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The right to life and the responsibility to protect in the modern world by Louise Arbour, United Nations High Commissioner for Human Rights
09 December 2005
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Boston, 9 December 2005
Distinguished guests,
Ladies and Gentlemen,
It is a pleasure and an honour to be with you today as we commemorate the sixtieth anniversary of the Nuremberg trials.
This anniversary inevitably brings us back to the events that triggered the Nuremberg trials: the horrors of the holocaust and the unprecedented human suffering brought about during the Second World War. Fifty-five million people lost their lives in the course of that brutal conflict and many more lives were altered forever as the impact of the war is still felt today by survivors, their families and their wider communities.
Yet in full vindication of the resilience of the human spirit, the horror of that war provided the impetus for a new era in international human rights. It led the international community to engage in an unprecedented, although still imperfect, effort to prevent the unfettered exercise of state sovereignty in order to protect populations against gross abuses of power.
It also paved the way towards a deeper awareness of the sanctity of human life and a greater understanding of the need to ensure the right of all human beings to live their lives in dignity.
Through the Charter of the United Nations, states reaffirmed their ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of nations large and small …’ and resolved ‘to save succeeding generations from the scourge of war’.
Through the Universal Declaration of Human Rights, they recognised that ‘the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. They solemnly proclaimed ‘the right to life, liberty and security of the person’ - the ‘supreme’ human right, a right without which all other human rights would lose their meaning.
Through the establishment of the International Military Tribunal at Nuremberg, they committed to holding accountable those who design, authorize or carry out massive human rights violations, in particular violations of the right to life.
The Nuremberg trials paved the way for recourse to personal criminal responsibility in the international context and led, after a long period of inertia, to the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and, ultimately, to the International Criminal Court. Much has been said about the use of criminal justice, through the personal criminal responsibility of political and military leaders, in the prevention, denunciation and punishment of the most virulent attacks on the right to life such as genocide, crimes against humanity and war crimes. Yet the usefulness of criminal punishment has its limits, among the most obvious being that it can only be activated after the fact and that its deterrence effect is likely to take a long time to bear fruit.
Hence the significance of the emergence, in international law, of the concept of the responsibility to protect. At the conclusion of the World Summit in New York last September, all member states of the United Nations accepted the principle that national governments have primary responsibility to prevent crimes against humanity, war crimes, genocide and ethnic cleansing through ‘appropriate and necessary means’ but that if they fail to do so, the international community, through the United Nations, must use ‘appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter’, to help protect populations from such crimes.
This may become as important a milestone in the evolution of human rights protection under international law as the Nuremberg Charter has been for the establishment of international criminal law. By committing to the responsibility to protect, for the first time the international community has acknowledged that serious human rights violations - in and of themselves - require an international response, regardless of whether or not such violations constitute a threat to international peace and security, as classically understood.
The thrust of my talk today will build on the significance of these developments for the protection of the right to life, in the holistic sense of that term. I will attempt to underline the shortcomings of our current approach as well as the opportunities for a more ambitious agenda.
It is too early to say whether the commitment to the responsibility to protect constitutes a real breakthrough in our approach to protect the right to life. Political commitments are worthy only to the extent that they are given meaning in practice. One may question whether the United Nations – by which I mean the Member States - currently has the real capacity and the will to discharge this obligation to protect in the face of defaulting states.
In fact, some might be forgiven for wondering what the big deal is in the Summit’s recognition of the responsibility to protect. That the members of an Organization founded amidst the ashes of the Holocaust decides sixty years later to prevent further acts of genocide and other mass atrocities, while a positive move, is not necessarily groundbreaking. Compound this with recent, or event current, state practice, and the basis for legitimate skepticism becomes even more understandable.
But in a sense, this is precisely the significance of the undertaking. The concept of the responsibility to protect articulates a basis for intervention in the face of our continued tolerance for violations of the right to life.
The problem, however, runs deeper. It relates to a failure to understand what is contained in the notion of that phrase: the right to life.
Our efforts to protect life will forever fall short until we develop that fuller understanding: an understanding which requires us to acknowledge, and act on, the realization that intervening to halt mass killings will never be as effective as our aspirations demand without a more nuanced, more holistic understanding of the ingredients of that right.
