Quo Vadis: Where Does the Human Rights Movement Go from Here?

• Publication year: 2019
• Citation: Vol. 47 No. 2

QUO VADIS: WHERE DOES THE HUMAN RIGHTS MOVEMENT GO FROM HERE?

David Tolbert^*

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Ford Foundation Fellow
Visiting Scholar, Sanford School of Public Policy
Duke University
Dean Rusk International Center
University of Georgia
2 October2018

Thanks to the Director of the Dean Rusk International Center, Kathleen Doty, for her kind introduction and to all of you for being here. I am also grateful for Professor Diane Amann's presence here today, whose work I greatly respect. We first met over twenty years ago in Serbia and have crossed paths over the years.

I will be discussing the "human rights movement", by which I am broadly referring primarily to non-governmental groups (such as, e.g., Human Rights Watch (HRW), Amnesty International (AI)), and a myriad of smaller organizations across the planet) but also academics, practitioners, perhaps foundations and other supporters whose goal is the advancement and protection of human rights. These rights are established by international law. This body of law includes, e.g., the International Covenants on Civil and Political Rights (ICCPR)¹ and Economic, Social and Cultural Rights (ICESCR),² the Convention on the Prevention of All forms of Discrimination Against Women

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(CEDAW),³ and the Convention on the Elimination of all forms of Racial Discrimination (CERD).⁴ Moreover, there are important regional human rights conventions (e.g., the Inter-American Convention of Human Rights,⁵ and the European Convention on Human Rights⁶ ) that codify human rights across a number of states parties.⁷

This movement, however defined, has clearly advanced the cause of human rights in an array of areas in past decades. On the normative level, it has incubated and supported a host of human rights treaties and legislation,⁸ as well as effective campaigns on a long list of issues, bringing attention to a wide variety of abuses and violations across the globe. These include much greater attention and action on an array of violations, e.g., on gender-based crimes, women's rights, victims' rights, abuses of children (e.g., the child solider phenomena), and torture.⁹

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Moreover, human rights organizations led the effort to establish the ad hoc Tribunals (and other criminal justice processes)¹⁰ and the creation of the International Criminal Court (ICC).¹¹ Their work also has led to encouraging developments in terms of accountability for serious human rights violations, including transitional justice measures that evolved in Latin America, South Africa and then much more broadly (in more than forty countries).¹²

However, in recent years, as then UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein ("Zeid") said: "human rights are under great threat," noting, in particular, "that the greatest threat [to human rights] is the state of civil society . . . which is in collapse in many parts [of the world]."¹³ Obviously, the election and administration in the United States under Donald Trump has been a major factor, with his disregard for international norms and strongman ways, but he is, in my view, simply the most powerful of a wide array of populists that threaten human rights. It is important to focus on the underlying causes of this phenomenon, not only those who take advantage of it.

There are also broad attacks on key institutions, and on the rule of law, by forces of illiberalism, populism and/or reaction. Professor Philip Alston, the UN Special Rapporteur on Extreme Poverty and Human Rights, says: "The world as we in the human rights movement have known it in recent years is no longer... [b]ut there has not been enough reflection by human rights advocates on the innovative thinking and creative strategizing that are urgently needed."¹⁴

This has been a gathering storm. Some years back, I posed the question: "Is the International Community Abandoning the Fight against Impunity?"¹⁵ , arguing that the winds had turned against human rights. In an ensuing online

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debate on the article with Michael Ignatieff and then High Commissioner Zeid, Ignatieff framed the issue: "Right now [in 2015], it would be fair to say that many activists believe we have not just lost momentum in the battle to end impunity and defend human rights, but gone backwards."¹⁶ It is clear that we are a long way from the heady days of 1989 when the Berlin Wall fell and "The End of History."¹⁷

This blowback against human rights is fueled by a modern variation of populism or authoritarianism. The first signs of this modern version of populism or strong man rule arose in Eastern Europe, Turkey, in a somewhat different form in Russia, and now has obviously traveled to the Philippines and other shores.¹⁸ As is clear, these tendencies have come to the fore in the United States as well, but we should bear in mind that this is a broader tendency or phenomenon that runs directly counter to the human rights movement.¹⁹ As tempting as it is to place responsibility on one person or group of leaders, we should be aware that the human rights movement and human rights per se are under threat in many places across the globe.

