Philosophical and Legal Aspects of Human Rights
Theoretical Underpinnings of the Human Rights Concept Baroness O’Neill, President-elect British Academy; Principal, Newnham College, University of Cambridge, U.K.
To be handed the topic “The Theoretical Underpinnings of Human Rights” is to be handed rather a lot. I decided that the talk I should give would be a questioning talk, “putting the cat among the pigeons” as we say here. It is often said that practice is weak in the observation of human rights; the contrasting thought is that theory is strong and underpinnings are available. I agree that practice is weak, but I’m afraid that the underpinnings are also fragile. If we care about the things that human rights are intended to protect, we have some reason to think quite critically about the theoretical underpinnings. This is not meant in any way to be critical of efforts to protect the things that we take human rights to protect.
The ideology of human rights has become a dominant ideology. And we know what happens to dominant ideologies in the long run. That is why, if we have reasons to care about the things that human rights protect, we better think about why and how this ideology is vulnerable. I do not, of course, mean that it is well respected. In fact, I think it may get too much complacent lip service. But it may be in quite deep danger. The deep problem, in my view, is that human rights claims have not been well justified philosophically; they have not even been well defined. I’m going to illustrate some defects in justification by commenting on the historic emergence of the human rights culture, and I shall illustrate some defects and confusion of definition by brief comments on one right that matters to academics, which is freedom of the press or freedom to publish.
The first point I wish to make is that the idea of rights as the fundamental ethical category is a historical curiosity. It is very unusual to look at morality or politics or society, not from the point of view of agents, but of recipients, which is what the culture of human rights does and often commends itself for doing. I think it may be salutary to remember that, traditionally, the primary normative claims have been claims about human obligations or duties. That switch from talking about the duties of man to the rights of man was first made in the late 18th century.
It is not easy to establish what duties human beings have. If we could establish that, then we could show who ought to do what for whom and under what circumstances, and that is the important or practical thing. If we have duties, we can be clear also about who might benefit from their discharge and who might have a claim to their discharge. If we can’t establish anything about duties, then we’ll have only grief by making claims about rights. Duties, obligations, actions, are the business end of normative requirements, whether moral, legal, or professional. I’m arguing for obligations before rights.
Let’s think a bit about the structure of universal obligations. There are some—the duties that correspond to what we often call liberty rights—that are connected to first-generation rights, which are seen as universal duties owed by all agents to all agents. If we can justify them, that will be very good news. We may be able to, because we would thereby justify rights claims. If
we show there are universal duties not to deny others free speech, this would justify a universal right to speak freely, because that right could be claimed—one would know where to claim it.
The duties that correspond to supposed goods and services, often slightly inaccurately called welfare rights, are more difficult. Such duties, even if universal, cannot be owed by each to all. If you think about a right to food, for example, it cannot mean that each of us has an obligation to feed all others, but rather at most by each to some or some to some. These are duties that cannot be owed to all others and cannot be discharged to all others. Such duties have to be allocated to specified agents, who carry the duties. In this case, any counterpart rights that we’re hoping for are going to be undefined pending an allocation of duties until duties therewith some rights are institutionalized.
Historically the arguments about establishing duties have been of many sorts, and many within religious traditions. Some have been based on theories of the good for man. Some of those theories have been objective, Aristotle for example, some subjective, utilitarianism for example, and some pure theories of duties, Kant for example. But until the late 18th century, nobody argued that rights were the fundamental, normative issue. Actually, I’m not sure they argued the case—they proclaimed it.
There is much to be said for giving up on justification and going for proclamation. Bertrand Russell put it rather nicely, “The advantages,” he said “of the method of postulation are great—they are the same as the advantages of theft over an honest dollar.” That is to say, you get your conclusions without working for them.
Now, twice in human history, we have seen this shift to making rights discourse the prominent or a prominent public discourse, not by justification, but by proclamation. The first time was in the 18th century, in 1789, in the Declaration of the Rights of Man and of the Citizen, and it was criticized from very early on. Burke campaigned against it. Bentham famously wrote, “Right is a child of law,” (only positive rights). “From real laws come real rights, but from imaginary laws, from the ‘law of nature,’ come imaginary rights. Natural rights is simple nonsense; natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts.” John Stewart Mill argued that rights were a derivative notion. Positive rights were important precisely because they contributed to utility and human happiness.
Finally, 19th century historicists and legal positivists put the notion of human rights in such bad odor that it sank from human history. Proclamation, when you think about it, is a use of the argument from authority, and none of us as scientists and scholars would wish to take an unalloyed view of the argument from authority. Of course, it has a somewhat different status in limited context and in legal argument, which often explains quite a lot.
In the 20th century, there is a second attempt, with the 1948 Universal Declaration of Human Rights. This was devised in an utterly different historical context—a need to find universal standards. There was great difficulty in agreeing on serious arguments for those standards and, therefore, certain rather general phrases were agreed to, the so-called “human rights,” to which some universal obligations were then alleged to correspond. Essentially it was a second version of proclamation. That declaration was codified in 1966. We have the
International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. In all these documents, and in many other international documents and regional documents like the European Convention on Human Rights, it is clear that the obligations are seen as secondary.
When you look closely, the covenants and other documents do not assign to the states obligations to meet rights, but second-order obligations to ensure that rights are secured and are met. That may be a very reasonable route. For example, in the Covenant on Economic, Social, and Cultural Rights, we read that each state party to the present covenant undertakes to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized or proclaimed in the present covenant by all appropriate means, including particularly the adoption of legislative measures. One might again think Bertrand Russell’s thought. In fact, some people, in the very era in which the Universal Declaration was drafted, did warn (prophetically, I think) that it was dangerous to be looking at the rights without looking at the obligations.
