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HUMAN RIGHTS IN THE ‘WAR ON TERROR’

Since the 9/11 attacks and the ‘war on terror’, have human rights become a luxury that we can no longer afford, or must rights always remain a fundamental
part of democratic politics since they define the boundary between individual
freedom and government tyranny? This volume brings together leading international lawyers, policy-makers, activists and scholars in the field of human rights
to evaluate the impact on human rights of the ‘war on terror’, as well as to develop
a counter-terror strategy which takes human rights seriously. While some contributors argue that war is necessary in defence of liberal democracy, others assert
that it is time to move away from the war model towards a new paradigm based
upon respect for human rights, an internationally coordinated anti-terror justice
strategy and a long-term political vision that can reduce the global tensions that
generate a political constituency for terrorists.
Richard Ashby Wilson is the Gladstein Distinguished Chair of Human Rights
and Director of the Human Rights Institute at the University of Connecticut. He
has a PhD from the London School of Economics and Political Science and is
the author of numerous publications on how successor regimes and courts and
truth commissions deal with past human rights violations, and on questions of
human rights, culture and globalization. His most recent books are The Politics of
Truth and Reconciliation in South Africa (2001, Cambridge University Press) and
Human Rights in Global Perspective (co-edited, 2003, Routledge).

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Human Rights in the ‘War on Terror’
Edited by

RICHARD ASHBY WILSON
University of Connecticut

iii


  
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge  , UK
Published in the United States of America by Cambridge University Press, New York

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Information on this title: www.cambridge.org/9780521853194
© Cambridge University Press 2005
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For Margaret Wilkinson Wilson

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Contents

List of Contributors

page ix

Acknowledgements

xv

Human Rights in the ‘War on Terror’
Richard Ashby Wilson

1

1 Order, Rights and Threats: Terrorism and Global Justice
Michael Freeman

37

2 Liberal Security
Fernando R. Tes´on

57

3 The Human Rights Case for the War in Iraq:
A Consequentialist View
Thomas Cushman

78

4 Human Rights as an Ethics of Power
John R. Wallach

108

5 How Not to Promote Democracy and Human Rights
Aryeh Neier

137

6 War in Iraq: Not a Humanitarian Intervention
Kenneth Roth

143

7 The Tension between Combating Terrorism and Protecting
Civil Liberties
Richard Goldstone

8 Fair Trials for Terrorists?
Geoffrey Robertson

157
169

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Contents

9 Nationalizing the Local: Comparative Notes on the Recent
Restructuring of Political Space
Carol J. Greenhouse
10 The Impact of Counter Terror on the Promotion and
Protection of Human Rights: A Global Perspective
Neil Hicks

184

209

11 Human Rights: A Descending Spiral
Richard Falk

225

12 Eight Fallacies About Liberty and Security
David Luban

242

13 Our Privacy, Ourselves in the Age of Technological Intrusions
Peter Galison and Martha Minow

258

14 Are Human Rights Universal in an Age of Terrorism?
Wiktor Osiatynski

295

15 Connecting Human Rights, Human Development, and
Human Security
Mary Robinson

308

16 Human Rights and Civil Society in a New Age of
American Exceptionalism
Julie A. Mertus

317

Index

335


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Contributors

Thomas Cushman is Professor of Sociology at Wellesley College. He is the
author of numerous books and articles on topics ranging from cultural dissidence in Russia to the war in Bosnia and Hercegovina. He is the founding
editor of Human Rights Review, and the founding editor and current editor-inchief of The Journal of Human Rights. Prof. Cushman was Mellon Foundation
New Directions Fellow in 2002, and is a Faculty Associate at the Center for
Cultural Sociology at Yale University. His most current work is an edited volume entitled A Matter of Principle: Humanitarian Arguments for the War in

