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Human Rights, Democracy, and the Inescapability of Politics; or, Human Dignity Thick and Thin

Published online by Cambridge University Press:  04 July 2014

Yehudah Mirsky
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Abstract

The essay places the ICJ opinion in a broader legal and political context and argues that the failure to distinguish between democratic and non-democratic regimes characterizing the ICJ advisory opinion reflects broader trends with potentially ruinous consequences for the enterprise of human rights promotion itself. The ICJ opinion's willful ignoring of Israel's democratic character yielded a tendentious and inconsistent ruling. By contrast the Israel High Court of Justice's decision invalidating portions of Israel's security wall reflects a healthy understanding of a democracy's needs and limitations, as reflected in that court's proportionality standard of review. The ICJ willingly blurred crucial distinctions between democratic regimes that genuinely adhere, however imperfectly, to principles of human rights in their own governance, and those states and actors that do not, a distinction made all the more imperative by the events of September 11.

The judicialization of human rights in the post-Cold War era takes place against the background of a tensile relationship between human rights advocacy and democracy promotion during the Cold War. While human rights represent an essentially legal idea, democracy a political idea. In closing, the essay lays out one basic, hopefully workable, conceptual division of labor between human rights and democracy as complementary elements of a broader project of human dignity, in which human rights represents a “thin” universal conception of human dignity, while democracy offers a process whereby that conception can be “thickened” in various political, social and cultural contexts around the globe.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 358 - 377
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Yehudah Mirsky, Special Advisor, US Department of State, Bureau of Democracy, Human Rights and Labor, 1994-1997; currently research fellow, Van Leer Institute, Jerusalem, Melamed Fellow in Religion, Harvard University.

References

1 The ICJ opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, can be found in this issue: “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2005) Is.L.R. 17 Google Scholar. A translation of the decision of the Israeli Supreme Court sitting as High Court of Justice can be found in this issue at “H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807” (2005) Is.L.R 83 Google Scholar.

Throughout I refer to the security barrier as a “wall” because it is in many places just that, and, because my criticisms of the ICJ opinion are I believe valid, irrespective of whether the barrier is more forbiddingly characterized as a “wall” than as a “fence.”

2 Gaddis, John Lewis, “Towards the Post Cold-War World” (1991) 70(2) Foreign Affairs 102–22CrossRefGoogle Scholar; this essay was reprinted in his The U.S. and the End of the Cold War (New York and Oxford, Oxford University Press, 1992)Google Scholar.

3 Barber, Benjamin, Jihad vs. McWorld (New York, Times Books/Random House, 1995)Google Scholar.

4 For a brief, recent statement of this thesis, see Eisenstadt, Samuel, Fundamentalism u-Moderniyut (Tel Aviv, Ministry of Defense/Universitah Meshuderet, 2002)Google Scholar [in Hebrew]; see also Eisenstadt, Samuel Fundamentalism, Sectarianism and Revolution (Cambridge, Cambridge University Press, 1999)Google Scholar. See also Mirsky, Yehudah, “From Fascism to Jihadism” The New Republic Online, April 10, 2002 Google Scholar.

5 The literature on globalization is vast; it bears remembering that there is not one globalization but rather, as the title of a recent book reminds us, many globalizations; see Berger, Peter L. and Huntington, Samuel P., eds. Many Globalizations: Cultural Diversity in the Contemporary World (Oxford, Oxford University Press, 2002)CrossRefGoogle Scholar.

6 Perhaps the sharpest observer of this divide, and of the vicissitudes of democracy promotion overall, is Thomas Carothers; see his recent collection Carothers, Thomas, Critical Mission: Essays on Democracy Promotion (Washington, D.C, Carnegie Endowment for International Peace, 2004)Google Scholar.

7 The Introductions for the US State Department's Annual Reports on Human Rights Practices for 1996 and 1997 explicitly recognized the shift from human rights advocacy to the cultivation of human rights institutions as a means of resolving these long-standing ambiguities.

8 See generally Power, Samantha, “A Problem from Hell”: America and the Age of Genocide (New York, Basic Books, 2002)Google Scholar; for the immediate circumstances of Milosevic's arrest, see therein 472-473.

9 This point is made in the closing pages of the finest survey of the history of war crimes tribunals; from the Napoleonic era to the present: Bass, Gary, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, Princeton University Press, 2000) 283–304 CrossRefGoogle Scholar.

