Judgment Day


Review of The Endtimes of Human Rights, by Stephen Hopgood

Ithaca: Cornell University Press, 2013

Stephen Hopgood’s provocative, impassioned book serves as both an argument and an abbreviated history of human rights. Hopgood offers colorful snapshots of human rights advocacy groups, media strategies, and even architecture in service of his description of four very different ideologies: European secular humanism, American human rights pragmatism, rising neo-Westphalianism, and religious conservatism. He moves swiftly from the blood-stained fields of Solferino to the trials at Nuremberg and the construction of the United States Holocaust Museum to the creation of the International Criminal Court up to current human rights disasters in places like Syria. In so doing, he highlights how the adherents of different ideologies respond to the exertion of state authority in addressing social unrest and economic inequality as well as to the state’s use of violence more generally.

In sketching out the emergence, dominance, dissipation, and potential resurgence of these ideologies over time, Hopgood advances two related theses. First, the fundamental tenets of human rights - that certain rights are universal, secular, and non-negotiable - enjoyed a brief persuasive moment in Europe, most notably after World War II, and were pragmatically deployed by the United States, but these tenets face increasing challenge by neo-Westphalian states who value their sovereignty and by conservative religious groups who embrace different moral codes. Second, the global superstructure of human rights, including treaties, international criminal courts, and the responsibility to protect doctrine, fails to effectively combat large scale human atrocities or respond to the everyday needs of those who experience structural oppressions. Given these limitations, he predicts a funeral for international human rights courts, increased humanitarian interventions, and an expanded reach of global human rights advocacy, but does not shed any tears. Rather, he hopes the waning of the human rights superstructure and ideology will reopen the space for short-term relief work on seemingly non-partisan issues like disease and disasters.

Hopgood’s book adds a different perspective to the recent empirical debate on the value of global human rights and their related laws and institutions. For instance, political scientists and international law professors have long been disputing when, if at all, human rights treaties change the behavior of the states that ratify them. Early scholarly work often assumed fairly robust compliance without rigorous proof. The next wave challenged this assumption and introduced empirical evidence to suggest state behavior did not improve with ratification. Some scholars even suggested ratification might serve as cover for a crackdown while others read the same empirical evidence as merely enhanced transparency about bad state behavior. As the debate grows ever more methodologically sophisticated, a split still exists over the benefits of human rights treaty ratification. Some recent studies are tentatively optimistic, but even many of them show relatively small human rights gains for a discrete subset of newly democratizing countries. The empirical evidence on international criminal justice follows a similar trajectory. The earliest work often assumed trials served justice and provided some deterrent effect; the next wave offered critical empirical challenges; and now ever more fine-grained analysis has identified a small beneficial effect while some commentators still lament either the irrelevance of international criminal courts or their counterproductive incentives for future actors. While Hopgood refers to these empirical debates, he largely sidesteps them. Instead he explains why he believes the human rights superstructure is systemically likely to fail and uses a few notable incidents to support his thesis. He is at his best when excoriating the hubris of human rights advocates who believe they have created a superstructure that renders their beliefs unassailable and improved outcomes inevitable.

Ideology #1 : Secular humanism

Hopgood opens with the rise of secular humanism in nineteenth century Europe. He uses an extended religious metaphor to capture the relationship between secular humanism and the international export of its mission through the International Committee for the Red Cross (ICRC). Hopwood suggests that middle-class Europeans needed a way to cope with the contradiction of social and industrial progress with intensifying violence; social and economic inequality; and the increasing potential for social revolution. He contends that reformers crafted a new religion that enshrined a willingness to sacrifice to combat human suffering. But why did middle-class Europeans find this approach compelling? Hopgood identifies Henri Dunant, father of the International Committee of the Red Cross, as a secular witness, humanitarian hero, and source of founding myths; the innocent victim of wars as sacred bodies; the ubiquitous red cross as the symbolic representation of that suffering of innocent victims; and innocence itself as a secular soul justifying a mission to protect it. Hopgood concludes this new religion avoided significant redistribution of power or resources, but allowed adherents to assuage concerns they might have about the abuses of states.