Iraq, University of California Press, 2005.
Richard Falk is the Albert G. Milbank Professor of International Law and
Practice at Princeton University. His most recent books are The Great Terror
War (2003), Religion and Humane Global Governance (2002) and Human
Rights Horizons (2001). He served as Chairman of the Consultative Council,
Lawyers’ Committee on American Policy Toward Vietnam (1967–75) and
he has been a member of international panels of jurors addressing ‘Marcos’
Policies in the Philippines’, ‘The Armenian Genocide’, ‘Reagan’s War Against
Nicaragua’, ‘Nuclear Warfare’, ‘Puerto Rico: A History of Repression and
Struggle’, and ‘Amazonia: Development and Human Rights’.
Michael Freeman is a Research Professor in the Department of Government
at the University of Essex. He was the Deputy Director of the Human Rights
Centre from 1989 to 1999 and the Director of the MA in the Theory and
Practice of Human Rights from 1991 to 2002. In addition, he served as the
Vice President of the Association of Genocide Studies and Chair of the Human
Rights Research Committee of the International Political Science Association
(1997–2000). He is the author of Human Rights: An Interdisciplinary Approach
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(2002); Edmund Burke and the Critique of Political Radicalism (1980);
Frontiers of Political Theory (co-Ed.) (1980); and Nationalism and Minorities
(1995).
Peter Galison is the Mallinckrodt Professor of the History of Science and of
Physics at Harvard University. In 1997, he was named a John D. and Catherine
T. MacArthur Foundation Fellow; in 1999, he was a winner of the Max Planck
Prize given by the Max Planck Gesellschaft and Humboldt Stiftung. His books
include How Experiments End (1987), Image and Logic (1997) and Einstein’s
Clocks, Poincare’s Maps (2003). In addition, he has instigated several projects
examining the cross-currents between physics and other fields which include
a series of co-edited volumes on the relations between science, art and architecture.
Richard Goldstone was appointed Justice of the Constitutional Court of
South Africa in 1994 after the first multiracial elections. From August 1994 to
September 1996 he served as the Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. During
1998, he was the chairperson of a group of international experts who drafted
a Declaration of Human Duties and Responsibilities for the Director General
of UNESCO (the Valencia Declaration). From 1999 to 2001 he was the chairperson of the International Independent Inquiry on Kosovo. In 2001, he was
appointed as the chairperson of the International Task Force on Terrorism
established by the International Bar Association. He has been appointed by
the Secretary-General of the United Nations to a three-person Committee of
Inquiry into the Iraq Oil for Food Program headed by Paul Volcker.
Carol J. Greenhouse is a Professor of Anthropology at Princeton University.
A cultural anthropologist, she has served as president of both the Law and
Society Association and the Association for Political and Legal Anthropology,
and has served as editor of American Ethnologist. Her major publications

include Praying for Justice: Faith, Hope and Order in an American Town (1986),
Law and Community in Three American Towns (1994, with David Engel and
Barbara Yngvesson), A Moment’s Notice: Time Politics Across Cultures (1996)
and edited volumes Democracy and Ethnography (1998) and Ethnography in
Unstable Places (2002, with Elizabeth Mertz and Kay Warren).
Neil Hicks is the Director of Human Rights First’s International Programs
and Human Rights Defenders Program. He also created and runs the Human
Rights First Middle East Initiative, a project to assist local human rights


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defenders in the closed societies of the region. In 2000 and 2001, Mr. Hicks was
a Senior Fellow in the Jennings Randolph Fellowship Program of the United
States Institute of Peace in Washington, D.C. His forthcoming book is The
Crisis of Human Rights Implementation in the Middle East, and he is the author
of many reports and scholarly articles, including ‘Human Rights in Turkey,