10 See Alvarez, Jose E., “The New Dispute Settlers: (Half) Truths and Consequences” (2003) 38 Tex. Int'l L.J. 405 Google Scholar.

11 Slaughter, Anne-Marie, A New World Order (Princeton, Princeton University Press, 2004)Google Scholar.

12 For the Rome Statute of the International Criminal court, July 17, 1998, see UN Doc. A/CONF. 183/9 (1998), reprinted in 37 I.L.M. 999. For its ratification status, see http://untreary.un.org/English/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp The workings of this provision are described in Holmes, John, “Jurisdiction and Admissibility” in Lee, Roy S., ed. with Friman, Hakan, de Gurmendi, Silvia A. Fernandez, von Hebel, Herman, Robinson, Darryl, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001) 321-348, esp. 334–347 Google Scholar.

13 Ratner, Steven R., “The International Criminal Court and the Limits of Global Judicialization” (2003) 38 Tex. Int'l L.J. 445, 453 Google Scholar.

14 This point is developed at length by Young, Ernest A., “The Trouble with Global Constitutionalism” (2003) 38 Tex Int'l L.J. 527 Google Scholar.

15 A brief, well-argued survey of these is to be found at Sloss, David, Hard-Nosed Realism and U.S. Human Rights Policy, (2002) 46 St. Louis U. L.J. 431 Google Scholar. An exhaustive survey is to be found in the three-volume study, Kritz, Neil, ed. Transitional Justice (Washington, DC, U.S. Institute of Peace Press, 1995)Google Scholar. The jurisprudential foundations of, and the distinctions among, various types of transitional justice – criminal, historical, reparatory, administrative and constitutional – are discussed at length in Teitel, Ruti G., Transitional Justice (New York, Oxford University Press, 2000)Google Scholar. A deeply moving, hauntingly rendered journalistic account of the moral and human dilemmas involved in the decision to grant amnesty in exchange for truth commissions is Weschler, Lawrence, A Miracle, A Universe: Settling Accounts with Torturers (New York, Pantheon, 1988)Google Scholar.

16 This point is made at length in Rosenberg, Tina, The Haunted Land: Facing Europe's Ghosts After Communism (New York, Vintage/Random House, 1996)Google Scholar.

17 The Russian authorities calamitous mishandling of Chechen terror, culminating in the atrocities of Beslan, would seem to bear this out. This argument was forcefully put forward by Gove, Michael, “It is a Short Distance from Beslan to Belsen” London Times Online, September 7, 2004 Google Scholar.

18 The destabilizing dimensions of democratization have been explored in a series of articles by Mansfield, Edward D. and Snyder, Jack, gathered in their collection Electing to Fight: Why Emerging Democracies Go to War (Cambridge, MIT Press, 2005)CrossRefGoogle Scholar.

19 I have discussed these trends in “Tahat La-Harisot: Postmodernism ve-September 11” Eretz Acheret no. 15, Spring 2003, 26–29 Google Scholar.

20 A detailed record of the events leading up to, and taking place at, Durban is Schoenberg, Harris O., “Demonization in Durban; The World Conference Against Racism” (2000) American Jewish Yearbook 85–111 Google Scholar.

21 On the impotence of Chile's judiciary in the face of Pinochet's repression of “leftists” see Constable, Pamela and Valenzuela, Arturo, A Nation of Enemies: Chile Under Pinochet (New York, Norton, 1991) 115–139 and esp. 122–130 Google Scholar. For the argument that Chile's conservative judiciary tacitly legitimated the coup against Allende, see Kaufman, Edy, Crisis in Allende's Chile: New Perspectives (New York and Westport, Praeger, 1988) 180 Google Scholar. Martin Weinstein has called attention to the absence in Uruguay of “anything remotely resembling the rule of law” in response to the military's “paranoid quest for national security;” see his Uruguay: Democracy at the Crossroads (Boulder, Westview, 1988) 45 Google Scholar. On the weakness of Peru's judiciary and the concomitant ease with which Alberto Fujimori was able to control it, see Rospigliosi, Fernando, “Democracy's Bleak Prospects,” in Tulchin, Joseph S. and Black, Gary, eds. Peru in Crisis: Dictatorship or Democracy? (Boulder, Lynne Rienner, 1994) 35-61, and esp. 39–40 Google Scholar. The manifold failures of the judiciary during the Argentinian “Dirty War” of 1976-1983 are detailed at length in chapter 3 of Nunca Mas, the report of the Argentine National Commission on the Disappeared: Nunca Mas: Informe de la Comision Nacional Sobre La Desparicion De Personas (Buenos Aires, Editorial Universitaria de Buenos Aires, 1984) [in Spanish] 391–441 Google Scholar, and in Hebrew translation, Le-‘Olam Lo 'Od (Buenos Aires, AMIA/Universidad de Buenos Aires, 1998) 329–372 Google Scholar. An English translation is also available: Nunca Mas: Report of the Argentine National Commission of the Disappeared, 6th ed. (New York, Norton, 1998)Google Scholar.

