The case of Phil Shiner, struck off by the solicitors’ disciplinary panel for the attempted procurement by financial inducements of spurious abuse claims against the British army in Iraq, sadly illustrates that the ‘post-truth’ era has penetrated even the noble cause of human rights (‘Review of Iraq war cases after lawyer struck off’, Guardian, 3 February 2017).
While this episode is, of course, a grotesque aberration, myth, misinformation, misrepresentation, and intellectual tunnel vision, coupled with excessive and unsustainable demands, are, nevertheless, increasingly prevalent in the contemporary movement, and not confined to its opponents as many might suppose. This not only devalues the currency, it also stokes the scepticism towards human rights currently sweeping western states and societies.
There are various manifestations of the problem. One is the Manichean view which sees the world as bifurcated between the heroic human rights good guys constantly engaged in battle with the wicked anti-human rights bad guys. While this conflict certainly exists, it is a big mistake to ignore or downplay the complex, multidimensional territory in between because it is here that the really difficult challenges lie. For example, many have lost sight of the fact that, once we enter this hinterland, it becomes apparent that few, if any, human rights are genuinely absolute, and that most, if not all, need to be reconciled with each other and with competing public interests. Resolving a conflict between two instances of the ‘absolute’ right not to be inhumanly or degradingly treated cannot logically, for example, be achieved without one becoming ‘less absolute’ than the other.
This was the dilemma from which the European Court of Human Rights conspicuously averted its gaze in the notorious Gäfgen case when it held that, merely threatening a known child kidnapper with torture in order to rescue the kidnapped child, is a violation of the kidnapper’s right not to be inhumanly treated, even apparently if it is known for certain that the victim is alive, undergoing unspeakable torture as a result of the kidnapping, and that even the mere whisper of the prospect of mistreatment will induce the kidnapper to talk and facilitate rescue. Or take the view expressed by the German courts, that a ban on laser sport – a harmless combat game in which participants shoot each other with laser guns – is necessary to maintain the human right to dignity, even though boxing and martial arts remain legal in Germany, and that shooting down a plane hijacked by terrorists for use as a missile, would violate the human rights of the doomed passengers even when such an intervention would save the lives of others on the ground.
Another example, closer to home, is the view that the UK’s counter terrorist Prevent strategy is racist and Islamophobic, and systematically violates human rights. Yet a cursory examination of the legislation and its implementation indicates that, though rights have been limited and a few abuses have occurred, it is, apart from the counter-extremism agenda, largely legitimate, proportionate, necessary, and welcome in a state committed to democracy, human rights, the rule of law, and cosmopolitan community cohesion.
If it is to remain credible, the contemporary human rights movement, therefore, needs a much firmer commitment to clear thinking, and a better sense of realism and what is deliverable. To begin with, there must be a much more honest admission that, although human rights should be taken seriously and installed at the very centre of all national and international systems, they can never be fully implemented. In the final analysis, this is not because of the innate wickedness of those who exercise power, or remedial flaws in the processes through which they seek to do so. It is because determining what full implementation means will always be controversial since human rights are by nature vague, imprecise and open to competing interpretations even by those genuinely striving to be faithful to them.
Second, debates about human rights need to be more firmly anchored in concrete norms of international human rights law, rather than in intuition-based denunciation, in spite of the significant problems which afflict the international human rights regime, not least the over production of norms, excessive bureaucratization, and chronic ineffectiveness. This is, after all, the closest thing the world has to a universal value system, a resource it can ill afford to do without as it grapples with a series of profound existential challenges. Fundamental norms, provided by international human rights law, must also be fully and properly enshrined as constitutional rights in national legal systems in spite of the fact that this tends to turn them into formal legal doctrines with a life of their own divorced from the lived experience of real flesh and blood people. Although huge dilemmas about the role of judges in governance and the legislative process also arise, properly understood and managed, these irresolvable tensions can, and should, nevertheless, be creative rather than destructive.
Finally, there must be better recognition of the fact that, like death and language, human rights are both universal and relative. Language, which we all speak, assumes some 7,000, mostly mutually unintelligible, forms in the world today. And death, which will claim us all in the end, can strike in a multitude of ways. The same is true of human rights. A full commitment to the right to life may, for example, justify both liberal and conservative abortion laws because there is no obvious objective answer to the question of when a human life acquiring human rights begins.
While Phil Shiner, hitherto an inspirational champion of human rights, has ended his career by considerably damaging the cause, his fall from grace nevertheless provides an opportunity for some hard truths, which some will find unwelcome, inconvenient and uncomfortable, to be confronted. Few, if any, others are likely to embark on the ‘noble cause corruption’ he embraced. But, sadly, many have demonstrated less compunction about myth, misconception and muddled thinking. The human rights movement will, however, be stronger and more effective if it tackles, rather than ignores, these challenges.
Originally posted by the University of Bristol Law School Blog