Allow me a clarification at the outset. I do not propose to enter into a lengthy discussion on the right to life as this phrase is now often understood in the United States. In this country, as elsewhere, complex moral debates on such issues as euthanasia, bioethics and abortion currently take place, and are often referred to, in certain quarters, as debates centering on the right to life. Those issues raise questions that are addressed to our individual moral, ethical, and spiritual beliefs.
I do not propose today to enter into this debate. My reference here to the right to life is to this right as articulated in international human rights law.
The right to life, I postulate, is the foundation stone of all other human rights. It refers to an inherent, ‘supreme’ right that reflects the most central values to humankind – self-preservation and dignity. It gives meaning to all other rights just as they, in turn, give substance to it. A quantum leap is required in this appreciation. Ensuring that this right is realized in full will provide the surest means available to prevent the recurrence of the kinds of mass violations that the responsibility to protect seeks to halt.
For that reason, conceiving of the responsibility to protect only in the context of four international crimes – as serious and heinous as these are – misses the point and unduly trammels our thinking.
Arguably, poverty, hunger, educational deficits, restricted access to health, inequitable distribution of resources, discrimination, and an absence or erosion of justice and of the rule of law generate more insecurity, lead to more instability and endanger more lives than those ultimate violations on which the responsibility to protect currently focuses.
In short, the problem is that the prism through which we view the responsibility to protect – and thus our commitment to uphold the right to life – is unduly myopic.
For so long as we continue, consciously or otherwise, to remain within the confines of the old, unspoken orthodoxies which view human rights as inherently intrusive and antithetical to state interests; for so long as we continue to view human rights violations as being of concern only when committed on a scale such as to threaten international peace and security; and, in this regard, for so long as we remain blind to the fact that the root of our collective security lies in our individual well-being, then the rhetoric of New York will amount to nothing.
Yet there are causes for optimism.
First, there has been real progress in reconciling respect for state sovereignty with the understanding that such a concept does not relieve the international community of its responsibility to protect human rights and punish those guilty of mass human rights violations.
At Nuremberg in 1945, states established in legal terms the concept of crimes against humanity – a phrase first used in reference to the systematic killing of Armenians during the First World War. At Nuremberg, they also committed to bringing to justice perpetrators of human rights violations, whether or not they were in breach of the domestic law of the country in which those violations took place.
Since then, international legal protections have been enshrined in a comprehensive web of instruments with detailed provisions on international humanitarian law, international refugee law, international criminal law and international human rights law - a framework which represents, perhaps, the greatest legal triumph of the last century. At the World Conference on Human Rights in Vienna in 1993, representatives of 171 states recognized that ‘the promotion and protection of all human rights is a legitimate concern of the international community’, a principle which is by now beyond challenge.
The establishment of ad hoc international criminal tribunals in the 1990’s – achievements which would not have seen fruition but for the active determination of the United States and of individuals such as John Shattuck, I should point out – added a crucial step towards giving this legal framework practical meaning for victims of international crimes. Other models, such as the Special Court for Sierra Leone, have also emerged. The creation of a permanent International Criminal Court further signaled the resolve of the international community to bring perpetrators to justice and deter future crimes.
The commitment by world leaders in New York to individual and collective action against genocide, war crimes, and crimes against humanity, I would argue, is a natural step in this progression.
And second, the responsibility to protect focuses on preventing abuses as much as, if not more, than on intervening once those abuses are already underway. While the responsibility to protect explicitly reaffirms the possibility of resorting to collective action under Chapter VII of the United Nations Charter, this is to be seen as the ultimate option, not the first.
Indeed, in 1998, Secretary-General Kofi Annan declared that the 21st century ‘must be the age of prevention’. I agree and, in that regard, I see the responsibility to protect as a declaration of a common preventive policy, one which will address not only manifest violations of the right to life but also their root causes and that this approach is required for reasons of law, morality and efficiency. In that sense, the responsibility to protect is very much complementary to international criminal justice.
Yet both concepts in my view unduly focus on predatory actions by the state against the individual without addressing the full range of obligations imposed upon states by the right to life enshrined in international human rights law. The essence of that right can be traced, in one form or another, through all cultures, societies and religions around the world. This right is rooted, as a fundamental human value, in early codes - from ancient Babylon to Hindu and Buddhist texts, from Confucianism to ancient Greek philosophers, from ancient Judeo-Christian theologians, to Roman law. It is a concept which permeates the earliest bills of rights, notably the Magna Carta, the American Bill of Rights and the French Declaration des droits de l’homme et du citoyen.