I cannot resist quoting to you the first sentence from a book that should be better known, by Simone Weil, a French philosopher who came as an exile to this country but died before the Second World War ended. Those two sentences read, “The notion of obligations come before that of rights, which is subordinate and relative to the former. A right is not effectual by itself, but only in relation to the obligation to which it corresponds, the effective exercise of a right springing not from the individual who possesses it, but from other men who consider themselves as being under a certain obligation towards him.”
Lawyers have a way of dealing with these issues about difficult underpinnings. Maybe we should take a tip from Jeremy Bentham and think about law and institutions sooner, rather than trying to treat proclamations as justifications. That is not going to make everybody happy, because many people want to think that human rights are pre-conventional and that law just comes along afterward to tidy up, recognize, institutionalize, and secure preexisting rights. There may nevertheless be something to be said for taking some of the arguments of the legal positivists seriously.
One view quite often found among international lawyers is the following. When human rights were first proclaimed in the declaration and the covenants, they indeed lacked authority. That was mere proclamation. But now, the relevant covenants have been signed and ratified by the states parties, so now they are binding. Now they are real obligations. Note, however, that there is a sting in the tail here. Signature and ratification will not establish universal rights, and human rights are meant to be universal rights. What signature and ratification will establish is a special obligation on those states that sign and ratify—hence not on all states, and it is not a universal obligation. Moreover, they establish a special obligation that is not the counterpart of any universal right, but an obligation to institutionalize certain positive rights—that obligation to achieve progressively the full realization, etc. We are not going to find a justification, theoretical underpinnings, down that route.
Let me give you one example that shows that we also suffer from poor definitions of rights. I’ve chosen press freedom, and one of the reasons why we are not so good at justification—we all take it for granted that it is important, that justification needs argument—is that we are relatively unclear about what exactly this freedom is, what right holders can claim, and what the obligation bearers ought to do and ought not to do. The unclarity, of course, has short-term advantages. Paper over the cracks and you get seeming agreement, but down the road you may get deep, radical dissension.
This freedom of the press matters to all of us as scholars and scientists, and, in the United Kingdom, we have a particularly lively debate because of certain features of our press, which many of you will be aware of. A character in a play by Tom Stoppard exclaims to another, “I’m with you on the free press; it’s the newspapers I can’t stand.” I think we could all sympathize with that thought. In fact, when you look at it, freedom of the press is so poorly defined that it is not clear to many people whether the newspapers that we can’t stand are acting within freedom of the press or violating it.
Some see freedom of the press as an unconditional right to publish just about anything, providing you don’t harm or injure an individual—libel, slander, clear and present endangering. There are four arguments in common use. One of them is the jurisprudential argument, which, in many ways, is the one I’ve already mentioned. One appeals to authority. One says, look, the First Amendment of the U.S. Constitution says Congress shall make no law abridging the freedom of the press. Or one appeals to Article 10 of the European Convention on Human Rights. Unfortunately, as noted, arguments from authority, effectively proclamations, don’t provide justifications. All press freedom can be defended, and it often has been defended by academics as the means for discovering truth. I think the earliest and probably most famous formulation of that argument was by John Milton in the 17th century in Areopagitica “Who ever knew truth put to the worse, in a free and open encounter?” Well, I’m not sure that is true. If you actually think about what it takes to get truth in your own discipline, it is not as if it were completely untrammeled self-expression. It is, as the late Bernard Williams pointed out in his book Truth and Truthfulness, “A matter of very careful communication that is regulated in very careful ways.” Williams wrote, “In institutions dedicated to finding out the truth, such as universities, research institutes and courts of law, speech is not at all unregulated. We have processes. We do not regulate content, and we do not forbid the utterance of content, but we have fierce procedures for finding the truth. The search for truth needs structures and discipline and is undermined by casual disregard of accuracy or evidence or process that permits casual disregard.” The needs of truth-seeking actually weren’t justified, unconditional press freedom.
A more contemporary way of going at it is to say press freedom is just a special case of freedom of expression—Article 19 of the Universal Declaration and Article 10 of the European Convention. Freedom of expression might be justifiable for individuals as an aspect of individual freedom. Kant called it the most innocuous freedom; Mill saw it as a merely self-regarding activity with which others shouldn’t interference. Could freedom of expression justify unconditional press freedom, particularly in an era in which the media have become powerful, as they were not in the 19th century? We don’t permit companies to invent their balance sheets on the grounds that they need freedom of expression. We don’t permit public authorities to be imaginative in their accounts and reports. Should we permit the press to be inaccurate? Can we
find arguments for allowing the powerful, unconditional freedom of expression not only to inform, but also to misinform and to disinform? I doubt we are going to get a good argument for freedom of expression for the powerful.
Appeals to democracy seem to me a better way to go with press freedom because democracy needs a press that informs citizens. But if requirements for accurate reporting were too tightly drawn, that would be intimidating for the press. Nobody can be sure of getting things right all the time—not even scientists and scholars. A press that serves rather than damages democracy needs to aim for accuracy, but it cannot be required to achieve it. We can require truthfulness but not truth. This standard can be met by providing evidence, by including caveats and qualifications, by prompt correction of error, by distinguishing reporting from commentary, rumor, gossip, and the like. These forms of epistemic responsibility allow our readers to judge for themselves, but they are not arguments for unconditional press freedom.
These four, or, if you dismiss the argument from authority, three arguments for press freedom are arguments for quite differing and carefully configured rights, which we can see only when we think what the counterpart obligations are. If we look at the obligations, we may also be able to reach some justifications.
In the end, I believe that if we care about the things that human rights are intended to protect, we ought to focus, not on the rights, but on the business end of the matter, which is the counterpart obligations. We ought to focus not only on the enactment of such obligations, on requiring them and reinforcing them by law, but also on the underlying arguments.
Think about what happened in the 19th century. Think about why rights disappeared from public discourse, and I think it is a salutary reminder. Thank you.
