Put another way, I had to transition mentally from wading in a festival of genius to confronting a chaos of armed groups committing the most horrific human rights violations; where thousands of people, mainly migrants, are subjected to slavery, trafficking and sexual violence, and almost anyone may be the object of arbitrary violence.
Peering into the future, one minute, and then landing in some distant past the next. And yet, my Office and I are very relevant to both contexts. Universal human rights law needs to be applied in both of these situations.
Both demand the anchoring force of principles, for conscience and practical guidance — a deeper consciousness of rights. Last week, I was in Guatemala and El Salvador.
In Guatemala I was astonished to learn that This calls into question the quality of leadership and the priorities of the state. There is simply no excuse for it. Were we to abandon universal human rights, and embrace absolute sovereignty, by what standard would we hold them to account?
The Guatemalan people were also still reeling from their equivalent of the Grenfell Tower fire. It occurred at night and the girls had been locked in. I met the mother of one of the victims who had succumbed to the flames and she told me; in the hours following the fire, no political leader came to console her, there was no phone call, or even a letter at a later date. The only thing she received from the state was a coffin in which to bury her daughter.
The indifference was callous, though these days not extraordinary. In El Salvador, I experienced a deeply shocking example of human cruelty. All said they had suffered miscarriages or other obstetric emergencies; but they had been arrested and handcuffed, some while in emergency care, and sent to prison. The country has an absolute prohibition on abortions, no exceptions. And the society appears to be supportive of this and unyielding. In their suffering, these girls were noble in bearing.
I do not mind telling you, we all broke down, my assistants, the interpreters — all of us, weeping. Not one girl out of the approximately 85 similar cases in the country, comes from a background of privilege. All the girls convicted are poor. As an ambassador said to me later, in Salvador it is a crime to be poor.
When the entire weight of a country, feral and menacing, falls like an axe on an illiterate young woman of humble station with no means to mount a proper defence, it brings home to me, and with terrific force, the unchallengeable need for universal rights. Do not dare to tell me human rights are not universal. Do not dare! Could anyone look those women in the eye and say they do not deserve equal, universal rights. It is easy to criticize universal rights from afar, but not when you are facing the victims of deep injustice — victims of deprivation, discrimination and violence.
Tragically, the list is very long — the case for me is made. Human rights face a stress test today. And the pressure is upon us. We face a bare-knuckled, multi-directional brawl about the legitimacy and necessity of rights. With the departure of the World War II generation, and the dimming of memory, the growing unknowing as to why this rights architecture came to exist in the first place, means a decisive moment will soon be reached.
We will need to mobilize a much larger community to defend our collective rights. And we must do so quickly if we are to preserve the Universal Declaration. A Declaration conceived and drafted by the likes of Cassin, a Westerner it is true, but — and here is another significant wrinkle, a Declaration, and a set of laws, which would not have come about had it not been for the insistence of countries like Costa Rica, Jamaica, Ghana and the Philippines.
Without them, there would have been no universal rights agenda, a point neglected in much of the Western historiography on the subject. And this brings me to my last crucial point, summing up our principal shortcomings as a movement. Our inability over the decades past to communicate to a wider audience, comprehensibly, simply, humbly, the supreme importance of universal human rights, has left the door open to the enemies of rights.
The claim from them, that human rights are simply a vehicle for Western values and interests has stifled progress and cut off the formation of a broader popular base for rights world-wide. On 10 December, we will kick off in Paris a year-long campaign of celebration of the Universal Declaration, leading up to its seventieth anniversary in It will be a campaign of defiance. We want it to be your campaign too.
One last anecdote. Until recently, we had a colleague working with us in Geneva, on loan from Stanford. He was both a chemical engineer and an iT specialist; a post-graduate; a polymath, much like my colleague on Y staircase — and most important to me, and I suspect to him too, was the fact he was a human rights defender. But the norm that forbids the crime against humanity had been generally understood at least since the s, and was — as the French say — by its nature an integral part of the law.
We see the same thing with respect to the International Criminal Tribunals for Yugoslavia and Rwanda, who exist under charters written after the atrocities had been committed.
And, we must be reminded, no official including a President is immune from prosecution in a proper tribunal for violating these norms. That has been the lesson of the Yugoslavia and Rwanda tribunal as well as the momentous decision of the British House of Lords in the Pinochet case, where I was honored to assist the prosecuting counsel in England and Spain.
Indeed, there was an interesting sidelight on the Pinochet case that I want to share with you. After the second House of Lords judgment had affirmed that Pinochet was subject to extradition, the next step was a hearing before the Metropolitan Magistrate in Bow Street. The courtroom is fairly new. The magistrate in the case was Roland Bartle, known to be conservative and indeed an acquaintance of Margaret Thatcher.