It was not until years later that the legal protection of the right to life was advanced through the International Covenant on Civil and Political Rights and other human rights treaties. Drawing on the spirit of the Universal Declaration, Article 6 of the Covenant states that ‘every human being has the inherent right to life’, including a right to protection by law, and a specific protection against the arbitrary deprivation of life.
This right has both positive and negative dimensions. It is difficult to understand why the right to life should be reduced to protection against arbitrary killings while in fact states have an express obligation to protect the right to life by law, without restriction. A more sensible understanding of the right to life would place an obligation on states to take all possible measures, for instance, to reduce infant mortality and to increase life expectancy, especially by adopting measures to eliminate malnutrition and counter epidemics, as well as to protect populations from fatal exposure to toxic waste.
Yet even in its narrowest sense the right to life in international law is not absolute. At the time the Declaration was adopted, the vast majority of United Nations member States still used the death penalty – and in fact, the death penalty was imposed by the Nuremburg and Tokyo tribunals themselves. As a result of political compromise, when the Declaration’s provisions were later transformed into treaty law, certain controlled exceptions were provided for, including capital punishment and death resulting from law enforcement or armed conflict. Regional human rights treaties, such as the European Convention on Human Rights, the American Convention on Human Rights, and the Arab Charter on Human Rights also admit capital punishment as an exception to the right to life. Paradoxically, the drafters of the Universal Declaration considered the death penalty to be fundamentally incompatible with the protection of the right to life and felt that its abolition should be the ‘common standard of achievement’ for member States.
This tension is reflective of the evolving nature of the right to life in international law. It is dynamic, not static. It evolves to confront new challenges, including moral, legal, scientific and political questions, as well as the increased aspirations and expectations of rights-holders, particularly as their demands find an outlet through the spread of democracy and communications technologies.
As I have suggested above, it is becoming increasingly apparent to many that in today’s world it is not war or arbitrary killing that constitute the greatest threat to the right to life. Each year, about 530,000 women die in pregnancy or in childbirth, and more than 10 million children die before their fifth birthday. The UN Development Programme suggests that this alarming trend is ‘fast approaching the point that merits declaration of an international health emergency’. Further:
· More than one billion people lack access to safe water and 2.6 billion lack access to improved sanitation. These factors contribute to the spread of diseases, which kill an estimated 3,900 children every day.
· 25 million people are currently living with HIV in sub-Saharan Africa - and only 4% have access to the medicines they need in order to survive. Worldwide, AIDS killed more than 3 million people last year alone.
· The vast majority of these deaths occur in developing countries and – crucially – most are avoidable.
These deaths constitute human rights violations and are as much an affront and a threat to human security, I would argue, as are arbitrary detention or torture. They represent an equally flagrant abuse of the right to life for those affected, threaten security and stifle human development. And they are equally demanding of an urgent response, at national, regional and international levels.
According to the most recent Human Development Report, the world’s richest 500 individuals have a combined income greater than that of the poorest 416 million. A staggering 1.1 billion people live on less than $1 per day. Those affected are among those most vulnerable to deterioration in their living conditions through poor nutrition; exclusion from education, justice and housing; lack of adequate health care; and restrictions on their privacy and personal security.
Inequalities within countries also have an impact on the full enjoyment of the right to life. Gender disparities, for example, exist worldwide and in some instances are so grossly pronounced that mortality rates among children aged 1-5 are fifty per cent higher for girls than for boys. Even in the United States, infant mortality rates are on the rise. These indicators reveal inequalities linked to access to health care, as well as income, race and ethnicity.
Legal developments in many countries around the world have begun to reflect these challenges to the right to life. Ten years ago in India, for example, the Supreme Court interpreted the right to life to include nutrition, clothing and shelter in considering whether the denial of emergency medical treatment at a government-run hospital violated an individual’s right life. Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996), SOL Case No. 169, 4 SCC 25, 3 SCJ 25, 2 CHRLD 109 (Supreme Court of India). More recently, in 2001 in South Africa, in a case involving children’s rights to minimum shelter, the Constitutional Court held that the realization of socio-economic rights, including access to housing, health care, sufficient food and water, and social security, is necessary to ensure human dignity, freedom and equality of all individuals. Government of the Republic of South Africa and Others v Grootboom, 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC). At the regional level, in 2001 the African Commission on Human Rights held that a state could be found in violation of the rights to life, health and housing by failing to take sufficient measures to protect a people from adverse impacts of oil exploration.