Arnold Wolfendale, Academia Europaea – It seems to me the pendulum has swung a bit too far in the direction of promoting human rights, without at the same time promoting responsibility for those who are speaking about them. I was wondering whether the Network should be devoted not just to human rights, but to human rights and responsibilities. Our advice to presidents, kings, and others would be more appreciated if it were clear that we are interested in responsibilities as well as rights.
O’Neill – I was making a slightly different and rather stronger claim than the usual one about rights going with responsibilities. I think that claim is true. Most people who have rights, for example, each of us, also have responsibilities. But some people who have rights do not have responsibilities—for example, infants. I was making the stronger but more limited claim that nobody has a right unless somebody (usually somebody else and some other institution) has obligations. That is why I stuck to the obligation vocabulary and not to the rights and responsibilities, which I think is a much softer claim.
Should we be talking about obligations in our institutions? Yes, I believe so, and I believe if we are to carry the day in many institutional contexts, it is extremely important to talk
about the duties of scientists, scholars, academics, and lawyers. With regard to the Network, I suspect you carry more weight by including obligations.
Gregg Bloche, U.S.A. [Invited Speaker] – Could you say something about freedom from torture?
O’Neill – I stayed away, as you notice, from substantive arguments, and I’ll declare my hand: I do the whole Kantian thing in a tough way to get the justifications. The easiest justifications, if you’re going that route, are to look at those principles that cannot be principles of action for all, and so cannot be principles of duty for all. And the principle of torturing cannot be a principle for all because if you torture, you maim, kill, and destroy some other agents, and you are assuming you are in an exclusive and privileged position. I believe we can get quite strong and convincing arguments for obligations not to torture. In an extreme case—somebody has his finger on the button of a nuclear bomb, and you could shoot him. I don’t think, on the whole, that principles deal well with hard cases, and there it may be that we say something. But as a routine thing, I think we can justify an obligation not to torture.
Michiatsyu Kaino, Science Council of Japan – Yesterday we talked about rights and human development. In order to implement human rights, it must be necessary to have some common understanding about the human rights issue, which is a very Westernized idea. Obligation means some exception or some concept of the meaning of rights. Obligation naturally has some ideas of structure within certain societies. In that sense, I think the obligation talk would be much more closely related to future ideas of society. It is very difficult to harmonize the different interests of poor countries and rich countries. Human rights is, of course, a very universal concept. Do you think there is a possibility to set up some kind of international organization to implement this idea of obligation?
O’Neill – Of course, the world has been here before. The world has worked over many centuries on the institutionalization of obligations. It is part of most religious and cultural traditions. That is one of the reasons why it is not alien in other parts of the world. You might ask, why did we get away from that in the West? I think the answer has to do first with wishing to make it clearer that those in danger or victims could make claims. The legal institutionalization was important because it created the possibility of claiming. You can make that argument equally well from an account of the obligations. But why, ultimately? I’m driven to the thought that one thing is that politically the rhetoric of rights has more appeal and travels like wildfire, whereas the rhetoric of obligations doesn’t. Thinking about one’s rights has so much more charm than thinking about one’s obligations.
Joseph Otieno Malo, Kenya National Academy of Sciences – This dimension of human rights and responsibilities and obligations is an interesting one. Do you remember yesterday when we brought up the idea of female genital mutilation and things like civil strife and corruption? Those areas are important and related to corruption in Africa. When you talk of corruption in Africa, the money is attached to the European countries. What is their obligation, and what is their responsibility? This is a big problem in Kenya and in most African countries. You can see the problems of children suffering simply because somebody has taken public monies and stashed them in European countries. What are the responsibility and the legal obligation? I think it is something we must be looking into.
O’Neill – I do not think the problem lies at the level of formal legislation. Corruption is usually forbidden, and money laundering too. This lies too at the level of the effectiveness of the institutionalization of these procedures. There has been an enormous tightening up now, so if you go into a bank here with over 5,000 or 10,000 pounds, you are going to have to demonstrate where the money came from. But this merely displaces activity to places where the rules are less sharp, or where they are less enforced, or where there is corruption in the enforcement of the anti money-laundering rules. I’m absolutely with you. I think when you come to international justice, it is most important to make anticorruption legislation. In my view, that starts exactly with your point of making it virtually impossible to transfer money around without it being known how you came by that money—known and published. Then there is a question of where it should be prosecuted, and there lies a second layer of difficulty, because in some of the states in which the prosecution could most readily happen, it won’t happen, and that goes for both states in which there is plundering of public monies and for states in which there is laundering of public monies.
Effectiveness of Domestic and International Legal Remedies Dr. Pieter van Dijk, State Councillor, Netherlands Council of State; Former Judge, European Court of Human Rights; Network Executive Committee Member
It is obvious that terrorism cannot be prevented or combated by legal instruments and procedures alone, and not even primarily.
Secret intelligence devices and police investigations may have, in themselves and in combination with legal follow-up, a more direct preventive and suppressive effect. It is clear, however, that the powers of these agencies and police, and their limitations, have to be regulated by law and effectively supervised by the judiciary. Only then will there be an optimal, but even then not a full-fledged, guarantee that individual and collective measures are not adopted in an arbitrary and discriminatory manner, thereby abusing the fear for terrorism as a pretext.
In recent years, and especially after 9/11, there has been a tendency to consider certain domestic and international rules and procedures as standing in the way of an effective prevention of and fight against terrorism, and consequently, in several countries we find a policy of adapting those rules and procedures, or at least their interpretation and application, to the security needs of society. In several cases, the relevant proposals resulted in a weakening, if not a setting-aside, of the guarantees of the rule of law, democracy, and protection of human rights, including the right to freedom of thought and expression, and consequently the freedom of education and research. In Great Britain, the law concerning administrative detention without habeas corpus for persons who could neither be expelled nor prosecuted was an example of such an overreaction, and the judgment of the House of Lords of 16 December 2004 an example of effective judicial review.
