Human Rights as History

During the struggle for autonomy in East Pakistan (afterwards Bangladesh), the West Pakistan army in 1971 committed atrocities on a large scale. Seeking to crush the movement in the eastern province, the troops targeted members of the Bengali nationalist Awami League, students, intellectuals and professionals as well as the Hindu minority. Estimates of the numbers massacred range from 300,000 upwards. The language in which the Western press described the conflict switched early on from ‘civil war’ to ‘genocide’ or ‘selective genocide’. A Pakistani correspondent for the Sunday Times employed phrases such as ‘final solution’, ‘pogroms’, and ‘annihilation’ – all purposefully evocative of the Holocaust. A report from the International Commission of Jurists, a non-governmental human-rights organization with Cold War origins founded in 1952, confirmed the killing of many Bengalis but concluded that only Hindus would seem to fall within the definition of a national, ethnical, racial or religious group and thus to be a case within the terms of the Convention of the Prevention and Punishment of Genocide which the United Nations General Assembly had passed in 1948. Calls for the initiation of international court procedures, however, got no response from the United Nations. Some help was forthcoming to the millions of Bangladeshi who had fled to India to escape the war and killings. The Indian government received international humanitarian aid to cope with these refugees. But India also supported the recruitment of the Mukti Bahini (the Bengali ‘Liberation Army’) in the refugee camps, and finally intervened massively with its own military forces in December 1971, quickly defeating the Pakistan army. Now that the hostilities had ended, the Pakistan Government managed skilfully to turn the tables on the Indian and Bangladeshi Governments by protesting against plans by Sheikh Mujib, the Bangladeshi leader, to put war criminals on trial. It pointed towards roughly 90,000 soldiers held by India and Bangladesh and claimed a breach of the Geneva Convention of 1949 pertaining to the treatment of POWs. It was only in 1974 that the last 200 Pakistani prisoners still held in India were returned to Pakistan, without trial, after a tripartite agreement had been concluded between Pakistan, India and Bangladesh in return for Pakistan’s recognition of the new state in the East. The repatriation overlapped with the onset of a severe famine in 1974. In 1970, before the war of independence, a cyclone which hit East Pakistan had caused severe flooding and the death of up to half a million people. Now, in 1974, as a consequence of the disruptive effects of war, internal mismanagement and the withholding of external aid by India and the United States (which pressed for the release of the Pakistani prisoners), famine broke out. The situation was aggravated by renewed flooding along the Brahmaputra River. As a result, an estimated one million people died of famine and disease.

The disaster experienced by Bangladesh between 1970 and 1975 is one of the worst in recent times and a prime example of a complex emergency. For the history of humanitarianism, the case is particularly illuminating, encompassing most of the elements that comprise modern humanitarian endeavour, including human-rights violations and humanitarian intervention and aid as well as the involvement of national governments, international organizations and non-governmental groups. Above all, the Bangladeshi case highlights one of the main themes of the volume under review: the use of human-rights language, by both national and transnational actors, as moral and political leverage against political opponents; or, in short, as Stefan-Ludwig Hoffmann puts it in the book’s introduction, human rights ‘as a history of political contestations’. In contrast to recent histories of human rights which tell a triumphalist story about the steady progress of rights from the French Revolution up to the Universal Declaration of Human Rights of 1948, the contributors to this book provide in-depth accounts of a chequered history. Much of the literature on human rights since the 1990s has focused on the normative and legal foundations of human rights in the present-day, either criticizing the shortcomings of international humanitarian law or applauding the apparently stronger political will for humanitarian intervention and prosecution since the end of the Cold War. The focus of this volume, by contrast, is on human rights as an object of political conflict in specific historical situations. Hoffmann contends that only in the 1940s did a version of human rights emerge that received international political attention and global prominence. It became salient in the crises and conflicts that arose from the end of the Second World War, during the Cold War and the wars of decolonization. It’s a history that highlights ruptures rather than continuities, in which human rights emerge as a historically fluid, highly contested concept rather than as a fixed doctrine.