In his opinion upholding extradition, Magistrate Bartle began by deploring efforts to influence him and to predict his judgment. He then spoke of. This development may be said to presage the day when, for the purposes of extradition, there will be one law for one world. Thirty years ago, many if not most American legal scholars denied that there could be so-called jus cogens , or peremptory, norms that would bind state actors even when their own sovereign opted out of a particular norm.
Today, American legal opinion has caught up with the rest of the world on that score. There are peremptory and non-derogable norms. Of course, not all norms can be enforced against all violators in all tribunals. The movement towards universal jurisdiction has made great strides, but has its limits.
For example, in , a Belgian court opened a criminal proceeding for crimes against humanity against Mr.
Abdoulaye Yerodia, who was at that time Foreign Minister of the Congo. The ICJ majority held that the Congo minister was immune from prosecution in a Belgian court for crimes committed in the Congo.
The decision was somewhat troubling to those who have an expansive idea of universal jurisdiction, and would allow any national tribunal to try any offender for any human rights violation, no matter where committed and no matter the nationality of the offender or victim. As for me, I agree with the ICJ majority, though perhaps not with all the reasoning of the various opinions. I was particularly struck by the opinion of the Congolese judge, who wrote compellingly and with one might say a raised eyebrow.
He was struck by the irony: Belgium is going to give human rights lessons to the Congo? The basic holding of the ICJ was that the defendant possessed some sort of immunity from prosecution in Belgium for the offense charged.
That holding was not a rejection of universal and peremptory norms, nor of a very broad reading of the jurisdiction to prescribe such norms and a jurisdiction to adjudicate their alleged violation. After all, as I have noted, the British House of Lords, and later the Bow Street magistrate, allowed the extradition of former President Pinochet, and the courts of Spain stood ready to try him. In that case, there were Spanish victims.
Henry Kissinger has written an essay attacking the very idea of universal jurisdiction. However, in that essay, he acknowledges that it would be entirely appropriate to try Augusto Pinochet in Chile for tortures, disappearances and murders that violated peremptory norms of the law of nations. Of course, Dr. Strong evidence shows that then National Security Adviser Kissinger participated in planning, financing, and authorizing the kidnapping and murder of General Rene Schneider, commander in chief of the Chilean armed forces, in This was done in order to provoke a coup in Chile or at least forestall the democratic election of a socialist President there.
Kissinger has so far convinced United States courts that his complicity is nonjusticiable and that he is immune from being sued anywhere, in any tribunal, for his conduct. The same international consensus of which I speak should drive article three judging in these cases, supported of course by treaty law and Congressional enactment.
I have tried to describe a transnational movement towards recognition and enforcement of human rights norms. I have tried to show that the United States Supreme Court has cited and discussed transnational legal principles, and has done so in cases involving fundamental social issues.
I turn now to focus on constitutional criminal jurisprudence in a transnational setting. Quickly, for the hour grows late, I will come back to a way of seeing the 8th amendment.
Simmons , I was puzzled. At first, I saw that the criticism was coming from right-wing legislators touting xenophobic and jingoistic slogans to please some of their constituents. I was surprised to see serious smart people raising concerns. After all, the American constitution, in addition to being based on foreign ideas, has itself been an example and inspiration in many countries. Supreme Court decisions applying the basic ideas in the constitution are cited by national and transnational tribunals.
I recall vividly being at the criminal science institute in Siracusa in I was co-chair of a session to draft an agreed statement on basic norms of criminal procedure. The participants were representatives from Poland, Czechoslovakia, Rumania, Bulgaria, and Hungary as well as from Western European countries.
The other co-chair and I presided and served as translators between French and English — the two official languages of the conference. Our statement, which took only one day to draft, embodied many ideas from United States Supreme Court decisions construing the bill of rights, as well as from European Court of Human Rights decisions. The same regard, and the same kind of borrowing, has taken place elsewhere.
Indeed, I have been told that the Latin American concept of judicial review in human rights matters, known as amparo, owes a great deal to Marbury v. You see, many jurists recognize that ideas like judicial review of detention, limits on search and seizure, the right to effective assistance of counsel and to private communication with counsel, fair trial, and regulation of police questioning are valid and important no matter where in the world you happen to live.
This centuries-old process of defining and enforcing these rights goes on transnationally. Are they so arrogant, or so ignorant of how examples work, to believe that the flow of ideas is or should be all one way? By the time of his decision, Spain had abolished the slave trade and freed the slaves.
The international consensus against slavery, that did not exist when The Antelope was decided in , had matured. Justice Story did not hold that this consensus dictated freedom for the Africans aboard The Amistad.
Rather, he used it as a crucial guide to interpretation of important language in the treaty with Spain. Beyond Roper and its issues, there lie the lessons that courts must help us learn. I mentioned Hamdi v. To the Supreme Court, the government argued that one had to detain Hamdi without review of his confinement because he was so dangerous and the national security required it.
To this contention, the Court replied,. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.
Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. It is, I think, all of a piece. Cheney and Rumsfeld display this alarming moral obliquity about torture.