Of course, it cannot be denied that individual and collective security represents a basic human interest, and indeed a human right, and that it is an imperative duty of states to protect their populations against possible terrorist acts. Indeed, freedom from fear is a basic human right, as it was proclaimed by President Roosevelt in his famous statement on the Four Freedoms. This may require, and justify, certain limitations of the exercise of some human rights. The international human rights instruments provide for such limitations, but only on certain grounds and under strict conditions of necessity and proportionality. It must be stressed that, in the long run, security is best protected by the enhancement and not by a weakening of the rule of law and protection of human rights. As was said at a recent conference on Terrorism and Human Rights in the Peace Palace: terrorists are deterred by human rights, not by restrictions of human rights. Indeed, terrorist attacks are themselves a direct assault on the fundamental values of human rights, democracy, and the rule of law; weakening those values by legislation in reaction to those attacks would precisely favor the aims of terrorists and undermine the foundations of our society.1
Primary Responsibility at the Domestic Level
While we see a proliferation of international standards and procedures for the protection of human rights, we witness at the same time a decline of, or at least less attention on, guarantees of human rights at the national level. From the perspective of the protection of human rights, this development results in an imbalance of rules and procedures. After all, the primary and most effective responsibility for the promotion and protection of human rights rests on the national authorities.
Even in Europe, where we are so proud of the European Convention on Human Rights, with a supervisory mechanism that is generally considered to be the most developed and effective international mechanism for the protection of human rights in existence today, it has to be acknowledged that it can guarantee the protection of human rights to a very limited extent only. If the European Court of Human Rights, after a very long procedure, concludes that a certain provision of the convention has been violated by the state, that conclusion may be important for the interpretation of that particular provision of the convention, and thus may prevent similar violations for the future, but it will offer redress to the victim of the violation only to a very limited extent after such a long period, mainly in the form of moral satisfaction and financial indemnification. Effective protection of human rights can be achieved only at the national level, with a subsidiary and reparatory role at the international level.
This primary responsibility of the state—through its legislature, executive, and judiciary—is expressly recognized. Thus, Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides as follows, “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” And Article 13 of the same convention stipulates, “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority….” This subsidiary principle is fully recognized and welcomed by the European Court of Human Rights, which is of the opinion that the national authorities, because of their direct knowledge of their society and its needs and resources, are in principle better placed than the international judge to appreciate what measures are appropriate.
Legal economy, as well, pleads for this subsidiary system. If an effective and satisfactory domestic remedy is obtained, it takes away the necessity of using a time-consuming and costly international mechanism. Indeed, international practice indicates that states in which the domestic courts have jurisdiction to directly apply international human rights standards are less often found in violation by international courts.
Role of the Civic Society
At the domestic level, it is not only, and perhaps not even primarily, the judiciary that has to defend human rights and remedy their violations. And the judiciary cannot prevent violations from happening. Effective protection is equally, and perhaps primarily, a matter for the legislative and executive branches of government, at the national but also at the local level, including the law-enforcing authorities, such as the police, intelligence agencies, prison staff, and public prosecutors. These authorities, in turn, are supervised by the domestic and international
courts. That independent national and international supervision is the more important in times and circumstances in which national security and personal security are given priority, because that may lead to overstepping the boundaries of the minimum level of human rights protection. However, as said before, such supervision takes place only in an incidental way and very often only at a moment at which the situation can no longer be remedied.
Therefore, I wish to stress once again, as I did at previous meetings of the International Human Rights Network of Academies and Scholarly Societies, the important role of the so-called vigilant civil society. As a lawyer I have to admit—and I am quite ready to admit— that there are several non-legal methods that may be highly instrumental in promoting and protecting human rights and thereby fighting the causes of terrorism. The most important method, in my opinion, is the creation of an atmosphere and of an attitude of vigilance and tolerance. In a tolerant society—which is by no means the same as a permissive society— each and every human being is equal, irrespective of differences in race, religion, ethnic origin, sex, or any other status. Tolerance connects awareness of one's own rights, needs, and values with the rights, needs, and values of others. It means recognition of and respect for the rights of others, with an implication that this respect may require certain limitations of one’s own rights. The very concept of human rights implies a balancing between freedom and responsibility, between rights and duties, between individual interests and the general interest, and between one's own rights and those of others. It is my strong belief that a general attitude of tolerance does not clear the way for terrorist acts but takes away their main causes. Therefore, balancing human rights is much more effective than derogating from or limiting human rights.
The most important and effective way to promote tolerance is through the personal example of parents and other persons in charge and through education at all levels. The crucial role of education for the promotion of human rights has constantly been stressed, in particular by UNESCO. Awareness that a humane society requires and implies equality and tolerance should be imparted to children at a very early stage, when they are most receptive to it. Attitudes learned in childhood have a lasting and profound influence on one's approach to life and to society. The learning process should continue at the secondary school level and universities, not only as part of the different subjects taught, but also by example and guidance inside and outside the classroom.
Nongovernmental organizations, with their grassroots affiliations, are appropriate initiators and performers of programs directed at creating awareness of the importance of and mobilizing tolerance. And there is the special role of the media in educating society in the spirit of tolerance. On one hand, they have the power and use it too often to manipulate reality, create wrong impressions, and provoke unjustified reactions; on the other hand, they may effectively contribute to suppressing prejudices and intolerance. More in general, public opinion is very important in creating mutual understanding and respect.
Scholars and scientists have a special responsibility in mobilizing public opinion, providing the right information, and giving good example. If they sacrifice their own free opinion, or allow the free opinion of others to be suppressed or silenced, in the framework of the fight against terrorism, they mislead public opinion and provide fuel to terrorism instead of extinguishing it.