 He then identifies the legal infrastructure built upon and designed to spread this secular religion, emphasizing the Geneva and Hague Conventions as the “foundation of modern international humanitarian, human rights, and justice law.” He highlights how the ICRC in acting as the guardian of this infrastructure simultaneously facilitated the human rights crusade while remaining neutral on the Holocaust as it unfolded, refusing to divulge information it had about German practices towards Jews, gypsies and others. In the aftermath of World War II, Hopgood argues that advocates brushed aside the ICRC’s omissions and instead used the Holocaust as a pivotal event to create a metanarrative of human rights. Rather than acknowledge fault or complicity or political interests as leading to genocide, human rights advocates depicted Nazis as “beyond civilization, as evil” in order to preserve the prevailing system. They memorialized the trials at Nuremberg and provided tours at Auschwitz as cultural markers of a clash between good and evil that transcends history and politics. They rejected Hannah Arendt’s view of Nazis as mere banal criminals and instead embraced the Holocaust as providing for a transcendent and universal moral authority. Hopgood dryly adds that this European-centered view downplays the significance and importance of other genocides and mass atrocities as those in Cambodia, Bangladesh, and China’s Great Leap Forward and the Europeans that held these views failed to prevent these acts.

2. Ideology # 2: American pragmatism

As Europe’s global reach began to decline and the United States emerged as a major power, Hopgood tracks that shift in their varied approaches to human rights. Whereas the Europeans proselytized a secular religiosity, Hopgood argues that the Americans used human rights as a foreign policy tool to promote neoliberal democratization. They transformed human rights advocacy away from solidarity-based efforts like Amnesty International’s letter-writing campaign and towards Human Rights Watch’s elite, professional approach, relying on the finances, but not the actions of the middle class. While the Europeans allowed human rights to infuse its domestic decision-making with institutions like the European Court of Human Rights, Hopgood sees Americans as resisting bringing human rights home. He observes that the United States has opted out of major human rights treaties, particularly those requiring economic redistribution and social rights, exempted itself from the reach of the International Criminal Court, and is reluctant to criticize democratic allies, like Israel, for human rights abuses.

Hopgood argues that Europeans were willing to rely on the United States to enshrine global norms. Transformed by the power of the American state and an advocacy strategy driven by elite mobilization, human rights became linked to democratization efforts. Hopgood argues that from the 1970s onward human rights are a “new ethical brand for sale to the American, and global, middle class.” That brand is driven by middle class money and “slacktivism” rather than participatory behavior. He laments this shift as he finds it unlikely to engender “sustained or sustainable ethical commitment.” As Hopgood would have it, the U.S. government may pursue human rights goals insofar as it aligns with its goals of democratization, whereas the public is content with flash campaigns like Kony 2012 unlikely to yield real human rights gains.

3. Ideology #3: Neo-Westphalianism

Hopgood spends less time describing what he calls the neo-Westphalians, but they are presented as holding an important countervailing ideology. The neo-Westphalians are a group of rising, mostly non-democratic, mostly Asian states, like China, Russia, Brazil, India, Indonesia, and Malaysia, which have their own norms. Many of these norms, such as extreme state sovereignty, are not in line with the human rights project. The neo-Westphalians instead view human rights and its infrastructure and its exportation as a vestige of European colonialism and American imperialism. Nor are many of them excited about America’s simultaneous democratization project. He suggests states such as China and Russia will provide “funding and political cover for other states to resist” human rights and democratization efforts. He envisions this pushback manifesting itself in resistance to the International Criminal Court, to humanitarian interventions, and to new international human rights treaties.

4. Ideology #4: Zealous Religious Conservatism

Hopgood presents the resurgence of conservative religious movements as another significant alternative to the global human rights project. In his words, “religious zeal is back.” Unlike the light engagement of middle class slacktivists promoting human rights, he suggests that tight-knit religious communities create long-term relations with expectations of adherence. Their norms and values are reinforced in schools, families, and community pressures. Hopgood predicts they will be particularly opposed to human rights for women and sexual minorities. He believes the opportunity exists to forge a cross-religion coalition with conservative Muslims, Christians, and Jews as well as an alliance with neo-Westphalians.

5. The funeral

Hopgood closes his account with a symbolic funeral for the global superstructure of human rights. Hopgood argues that advocates claim human rights as the new natural law - allow[ing] no compromise,  . . . legitimated by nondiscriminatory authority, and trump[ing] competing norms not authorized in a similar fashion”-  and then demonstrates instead that these rights and their supporting institutions are in fact carefully constructed by humans. But he overstates what flows from this observation. The existence of human rights may not be unassailable and their spread may not be inevitable, but nor is their demise preordained. And more important, the inability to make “never again” a reality need not discount the concrete gains a human rights superstructure may still achieve.