These cases illustrate the constituents of the right to life and its interdependence with other human rights.
So how do the recent commitments by leaders at the World Summit contribute to the protection of this most fundamental human right? What is the real significance of this development for the victims of human rights violations?
The Nuremberg trials exposed the grossest violations of the right to life by the deliberate actions of state actors, and led to the construction of an international legal edifice which was further enhanced by the promising doctrine of the responsibility to protect.
But where is that responsibility when by indifference, corruption, incompetence, greed or sheer inability to intervene, state actors permit or tolerate, rather than instigate, the killings of millions?
Even in the face of a robust legal framework - such as the Genocide Convention for example - effective preventive action has in practice been severely limited by the historical reluctance of states to intervene in the affairs of other states. Recognition of the inviolability of human life has rarely led to corresponding action to ensure its protection. Human rights considerations have been secondary to political priorities. Deference to national security interests, narrowly conceived of, and a stubborn adherence to myopic visions of state sovereignty have trumped concerns for the human security interests of victims even though, in a twisted irony, it is the security of its people – not just collectively but also, crucially, individually - that allows for the security of the state.
The implicit tension between states and their carefully guarded notions of state sovereignty, on the one hand, and the protection of individuals under international human rights law, on the other, must be resolved. We live in an evolving, globalized environment, one in which human security includes physical safety, economic and social well-being, respect for human dignity, and protection of human rights. Globalization has opened greater exchanges between different cultures, as well as increased economic integration. However it has also provoked a new, intensified sense of insecurity – one which is illustrated most graphically though acts of global terrorism and the phenomenon of failed states and their tendency to export their chaos far beyond their own borders. It has also provoked a new sense of entitlement, and a call for a more equitable distribution of the riches of this earth.
The responsibility of governments involves the provision of life-supporting protection and assistance to populations at risk. It requires the international community to use a range of measures to protect civilians where the government of those concerned fails to do so. It calls for a wide range of assistance actions and responses, including the responsibility to prevent, first and foremost, as well as to react and rebuild in the aftermath of serious human rights abuses. In extreme cases, the responsibility to protect may require recourse to military intervention in order to stop or avert human suffering, if non-military means cannot do so.
But the Summit commitment is silent on what these means necessary for protection might involve. The report of the International Commission on Intervention and State Sovereignty – an independent body which was tasked five years ago with tackling a range of questions related to the so-called ‘right of humanitarian intervention’ – provides some important guidance on what it could mean.
Crucially, the Commission stresses the prevention of conflict and human rights violations as the most important obligation of national actors and of the international community. A commitment to ensuring accountability and good governance, human rights protection, promotion of social and economic development, and a fair distribution of resources must all be seen as vital preventive elements.
At a minimum, prevention requires putting in place institutions to ensure the rule of law at the national level, including effective courts, an independent judiciary, a professional police force, national human rights institutions, and so on. Justice systems at national level, when properly resourced and independently operated, are the key to effective frontline human rights protection.
But I would argue that it would be short-sighted to focus protection efforts on a narrow understanding of the right to life. Protection also requires seeing to the basic social and economic necessities of all members of society, in particular those living in poverty.
We need to think more creatively about interventions to prevent unnecessary deaths and promote the right to live in dignity. Take current global health challenges, such as the avian flu, for example. People living in poverty in developing countries are the most vulnerable to ill-health from communicable diseases, partly as a result of weak health systems, a shortage of skilled health professionals, and a lack of access to essential medicines and other resources. Many of the countries most affected by the threat posed by the H5N1 virus have weak surveillance systems and inadequate laboratory support, which seriously hampers prevention efforts. In the event of an outbreak of human influenza, poor populations in those countries are greatly at risk of bearing the greatest burden. We must insist that it not be so.
In conclusion, the legacy of Nuremberg should not be taken narrowly or literally. It is a call on our conscience, and our response must be a generous, creative and imaginative one. Sixty years later, as we celebrate the courage of many, we must aspire to be more than armchair Schindlers, comfortable in the fantasy that we could also have been the heroic manager of the Hotel Mille Collines in Rwanda.
As much as history should make us wiser, foresight is our greatest gift. Our ability to anticipate, and to prevent, gives us control over our destiny. We have no excuse for not thinking forward, and acting accordingly. This is what makes us all responsible.