22 Bilsky, Leora, “Suicidal Terror, Radical Evil, and the Distortion of Politics and Law” (2004) 5 Theoretical Inquiries in Law 131, 161 CrossRefGoogle Scholar.

23 In the present case, the President of the Court, Shi Jiuyong, represents none other than the People's Republic of China; the other members of the panel represent, respectively, Brazil, Egypt, France, Germany, Japan, Jordan, Madagascar, the Netherlands, the Russian Federation, Sierra Leone, Slovakia, the United Kingdom, the United States and Venezuela.

24 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 35 ILM 809 & 1343 (1996) and 1996 I.C.J. 66.

25 My reading of that opinion draws on Matheson, Michael J., “The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons,” Am. J. Int'l L. Rev. (1997) 91 (3) 417–435 CrossRefGoogle Scholar; this crux is discussed therein at 424. A lengthy bibliography on that opinion may be found at www.icnp.org/pubs/biblio.htm.

26 ICJ opinion, supra n. 1 at paras. 13, 16, 38, 40, 41, 44, 51, 61, 89, 105, 157.

27 ICJ Opinion, supra n. 1, at para. 13, Judge Koojmans writes in his concurrence: “Although the Court certainly has taken into account the arguments put forward by Israel and has dealt with them in a considerate manner, I am of the view that the present opinion could have reflected in a more satisfactory way the interests at stake for all those living in the region. The rather oblique references to terrorist acts which can be found at several places in the Opinion, are in my view not sufficient for this purpose. An advisory opinion is brought to the attention of political organ of the United Nations and is destined to have an effect on a political process. It should therefore throughout its reasoning and up till the operative part reflect the legitimate interests and responsibilities of all those involved and not merely refer to them in a concluding paragraph” (Ibid., at para. 162).

28 Ibid., at para 149.

29 Ibid., at par. 64.

30 The Court there contends that Palestinian responsibility is irrelevant insofar as the jurisdictional basis of the advisory opinion is the request for one by UNGA. The Court's lone, passing, elliptical reference to the Oslo Accords in ibid., at par. 77 mentions Israeli obligations, but not those of Palestinians.

31 It is by no means inconceivable that this ruling was aimed not only at Israel but at the U.S's own counter-terror efforts as well.

32 Ibid., at paras. 155-156.

33 Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes (New York, Oxford University Press, 1997) 134 Google Scholar. The invocation of self-determination as an erga omnes obligation in the East Timor case cited by ICJ in supra n. 1 at para. 156 was not a majority opinion, but a dissent; Ragazzi notes that the Court has seemingly rejected the characterization of self-determination as erga omnes as part of its general tailoring of the doctrine to the most universally accepted obligations. Ragazzi is Senior Counsel at the World Bank's ESSD and International Law Divisions.

34 Ibid., at 183.

35 Ibid., at 212.

36 Cmiel, Kenneth, “The Recent History of Human Rights” (2004) 109(1) American Historical Review 117-135, 125–126 CrossRefGoogle Scholar.

37 See Berlin, Isaiah, “Two Concepts of Liberty,” in Berlin, Isaiah, ed. Four Essays on Liberty (New York, Oxford University Press, 1969)Google Scholar.

38 This is reminiscent of the old saw that academic moral philosophy often seems like traffic regulations which assume a world in which people have wings.; my thanks to Dr. Joshua Margolis for sharing this with me.

39 See Walzer, Michael, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, University of Notre Dame Press, 1994)CrossRefGoogle Scholar.

In terms of traditional Jewish jurisprudence, there may be an interesting corollary to “thin morality” in the great medieval halakhist Menahem Ha-Meiri's notion of “umot ha-gedurot be-darkhei ha-dat”; see the discussion of Halbertal, Moshe, Beyn Torah Le-Hokhmah: Rabbi Menahem Ha-Meiri u-Va'alei Ha-Halakhah Ha-Maimonit be-Provence (Jerusalem, Hebrew University/Magnes Press, 2000) 80–108 Google Scholar [in Hebrew].