A Special Role for Scholars and Scientists
In the framework of this vigilant civil society, from the viewpoint of division of labor and professional responsibility, it would seem appropriate that scholars and scientists focus primarily on the freedom of thought and expression, in particular the right to academic freedom and the right to education. They are the most qualified and effective group to stand up for their fellow scholars and scientists whenever and wherever those rights are violated or are threatened to be violated. In doing so, they also support and enhance respect for human rights in general, because freedom of thought and expression, and the right to education and academic freedom, are instrumental for the enjoyment of other rights and freedoms, and indeed for the creation of a climate in which terrorism and fundamentalism do not flourish.
In this context, tendencies after 9/11 to restrict, in a direct but more often an indirect way, the freedom of expression at universities and scientific institutions are unjustified but also counterproductive. As the European Court of Human Rights has emphasized repeatedly, freedom of expression constitutes one of the essential foundations of a sound and resilient democracy. That holds good not only for the expression of ideas that are favorably received by the majority, but also for those that offend, shock, or disturb, provided that they are not expressed, for the main reason, to hurt personal feelings or to instigate concrete attacks on physical or moral integrity or national or personal security. The slogan “who has nothing to hide has nothing to fear” is too simple.
Without a liberal climate of pluralism, tolerance, and broadmindedness, democracy cannot survive. This holds good for national societies; it also holds good for the society of nations, for which the powerful should not dictate what the requirements of security are, and which abrogation or limitations of fundamental rights are justified for the protection of that security.
Scholars and scientists have a special responsibility to defend those values at the domestic and international level. Scholars and scientists also have a special demand for protection. It is the core purpose of the Network to defend those values and to support their defenders by their own academies or learned societies and in a coordinated way.
Limitations of Human Rights to Combat Terrorism
Finally, I would like to make some observations about the justification of limitations of human rights to combat terrorism. Guideline III of the Council of Europe Guidelines on Human Rights and the Fight against Terrorism reads as follows:
1. All measures taken by States to combat terrorism must be lawful.
2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued.
In fact, this guideline does not contain any new legal principle or rule. The human rights treaties all contain the provision that limitations of human rights must be provided by law— which also means that their regulation must be accessible and transparent—and must be proportionate in their impact to the aim which the limitation purports to protect. What is important, however, is that the member states of the Council of Europe, shortly after 9/11 (i.e., on 11 July 2002), clearly indicated that the fight against terrorism does not, as such, justify limitations of human rights, but has to meet the normal standards of legality and proportionality. And Guideline IV expressly confirms the international standard that torture and other inhuman treatment are not allowed under any circumstance, including the need to gather information about terrorist acts committed or to prevent future terrorist acts.
Guideline V prescribes that the collection and processing of personal data must be subject to supervision by an external independent authority, while Guidelines VII and VIII determine that a person may be arrested on suspicion of terrorist activities only if the suspicion is reasonable and after he has been informed about the reasons for his arrest. He must be brought promptly before a judge and may challenge the lawfulness of the arrest before the court at reasonable intervals. He benefits from the presumption of innocence and is entitled to a fair hearing, within a reasonable time, by an independent and impartial tribunal. Finally, Guideline XVI stresses that, in their fight against terrorism, states may never act in breach of peremptory norms of international law, nor in breach of international humanitarian law, where applicable.
Again, these guidelines do not offer any additional guarantees compared with what has been laid down in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, but give expression to the firm belief that the committed terrorist acts, and the threat of new ones, have created the need for special vigilance but have not created a situation that justifies ignorance of these internationally recognized standards. For limitations and for derogations there are criteria and procedures, which have to be respected (see Guideline XV). An overreaction in this respect under the threat of terrorism would undermine our democratic values and human rights standards, and that would be precisely what terrorists aim at.
It is my belief that scholars and scientists, within the framework of the activities of the Network, within their own professional circles and as individuals, should, on one hand, be realistic and recognize the dangers that terrorism and terrorists present but, on the other hand, be
conscious of the danger of such an overreaction. They should plead for respect of minimal guarantees of legality and proportionality and should speak out for those against whom these guarantees have not been respected. In this way they supplement, in situations and in countries where that is necessary, the domestic and international remedies. It is only appropriate to mention, in our host country, brave men like Max Perutz, who fought for these values his whole life, and to mention the House of Lords as an independent tribunal that protects society and the weakest persons in society against extremism (“no nonsense”) on the part of the legislature and the executive.
Question – A very important question has come up, and that is the role of the media. After 9/11, the entire world witnessed what the terrorists were doing at one point in time. But there has never been a serious diagnosis of the violence. When a child is violent in the family, you can just punish him, but then the mother and father think, Why is he violent? We must have ignored him at one point in time or another. What is the root cause? The media should go a bit deeper into the causes of violence rather than showing the acts of violence itself. We must have rules for tackling violence—rules that society has formed from time to time. But one can always question institutions and the order that exists in the world. We will discuss this tomorrow: we live on a planet in which half the planet is hungry, with deprivations, and people suffering, and conditions that are a potential source of violence. There has to be a diagnosis of violence rather than just framing rules and regulations, and the media have not been doing this well—in fact, some of them are very biased. There is one kind of story for one section of mankind, and another kind of story for another section of mankind.
van Dijk – Perhaps here, too, I may start from the national level. In the Netherlands, violence has increased enormously in these last years, perhaps also because of 9/11. But there are also other causes. In our media, there has been an analysis of the main causes, which are not so very different from the main causes at the international level. The main cause in the Netherlands is the lack of full integration of foreigners who came to the Netherlands and who have established their lives there, in combination with a lack of tolerance as to their own values and their own cultures, so people feel frustrated. They think the Netherlands is only in a formal sense a tolerant society, but in a sense it is tolerant by ignoring a part of the population.