Thank you.
Distinguished guests,
Ladies and Gentlemen,
It is a pleasure and an honour to be with you today as we commemorate the sixtieth anniversary of the Nuremberg trials.
This anniversary inevitably brings us back to the events that triggered the Nuremberg trials: the horrors of the holocaust and the unprecedented human suffering brought about during the Second World War. Fifty-five million people lost their lives in the course of that brutal conflict and many more lives were altered forever as the impact of the war is still felt today by survivors, their families and their wider communities.
Yet in full vindication of the resilience of the human spirit, the horror of that war provided the impetus for a new era in international human rights. It led the international community to engage in an unprecedented, although still imperfect, effort to prevent the unfettered exercise of state sovereignty in order to protect populations against gross abuses of power.
It also paved the way towards a deeper awareness of the sanctity of human life and a greater understanding of the need to ensure the right of all human beings to live their lives in dignity.
Through the Charter of the United Nations, states reaffirmed their ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of nations large and small …’ and resolved ‘to save succeeding generations from the scourge of war’.
Through the Universal Declaration of Human Rights, they recognised that ‘the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. They solemnly proclaimed ‘the right to life, liberty and security of the person’ - the ‘supreme’ human right, a right without which all other human rights would lose their meaning.
Through the establishment of the International Military Tribunal at Nuremberg, they committed to holding accountable those who design, authorize or carry out massive human rights violations, in particular violations of the right to life.
The Nuremberg trials paved the way for recourse to personal criminal responsibility in the international context and led, after a long period of inertia, to the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and, ultimately, to the International Criminal Court. Much has been said about the use of criminal justice, through the personal criminal responsibility of political and military leaders, in the prevention, denunciation and punishment of the most virulent attacks on the right to life such as genocide, crimes against humanity and war crimes. Yet the usefulness of criminal punishment has its limits, among the most obvious being that it can only be activated after the fact and that its deterrence effect is likely to take a long time to bear fruit.
Hence the significance of the emergence, in international law, of the concept of the responsibility to protect. At the conclusion of the World Summit in New York last September, all member states of the United Nations accepted the principle that national governments have primary responsibility to prevent crimes against humanity, war crimes, genocide and ethnic cleansing through ‘appropriate and necessary means’ but that if they fail to do so, the international community, through the United Nations, must use ‘appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter’, to help protect populations from such crimes.
This may become as important a milestone in the evolution of human rights protection under international law as the Nuremberg Charter has been for the establishment of international criminal law. By committing to the responsibility to protect, for the first time the international community has acknowledged that serious human rights violations - in and of themselves - require an international response, regardless of whether or not such violations constitute a threat to international peace and security, as classically understood.
The thrust of my talk today will build on the significance of these developments for the protection of the right to life, in the holistic sense of that term. I will attempt to underline the shortcomings of our current approach as well as the opportunities for a more ambitious agenda.
It is too early to say whether the commitment to the responsibility to protect constitutes a real breakthrough in our approach to protect the right to life. Political commitments are worthy only to the extent that they are given meaning in practice. One may question whether the United Nations – by which I mean the Member States - currently has the real capacity and the will to discharge this obligation to protect in the face of defaulting states.
In fact, some might be forgiven for wondering what the big deal is in the Summit’s recognition of the responsibility to protect. That the members of an Organization founded amidst the ashes of the Holocaust decides sixty years later to prevent further acts of genocide and other mass atrocities, while a positive move, is not necessarily groundbreaking. Compound this with recent, or event current, state practice, and the basis for legitimate skepticism becomes even more understandable.
But in a sense, this is precisely the significance of the undertaking. The concept of the responsibility to protect articulates a basis for intervention in the face of our continued tolerance for violations of the right to life.
The problem, however, runs deeper. It relates to a failure to understand what is contained in the notion of that phrase: the right to life.
Our efforts to protect life will forever fall short until we develop that fuller understanding: an understanding which requires us to acknowledge, and act on, the realization that intervening to halt mass killings will never be as effective as our aspirations demand without a more nuanced, more holistic understanding of the ingredients of that right.
Allow me a clarification at the outset. I do not propose to enter into a lengthy discussion on the right to life as this phrase is now often understood in the United States. In this country, as elsewhere, complex moral debates on such issues as euthanasia, bioethics and abortion currently take place, and are often referred to, in certain quarters, as debates centering on the right to life. Those issues raise questions that are addressed to our individual moral, ethical, and spiritual beliefs.