Some Legal Aspects’ in Human Rights Review (January 2002) and ‘Does
Islamic Human Rights Activism Provide a Remedy to the Crisis of Human
Rights Implementation in the Middle East?’ in Human Rights Quarterly
(May 2002).
David Luban is the Frederick J. Haas Professor of Law and Philosophy at
Georgetown University’s Law Center and Department of Philosophy. He
received his B.A. from University of Chicago, and his M.A., M.Phil. and Ph.D.
from Yale. His recent publications include The Ethics of Lawyers (Ed.), Legal
Modernism and Legal Ethics (co-authored). Dr. Luban has been a Woodrow
Wilson Graduate Fellow, a Guggenheim Fellow, a Danforth Fellow, a Keck
Foundation Distinguished Senior Fellow in Legal Ethics and Professional Culture at Yale Law School and a Fellow of the Woodrow Wilson International
Center for Scholars.
Julie A. Mertus is an Associate Professor of International Relations at
American University, where she is also Co-Director of the Ethics, Peace and
Global Affairs Program. Her books include Bait and Switch: Human Rights
and U.S. Foreign Policy (2004); Kosovo: How Myths and Truths Started a
War (1999); War’s Offensive Against Women: The Humanitarian Challenge
in Bosnia, Kosovo, and Afghanistan (2000); The Suitcase: Refugees’ Voices
from Bosnia and Croatia (1999); and Local Action/Global Change (1999, with
Mallika Dutt and Nancy Flowers). She is presently completing a new text on
U.N. Human Rights Mechanisms (2005), a revised English version of Local
Action/Global Change, and a co-edited volume, Human Rights and Conflict
(2005, with Jeffrey Helsing).
Martha Minow is the William Henry Bloomberg Professor of Law at Harvard
University, where she has taught since 1981. Her books include Breaking the
Cycles of Hatred (2003); Partners, Not Rivals: Privatization and the Public Good
(2003); Between Vengeance and Forgiveness: Facing History After Genocide and
Mass Violence (1998); Not Only for Myself: Identity Politics and Law (1997);
and Making All the Difference: Inclusion, Exclusion, and American Law (1990).
She served on the Independent International Commission on Kosovo and

worked as an advisor to the U.N. High Commissioner for Refugees. She is


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a member of the Harvard University Press Board, the Harvard Society of
Fellows and the American Academy of Arts and Sciences.
Aryeh Neier spent twelve years as Executive Director of Human Rights Watch,
of which he was a founder, before joining the Open Society Institute (OSI)
and the Soros Foundations Network as president in September 1993. Prior
to that, he worked for the American Civil Liberties Union for fifteen years,
including eight as National Director. Neier is the author of six books: Dossier:
The Secret Files They Keep on You (1975); Crime and Punishment: A Radical
Solution (1976); Defending My Enemy: American Nazis in Skokie, Illinois, and
the Risks of Freedom (1979); Only Judgment: The Limits of Litigation in Social
Change (1982); War Crimes: Brutality, Genocide, Terror, and the Struggle for
Justice (1998); and Taking Liberties: Four Decades in the Struggle for Rights

(2003). He played a leading role in the establishment of the international
tribunal to prosecute those responsible for war crimes and crimes against
humanity in the former Yugoslavia.
Wiktor Osiatynski is a Professor at the Central European University, and also
serves as counsel to the Open Society Foundation. Between 1991 and 1997,
Osiatynski was a co-director of the Center for the Study of Constitutionalism
in Eastern Europe at the Chicago Law School. Since 2001, he has been a
member of Academic Council of the Riga School of Law. Dr. Osiatynski is
also a Board member of the Open Society Institute, as well as of the Law
and Human Rights and Public Health sub-Boards of the OSI Foundation
network. He has written seventeen books, the majority of which address
the comparative history of social and political thought. From 1990 to 1997,
Dr. Osiatynski served as an advisor to a number of Constitutional Committees
of Poland’s Parliament, and he has been a co-editor of the East European
Constitutional Review.
Geoffrey Robertson, QC, has appeared as counsel in many landmark trials
and human rights appeals in Britain, Europe and the British Commonwealth.
He has served for the past decade as a Recorder (part-time Judge) in London,
and he is currently an Appeal Judge for the U.N. War Crimes Court in Sierra
Leone, as well as a visiting Professor in Human Rights Law at the University of
London. His books include Crimes Against Humanity: The Struggle for Global
Justice (2002); Media Law (2002); Freedom, the Individual and the Law (1994,
7th ed.); and The Justice Game (1999). His book, The Tyrranicide Brief (Knopf
2005), is a study of how Cromwell’s lawyers prepared the first war crimes trial
of a head of state. Hon. Robertson is a Master of the Middle Temple, has led