Objection #1: Possible Human Rights Expansion for Sexual Orientation

Hopgood starkly contends that a multipolar world is one where sovereign states and religious groups will increasingly “block progress in civil liberties and gender and sexual orientation” with the possible exception of sub-Saharan Africa as a “laboratory for European moral spectatorship.” Recent events provide early support for Hopgood’s hypothesis, with legal same-sex marriages limited to the United States, some European countries and outliers like South Africa and a few countries in Central America. It is worth noting, however, the vast majority of countries have decriminalized homosexual behavior. In addition, twice as many states have voted in support of United Nations General Assembly resolutions in favor of LGBT rights as those signing a 2008 statement opposing them.

Human rights challenges to traditional treatment of sex, gender, and sexuality will likely encounter significant resistance from religious advocates, but there is reason to be optimistic about overcoming such resistance. Hopgood fails to account for age-based trends. Both here in the United States and in many foreign countries, including some that are quite religious, opposition to gay rights is often significantly lower for younger people. If each religion was monolithic and governed by zealots, such gaps would be surprising indeed. But they aren’t. Large Presbyterian and Episcopalian denominations have voted to accept same sex marriage. Albania, Lebanon, and Turkey, all Muslim majority countries, have recently considered legalizing same-sex intercourse or marriage or both.

Human rights advocates can build upon this age-gap as Islam, Christianity, and Judaism all have some cultural and historical practices more tolerant of diverse sexual orientation and fluid gender roles. Hopgood’s stronger argument may be that an advocacy strategy emphasizing abstract universal, secular, nondiscriminatory human rights may not persuade the devout to accept non-traditional sexual orientations. He rightly notes that religious communities have a number of levers to encourage maintenance of the status quo. That said, Hopgood underestimates the potential of relationships between global human rights advocates and local advocates to craft persuasive strategies that can be made compatible with religion and sovereignty.

Take, for instance, the example of Abdul Ghaffar Khan, a Pashtun reformer in Pakistan who achieved significant political and economic reforms as well as improved the position of women in the 1920s through the 1940s. While he was himself quite religious, he forged a nonsectarian and inclusive movement. He took the kind of universal ideas that human rights advocates promote and merged them into traditional symbols, ideas, and concepts. Similarly, modern gender and sexual orientation pioneers can borrow some of human rights’ universal aspirations while giving them a needed local grounding. Hopgood might object that such an approach by definition rejects the totalizing approach of human rights as secular and legitimated by a non-discriminatory approach. But such an strategy would not exist in the absence of the work that human rights advocates have performed while allowing a role for religiously-minded individuals to form consensus on the objectives if not the underlying justifications.

Objection #2: Possible Human Rights Protection through Early Warning

Hopgood also too quickly dismisses potentially valuable genocide and atrocity prevention work While the new Responsibility to Protect doctrine and international criminal tribunals might be the most visible efforts of global human rights advocates, an additional, quieter strategy to prevent serious abuses is emerging. Both the United States, via the Atrocities Review Board, and the United Nations, via the Human Rights Up Front initiative, are deploying social science to detect potential mass atrocity and genocide hotspots. Such early warnings can trigger preventative diplomacy and other actions short of full-blown humanitarian interventions. While Hopgood rightly notes that neo-Westphalian resistance and social distance might doom most large scale protective military actions, as they did in Syria, more successful action might be taken at earlier stages.

 Why won’t the same political limitations that Hopwood identifies apply to these early warning strategies? First, the sovereignty costs may be lower. Besides sending in troops or using targeted strikes or even enforcing a no fly zone, outside states or organizations can play a variety of important, lower key roles as an honest broker, spotlight shiner, coalition builder, local group supporter, or benefit distributor. For instance, the Atrocities Prevention Board identified an upcoming election in Burundi as a potential trigger for mass atrocities as signs suggested the government might try to put down pro-democracy forces. While Hopgood allows that Africa is a place where the United States might still have the will and the authority to promote human rights, his story does not really account for the kind of support the United States gave to human rights. The Atrocities Prevention Board did engage in high-level diplomatic efforts, but did so backed by extensive engagement with village and local leaders, as well as keeping a conflict advisor on the ground, threatening to withhold security assistance and other goodies like membership in a regional peacekeeping agreement. Such efforts may not bear fruit in states like China or Russia, but serious gains elsewhere might be made and ought not be discounted.