The adaptations, malleability and changing meanings of human rights are brought out very well by Samuel Moyn’s chapter (one of the few to start before the 1940s). Moyn goes back to the interwar period, looking at the conceptions of the ‘person’ in European and particularly French conservative and rightist thought. He investigates the phenomenon known as ‘personalism’, a now forgotten spiritual, often religious, approach to the individual characterized by what it opposed rather than by any clear programme of its own: it was an anti-liberal, anti-individualist stance which developed in France and among Russian émigrés in the 1930s. Its proponents were young intellectuals in various overlapping circles, summarily labelled as non-conformist. Through personalism, these people sought to overcome what they regarded as the crass materialism of liberalism and communism and the atomism of contemporary politics and economics. Some, like the philosopher Emmanuel Mounier, who published the journal Esprit , migrated toward fascism while others, like the converted Catholic philosopher Jacques Maritain, started from non-conformist grounds to become proponents of human rights. Maritain moved within church circles and taught during the war in North America, later becoming French ambassador to the Vatican (1945–1948). Transmitting ideas across the Atlantic, Maritain made himself the premier interpreter of human rights among Catholics, contributing much to the conversion of the Church to human rights via ‘personalism’, which was shared also by Pius XII. This did not entail a submission to the idea of natural law but rather an insistence on spiritual sovereignty over the ‘human’, over which, according to Christian teachings, no merely temporal polity can ever claim full authority. The dignity of the person was made the frame for the new Catholic rights-talk. Moyn places this transformation from anti-liberal personalism to human rights in the context of the transformation towards Christian democracy in the immediate post-war moment. It was part of how Western Europe reconstructed itself morally as a humanitarian community.

Moyn is one of the few contributors to this volume to register the explicitly religious dimensions of human rights since the mid twentieth century. Only Jan Eckel takes note of church groups in his careful study of the international human-rights campaign against Chile during the seventies. (However, there is room for further work on what happened to this religious aspect when human rights became more a doctrine of the left.) Within the churches, there has been a lively debate since the 1970s on global justice; church members initiated campaigns against human-rights abuses in Latin America and South Africa. Global issues, often framed in terms of responsibilities for humanity and in the language of rights, contributed to a politicization of Christian communities. The effects of this kind of globalization on the churches, and between them in the ecumenical movement, merit further study. There may yet be another renewal of ‘traditional’ beliefs like the one Moyn shows for the period following the Second World War. Building on his convincing thesis that human rights in the mid twentieth century were not solely a revolutionary or republican heritage, nor particularly French for that matter, and that the crimes of Nazi Germany were not the essential catalyst for international human rights, a different perspective may also be developed on the period since the 1970s, which brings religion in from the periphery of human rights. ¹

The focus on the fluidity of human-rights concepts also undoes the familiar generational sequence of individual civil and political rights, followed by economic, social and cultural rights, leading in turn to claims for collective rights of development. This evolutionary sequence was devised in the late 1970s by Karel Vašák, the Czech-French Secretary General of the International Institute of Human Rights in Strasbourg. The International Labour Organization (ILO) already placed its work in the 1944 Declaration of Philadelphia on a new human-rights-based foundation. From an organization whose early activities rested on notions of ‘social justice’, and the protection of workers as a group by setting of technical norms and standard for industrialized countries, this did not come naturally. Daniel Maul’s chapter shows that human rights acquired a new legitimizing power as they provided the ILO with a means to extend its field of activities and influence and as the secretariat linked human rights with technical assistance in the provision of development aid thereby preserving the universalistic aims of the organization and making it relevant for an increasing number of developing countries. Originally very much a reflection of the influence of the United States within the ILO (and the absence of delegates from the Soviet Union at the 1944 Philadelphia meeting), this embedded the concept of human rights in international diplomacy. As the United Nations declaration of human rights became caught up in the Cold War, ILO human-rights standards filled the breach. This was due to the ILO’s tripartite composition – labour, employers and governments – and was most successful when the political aspects were made to appear as insignificant as possible compared to the technical side. Human rights worked best, one might conclude, when they were depoliticized.