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a number of missions for Amnesty International and has received awards for
his writing and broadcasting on human rights issues.
Mary Robinson was U.N. High Commissioner for Human Rights between
1997 and 2002. Mrs. Robinson came to the United Nations after a distinguished seven-year tenure as President of Ireland. She was the first Head of
State to visit Rwanda in the aftermath of the 1994 genocide. She was also the
first Head of State to visit Somalia following the crisis there in 1992, receiving
the CARE Humanitarian Award in recognition of her efforts for that country.
Before her election as President in 1990, Mrs. Robinson served as Senator,
holding that office for twenty years. In 1969, she became the youngest Reid
Professor of Constitutional Law at Trinity College, Dublin. She was called to
the bar in 1967, becoming a Senior Counsel in 1980, and a member of the
English Bar (Middle Temple) in 1973. She also served as a member of the International Commission of Jurists (1987–90) and the Advisory Commission of
Inter-Rights (1984–90).
Kenneth Roth is the executive director of Human Rights Watch, a post he has
held since 1993. The largest U.S.-based international human rights organization, Human Rights Watch investigates, reports on and seeks to curb human
rights abuses in some seventy countries. Previously, Mr. Roth was a federal
prosecutor for the U.S. Attorney’s Office for the Southern District of New York
and the Iran-Contra investigation in Washington. He has written over seventy

articles and chapters on a range of human rights topics in such publications
as the New York Times, the Washington Post, Foreign Affairs, the International
Herald Tribune and the New York Review of Books.
´ is the Tobias Simon Eminent Scholar at the Florida State
Fernando R. Teson
University College of Law. In addition, he serves as a permanent Visiting Professor, Universidad Torcuato Di Tella, Buenos Aires, Argentina. He is author
of A Philosophy of International Law (1998) and Humanitarian Intervention:
An Inquiry into Law and Morality (1997). Before entering academia, Professor
´ was a career diplomat for the Argentina Foreign Ministry in Buenos
Teson
Aires for four years, and Second Secretary, Argentina Embassy in Brussels for
two years. He resigned from the Argentine foreign service in 1981 to protest
against the human rights abuses of the Argentine government.
John R. Wallach is Associate Professor of Political Science and Acting Director
of the Human Rights Program at Hunter College, CUNY. His areas of study
include the history of political thought, democratic theory, human rights and


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the philosophy of the social sciences. Prof. Wallach is the author of The Platonic
Political Art: A Study of Critical Reason and Democracy (2001), and co-editor
of Athenian Political Thought and the Reconstruction of American Democracy
(1994). His most recent work is a book entitled Perspectives on Democratic
Virtue: Toward a Critical Ethics of Equality and Power, forthcoming.
Richard Ashby Wilson is the Gladstein Chair of Human Rights, Professor of
Anthropology and Director of the Human Rights Institute at the University
of Connecticut. He is the author of Maya Resurgence in Guatemala (1995) and
The Politics of Truth and Reconciliation in South Africa: Legitimizing the PostApartheid State (2001) and he has edited or co-edited four books: Low Intensity
Democracy (1993); Human Rights, Culture and Context (1997); Culture and
Rights (2001); and Human Rights in Global Perspective (2003). He was editor
of the journal Anthropological Theory between 2001 and 2004 and presently
serves on the editorial boards of Journal of Human Rights, Social Justice and
the Journal of the Royal Anthropological Institute.