Gonzales claims to be innocent of even the most basic understanding of the fourth amendment and its warrant clause; whoever said that justice should be blind did not mean that the Department of Justice should be blind. Right-wing commentators deny that norms exist, grow and change in an international community.
Bush and his advisers tell us lies and take the country to a war that pours our blood and treasure into the oil-rich sands of Iraq, and so inflames the Islamic world that any rapprochement seems further away than ever.
I went to New York recently. The UN is still on the East River. But of course for Bush, Cheney, Rumsfeld, Rice, Gonzales and Perle, trying to explain the peremptory norms of human rights is like explaining a sundial to a bat. As lawyers litigating for human rights, we must have the knowledge, dedication and skill to navigate through the system that calls itself justice.
On dark nights, as C. Lewis reminded us, we will give more for guidance as to the two or three steps ahead than for a vision of the far horizon. Yet we do carry that vision. It is as natural to us as walking. When first we learned to walk, we had to think through how each muscle would work in sequence to get us on our feet and moving.
Now the process is inherent, automatic, and so should be the sense that we participate in this transnational historical process, this search for justice. We validate our own struggle, we critically examine the process we are in, from a stance that is necessarily, legitimately, outside ourselves and outside the narrow limits that our opponents seek to impose upon us.
As I suggested before, we validate our struggle with a theory of history that looks forward as well as back. They are called anarchists and they believe that the restrictions created by even a relatively individualist society like in the West are still too burdensome to be ethical.
Clearly they are at the extreme end but different people and cultures draw that line in different places. Kropotkin found that moral standards are developed to protect the group or the society from disintegration, as in proscribing murder, rape, adultery, theft etc. As such, moral standards have evolutionary significance to the extent that they protect the group from selective pressures.
If the moral standards are deficient, the group may fail. Human beings are entangled with their egos, instead of serving authentic values. Morality must be universal and objective to be meaningful and valid — applying to everyone at all times. There is universal law and there is universal morality. Any meaningful kind of morality must be universal. If everyone is free to follow their own rules, then there are effectively no rules at all.
Kant lets the Nazis in to take the Jews from his attic, and the utilitarians sleep soundly in Omelas.
You do not have to love your family if they abused and abandoned you though many do anyway. The examples given may have holes, I agree. Nevertheless, I would still contest that a universal morality does exist. Take murder for example. You could argue that different cultures have different views of killing another human being. After all, the Aztecs made human sacrifices and nations go to war with each other all the time. However, these examples do not glorify murder, quite the opposite.
The deaths in any given killing are viewed by the killer as a necessary evil, because humans have a tendency not to differ on the rightness or wrongness of murder itself, but rather make excuses and exceptions to the rule of murder being wrong. Additional examples include peace, which is an ideal we wish to uphold but violate out of what we feel is necessity, and honesty, where lying is looked down upon but is still done in the name of some greater goal.
You make universal morality out to be a straw man by saying that exceptions or gray areas in universal moral ideals make those moral ideals not universal. Not so fast Massimo Piglucci. There are plenty of other social animals. And other animals appear to act rationally, in the sense of using efficient means to achieve their ends, plus most animals avoid harming themselves. There are many competing philosophical versions of morality as there are competing religious versions of morality, but nothing that all people at all times accept, nothing definitive.
Why not bypass philosophy and religion and look at the unique biology, especially the ethology of humans. Perhaps that is where we will find something common to all humans.
Animals thrive without morality but amoral humans often end up destroying themselves and sometimes their entire society.
Psychopathic apes are not a problem in ape society they are the alpha dominants. Humans have more children, and human children have longer childhoods, with longer periods of neuroplasticity because they are protected by moral systems. Humans flourish and have more advanced cooperation because they live in a moral system. All moral systems are constraints on dominance and ways of excluding bullies and cheaters from social life. The social virtues and moral principles can thrive and develop because a moral system is already in place.
We might suppose that in the matter of taking life all peoples would agree on condemnation. On the contrary, in the matter of homicide, it may be held that one kills by custom his two children, or that a husband has a right of life and death over his wife or that it is the duty of the child to kill his parents before they are old.
It may be the case that those are killed who steal fowl, or who cut their upper teeth first, or who are born on Wednesday. Among some peoples, a person suffers torment at having caused an accidental death, among others, it is a matter of no consequence.
Suicide may also be a light matter, the recourse of anyone who has suffered some slight rebuff, an act that constantly occurs in a tribe. It may be the highest and noblest act a wise man can perform. The very tale of it, on the other hand, may be a matter for incredulous mirth, and the act itself, impossible to conceive as human possibility.
Or it may be a crime punishable by law, or regarded as a sin against the gods. Other anthropologists point to a range of practices considered morally acceptable in some societies but condemned in others, including infanticide, genocide, polygamy, racism, sexism, and torture.
Such differences may lead us to question whether there are any universal moral principles or whether morality is merely a matter of "cultural taste.
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