With decolonization in the 1960s, the ILO entered a new phase, becoming the main forum, within the UN system, for the struggle against the South African apartheid regime. This battle was morally underpinned by the ratification of the ILO core human-rights standards (anti-discrimination, abolition of forced labour, and freedom of association) by most new states in Africa and Asia. Meanwhile, however, a debate over the universality of human rights began to emerge within these new states which – emphasizing the North-South wealth divide – argued that economic development should take priority over ILO norms. Controversies over forced labour and freedom of association ensued. Fearing the political potential of free trade unions, governing elites in these nations declared under-development an emergency; calling for a united front, they suppressed freedom of association. As Maul puts it, with the strengthening of national sovereignty and the claim for a right to development, a version of human rights emerged – the so-called third generation of human rights – which in effect amounted to a return to the group rights of the ILO interwar period and a strategic turn against the individual rights concept. (A state of emergency, by the way, had similarly been declared earlier on by the British and French colonial powers when they combated anti-colonial forces respectively in Kenya from 1952 to 1956 and Algeria between 1954 and 1962. As Fabian Klose shows in his chapter, they thereby abolished recently codified universal human rights, whose effective implementation they had blocked earlier. These emergency laws also legalized the radicalization of colonial violence, particularly in the form of collective punishment through internment and resettlement.)

Human-rights discourse has always been fluid. A historical study of its evolution needs to include analysis of the strategic usage of varying languages of human rights by western and non-western governments, by lawyers and by non-governmental organizations – and also by those suffering or claiming to suffer under violations of human rights. In her chapter, Lora Wildenthal examines a German professor of law from Bohemia, Rudolf Laun, who by the end of the First World War had become a Social Democrat and a vocal defender of the Weimar Republic. In his search for the sources of international law, Laun developed the notion of the autonomy of law, saying that law was a category of human action separate from mere power or coercion. He argued that genuine law was based on a widely-held public sense of justice, democratic entitlement, and the right of nationalities to self-determination. Despite his political leanings Laun managed to keep his post after 1933 but acquired an anti-Nazi reputation which furthered his career in the aftermath of 1945. As long-serving Chair of the German Society for International Law, he pushed for individuals and non-state groups to be recognized as full subjects of international law and for the ‘right to the homeland’. This concept overlapped with the familiar concept of national self-determination and was associated with the German and Austrian expellee lobby, concerned with the interests of those displaced after boundaries were redrawn in 1945. Beyond this specific context, it addressed problems of the rights of indigenous and ethnic groups that had arisen elsewhere in the world. With these views – one of the earliest usages of human-rights language by Germans after the Second World War – Laun put himself in the vanguard of a hitherto unrecognized tradition of German pioneers of human-rights thought. He argued his case in line with a claim for a continuous German victimhood starting with the Paris peace settlement, followed by Nazi rule, Allied occupation, and the expelling of ethnic Germans from eastern territories. It may be added that a similar claim of human-rights violation was made at the time for German POWs still in the Soviet Union. The example shows how the association with German victims made the human-rights discourse one invoked by the political right before ideas of the homeland were later rephrased in terms of national liberation movements and decolonization and reappeared on the left of German politics.

What can we take from the historical perspective on human rights beyond particular cases? Mark Mazower’s chapter explores the collapse of the nineteenth-century European standard of civilization as the dominant and exclusive norm for the international community by 1945, and its subsequent replacement by respect for human rights as a new global norm. As Mazower shows, this was not a straightforward change of orientation. The Cold War also produced the cult of national interest with its disregard for moral norms in favour of economic resources. Civilization became interchangeable with modernization. Emergent states would now be internationally recognized as independent before they were modernized; they would strive for economic, technical and social development by means of state policy and external assistance. The result was no increase in the observance of individual human rights. Despite the global usage of human-rights language as the norm for the international community, the capacity for enforcement decreased, coming to rely ever more on international and domestic public opinion and on advocacy by non-governmental organizations. The latter were unelected and self-appointed, speaking for others but sometimes only for themselves.

As this volume shows, we can also discern distinct patterns in the political history of human rights. Dirk Moses, who here lucidly analyses the story of genocidal war crimes in Pakistan summarized at the beginning of this review, highlights the contradiction between international human-rights law and humanitarian aid. Had the UN Secretary-General attempted to pursue Pakistan on violation of human rights in 1971, he might not have been able to organize relief for refugees because of opposition by other states. International condemnation or court procedures may prevent access to other forms of help. This also applies to the various forms of development aid. It seems to me therefore that we should study human rights in the context of humanitarianism in general, not only as a legal field in its own right. Neighbouring fields – such as humanitarian assistance, complex emergencies, development policy and so on – may be distinguished for analytical purposes yet must also be considered in relation to each other. Political actors, both past and present, have consistently blurred the lines between these activities for their own purposes, playing off one sort of humanitarian initiative against the other. Which activities were regarded as political and which not also depended on circumstances and interests. From this it follows that national sovereignty has not been not the only ‘enemy’ of effective humanitarian law, although it has certainly been a formidable one, strengthened throughout the world after 1945 through the dissolution of the European empires. Ever since human rights have become a recognized feature of international diplomacy through the United Nations and the various declarations since 1948, geo-strategic thinking, security issues, economic interests, ideological beliefs and power have competed with human-rights politics.