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Acknowledgements

This edited volume arises out of the Inaugural Conference of the Human
Rights Institute of the University of Connecticut, held on September 9–11,
2004. The effort to establish a human rights program that aspires to international excellence has received a remarkable level of support and encouragement from alumnus Gary Gladstein and his wife Judi. We are also grateful for the generous support for this conference provided by the Raymond
and Beverley Sackler Foundation. The human rights program at the University of Connecticut could not have thrived without the involvement of the
senior administration, and in particular President Philip Austin, Provost John
Petersen, Interim Provost Fred Maryanski, Dean Ross Mackinnon and Tom
Wilsted, Director of the Thomas J. Dodd Research Center, as well as a number
of faculty in the College of Liberal Arts and Sciences, notably the Chairs of
the Gladstein Committee Altina Waller and Diana Meyers, and Mark Janis at
the Law School. I thank Fine Arts Dean David Wood and Drama Head Gary
English for allowing us to use the Nafe Katter Theater as the ideal venue for the
conference. In thinking through the issues contained in this volume, I benefited enormously from discussions with Saul Dubow and Wiktor Osiatynski.
Tom Cushman provided generous counsel and lively debate throughout this
project and thereby placed his distinctive stamp upon the proceedings. The
Human Rights Institute Administrator Rachel Jackson did a superb job in
the actual organization of the conference, and Joshua Jackson proved to be a
meticulous copy editor of the manuscript. University of Connecticut students
Matt Dickhoff, Megan McDonald and David Pildis were diligent and conscientious research assistants. Finally, thanks are due to Cambridge University
Press Editor John Berger for his encouragement and guidance.

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Human Rights in the ‘War on Terror’
richard ashby wilson

Introduction
Since the end of the cold war, human rights has become the dominant vocabulary in
foreign affairs. The question after September 11 is whether the era of human rights
has come and gone.
Michael Ignatieff, New York Times, 5 February 2002
The idea of rights is nothing but the concept of virtue applied to the world of politics. By
means of the idea of rights men have defined the nature of license and of tyranny . . . no

man can be great without virtue, nor any nation great without respect for rights.
Alexis de Tocqueville, Democracy in America, [1835]1991: 219

After the 9/11 attacks and the subsequent ‘war on terror’1 , have human rights
irretrievably lost their status in international affairs and national policymaking? Or, as de Tocqueville declares, must rights always remain a fundamental part of democratic politics since they define the boundary between
individual license and government tyranny? There now exists a plethora of
books on international affairs after 9/11, too many to cite here, which examine
the political fallout of the attacks on the United States and the subsequent U.S.
response. Many are concerned with judging the proportionality of the U.S.

1

Although no less normative than other ideas such as security or human rights, the ‘war on
terror’ is rather more identified with the specific counter-terror policies of successive Bush
Administrations since 9/11, and therefore I keep it in quotation marks throughout.

Thanks are due to Thomas Cushman, Saul Dubow, Michael Freeman and John Wallach for
their comments on an early version of this chapter. Paul Bloomfield provided useful advice on
utilitarianism and ethics. All errors of fact or interpretation are my own.

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response to Islamist terrorism2 , and in particular determining the justness or
otherwise of U.S. military interventions in Afghanistan and Iraq.
In this literature, human rights issues such as the treatment of terror suspects may appear in passing, but usually to the extent that they impinge on
other, wider political aims, such as holding credible elections in Iraq. Human
rights and questions of national and global security have become disconnected in these discussions, as if they were independent of one another. This
volume builds upon a body of literature that evaluates the implications for
human rights of the military actions and anti-terror legislation that constitute the ‘war on terror’, in the United States as well as globally3 . What
have been the repercussions of the ‘war on terror’ for the individual human
rights of Afghanis, Iraqis, Britons, Americans, Spaniards and others? In what
specific ways have their rights been violated or protected by counter-terror
measures?
In addition to determining the impact of the new counter-terror context
on human rights, there is a further need to identify the ways in which human
rights and security concerns can be reconciled in the future. This is more than
just a question of expediency, as when anti-terror experts conduct a pragmatist calculus to determine which government policies are most efficient in
combating terrorism4 . While knowing which measures are effective is valuable and necessary, I am referring to a rather different kind of project, one
which takes seriously the security threat of Islamist terrorism whilst advancing
the normative case for respecting human rights in the international order.
This volume brings together leading international lawyers, policy-makers,
activists and scholars in the field of human rights to evaluate counter-terrorist
policies since 9/11, as well as to develop a counter-terror strategy which takes
human rights seriously. We should note that human rights scholars, lawyers