40 Ignatieff, Michael, Human Rights as Politics and Idolatry (Princeton, Princeton University Press, 2001) 54–55 CrossRefGoogle Scholar. (The volume contains responses to Ignatieff by K. Anthony Appiah, Amy Guttman, David A. Hollinger, Thomas W. Laqueur and Diane Orentlicher.)

41 This point is particularly well-made by Diane Orentlicher in her comments to Ignatieff, “Relativism and Religion” ibid., at 141-158.

42 Little, David, “The Nature and Basis of Human Rights” in Outka, Gene and Reeder, John P., eds., Prospects for a Common Morality (Princeton, Princeton University Press, 1993) 73–92 Google Scholar. A powerful appeal to this moral intuitionism is Leff, Arthur, “Unspeakable Ethics, Unnatural Law” (1979) Duke L J. 1229 CrossRefGoogle Scholar.

43 It can be argued, moreover, that an emphasis on agency as such may itself be insufficient to secure the rights of those whose agency is inherently imperfect or impaired, such as small children or the handicapped. Indeed the writings of the celebrated ethicist Peter Singer in favor of a policy of euthanasia for the latter amply demonstrate the limitations of a focus on agency without more. For a searching critique of Singer see Berkowitz, Peter, “Other People's Mothers” The New Republic, January 10, 2000,. 27–37 Google Scholar.

44 Booth, Ken, “Human Wrongs in International Relations” International Affairs, 71 (1) January 1995, 103–126 CrossRefGoogle Scholar.

45 Shklar, Judith, “The Liberalism of Fear” in Rosenblum, Nancy, ed., Liberalism and the Moral Life (Cambridge, Harvard University Press, 1989) 21–39 Google Scholar; Mirsky, Yehudah, “Faith and the Reasonable Man” The New Leader, Dec. 27, 1993, 21–23 Google Scholar. A brief, helpful survey of Shklar's thought and its reverberations is Miller, James, “Pyrrhonic Liberalism” (2000) 28 (6) Political Theory 810–821 CrossRefGoogle Scholar.

46 Diane Orentlicher, in her response to Ignatieff, calls for a “procedural inclusiveness” coupled with “transnational collaboration” both involving NGOs and other non-state actors, as the preferred means of promoting human rights principles worldwide.

47 A large body of literature has sprung up in recent years on the concept of civil society and its relation to democratization. This author discussed the issue in “Democratic Politics, Democratic Culture” (1993) 37 Orbis 567–580 CrossRefGoogle Scholar.

48 It has been suggested that this difference be explicitly recognized in a formal Alliance of Democracies that, building on the experience of NATO and the OSCE, would function as a trans-regional grouping promoting democratic interests and values, most recently by Daalder, Ivo and Lindsay, James, “An Alliance of Democracies” Washington Post May 23, 2004 Google Scholar. Daalder was a foreign policy official in the Clinton Administration, currently at the Brookings Institution; Lindsay is Vice President for Policy Studies at Brookings. This writer worked on similar initiatives in the US State Department in the mid-1990s.

49 In 1994, this writer was intimately involved in the US Government's first report to the UN on its own adherence to the International Covenant on Civil and Political Rights, a report whose self-critical tone garnered much criticism at the time.

50 Koh, Harold Hongju, A United States Human Rights Policy for the 21st Century (2002) 46 St. Louis U. L.J. 293, 330 Google Scholar. Dean Koh's tenure as Assistant Secretary began after this writer left the US government.

51 This point is made by Walzer, Michael, Thick and Thin (Notre Dame, Notre Dame University Press, 1996) 59–61 Google Scholar. An exposition of a culturally specific Israeli democracy, situated within the continuum of democratic practices world wide is Jacobson, Alexander and Rubinstein, Amnon, Israel and the Family of Nations (Tel Aviv, Shocken Publishing, 2003)Google Scholar [in Hebrew].

52 Ignatieff, Michael strongly made this point in “Is the Human Rights Era Ending?” New York Tunes, February 5, 2002 Google Scholar.

As this essay went to press I became aware of Jed Rubenfeld's essay contrasting domestic and international constitutionalism, see “The Two World Orders” (Autumn 2003) Wilson Quarterly Google Scholar, some of whose arguments concur with mine. Fuller discussion of his provocative thesis will have to wait for another day.