the Human Rights regime and its difficulties

Yesterday, the International Criminal Court issued an arrest warrant for Sudan’s president. This is the first ever warrant for a sitting head of state. Among a whole host of other grim crimes (but curiouslynot genocide), he is charged with crimes against humanity. Hardly anyone, except perhaps President Bashir himself, thinks he’s innocent. But, little if anything will happen to him in the near or perhaps even distant future. In this regard, the warrant has little force. This expresses one difficulty of the human rights movement. While it clearly enjoys a kind of moral authority (in the sense that no sane person would deny the moral wrongness of, say, genocide) in most parts of the world, human rights documents have yet to enjoy the kind of legal authority which national constitutions enjoy. To be sure, as a UN member, Sudan is legally bound by the arrest warrant, and therefore has the legal obligation to arrest Bashir. However, that’s as likely as Bush endorsing a Truth Commission.

An effective human rights regime cannot be bootstrapped into existence, and without inter alia the internal acceptance of the relevant parties, the appearance of impartiality, and a mechanism for enforcement its more or less impotent motivational capacity will be once again reaffirmed.

I said ‘more or less impotent’ since the endorsement human rights do enjoy in most quarters does effect a not insignificant motivational force on the recalcitrant. Although Bashir rejects the authority of the ICC, he can come to believe in it if sufficiently ‘advised’ by his peers. Unfortunately, many African leaders are reluctant, for various reasons, to hold him to account: the specter of colonization and the strident nationalism it engenders is, rightly so, a very powerful political tool.

But there are other international supporters, e.g. China, that can bring to bear their significant persuasive powers. This is true even though China itself is far from a prime mover in the human rights movement. Moreover, there is some talk that Bashir’s generals are ready to throw him overboard, but that seems unlikely since they are likely implicated in his crimes. Motivating them would require assurances that they are not next on the warrant list. This is another difficulty of the human rights regime. Leaving aside the recalcitrant, its effectiveness depends upon reaching a threshold among all others: many, many nations, individuals, corporations, organizations, etc.., have to be on board before it can play even a limited normative role. The lesson however is that the creation of a human rights regime does not require only true believers; we need only some of those and some others who can come to have a reason to comply. In a sense that is encouraging, since it is easier to effect.

The human rights movement is still in its infancy, and so the gap between its aims and what it can effect can seem enormous. Nevertheless, knowing the difficulties it faces should make us place emphasis on persuading others of its great importance.