and advocates, whilst sharing a primary commitment to individual rights
and liberties, have adopted different stances on the ‘war on terror’, and not
all of them are fully compatible. Our first observation, therefore, is that just
valuing human rights does not answer the question of how best to respond to
terrorism. Despite their differences over major issues such as the war in Iraq,
all the contributors agree that governments need to uphold human rights
2

3
4

By ‘terrorism’ I mean deliberate and systematic attacks by state or non-state actors upon
civilian non-combatants with the intent to create a generalized state of terror in order to
further an ideological cause. See Freeman in this volume for a discussion of definitions of
terrorism.
Including Cole 2003; Dworkin 2003; Leone & Anrig 2003; Neier 2002; and Schulz 2002,
2003.
See Freeman 2003.


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3

from the outset, and integrate human rights into the core of government
anti-terror policies.
The contributors do not advance the case for human rights by mounting an
absolutist defence; for instance, by asserting that human rights are ‘trumps’
or transcendental claims or privileges that can never be questioned5 . Instead,
human rights matter because they are an indispensable component of the
liberal democratic politics required in emergency situations, a politics which
insists upon the importance of individual rights, the separation of powers
and a systematic review of executive power by the judicial and legislative
branches. Borrowing from de Tocqueville, rights allow us to define and regulate the nature of both licence and tyranny. For democracies to counteract terrorists without losing their democratic souls, they have to continually
review the threshold between unfettered individual licence on the one hand,
and unnecessary governmental coercion on the other. At a time of seemingly
perpetual ‘war’, a politics of human rights promotes the establishing of reasonable review procedures and constraints upon the conduct of the executive
branch and its military command structure. This approach resonates with
the majority position adopted by the U.S. Supreme Court, as articulated by
Judge Sandra Day O’Connor. In the 2004 Hamdi decision, Judge O’Connor
wrote that the executive’s detention of terror suspects without trial during
wartime ‘serves only to condense power in a single branch of government. We
have long since made clear that a state of war is not a blank check for the
President’ (124 S. Ct. 2633, 2650 (2004) (emphasis in original)).

Global Security Through Human Rights: The 1990s in Retrospect
The present disjuncture between rights and security in public and political
discourse is all the more remarkable given that it comes after a decade in
which human rights occupied a more prominent position in international

affairs than at any other point in history. Whereas during the Cold War,
human rights were often idealistic aspirations obstructed by a deadlocked
U.N. Security Council, in the post-Cold War 1990s, human rights values and
institutions played a greater role in establishing stability in the global order and
ensuring more democratic forms of political and economic participation at
the local level. During this time, significant advances were made in establishing
international legal institutions which could actually pursue accountability,
5

See Dworkin 1977 on rights as trumps. The classic view of universal constitutional right
within a vision of cosmopolitanism comes from Immanuel Kant (1983) in his ‘Perpetual
Peace’ essay, written in 1784.


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albeit after most of the mass human rights violations had been committed.