At the international level, terrorism is stimulated by violating the basic social, economic, and cultural rights of groups of people.
G.B.A. Okelo – I’m from Kenya and am the secretary general of the African Academy of Sciences. One must observe that our views on what constitutes abuse of human rights or what we conceive of as human rights has changed quite a lot. I think, in a way, terrorism and human rights are like what pain is in medicine: a lot of patients, if there wasn’t any pain at all, would not show up at the doctor’s office, so they may end up dying without being diagnosed. I think terrorism itself is interesting in some ways, but what was conceived as terrorism about two decades ago is now known to have been a wrong assumption. For example, in a number of countries in Asia and Africa, when people were fighting for their freedom, they were called terrorists, and this was generally accepted by the United Nations and world opinion then. Later
on, it was discovered that these people actually were under a lot of oppression—economic as well as political. So, in a way, terrorism should enable us to reflect without condemning it wholesale, but to find out why is this so. And at the moment, there are no freedom fighters, but you will get formal issues that may also encourage what one may refer to as terrorism. One of them is a revolt against economic and political repression in developing countries.
Henrik Zahle – I’m a law professor from Denmark. I would like to point out another relationship between the two excellent lectures we have had, and my question would be with whether Pieter van Dijk would agree with this relationship. Normally when we talk about human rights and the threat against human rights, we are talking about state intervention. For instance, when you talk about the freedom of science, it is state censorship and state control of scientists’ work that is a problem. Pieter van Dijk, when he elaborated on this specific freedom, not only related it to state intervention but also to private activity, that is, the importance of private persons engaged in supporting the freedom of science. This might be related to the first lecture by going to a discourse of duty, that is, to talk about the duty for private persons, as academics, to support this freedom or to make it a reality. If we are entering these duties into the scope of this organization, we should consider not only the duties of the public authorities—we shouldn’t neglect that—but also the duties of private persons.
van Dijk – The problem at the international level is responsibility. You cannot prosecute an individual at the international level, at least generally you cannot. So you have to construct some artificial state responsibility in order to make the state responsible. That is why the international criminal court is such an important establishment, because it is the first international mechanism in general where individuals can be prosecuted without any artificial construction of state responsibility.
Justice Gone Awry: The Imprisonment of Dr. Thomas Butler Dr. Peter Agre (Nobel Laureate), Chair, Committee on Human Rights, U.S. National Academy of Sciences, National Academy of Engineering, Institute of Medicine; Professor, Department of Biological Chemistry, Johns Hopkins University School of Medicine, U.S.A.
The Thomas Butler case is a very confusing case that raises big questions. The United States has long viewed itself as a country with a tremendous justice system, always looking to the defense of beleaguered individuals. The Butler case, depending on how you look at it, involves either a rogue scientist who conducted his work with total disregard for guidelines, or a beleaguered humanitarian investigator who was caught up in an Alfred Hitchcock type of drama related to his studies.
Tom Butler is a 64-year-old medical doctor, a graduate of Vanderbilt University and Johns Hopkins University. While serving in the U.S. Navy during the war in Vietnam, he took care of Vietnamese children in the countryside who were infected with the plague bacillus— plague being the organism of the Black Death and one of its most malignant forms of the disease, which nearly always causes fatal pneumonia. Butler became committed to the well-being of these children and dedicated his career to infectious disease research, particularly concentrating on infectious diseases in the developing world.
When I was a medical student at Johns Hopkins, Tom had just returned from Vietnam, so I got to know him well. When I was a medical intern and resident at Case Western Reserve University, he was one of the attending physicians. I worked alongside him and always admired him. He was a very dedicated and humanitarian individual.
Our careers diverged. I returned to Hopkins for research in biochemistry, and Tom Butler went to Texas Tech University, where he became the director of the infectious diseases research operations and continued his research on infectious diseases affecting people in developing countries.
The plague bacillus has long been a problem to humanity—the Black Death of the Middle Ages was caused by this organism. Despite the emergence of modern antibiotics, the treatment of plague bacillus has lagged behind, because it is not commonly found in the developed world. Nevertheless, it is quite endemic in parts of Africa. You may recall that, about two months ago, 60 miners in the Congo died of plague bacillus. It is quite a bad problem, and a modern treatment of this disease is not known.
Tom Butler, on his own, organized a research protocol, receiving funding from a number of reputable drug companies, with some support going directly to Texas Tech University for work that he would pursue in his own lab, and some support also going directly to Tom Butler for his work in Africa, where he conducted the study. In Tanzania, where this organism is found frequently, Butler traveled to the back country and obtained samples from patients in collaboration with physicians employed by the Ministry of Health of the Government of Tanzania. He brought these samples back to the United States by methods that had been, in the
past, standard, by simply protecting them carefully by bringing them back in his own personal luggage. He cultured the organisms in his laboratory and then provided organisms to the Centers for Disease Control and Prevention in Atlanta, the U.S. Army Institute for Infectious Disease Research in Ft. Dietrich, Maryland, and the Food and Drug Administration—all government laboratories that were very eager to gain these samples so they could determine antibiotic sensitivity.
In the summer of 2002, a series of anthrax mailings occurred in the United States and caused a number of deaths. A U.S. Senate office building, at one point, was evacuated, a number of postal workers—I believe five individuals—died having handled these mailings, and the United States was in somewhat of a panic. The Federal Bureau of Investigation (FBI) was charged with sorting this out and making arrests. Although they did profile an individual, they were never able to make an arrest. They were apparently quite frustrated.