I do not propose today to enter into this debate. My reference here to the right to life is to this right as articulated in international human rights law.
The right to life, I postulate, is the foundation stone of all other human rights. It refers to an inherent, ‘supreme’ right that reflects the most central values to humankind – self-preservation and dignity. It gives meaning to all other rights just as they, in turn, give substance to it. A quantum leap is required in this appreciation. Ensuring that this right is realized in full will provide the surest means available to prevent the recurrence of the kinds of mass violations that the responsibility to protect seeks to halt.
For that reason, conceiving of the responsibility to protect only in the context of four international crimes – as serious and heinous as these are – misses the point and unduly trammels our thinking.
Arguably, poverty, hunger, educational deficits, restricted access to health, inequitable distribution of resources, discrimination, and an absence or erosion of justice and of the rule of law generate more insecurity, lead to more instability and endanger more lives than those ultimate violations on which the responsibility to protect currently focuses.
In short, the problem is that the prism through which we view the responsibility to protect – and thus our commitment to uphold the right to life – is unduly myopic.
For so long as we continue, consciously or otherwise, to remain within the confines of the old, unspoken orthodoxies which view human rights as inherently intrusive and antithetical to state interests; for so long as we continue to view human rights violations as being of concern only when committed on a scale such as to threaten international peace and security; and, in this regard, for so long as we remain blind to the fact that the root of our collective security lies in our individual well-being, then the rhetoric of New York will amount to nothing.
Yet there are causes for optimism.
First, there has been real progress in reconciling respect for state sovereignty with the understanding that such a concept does not relieve the international community of its responsibility to protect human rights and punish those guilty of mass human rights violations.
At Nuremberg in 1945, states established in legal terms the concept of crimes against humanity – a phrase first used in reference to the systematic killing of Armenians during the First World War. At Nuremberg, they also committed to bringing to justice perpetrators of human rights violations, whether or not they were in breach of the domestic law of the country in which those violations took place.
Since then, international legal protections have been enshrined in a comprehensive web of instruments with detailed provisions on international humanitarian law, international refugee law, international criminal law and international human rights law - a framework which represents, perhaps, the greatest legal triumph of the last century. At the World Conference on Human Rights in Vienna in 1993, representatives of 171 states recognized that ‘the promotion and protection of all human rights is a legitimate concern of the international community’, a principle which is by now beyond challenge.
The establishment of ad hoc international criminal tribunals in the 1990’s – achievements which would not have seen fruition but for the active determination of the United States and of individuals such as John Shattuck, I should point out – added a crucial step towards giving this legal framework practical meaning for victims of international crimes. Other models, such as the Special Court for Sierra Leone, have also emerged. The creation of a permanent International Criminal Court further signaled the resolve of the international community to bring perpetrators to justice and deter future crimes.
The commitment by world leaders in New York to individual and collective action against genocide, war crimes, and crimes against humanity, I would argue, is a natural step in this progression.
And second, the responsibility to protect focuses on preventing abuses as much as, if not more, than on intervening once those abuses are already underway. While the responsibility to protect explicitly reaffirms the possibility of resorting to collective action under Chapter VII of the United Nations Charter, this is to be seen as the ultimate option, not the first.
Indeed, in 1998, Secretary-General Kofi Annan declared that the 21st century ‘must be the age of prevention’. I agree and, in that regard, I see the responsibility to protect as a declaration of a common preventive policy, one which will address not only manifest violations of the right to life but also their root causes and that this approach is required for reasons of law, morality and efficiency. In that sense, the responsibility to protect is very much complementary to international criminal justice.
Yet both concepts in my view unduly focus on predatory actions by the state against the individual without addressing the full range of obligations imposed upon states by the right to life enshrined in international human rights law. The essence of that right can be traced, in one form or another, through all cultures, societies and religions around the world. This right is rooted, as a fundamental human value, in early codes - from ancient Babylon to Hindu and Buddhist texts, from Confucianism to ancient Greek philosophers, from ancient Judeo-Christian theologians, to Roman law. It is a concept which permeates the earliest bills of rights, notably the Magna Carta, the American Bill of Rights and the French Declaration des droits de l’homme et du citoyen.
