Human Rights Laws & The ‘Never Again’ justification; Part I of IV

Human Rights Laws & The ‘Never Again’ justification; Part I of IV

Introduction

At the end of this article, is a short video produced by an organisation called ‘Human-Rights-Info’. The video argues that codified human rights laws are necessary to prevent genocide. This is known as the ‘never again’ justification and was the rationale for the Universal Declaration of Human Rights (“UNDHR”), which inspired the European Convention on Human Rights (“ECHR”). See here for the full Declaration and here for the ECHR.

It is a trite proposition that laws against democide and genocide will prevent these things, to the extent that they are adhered to and/or can be effectively enforced. Yet is there something inherent about declarations that enshrine supra-national rights (i.e. rights that cannot be denied by appealing to national sovereignty) that make democide and genocide less likely to occur? I would argue to the contrary.

I will firstly consider the concept of the rule of law and its relationship to human rights; secondly the effectiveness of the various international instruments that have been enacted to protect human rights; thirdly the philosophical and jurisprudential justification for human rights laws and fourthly relevant geo-political issues surrounding human rights laws.

Human Rights and the Rule of Law         

What is the rule of law and why is it relevant to genocide and democide? I will answer the questions on the order asked.

The concept of the rule of law dates back to antiquity.[1]The rule of law is not synonymous with mere legislation and legal process. Lon Fueller identified 8 requirements for the rule of law.[2] These requirements are:

Laws must be general (#1), specifying rules prohibiting or permitting behavior of certain kinds. Laws must also be widely promulgated (#2), or publicly accessible. Publicity of laws ensures citizens know what the law requires. Laws should be prospective (#3), specifying how individuals ought to behave in the future rather than prohibiting behavior that occurred in the past. Laws must be clear (#4).  Citizens should be able to identify what the laws prohibit, permit, or require. Laws must be non-contradictory (#5). One law cannot prohibit what another law permits. Laws must not ask the impossible (#6). Nor should laws change frequently; the demands laws make on citizens should remain relatively constant (#7). Finally, there should be congruence between what written statute declare and how officials enforce those statutes (#8).

The requirement for laws to be prospective and general, is a curtailment on arbitrary power, i.e. laws cannot simply be enacted to achieve what those with the power to enact them desire. The other requirements are necessary for laws to be functional. I agree with all of Fuller’s pre-requisites, although they are probably not an exhaustive list. In so far as it is not covered by number 8, the law must be applied and enforced impartially. Additionally, no individual should be immune from the rule of law.[3]

A state ruled by a dictator with no restriction on the exercise of his power, or alternatively where the only restriction is the mere formal passing of legislation, is not governed by the rule of law.

The rule of law refers to rules governing conduct that transcend the human will; it is the antithesis of the exercise of arbitrary power. Therefore, if there are laws prohibiting genocide and democide that cannot be repealed due to the concept of the rule of law, then engendering respect for the rule of law will make genocide and democide less likely.

With the above in mind, are the human rights set out in the UNDHR and the ECHR part of the rule of law? If so then this supports the ‘never again’ justification for the existence of these instruments.

In his book ’The Rule of Law’, Lord Bingham, argues that they are, focusing on the ECHR [4] He compares the ‘thick’ and ‘thin’ definition of the rule of law and argues that a state which does not respect the rights listed within the European Convention on Human Rights (“ECHR”) is not operating within the rule of the law.[5] In support of his argument, he cites the examples of the USSR and Germany under NDSAP government, as state actors who committed large scale democide and genocide but nonetheless passed legislation to authorise their actions.[6]

As stated above, I agree that the passing of legislation is not sufficient for a state or government to be operating within the rule of law. Additionally, there are certainly specific rights listed within the ECHR and the UNDHR, such as equality before the law and the right to a fair trial that are integral to the rule of law.

However, I see no reason why a state must submit to a supra-national authority or accede to any specific legal instrument, in order to operate within the rule of law and Bingham offers no argument so support this assertion.[7] Moreover, a state can operate within the rule of law without being subject to any kind of instrument that contains a list of declared rights.

If anything, the vagueness of the UNDHR and the ECHR, is antithetical to the rule of law in particular, with Fuller’s fourth principle. For instance, article 6, provides for a right to a public hearing, unless inter alia, in the opinion of the Court this would prejudice the interests of justice. This is said to apply in special circumstances and restrictions should only be made to the extent necessary. Nonetheless the exception is vague enough to be akin to making the right to a public hearing subject to judicial discretion. On the question providing a judge with a discretion over whether a hearing is conducted in public, in an English case, Lord Shaw stated:

What has happened [the hearing of proceedings in camera/private] is a usurpation – a usurpation which could not have been allowed even as a prerogative of the Crown, and most certainly must be denied to the judges of the land. To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand”.[8]

To shift the right to a public hearing as guaranteed by the English common law to the whimsical judgement of a judge sitting in a Court in Strasbourg on whether morality requires that the hearing is conducted in private, is certainly a shift from the rock to the sand.

The problem of vagueness, is far greater for some of the other ECHR articles, than for article 6. For example the right to free expression guaranteed by article 10 can be infringed on vague grounds, such as the protection of public morals.  Furthermore laws against so called hate speech have been deemed complaint with article 10; the concept of ‘hate speech’ is nebulous and determining what amounts to ‘hate speech’ necessarily involves invoking the judge’s political biases.

To conclude this section, an engendered respect for the rule of law will make genocide and democide less likely. It is perfectly possible for a state to operate within the rule of law without acceding to the aforementioned instruments and without subjecting itself to a supra-nation Court. Consequently the ‘never again’ justification is not supported by reference to the rule of law.

[1] See for instance Aristotle, ‘Politics – 3.16’ & Omnes legum servi sumus ut liberi esse possumus – we are all servants of the rule of law in order that we may be free (attributed to Marcus Tulius Cicero), i.e. because without a concept of a rule of law that transcends the will of man, mankind is placed in a Hobbesian state of Nature – T.Hobbes ‘Leviathan’ 1651 at Part I C13

[2] Fuller, Lon, Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), p. 39

[3] There may be individuals, such as the Sovereign in the United Kingdom, who are immune from specific laws but are not immune from the rule of law in the UK, i.e. the common law constitution and their obligations pursuant to it.

[4] T. Bingham ‘The Rule of Law’ First published by Allen Lane 2010, PII C7

[5] Ibid at p66

[6] Ibid at p67, citation for Professor J. Raz contained therein

[7] Op cite, at C7, after distinguishing between the ‘thick’ and the ‘thin’ rule of law, Bingham simply provides a history and explanation of some of the rights listed in the ECHR.

[8] Scott v Scott [1913] AC 417, p477