After 9/11, the emergent project of international legal justice is in danger of
being derailed entirely.
In the 1990s, two significant factors propelled human rights to a more
prominent role in the conceptualization and realization of collective security
concerns. Firstly, in the context of rapid economic and political globalization,
a greater premium was placed on global solutions to international security,
and a contingent consensus emerged that human rights could play a greater
role in promoting stability6 . The United Nations and government overseas
aid agencies came to insist upon basic human rights, the rule of law and
accountability as a central part of their reconstruction strategy in post-conflict
zones.
Secondly, with the ending of the Cold War, there was more scope for international responses to prevent further mass human rights abuses. In some
instances such as Sierra Leone and East Timor, the United Nations successfully intervened militarily to prevent further violence against civilian populations7, and embarked upon a relatively comprehensive reconstruction of
those countries. In other cases such as Kosovo in 1999, there was no consensus at the level of the U.N. Security Council and NATO carried out a
bombing campaign against Serb forces which contravened international law,
but according to Samantha Power likely saved hundreds of thousands of lives
(2002: 472).
The human rights agenda went beyond questions of geopolitical stability
and shaped debates in other areas such as development, the environment and
participation in political processes. For governments as well as social movements, human rights came to justify a range of activities in diverse fields such
as economic development, reconstruction and political reform. Intergovernmental agencies such as the World Bank and International Monetary Fund,
along with an array of non-governmental organisations advocated a rightsbased approach to economic and social development, to replace top-down
models of modernization. The brilliance of Nobel Prize winner Amartya Sen’s
(1999) thesis lay in the connections it drew between economic development
and human rights, and in Sen’s demonstration of how human rights were
not just desirable political freedoms, but necessary preconditions for social
justice and material development in impoverished countries.
Finally, and most importantly for this volume, the foundations were laid
in the 1990s for a global system of legal justice. In contrast to the ‘paper tiger’
conventions on human rights during the Cold War, there were significant

6

Brysk 2002; Falk 2003; Soros 2002.

7

See Robertson 2001.


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Human Rights in the ‘War on Terror’

5

advances in the implementation of human rights. Governments, with policy
guidance from human rights organizations, began constructing intergovernmental instruments of accountability for mass atrocities such as tribunals
and truth commissions. The International Criminal Tribunals for the Former Yugoslavia and Rwanda advanced international criminal law to another
level, and they secured the first international convictions for crimes against
humanity since the Nuremberg and Tokyo trials, including the first conviction
of a head of state (Jean Kambanda of Rwanda) for genocide. The 1998 Rome

Statute, ratified by 120 countries but opposed by the United States, Israel and
China, created the mandate for an International Criminal Court (ICC) that
would have jurisdiction over four categories of crimes: war crimes, crimes
against humanity, genocide and aggression8 .
These worldwide developments were underlined by decisions of national
courts, which asserted ‘universal jurisdiction’ to try crimes against humanity. In the Pinochet extradition proceedings of 1998, Spanish and British
courts ruled that Pinochet could be tried for offences such as torture, even
though they were committed elsewhere and against non-nationals. The British
House of Lords waived the centuries-old concept of ‘sovereign immunity’
to define the legitimate exercise of power of a head of state and concluded
that torture did not fall within the official duties of a head of state9 . In this
era, individual human rights edged slightly closer to Immanuel Kant’s late
eighteenth-century vision of cosmopolitan justice which could, in certain
cases of genocide and torture, override the traditional boundaries of national
sovereignty.
Yet this would be a Whig history of human rights in the 1990s unless tempered by a recognition of the profound failures of the emergent human rights
system, the most notable being the inability to prevent two (repeatedly predicted) genocides in the former Yugoslavia and in Rwanda. There still exists
no permanent international mechanism to enforce the prevention requirements of the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide, a fact that is painfully evident as a genocide unfolded in
2004 in Darfur, Sudan. Politicians such as U.S. Secretary of State Colin Powell
recognized in September 2004 that the slaughter was indeed ‘genocide’ but
failed to take the necessary steps to put a stop to it (Kessler & Lynch 2004).
Worse still, during 2004 politicians from the African Union and Arab League
and China denied that genocide was occurring and the European Union sat
on the fence, saying it did not have enough information.
8
9

See Schabas 2001.
On the Pinochet case, see Richard J. Wilson 1999 and Woodhouse 2000.