In January of 2003, CNN News had a breaking story. On the 15th of January, 30 samples of plague bacillus were reported missing from a laboratory of Texas Tech University Health Sciences Center. This was Tom Butler’s laboratory. Butler had noticed the samples missing, couldn’t account for their whereabouts, and reported the missing samples to university personnel who, in turn, informed the local police, who in turn informed the FBI. The FBI responded in force with 60 FBI agents visiting the university, where they interrogated everybody and did an extensive evaluation. CNN News covered this live throughout the investigation. The U.S. Department of Homeland Security was immediately notified, and President Bush was alerted to the apparent theft of bioterror organisms in Lubbock, Texas.
After an extensive evaluation, the FBI concluded that there was no evidence of a break-in, there was no evidence that Al Qaeda had visited Lubbock, Texas, and, although the citizens were locked in their homes with armed weapons, the FBI concluded that the samples must have been destroyed in a routine lab clean-up and not recorded in the log book.
After an extensive interrogation of Dr. Butler, they concluded that there was no harm done, and if he would simply sign a statement admitting to some knowledge that he had actually destroyed these accidentally, everyone could return home and that would be the end of the case.
Butler felt he couldn’t sign such a statement, because he had no recollection that these samples had been destroyed, but he was willing to compromise and signed a statement in which he admitted to a “misjudgment” concerning the handling of these samples. He returned home only to be arrested, taken to the local jail where he was held without bail for six days, and brought before a federal magistrate. He was charged with lying to the FBI and 14 additional charges, including charges that he had been smuggling bioterror weapons, that he was in noncompliance with the guidelines for shipping organisms, and even tax evasion. These charges were regarded by Butler and his lawyers as gross distortions. In fact, he was never smuggling weapons—he was bringing samples back for humanitarian purposes. The tax evasion related to a vehicle he had rented in Africa, for which he had misplaced the receipt and didn’t have the documentation.
In May 2003, the U.S. National Academy of Sciences’ Committee on Human Rights, led by Torsten Wiesel and directed by Carol Corillon, took interest in the Butler case and decided to take it on as one of their cases for attention. They notified Jonathan Turley, a well-known constitutional law expert at George Washington University, and some media. The story was covered by the New York Times, the Wall Street Journal, and 60 Minutes (a CBS television program). But it was a very confusing case.
Butler was given the option of a plea bargain. If he confessed, he would go to prison for six months and then be released. He declined the plea bargain because he contended that he was innocent of all the charges. At this point, federal prosecutors added 54 additional charges. These charges were grouped as theft, wire fraud, and mail fraud. Apparently the university had been coerced into charging Butler with theft of funds for the monies that he was sent directly for the studies in Africa, which is really better described as a contract dispute.
A very prolonged trial occurred in November 2003. On the very last day of this trial (and I’ve forgotten if it was three or four weeks, but it was an exhausting trial for Butler), the theft charges were raised. After prolonged deliberation, the jury cleared him of all serious charges— the lying to the FBI, the smuggling of bioterrorism weapons, and the like. But he was convicted of three charges related to the shipping of the organisms back to Tanzania, since these were the property of the government of Tanzania’s Ministry of Health. For example, he neglected to put a biohazard sticker on the side of the Styrofoam box, and a number of other relatively minor issues. Of the 54 theft charges, he was convicted of 44.
Some of the original 69 charges could have brought Butler a 469-year prison sentence. But the judge, looking very carefully at these, was sympathetic and actually praised Dr. Butler at the sentencing as being an example of an outstanding humanitarian. The theft charges, in his view, were really not well founded; the university would have never received this money if it were not for Butler. But he was restricted to a two-year minimum prison sentence; anything below that could have then been protested by the federal prosecutor. Dr. Butler is presently in prison in Ft. Worth, Texas.
I visited him in November. I had never visited an inmate in a federal penitentiary before. It was a very strange and in some ways shocking experience. Dr. Butler was wearing the prison khaki uniform. He is referred by his number—you can’t visit him unless you have his federal inmate number. In some ways it is dehumanizing, but it is a tidy institution. This is not Devil’s Island. Nevertheless, he appeared quite depressed, and he had lost 40 pounds.
An appeal to the District Court has been placed by Jonathan Turley, which he feels is very strong, because the grouping of the theft charges and the original bioterrorism charges is apparently unprecedented and very good grounds to overturn the conviction. At the same time, the federal prosecutors decided to counter appeal, seeking to add years to his sentence. Dr. Butler is 64 years old, so two years in prison is a large percentage of his remaining life, and 10 years in prison, which the federal prosecutors want to add, would be a really severe sentence.
The appeal will be heard in New Orleans in a U.S. District Court on June 8. Butler is due to be released from prison at the end of this year, but he has no medical license—this was
forfeited during the prosecution. He has huge legal fees, and he has no job. When you think of the problems of human rights, you can think of many different examples, particularly in the developing countries, where we are very quick to take the side of an individual. Dr. Butler represents a very strange but very sad example of what many of us consider a miscarriage of justice in the United States.
Malo – What is your opinion about embryonic stem cell research?
Agre – My own view? I have some personal views. I don’t think it relates to the Butler case.
Question – My question relates to scientific research, and we are talking about the science of research. It is something to do with human rights, something to do with religion, something to do with ethics, and something to do with freedom of scientific research. The story I can see is a simple one. Two friends, a chicken and a pig, wanted to feed some people. The chicken said I’ll provide the egg, and you provide the pork. For the pig to provide the pork, he has to kill himself. But the chicken can always lay the egg. What I’m saying is that I believe strongly that all these things have something to do with scientific research, freedom of scientific research, and human rights at a certain level.
Harald Reuter, Council of Swiss Scientific Academies – Peter, are there any other cases that you are aware of on a similar scale in the United States? People aren’t aware of the implications of what they are doing with their scientific material. Many of us aren’t, really. It could happen to anybody.