Second, early action may be more palatable to domestic audiences worried about foreign entanglements and the safety of their own troops. Politicians need not worry about generating support from those who feel no solidarity with the potential victims nor about paying a cost at the polls for a soldier being dragged through the streets like in Mogadishu. Take, for instance, the Atrocities Prevention Board’s successful role in the rapid response to ISIS’s attempt to force Yazidi Iraqis from their homes. Now Hopgood might rightly note that such actions are only likely when they occur in places where the oppressing group or state lacks the support of a patron like Russia and China. But that still allows much room to maneuver. For instance, the Burmese Rohingya present a interesting test case. Will Obama’s Atrocities Prevention Board focus not just attention but sufficient policy efforts to divert or dampen what has been called a slow genocide? I can’t say the answer is definitely yes, but Hopgood’s pessimism may be unwarranted in situations like these.

Hopgood sets the standard too high for validating the human rights superstructure. If “never again” is taken as a benchmark rather than a rallying cry, then I understand why he’s dressed for the funeral. If success requires no more genocides, no more significant state-sponsored human rights violations, no structural oppression, then yes, the human rights movement has been a failure. But even if that’s the aspirational goal of human rights advocates, the more relevant question is whether the resources, be they time, money, or political and moral capital spent on creating a global Human Rights superstructure produced value and whether it was enough value to justify not using those resources elsewhere.

Objection #3: Possible Human Rights Integration at Home

My final criticism is of Hopgood’s premise that Americans treat human rights as simply an export luxury good. Of course, the United States has abstained from major human rights treaties, particularly the ones focused on economic rights and women’s rights, as well as from the International Criminal Court. But the language and ideas and even some of the doctrine drawn from the global human rights infrastructure may be persuasive at home. And these domestic human rights campaigns are exactly of the sort that Hopgood should be championing as they impact the lives of ordinary people.

Take the Affordable Care Act, or as it is more colloquially known Obamacare, which facilitated health insurance for 32 million Americans. In 2008, Barack Obama’s campaign emphasized that health care should be a right for every American. Although Obama did not emphasize the human rights dimension as he pushed through the legislation, many other domestic advocates did. While Obamacare is hardly a European single payer system, it shows the potential for human rights advocates to forge alliances and achieve pragmatic goals. In fact, now that the Affordable Care Act has passed, the Administration uses it as evidence of its compliance with the international Convention on the Elimination of All Forms of Racial Discrimination as the legislation helps reduce racial disparities in access to health care.

On a smaller scale, Detroit’s extensive water shut-offs have launched a bottom up human rights campaign that seeks to make international linkages to improve conditions at home. As Professor Martha Davis has described, local coalitions have joined with a global initiative to document and protest the violation of the human right to water. In the wake of 20,000 water shut-off notices, Detroit water activists recently held an international gathering to help exchange information and improve water access. They have submitted letters to a Special U.N. Human Rights Rapporteur who in turn visited Detroit and emphasized the importance of the United States’ compliance with the right to water as derivative of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The success of this campaign is by no means guaranteed, as evidenced by a bankruptcy court’s rejection of human rights analysis, but it illustrates Americans’ interest in the concept and willingness to employ the language and linkages provided by the global human rights infrastructure. In fact, some speculate that the backlash from the court’s rejection led the city to increase and expand assistance to those have difficulty paying their water bills, as well as make a recent announcement that it would halt the shutoffs. [Meanwhile, in a far cry from the slacktivism Hopgood laments, Detroit residents began to take it upon themselves to enforce a human right to water by “establishing an emergency water hotline and delivering thousands of gallons to families whose service had been cutoff.”

These are just two examples of many. The United States Network on Human Rights boasts well over 100 national member organizations. A growing number of U.S. law schools have human rights clinics that address issues as wide ranging as drone strikes and domestic violence. While the viability of any of their efforts is not a foregone conclusion, the endtimes of human rights is not yet upon us.

Posted on 18 November 2015

LESLEY WEXLER is Professor of Law, University of Illinois College of Law.