes in communication on these systems. These changes have altered the very nature of knowledge and the way it is shared. Technological achievements in the area of communication have made possible an unprecedented informational exchange. There have been revelations of human rights violations through mediums of camera and sound recording, creating a wealth of information on intricacies of issues that were previously unknown. This generation of knowledge and information is undoubtedly one of the greatest achievements of our time.

However, this also means that more and more people are demanding justice. This cry for justice at a societal and national level requires more than what the systems of justice can manage. This is largely due to the fact that these systems were created before these technologies came into play. But ultimately, the systems appear increasingly inefficient and incapable of meeting the needs of the people, and loss of faith in the larger justice system ensues.

These technologies have also worked to expose the inadequacies of systems of justice on both a local and international level. Indeed, underdeveloped justice systems have been a major problem in countries outside of Western Europe and the United States. In many of these countries, the development of justice systems has been hampered by issues such as feudalism, colonialism and other such problems. The absence of the law, and the non-implementation of existing laws are a major issue in countries around the world. Recently, the vacuum of justice has been magnified because the increasing number of people who seek justice through these new technologies are placing great strain on these systems. The increase of technological devices that allow people to communicate with state officials and institutions about human rights abuses means that there are more claimants for justice and more sophisticated claims for justice. Unfortunately, there has been little resource development to k eep up with these developments in the mechanisms of justice. Increasingly overcrowded courts, delays in justice mechanisms and inadequate budgeting have created a situation of chaos in terms of the administration of justice in many countries. This dearth of services can also be seen as international courts and UN mechanisms strain to keep up with the influx of cases brought forward with mass communication.

Another issue is that claims that were not made forcefully in the past are being made with great fervor today. One issue that comes to mind is that of gender justice. Organizations and societies are becoming increasingly vocal about the rights, or lack thereof, of women. There has been a great deal of development on a theoretical level, but true implementation is lacking as these issues have not been properly absorbed into local and international justice frameworks. Child rights face a similar story, as do ecological and environmental rights. And although these problems have been articulated more forcefully, true development where these issues are dealt with as fundamental rights violations is yet to come. This is largely because complainants of such issues do not know where they have to report these violations. Groups within these fields understand the problems but do not have the means by which to adequately respond to the people.

There are also problems of justice arising in the development sphere. There have been an increasing number of claims of injustice where people find themselves to be deeply impoverished and marginalized in relation to development paradigms. Unfortunately, there has been no significant work in alleviating this problem. Often, these injustices are violent acts in response to the incapacity of systems to realize and respond to the initial injustices faced by the people. Those sections of society that have been conscious of their rights in the past and feel that they now have no avenues to deal with the injustices they face, owing to the new demands placed on the systems, are taking to armed conflict to express their frustration. The increase of armed conflict as well as the development of counter-strategies by the state in an attempt to maintain law and order has resulted in extreme anti-terrorism laws which undermine the basic frameworks and established standards of justice i n developed countries. In developing countries, these anti-terrorism laws have become a virtual nightmare; systems of justice have been abandoned and the executive expands its powers to such an extent that the power of the judiciary is severely reduced, even negated. This has become a major threat to all forms of justice within local networks as well as on an international level.

Another major area of concern for human rights is that the deprivation of civil liberties is itself a cause of poverty. Development theories completely ignore this aspect. There is even a belief, quite strongly propagated, that development can improve the civil rights situations and therefore that what is more important in dealing with poverty is to impose development strategies even at the risk of seriously undermining democratic and rule of law systems and virtually undermining all of the basic civil rights.

The increase of executive power to the detriment of destroying or at least seriously undermining the separation of powers principle is quite visible in many of the political experiments in less developed countries. Even the very notion of constitutionalism is displaced to give more power to the executive in order to decide on policies and strategies without the constraints imposed by a constitution. This way of undermining the judicial institutions removes the possibility of protection of personal and proprietary rights of individuals. In fact, the individual is expected to submit himself to grandiose schemes proposed by the executive with the hope that these schemes will result in economic developments. Thus, individual freedoms themselves are seen as an obstruction to development.

Dealing with resistance and dissent by disproportionate application of force results in forced disappearances, use of torture and ill-treatment, various sorts of extrajudicial killings, powers to arrest and detain persons for indefinite periods and a virtual denial of fair trial. Naturally, under these circumstances freedom of expression, publication and association and the right to elect a government of one’s choice are sacrificed. These attacks on individual rights and systems of protection of rights, instead of overcoming problems of poverty, in fact increase the spread of poverty.

The poor, who are unable to resist the onslaught on their personal and property rights, lose even the little they have and are forced down into the worst levels of poverty. The large masses that are being displaced from their jobs and often also from their living habitat are a new mass in the poorest groups. As the state finds it difficult to control the poorest, the repressive mechanism becomes even worse. The overcrowding of prisons is often the visible symbol of such repression.

Without the respect for basic civil rights, the poor cannot have an environment within which they could participate in the processes of dealing with improvements of their own lives. Thus, a major concern in poverty alleviation has to be the creation of the environment in which the poor can participate and interact with society without fear and intimidation. Thus, the understanding that deprivation of civil liberties itself is a cause of poverty needs to be brought into the development discourse. This would of course create a considerable conflict with the existing body of development theory, which has ignored the aspect of civil liberties as a relevant consideration in dealing with problems of poverty.

( W.J. Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist, editor. He can be reached at basil.fernando@ahrc.asia)