Some critics would put the blame on the human rights movement itself. For example, David Reiff has argued that the leading human rights organizations have taken for granted that progress on human rights would continue and failed to understand or take account adequately of the political context.²⁰ In his view, two signature developments of the human rights movement, the International Criminal Court (ICC) and the Responsibility to Protect (R2P) doctrine, were constructed on shaky foundations that did not take account of political contexts, arguing:

[I]mplicit 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... [but supporters of human rights failed to understand that the law is] . . . inseparable from politics... [Thus], for the moment, at least, Brexit, Donald

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Trump's presidency, and the steady rise of China have shattered the human rights movement's narrative that progress is inevitable.²¹

Reiff further contends that: "Both the ICC and R2P were, from the beginning, unworkable ideas for the world we live in, one in which authoritarianism is growing stronger."²² He posits that the failure of human rights groups to take full account of politics led them to hitch their wagon to R2P and the ICC, which could not deliver in the real world.²³

There is much more to the human rights movement and its agenda beyond R2P and the ICC. Moreover, while R2P does look to be dormant and unlikely to be implemented in the short term following the Libyan debacle,²⁴ that does not mean it is dead in the long term, nor does it show that human rights are somehow finished.

On the ICC, while it has hardly achieved what its supporters (like myself) would have wished, the question is the long-term effectiveness of the Court, and that question remains open. The ICC shot itself in the foot in its early days and has been ignored or attacked by powerful states.²⁵ U.S. National Security Adviser, John Bolton's recent attack on the ICC as unmoored as it was - is simply one more indication of the current American administration turning its back on human rights and accountability.²⁶ However, the ICC has moved on from some of the chaos of its early days, and recent steps by the Prosecutor may have put the Court on a better course. These include her, in my view, adroit handling of the peace agreement in Colombia;²⁷ the Prosecutor successfully seeking a referral to the ICC for the brutal attacks on the Rohingya on the grounds they have fled from Myanmar/Burma (a non-state party)

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to Bangladesh (a state ICC party)²⁸ ; and the al-Mahdi case on prosecution for destruction of cultural monuments in Libya.²⁹

While these are relatively modest steps, the ICC is hardly the dead letter that Reiff paints. Nonetheless, for the time being, big projects such as the ICC and R2P are not possible politically, and the focus should turn to building on the movement's core strengths.

Reiff also argues that the human rights movement is naive and fails to consider politics adequately in its work.³⁰ There is no doubt that politics play a central role in what human rights activists can and cannot achieve. However, most of us in the human rights movement are well aware of the political dynamics and take account of these factors in our work; assessing the political context is the first step toward trying to make a difference in a country or on an issue. The first order of business when I was President of the International Center for Transitional Justice (ICTJ) was understanding the political context and determining how we might assist. Nonetheless, human rights activists have yet to adjust to the new realities imposed by the rise of populism, authoritarianism, and even darker forces. It raises a larger question that deserves discussion of whether we need to re-think and address the question of justice and politics.

Another critic who has gained much attention of late is Samuel Moyn, currently a professor at Yale University, along with his recent book "Not Enough: Human Rights in an Unequal World."³¹ In his view, the human rights movement has utterly failed to address issues of economic inequality.³² He argues that the movement has haphazardly given limited rhetorical support to economic subsistence efforts but left economic equality off the agenda entirely.³³ He also asks the question (perhaps implies is more accurate) of whether the human rights movement is linked to the rise of neo-liberal economics or what

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he calls the "neo-liberal maelstrom" (sometimes drawing the link between human rights and neo-liberal economics in stronger formulas and at other times more as a question).³⁴

While I do not agree with a number of Moyn's claims (particularly on the supposed link between neo-liberalism economics and the human rights...