It was not until years later that the legal protection of the right to life was advanced through the International Covenant on Civil and Political Rights and other human rights treaties. Drawing on the spirit of the Universal Declaration, Article 6 of the Covenant states that ‘every human being has the inherent right to life’, including a right to protection by law, and a specific protection against the arbitrary deprivation of life.
This right has both positive and negative dimensions. It is difficult to understand why the right to life should be reduced to protection against arbitrary killings while in fact states have an express obligation to protect the right to life by law, without restriction. A more sensible understanding of the right to life would place an obligation on states to take all possible measures, for instance, to reduce infant mortality and to increase life expectancy, especially by adopting measures to eliminate malnutrition and counter epidemics, as well as to protect populations from fatal exposure to toxic waste.
Yet even in its narrowest sense the right to life in international law is not absolute. At the time the Declaration was adopted, the vast majority of United Nations member States still used the death penalty – and in fact, the death penalty was imposed by the Nuremburg and Tokyo tribunals themselves. As a result of political compromise, when the Declaration’s provisions were later transformed into treaty law, certain controlled exceptions were provided for, including capital punishment and death resulting from law enforcement or armed conflict. Regional human rights treaties, such as the European Convention on Human Rights, the American Convention on Human Rights, and the Arab Charter on Human Rights also admit capital punishment as an exception to the right to life. Paradoxically, the drafters of the Universal Declaration considered the death penalty to be fundamentally incompatible with the protection of the right to life and felt that its abolition should be the ‘common standard of achievement’ for member States.
This tension is reflective of the evolving nature of the right to life in international law. It is dynamic, not static. It evolves to confront new challenges, including moral, legal, scientific and political questions, as well as the increased aspirations and expectations of rights-holders, particularly as their demands find an outlet through the spread of democracy and communications technologies.
As I have suggested above, it is becoming increasingly apparent to many that in today’s world it is not war or arbitrary killing that constitute the greatest threat to the right to life. Each year, about 530,000 women die in pregnancy or in childbirth, and more than 10 million children die before their fifth birthday. The UN Development Programme suggests that this alarming trend is ‘fast approaching the point that merits declaration of an international health emergency’. Further:
· More than one billion people lack access to safe water and 2.6 billion lack access to improved sanitation. These factors contribute to the spread of diseases, which kill an estimated 3,900 children every day.
· 25 million people are currently living with HIV in sub-Saharan Africa - and only 4% have access to the medicines they need in order to survive. Worldwide, AIDS killed more than 3 million people last year alone.
· The vast majority of these deaths occur in developing countries and – crucially – most are avoidable.
These deaths constitute human rights violations and are as much an affront and a threat to human security, I would argue, as are arbitrary detention or torture. They represent an equally flagrant abuse of the right to life for those affected, threaten security and stifle human development. And they are equally demanding of an urgent response, at national, regional and international levels.
According to the most recent Human Development Report, the world’s richest 500 individuals have a combined income greater than that of the poorest 416 million. A staggering 1.1 billion people live on less than $1 per day. Those affected are among those most vulnerable to deterioration in their living conditions through poor nutrition; exclusion from education, justice and housing; lack of adequate health care; and restrictions on their privacy and personal security.
Inequalities within countries also have an impact on the full enjoyment of the right to life. Gender disparities, for example, exist worldwide and in some instances are so grossly pronounced that mortality rates among children aged 1-5 are fifty per cent higher for girls than for boys. Even in the United States, infant mortality rates are on the rise. These indicators reveal inequalities linked to access to health care, as well as income, race and ethnicity.
Legal developments in many countries around the world have begun to reflect these challenges to the right to life. Ten years ago in India, for example, the Supreme Court interpreted the right to life to include nutrition, clothing and shelter in considering whether the denial of emergency medical treatment at a government-run hospital violated an individual’s right life. Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996), SOL Case No. 169, 4 SCC 25, 3 SCJ 25, 2 CHRLD 109 (Supreme Court of India). More recently, in 2001 in South Africa, in a case involving children’s rights to minimum shelter, the Constitutional Court held that the realization of socio-economic rights, including access to housing, health care, sufficient food and water, and social security, is necessary to ensure human dignity, freedom and equality of all individuals. Government of the Republic of South Africa and Others v Grootboom, 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC). At the regional level, in 2001 the African Commission on Human Rights held that a state could be found in violation of the rights to life, health and housing by failing to take sufficient measures to protect a people from adverse impacts of oil exploration.