Agre – There is a well-known case that preceded this one, which was taken on by the Committee on Human Rights: the case of Wen Ho Lee, a computer scientist at the Los Alamos National Laboratory in New Mexico. He is a Taiwanese-born, U.S. naturalized citizen who was arrested and charged with providing nuclear secrets to the People’s Republic of China. He was held in solitary confinement in shackles for nine months while the charges were being evaluated. Many of the charges in the Wen Ho Lee case were secret, and he and his lawyers were actually prevented from seeing them. This was during the Clinton administration, so this is not a Republican or a Democrat problem. This seems to be a U.S. problem.
In the end, an independent review of the charges was ordered by the magistrate, and they were reversed entirely. Wen Ho Lee was given the option of fighting them or pleading guilty to one minor charge. He chose the minor charge because he could have received the death penalty if he had fought and lost.
When Wen Ho Lee was charged, he was described in the media as the spy of the century, routinely regarded as a bad person. As with the Butler case, people assumed that he must be Al Capone or someone of that magnitude to have this degree of federal prosecution.
Michael Howard – I am from the British Academy, a historian. Is there, in fact, in the Butler case any kind of hidden agenda, in that Dr. Butler is regarded for some reason as being an
unreliable citizen, or is it simply a matter of totally unimaginative applications of laws without any kind of hidden agenda about it?
Agre – I think it is assumed by many of us that there is a hidden agenda, not necessarily against Dr. Butler. He is the unfortunate individual who happened to drive into the speed trap when they were on alert, and the infractions in terms of the bioterror guidelines would be treated very seriously to make an example for other scientists. That is my belief, and the federal government has refused to comment. There is nothing that we, or others, have discovered that indicates that Dr. Butler is a seriously deranged individual or a criminal individual. They got him by whatever means they could. I think this is an example of someone being deliberately persecuted, and he had to go to jail. The publicity and the extent of the federal investigation of this presumed bioterror scare was such that the embarrassment caused the problem.
Rosemary Foote – I am a professor of international relations from Oxford. To Dr. Agre, but also to Baroness O’Neill, I’d like to bring the two ideas together and refer to some of the dangers in the discussion of duties and obligations at a time when the government’s claim is high threats to national security—in other words, terrorist threats. In your case, the federal government would have claimed that it was the duty of the government to protect its U.S. citizens from terrorism. The problem is that the language of duties and obligations has been captured by governments in this particular era, or in all eras in which there is a high national security threat. You could find it in the cold war, too. Although I accept your argument on theoretical, philosophical grounds, in the same way that rights have taken off for all kinds of political reasons, duties and obligations have been grabbed by governments that actually let loose their security services. If we hear about a case like this with respect to the United States, which has the so-called separation of powers, imagine what is happening in so many other countries around the world in this era. Therefore, this society, the Network, and others should be really careful, if you adopt the language of duties and obligations in this political era because of the misuse of these terms. I see the point made by the Danish professor of law about civil society and trying to grab hold of this language of duty and obligations. I see more hope for it in their hands, than in the hands of current governments.
O’Neill – My argument was not that we could shift to the vocabulary of duties and obligations as against that of rights. I couldn’t have argued that because I argue that the two vocabularies are too completely inextricable and that some obligations are mirror images of duties and conversely. There is no choice there. Again, I know I did use the phrase once, and it was not the sort of looseness I like to use. The choice of vocabulary seems to me to be an unwise phrase in this era, unless one is only talking about public rhetoric. I think when we get down to what actually happens, we need to use whichever of the vocabularies can be made adequately precise. In this terrible case [of Thomas Butler], it is clear, among other things, that it was considered wholly acceptable to pursue. It goes back to the issue of the media. For the media to refer to this person as if he were a criminal convicted of a crime against humanity, at the point when he had been charged in very specific ways, that is called throwing the book at someone—when you charge them with many, many things, hoping that one or two will stick. That is hardly, as it were, an indictment of talking about obligations. Everybody will use both vocabularies, but the grounding is what I was recommending.
Agre – I agree. We use the term “piling on” of charges when things are thrown with the hope that something will work to bring this “dangerous criminal” to prison.
Arjuna Aluwihare – I am a surgeon from Sri Lanka. The debate and the case are very interesting, raising the question, Is might always right, or does might allow people to define their obligations in a way they want that is not necessarily related to anything absolute about correct and moral ways of handling obligations, or for that matter, rights? Do the countries that have might, or the regimes that have might in poorer countries, are they prepared to stick to the norms they promulgate for others when they themselves feel they are under threat? In this case, looking at it from outside, when the anthrax threat was going on, it seemed clear that an organization as clever as the FBI in a country as advanced as the United States could find it very difficult to admit that it couldn’t actually catch the guys who did it. They had to find a scapegoat and then cloak it in a terminology that was apparently both confusing and acceptable. The question is, Is there any absoluteness in any of this, or is everything so relative that it can be manipulated to serve a particular agenda and expediency at a particular time?
Agre – It is an egregious example when the U.S. Department of Justice, with unlimited resources, can pick out an individual like this. Alfred Hitchcock did a good job in his movies with the dilemma of an individual who is suddenly a suspected criminal. With its unlimited resources, the government could probably find something wrong in almost any of our backgrounds. If loss of a receipt for a car rental results in a federal felony charge for tax evasion, then goodness knows where this can end. The punishment should meet the seriousness of the crime, and, in Butler’s case, it clearly does not. It is something that we in the United States are very concerned about. We like to hold ourselves up as a nation as an example, but clearly this is not always justified.
O’Neill – Rights and obligations are wholly general normative notions. They apply to governments and individuals and less to institutions—even probably to institutions with fairly minimal decision-making procedures, like networks. You can find an obligation slapped on you as a business, for example, or you can find that you have a right. It seems useful to have a common, practical coin in which we talk about who, including which institutions, are required to do what for whom.
Wiesel – I think also this case illustrates individual jeopardy when government power is misused.