On the other hand, international declarations of human rights have also affected domestic and international politics. Jan Eckel’s insightful chapter on the human-rights campaign against Chile in the seventies shows that its effectiveness also depended on how far the regime was willing to isolate itself from public opinion in the world. Clinging to the image of Chile as a civilized Western country, the regime was unable to turn aside human-rights demands entirely, compelling it to permit internal investigations by the UN. The country was surveyed in detail and watched closely for years by a world public. This applied similarly to rights advocacy within the Soviet sphere. If we look for ruptures and contingencies rather than assume an unavoidable rise of human rights, the late 1960s and the 1970s apparently constituted a period of transformation. Particular instances were formative for global humanitarian politics: Biafra, Bangladesh, Chile and South Africa stood out. The concern for human rights mobilized private individuals and groups in a new way. By linking international and domestic spheres, it created networks between individuals and groups across the borders of nation states – and it connected rights advocates and victims.

The end of the Cold War spawned several ethnic or inter-communal wars in Europe (the former Yugoslavia) and beyond. These conflicts generated complex emergencies and humanitarian crises linked to large-scale violent conflicts: civil war, ethnic cleansing and genocide. What was remarkable about international reactions in the 1990s was the unprecedented role of the UN and some of its specialized agencies, as manifested most conspicuously in international tribunals, changes in refugees’ regimes, the establishment of ‘safe zones’, and the combination of peace-keeping with the protection of humanitarian action. Still, these developments may also be interpreted as a sign of limitation. To emphasize ‘humanitarian’ issues, it could be argued, reflects the tendency of multinational institutions to agree on the lowest common denominator rather than decide on substantive policy to resolve conflicts. The question whether we have witnessed a new departure therefore remains unanswered. The military humanitarian interventions which took place in northern Iraq in 1991, in the former Yugoslavia between 1992 and 1995, in Somalia in 1992, Rwanda in 1994, Kosovo in 1998-99, and Sierra Leone in 1998 do not necessarily imply that state sovereignty generally comes second to international humanitarian action. Sovereignty had broken down inside these countries before outside intervention was considered.

In sum, this volume makes an invaluable contribution to the study of human rights by treating them historically, foregoing familiar triumphalist narratives about steady progress in favour of detailed examinations of the contingent usage of human rights as political language and instrument. One final thought, nevertheless. There is not much about gender in this otherwise excellent volume. Probably some 200,000 women were raped during the war of independence in East Pakistan in 1971. ² These women were officially referred to as birangonas (‘war heroines’). However, there was a discrepancy between their national position of ‘honour’ and their local receptions which included sanctions and the scorn of neighbours. For women who had become pregnant there was a stark choice: either to have an abortion or to give away the children after birth for adoption by foreigners. Abortions, which were made legal by emergency regulations, were interpreted as a way of ‘purifying’ the body from its fouling by enemy soldiers. Together with international adoption, it signalled efforts to decontaminate the body of the Bangladeshi nation and to make these women, as the anthropologist Nayanika Mookherjee argues, again available to the new nation. ³

We should ask ourselves whether it is sufficient or appropriate to describe the rape and the treatment those women received afterwards in terms of human-rights violations. The official title of ‘war heroines’ apparently was not accepted by all the women nor by their neighbours, particularly not by male ‘liberation fighters’ in the villages. Yet does the title of ‘victim’ of human-rights violations really serve them either? This designation came from activists in the 1990s who looked for supporting evidence in the context of trials of political collaborators and who strove to document histories of war crimes. This late victimization involved putting these women on public show some twenty years after the events, and made them subject to renewed disdain within their local communities. Their sufferings make very plain to me how human rights are always a matter of politics, of social control and inequalities at the most concrete level. And it shows how difficult it is, for historian or anyone else, to give a real voice to people who have suffered abuse.

NOTES AND REFERENCES