These cases illustrate the constituents of the right to life and its interdependence with other human rights.
So how do the recent commitments by leaders at the World Summit contribute to the protection of this most fundamental human right? What is the real significance of this development for the victims of human rights violations?
The Nuremberg trials exposed the grossest violations of the right to life by the deliberate actions of state actors, and led to the construction of an international legal edifice which was further enhanced by the promising doctrine of the responsibility to protect.
But where is that responsibility when by indifference, corruption, incompetence, greed or sheer inability to intervene, state actors permit or tolerate, rather than instigate, the killings of millions?
Even in the face of a robust legal framework - such as the Genocide Convention for example - effective preventive action has in practice been severely limited by the historical reluctance of states to intervene in the affairs of other states. Recognition of the inviolability of human life has rarely led to corresponding action to ensure its protection. Human rights considerations have been secondary to political priorities. Deference to national security interests, narrowly conceived of, and a stubborn adherence to myopic visions of state sovereignty have trumped concerns for the human security interests of victims even though, in a twisted irony, it is the security of its people – not just collectively but also, crucially, individually - that allows for the security of the state.
The implicit tension between states and their carefully guarded notions of state sovereignty, on the one hand, and the protection of individuals under international human rights law, on the other, must be resolved. We live in an evolving, globalized environment, one in which human security includes physical safety, economic and social well-being, respect for human dignity, and protection of human rights. Globalization has opened greater exchanges between different cultures, as well as increased economic integration. However it has also provoked a new, intensified sense of insecurity – one which is illustrated most graphically though acts of global terrorism and the phenomenon of failed states and their tendency to export their chaos far beyond their own borders. It has also provoked a new sense of entitlement, and a call for a more equitable distribution of the riches of this earth.
The responsibility of governments involves the provision of life-supporting protection and assistance to populations at risk. It requires the international community to use a range of measures to protect civilians where the government of those concerned fails to do so. It calls for a wide range of assistance actions and responses, including the responsibility to prevent, first and foremost, as well as to react and rebuild in the aftermath of serious human rights abuses. In extreme cases, the responsibility to protect may require recourse to military intervention in order to stop or avert human suffering, if non-military means cannot do so.
But the Summit commitment is silent on what these means necessary for protection might involve. The report of the International Commission on Intervention and State Sovereignty – an independent body which was tasked five years ago with tackling a range of questions related to the so-called ‘right of humanitarian intervention’ – provides some important guidance on what it could mean.
Crucially, the Commission stresses the prevention of conflict and human rights violations as the most important obligation of national actors and of the international community. A commitment to ensuring accountability and good governance, human rights protection, promotion of social and economic development, and a fair distribution of resources must all be seen as vital preventive elements.
At a minimum, prevention requires putting in place institutions to ensure the rule of law at the national level, including effective courts, an independent judiciary, a professional police force, national human rights institutions, and so on. Justice systems at national level, when properly resourced and independently operated, are the key to effective frontline human rights protection.
But I would argue that it would be short-sighted to focus protection efforts on a narrow understanding of the right to life. Protection also requires seeing to the basic social and economic necessities of all members of society, in particular those living in poverty.
We need to think more creatively about interventions to prevent unnecessary deaths and promote the right to live in dignity. Take current global health challenges, such as the avian flu, for example. People living in poverty in developing countries are the most vulnerable to ill-health from communicable diseases, partly as a result of weak health systems, a shortage of skilled health professionals, and a lack of access to essential medicines and other resources. Many of the countries most affected by the threat posed by the H5N1 virus have weak surveillance systems and inadequate laboratory support, which seriously hampers prevention efforts. In the event of an outbreak of human influenza, poor populations in those countries are greatly at risk of bearing the greatest burden. We must insist that it not be so.
In conclusion, the legacy of Nuremberg should not be taken narrowly or literally. It is a call on our conscience, and our response must be a generous, creative and imaginative one. Sixty years later, as we celebrate the courage of many, we must aspire to be more than armchair Schindlers, comfortable in the fantasy that we could also have been the heroic manager of the Hotel Mille Collines in Rwanda.
As much as history should make us wiser, foresight is our greatest gift. Our ability to anticipate, and to prevent, gives us control over our destiny. We have no excuse for not thinking forward, and acting accordingly. This is what makes us all responsible.
Thank you.